AUSCO INVESTMENT GROUP PTY.LTD. (Migration)

[2019] AATA 4017

AUSCO INVESTMENT GROUP PTY.LTD. (Migration) [2019] AATA 4017 (2 September 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  AUSCO INVESTMENT GROUP PTY.LTD.

CASE NUMBER:  1719767

DIBP REFERENCE(S):  BCC2017/2316981

MEMBER:Keith Kendall

DATE:2 September 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision under review to refuse the nomination.

Statement made on 02 September 2019 at 6:07pm

CATCHWORDS
MIGRATION – nomination – Direct Entry Nomination stream – training benchmark requirement – no supporting evidence to substantiate claimed training expenditure – Tribunal attempted to contact applicant – sufficient opportunity to respond – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 359, 360, 363
Migration Regulations 1994 (Cth), r.5.19

CASES
Hasran v MIAC [2010] FCAFC 40

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 9 August 2017 to reject the applicant’s application for approval of the nomination of a position in Australia under r.5.19 of the Migration Regulations 1994 (the Regulations).

2. The applicant applied for approval on 29 June 2017. The requirements for the approval of the nomination of a position in Australia are found in r.5.19 of the Regulations which contains two alternative streams: a Temporary Residence Transition nomination (r.5.19(3)) stream and a Direct Entry nomination (r.5.19(4)) stream. If the application is made in accordance with r.5.19(2) and meets the requirements of either stream, then the application must be approved. If any of the requirements are not met then the application must be refused: r.5.19(5).

3. In this case, the applicant has applied for approval of a nomination, seeking to satisfy the criteria in the Direct Entry Nomination stream.

4. The delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19(4)(h) of the Regulations because no supporting evidence was provided to substantiate the expenditures claimed in the nomination application towards the training expenditure benchmark requirement.

5. On 22 July 2019, the Tribunal wrote to the review applicant pursuant to s.359(2) of the Migration Act 1958 (the Act), inviting the review applicant to provide information about addressing the specific criteria set out for an employer nomination under r.5.19(4), which were explicitly specified in that letter, in writing.

6. The invitation was sent to the last address provided in connection with the review and advised that, if the information was not provided in writing by 5 August 2019, the Tribunal may make a decision on the review without taking further steps to obtain the information and the review applicant would lose any entitlement they might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

7. The review applicant has not provided the information within the prescribed period and no extension has been granted. In these circumstances, s.359C applies and pursuant to s.360(3) the review applicant is not entitled to appear before the Tribunal. The effect of s.363A of the Act is that if a review applicant has no entitlement to a hearing, the Tribunal has no power to permit him or her to appear: Hasran v MIAC [2010] FCAFC 40. The Tribunal has decided to proceed to decision without taking further steps to obtain the information.

8. The Tribunal has also considered whether it should adjourn the review under s.363(1)(b) of the Act to allow the applicant additional time in which to provide further evidence to support the review application.

9. The Tribunal considered whether, in the circumstances of the case, the evidence that the applicant meets all of the requirements of r.5.19(4) is likely to be forthcoming, whether the applicant had a fair opportunity to provide the relevant information or documents already, and the significance of the information or documents to the applicant.

10. The Tribunal has had regard to the fact that the nomination application was refused by the Department on 9 August 2017. The applicant submitted a copy of the primary decision record with the review application.

11. With its acknowledgment letter of 1 September 2017, the Tribunal invited the applicant to provide material or written arguments in support of the review application. The applicant has not provided any further material or written arguments.

12. The Tribunal wrote to the applicant under s.359(2) of the Act on 22 July 2019 inviting the applicant to provide information demonstrating that the nomination meets all the requirements of the criteria in r.5.19(4) of the Regulations. The applicant has failed to provide the requested further information within the prescribed period set for this purpose. The Tribunal notes that the applicant has not otherwise provided any further information subsequently.

13. In the circumstances, the Tribunal considers that the applicant has had sufficient opportunity in which to address the central issues arising in the application for review. Accordingly, the Tribunal has decided not to exercise its discretion under s.363(1)(b) of the Act to adjourn the review any further. The Tribunal has determined to make a decision on the review without taking any further action to obtain the information in accordance with s.359C.

14. For the following reasons, the Tribunal has decided to affirm the decision under review to refuse the nomination.

    CONSIDERATION OF CLAIMS AND EVIDENCE

15. The issue in this case is whether the applicant meets the requirements for approval of the nomination under the Direct Entry nomination stream set out in r.5.19(4), which is extracted in the attachment to this decision. For the nomination to be approved, all the requirements must be met.

    Tasks of the position genuine need for the position and training requirements r.5.19(4)(h)

16. Regulation 5.19(4)(h) contains a number of alternative requirements. These are set out in detail in the attachment to the decision but can be briefly summarised as requiring either that:

    ·the tasks to be performed in the position will be performed in Australia and correspond to those of an occupation specified by the Minister (see legislative instrument IMMI 16/059 (as amended by IMMI 17/040), the occupation is applicable to the proposed employee in accordance with any specifications made in that instrument, and specified training requirements are met; or

    ·the position and nominator’s business is located in regional Australia, there is a genuine need for the paid position under the nominator’s direct control which cannot be filled by a locally resident Australian citizen or permanent resident, the tasks of the position correspond to those of an occupation specified in the relevant legislative instrument, the occupation is applicable to the proposed employee in accordance with the specification of the occupation and that a regional certifying body has advised the Minister about certain matters relating to the position.

17. On the nomination application, the applicant indicated that it has been trading since 30 March 2013. Records obtained from the Australian Securities and Investments Commission (ASIC) indicate that the applicant was registered on 30 March 2013. Records obtained from the Australian Business Register indicate that the applicant was registered for goods and services tax (GST) from 1 December 2013.

18. Based on the above information, the Tribunal is satisfied that the applicant had been operating a business for at least 12 months. Therefore, r.5.19(4)(h)(B)(I) applies to determine the relevant training expenditure benchmark requirement for this application.

19. In accordance with legislative instrument IMMI 13/030, the applicant may meet the training expenditure benchmark requirement in one of two ways. Training Benchmark A requires that the applicant have made recent expenditure equivalent to at least 2% of the applicant’s payroll in payments allocated to an industry training fund that operates in the same industry as the applicant. Alternatively, Training Benchmark B requires that the applicant have made recent expenditure to the equivalent of 1% of its payroll in the provision of training to its employees.

20. No evidence has been provided in respect of Training Benchmark A, nor has the applicant claimed such expenditure. Therefore, the Tribunal is not satisfied that Training Benchmark A has been met.

21. In respect of Training Benchmark B, on the nomination application, the applicant indicated that it had incurred gross payroll expenditure in the preceding 12 months of $1,545,102 and incurred expenditure on training Australian citizens or permanent residents of $17,871.

22. No supporting documentation was provided to the Department of Immigration and Border Protection at the time of the nomination application, nor was any provided subsequently prior to the primary decision being made.

23. No further information or documents have been provided to the Tribunal to support the contents of the nomination application. Consequently, there is no information before the Tribunal to substantiate the applicant’s payroll or training expenditure towards satisfying Training Benchmark B.

24. In the absence of such information, the Tribunal is not satisfied that the applicant has met its training expenditure benchmark requirement under r.5.19(4)(h)(B)(I).

25. Accordingly the requirements of r.5.19(4)(h) are not met.

26. For the above reasons the Tribunal is not satisfied that the applicant meets the requirements of r.5.19(4). The applicant has not sought to satisfy the criteria in Temporary Residence Transition Nomination stream, and as such has not met the requirements in r.5.19(3). Accordingly, the nomination of the position cannot be approved. Therefore, the Tribunal must affirm the decision under review.

    DECISION

27. The Tribunal affirms the decision under review to refuse the nomination.

    Keith Kendall
    Member

    
    

    ATTACHMENT  -  EXTRACTS FROM THE MIGRATION REGULATIONS 1994

    5.19Approval of nominated positions (employer nomination)

    …

    (2)The application must:

    (a)be made in accordance with approved form 1395…; and

    (aa) include a written certification by the nominator stating whether or not the nominator has engaged in conduct, in relation to the nomination, that constitutes a contravention of subsection 245AR(1) of the Act; and

    (b)be accompanied by the fee mentioned in regulation 5.37.

    …

    Direct Entry nomination

    (4)The Minister must, in writing, approve a nomination if:

    (a)the application for approval:

    (i)       is made in accordance with subregulation (2); and

    (ii)      identifies a need for the nominator to employ a paid employee to work in the position under the nominator’s direct control; and

    (b)the nominator:

    (i)       is actively and lawfully operating a business in Australia; and

    (ii)      directly operates the business; and

    (c)for a nominator whose business activities include activities relating to the hiring of labour to other unrelated businesses — the position is within the business activities of the nominator and not for hire to other unrelated businesses; and

    (d)both of the following apply:

    (i)       the employee will be employed on a full-time basis in the position for at least 2 years;

    (ii)      the terms and conditions of the employee’s employment will not include an express exclusion of the possibility of extending the period of employment; and

    (e)the terms and conditions of employment applicable to the position will be no less favourable than the terms and conditions that:

    (i)       are provided; or

    (ii)      would be provided;

    to an Australian citizen or an Australian permanent resident for performing equivalent work in the same workplace at the same location; and

    (f)either:

    (i)       there is no adverse information known to Immigration about the nominator or a person associated with the nominator; or

    (ii)      it is reasonable to disregard any adverse information known to Immigration about the nominator or a person associated with the nominator; and

    (g)the nominator has a satisfactory record of compliance with the laws of the Commonwealth, and of each State or Territory in which the applicant operates a business and employs employees in the business, relating to workplace relations; and

    (h)either:

    (i)       both of the following apply:

    (A)the tasks to be performed in the position will be performed in Australia and correspond to the tasks of an occupation specified by the Minister in an instrument in writing for this sub-subparagraph;

    (AAA)the occupation is applicable to the person identified under subparagraph (a)(ii) in accordance with the specification of the occupation;

    (B)either:

    (I)the nominator’s business has operated for at least 12 months, and the nominator meets the requirements for the training of Australian citizens and Australian permanent residents that are specified by the Minister in an instrument in writing for this sub-sub-subparagraph; or

    (II)the nominator’s business has operated for less than 12 months, and the nominator has an auditable plan for meeting the requirements specified in the instrument mentioned in sub-sub-subparagraph (I); or

    (ii)      all of the following apply:

    (A)the position is located in regional Australia;

    (B)there is a genuine need for the nominator to employ a paid employee to work in the position under the nominator’s direct control;

    (C)the position cannot be filled by an Australian citizen or an Australian permanent resident who is living in the same local area as that place;

    (D)the tasks to be performed in the position correspond to the tasks of an occupation specified by the Minister in an instrument in writing for this sub-subparagraph;

    (DA)the occupation is applicable to the person identified under subparagraph (a)(ii) in accordance with the specification of the occupation;

    (E)the business operated by the nominator is located at that place;

    (F)a body that is:

    (I)specified by the Minister in an instrument in writing for this sub-subparagraph; and

    (II)located in the same State or Territory as the location of the position;

    has advised the Minister about the matters mentioned in paragraph (e) and sub-subparagraphs (B) and (C).