Bourke Consolidated Pty Ltd (Migration)
[2018] AATA 1011
•21 March 2018
Bourke Consolidated Pty Ltd (Migration) [2018] AATA 1011 (21 March 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT: Bourke Consolidated Pty Ltd
CASE NUMBER: 1517041
DIBP REFERENCE(S): BCC2015/1385805
MEMBER:Sheridan Lee
DATE:21 March 2018
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decision under review to refuse the nomination.
Statement made on 21 March 2018 at 11:47am
CATCHWORDS
Migration – Business sponsorship approval – Information was not provided within the prescribed period – Fair opportunity to provide the relevant information – Lost the right to appear before the Tribunal – Proceeded to decision on the review – Does not meet the regulatory requirements under r.5.19 – No evidence that the company requires a marketing specialist under ‘direct control’LEGISLATION
Migration Act 1958, ss 245AR, 359,359C, 363, 363A,
Migration Regulations 1994, r 5.19CASES
Harsan v Minister for Immigration and Citizenship [2010] FCAFC 40
Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617
Kaur v Minister for Immigration and Border Protection [2014] FCA 915
Manna v Minister for Immigration and Citizenship [2012] FMCA 28
Minister for Immigration and Border Protection v Jayshree Enterprises Pty Ltd [2017] FCA 264
Sing v Minister for Immigration and Border Protection [2014] FCCA 1403
Yang v Minister for Immigration and Citizenship [2010] FMCA 890STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW
This is an application for review of a decision made by a delegate of the Minister for Immigration on 23 November 2015 to reject an application for approval of the nomination of a position in Australia under r.5.19 of the Migration Regulations 1994 (the Regulations).
The applicant applied for approval of the position of Marketing Specialist (ANZSCO code 225113) on 13 May 2015.
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).
In this case, the applicant has applied for approval of a nomination, 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)(a)(ii) of the Regulations because there was insufficient evidence to support the need to employ a paid employee to work in the position under the nominator’s direct control.
The Tribunal received an application for review on 10 December 2015, accompanied by a copy of the delegate’s decision. No further submissions were received.
The Tribunal has before it the departmental file relating to the application.
The application for review was made online and details for Mr Matthew Bourke as the Director and contact person for the applicant were provided. These were the same contact details used for the purpose of the original application with the Department of Home Affairs (the Department).
On 14 February 2018, the Tribunal wrote to the applicant at the email address provided at the time of the application for review. The letter was issued pursuant to subsection 359(2) of the Migration Act 1958 (the Act), inviting the applicant to provide current information addressing the relevant criteria for a nomination under r.5.19 of the Regulations. The Tribunal provided a copy of r.5.19 for reference.
The invitation requested that the information be provided by 28 February 2018, noting that an extension of time to respond could be requested prior to that date. Finally, the Tribunal advised the applicant that if the information, or a request for an extension, was not received by the due date then the entitlement to appear before the Tribunal would be lost and the Tribunal might proceed to make its decision on the available evidence without taking any further steps to obtain the requested information.
The applicant did not provide the requested information within the prescribed period. In addition, the applicant did not request an extension of time and there has been no further communication from the applicant at the time of the Tribunal’s decision.
The courts have confirmed that where an applicant fails to provide the requested information within the prescribed period, s.363A of the Act precludes the Tribunal from offering the applicant a hearing.[1] Accordingly, as the applicant failed to give the information requested within the prescribed period, it has lost the right to appear before the Tribunal to give evidence and present arguments relating to the review application.
[1] See Sing v Minister for Immigration and Border Protection [2014] FCCA 1403, 32-39; Yang v Minister for Immigration and Citizenship [2010] FMCA 890, 40; Harsan v Minister for Immigration and Citizenship [2010] FCAFC 40.
In these circumstances, subsection 359C(1) of the Act applies and the Tribunal has decided to proceed to decision on the review without taking any further action to obtain the information.
The Tribunal has given consideration to whether it should adjourn the review under subsection 363(1)(b) of the Act to allow the applicant additional time in which to provide further evidence to support his review application.
In doing so, the Tribunal has taken into account the decisions in Huo v Minister for Immigration and Multicultural Affairs[2] and Manna v Minister for Immigration and Citizenship[3] where the Courts have held that the Tribunal is not required to indefinitely defer its decision-making processes. It has also had regard to the decision in Minister for Immigration and Citizenship v Li[4] regarding the reasonableness of any request for an adjournment, and the Full Federal Court decision in Minister for Immigration and Border Protection v Singh[5] which considered this issue, as well as the more recent decision in Kaur v Minister for Immigration and Border Protection[6] where analogous issues were discussed.
[2] [2002] FCA 617
[3] [2012] FMCA 28
[4] [2013] HCA 18
[5] [2014] FCAFC 1
[6] [2014] FCA 915
The Tribunal considered whether, in the circumstances of this case, the information that the applicant meets the requirements in r.5.19 is likely to be forthcoming and whether the applicant has had a fair opportunity to provide the relevant information already, and the significance of the information to the applicant.
The Tribunal has had regard to the fact that the nomination application was refused by the Department on 23 November 2015 because the delegate concluded that there was no need to employ a paid employee to work in the position of Marketing Specialist under the nominator’s direct control. 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 two years of the reasons for the nomination application refusal.
Further, as noted above, the applicant has provided no further information to the Tribunal since the application for review was received on 10 December 2015, despite being invited to do so.
In these circumstances, and for the reasons set out in this decision record, the Tribunal considers that the applicant has had a fair opportunity to provide the relevant information and sufficient time to take steps to satisfy the regulatory criteria. The Tribunal notes that it is uncertain if and when the applicant will provide information in writing as to whether the nominating business meets the requirements of r.5.19. The Tribunal is not disposed to delaying making a decision indefinitely.
Accordingly, the Tribunal has decided not to exercise its discretion under subsection 363(1)(b) of the Act to adjourn the review to allow the applicant more time in which to demonstrate that the nominating business meets the requirements of r.5.19.
For the following reasons, the Tribunal has decided to affirm the decision under review to refuse the nomination.
CONSIDERATION OF CLAIMS AND EVIDENCE
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.
In undertaking this assessment, the Tribunal is aware that there is no formal onus of proof associated with administrative inquiries and decision-making. However, the Courts have held that it is for an applicant seeking a particular outcome to put forward material in as much detail as is necessary to enable a decision-maker to establish the relevant facts. It is not for the Tribunal to fill any gap or make out the applicant’s case.[7]
[7] Minister for Immigration and Border Protection v Jayshree Enterprises Pty Ltd [2017] FCA 264, 20-30.
The application is compliant: r.5.19(4)(a)
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.
From the information on the Department’s file, the Tribunal is satisfied that the application for approval was made on the prescribed form and that the prescribed fee was paid. As the nomination was lodged on 13 May 2015, prior to 14 December 2015, there is no requirement for a written certification relating to conduct that contravenes s.245AR(1).
The Tribunal notes that the nomination application form lists the address where the nominated position will be located as an address in Cobram, which is a regional location under instrument IMMI 13/049. Nevertheless, the application form also shows that the applicant nominated under the visa subclass 186 scheme, which does not require the position to be located in regional Australia. The applicant is not precluded from nominating a position under the subclass 186 scheme.
For the reasons outlined below, the nomination does not meet the regulatory requirements under r.5.19(4) common to positions located in both regional and non-regional Australia. Consequently, the Tribunal has not considered if the nominated position meets either the requirements in r.5.19(4)(h)(i) or the requirements for a position located in regional Australia under r.5.19(4)(h)(ii).
Subparagraph 5.19(4)(a)(ii) requires that the application must identify a need for the nominator to employ a paid employee to work in the position under its direct control.
For the purposes of subparagraph 5.19(4)(a)(ii), the Tribunal finds that the nomination application form identifies a nominee in relation to the nominated occupation of Marketing Specialist.
In relation to the 'direct control' element of subparagraph 5.19(4)(a)(ii), the Tribunal notes that along with other documentation, the applicant submitted an organisational chart to the Department. The chart details the structure of the business, including the nominated position, which reports to the CEO. The applicant also submitted a position description outlining the responsibilities and accountabilities of the role.
Subparagraph 5.19(4)(a)(ii) also requires the Tribunal to be satisfied that the application for approval identifies a need for the applicant to employ a paid employee to work in the position of a Marketing Specialist under its direct control.
According to the primary decision record provided to the Tribunal, the delegate was not satisfied that subparagraph 5.19(4)(a)(ii) had been made out as the business did not supply sufficient information explaining the need for a paid employee to work in the position of Marketing Specialist.
The Tribunal observes that the wording of subparagraph 5.19(4)(a)(ii) does not make reference to a 'genuine need' for the applicant to employ a paid employee to work in the nominated position under its direct control.
Given the wording of subparagraph 5.19(4)(a)(ii), the Tribunal is satisfied that this provision is not directed at a qualitative assessment of the nominator's need for a paid employee to work in the nominated position. This view is supported by the context in which subparagraph 5.19(4)(a)(ii) appears, as r.5.19(4)(a) refers to “the application for approval” and subparagraph 5.19(4)(a)(i) directs the decision maker's attention to whether that application complies with the administrative requirements set out in r.5.19(2).
By contrast, r.5.19(4)(d)(i) requires the Tribunal to be satisfied that the employee will be employed on a full-time basis in the position for at least two years. Given this, the Tribunal considers that in this matter it is more appropriate to undertake the qualitative assessment of the nominated position with the applicant under that provision.
The Tribunal finds that the application is sufficient to meet the requirements of subparagraph 5.19(4)(a)(ii).
Term of employment of the visa holder: r.5.19(4)(d)
Regulation 5.19(4)(d) requires the nominee to be employed in the nominated position for at least 2 years full time, and that the terms and conditions of that employment do not expressly exclude the possibility of an extension.
The applicant provided to the Department a copy of its letter of appointment to the nominee, dated 30 April 2015. The letter states that the commencement date for the nominee was 1 May 2015, however it does not specify the duration of the engagement with the business. It therefore provides limited insight into the proposed length of the employment.
The Tribunal notes that while the applicant supplied some evidence of its financial position to the Department in 2015, those documents have limited probative value for establishing if the business has the financial capacity to employ the nominee on a salary of $181,818 for a period of at least two years from 2018.
The Tribunal accepts that this evidence provided an indication of the applicant's business operations in the period leading up to June 2015. However, approximately 2 and a half years have passed since that time and the applicant has not provided any further evidence that it continues to have the financial capacity to meet the substantial salary offered to the employee.
Further, in the decision record issued by the Department on 23 November 2015, a copy of which was provided to the Tribunal by the applicant, the delegate noted that the salary of $181,818 offered for the nominated positon was four times the gross payments made to the nominee for the financial year ending 30 June 2015 for performing the same role. The applicant was advised at that time of the delegate’s expectation that a business committed to paying a high salary should be in a position to provide financial budgets showing projected revenue and expenditure as well as sources of funding. No further evidence was submitted to the Tribunal in support of the nomination.
This is in circumstances where the Tribunal formally invited the applicant on 14 February 2018 to provide updated and current information that confirmed that the applicant did so at the time of decision in 2018.
As noted above, the applicant did not provide any of the information the Tribunal requested in its subsection 359(2) invitation, dated 14 February 2018. Likewise, the applicant has not contacted the Tribunal regarding the application up until the time of decision.
Consequently, there is very little evidence before the Tribunal regarding the applicant's ability to maintain a paid employee in the nominated position for at least two years. Importantly, the Tribunal can only make a decision based on the evidence before it.
In the circumstances, the Tribunal is not satisfied that the nominated employee will be employed on a full-time basis in the position for at least 2 years if the nomination were approved, in accordance with the requirement of subparagraph 5.19(4)(d)(i). Accordingly, the requirement in r.5.19(4)(d) is not met.
CONCLUSION
Based on its findings in respect of r.5.19(4)(d), the Tribunal is not satisfied that the applicant meets the requirements of r.5.19(4). Given these findings, it is not necessary for the Tribunal to consider if the applicant met the other requirements set out on regulations 5.19(4)(b),(c),(e),(f),(g) and (h).
The applicant has not sought to satisfy the criteria in the temporary residence transition nomination stream, and as such has not met the requirements in r.5.19(3). Accordingly, the Tribunal cannot approve the nomination of the position. Therefore, the Tribunal must affirm the decision under review.
DECISION
The Tribunal affirms the decision under review to refuse the nomination.
Sheridan Lee
MemberATTACHMENT - 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
(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 at a skill level of ANZSCO skill level 1, 2 or 3;
(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).
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
Legal Concepts
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Judicial Review
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Procedural Fairness
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Statutory Construction
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Natural Justice
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