Elnart Pty Ltd (Migration)

[2023] AATA 1360

Elnart Pty Ltd (Migration) [2023] AATA 1360 (9 May 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Elnart Pty Ltd

CASE NUMBER:  1933042

HOME AFFAIRS REFERENCE(S):          PNJ PNJ BCC2018972910

MEMBER:Amanda Mendes Da Costa

DATE:9 May 2023

PLACE OF DECISION:  Melbourne

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

Statement made on 9 May 2023 at 2.02pm

CATCHWORDS
MIGRATION – application for approval of nomination of position – direct entry nomination stream – adverse information known to department about applicant’s suitability as sponsor and nominator – no current information provided in response to tribunal’s invitation – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 359(2), 361(1)(b)
Migration Regulations 1994 (Cth), rr 1.13A, 5.19(2), (4)(b), (f)(i), (ii)

CASES
Huo v MIMA [2002] FCA 617
Kaur v MIBP [2014] FCA 915
Manna v MIAC [2014] FMCA 28
MIAC v Li [2013] HCA 18
MIBP v Singh [2014] FCAFC 1

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 31 October 2019 to reject the applicant’s application for approval of the nomination of a position in Australia under reg 5.19 of the Migration Regulations 1994 (Cth) (the Regulations).

2. The applicant applied for approval on 28 February 2018. The requirements for the approval of the nomination of a position in Australia are found in reg 5.19 of the Regulations which contains two alternative streams: a Temporary Residence Transition nomination stream (reg 5.19(3)) and a Direct Entry nomination stream (reg 5.19(4)). If the application is made in accordance with reg 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: reg 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 reg 5.19(4)(f)(i) and reg 5.19(4)(f)(ii) of the Regulations because there was adverse information (as defined under regulation 1.13A) known to the Department about the applicant’s suitability as both an approved sponsor and as a nominator (within the meaning of reg 5.19 and it was not reasonable to disregard such information.

5. The Tribunal notes that on 13 April 2023 it wrote to the applicant pursuant to s359(2) of the Act, inviting it to provide updated and current information about whether it met the criteria in rr. 5.19(2) and (4) of the Regulations. The Tribunal further advised that the information should be provided (in writing) by 27 April 2023 and that if the Tribunal did not receive the information within the period allowed or an extension was granted, the Tribunal may make a decision on the review without taking any further action to obtain the information.

6. The invitation was sent to the applicant’s migration agent who was authorised to send and receive documentation to and from the Tribunal for the purpose of the review.

7. On 13 April 2023 the applicant’s migration agent sent the Tribunal an email requesting information about the name of the applicant and the relevant subclass of visa.  The Tribunal notes that in its letter dated 13 April 2023, the Tribunal provided the name of the applicant and the Tribunal Case Number for the review.

8. The Tribunal notes that the applicant has not requested or been granted an extension of time to provide information and the applicant has not provided the requested information by 27 April 2023, or at all.

9. The Tribunal has considered whether it should give the applicant further time in which to provide the requested information.  In doing so, the Tribunal has taken into account the decisions in Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617 and Manna v Minister for Immigration and Citizenship [2014] FMCA 28, 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 [2013] HCA 18 regarding the reasonableness of any request for an adjournment, and the Full Federal Court decision in Minister for Immigration and Border Protection v Singh [2014] FCAFC 1, which considered this issue, as well as the decision in Kaur v Minister for Immigration and Border Protection [2014] FCA 915 where analogous issues were discussed.

10. The Tribunal has further considered that the applicant has not provided the information invited to be provided, within the prescribed period set for this purpose.

11. The Tribunal has taken into account the fact that the applicant has been aware since the delegate’s decision on 31 October 2019 of the reasons for the nomination  application being refused which is over three years ago and has had the benefit of representation from a registered migration agent in order to assist with this application.

12. The Tribunal considers it reasonable to expect that the applicant’s representative, as a registered migration agent, has an understanding of the requirements of the legislation and the consequences of not providing the information requested in the invitation the Tribunal sent.  The Tribunal has also taken into account the implications of not providing the information requested in the invitation from the Tribunal were set out in the letter of 13 April 2023.

13. In these circumstances, the Tribunal considers that the applicant has had sufficient time in which to provide information addressing the central issues arising in the application for review but has not provided the information. Accordingly, the Tribunal has decided not to exercise its discretion under s.363(1)(b) of the Act to adjourn the review any further to allow the applicant more time in which to demonstrate that it meets the relevant criteria under rr. 5.19 (4) and (9) of the Regulations.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

15. 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 reg 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: reg 5.19(4)(b)

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

17. The Tribunal notes that it has not been provided with current and updated information about the applicant’s business and whether it meets the criteria under rr. 5.19(2) and (4). Accordingly, the Tribunal is not satisfied that the applicant is actively and lawfully operating a business in Australia. On the evidence before it, the Tribunal is further not satisfied that the applicant directly operates that business.

18. Accordingly, the requirement in reg 5.19(4)(b) is not met.

19. For the above reasons the Tribunal is not satisfied that the applicant meets the requirements of reg 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 reg 5.19(3). Accordingly, the nomination of the position cannot be approved. Therefore, the Tribunal must affirm the decision under review.

    DECISION

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

    Amanda Mendes Da Costa
    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 an identified person, as  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).