Everest Business Group Pty Ltd (Migration)

[2021] AATA 3451

Everest Business Group Pty Ltd (Migration) [2021] AATA 3451 (24 August 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Everest Business Group Pty Ltd

CASE NUMBER:  1827697

HOME AFFAIRS REFERENCE(S):          BCC2017/435200

MEMBER:Nicola Findson

DATE:24 August 2021

PLACE OF DECISION:  Perth

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

Statement made on 24 August 2021 at 6:35pm

CATCHWORDS
MIGRATION – nomination – Direct Entry nomination stream – company has failed to provide requested information – no evidence to show financial capacity to pay the nominated full-time salary for the nominated position – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 359, 360, 363
Migration Regulations 1994, 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 4 September 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 (Cth) (the Regulations).

2. The applicant applied for approval on 2 February 2017. 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)(a)(ii) because the delegate was not satisfied the application identified a need for the nominator to employ a paid employee to work in the position under the nominator’s direct control. The delegate also found that the applicant’s nomination did not satisfy r.5.19(4)(d)(i), because the delegate was not satisfied 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 two years.

5. The applicant applied to the Tribunal for review of the delegate’s decision on 21 September 2018, and provided a copy of the decision record with the application.

6. On 9 April 2021, the Tribunal wrote to the applicant pursuant to s 359(2) of the Act, inviting the applicant to provide current information to demonstrate all the relevant requirements of r.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 representative, the authorised recipient, at the last address provided in connection with the review.  It advised that, if the information was not provided in writing by 23 April 2021, the Tribunal may make a decision on the review without taking further steps to obtain the information and the review 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 23 April 2021, the applicant sought an extension of time in which to provide the requested information.  On 23 April 2021, the Tribunal agreed to grant the applicant an extension of time in which to respond until 7 May 2021. 

9. On 7 May 2021, the applicant sent a letter, by email, to the Tribunal, which stated:

   “Due to Covid-19, we were forced to shut down our business operation from Perth branch since May 2020. 

   As such, we are unable to provide you the requested documents as per your abovementioned letter.”

10. The Tribunal is of the view that the correspondence from the applicant is not a response to the invitation to provide information pursuant to s 359(2).  The applicant has not provided the information within the prescribed period as extended. 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 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. 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 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.

    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 two years full time, and the terms and conditions of that employment do not expressly exclude the possibility of an extension. 

14. The decision of the delegate, provided to the Tribunal by the applicant for the purpose of the review, records that the delegate was not satisfied 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 two years.

15. The Tribunal has had regard to documents on the Department’s file, including the employment contract and financial documents. The employment contract signed on 21 December 2016 indicates that the contract is for a period of four years from the time the nominee receives a permanent Australian visa allowing full-time work. The contract allows for a salary of $55,000 plus superannuation.  In support of its application, the applicant provided profit and loss statements for the years ended 30 June 2015, 2016 and 2017, and Business Activity Statements for the periods between October 2015 and June 2017. 

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 relevant to the financial capacity of the applicant business to pay the nominee’s salary for at least two years.

17. In the absence of current information, the Tribunal is unable to be satisfied that, at the time of its decision, the applicant has demonstrated its financial capacity to employ a person on a full-time basis in the nominated position for at least two years. Accordingly, the Tribunal is not satisfied that the requirement in r.5.19(4)(d)(i) is met.

18. As the applicant does not satisfy r.5.19(4)(d)(i), the requirements in r.5.19(4)(d) are 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.

    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).