CTNR PTY LTD (Migration)

[2018] AATA 797

CTNR PTY LTD (Migration) [2018] AATA 797 (15 March 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  CTNR PTY LTD

CASE NUMBER:  1617935

DIBP REFERENCE(S):  BCC2016/793449

MEMBER:Lilly Mojsin

DATE:15 March 2018

PLACE OF DECISION:  Sydney

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

Statement made on 15 March 2018 at 3:00pm

CATCHWORDS
Migration – Employer nomination – Training requirements – Employment of training recipients – Expenditure on provision of training

LEGISLATION
Migration Act 1958, s 363,
Migration Regulations 1994, r 5.19

CASES
Huo v Minister for Immigration & Multicultural Affairs [2002] FCA 617
Manna v Minister for Immigration and Citizenship [2013] FCA 400

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 11 October 2016 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 25 February 2016. 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 review, the applicant has applied for approval of a nomination, seeking to satisfy the criteria in the Temporary Residence Transition nomination stream.

4. The delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19(3)(f)(i)) of the Regulations because the nominator had not provided all documents or sufficient evidence or information to support the application and meet the requirements of training bench marks.

5. The applicant applied for review of that decision, attaching a copy of the Department decision to the application.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in this review is whether the applicant meets the requirements for approval of the nomination under the Temporary Residence Transition nomination stream set out in r.5.19(3), which is extracted in the attachment to this decision. For the nomination to be approved, all the requirements must be met.

8. The Tribunal wrote to the applicant on 13 February 2018 seeking updated and current information addressing the relevant Regulations for a nomination made under the Temporary Residence Transition nomination stream. The letter included a copy of the relevant extracts from Regulation 5.19 of the Migration Regulations. A response to this letter was due by 27 February 2018.

9. At today’s date, there is no response to the Tribunal correspondence. The Tribunal finds that the applicant has lost their right to a review hearing.

10. The Tribunal has given consideration to whether it should adjourn the review under subsection 363(1)(b) of the Act to allow the applicant additional time to provide further evidence to support the review application. The Tribunal has considered the decisions in Huo v Minister for Immigration and Multicultural Affairs and Manna v Minister for Immigration and Citizenship where the Courts have held that the Tribunal is not required to indefinitely defer its decision-making processes.

11. The Tribunal has considered whether, in this application, the information that the applicant meets the requirements in regulation 5.19 of the Migration Regulations 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.

12. The Tribunal notes that the nomination application was refused by the Department on 11 October 2016 because the delegate concluded that the applicant was unable to show that the training benchmarks as identified in, IMMI 13/030 - Specification of Training Benchmarks, were met – r.5.19(3)(f)(i).

13. The applicant has been aware, since 11 October 2016, of the reasons for the nomination application refusal. The applicant has not provided any further documentation to the Tribunal.

14. The Tribunal is satisfied that the applicant has had a fair opportunity to provide the relevant information and sufficient time to take steps to satisfy the criteria. As the Tribunal has received no response, the Tribunal is unable to be certain if and when the applicant will provide information in writing as to whether the nominating business meets the requirements of r.5.19. the Tribunal cannot delay its decision indefinitely.

15. 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 the nominating business meets the requirements of Regulation 2.72.

    Training commitments and obligations: r.5.19(3)(f)

16. Regulation 5.19(3)(f) requires the applicant to have fulfilled any commitments made relating to meeting training requirements, and complied with applicable obligations relating to training  requirements, during the period of the  applicant’s most recent sponsorship approval.  These requirements may be disregarded, if it is reasonable to do so.

    Clause (f) states:

    (a)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 day.

17. Clause 5.19(3)(f)(i) requires the nominator to demonstrate that they continue to meet the training requirement, required for the purpose of their most recent approval, as a standard business sponsor under the subclass 457 program, in each fiscal year throughout the validity of their sponsorship which was approved on 03/06/2013.

18. The current instrument, IMMI 13/030 - Specification of Training Benchmarks, identifies the following training benchmarks for established businesses:

    ·     Recent expenditure, by the business, to the equivalent of at least 2% of the payroll of the business, in payments allocated to an industry training fund that operates in the same industry as the business  OR

    ·     Recent expenditure, by the business, to the equivalent of at least 1% of the payroll of the business, in the provision of training to employees of the business.

19. The first Subclass 457 visa was granted on 17/06/2013, therefore the Tribunal finds the period of the applicant’s most recent sponsorship approval was 17/06/2013. The applicant must show whether the applicant fulfilled commitments made relating to meeting the training requirements since that date. 

20. The applicant provided three receipts dated 11/11/2013 (for $1600), 11/05/2015 (for $1950), and 11/1/2016 (for $2035) from Organic Education & Technology, Hope Institute, and Australian Academy respectively, as evidence of training expenditure. No information was provided with respect to the number of trainees or who they were.

21. The applicant declared in the application form that their recent expenditure on payroll in the past 12 months (prior to 25 February 2016) is $149 500.00. The applicant declared that they have spent $1 950.00 on the provision of training of the employees of the business who are Australian Citizens and/or permanent residents in the previous 12 months. The applicant also declared that they are employing 1 Australian employee (including Australian citizens and permanent residents) and 3 foreign employees. The applicant stated they are employing no recent Australian university graduates, apprentices and trainees. No other evidence was provided.

22. The Tribunal is not satisfied the applicant has provided any evidence to demonstrate expenditure, by the business, to the equivalent of at least 2% of the payroll of the business, in payments allocated to an industry training fund that operates in the same industry as the business.  

23. The applicant stated that they are employing 1 Australian employee (including Australian citizens and permanent residents) and 3 foreign employees. The applicant also stated, in the application form, that they are not employing a recent Australian university graduate, apprentice and trainee and no evidence was provided to the Department about the employment of the training recipients who are Australian citizens or permanent residents. Without further evidence from the applicant the Tribunal is unable to be satisfied the applicant has provided evidence to demonstrate expenditure, by the business, to the equivalent of at least 1% of the payroll of the business, in the provision of training to employees of the business.

24. Therefore the Tribunal is unable to be satisfied the applicant has demonstrated that they have fulfilled the training requirements as an approved standard business sponsor.

25. Without further information from the applicant, the Tribunal is unable to be satisfied that it is reasonable to disregard the requirements.

26. Accordingly, the requirement in r.5.19(3)(f) is not met.

27. For the above reasons the Tribunal is not satisfied that the applicant meets the requirements of r.5.19(3). The applicant has not sought to satisfy the criteria in Direct Entry nomination stream, and as such has not met the requirements in r.5.19(4). Accordingly, the nomination of the position cannot be approved. Therefore, the Tribunal must affirm the decision under review.

    DECISION

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

    Lilly Mojsin
    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.