EXCEL ALLIANCE PTY LTD (Migration)

EXCEL ALLIANCE PTY LTD (Migration) [2021] AATA 559 (22 January 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  EXCEL ALLIANCE PTY LTD
CASE NUMBER:  1904808
HOME AFFAIRS REFERENCE(S):          BCC2017/2815415
MEMBER:Mary Sheargold
DATE:22 January 2021
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision under review to refuse the nomination.

Statement made on 22 January 2021 at 4:26pm

CATCHWORDS
MIGRATION – approval of a nomination – Direct Entry nomination stream – financial capacity to employ the nominee for at least 2 years – limited evidence of business operations – decision under review affirmed
LEGISLATION
Migration Act 1958, s 363
Migration Regulations 1994, r 5.19
CASES
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 Border Protection v Singh [2014] FCAFC 1
Minister for Immigration and Citizenship v Li [2013] HCA 18
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 20 February 2019 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).
The applicant applied for approval on 7 August 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).
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 r.5.19(4)(d)(i) of the Regulations because the applicant did not demonstrate that it had the financial capacity to comply with the requirement to provide the nominee with at least 2 years of full-time employment.
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 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)
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.
The nomination application was lodged with the Department on 7 August 2017, and the Department refused the nomination application in a decision made on 20 February 2019. While the Tribunal notes the Departmental file contains documents relied upon by the delegate in reaching their decision, no additional information was provided to the Tribunal at review.
On 30 November 2020, the Tribunal wrote to the applicant inviting the applicant to provide information that demonstrated that the business meets all of the requirements of the criteria in r.5.19(3) of the Regulations at the time of the Tribunal’s decision. A copy of r.5.19(3) was annexed to the letter. A response to the request for information was due by 14 November 2020. As at the date of this decision, no response has been received.
The Tribunal notes it has not received the information requested, and in these circumstances, it is able to proceed to decision based on the evidence before it.
The Tribunal has considered whether it should adjourn the review under s.363(1)(b) of the Act to allow the applicant additional time in which to provide further evidence to support its review application.
In doing so, the Tribunal has taken into account the decisions in the Tribunal has taken into account the decisions in Huo v Minister for Immigration and Multicultural Affairs[1] and Manna v Minister for Immigration and Citizenship[2] where the Courts have held that the Tribunal is not required to indefinitely defer its decision-making processes. It has also had regard to the decision in Minister for Immigration and Citizenship v Li[3] regarding the reasonableness of any request for an adjournment, and the Full Federal Court of Australia decision in Minister for Immigration and Border Protection v Singh[4] which considered this issue, as well as the more recent decision in Kaur v Minister for Immigration and Border Protection[5] where analogous issues were discussed.
[1] [2002] FCA 617.
[2] [2012] FMCA 28.
[3] [2013] HCA 18 (8 May 2013).
[4] [2014] FCAFC 1 (4 February 2014).
[5] [2014] FCA 915 (28 August 2014).
The Tribunal has considered whether, in the circumstances of this case, the information that the applicant meets the requirements in r.5.19(4) is likely to be forthcoming and whether the applicant has had a fair opportunity to provide the relevant information already, and the significance of the information to the applicant.
The Tribunal has had regard to the fact that the nomination application was refused by the Department on 20 February 2019 because the delegate concluded that the applicant had not demonstrated that it had the financial capacity to employ the nominee on a full-time basis for at least 2 years. The applicant submitted a copy of the primary decision record with the review application. As a result, the Tribunal observes that the applicant has been aware for more than 23 months of the reasons for the nomination application refusal.
Further, as noted above, the applicant has provided no further information to the Tribunal to demonstrate that the applicant can satisfy the requirements of r.5.19(4) since the application for review was received on 1 March 2019, despite being invited to do so.
In these circumstances, and for the reasons set out in this decision record, the Tribunal considers that the applicant has had a fair opportunity to provide the relevant information and sufficient time to take steps to satisfy the regulatory criteria. The Tribunal notes that it is uncertain if and when the applicant will provide information in writing as to whether the nominating business meets the requirements of r.5.19(4). The Tribunal is not disposed to delay making a decision indefinitely.
Accordingly, the Tribunal has decided not to exercise its discretion under s.363(1)(b) of the Act to adjourn the review any further to allow the applicant more time in which to demonstrate that the nominating business meets the requirements of r.5.19(4).
The primary decision record notes that the documents provided to the Department in support of the application did not support the applicant being able to employ the nominee on a full-time basis for at least 2 years. The primary decision record noted that evidence regarding sales and wage payments set out in business activity statements gave only limited evidence of the current or future performance of the applicant’s business. The primary decision record noted that there was no evidence before the delegate regarding ongoing operating expenses or equity in the business, and as such, the delegate was unable to determine whether the business had sufficient financial capacity to comply with the requirement to provide the nominee with at least 2 years of full-time employment.
No additional evidence has been provided to the Tribunal with the lodgement of the review application demonstrating that the applicant will employ the nominee on a full-time basis for at least 2 years. Therefore, the Tribunal finds that there is no quantifiable evidence before it at the time of review that could lead the Tribunal to find that the applicant will employ the nominee on a full-time basis for at least 2 years.
Accordingly, the requirement in r.5.19(4)(d)(i) is not met.
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
The Tribunal affirms the decision under review to refuse the nomination.
Mary Sheargold
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 559

22 January 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Statutory Construction

Procedural Fairness

Jurisdiction