Dragon Spirit Pty Ltd (Migration)

[2021] AATA 554

Dragon Spirit Pty Ltd (Migration) [2021] AATA 554 (25 January 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Dragon Spirit Pty Ltd

CASE NUMBER:  1813694

HOME AFFAIRS REFERENCE(S):          BCC2016/2130203

MEMBER:Sheridan Lee

DATE:25 January 2021

PLACE OF DECISION:  Melbourne

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

Statement made on 25 January 2021 at 10:20 am

CATCHWORDS

MIGRATION – nomination of a position – Direct Entry nomination stream – position of Cook – employed on a full-time basis for at least 2 years – actively and lawfully operating a business in Australia – decision under review affirmed           

LEGISLATION

Migration Act 1958, ss 359, 363
Migration Regulations 1994, Schedule 2 cl 457.223; r 5.19

CASES

Hasran v MIAC [2010] FCAFC 40

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 30 April 2018 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 to nominate the occupation of Cook on 22 June 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 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 on the basis the applicant’s nomination did not satisfy r.5.19(4)(d)(i) of the Regulations because the applicant did not establish that the nominee would be employed full-time for at least two years.

5. When the application for review was made, the only document provided to the Tribunal was a copy of the notification and decision record of the Department of Home Affairs (the Department). The Tribunal has before it the Departmental file relating to the application, including the application for nomination form.

6. On 9 November 2020, the Tribunal invited the applicant to provide current information addressing the relevant criteria under r.5.19 of the Regulations. The invitation requested that the information be provided by 23 November 2020, noting that an extension of time to respond could be requested prior to that date. Finally, the Tribunal advised the applicant that if the information, or a request for an extension, was not received by the due date then the entitlement to appear before the Tribunal would be lost and the Tribunal might proceed to make its decision on the available evidence without taking any further steps to obtain the requested information.

7. The applicant did not provide the requested information within the prescribed period. In addition, the applicant did not request an extension of time and there has been no further communication from the applicant at the time of the Tribunal’s decision.

8. The Courts have confirmed that where an applicant fails to give information within the prescribed period in response to an invitation issued under s.359(2) of the Act, ss.360(3) and 363A of the Act preclude the Tribunal from offering the applicant a hearing.[1] Accordingly, as the applicant failed to give the information requested within the prescribed period, it has lost the right to appear before the Tribunal to give evidence and present arguments relating to the review application.

   [1] Hasran v Minister for Immigration and Citizenship [2010] FCAFC 40.

9. The Tribunal considered whether, in the circumstances of this case, the information that the applicant meets the requirements in the Regulations and the Act is likely to be forthcoming and whether the applicant has had a fair opportunity to provide the relevant information already, and the significance of the information to the applicant.

10. The Tribunal has had regard to the fact that the nomination application was refused by the Department on 30 April 2018. 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 of the reasons for the nomination application refusal for almost two years. Further, as noted above, the applicant has provided no further information to the Tribunal since the application for review was received on 1 May 2018, despite being invited to do so.

11. In these circumstances, 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 in r.5.19. The Tribunal is not disposed to delay making a decision indefinitely.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

13. 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.

    Nominator is actively and lawfully operating a business in Australia: r.5.19(4)(b)

14. Regulation 5.19(4)(b) requires that the applicant is actively, lawfully and directly operating a business in Australia.

15. As outlined above, the applicant has not submitted evidence to the Tribunal since lodging the application for review. In addition, the applicant has failed to respond to correspondence from the Tribunal. In the absence of any contemporary evidence, the Tribunal cannot be satisfied that the applicant is actively, lawfully and directly operating a business in Australia.

16. Accordingly, the requirement in r.5.19(4)(b) is not met.

17. 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

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

    Sheridan Lee
    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)       both 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;

    (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 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).