COOLAH SUPERMARKET PTY LTD (Migration)

[2020] AATA 2932

COOLAH SUPERMARKET PTY LTD (Migration) [2020] AATA 2932 (22 May 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  COOLAH SUPERMARKET PTY LTD

CASE NUMBER:  1819776

DIBP REFERENCE(S):  BCC2017/2177887

MEMBER:Wan Shum

DATE:22 May 2020

PLACE OF DECISION:  Sydney

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

Statement made on 22 May 2020 at 2:35pm

CATCHWORDS
MIGRATION – Employer Nomination – approval of nominated position – Direct Entry Nomination – Personnel Officer – position cannot be filled locally – no response to s.359(2) invitation – not entitled to appear before the Tribunal – genuine need – financial capacity – 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 Immigration on 18 June 2018 to reject the application for approval of the nomination of a position in Australia under r.5.19 of the Migration Regulations 1994 (the Regulations).

2. 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, Coolah Supermarket Pty Ltd (the nominator) made the application for the approval of the nomination of a Personnel Officer on 20 June 2017 and was seeking to satisfy the criteria in the Direct Entry Nomination stream.

4. The delegate refused the application on the basis that it had not been demonstrated that the position cannot be filled by an Australian who is living in the same local area and found that the nomination did not satisfy r.5.19(4)(h)(ii)(C) of the Regulations.

5. The nominator sought review of that decision and was represented in relation to the review.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in this case is whether the nominator 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.

8. When the application for review was lodged, the application form was accompanied by a copy of the decision but no supporting information was provided at the time.

9. Then, on 21 December 2018 the Tribunal received a query from the representative asking whether it was possible to withdraw and get a refund of the review application fee as the visa applicant was offshore and unable to lodge an application for review. An officer of the Tribunal responded on 2 January 2019 advising that it did not appear that the nominator was eligible for a refund. Nothing further was received regarding this matter.

10. The Tribunal wrote to the nominator pursuant to s.359(2) of the Act on 14 April 2020 for updated and current information addressing the requirements in r.5.19. The letter was sent by email to the representative who was the authorised recipient. The nominator was advised that if no response was received by 28 April 2020, they would lose any entitlement to a hearing and the Tribunal may make a decision without taking any further action.

11. The Tribunal has not received a response to its invitation to provide further information. The nominator has lost their entitlement to a hearing and the Tribunal has proceeded to a decision on the information before it.

12. There is no current information regarding the nominator’s business operations nor its financial capacity. There is no evidence before the Tribunal which would support a finding that there is a genuine need for the nominator to employ a Personnel Officer and whether it will be able employ the nominee in the nominated position for at least 2 years full time. 

13. Given this, the Tribunal finds that the requirements in r.5.19(4)(h)(ii)(B) and r.5.19(4)(d) are not met and it is not satisfied that the nominator meets the requirements of r.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 r.5.19(3). Accordingly, the nomination of the position cannot be approved. Therefore, the Tribunal must affirm the decision under review.

    DECISION

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

    Wan Shum
    Member