Cityforce Pty Ltd ATF The Trustee for the Bhudia Family Trust (Migration)

[2019] AATA 3561

Cityforce Pty Ltd ATF The Trustee for the Bhudia Family Trust (Migration) [2019] AATA 3561 (21 June 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Cityforce Pty Ltd ATF The Trustee for the Bhudia Family Trust

CASE NUMBER:  1713294

DIBP REFERENCE(S):  BCC2017/35073

MEMBER:Peter Emmerton

DATE:21 June 2019

PLACE OF DECISION:  Adelaide

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

Statement made on 21 June 2019 at 1:24pm

CATCHWORDS

MIGRATION – Nomination – Direct Entry Nomination stream – genuine position – no evidence provided – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 359(2), 359C, 360(3), 363A
Migration Regulations 1994 (Cth), 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 Immigration on 7 June 2017 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 4 January 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 delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19(4)(a)(ii) of the Regulations because they were not satisfied that the nominator had demonstrated there is a genuine need for a paid employee to work in the position of Retail Buyer, ANZSCO 639211 under their direct control.

5. A letter was sent to the applicant pursuant to s.359(2) on 3 June 2019, requesting information. 

   ‘INVITATION TO PROVIDE INFORMATION

   I am writing about the application for review made by Cityforce Pty Ltd ATF The

   Trustee for the Bhudia Family Trust (“the applicant” or “the nominator”) in respect of a decision to refuse their application for approval of a nominated position under r.5.19 of the Migration Regulations 1994 (the Regulations).

   In order for the nomination of a position to be approved, the Tribunal must be satisfied that all of the relevant criteria in r.5.19 of the Regulations are met at the time of its decision. As the application for nomination was made under the Direct Entry nomination stream, the relevant criteria are in r.5.19(2) and (4) of the Regulations.

   The Tribunal now requires updated and current information addressing these criteria. Accordingly, and without limiting the information that may be given, you or another person authorised by the applicant are invited to give the following information in writing:

   1. Information about the identity of any person authorised to speak and make decisions on behalf of the applicant;

   Ø  for example, if the applicant is a company or registered business, an ASIC company or business name extract ( the applicant is a company or registered business, current and historical information about its office holders registration details;

   Ø  for example, an ASIC current and historical extract ( about the applicant directly operating an active and lawful business in Australia, and its financial position for at least the last two financial years;

   Ø  for example, the applicant’s tax returns, financial statements prepared by an accountant/ financial advisor that include a detailed profit and loss statement and balance sheet, and business activity statements lodged with the ATO for the financial years ending June 2016 and June 2017

   4.Information about the applicant’s current organisational structure and where the nominated position sits in relation to that structure;

   Øfor example, an organisational structure chart that includes all of the applicant’s current and proposed employees, their position title/duties, and whether they are an Australian citizen, permanent resident or visa holder

   5. Information about the roles and duties of the nominated position and how they correspond to the nominated occupation’s position description in ANZSCO;

   Øfor example, job descriptions, work samples, emails, correspondence and other examples of the daily tasks to be performed in the nominated position, and also the nominated occupation’s position description in ANZSCO (see and type the nominated occupation’s 6 digit ANZSCO code number into the ‘Search’ function)

   6.       Information about whether the terms and conditions of employment in the nominated       position:

   a.are on a full time basis for at least 2 years; and

   b.exclude extending the period of employment; and

   c.are more or less favourable than those provided to an Australian citizen or permanent resident performing equivalent work in the same workplace

   Ø  for example, an employment contract or letter of engagement that complies with relevant awards for the nominated position (if any)

   7.   If the nominated position is not located in regional Australia and the applicant has paid the non-regional position application fee, information about:

   a.the applicant’s business operating for at least 12 months and its recent training expenditure and commitment to future training expenditure; OR

   b.the applicant’s business operating for less than 12 months and its plan for future training expenditure

   Ø  for example, invoices or contracts for employee training, a training program that includes a course outline, attendance and identifies increased work competencies, or records of investment in certain industry training funds or recognised industry bodies

   8.   If the nominated position is located in regional Australia, information about:

   a.the need to employ a paid employee in the nominated position and why the position cannot be filled by an Australian citizen or permanent resident living in the same local area; and

   b.whether a specified Regional Certifying Body located in the same State or Territory as the nominated position has provided advice that:

   i.the terms and conditions of employment are no less favourable than those provided to Australian citizens or permanent residents performing equivalent work in the same workplace; and

   ii.there is a genuine need to employ the nominated person as a paid employee to work in the nominated position under the applicant’s direct control; and

   iii.the position cannot be filled by an Australian citizen or permanent resident living in the same area.

   Ø  for example, local job advertisements for the nominated position that were not successfully filled, and the Regional Certifying Body’s certificate issued to the applicant in respect of this position

   The member additionally requests the following information;

   • FY 2017 and FY 2018 ATO Tax Returns and Profit & Loss statements
   • Detailed analysis of recruitment process including All applicants, Resumes' of all those interviewed, analysis as to why they were unsuitable, job ads,
   • Current Organisation Chart
   • Explanation statement explaining the need for the role
   • Pay slips of VA from 1 July 2018 until 1 May 2019

   Relevant extracts of r.5.19 of the Regulations are set out in the Attachment for your reference. Any information that you give the Tribunal should be up to date and address all the relevant criteria.

The information should be received by 17 June 2019. If the information is in a language other than English, it must be accompanied by an English translation from an accredited translator.

If you or another person authorised by Cityforce Pty Ltd ATF The Trustee for the Bhudia Family Trust cannot provide the information by 17 June 2019, you or another person authorised by Cityforce Pty Ltd ATF The Trustee for the Bhudia Family Trust may ask us for an extension of time in which to provide the information. If an extension of time request is made, it must be received by us before 17 June 2019 and it must state the reason why the extension of time is required.

We will carefully consider any request for an extension of time and will advise whether or not the extension has been granted.

If we do not receive the information within the period allowed or as extended, we may make a decision on the review without taking any further action to obtain the information. The applicant will also lose any entitlement it might otherwise have
had under the Migration Act to appear before us to give evidence and present

arguments.’

1. The review applicant did not provide the information within the prescribed period and no extension of time was requested. In these circumstances, s.359C 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 him or her to appear: Hasran v MIAC [2010] FCAFC 40. The Tribunal has decided to proceed to a decision without taking further steps to obtain the information.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

3. 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.

4. In determining the applicant’s claims the Tribunal must first make findings of fact on material matters in dispute. This may involve an assessment of credibility and in so doing, the Tribunal is aware of the need and importance of being sensitive to the circumstances and the difficulties applicants often face before the Tribunal in their particular circumstances.

5. The applicants rely on the evidence given before the Tribunal together with written submissions and supporting evidence provided to the Tribunal and previously to the department.

6. The Tribunal notes that 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 they were not satisfied that the nominator had demonstrated there is a genuine need for a paid employee to work in the position of Retail Buyer, ANZSCO 639211 under their direct control.

7. The Tribunal in its fore mentioned letter requested updated documentation such as FY 2017 and FY 2018 ATO Tax Returns and Profit and Loss Statements, detailed recruitment analysis, pay slips, explanation of the need for the role and the current Organisation Chart. As previously stated no information was provided.

8. As no current evidence of the financial operations or the structure of the business were provided, the Tribunal is not satisfied that r.5.19(4)(a)(ii) of the Regulations is satisfied, as the nominator has not demonstrated there is a genuine need for a paid employee to work in the position of Retail Buyer, ANZSCO 639211 under their direct control.

9. For the above reasons the Tribunal is not satisfied that the applicant meets the requirements of r.5.19(4).

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

    DECISION

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

    Peter Emmerton
    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).