Consolidated Realty Holdings Pty Ltd (Migration)

[2021] AATA 3486

Consolidated Realty Holdings Pty Ltd (Migration) [2021] AATA 3486 (7 September 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Consolidated Realty Holdings Pty Ltd

CASE NUMBER:  1837443

HOME AFFAIRS REFERENCE(S):          BCC2017/1615659

MEMBER:P. Maishman

DATE:7 September 2021

PLACE OF DECISION:  Perth

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

Statement made on 07 September 2021 at 5:12pm

CATCHWORDS
MIGRATION – application for approval of nomination of position – temporary residence transition stream – training benchmarks – no response to tribunal’s invitation to provide current information – no evidence of active operation of business – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 359(2), 359C(1), 360(3), 363A
Migration Regulations 1994 (Cth), r 5.19(3)(b), (f)

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 5 December 2018 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 5 May 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 Temporary Residence Transition nomination stream. The applicant nominated Mr Fang Hao for the position of Customer Service Manager.  

4. The delegate refused the application on the basis the applicant’s nomination did not satisfy reg 5.19(3)(f) of the Regulations because the applicant had provided insufficient evidence to demonstrate that it met the applicable training benchmarks during the period of its last approval as a standard business sponsor, and there was no reason to exercise the discretion to disregard these requirements. The delegate therefore found that the applicant did not satisfy r.5.19(3) as a whole, and had not made any claims, or provided any evidence, that it satisfied the direct entry stream criteria in r.5.19(4). The delegate therefore refused to approve the applicant's nomination.

5. The Tribunal received a review application on 20 December 2018. It was completed on behalf of the applicant by its Managing Director, Mr John Meng, who was identified to receive correspondence on the applicant’s behalf. The application was accompanied by a copy of the delegate’s decision record and documents mostly replicated on the Department’s file including an organisational chart, a company annual financial report for the year ended 30 June 2016, a copy of the employment agreement and employment reference with the nominee dated 17 April 2017, a nominee payslip and pay-as-you-go summary for the 2017 financial year.

6. On 5 August 2021, the Tribunal wrote via email to the agent pursuant to s.359(2) of the Act to invite Mr Meng to provide up to date and current information demonstrating that the applicant met all of the applicable r.5.19(3) criteria (not merely the subparagraph that the delegate had found were not met). The Tribunal provided Mr Meng detailed examples of the kind of documentary evidence that would assist the Tribunal to assess the criteria set out in r.5.19(3). Mr Meng was requested to provide the requested information by 19 August 2021, and advised that if they failed to do so (or failed to ask for an extension of time to do so) by that date, the applicant would lose its entitlement to have someone attend a hearing to present evidence and arguments on its behalf, and the Tribunal might proceed to make its decision without requesting further information.

7. The Tribunal did not receive any of the requested information, or a request for an extension of time to do so, by 19 August 2021.

8. If a person is given a formal invitation to provide information under s 359(2) and does not do so within the prescribed period, the Tribunal may make a decision on the review without taking any further action to obtain the information. Moreover, if a person fails to respond to a written invitation within the prescribed period (or as extended), the review applicant also loses any entitlement to appear before the Tribunal to give evidence and present arguments relating to the issues in the review. In the case of a review under Part 5 of the Migration Act (under which Part this review application falls), the language of s.363A operates to remove any discretion which the Tribunal may have had to allow a person to do something where a provision of Part 5 states that the person is not entitled to do so. Therefore, once the applicant has lost their entitlement to a hearing, the effect of ss.359C(1), 360(3) and 363A is that the Tribunal has no power to invite the applicant to a hearing.

9. Given the above, the Tribunal finds that the applicant lost its entitlement to a hearing due to the failure to provide the requested information (or seek an extension of time to do so) by 19 August 2021, the due date. The Tribunal has considered whether it should now defer making its decision to enable the applicant to provide any additional information, but has decided not to do so, given that there has been no response or communication from Mr Meng or any other person authorised to represent the applicant. The Tribunal notes that it has allowed almost a further month for the submission of additional material. None has been received to date. Accordingly, the Tribunal considers it reasonable to now proceed to make a decision on the evidence before it.

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 Temporary Residence Transition nomination stream set out in reg 5.19(3), which is extracted in the attachment to this decision. For the nomination to be approved, all the requirements must be met.

    The application must be compliant: reg 5.19(3)(a)

12. Regulation 5.19(3)(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 relevant person and occupation.

13. From the material on the Department file, the Tribunal is satisfied that the applicant complied with the above requirements, and that the requirement in reg 5.19(3)(a) is met.

    Status of the nominator: reg 5.19(3)(b)

14. Regulation 5.19(3)(b) requires the nominator to be or have been the relevant standard business sponsor who is actively and lawfully operating a business in Australia. In addition, the nominator, as that standard business sponsor, must not have met certain criteria relating to the operation of a business overseas, in the most recent sponsorship approval.

15. The Tribunal notes that it has no recent evidence that the applicant is actively and lawfully operating a business in Australia. The Tribunal has not received any financial evidence (such as recent financial statements, Business Activity Statements (BAS), or tax returns) about the applicant's operations, either at the time that the review application was lodged in December 2018, nor in response to the Tribunal's s.359(2) letter of 5 August 2021. Moreover, the most recent information provided by the applicant to the Department dates from March 2017 (BAS), while the most recent financial statement provided to the Department (and again to the Tribunal) by the applicant was for the financial year 2015/16.

16. Given there is no recent evidence about the applicant’s business operations the Tribunal cannot be satisfied that the applicant is lawfully and actively operating a business in Australia at the time of the Tribunal’s decision.

17. Given the above, the requirement in reg 5.19(3)(b) is not met.

18. For the above reasons the Tribunal is not satisfied that the applicant meets the requirements of reg 5.19(3) as all subparagraphs must be met to approve a nomination. In this case, the Tribunal has found that reg 5.19(3)(b) is not met, and it is therefore unnecessary to assess the remaining criteria.

19. The applicant has not sought to satisfy the criteria in Direct Entry nomination stream, and as such has not met the requirements in reg 5.19(4). 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.

    P. Maishman
    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.

    Temporary Residence Transition nomination

    (3)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 person who holds a Subclass 457 … visa granted on the basis that the person satisfied the criterion in subclause 457.223(4) of Schedule 2; and

    (iii)     identifies an occupation, in relation to the position, that:

    (A)is listed in ANZSCO; and

    (B)has the same 4-digit occupation unit group code as the occupation carried  out by the holder of the Subclass 457 … visa; and

    (b)the nominator:

    (i)       is, or was, the standard business sponsor who last identified the holder of the Subclass 457 … visa in a nomination made under section 140GB of the Act or under regulation 1.20G or 1.20GA as in force immediately before 14 September 2009; and

    (ii)      is actively and lawfully operating a business in Australia; and

    (iii)     did not, as that standard business sponsor, meet regulation 1.20DA, or paragraph 2.59(h) or 2.68(i), in the most recent approval as a standard business sponsor; and

    (c)either:

    (i)       both of the following apply:

    (A)in the period of 3 years immediately before the nominator made the application, the holder of the Subclass 457 …visa identified in subparagraph (a) (ii) has:    

    (I)held one or more Subclass 457 visas for a total period of at least 2 years; and

    (II)been employed in the position in respect of which the person holds the Subclass 457 … visa for a total period of at least 2 years (not including any period of unpaid leave);

    (B)the employment in the position has been full-time, and undertaken in Australia; or

    (ii)      all of the following apply:

    (A)the person holds the Subclass 457 … visa on the basis that the person was identified in a nomination of an occupation mentioned in sub-subparagraph 2.72(10)(d)(iii)(B) or sub-subparagraph 2.72(10)(e)(iii)(B);

    (B)the nominator nominated the occupation;

    (C)the person has been employed, in the occupation in respect of which the person holds the Subclass 457 … visa, for a total period of at least 2 years in the period of 3 years immediately before the nominator made the application; and

    (d)for a person to whom subparagraph (c)(i) applies:

    (i)       the person will be employed on a full-time basis in the position for at least 2 years; and

    (ii)      the terms and conditions of the person’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)       the nominator:

    (A)fulfilled any commitments the nominator made relating to meeting the nominator’s training requirements during the period of the nominator’s most recent approval as a standard business sponsor; and

    (B)complied with the applicable obligations under Division 2.19 relating to the nominator’s training requirements during the period of the nominator’s most recent approval as a standard business sponsor; or

    (ii)      it is reasonable to disregard subparagraph (i); and

    Note Different training requirements apply depending on whether the application for approval as a standard business sponsor was made before 14 September 2009 or on or after that date.

    (g)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

    (h)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.