Ex-RPH Trust ATF Mega 3 Pty Ltd (Migration)

Ex-RPH Trust ATF Mega 3 Pty Ltd (Migration) [2021] AATA 3753 (27 September 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Ex-RPH Trust ATF Mega 3 Pty Ltd
CASE NUMBER:  1833704
HOME AFFAIRS REFERENCE(S):          BCC2018/753837
MEMBER:Susan Reece Jones
DATE:27 September 2021
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision under review to refuse the nomination.

Statement made on 27 September 2021 at 4:13pm

CATCHWORDS
MIGRATION – application for approval of nomination of position – direct entry nomination stream – genuine need for position, actively operating business and employment for 2 years – no response to tribunal’s invitation to provide updated information – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 359(2), 359C(1), 360(3), 363A
Migration Regulations 1994 (Cth), r 5.19(4)(a)(ii), (b), (d)
CASE
Hasran v MIAC (2010) 183 FCR 413
STATEMENT 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 24 October 2018 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).
The applicant applied for approval on 14 February 2018. The requirements for the approval of the nomination of a position of Cook (ANZSCO: 351411) 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).
In this case, the applicant has applied for approval of a nomination, seeking to satisfy the criteria in the Direct Entry nomination stream.
The delegate refused the application on the basis the applicant’s nomination did not satisfy reg 5.19(a) of the Regulations because the applicant failed to provide sufficient information to indicate that the applicant had a need for a full time position and did not provide evidence to justify and substantiate the need for a full-time employee in the position of Cook.
The Tribunal received a review application on 16 November 2018. It was lodged on behalf of the applicant by its director, Mr Steven Papagelou. It was accompanied by a copy of the delegate’s decision and an authority by which Mr Papagelou appointed a registered migration agent, Ms Sarabjit Kaur, to be the applicant’s representative and authorised recipient for correspondence.
On 22 July 2021, the Tribunal wrote via email to the agent pursuant to s.359(2) of the Act to invite Mr Papagelou to provide up to date and current information demonstrating that the applicant met all of the applicable r.5.19(3) criteria (not merely the subparagraph that the delegate had found was not met).
The Tribunal provided the agent and Mr Papagelou with a copy of r.5.19(3) for reference and provided detailed examples of the kind of documentary evidence that would assist the Tribunal to assess the criteria set out in r.5.19(3).
Mr Papagelou was requested to provide the requested information by 5 August 2021, and advised that if he failed to do so (or failed to ask for an extension of time to do so) by that date, the applicant would lose its entitlement to have someone attend a hearing to present evidence and arguments on its behalf, and the Tribunal might proceed to make its decision without requesting further information.
The Tribunal did not receive any of the requested information, or a request for an extension of time to do so, by 5 August 2021.
The Tribunal has not received any further information or communication to date from Mr Papagelou, the representative, or any other person authorised to act on behalf of the applicant.
If a person is given a formal invitation to provide information under s.359(2) and does not do so within the prescribed period, the Tribunal may make a decision on the review without taking any further action to obtain the information.[1] Moreover, if a person fails to respond to a written invitation within the prescribed period (or as extended), the review applicant also loses any entitlement to appear before the Tribunal to give evidence and present arguments relating to the issues in the review.[2] In the case of a review under Part 5 of the Migration Act (under which Part this review application falls), the language of s.363A operates to remove any discretion which the Tribunal may have had to allow a person to do something where a provision of Part 5 states that the person is not entitled to do so.[3] Therefore, once the applicant has lost their entitlement to a hearing, the effect of ss.359C(1), 360(3) and 363A is that the Tribunal has no power to invite the applicant to a hearing.
[1] ss 359C(1), 424C(1).
[2] ss 360(3), 425(3). In Shrestha v MIBP [2014] FCCA 34, in circumstances where there was an administrative error by the Tribunal and a s 359A letter template was used instead of a s 359(2) letter template, the Court found that s 360 did not operate with the effect that the applicant was no longer entitled to a hearing, as the Tribunal had not complied with its statutory obligation under s 359C(1) to invite the applicant under s 359 to give information.
[3] Hasran v MIAC (2010) 183 FCR 413 at [26]. This confirms the views expressed in M v MIMA (2006) 155 FCR 333 at [46], and MIMA v Sun (2005) 146 FCR 498, for example.
Given the above, the Tribunal finds that the applicant lost its entitlement to a hearing due to the failure to provide the requested information (or seek an extension of time to do so) by 5 August 2021, the due date. The Tribunal has considered whether it should now defer making its decision to enable the applicant to provide any additional information, but has decided not to do so, given that the applicant has provided no further information or communication to date.
The Tribunal notes that it has allowed a further 7 weeks for the submission of additional material. None has been received to date. No request was made prior to 5 August 2021 for an extension of time to provide the requested information. The applicant has had the assistance of a migration agent. Accordingly, the Tribunal considers it reasonable to now proceed to make a decision on the evidence before it. DIAC
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 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.
The application is compliant: reg 5.19(4)(a)
Regulation 5.19(4)(a) requires that the application for approval must be in the approved form, must be accompanied by the prescribed fee, and, where applicable, must include the required written certification relating to conduct that contravenes s 245AR(1). The application must also identify a need for the nominator to employ an identified person as a paid employee to work in the position under their direct control
According to the information provided with the application, the position of Cook was to be located in a restaurant trading as ‘Villa Romana” located in Cairns, Queensland.
When the application for review was lodged, the application form was accompanied by a copy of the Department’s decision.
Regulation r 5.19(4)(a)(ii) requires that the application identify a need for a paid employee to work in the position under the direct control of the nominator.
The Tribunal wrote to the applicant pursuant to s 359(2) of the Act on 22 July 2021 requesting the applicant provide updated and current information addressing the requirements in r 5.19(4) including (a)(ii).
The applicant was advised that if no response was received, they would lose any entitlement to a hearing and the Tribunal may make a decision without taking any further action. The invitation for further information was sent to the last email address provided to the Tribunal. No response was received by the due date.
As no response was received from the applicant, the Tribunal considers that there is insufficient information before it to establish that there is currently a genuine need for the position of Cook. Nor is the Tribunal in receipt of any evidence to support a finding that the applicant will employ the nominee on a full-time basis for at least two years.
Accordingly, the requirement in reg 5.19(4)(a) is not met.
Nominator is actively and lawfully operating a business in Australia: reg 5.19(4)(b)
Regulation 5.19(4)(b) requires that the applicant is actively, lawfully and directly operating a business in Australia.
As noted at paragraphs 21 and 22 above, no response was received from the applicant, and consequently, the Tribunal does not have any information (such as a copy of ASIC Current and Historical Extract, ABN Lookup records, BAS, Financial Statement, ATO tax returns and Organisational chart), to demonstrate that the business is currently actively and lawfully operating a business in Australia.
Accordingly, the requirement in reg 5.19(4)(b) is not met.
Term of employment of the visa holder: reg 5.19(4)(d)
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.
As noted at paragraphs 20 and 21 above, no response was received from the applicant, and consequently, the Tribunal does not have sufficient information before it to demonstrate that the applicant will employ the nominee on a full time basis for at least two years.
Accordingly, the requirement in reg 5.19(4)(d) is not met.
Given this, the Tribunal does not consider that there is sufficient evidence at the time of this decision, that the requirements in rr. 5.19 (4)(a)(ii), 5.19(4)(b) or 5.19(4)(d) are met.
For the above reasons, the Tribunal is not satisfied that the applicant meets the requirements of r.5.19(4), as failure to meet any 1 of the subparagraphs is sufficient for the criteria in r.5.19(4) not to be met as a whole. As noted at paragraph 23 above, the Tribunal has found that r.5.19(4)(a) (b) and (d) are not met, and therefore it is unnecessary for it to consider the remaining r.5.19(4) criteria. 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
The Tribunal affirms the decision under review to refuse the nomination.
Susan Reece Jones
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)       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).

[2021] AATA 3753

27 September 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction