COHEN ENTERPRISES PTY LIMITED (Migration)

[2018] AATA 508

COHEN ENTERPRISES PTY LIMITED (Migration) [2018] AATA 508 (9 March 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  COHEN ENTERPRISES PTY LIMITED

CASE NUMBER:  1721719

DIBP REFERENCE(S):  BCC2017/716511

MEMBER:Mr S Norman

DATE:9 March 2018

PLACE OF DECISION:  Sydney

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

Statement made on 09 March 2018 at 9:52am  

CATCHWORDS

Migration – Nominating Sponsor – s359 letter issued – No response received by the Tribunal – Fair opportunity to provide the relevant information – Does not meet the requirements

LEGISLATION

Migration Act 1958, ss 245AR, 359, 359A, 359C, 360, 363
Migration Regulations 1994, r 5.19

CASES
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] HCA 18

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 August 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). The Department decision was lodged with the Tribunal.

2. The applicant applied for approval on 22 February 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. The delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19(3) & (4) of the Regulations.

4. The applicant was represented in relation to the review by its registered migration agent.

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 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.

   The application is compliant: r.5.19(4)(a)

7. Regulation 5.19(4)(a) requires that the application for approval must be in the approved form, must be accompanied by the prescribed fee, and, where applicable, must include the required written certification relating to conduct that contravenes s.245AR(1). The application must also identify a need for the nominator to employ a paid employee to work in the position under their direct control.

8. The nominator, “Cohen Enterprises P/L”, lodged the nomination application on 22 February 2017. This was in relation to an “Office Manager – ANZSCO 512111” position under the Direct Entry stream (subclass RN 187). The nominee was “Ms Wen QIAO” (DOB: 1 April 1989). After acknowledging receipt of the application, the Department letter invited the nominator to provide any further information thought to be relevant. For the purposes of assisting the nominator to understand what may be relevant, the Department letter directed the nominator to the “ImmiAccount” where the Department provided a summary guide.

9. The delegate then noted the applicant had made a nomination application under the Direct Entry stream, and that the applicant was seeking to meet reg. 5.19(4)(h)(ii). Sub-regulation 5.19(4)(h)(ii)(B) requires there to be a genuine need for the nominator to employ a paid employee to work in the position under the nominator’s direct control. After then considering the position (Office Manager), the delegate believed the nominator had not provided any reputable statements or evidence to support their claims that the nominator had a need to employ a person as a paid employee to work in the nominated position under the nominator’s direct control. Consequently, the delegate was not satisfied the applicant met the requirements in reg. 5.19(4)(h)(ii)(B).

10. The delegate also noted the nominated position was located in regional Australia and the nominator had provided a Regional Certifying Body (RCB) letter and completed form 1404, and that it was not supported by the RCB that there was a need for a paid employee in the nominated position within the business activities of the nominated employer. The Original Assessing Body outcome letter dated 27 June 2017 stated (in part):

    Original Development Australia Central coast has assessed the application against three requirements under the Migration Regulations 5.19(4) as outlined on Form 1404

    This application was a resubmission and the Original Certifying Body considered the additional information supplied was not sufficient to change the RCB advice to the Department of Immigration and Border Protection.

    The Migration Regulations require that “the nominated position cannot be filled by an Australian citizen or Australian permanent resident who was living in the same local area is the position”. Based on the documents presented, it appears that the application does not meet this requirement. The nominated position/occupation has not been identified as a shortage on the Central Coast nor is the position listed on Department of Employment’s Federal STATE Shortage Lists as a shortage or recruitment difficulty. This RCB considers this position can be filled by an Australian citizen or permanent resident”.

11. The 1404 form, which provided the “Does Not Satisfy” outcome duly signed by the RCB was dated 27 June 2017. The delegate was satisfied this was further evidence the nominator’s ability to comply with the requirement for a paid employee to work in the position under the nominator’s direct control for at least two years was not met.

12. After noting no further documents had been provided to the Department in support of the nominator’s claim, based on the evidence before them, the delegate was not satisfied that reg. 5.19(4)(h)(ii) was met. Accordingly the application does not meet the criteria in reg. 5.19(4).

13. Next, the delegate noted the applicant only provided claims against reg. 5.19(4); and that since insufficient claims and evidence had been submitted against reg. 5.19(3), the applicant had failed to demonstrate that they met reg. 5.19(3).

14. Based on the evidence lodged and for the same reasons as the delegate, the Tribunal was also not satisfied the applicant met the criteria in either reg. 5.19(3); or more particularly reg. 5.19(4). By s.359(2) letter of 13 February 2018, the Tribunal wrote to the applicant (dispatched by email to the authorised recipient), and requested information that would assist to determine whether the criteria in reg. 5.19(2) & (4) were met. This information was required to be provided in writing to the Tribunal by 27 February 2018; or to request an extension of time if same was needed. The Tribunal did not receive any response from or on behalf of the applicant at the date and time of this decision.

15. Section 360 of the Act states inter alia the “Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments”. However, section 359C of the Act provides that if a person fails to respond to a s.359 or s.359A letter, the “Tribunal may make a decision on the review without taking any further action to obtain the applicant’s views on the information”. In the circumstances of this case, given no response was received to the Tribunal’s s.359(2) letter, and given no material evidence was otherwise lodged with the Tribunal, and given the applicant was made aware of the deficiencies in the application at the time of the delegate’s decision, I have decided to make a decision on the review without taking any further action to obtain the applicant’s views on the information.

16. Further, the Tribunal has given consideration to whether it should adjourn the review under subsection 363(1)(b) of the Act in order to allow the applicant additional time in which to provide further evidence to support the review application. 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 have held that the Tribunal is not required to indefinitely defer its decision-making processes. I have also had regard to the decision in Minister for Immigration and Citizenship v Li[3] regarding the reasonableness of any request for an adjournment (something that was not requested in this case), 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)

17. The Tribunal considered whether, in the circumstances of this case, the information that the applicant meets the requirements in reg. 5.19(3) & (4) 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. The Tribunal has also had regard to the fact that the visa application was refused by the Department on 25 August 2017, and also to the above considerations (in paragraph [15]). The Tribunal also notes the applicant has been aware for over six months of the delegate’s reasons for refusing the application. 

18. In these circumstances, and based on the evidence set out herein, 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 applicant meets the requirements of reg. 5.19(3) & (4).  The Tribunal has decided not to delay its decision any further. Accordingly, the Tribunal has decided not to exercise its discretion under subsection 363(1)(b) of the Act to adjourn the review any further to allow the applicant more time in which to demonstrate that they meet the requirements of reg. 5.19(3) & (4).  

19. For the above reasons the Tribunal is not satisfied 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. Therefore, the Tribunal must affirm the decision under review.

    DECISION

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

    Mr S Norman
    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).