Erb Hands on Marketing Pty Ltd (Migration)

[2021] AATA 1714

Erb Hands on Marketing Pty Ltd (Migration) [2021] AATA 1714 (21 April 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Erb Hands on Marketing Pty Ltd

CASE NUMBER:  1824056

HOME AFFAIRS REFERENCE(S):          BCC2016/2914427

MEMBER:Nicola Findson

DATE:21 April 2021

PLACE OF DECISION:  Perth

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

Statement made on 21 April 2021 at 1:21pm

CATCHWORDS
MIGRATION – Employer Nomination – approval of nominated position – Direct Entry Nomination – no response to s 359(2) invitation – no entitlement to a hearing – term of employment – financial capacity – lack of current and up to date financial information – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 359C, 360, 363A

Migration Regulations 1994 (Cth), 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 1 August 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 on 2 September 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 that the applicant’s nomination did not satisfy r.5.19(4)(d)(i) of the Regulations, because the delegate was not satisfied that the applicant had demonstrated that it had the financial capacity to employ a person on a full-time basis in the nominated position for at least 2 years.

5. On 19 August 2018, the applicant applied to the Tribunal for review of the delegate’s decision, and provided a copy of the decision record with the application.

6. On 5 February 2021, the Tribunal wrote to the applicant pursuant to s.359(2) of the Migration Act 1958 (the Act), inviting the 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 last email address provided in connection with the review and advised that, if the information was not provided in writing by 19 February 2021, the Tribunal may make a decision on the review without taking further steps to obtain the information and the applicant would lose any entitlement it might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

8. On 18 February 2021, the Tribunal received a request from Mr James Hewitt, Director of the applicant and authorised recipient, requesting an extension of time to provide the information requested.  On that same date, the Tribunal advised the applicant that it had granted an extension of time to respond, until 18 March 2021.

9. The applicant has not provided the information within the prescribed period. In these circumstances, s.359C applies and pursuant to s.360(3) the applicant is not entitled to appear before the Tribunal. The effect of s.363A of the Act is that if an applicant has no entitlement to a hearing, the Tribunal has no power to permit him or her to appear: Hasran v MIAC [2010] FCAFC 40.

10. The Tribunal is satisfied that the invitation to provide information was properly sent to the correct email address. The Tribunal is satisfied that the invitation was received by the authorised recipient as they had requested for an extension of time.  Despite the grant of extension of time, the requested information has not been provided and the applicant has not made any contact with the Tribunal to indicate that the information will be forthcoming. The Tribunal is not required to delay indefinitely making its decision. In the circumstances, the Tribunal has decided to proceed to decision without taking further steps to obtain the information.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. 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.

    Term of employment of the visa holder: r.5.19(4)(d)

13. Regulation 5.19(4)(d) requires the nominee to be employed in the nominated position for at least 2 years full time, and the terms and conditions of that employment do not expressly exclude the possibility of an extension.

14. According to the delegate’s decision record, provided to the Tribunal for the purpose of the review, the applicant failed to demonstrate that it has the financial capacity to provide full-time employment to the nominee for at least 2 years.

15. Both the primary application form and the employment contract signed by the parties and dated 6 May 2016, state the proposed base salary of the nominee to be $56,000.  The delegate’s decision records that the business was established on 30 November 2015, and the application included a letter of support (dated 3 August 2016) from the applicant’s accountant that indicated projected forecasted cash flow income and expenditure calculations for the periods three months to 30 June 2016, and, anticipated twelve months to 30 June 2017 (also provided with the application) were considered realistically achievable.  However, additional financial material lodged in support of the application, reveals a continuous loss in the FYE 2016 of $2,186 and FYE 2017 of $2,654.  The delegate also calculated that wages expenditure in the amount of $2,152 in 2017 and $2,490 in 2016, are not reflective of the number of staff (2 Australian employees and 1 foreign employee) identified in the application.  In addition, although on 19 June 2018 the Department specifically invited the applicant to provide, among other things, a payroll summary for all its staff for the previous 12 months, this was not forthcoming.  The information before the Department therefore disclosed a serious concern to the delegate that the business would be unable to pay the nominated salary continuously for a minimum of 2 years.    

16. The Tribunal wrote to the applicant under subsection 359(2) of the Act inviting the applicant to provide information in writing demonstrating that the nominating business meets all the requirements of the criteria in regulation 5.19(4) of the Migration Regulations. The applicant has failed to do so. The Tribunal has no contemporary information before it concerning the financial capacity of the nominating business to pay the nominee's salary.

17. The Tribunal does not have any new or further supporting information that was not before the Department when the delegate made their decision.

18. Given the time that has elapsed and the lack of any current and up to date financial information, the Tribunal is unable to be satisfied that there is sufficient evidence of the capacity of the business to provide the nominee with full-time employment in the nominated position for at least 2 years. 

19. Accordingly, the requirement in r.5.19(4)(d) is not met.

20. Given that the Tribunal has found the applicant does not meet r.5.19(4)(d), it is not required to consider the remainder of the requirements set out in r.5.19(4).

21. 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

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

    Nicola Findson
    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).