Gamini Dharmakerthi Palliyaliyanage (Migration)

[2022] AATA 1621

Gamini Dharmakerthi Palliyaliyanage (Migration) [2022] AATA 1621 (24 March 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Gamini Dharmakerthi Palliyaliyanage

REPRESENTATIVE:  Mr Amila Weerasinghe (MARN: 1067683)

CASE NUMBER:  1907027

HOME AFFAIRS REFERENCE(S):          BCC2018/966057

MEMBER:Terrence Baxter

DATE:24 March 2022

PLACE OF DECISION:  Brisbane

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

Statement made on 24 March 2022 at 9:08am

CATCHWORDS
MIGRATION – application for approval of nomination of position – temporary residence transition stream – hairdresser – actively operating business and financial capacity to employ nominee for two years – no current information addressing criteria provided – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 359(2), 359C(1), 360(3), 363(1)(b), 363A
Migration Regulations 1994 (Cth), r 5.19(2), (3)(b)(ii), (d)(i)

CASE
Hasran v MIAC [2010] FCAFC 40
Huo v MIMA [2002] FCA 617
Manna v MIAC [2012] FMCA 28
Re Drake and MIEA (No 2) [1979] AATA 179

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 6 March 2019 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).

2. The applicant, Mr Gamini Dharmakerthi Palliyaliyanage, applied for approval on 28 February 2018. The applicant nominated Mrs Nadeesha Madurangi Jayasuriya Bothala Dewage (the nominee) in the position of Hairdresser. The requirements for the approval of the nomination of a position 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).

3. In this case, the applicant has applied for approval of a nomination, seeking to satisfy the criteria in the Temporary Residence Transition nomination stream.

4. The delegate refused the application on the basis the applicant’s nomination did not satisfy reg 5.19(3)(d)(i) of the Regulations because the delegate found that the applicant had not demonstrated the financial capacity to provide the nominee full-time employment for at least two years.

5. The applicant lodged an application for review of the delegate’s decision with the Tribunal on 25 March 2019.

6. The applicant was represented in relation to the review by his registered migration agent Mr Amila Weerasinghe of Destiny Migration Services.

7. On 17 February 2022, the Tribunal wrote to the applicant pursuant to s 359(2) of the Migration Act 1958 (the Act), inviting him to provide current information addressing the relevant criteria under regs 5.19(2) and (3) of the Regulations. The Tribunal is satisfied that this invitation was properly dispatched to the applicant’s email address. The applicant failed to provide the information within the prescribed time for responding to the invitation. No response to that invitation has been received by the Tribunal at the time of this decision.

8. Where a review applicant is invited to provide further information in accordance with s 359(2) of the Act, and fails to do so within the prescribed period, the Tribunal may make a decision on the review without taking any further action to obtain the information, according to s 359C(1) of the Act. In these circumstances, the review applicant is not entitled to appear before the Tribunal in accordance with s 360(3) of the Act. Of note, 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 the review applicant to appear before it as outlined in the Full Federal Court authority in the matter of Hasran v MIAC [2010] FCAFC 40.

9. Although the applicant has not requested this, the Tribunal has also considered whether it would be appropriate to adjourn the application for review under s 363(1)(b) of the Act to allow the applicant additional time in which to provide evidence to support his 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.

10. The Tribunal has taken into account that the applicant has been aware since 6 March 2019 of the reasons for the nomination application being refused and also that the implications of not providing the information requested in the invitation from the Tribunal of 17 February 2022 were set out in that correspondence.

11. In these circumstances, the Tribunal considers that the applicant has had sufficient time in which to address the central issues arising in the application for review. 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 he meets the relevant criteria under regs 5.19(2) and (3) of the Regulations.

12. Following careful consideration, the Tribunal has decided to proceed to make a decision on this review without taking any further action to obtain the information referred to in the aforementioned invitation and having due regard to the documentary material before it.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

14. The issue in this case is whether the applicant meets the requirements for approval of the nomination under the Temporary Residence Transition nomination stream set out in reg 5.19(3), which is extracted in the attachment to this decision. For the nomination to be approved, all the requirements must be met.

    Evidence presented to the Department

15. The applicant produced to the Department of Immigration and Border Protection (now the Department of Home Affairs) (the Department) documents including:

    a.PAYG summaries and Australian Taxation Office Notices of Assessment of the nominee for the 2016 and 2017 financial years.

    b.Evidence of payment of training expenditure.

    c.Activity statements for the period from October 2017 to September 2018.

    d.An employment contract dated 7 February 2018 and a position description.

    e.Market salary evidence.

    f.Australian Business Register evidence of registration of the applicant’s ABN.

    g.Bank statements of the nominee.

    h.Photographs of the business premises.

    i.Bank statements of the applicant for periods between 30 January 2017 and 30 January 2019.

    j.Evidence of the nominee’s employment by the applicant.

    k.The applicant’s tax returns for the 2017 and 2018 financial years.

    l.Evidence of payment of utility accounts by the applicant.

    m.Bank statements of the applicant evidencing payment of training expenditure.

    n.Invoices relating to the applicant’s occupation of the business premises.

    o.Profit and loss statements for the 2017 and 2018 financial years.

    Evidence presented to the Tribunal

16. The applicant produced to the Tribunal the following:

    a.A copy of the delegate’s decision.

    Status of the nominator: reg 5.19(3)(b)

17. Regulation 5.19(3)(b) requires the nominator to be or have been the relevant standard business sponsor who is actively and lawfully operating a business in Australia. In addition, the nominator, as that standard business sponsor, must not have met certain criteria relating to the operation of a business overseas, in the most recent sponsorship approval.

18. Regulation 5.19(3)(b)(ii) requires the applicant to be actively and lawfully operating a business in Australia.

19. The Tribunal has considered the Department’s policy on the issue of active operation. The Tribunal is not bound by the policy but the Tribunal notes the finding of Brennan J in Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179 that the Tribunal should adopt the following practice: “When the Tribunal is reviewing the exercise of a discretionary power reposed in a Minister, and the Minister has adopted a general policy to guide him in the exercise of the power, the Tribunal will ordinarily apply that policy in reviewing the decision, unless the policy is unlawful or unless its application tends to produce an unjust decision in the circumstances of the particular case”.

20. The policy states that a business that has been actively operating for a period of more than 12 months should be able to provide appropriate financial documentation to support their claims of active operation. The applicant stated in the nomination application that it was established or commenced trading in Australia on 28 August 2013. The policy states that such businesses should be able to submit a balance sheet for the most recently concluded fiscal year (with comparative figures for the previous fiscal year) and profit and loss statement (statement of performance) for the most recently concluded fiscal year, with comparative figures for the previous fiscal year or business tax returns for the most recently concluded fiscal year. The Tribunal agrees that the approach suggested in the policy in relation to the issue of active operation is appropriate and has considered this application on that basis. The applicant produced to the Department activity statements for the period from October 2017 to September 2018, profit and loss statements (without balance sheets) for the 2017 and 2018 financial years and the applicant’s tax returns for those financial years. No more recent information has been provided by the applicant regarding its business activities.

21. The Tribunal’s request for information dated 17 February 2022 made it clear that, for the nomination to be approved, the Tribunal must be satisfied that all of the relevant criteria in regs 5.19(2) and (3) must be met at the time of the Tribunal’s decision.

22. Having regard to the lack of contemporary evidence before the Tribunal, bearing in mind that the applicant has failed to respond to the invitation issued pursuant to s 359(2) of the Act, the Tribunal is not satisfied that at the time of this decision the applicant is actively and lawfully operating a business in Australia. The Tribunal finds that the applicant does not satisfy the requirements of reg 5.19(3)(b)(ii).

23. Given the above, the requirement in reg 5.19(3)(b) is not met.

24. For the above reasons the Tribunal is not satisfied that the applicant meets the requirements of reg 5.19(3). The applicant has not sought to satisfy the criteria in the Direct Entry nomination stream, and as such has not met the requirements in reg 5.19(4). Accordingly, the nomination of the position cannot be approved. Therefore, the Tribunal must affirm the decision under review.

    DECISION

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

    Terrence Baxter
    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.

    Temporary Residence Transition nomination

    (3)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 person who holds a Subclass 457 … visa granted on the basis that the person satisfied the criterion in subclause 457.223(4) of Schedule 2; and

    (iii)     identifies an occupation, in relation to the position, that:

    (A)is listed in ANZSCO; and

    (B)has the same 4-digit occupation unit group code as the occupation carried out by the holder of the Subclass 457 … visa; and

    (iv)    identifies a need for the nominator to employ the person, as a paid employee, to work in the position under the nominator’s direct control; and

    (b)the nominator:

    (i)       is, or was, the standard business sponsor who last identified the holder of the Subclass 457 … visa in a nomination made under section 140GB of the Act or under regulation 1.20G or 1.20GA as in force immediately before 14 September 2009; and

    (ii)      is actively and lawfully operating a business in Australia; and

    (iii)     did not, as that standard business sponsor, meet regulation 1.20DA, or paragraph 2.59(h) or 2.68(i), in the most recent approval as a standard business sponsor; and

    (c)either:

    (i)       both of the following apply:

    (A)in the period of 3 years immediately before the nominator made the application, the holder of the Subclass 457 …visa identified in subparagraph (a) (ii) has:    

    (I)held one or more Subclass 457 visas for a total period of at least 2 years; and

    (II)been employed in the position in respect of which the person holds the Subclass 457 … visa for a total period of at least 2 years (not including any period of unpaid leave);

    (B)the employment in the position has been full-time, and undertaken in Australia; or

    (ii)      all of the following apply:

    (A)the person holds the Subclass 457 … visa on the basis that the person was identified in a nomination of an occupation mentioned in sub-subparagraph 2.72(10)(d)(iii)(B) or sub-subparagraph 2.72(10)(e)(iii)(B);

    (B)the nominator nominated the occupation;

    (C)the person has been employed, in the occupation in respect of which the person holds the Subclass 457 … visa, for a total period of at least 2 years in the period of 3 years immediately before the nominator made the application; and

    (d)for a person to whom subparagraph (c)(i) applies:

    (i)       the person will be employed on a full-time basis in the position for at least 2 years; and

    (ii)      the terms and conditions of the person’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)       the nominator:

    (A)fulfilled any commitments the nominator made relating to meeting the nominator’s training requirements during the period of the nominator’s most recent approval as a standard business sponsor; and

    (B)complied with the applicable obligations under Division 2.19 relating to the nominator’s training requirements during the period of the nominator’s most recent approval as a standard business sponsor; or

    (ii)      it is reasonable to disregard subparagraph (i); and

    Note Different training requirements apply depending on whether the application for approval as a standard business sponsor was made before 14 September 2009 or on or after that date.

    (g)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

    (h)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

    (i)there is a genuine need for the nominator to employ the person, as a paid employee, to work in the position under the nominator’s direct control.