Australia's Cheapest Travel Pty Ltd (Migration)

[2020] AATA 5885

Australia's Cheapest Travel Pty Ltd (Migration) [2020] AATA 5885 (8 December 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Australia's Cheapest Travel Pty Ltd

CASE NUMBER:  1923209

HOME AFFAIRS REFERENCE(S):          BCC2018/913602

MEMBER:Alison Mercer

DATE:8 December 2020

PLACE OF DECISION:  Melbourne

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

Statement made on 8 December 2020 at 11:17am

CATCHWORDS
MIGRATION – Employer Nomination – approval of nominated position – Direct Entry Nomination – Cook – financial capacity to maintain term of employment – no response to s.359(2) invitation – lack of current financial information – decision under review affirmed

LEGISLATION
Migration Regulations 1994 (Cth), r 5.19

CASES
Yang v MIAC [2010] FMCA 890

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 Home Affairs on 1 August 2019 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 26 February 2018. 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 stream (r.5.19(3)) and a Direct Entry nomination stream (r.5.19(4)). 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, Australia’s Cheapest Travel Pty Ltd (trading as Lakeside Indian Restaurant), has applied for approval of a nomination of the position of Cook, 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)(d) of the Regulations because the delegate was not satisfied that the applicant had demonstrated that it had the financial capacity to employ the nominee at the proposed salary of $55,000 per year for at least 2 years on a full time basis. The delegate found that the most recent financial statements provided by the applicant (for the 2016/17 financial year) indicated that it had total sales of approximately $71,200, which did not support its assertion that it would be able to pay the nominee $55,000 per year, as well as pay its other employees. The delegate found that the applicant did not meet the Direct Entry stream criteria in r.5.19(4) and had not made any claims to meet the Temporary Residence Transition stream criteria in r.5.19(3).

5. The Tribunal received a review application on 20 August 2019.  It was signed on behalf of the applicant by Mr Harwinder Singh Jhand, and was accompanied by a copy of the delegate’s decision and an authority by which Mr Jhand appointed a registered migration agent, Mr Gaurav Gaur, as the applicant’s representative and authorised recipient for correspondence.

6. On 17 November 2020, the Tribunal wrote to Mr Jhand, via the agent, to invite him to provide updated and current information pursuant to s.359(2) of the Act, demonstrating how the applicant met all the criteria in r.5.19(4). The Tribunal requested that this information be provided by 1 December 2020, noting that if the information was not provided by that date, the applicant would lose its entitlement to have an authorised person attend a Tribunal hearing on its behalf, and the Tribunal might then proceed to make its decision on the available information, without taking further steps to obtain the requested information from the applicant. The Tribunal further noted that if Mr Jhand needed an extension of time to provide the information, this should be requested by 1 December 2020.

7. The Tribunal did not receive the requested information, or an extension of time request, by 1 December 2020. It has received no response from Mr Jhand or any other authorised person on behalf of the applicant, or its agent, since that time.

8. The Tribunal is satisfied that its s.359(2) letter of 17 November 2020 was sent to the nominated email address of the applicant's authorised recipient for correspondence. There is no indication from the Tribunal's records that the email was undelivered or undeliverable.

9. On behalf of the applicant, Mr Jhand has not responded to the Tribunal's s.359(2) letter. In the circumstances, s.359C applies and pursuant to s.360(3), a person representing the applicant is not entitled to appear before the Tribunal. The Tribunal has no power to permit them to appear: see Yang v MIAC [2010] FMCA 890.

10. Accordingly, the Tribunal has proceeded to make its decision on the available evidence without taking further steps to obtain additional information. In doing so, the Tribunal notes that Mr Jhand was invited to provide updated and current information, with detailed examples given, to enable the Tribunal to obtain relevant evidence to assess whether the applicant currently meets the r.5.19(4) criteria. Mr Jhand also had the assistance of a migration agent. Neither of them provided any information to the Tribunal. In the circumstances, the Tribunal does not consider it unreasonable to proceed to a decision without any further deferral.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. 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.

    The application is compliant: r.5.19(4)(a)

13. Regulation 5.19(4)(a) requires that the application for approval must be in the approved form, must be accompanied by the prescribed fee, and, where applicable, must include the required written certification relating to conduct that contravenes s.245AR(1). The application must also identify a need for the nominator to employ a paid employee to work in the position under their direct control.

14. Having reviewed the nomination application on the Department’s file, the Tribunal is satisfied that it met the above requirements.

15. Accordingly, the Tribunal finds that the requirement in r.5.19(4)(a) is met.

    Nominator is actively and lawfully operating a business in Australia: r.5.19(4)(b)

16. Regulation 5.19(4)(b) requires that the applicant is actively, lawfully and directly operating a business in Australia.

17. The Tribunal notes that the most recent information provided by the applicant to the Department was in April 2018, and no updated information has been provided to the Tribunal despite its s.359(2) request of 17 November 2020.

18. The Tribunal finds that there is insufficient evidence before it that the applicant continues to actively and lawfully operate a business in Australia as at December 2020, and as such, finds that the requirement in r.5.19(4)(b) is not met.

    Position is not labour-hire: r.5.19(4)(c)

19. Regulation 5.19(4)(c) applies to nominators whose business activities include those relating to labour hire to an unrelated business.  In these cases, the nominated position must be within the business activities of the nominator.

20. There is no evidence before the Tribunal that the applicant’s business activities include labour hire to an unrelated business. The Tribunal therefore gives the benefit of the doubt and finds that the requirement in r.5.19(4)(c) does not apply.

    Term of employment of the visa holder: r.5.19(4)(d)

21. Regulation 5.19(4)(d) requires the nominee to be employed in the nominated position for at least 2 years full time, and the terms and conditions of that employment do not expressly exclude the possibility of an extension.

22. The Tribunal notes that the delegate was not satisfied that this requirement was met in August 2019 due to the financial information provided by the applicant being insufficient to satisfy the delegate that it would be able to employ the nominee for at least 2 years on the proposed salary of approximately $55,000 per year.

23. The Tribunal notes that it has not received any updated information on this issue, such as recent financial statements, company tax returns, PAYG summary statements for the nominee, or any other evidence of her current employment contract and/or the applicant’s financial status.

24. Given the lack of current information, the Tribunal is unable to be satisfied that the nominee will be employed in the nominated position for at least 2 years full time on a salary of approximately $55,000 per year, or that the terms and conditions of the nominee’s employment do not expressly exclude the possibility of an extension.

25. Accordingly, the Tribunal finds that the requirement in r.5.19(4)(d) is not met.

26. As the applicant does not meet r.5.19(4)(b) and (d), the Tribunal finds that it cannot meet r.5.19(4) as a whole (as all the subparagraphs in r.5.19(4) must be met in order for the nomination to approved) and thus it is unnecessary for the Tribunal to consider the remaining subparagraphs in r.5.19(4).

27. In conclusion, 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

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

    Alison Mercer
    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)       all 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;

    (AA)there is a genuine need for the nominator to employ the person identified under subparagraph (a)(ii), as a paid employee, to work in the position under the nominator’s direct control;

    (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 the person identified under subparagraph (a)(ii), as 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).