EMBRACING CHILDREN KARRATHA PTY LTD (Migration)

[2017] AATA 436

EMBRACING CHILDREN KARRATHA PTY LTD (Migration) [2017] AATA 436 (21 March 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Embracing Children Karratha Pty Ltd

CASE NUMBER:  1600141

DIBP REFERENCE(S):  BCC2015/1804891

MEMBER:Bruce Henry

DATE:21 March 2017

PLACE OF DECISION:  Brisbane

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

Statement made on 21 March 2017 at 4:39pm

CATCHWORDS

Migration – Nomination – Direct Entry Nomination stream – Genuine need for paid employee – Early Childhood (Pre-Primary School) Teacher – No response to tribunal request – Certification for nominated position provided – Inadequate information

LEGISLATION

Migration Act 1958, s 362B

Migration Regulations 1994, r 5.19, r 2.72(10)(f)

CASES

MIEA v Guo (1997) 191 CLR 559

Nagalingam v MILGEA (1992) 38 FCR 191

Prasad v MIEA (1985) 6 FCR 155

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 17 December 2015 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 24 June 2015. 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 case, the applicant has applied for approval of a nomination, seeking to satisfy the criteria in Direct Entry Nomination stream. The nomination of an Early Childhood (Pre-Primary School) Teacher, ANZSCO Code 241111, identified Mrs Noby Joy as the nominee for the position.

4. The delegate refused the application on the basis that the applicant’s nomination did not satisfy r.5.19(4)(a)(ii) of the Regulations because it did not identify a need for the nominator to employ a paid employee to work in the position under the nominator’s control.

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

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. 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.

8. As noted above, this application was lodged with the Department on 24 June 2015, for approval of an Early Childhood (Pre-Primary School) Teacher (ANZSCO Code 241111) to work in the applicant’s business EC Junior Education Maryborough in Queensland. On 16 November 2015 the Department wrote to the applicant seeking further information, being:

   ·Independent evidence demonstrating that the proposed terms and conditions of employment for the nominee are no less favourable than what would be provided to Australian citizen or Australian permanent resident for performing equivalent work in the same workplace at the same location;

   ·Evidence of the need for a paid employee (that is, there is a genuine vacancy for the nominated position); and

   ·Regional Certifying Body (RCB) advice.

9. The department received no response to this request, and the application was refused.

10. The applicant applied for review of this decision, however no further material was provided with the application for review. On 23 December 2016 the Tribunal wrote to the applicant’s representative advising that it was unable to make a favourable decision on the basis of the material before it and inviting the applicant to attend a hearing on 17 January 2017.

11. Shortly before the scheduled hearing was due to commence, the Tribunal received an email from the applicant’s representative attaching a substantial quantity of documentation that appeared to address the issues raised by the Department in its letter of 16 November 2015. These documents included company records in relation to the applicant company, financial reports, a job description, an employment contract, an organisational chart and a Regional Certification Body Advice from the Chamber of Commerce and Industry Queensland in Brisbane for the nominee’s position. This advice was dated 2 August 2016.

12. The Tribunal adjourned the hearing to enable it to properly consider this material.

13. The financial reports provided to the Tribunal comprised:

    ·A Profit & Loss statement for EC Junior Education for the period 1 July 2014 to 31 January 2015 showing total income of $618,043 and a net profit of $45,656 for the period;

    ·A Profit & Loss statement for EC Junior Education for the period 1 July 2013 to 30 June 2014 showing total income of $742,467 and a net profit of $57,018 for the period;

    ·A Profit & Loss statement for Embracing Children Karatha Pty Ltd for the period 23 October 2013 to 30 June 2015 showing total income of $745,656 and a net profit of $126,813 for the period; and

    ·A Profit & Loss statement for EC Junior Education for the month ending 31 January 2015 showing total income for the year to date of $618,043 and a net profit of $45,656.

14. These financial reports, which were provided without any explanatory notes or submissions, appear to the Tribunal to be difficult to reconcile. Further, the relationship between these accounts and the businesses to which they purport to relate is impossible to discern without explanatory notes. The company records provided to the Tribunal indicate that Embracing Children Karatha Pty Ltd owns two business names, being EC Junior Education Maryborough and ‘Embracing Children Stripy Zebras Junior Education Centre Pam Buchannan’ [sic].

15. The most recent reports relating to EC Junior Education provided to the Tribunal covered the period up to 31 January 2015.

16. Accordingly, the Tribunal wrote to the applicant on 31 January 2017 and again on 6 March 2017 seeking further specified information, including financial reports, regarding the operations of EC Junior Education Maryborough. These letters advised that if the information requested was not provided, the Tribunal may proceed to make a decision on the review without taking any further action to obtain the information. The letters also advised that failure to provide the information or seek further time in which to do so would mean that the applicant would lose any entitlement it might otherwise have had under the Migration Act 1958 to appear before the Tribunal to give evidence and present arguments in support of the application.

17. The time allowed for the provision of the requested information has passed, and the Tribunal has not heard from the applicant or their representative or received any of the requested information.

18. In these circumstances, and pursuant to s.362B of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear before it.

19. Accordingly, this matter has been determined on the evidence available to the Tribunal.

    Tasks of the position genuine need for the position and training benchmarks r.5.19(4)(h)

20. Regulation 5.19(4)(h) contains a number of alternative requirements. These are set out in detail in the attachment to the decision but can be briefly summarised as requiring, where the position and nominator’s business is located in regional Australia, that:

    ·     there is a genuine need for the paid position under the nominator’s direct control which cannot be filled by a locally resident Australian citizen or permanent resident;

    ·     the tasks of the position correspond to those of an occupation at the ANZSCO skill level 1, 2 or 3; and

    ·     that a regional certifying body (RCB) has advised the Minister about certain matters relating to the position.

21. At the time this application was lodged, the relevant instrument[1] specified the Chamber of Commerce and Industry Queensland (Brisbane) as the RCB for the whole of Queensland. That instrument has since been replaced by a new instrument, which took effect from 1 July 2016[2], that also specifies the Chamber of Commerce and Industry Queensland (Brisbane) as the RCB for the whole of Queensland and specifies a number of alternative bodies for different areas of regional Queensland.

    [1] F2013L01107, IMMI 13/049, Regional certifying bodies and regional postcodes (sub-paragraph 5.19(4)(h)(ii)(F), subregulation 5.19(7)), commenced 1 July 2013, in force to 30 June 2016.

    [2] F2016L00778, IMMI 16/045, Regional certifying bodies and regional postcodes (sub-paragraph 5.19(4)(h)(ii)(F), subregulation 5.19(7)), commenced 1 July 2016.

22. The Tribunal notes that the applicant’s business is located in Maryborough, Queensland, postcode 4650, which is in regional Australia for the purposes of the Regulations. Further, the Tribunal notes that the applicant stated in the application for approval of the nomination that the nomination had not been certified by an RCB, and failed to provide such a certification when requested to do so by the Department in November 2015.

23. As noted above, the Tribunal has now been provided with a copy of a certification from the Chamber of Commerce and Industry Queensland in Brisbane for the nominee’s position, dated 2 August 2016.

24. The Tribunal has had regard to all of the material on the departmental file and the documents and submissions provided by the applicant’s representative just prior to the scheduled hearing. As indicated above, the Tribunal clearly advised the applicant that further information was required to enable it to be satisfied that the applicant met the requirements for the approval of the nomination, and gave the applicant two opportunities to provide that information. The applicant has not done so.

25. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case have to be supplied by the applicant himself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant's case for him, and the Tribunal is not required to accept uncritically any and all the claims made by an applicant. (MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70).

26. In the Tribunal’s view, the documents and submissions provided to the Department and to the Tribunal do not satisfactorily address the requirement that there be a genuine need for the paid position under the nominator’s direct control that cannot be filled by a locally resident Australian citizen or permanent resident. The Tribunal has very little information before it concerning the operation of the business in Maryborough, and is not satisfied that an Early Childhood (Pre-Primary School) Teacher is required for that business or that such a person cannot be found locally.

27. Accordingly, considering the available evidence the Tribunal not satisfied that there is a genuine need for the nominated position at the applicant’s business in Maryborough, and finds that the requirements of r.2.72(10)(f) are not met.

28. For the reasons given above, the Tribunal is not satisfied that the applicant meets the applicable criteria for the nomination to be approved. Accordingly, the decision under review must be affirmed.

    DECISION

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

    Bruce Henry
    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

    (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;

    (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 at a skill level of ANZSCO skill level 1, 2 or 3;

    (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).