Central Cleaning Supplies (Aust) Trust (Migration)

[2019] AATA 5625

Central Cleaning Supplies (Aust) Trust (Migration) [2019] AATA 5625 (28 November 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Central Cleaning Supplies (Aust) Trust

CASE NUMBER:  1919672

DIBP REFERENCE(S):  BCC2017/3898405

MEMBER:Mark Bishop

DATE:28 November 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 28 November 2019 at 4:24pm

CATCHWORDS
MIGRATION – Employer Nomination – approval of nominated position – Direct Entry Nomination stream – no response to s 359(2) invitation – not entitled to appear before the Tribunal – genuine need – Customer Service Manager – unsatisfactory advice from the Regional Certifying Body – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 359C, 360, 363A
Migration Regulations 1994 (Cth), r 5.19

CASES
Hasran v MIAC [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 Singh [2014] FCAFC 1
Minister for Immigration and Citizenship v Li [2013] HCA18
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 29 June 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 23 October 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 (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).

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 nominator provided a copy of the decision record to the Tribunal. The decision record clearly outlined the fact the applicant provided limited supporting documentation to the Department. The delegate outlined the lack of particulars provided by the nominator that addressed sub regulation 5.19(4)(h)(ii).

5. The delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19(4)(h)(ii) of the Regulations as the nominator failed to provide sufficient information that substantiated the claim in respect of the genuine need for a paid employee in the identified position.

6. In this case the Tribunal formally wrote to the review applicant pursuant to s.359(2) of the Act inviting the review applicant to provide further information under the Direct Entry Nomination Scheme to the Tribunal, including information in relation to r.5.19(2) and (4) of the Regulations.

7. The Tribunal did not receive any response to the before mentioned written invitation within time. That is the review applicant has not provided the Tribunal with any further information within time other than that which was provided to the Department.

8. The Tribunal is satisfied that the review applicant was properly sent an invitation to provide further information under s.359(2) of the Act. The invitation was sent to the review applicant’s nominated address, being an address provided by the review applicant in connection with this application for review.

9. As the applicant failed to respond within the prescribed period, s.359C(1) 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 them to appear see Hasran v MIAC [2010] FCAFC 40 at [26]; Yang v MIAC [2-010] FMCA 890 at [40].

10. The Tribunal has considered whether, in the circumstances of this case, information that the review applicant meets the requirements of the Act and Regulations is likely to be forthcoming and whether the review applicant has had a fair opportunity to provide relevant information already.

11. 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. In doing so, the Tribunal has had regard to the decisions in Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617 and Manna v Minister for Immigration and Citizenship [2012] FMCA 28 where the Courts have held that the Tribunal is not required to indefinitely defer its decision-making processes. It has also had regard to Minister for Immigration and Citizenship v Li [2013] HCA18 (8 May 2013) regarding the reasonableness of any request for an adjournment, and the Full Federal Court decision in Minister for Immigration and Border Protection v Singh [2014] FCAFC (4 February 2014) which considered analogous issues, as well as the recent decision of Kaur v Minister for Immigration and Border Protection [2014 FCA 915 (28 August 2014).

12. In these circumstances, for the reasons set out in this decision record above, the Tribunal considers that the review applicant has had a fair opportunity to provide relevant information.

13. 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 review applicant more time. In these circumstances, the Tribunal has decided to proceed to make a decision having regard to the information it has before it, including the information previously provided by the review applicant to the Department.

14. Ultimately, a decision maker is not required to make the review applicant’s case. It is for the review applicant to satisfy the Tribunal that the requirements of the Act and Regulations have been met. Although the concept of onus of proof is not appropriate to administrative decision-making, the relevant facts of the individual case have to be supplied by the review applicant, in as much detail as is necessary to enable the examiner to establish the relevant facts.

15. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    CONSIDERATION OF CLAIMS AND EVIDENCE

16. 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.

    Tasks of the position genuine need for the position and training requirements r.5.19(4)(h)

17. Regulation 5.19(4)(h) contains a number of alternative requirements. These are set out in detail in the attachment to the decision but can be briefly summarised as requiring either that:

    ·the tasks to be performed in the position will be performed in Australia and correspond to those of an occupation specified by the Minister for the relevant instrument the occupation is applicable to the proposed employee in accordance with any specifications made in that instrument, there is a genuine need for the nominee to be employed as a paid employee in the position, and certain specified training requirements are met; or

    ·the position and nominator’s business is located in regional Australia, there is a genuine need for the nominee to be employed as a paid employee in the position under the nominator’s direct control, the position cannot be filled by a locally resident Australian citizen or permanent resident, the tasks of the position correspond to those of an occupation specified in the relevant legislative instrument, the occupation is applicable to the proposed employee in accordance with the specification of the occupation, and that a regional certifying body has advised the Minister about certain matters relating to the position.

18. The delegate outlined that on 23 October 2017, CENTRAL CLEANING SUPPLIES (AUST) TRUST lodged a nomination application under the Direct Entry stream of the Regional Sponsored Migration Scheme (RSMS) for the position of Customer Service Manager, which the nominator has indicated relates to the Australian and New Zealand Australian Standard Classification of Occupations (ANZSCO) occupation of Customer Service Manager (ANZSCO Occupation Code: 149212). The nomination was lodged in favour of Mr Inderpal SINGH (date of birth: 23/09/1986). The base salary offered to the nominee is $65,000.00 per annum.

19. The delegate outlined the nominating business is a cleaning supplies business located at 25-29 PARAMOUNT RD, WEST FOOTSCRAY VIC 3012. In the nomination application, the nominator advised that the business was established or commenced trading in Australia on 1 February 2005 and employ forty five Australian citizens/Permanent residents and five overseas nationals.

20. The nominator has provided a range of documentation to the Department of Home Affairs (the Department) in support of the application, including the following:

    ·    Information provided in the nomination application form

    ·     Employment Contract

    ·     Lease Agreement

    ·     Financial information documents Trust Deed

    ·    Job Description

21. The nominator did not provide any additional information or a written submission to the Tribunal. Accordingly the only information before the Tribunal is the material on the Departmental file and the decision record.

22. Regulation 5.19(4)(h)(ii)(B) requires nomination application identifies there is a genuine need for the nominator to employ a paid employee to work in the position under the nominator's direct control. In assessing whether there is a genuine need for a paid employee in the position of a Customer Service Manager the Tribunal has made the following considerations based on the documents and information outlined above.

23. The nomination application indicates that the nominated position of a Customer Service Manager will be occupied by the nominee, Mr Inderpal SINGH.

24. For a business that is committing to recruiting a Customer Service Manager from overseas with the nominated salary package, it is expected that verifiable supporting evidence such as financial budgets covering expenditure and anticipated revenue with this nominated position, and other evidence supporting the need for the position would be provided to support the claims. As the nominated position is that of a Customer Service Manager, it would be expected that the nominator would provide evidence of the aim and focus of the nominated position.

25. On 30 January 2018, Regional Certifying Body specified in the instrument and approved by the Minister has provided an unsatisfactory advice in relation to a need for a paid employee in the nominated position within the business activities of the nominating employer.

26. The nominator did not provide an updated certificate from the relevant Regional Certifying Body. The Tribunal gives weight to the lack of a certificate from the RCB certifying a need for a paid employee in the nominated position.

27. The Tribunal has taken into consideration all the information including advice from the Regional Certifying Body, the nature and size of the business as well as the number of existing employees currently employed by the business. As outlined above the Tribunal notes an unsatisfactory advice from the Regional Certifying Body and lack of advice concerning an updated advice from the Regional Certifying Body   Accordingly the Tribunal does not find the nominator has demonstrated that it has a genuine need to employ the nominee in the nominated position.

28. While the nominator had provided claims showing how the position fits into the business activity, the nomination application did not demonstrate that there is a full time need for a Customer Service Manager in the business. The business has also not provided any verifiable evidence on how the nominated position would contribute to the outcomes of the team and the company.

29. No verifiable evidence has been provided in regards to the business interest of the company or in regards to inadequacy of the existing team. Therefore the Tribunal finds that insufficient evidence has been provided to substantiate this claim in regards to the genuine need for a paid employee.

30. Having assessed the information provided the Tribunal finds that the nominator has not identified there is a genuine need for the nominator to employ a paid employee to work in the position under the nominator's direct control. Therefore regulation 5.19(4)(h)(ii)(B) is not met. Accordingly, nominator does not satisfy regulation 5.19(4)(h)(ii).

31. Since regulation 5.19(4)(h)(ii) is not met, the nominator does not satisfy regulation 5.19(4).

32. Accordingly the requirements of r.5.19(4)(h) are not met.

    CONCLUDING PARAGRAPHS

33. 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.

34. Therefore, the Tribunal must affirm the decision under review.

    DECISION

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

    Mark Bishop
    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)       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).