Chandan International Pty Ltd (Migration)

[2022] AATA 4894

Chandan International Pty Ltd (Migration) [2022] AATA 4894 (30 November 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Chandan International Pty Ltd

CASE NUMBER:  1925327

HOME AFFAIRS REFERENCE(S):          BCC2017/1128171

MEMBER:Namoi Dougall

DATE:30 November 2022

PLACE OF DECISION:  Sydney

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

Statement made on 30 November 2022 at 3:09pm

CATCHWORDS  
MIGRATION – Employer Nomination – approval of nominated position – Direct Entry stream – Hairdresser – active and lawful operation – genuine need – term of employment – financial capacity – no response to s.359(2) invitation – decision under review affirmed 

LEGISLATION 
Migration Regulations 1994 (Cth), r 5.19

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 19 August 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 23 March 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)(h)(ii)(B) of the Regulations because the delegate was not satisfied that there was a genuine need for the applicant to employ a paid employee to work in the position under the applicant’s direct control.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. 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.

7. 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.

8. When the application for review was lodged, the application form was accompanied by a copy of the decision. The Tribunal wrote to the nominating business pursuant to s 359(2) of the Act on 24 October 2022 for updated and current information addressing the requirements in reg.5.19(4). They were advised that if no response was received they would lose any entitlement to a hearing and the Tribunal may make a decision without taking any further action. The invitation for further information was sent to the last email address provided to the Tribunal. No response was received by the due date.

9. The Tribunal has given consideration as to whether it should proceed to a decision without taking any further action to obtain information from the nominator. As there has been no response or any communication from the nominator regarding this case for some time, the Tribunal has decided to proceed to a decision based on the information before it.

10. Regulation 5.19(4)(b) requires that the nominator is actively, lawfully and directly operating a business in Australia. Regulation 5.19(4)(d) requires that the nominee will be employed on a full-time basis for at least 2 years on terms that do not expressly preclude the possibility of an extension.

11. As no response was received from the nominator, the Tribunal does not have information that the business is currently actively and lawfully operating a business in Australia. Nor does it consider that there is sufficient information before it that there is a genuine need for the position of Hairdresser or evidence which supports a finding that the business will employ the nominee on a full-time basis for at least two years.

12. Given this, the Tribunal does not consider that there is evidence at the time of this decision that the requirements in regs.5.19(4)(b) or 5.19(4)(d) are met.

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

14. For the above reasons the Tribunal is not satisfied that the application meets the requirements of reg.5.19(4). The nominator 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

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

    Namoi Dougall
    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).