Buubbub Pty Ltd (Migration)

[2019] AATA 3300

Buubbub Pty Ltd (Migration) [2019] AATA 3300 (24 July 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Buubbub Pty Ltd

CASE NUMBER:  1814080

DIBP REFERENCE(S):  BCC2017/2175094

MEMBER:Jane Bell

DATE:24 July  2019

PLACE OF DECISION:  Melbourne

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

Statement made on 24 July 2019 at 10:22am

CATCHWORDS

MIGRATION – nomination – Temporary Residence Transition nomination stream – training requirements – no evidence provided – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 359C(1), 360(3), 363(1)(b)
Migration Regulations 1994 (Cth), r 5.19

CASES

Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617

Manna v Minister for Immigration and Citizenship [2012] FMCA 28

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 Immigration on 25 April 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 20 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 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.

4. The delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19(3)(f)(i)(A) of the Regulations because the applicant failed to demonstrate that it had complied with the obligations under Division 2.19 of the Regulations relating to the nominator’s training requirements during the period of the most recent approval as a standard business sponsor. This meant the applicant did not satisfy r.5.19(3)(f) and thus did not meet r.5.19(3) as a whole and therefore its nomination could not be approved.

5. The Tribunal received a review application on 15 May 2018 signed on behalf of the applicant by Mr Min Hu, and accompanied by a copy of the delegate’s decision together with an authority by which Mr Min Hu, a registered migration agent, was appointed as the applicant’s representative and authorised recipient for correspondence.

6. On 23 April 2019 the Tribunal wrote to Mr Min Hu by email inviting the applicant to provide current and updated information addressing the criteria in r.5.19(2) and (3) of the Regulations by 7 May 2019.

7. On 7 May 2019, the Tribunal received a letter by email from Mr Hu stating he had forwarded the Tribunal’s letter to the applicant but had had no response. On 13 May 2019, the Tribunal telephoned Mr Hu to clarify his email of 7 May 2019 and Mr Hu confirmed that he had passed on the Tribunal’s letter to the applicant and that the applicant was advised that if the information was not provided in writing by 7 May 2019, the Tribunal may make a decision on the review without taking further steps to obtain the information and the applicant would lose any entitlement it might otherwise have had under the Migration Act 1958 to appear before the Tribunal to give evidence and present arguments. Mr Hu stated that he would attempt to contact the applicant again with respect to the Tribunal’s letter.

8. The applicant did not provide comments or information within the prescribed period and did not request further time to provide information and therefore no extension of time in which to provide comments or respond was sought or granted within the prescribed period.

9. As the applicant failed to respond within the prescribed period, s.359C(1) of the Act applies and pursuant to s.360(3), 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. The Tribunal has given consideration to 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.

11. 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 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[3] regarding the reasonableness of any request for an adjournment, and the Full Federal Court decision in Minister for Immigration and Border Protection v Singh[4] which considered this issue, as well as the more recent decision in Kaur v Minister for Immigration and Border Protection[5] where analogous issues were discussed.

    [1] [2002] FCA 617

    [2] [2012] FMCA 28

    [3] [2013] HCA 18 (8 May 2013)

    [4] [2014] FCAFC 1 (4 February 2014)

    [5] [2014] FCA 915 (28 August 2014)

12. The Tribunal considered whether, in the circumstances of this case, the information that the applicant meets the requirements in r. 5.19(3) of the Regulations is likely to be forthcoming and whether the applicant has had a fair opportunity to provide the relevant information or documents already, and the significance of the information or documents to the applicant.

13. The Tribunal has had regard to the fact that the application was refused by the Department on 25 April 2018 because the delegate concluded that the applicant had failed to demonstrate that it had complied with the obligations under Division 2.19 of the Regulations relating to the nominator’s training requirements during the period of the most recent approval as a standard business sponsor. This meant the applicant did not satisfy r.5.19(3)(f) and thus did not meet r.5.19(3) as a whole and therefore its nomination could not be approved.

14. 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 approximately 15 months of the reasons for the nomination refusal.

15. In these circumstances, and for the reasons set out in this decision record including the lack of engagement by the applicant in the review process and there being no request made by the applicant for an extension of time or reasons provided for the lack of response, 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(3).  The Tribunal is not disposed to delaying making a decision indefinitely.

16. Accordingly, the Tribunal has decided not to exercise its discretion under s. 363(1)(b) of the Act to adjourn the review any further to allow the applicant more time in which to demonstrate that the nominating business meets the requirements of r.5.19(3).

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

18. 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.

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

19. 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.

20. On 20 June 2017 the applicant lodged an Employer Nomination Scheme Nomination (Temporary Residence Transition) Web (Employer Nomination 186) for the occupation of “Café or Restaurant Manager ANZSCO: 141111”.

21. The applicant’s most recent standard business sponsorship was approved from 13/03/2014 to 13/03/2017 on the basis of meeting Training Benchmark B. Various documents were provided including financial statements and receipts for training. The Tribunal considered the receipts dated 22/11/13, 9/6/17 and 21/6/17 and determined that the applicant has not demonstrated that it meets the requirements of r.5.19(3)(f)(i)(A) and r.5.19(3)(f)(i)(B) for the relevant period as these receipt dates fell outside of the sponsorship period. The Tribunal is not satisfied that the applicant met Benchmark A on the basis of payments to an industry training fund, or Benchmark B on the basis of training undertaken by Australian citizens or permanent residents.

22. As required by r.5.19(3)(f)(ii), the Tribunal also considered whether it would be reasonable to disregard r.5.19(3)(f)(i). There is no claim, or evidence in support of this application to support why it would be reasonable to disregard the requirements of r.5.19(3)(f)(i) and accordingly, the Tribunal finds that it is not reasonable to disregard r.5.19(3)(f)(i). Therefore, the Tribunal finds that this application does not meet r.5.19(3)(f)(ii).

    Furthermore because the applicant did not provide evidence in response to the Tribunal’s letter of 23 April 2019, the Tribunal is not satisfied that the applicant has fulfilled commitments made relating to meeting the training requirements during the relevant period.

    Accordingly, the requirement in r.5.19(3)(f) is not met.

    CONCLUSION

23. 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 the 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

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

    Jane Bell
    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

    (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.