FADMAR PTY LTD & STENA AUSTRALIA PTY LTD (Migration)

[2021] AATA 1068

FADMAR PTY LTD & STENA AUSTRALIA PTY LTD (Migration) [2021] AATA 1068 (24 March 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  FADMAR PTY LTD & STENA AUSTRALIA PTY LTD

CASE NUMBER:  1822935

HOME AFFAIRS REFERENCE(S):          BCC2016/3431567

MEMBER:De-Anne Kelly

DATE:24 March 2021

PLACE OF DECISION:  Brisbane

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

Statement made on 24 March 2021 at 10:58am

CATCHWORDS
MIGRATION – nomination – Direct Entry nomination stream – applicant failed to provide the requested information within the prescribed period – applicant did not demonstrate the financial viability of the business – 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 25 July 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 16 October 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 the applicant’s nomination did not satisfy r.5.19(4)(d)(i) of the Regulations because the applicant did not demonstrate the financial viability of the business and it’s ability to employ the nominee in the full-time position for at least two years.

5. The applicant was self-represented.

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

   Tribunal invitation to provide information

7. On 5 February 2021 the Tribunal invited the applicant under s.359(2) of the Migration Act 1958 (the Act) to provide updated and current information that demonstrated that the nomination met all of the criteria in r.5.19 of the Regulations at the time of its decision.

8. The combined invitation also specifically stated that the Tribunal must receive the applicant’s comments / response and the requested information by 19 February 2021, or within the period allowed for this purpose, or it would lose any entitlement it might otherwise have under the Act to appear before the Tribunal.  The invitation was sent twice to the email address provided on the review application form. A “return to sender” notice was received on both occasions stating that the message could not be delivered to the email address.

9. The applicant did not provide its requested information, within the prescribed period and did not request an extension of time.

10. In these circumstances, s.359C of the Act 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.

11. To date, the requested information has not been provided and the applicant has not contacted the Tribunal to indicate that the information is 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.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

13. 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.

14. On 16 October 2016 the applicant Fadmar Pty Ltd & Stena Australia Pty Ltd trading as Kinetto lodged a Regional Sponsored Migration Scheme employer nomination - Visa subclass 187 in the direct entry stream for the position of Cook in Adelaide on $53,000 per annum in favour of Mr Giorgi Mesquita Cardoso Pinheiro Fernando. The business had been operating since November 2014 and employed three Australians.

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

15. 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

16. In the Tribunal invitation of 5 February 2021, the applicant was invited to provide updated information about all the requirements to satisfy r.5.19. It also advised that for the nomination to be approved, the Tribunal must be satisfied that all of the relevant criteria are met at the time of decision not just the original reason the delegate refused the application. As stated, the applicant did not respond to the invitation and no updated and current information about the applicant or its business operations have been received.

17. The Tribunal invited the applicant to provide financial information and suggested that this could include lodged tax returns for the last two full financial years, business activity statements that have been lodged with the ATO for the last 24 months and financial statements prepared in accordance with Australian accounting standards, including profit and loss statements and balance sheets for the most recent two financial years. The Tribunal requested a job description and current employment contract. This would have assisted the Tribunal to make a careful assessment of whether the applicant had the financial capability to ensure the employee (the nominee) will be employed on a full-time basis in the position for at least 2 years. There was no response to the invitation to provide the information.

18. The Tribunal has examined the documents it has to hand however these go back to FY 2017 and do not allow a contemporaneous assessment of the applicants financial capacity to provide the nominee with two years full time employment and scant assurance that the nominee will be employed for those two years in the position of Cook. The Tribunal is unable to find that the employee (the nominee) will be employed on a full-time basis in the position for at least two years.

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

    Tasks of the position correspond with the tasks of the ANZSCO r.5.19(4)(h)(ii)(D).

20. The Tribunal invited the applicant to provide updated roles and duties of the nominated position and how they correspond to the nominated occupation’s position description in ANZSCO and suggested that this information could include job descriptions; work samples; emails, correspondence and other examples of daily tasks undertaken by the nominated position. No response has been received to the invitation to provide information.

21. The Tribunal has examined the evidence it has to hand however this is limited and dated back to 2016 and 2017 and does not allow a contemporaneous assessment of the actual tasks and responsibilities of the nominated position and the extent to which they correspond to the tasks of the ANZSCO. The Tribunal is unable to find that the tasks to be performed in the position correspond to the tasks of an occupation Cook ANZSCO 351411 specified by the Minister in an instrument in writing.

22. Therefore r.5.19(4)(h)(ii)(D) is not met.

23. For clarity the alternative requirement in r.5.19(4)(h)(i)(A) also requires that the tasks to be performed in the position correspond to the tasks of an occupation, Cook ANZSCO 351411 specified by the Minister in an instrument in writing. For the same reasons give above, the Tribunal finds that the requirements in r.5.19(4)(h)(i)(A) are not met.

24. Accordingly, the requirements of r.5.19(4)(h) are not met.

25. 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

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

    De-Anne Kelly
    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).