Euro Car Parts Pty Ltd (Migration)
[2023] AATA 2850
•3 August 2023
Euro Car Parts Pty Ltd (Migration) [2023] AATA 2850 (3 August 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT: Euro Car Parts Pty Ltd
REPRESENTATIVE: Mr Steve Hou (MARN: 0743817)
CASE NUMBER: 2001225
HOME AFFAIRS REFERENCE(S): BCC2019/5767260
MEMBER:Karen McNamara
DATE:3 August 2023
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision under review to refuse the nomination.
Statement made on 03 August 2023 at 6:00pm
CATCHWORDS
MIGRATION – nomination – Regional Sponsored Migration Direct Entry stream – Marketing Specialist – applicant failed to provide the requested information within the prescribed period– applicant has not provided current information about the genuine need to employ the nominee to work in the nominated position – decision under review affirmedLEGISLATION
Migration Act 1958, ss 65, 359, 360, 363, 376
Migration Regulations 1994, r 5.19CASES
Hasran v MIAC [2010] FCAFC 40
Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617
Kaur v Minister for Immigration and Border Protection [2014] FCA 915
Manna v Minister for Immigration and Citizenship [2012] FMCA 28
Minister for Immigration and Citizenship v Li [2013] HCA 18STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW
This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 6 January 2020, to reject the application by Euro Car Parts Pty Ltd (the applicant) for approval of the nomination of a position under reg 5.19 of the Migration Regulations 1994 (Cth) (the Regulations).
On 14 November 2019, the applicant lodged an application for an employer nomination approval under the Regional Sponsored Migration Direct Entry stream for the position/occupation of Marketing Specialist (ANZSCO 225113). The application identified Ms Ya-Hui Liang.
The requirements for the approval of the nomination of a position in Australia are found in reg 5.19 of the Regulations, which contains general requirements for approval and additional requirements for approval set out in three alternative streams: a Temporary Residence Transition stream, a Direct Entry stream and a Labour Agreement stream. If the application meets the requirements for approval then the application must be approved: reg 5.19(3)(a). If any of the requirements are not met then the application must be refused: reg 5.19(3)(b).
In this case, the applicant has applied for approval of a nomination, seeking to satisfy the criteria in the Direct Entry stream.
The decision record provided to the Tribunal records that on 6 January 2020, the delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19(9)(d) of the Regulations. The delegate formed the view that the application failed to support ‘a genuine need for the nominator to employ the identified person to work in the nominated position under their direct control.’
The applicant lodged an application for review with the Tribunal on 23 January 2020. The review application was accompanied by a copy of the delegate’s decision. The Tribunal also has before it, the Department file containing all information before the delegate at the time of their decision.
Information Provided to the Tribunal
On the 20 June 2023, the Tribunal wrote to the applicant pursuant to section 359(2) of the Migration Act 1958 (the Act) (dispatched by email to the authorised recipient/representative), requesting the applicant to provide by 4 July 2023, updated and current information that would assist to determine whether the requirements in rr.5.19(4) and (9) of the Regulations are met.
On 1 July 2023, the representative submitted to the Tribunal on behalf of the applicant, the following;
· BAS return October 2018 to December 2018
· BAS return January 2019 to March 2019
· Financial Statements year ended 30 June 2018
Additionally on 1 July 2023, the representative advised the Tribunal that the ‘employer is still preparing the most recent financial reports with internal and external accountants, Could you please allow them two more weeks for preparation and provide the docs by 18 Jul?’[1]
[1] Prepared and transcribed as submitted by representative
On 3 July 2023, the Tribunal responded to the representative advising as a response had been provided to the s 359(2) letter, it was not necessary for the Tribunal to grant an extension and any further information in support of the review, should be provided by the applicant as soon as possible.
The Tribunal notes that at the time of this decision no further information has been provided by the applicant (or by an authorised representative of the applicant) to the Tribunal.
Non-Disclosure Certificate (s376 of the Act) – Invitation to comment
The delegate for the Minister on 10 July 2023, issued a certificate under s.376 of the Act specifying document(s)/information on the Department file, which they certified must not be given to the review applicant as disclosure would be contrary to the public interest.
On 17 July 2023, a copy of the certificate (dated 10 July 2023) was provided to the applicant. The applicant was invited to comment about the validity of the certificate in writing.
The ‘gist of the information’ was provided to the applicant pursuant to s 359A as discussed below in this decision.
After careful consideration of the material covered by the s 376 certificate, the Tribunal is of the view that that the public reason (that disclosure of this material would be contrary to the public interest because they disclose lawful methods for preventing, detecting and investigating breaches or evasions of the law which would or be likely to prejudice the effectiveness of those methods) is clearly specified in the certificate. The Tribunal therefore considers that the certificate is valid.
The Tribunal is satisfied the applicant was advised of the gist of the information and that any procedural obligations have been discharged.
At the time of this decision, the applicant has not responded to the Tribunal’s invitation to comment on the validity of the non-disclosure certificate.
ADVERSE INFORMATION – Invitation to comment
On 17 July 2023, the Tribunal wrote to the applicant pursuant to s 359A of the Act. (dispatched by email to the authorised recipient/representative). The letter invited the applicant to comment on or respond to, information which the Tribunal considered would, subject to any comments or response, be the reason or part of the reason for affirming the decision under review and stated as follows;
‘ I am writing on instruction from the Member conducting your review, in relation to the
application for review made by Euro Car Parts Pty Ltd.
In conducting the review, we are required by the Migration Act 1958 to invite Euro Car Parts Pty Ltd to comment on or respond to certain information which we consider would, subject to any comments or response it makes, be the reason, or part of the reason, for affirming the decision under review.
Please note, however, that we have not made up our mind about the information.
The particulars of the information are:
· Information before the Tribunal shows concerns held by the Department of Home Affairs in regard to the genuineness of nomination applications lodged by the sponsoring entity. The information suggests in June 2019 a nominee (in a separate nomination), was suspected to have provided false and misleading information in regard to another nomination application lodged by a business not related to Euro Car Parts Pty Ltd. However, given similarities in the applications, the Department held concerns that parties involved in this matter may be complicit in fraud of sponsoring PRC Nationals and possibly payment for visa arrangements.
The aforementioned information is relevant to the review because r.5.19(4)(b)(i) requires that there is no adverse information known to Immigration about the nominator or a person associated with the nominator, or it is reasonable to disregard any adverse information known to Immigration about the nominator or a person associated with the nominator (r.5.19(4)(b)(ii)).
If the Tribunal relies on this information, it may find that the application does not satisfy the requirements of r.5.19(4)(b) and consequently the decision under review would be affirmed.
· Additionally, information before the Tribunal shows that the nominee associated with this nomination did not lodge an application for review with the Tribunal and does not currently hold a valid visa. Department records show Ms Ya-Hui Liang remains in Australia unlawfully.
This information is relevant because r.5.19(9)(d) requires that there is a genuine need for the identified person to be employed in the position under the direct control of the nominator.
If the Tribunal relies on this information, it may also find there is not a genuine need for the identified person to be employed in the position (Marketing Specialist) under the direct control of the nominator and that the application does not meet r.5.19(9)(d).
If the Tribunal relies on the aforementioned information, it may find that you do not satisfy the requirements of r.5.19(4) and consequently the decision under review would be affirmed.
Euro Car Parts Pty Ltd is invited to give comments on or respond to the above
information in writing.
The comments or response should be received by 31 July 2023. If the comments or response are in a language other than English, they must be accompanied by an English translation from an accredited translator.
If Euro Car Parts Pty Ltd cannot provide written comments or response by 31 July 2023, it may ask us for an extension of time in which to provide the comments or response. If Euro Car Parts Pty Ltd makes such a request, it must be received by us by 31 July 2023 and Euro Car Parts Pty Ltd must state the reason why the extension of time is required.
We will carefully consider any request for an extension of time and will advise whether
or not the extension has been granted.
If we do not receive Euro Car Parts Pty Ltd's comments or response within the period allowed or as extended, we may make a decision on the review without taking any further action to obtain its views on the information. Euro Car Parts Pty Ltd will also lose any entitlement it might otherwise have had under the Migration Act 1958 to appear before us to give evidence and present arguments.’
The invitation to comment/respond was sent to the authorised recipient/representative at the last email address provided in connection with the review. The invitation advised as stated and highlighted above, if the comments/response were not provided in writing by 31 July 2023, the Tribunal may make a decision on the review without taking further steps to obtain the applicant’s comments and the review applicant would lose any entitlement they may otherwise have had under the Act, to appear before the Tribunal to give evidence and present arguments.
As at the time of this decision, the review applicant or an authorised representative of the applicant, have not provided the comments or a response within the prescribed period and no extension has been sought or has been granted. In these circumstances, s.359C applies and pursuant to s.360(3) the review applicant is not entitled to appear before the Tribunal. The effect of s.363A of the Act is that if a review 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.
Accordingly, as the applicant failed to provide comment or response within the prescribed period, the applicant has lost the right to appear before the Tribunal to give evidence and present arguments relating to this review application.
Although the applicant has not requested this, the Tribunal has carefully considered whether to afford additional time to the applicant to provide comment as requested in the s.359(a) invitation, or to provide further material in support of their application for review.
In doing so, it has paid careful regard to the guidance in the decisions of Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617 and Manna v Minister for Immigration and Citizenship [2012] FMCA 28, where the Courts held that the Tribunal is not required to indefinitely defer its decision-making process. 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.
The Tribunal is satisfied that the invitation to provide comment was sent to the correct email address. The invitation was not returned to sender as undeliverable mail. At the time of this decision, the applicant has not provided comment, or a response and the applicant has not made contact with the Tribunal to indicate that a response is forthcoming.
The Tribunal has also taken into account the fact that the implications of not providing the comments/response as requested in the invitation from the Tribunal, were set out in the Tribunal’s letter of 17 July 2023.
In the circumstances, the Tribunal has decided to proceed to make its decision on the available evidence without taking further steps to obtain the applicant’s comments.
The applicant was represented in relation to the review.
For the following reasons, the Tribunal has decided to affirm the decision under review to refuse the nomination.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant meets the general requirements for approval of the nomination set out in reg 5.19(4) and the stream specific requirements set out in reg 5.19(9), which are extracted in the attachment to this decision. For the nomination to be approved, all the requirements must be met.
Genuine need for employment – regs 5.19(9)(c) and (d)
Regulation 5.19(9)(c) requires the nomination application to identify a need for the identified person to be employed in the position, under the direct control of the nominator, and reg 5.19(9)(d) requires this need to be genuine.
The review applicant nominated the position/occupation of Marketing Specialist (ANZSCO 225113). On 6 January 2020, the delegate refused the application because delegate formed the view that the application failed to demonstrate that there is a genuine need for the nominator to employ the identified person to work in the nominated position under their direct control.
The delegate noted in their decision ‘….the onus is on the nominator to provide supporting documents to demonstrate that there is a genuine need to employ a paid employee in the nominated position, be it a newly created position, or one which has previously existed….
On assessment, it is noted that the application is not accompanied with any supporting documents. The nominator has not provided an organisation chart or company statement, which would normally address how the nominated position fits into the structure of the organisation and interacts with other roles. I acknowledge that the nominator has provided some basic company details in the application, such as staffing numbers, trading history, turnover and payroll figures. However, the lack of documentary evidence to support these claims, as well as lack of clarification regarding the roles and responsibilities of existing staff, create ambiguity regarding the size and scope of the business. The lack of information has a bearing on my assessment as to whether the nominated position is genuinely needed within the business.
Additionally, the nominator has not provided an employment contract to establish that the nominee has been offered at least two years of employment in the nominated position. The lack of commitment through the provision of a signed employment agreement, in additional to the abovementioned findings, do not support that there is a genuine need for the nominator to employ the identified person to work in the nominated position under their direct control.’
On 20 June 2023, the Tribunal invited the applicant to provide information including the need to employ the nominee in the nominated position. As noted above, on 1 July 2023 the applicant provided BAS returns for the period October 2018 to December 2018 and January 2019 to March 2019, and Financial Statements year ended 30 June 2018. The Tribunal does not consider this information affords persuasive evidence of the applicant’s genuine need to employ the nominee in the position of Marketing Specialist under their direct control.
The Tribunal notes that almost four years have lapsed since the applicant lodged its review application with the Tribunal. A copy of the delegate’s decision accompanied the application. The applicant therefore has been aware of the delegate’s reasons for not approving the application for almost four years. At the time of this decision, the applicant has not provided current information about the genuine need to employ the nominee to work in the nominated position. As such the Tribunal is unable to be satisfied at the time of this decision, that the application demonstrates there is a genuine need for the identified person to be employed in the position, under the direct control of the nominator.
Given the above findings, the Tribunal is not satisfied that reg 5.19(9)(d) is met. Accordingly, reg 5.19(4)(f) is not met.
As the Tribunal has found that the applicant has not met r.5.19(4)(f), it is not required to consider the rest of the requirements as set out in rr.5.19(4) and (9).
For these reasons the Tribunal is not satisfied that the applicant meets the requirements of reg 5.19. Accordingly, reg 5.19(3)(b) requires that the nomination must be refused. The decision under review must be affirmed.
DECISION
The Tribunal affirms the decision under review to refuse the nomination.
Karen McNamara
MemberATTACHMENT – EXTRACTS FROM THE MIGRATION REGULATIONS 1994
5.19Approval of nominated positions—Subclass 186 (Employer Nomination Scheme) visa and Subclass 187 (Regional Sponsored Migration Scheme) visa
Application
(1)A person (the nominator) (including a partnership or unincorporated association) may apply to the Minister for approval of the nomination of a position in Australia.
(2)The application must:
(a)be made in accordance with approved form 1395 (Internet); and
(b)identify the position; and
(c)identify a person (the identified person) in relation to the position; and
(d)identify an occupation in relation to the position; and
(e)identify the subclass and stream to which the nomination relates, which must be one of the following:
(i)a Subclass 186 (Employer Nomination Scheme) visa in the Temporary Residence Transition stream;
(ii)a Subclass 187 (Regional Sponsored Migration Scheme) visa in the Temporary Residence Transition stream;
(iii)a Subclass 186 (Employer Nomination Scheme) visa in the Direct Entry stream;
(iv)Subclass 187 (Regional Sponsored Migration Scheme) visa in the Direct Entry stream;
(v)a Subclass 186 (Employer Nomination Scheme) visa in the Labour Agreement stream; and
(f)be accompanied by the fee mentioned in regulation 5.37; and
(fa)be accompanied by any nomination training contribution charge the nominator is liable to pay in relation to the nomination; and
(fb)identify the annual turnover (within the meaning of the Migration (Skilling Australians Fund) Charges Regulations 2018) for the nomination; and
(g)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.
Approval of nomination
(3)The Minister must, in writing:
(a)approve the nomination if the Minister is satisfied that the requirements set out in subregulation (4) are met; or
(b)otherwise—refuse to approve the nomination.
Requirements for approval—general
(4)The requirements to be met for the nomination to be approved are as follows:
(a)the application is made in accordance with subregulation (2);
(b)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;
(c)if it is mandatory, in the State or Territory in which the position is located, for a person to:
(i)hold a licence of a particular kind; or
(ii)hold registration of a particular kind; or
(iii)be a member (or a member of a particular kind) of a particular professional body;
to perform tasks of the kind to be performed in the occupation, the identified person is, or is eligible to become, the holder of the licence, the holder of the registration, or a member of the body, at the time of application;
(d)the nominator has a satisfactory record of compliance with the laws of the Commonwealth, and of each State or Territory in which the nominator operates a business and employs employees in the business, relating to employment;
(da)any debt due by the nominator as mentioned in section 140ZO of the Act (recovery of nomination training contribution charge and late payment penalty) has been paid in full;
(e)if the nomination relates to a visa in a Temporary Residence Transition stream—the requirements set out in subregulation (5) are met;
(f)if the nomination relates to a visa in a Direct Entry stream—the requirements set out in subregulation (9) are met;
(g)if the nomination relates to a visa in a Labour Agreement stream—the requirements set out in subregulation (14) are met.
…
Direct Entry stream—additional requirements for approval
(9)If the nomination relates to a visa in a Direct Entry stream, the following requirements must also be met:
(a)the nominator is actively and lawfully operating a business in Australia;
(b)if the nominator’s business activities include activities related 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;
(c)the application identifies a need for the identified person to be employed in the position, under the direct control of the nominator;
(d)there is a genuine need for the identified person to be employed in the position, under the direct control of the nominator;
(e)the identified person will be employed on a full‑time basis in the position for at least 2 years;
(f)the terms and conditions of the identified person’s employment will not include an express exclusion of the possibility of extending the period of employment;
(g)the nominator’s business has the capacity to employ the identified person for at least 2 years and to pay the person at least the annual market salary rate for the occupation each year;
(h)the requirements set out in subregulation 2.72(15) are met, applying subregulations 2.72(15) and (16) as if:
(i)paragraph 2.72(15)(a) did not apply; and
(ii)references to the nominee were references to the identified person; and
(iii)references to the person were references to the nominator;
(i)either:
(i)there is no information known to Immigration that indicates that the employment conditions (other than in relation to earnings) that will apply to the identified person are less favourable than those that apply, or would apply, to an Australian citizen or an Australian permanent resident performing equivalent work at the same location; or
(ii)it is reasonable to disregard any such information;
(j)the requirements set out in subregulation (10) or (12) are met.
Occupations for the Subclass 186 (Employer Nomination Scheme) visa in the Direct Entry stream
(10)The requirements of this subregulation are as follows:
(a)the tasks to be performed in the position will be performed in Australia and correspond to the tasks of an occupation specified in a legislative instrument:
(i)made under subregulation (11); and
(ii)in force at the time the application is made;
(b)the occupation applies to the identified person in accordance with that instrument.
(11)The Minister may, by legislative instrument, specify occupations for the purposes of subregulation (10) and, for each occupation, specify any matters for the purposes of determining whether the occupation applies to an identified person, including matters relating to any of the following:
(a)the nominator;
(b)the identified person;
(c)the occupation;
(d)the position in which the identified person is to work;
(e)the circumstances in which the occupation is undertaken;
(f)the circumstances in which the person is to be employed in the position.
Occupations for the Subclass 187 (Regional Sponsored Migration Scheme) visa in the Direct Entry stream
(12)The requirements of this subregulation are as follows:
(a)the position is located at a place in regional Australia;
(b)the business operated by the nominator is located at that place;
(c)the position cannot be filled by an Australian citizen or an Australian permanent resident who is living in, or would move to, the local area concerned;
(d)the tasks to be performed in the position correspond to the tasks of an occupation specified in a legislative instrument:
(i)made under subregulation (13); and
(ii)as in force at the time the application is made;
(e)the occupation applies to the identified person in accordance with that instrument;
(f)the Minister has been advised by a body that meets the requirements set out in paragraph (g) of this subregulation about matters relating to the following:
(i)whether the identified person would be paid at least the annual market salary rate for the occupation;
(ii)whether there is a genuine need for the identified person to be employed in the position, under the direct control of the nominator;
(iii)whether the position can be filled by an Australian citizen or an Australian permanent resident who is living in, or would move to, the local area concerned;
(g)the body must:
(i)be specified in a legislative instrument made by the Minister for the purposes of this paragraph; and
(ii)be located in the State or Territory in which the position is located; and
(iii)have responsibility for the local area in which the position is located.
(13)The Minister may, by legislative instrument, specify occupations for the purposes of subregulation (12) and, for each occupation, specify any matters for the purposes of determining whether the occupation applies to an identified person, including matters relating to any of the following:
(a)the nominator;
(b)the identified person;
(c)the occupation;
(d)the position in which the identified person is to work;
(e)the circumstances in which the occupation is undertaken;
(f)the circumstances in which the person is to be employed in the position.
…
Meaning of regional Australia
(16)In this regulation:
regional Australia means a part of Australia specified in legislative instrument made by the Minister for the purposes of this definition.
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
Legal Concepts
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Judicial Review
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Procedural Fairness
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Statutory Construction
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Natural Justice
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