Cantone Family Trust (Migration)

[2022] AATA 3120

Cantone Family Trust (Migration) [2022] AATA 3120 (21 July 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Cantone Family Trust

CASE NUMBER:  1914780

HOME AFFAIRS REFERENCE(S):          BCC2017/3252171

MEMBER:Penelope Hunter

DATE:21 July 2022

PLACE OF DECISION:  Sydney

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

Statement made on 21 July 2022 at 4:22pm

CATCHWORDS
MIGRATION – nomination – Direct Entry nomination stream –applicant failed to provide the requested information within the prescribed period – applicant had not provided any up to date financial documents to demonstrate the financial status of the business – nominator did not provide any updated or current information –decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 245AR, 359, 360, 363
Migration Regulations 1994, r 5.19

CASES
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 Home Affairs on 23 May 2019 to reject the applicant’s application for approval of the nomination of a position in Australia under reg 5.19 of the Migration Regulations 1994 (Cth) (the Regulations).

2. The applicant applied for approval on 7 September 2017. The requirements for the approval of the nomination of a position in Australia are found in reg 5.19 of the Regulations which contains two alternative streams: a Temporary Residence Transition nomination stream (reg 5.19(3)) and a Direct Entry nomination stream (reg 5.19(4)). If the application is made in accordance with reg 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: reg 5.19(5).

3. In this case, the applicant has applied for approval of a nomination, 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 reg 5.19(4)(d)(i) of the Regulations because they were not satisfied that the applicant had demonstrated that the employee will be employed on a full time basis in the position for at least two years.

5. The Tribunal received an application for review from the applicant 10 June 2019.

6. On 17 June 2022, the Tribunal wrote to the applicant and requested that the applicant provide information in writing to support the review in accordance with s 359(2) of the Act. The applicant was requested to provide information demonstrating that the business currently met all the relevant criteria in r 5.19(2) and r 5.19(4) of the Regulations, including but not limited to the criteria that the Department had found was not met. The Tribunal requested that the information be provided by 1 July 2022, although the applicant was advised that an extension of time to respond could be requested but this would need to be made before 1 July 2022. Finally, the Tribunal instructed the applicant that if the requested information was not received by the due date (or any extended dated if an extension of time was granted), then the entitlement to appear at a Tribunal hearing would be lost and the Tribunal might proceed to make its decision on the available evidence without taking further steps to obtain the requested information.

7. The applicant has not provided any further information or submissions to the Tribunal by 1 July 2022 or as at the date of this decision.

8. As the applicant has not responded to the Tribunal’s request of 17 June 2022 to provide information within the time provided, or requested a further extension of time, s 359C of the Act applies and the Tribunal may make decision on the review without taking any further action to obtain the information. Furthermore, s 360(3) of the Act operates to remove the entitlement of the applicant to appear before the Tribunal. Pursuant to s 363A of the Act, if a review applicant has no entitlement to a hearing, the Tribunal has no power to permit them to appear: Hasran v MIAC [2010] FCAFC 40.

9. The Tribunal is satisfied that the invitation to provide information was sent to the correct email address for correspondence for the applicant. The Tribunal has also had regard to the fact that the application was refused by the Department on 23 May 2019. The applicant had also been on notice of the reasons for refusal, and the delegates concern over lack of financial information regarding the business, for over three years. Other than filing the application for review the applicant has not engaged further with the Tribunal in respect of the review process. In the circumstances, the Tribunal considers the applicant has had sufficient time to address the central issues arising from the review application. Accordingly, the Tribunal has determined not to adjourn the matter further and proceed to a determination.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. 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 reg 5.19(4), which is extracted in the attachment to this decision. For the nomination to be approved, all the requirements must be met.

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

12. 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.

13. The delegate comments in their decision record, a copy of which the applicant has submitted to the Tribunal, that the applicant had not provided any up to date financial documents to demonstrate the financial status of the business. On review, the Tribunal must by necessity consider contemporaneous information relating to the requirements of reg 5.19(4) of the Regulations. It has been over five years since the applicant lodged the nomination application with the Department, and the applicant still has not produced any financial information such as a profit and loss statement or a balance sheet, to demonstrate the viability of the business and its turnover.

14. In the absence of any information regarding the financial performance of the business, the Tribunal finds that it is not possible to determine if the applicant is continuing to trade profitably and meet its wage obligations to its employees, or event that it is continuing to trade. The applicant has not demonstrated that it is currently operating the nominated business, or that it is in a financial position as at the date of this decision to employee the nominee as a hairdresser within its business on a full time basis for two years.

15. Accordingly, the Tribunal is not satisfied that the requirement in reg 5.19(4)(d) is met.

16. For the above reasons the Tribunal is not satisfied that the applicant meets the requirements of reg 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 reg 5.19(3). Accordingly, the nomination of the position cannot be approved. Therefore, the Tribunal must affirm the decision under review.

    DECISION

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

    Penelope Hunter
    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 an identified person, as 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).