D COMPANY PTY LTD (Migration)

[2021] AATA 540

D COMPANY PTY LTD (Migration) [2021] AATA 540 (22 January 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  D COMPANY PTY LTD

CASE NUMBER:  1836595

HOME AFFAIRS REFERENCE(S):          BCC2018/817723

MEMBER:Karen McNamara

DATE:22 January 2021

PLACE OF DECISION:  Sydney

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

Statement made on 22 January 2021 at 11:34am

CATCHWORDS

MIGRATION – nomination of a position – Direct Entry Nomination stream – position of Cook – demonstrated need for the employment – decision under review affirmed 

LEGISLATION

Migration Act 1958, ss 245, 359. 363
Migration Regulations 1994, r 5.19

CASES

Hasran v MIAC [2010] FCAFC 40
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
Yang v MIAC [2010] FMCA 890

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 29 November 2018 to reject the application by D Company Pty Ltd (the applicant) 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 20 February 2018. 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 stream (r.5.19(3)) and a Direct Entry nomination stream (r.5.19(4)). 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 because the applicant did not meet regulation 5.19(4)(a)(ii). The delegate found that the application for approval did not identify a need for the nominator to employ a paid employee to work in the position under the nominator’s direct control. Since regulation 5.19(4)(a)(ii) was not met, the applicant subsequently did not meet 5.19(4)(a).

5. The applicant applied to the Tribunal on 13 December 2018 for review of the delegate’s decision.

6. On 30 November 2020, the Tribunal wrote to the review applicant pursuant to s.359(2) of the Migration Act 1958 (the Act), inviting the review applicant to provide updated and current information about the various requirements in rr.5.19(2) and (4). The letter also advised that, 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 are met at the time of its decision.

7. The invitation was sent to the applicant’s authorised representative via the last email address provided in connection with the review. The invitation advised that, if the information was not provided in writing by 14 December 2020, the Tribunal may make a decision on the review without taking further steps to obtain the information and the review applicant would lose any entitlement they might otherwise have had under the Act, to appear before the Tribunal to give evidence and present arguments.

8. As at the date of this decision, the Tribunal has received no response from the applicant.

9. The review applicant has not provided the information within the prescribed period and no further extension has been requested or granted. In these circumstances, s.359C(1) of the Act 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: see Hasran v MIAC [2010] FCAFC 40; (2010) 183 FCR 413 at [26]; and Yang v MIAC [2010] FMCA 890 at [40].

10. The Tribunal has given consideration as to whether it should exercise its discretion under s.359C(1) to take further steps to obtain information from the applicant. The Tribunal has also given consideration to whether it should adjourn the review under s.363(1)(b) of the Act to allow the applicant additional time in which to provide further evidence to support the review application, noting that no request for adjournment has been received and that the applicant has not engaged with the Tribunal since the application for review was lodged on 13 December 2018.

11. 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. It has also had regard to the decision in Minister for Immigration and Citizenship v Li[3] regarding the application of the principle of reasonableness when exercising its discretion, 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)

12. The Tribunal considered whether, in the circumstances of this case, the information that the applicant meets the requirements in r.5.19(4) of the 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.

13. The Tribunal is satisfied that the invitation to provide information was sent to the authorised recipient at the correct email address. The invitation was not returned to sender as undeliverable mail. To date, the requested information has not been provided. The applicant has not engaged with the Tribunal and there has been no request for an extension of time within which to respond to the Tribunal’s request for information, or reasons provided for a lack of response.

14. The Tribunal has had regard to the fact that the application was refused by the Department on 29 November 2018, because the delegate concluded that the applicant had not demonstrated it met the requirements of r.5.19(4)(a)(ii). The applicant submitted a copy of the primary decision record with the review application. As a result, the Tribunal observes that the applicant has been aware for over 2 years of the reasons for the nomination refusal. Since lodging the review application, the applicant has not engaged with the Tribunal and there has been no request for an extension of time within which to respond to the Tribunal’s request for information or reasons provided for lack of response.

15. In these circumstances, and for the reasons set out in this decision record, 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 nominating business meets the requirements of r.5.19(4). The Tribunal is not disposed to delay making a decision indefinitely and, in the circumstances, the Tribunal has decided to proceed to a decision without taking further steps to obtain the information.

16. Accordingly, the Tribunal has decided not to exercise its discretion under s.359C(1) to take further steps to obtain information from the applicant, or to exercise its discretion under s.363(1)(b) to adjourn the review any further to allow the applicant more time in which to demonstrate that the nominating business meets the requirements of r.5.19(4).

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

18. 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.

19. The Tribunal’s letter to the applicant of 30 November 2020 invited the applicant to provide updated and current information about all the relevant requirements in r.5.19. It also advised that, for the nomination to be approved, the Tribunal must be satisfied that all of the relevant criteria are met at the time of its decision. As stated above, the applicant did not respond to the Tribunal’s invitation of 30 November 2020. As the applicant has not provided the information requested, the Tribunal is unable to be satisfied that at the time of this decision the applicant meets the requirements for approval of the nomination in the Direct Entry Nomination stream.

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

20. 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 an identified person as a paid employee to work in the position under their direct control.

21. Relevantly, r.5.19(4)(a)(ii) requires that the application for approval identifies a need for the nominator to employ a paid employee to work in the position under the nominator’s direct control.

22. The review applicant nominated the position of Cook (ANZSCO 351411). On 29 November 2018, the delegate refused the application because the applicant did not meet r.5.19(4)(a)(ii). The delegate found that the application for approval did not identify a need for the nominator to employ a paid employee to work in the position under the nominator’s direct control.

23. The Tribunal invited the applicant to provide information including the need to employ the nominee in the nominated position. As noted above, no response has been received to the Tribunal’s invitation to provide information.

24. The applicant has not provided current information about the need for the nominated position. As such the Tribunal is unable to be satisfied at the time of the decision that the applicant (the nominator) has identified a need to employ a paid employee to work in the position under the nominator’s direct control. Accordingly, the Tribunal is not satisfied that r.5.19(4)(a)(ii) is met and therefore the applicant does not satisfy the requirements of r 5.19(4)(a).

25. As the Tribunal has found that the applicant has not met r.5.19(4)(a), it is not required to consider the rest of the requirements as set out in r.5.19(4).

26. For the above reasons the Tribunal is not satisfied that 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

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

    Karen McNamara
    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)       all 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;

    (AA)there is a genuine need for the nominator to employ the person identified under subparagraph (a)(ii), as a paid employee, to work in the position under the nominator’s direct control;

    (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 the person identified under subparagraph (a)(ii), as 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).