Dongmun Greentec Pty Ltd (Migration)

[2021] AATA 3456

Dongmun Greentec Pty Ltd (Migration) [2021] AATA 3456 (10 August 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Dongmun Greentec Pty Ltd

CASE NUMBER:  1904059

HOME AFFAIRS REFERENCE(S):          BCC2018/945113

MEMBER:Danielle Galvin

DATE:10 August 2021

PLACE OF DECISION:  Melbourne

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

Statement made on 10 August 2021 at 11:10am

CATCHWORDS
MIGRATION – nomination – Direct Entry nomination stream – Pressure Welder – position associated with the nominated occupation is not genuine – applicant failed to provide the requested information– no genuine need for the nominator to employ a paid employee to work in the position –decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 245AR, 359, 360, 363
Migration Regulations 1994, 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 Home Affairs on 1 February 2019 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, Dongmun Greentec Pty Ltd, applied for approval on 27 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 in relation to the nominee, Dohyeong Kim, in the nominated position of Pressure Welder (ANZSCO-322312).

4. The delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19(4)(a)(ii) of the Regulations because, on the evidence before them, the applicant had not demonstrated a need for the nominator to employ a paid employee in the position under the nominator’s direct control. The delegate found that despite the provision of a Regional Certifying Body (RCB), advice that indicated that there was a need for the a paid employee in the nominated position, the other information provided indicated that the purpose for the nomination had fallen away as the proposed role was affected by a failure to adhere to a construction schedule. The nominator had claimed that they were an energy company and were proposing to build and install a Bioethanol production facility, a project that had not appeared at the time to have launched.

5. The department had access to the following documents:

   ·Application for Employer Nomination for a Permanent Appointment under the Regional Sponsored Migration Scheme (subclass 187);

   ·7/8/18 applicant’s supporting statement addressed to the delegate of the Minister;

   ·6/8/18 agent’s letter to the Department;

   ·Employment contract between the applicant and the nominee dated and signed 1/4/17;

   ·Form 1404;

   ·Market salary rate document;

   ·Applicant’s Financial Statements 30/6/17 showing losses;

6. On 9 April 2021 the Tribunal wrote to the applicant pursuant to s.359(2) of the Act, at the address provided in the review application, seeking current and updated information in relation to the review application. A written response was required by 23 April 2021.

7. The applicant was represented in relation to the review by its migration agent named in the review application. However, the Tribunal notes that it had written to the applicant on 7 January 2021 advising them that their agent’s registration was suspended on 6 January 2020 and sought information as to an alternative agent contact. No response was received and the Tribunal was obliged to continue to send correspondence to the address provided in the review application.

8. The applicant did not provide comments or respond to the Tribunal letter within the prescribed time. In these circumstances s.359C of the Act applies and pursuant to s.360(3) the applicant is not entitled to appear before the Tribunal. The effect of s.363A is that if a review applicant has no entitlement to a hearing, the Tribunal has no power to permit them to appear. In these circumstances, the Tribunal has decided to proceed to make a decision.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. 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)

11. 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.

12. At this point in time the Tribunal has no information, other than that provided by the Department, in support of the review application. At the time when the delegate made their findings they stated that “The material provided by the applicant does not indicate that construction of the plant has commenced, or advise when it will commence. At the time information was last provided to the Department, the applicant reported it was still seeking funding”.

13. No information as to the current status of the proposed construction of the facility or the role that the nominee would be performing has been submitted to the Tribunal and no response has been received from the applicant. The lack of confirmation as to whether the proposed plant has commenced means that the Tribunal does not have before it, information supporting a need to employ the nominee in the role of pressure welder. The information submitted to the Department does not shed light on these inquiries. The Tribunal is therefore unable to find, on the material provided, that the application identifies a need for the nominator to employ an identified person as a paid employee to work in the position under the nominator’s direct control.

14. Accordingly, the requirement in r.5.19(4)(a) is not met.

15. 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

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

    Danielle Galvin
    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).