Bhanupradeep Dandala (Migration)

[2020] AATA 2986

Bhanupradeep Dandala (Migration) [2020] AATA 2986 (16 July 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Bhanupradeep Dandala

CASE NUMBER:  1903779

HOME AFFAIRS REFERENCE(S):          BCC2018/780517

MEMBER:Antonio Dronjic

DATE:16 July 2020

PLACE OF DECISION:  Melbourne

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

Statement made on 16 July 2020 at 11:33am

CATCHWORDS

MIGRATION – application for approval of nomination of position – temporary residence transition stream – training requirement – no substantive response to tribunal’s request for current information – no evidence that applicant satisfies requirements – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), s 359(2), 359C, 360(3), 363(1)(b), 363A

Migration Regulations 1994 (Cth), r 5.19(3)(e), (f)

CASES
Hasran v MIAC [2010] FCAFC 40
Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617
Manna v Minister for Immigration and Citizenship [2012] FMCA 28

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 29 January 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 16 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 has applied for approval of a nomination, seeking to satisfy the criteria in the Temporary Residence Transition nomination stream. The nominated person is Mr Naveen Kumar Kade and the nominated occupation is Network Analyst.

4. The Department refused the application on the basis the applicant’s nomination did not satisfy r.5.19 (3)(f) of the Regulations. The delegate was not satisfied on the evidence presented to the Department that the nominator meet the training requirement, required for the purpose of their most recent approval as a standard business sponsor under the Subclass 457 program, in each year throughout the validity of their sponsorship, or that it is reasonable to disregard the training requirement.

5. The applicant applied to the Tribunal on 19 February 2019 for review of the delegate’s decision and with the application submitted a copy of the primary decision record.

6. On 15 June 2020, the Tribunal wrote to the applicant pursuant to s.359(2) of the Migration Act 1958 (the Act). The letter invited the applicant to provide information in writing that will demonstrate the applicant meets all of the requirements of r.5.19(3) of the Regulations.

7. The invitation was sent to the applicant’s address provided in connection with the review. The applicant was advised that, if the information was not provided in writing by 29 June 2020, or the applicant had not made a request for an extension of time in which to provide information, 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 it might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

8. On 29 June 2020, the applicant requested an extension of time to provide the information requested in the Tribunal’s letter of 15 June 2020.

9. On 30 June 2020, after considering all the circumstances of the matter and reasons for the applicant’s request, the Tribunal granted an extension of time until 9 July 2020.

10. The applicant had not provided the information. In these circumstances, s.359C applies and pursuant to s.360(3) the 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.

11. The Tribunal has also considered whether it should adjourn the review under subsection 363(1)(b) of the Act to allow the applicant additional time in which to provide requested information and additional documentary evidence in support of the review application.

12. In doing so, the Tribunal has taken into account the decisions in Huo v Minister for Immigration and Multicultural Affairs[1] and Manna v Minister for Immigration and Citizenship[2] where the Courts have held that the Tribunal is not required to indefinitely defer its decision-making processes.

    [1] [2002] FCA 617

    [2] [2012] FMCA 28

13. The Tribunal considered whether, in the circumstances of this case, the information that the applicant meets all of the requirements of r.5.19(3) is likely to be forthcoming, whether the applicant had a fair opportunity to provide the relevant information, previous extension of time to provide requested information and the significance of the information or documents to the applicant.

14. The Tribunal has had regard to the fact that the nomination application was refused by the Department on 29 January 2019. The applicant submitted a copy of the primary decision record with the review application. As a result, the Tribunal observes that the applicant has been aware for more than 17 months of the reasons for the nomination application refusal.

15. The Tribunal wrote to the applicant under subsection 359(2) of the Act inviting the applicant to provide information demonstrating that the nomination meets all the requirements of the criteria in regulation 5.19(3) of the Migration Regulations. Despite being granted an extension of time until 9 July 2020, the applicant has failed to provide requested information.

16. The Tribunal notes that the nominating business is not prevented from lodging a new nomination application with the Department.

17. In the circumstances, the Tribunal considers the applicant has had sufficient time in which to address the central issues arising in the application for review. Accordingly, the Tribunal has decided not to exercise its discretion under subsection 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 section 359C of the Act.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

19. The issue in this case is whether the applicant meets the requirements for approval of the nomination under the Temporary Residence Transition nomination stream set out in r.5.19(3), which is extracted in the attachment to this decision. For the nomination to be approved, all the requirements must be met.

    No less favourable terms and conditions of employment: r.5.19(3)(e)

20. Regulation 5.19(3)(e) requires that the terms and conditions of employment applicable to the nominated position will be no less favourable than those that are, or would be, provided to an Australian citizen or permanent resident performing equivalent work in the same workplace at the same location.

21. The Tribunal has no contemporary information before it concerning whether or not the terms and conditions of employment applicable to the nominated position will be no less favourable than those that are, or would be, provided to an Australian citizen or permanent resident performing equivalent work in the same workplace at the same location.

22. By reference to the information presently before it, the Tribunal is not satisfied that the conditions of employment for the nominee will be no less favourable than the terms and conditions that are or would be provided to an Australian citizen or permanent resident performing equivalent work in the same workplace at the same location.

23. The Tribunal accordingly finds that the applicant has failed to satisfy the requirements of r.5.19(3)(e).

    Training commitments and obligations: r.5.19(3)(f)

24. Regulation 5.19(3)(f) requires the applicant to have fulfilled any commitments made relating to meeting training requirements, and complied with applicable obligations relating to training requirements, during the period of the applicant’s most recent sponsorship approval.  These requirements may be disregarded if it is reasonable to do so.

25. According to the primary decision record provided to the Tribunal by the applicant, the applicant’s most recent approval as a standard business sponsor was on 8 July 2015 and remained in force until 8 July 2020.

26. The training requirements applicable for an established business with approval as a standard business sponsor in that period were set out in the written instrument IMMI 13/030 as follows:

    ·A) recent expenditure by the business to the equivalent of at least 2% of payroll of the business, in payments allocated to an industry training fund that operates in the same industry as the business; or

    ·B) recent expenditure by the business to the equivalent of at least 1% of the payroll of the business, in the provision of training to employees of the business.

27. The Tribunal has no contemporary information before it indicating that the nominator fulfilled commitments made relating to meeting the training requirements during the period of the nominator’s most recent approval as a standard business sponsor.

28. Based on the evidence before it, the Tribunal is not satisfied that the nominating business meets the requirements of r.5.19(3)(f)(i) and is not satisfied that it is reasonable to disregard this requirement. Accordingly, the applicant does not meet the requirement in r.5.19(3)(f).

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

    DECISION

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

    Antonio Dronjic
    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.

    Temporary Residence Transition nomination

    (3)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 person who holds a Subclass 457 … visa granted on the basis that the person satisfied the criterion in subclause 457.223(4) of Schedule 2; and

    (iii)     identifies an occupation, in relation to the position, that:

    (A)is listed in ANZSCO; and

    (B)has the same 4-digit occupation unit group code as the occupation carried  out by the holder of the Subclass 457 … visa; and

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

    (b)the nominator:

    (i)       is, or was, the standard business sponsor who last identified the holder of the Subclass 457 … visa in a nomination made under section 140GB of the Act or under regulation 1.20G or 1.20GA as in force immediately before 14 September 2009; and

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

    (iii)     did not, as that standard business sponsor, meet regulation 1.20DA, or paragraph 2.59(h) or 2.68(i), in the most recent approval as a standard business sponsor; and

    (c)either:

    (i)       both of the following apply:

    (A)in the period of 3 years immediately before the nominator made the application, the holder of the Subclass 457 …visa identified in subparagraph (a) (ii) has:    

    (I)held one or more Subclass 457 visas for a total period of at least 2 years; and

    (II)been employed in the position in respect of which the person holds the Subclass 457 … visa for a total period of at least 2 years (not including any period of unpaid leave);

    (B)the employment in the position has been full-time, and undertaken in Australia; or

    (ii)      all of the following apply:

    (A)the person holds the Subclass 457 … visa on the basis that the person was identified in a nomination of an occupation mentioned in sub-subparagraph 2.72(10)(d)(iii)(B) or sub-subparagraph 2.72(10)(e)(iii)(B);

    (B)the nominator nominated the occupation;

    (C)the person has been employed, in the occupation in respect of which the person holds the Subclass 457 … visa, for a total period of at least 2 years in the period of 3 years immediately before the nominator made the application; and

    (d)for a person to whom subparagraph (c)(i) applies:

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

    (ii)      the terms and conditions of the person’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)       the nominator:

    (A)fulfilled any commitments the nominator made relating to meeting the nominator’s training requirements during the period of the nominator’s most recent approval as a standard business sponsor; and

    (B)complied with the applicable obligations under Division 2.19 relating to the nominator’s training requirements during the period of the nominator’s most recent approval as a standard business sponsor; or

    (ii)      it is reasonable to disregard subparagraph (i); and

    Note Different training requirements apply depending on whether the application for approval as a standard business sponsor was made before 14 September 2009 or on or after that date.

    (g)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

    (h)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

    (i)there is a genuine need for the nominator to employ the person, as a paid employee, to work in the position under the nominator’s direct control.