BJ & DC Aussie Investment Pty Ltd (Migration)

[2020] AATA 598

BJ & DC Aussie Investment Pty Ltd (Migration) [2020] AATA 598 (28 February 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  BJ & DC Aussie Investment Pty Ltd

CASE NUMBER:  1817347

DIBP REFERENCE(S):  BCC2017/2287803

MEMBER:R. Skaros

DATE:28 February 2020

PLACE OF DECISION:  Sydney

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

Statement made on 28 February 2020 at 9:20am

CATCHWORDS
MIGRATION – application for approval of nomination of position – Direct Entry Nomination stream – evidence that position could not be filled by Australian citizen or permanent resident – no response to tribunal’s s 359(2) letter – decision under review affirmed

LEGISLATION

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

Migration Regulations 1994 (Cth), r 5.19(4)(h)(i)(B), (ii)(C)

CASE

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 23 May 2018 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 28 June 2017 seeking to satisfy the criteria in the Direct Entry Nomination stream. The delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19(4)(h)(ii)(C) of the Regulations because there was insufficient evidence to demonstrate that the nominated position could not be filled by an Australian citizen or permanent resident living in the same local area. The applicant provided a copy of the delegate’s decision record to the Tribunal.

3. On 16 January 2020 the Tribunal wrote to the review applicant pursuant to s.359(2) of the Act, inviting the review applicant to provide updated and current information about the various requirements in rr.5.19(2) and (4). The letter also advised that, in order for the nomination of a position to be approved, the Tribunal must be satisfied that all of the relevant criteria in r.5.19 are met at the time of its decision.

4. The invitation was sent to the last email address provided in connection with the review and advised that, if the information was not provided in writing by 30 January 2020 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.

5. On 16 January 2020, the applicant’s representative responded to the Tribunal by email, noting he had received the request for information and that he would be forwarding the Tribunal’s letter to the applicant for their attention. 

6. 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.

7. The Tribunal is satisfied that the invitation to provide information was sent to the correct email address that the authorised recipient has received it. The authorised recipient indicated that the invitation has been forwarded to the applicant, however, to date, the requested information has not been provided and neither the authorised recipient or the applicant has made contact with the Tribunal to indicate that the information is forthcoming. The Tribunal is not required to delay indefinitely making its decision. In the circumstances, the Tribunal has decided to proceed to decision without taking further steps to obtain the information.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. 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.

10. The Tribunal’s letter to the applicant of 16 January 2020 invited the applicant to provide updated and current information about all the relevant requirements in r.5.19. It also advised that, for the nomination to be approved, the Tribunal must be satisfied that all of the relevant criteria are met at the time of its decision. As stated above, the applicant did not respond to the Tribunal’s invitation and no updated and current information about the applicant or its business has been received. As the applicant has not provided the information requested, the Tribunal is unable to be satisfied that at the time of this decision the applicant meets the requirements for approval of the nomination in the Direct Entry Nomination stream.

11. The delegate refused the nomination on the basis that r.5.19(4)(h)(ii)(C) was not met because there was insufficient evidence given to demonstrate that the position could not be filled by an Australian citizen or permanent resident living in the same local area.

12. The Tribunal invited the applicant to provide updated and current information about a range of matters, including the need to employ the nominee in the nominated position and why the position cannot be filled by an Australian citizen or permanent resident living in the same local area. Without limiting the type of information that could be provided, the Tribunal suggested examples of information that could be provided, including local job advertisements and a Regional Certifying Body’s certificate issued to the applicant in respect of the position. No response has been received to the invitation to provide information.

13. In the absence of current information, the Tribunal is unable to be satisfied that, at the time of its decision, the nominated position cannot be filled by an Australian citizen or permanent resident living in the same local area. Accordingly, the Tribunal is not satisfied that r.5.19(4)(h)(ii)(C) is met.

14. The applicant was also invited to provide updated and current information about its recent or proposed training expenditure. Without limiting the type of information that could be provided, the Tribunal suggested examples of information and/or documents that the applicant could provide, including invoices or contracts for employee training, a training program that included a course outline and identified increased work competencies, or records of investment in certain industry training funds or recognised industry bodies. No response has been received to the invitation to provide information.

15. In the circumstances, the Tribunal is also unable to be satisfied that, at the time of its decision, the specified training requirements have been met. Accordingly, the Tribunal is not satisfied that r.5.19(4)(h)(i)(B) is met.

16. As the alternative requirements in r.5.19(4)(h)(i) or (ii) are not met, the requirement in r.5.19(4)(h) is not met.

17. 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

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

    R. Skaros
    Senior 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).