GOLDEN AGE CINEMA & BAR PTY LTD (Migration)

[2018] AATA 4036

GOLDEN AGE CINEMA & BAR PTY LTD (Migration) [2018] AATA 4036 (20 August 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  GOLDEN AGE CINEMA & BAR PTY LTD

CASE NUMBER:  1700142

DIBP REFERENCE(S):  BCC2016/1505057

MEMBER:R. Skaros

DATE:20 August 2018

PLACE OF DECISION:  Sydney

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

Statement made on 20 August 2018 at 11:42am

CATCHWORDS
MIGRATION – Employer Nomination – approval of nomination – held one or more 457 visas – relevant 3 year period before nomination – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 359, 360, 363A
Migration Regulations 1994 (Cth), 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 Immigration on 14 December 2016 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 20 April 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 (r.5.19(3)) stream and a Direct Entry nomination (r.5.19(4)) stream. 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 Temporary Residence Transition nomination stream.

4. The delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19(3)(c)(i) of the Regulations because the delegate found that the nominee (Evan Kerivan) held one or more Subclass 457 visas for at least 2 years in the 3 years immediately before the nominator made the application.

5. On 27 June 2018 the Tribunal wrote to the review applicant pursuant to s.359 of the Act, inviting the review applicant to provide information about the requirements in r.5.19(3) for approval of the nomination in writing.

6. The invitation was sent to the last email address provided in connection with the review and advised that, if the information was not provided in writing by 11 July 2018, 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 they might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

7. The review applicant has not provided the information within the prescribed period and no extension has been granted. In these circumstances, s.359C 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.

8. On 12 July 2018 an officer of the Tribunal conducted an internal no reply to invitation check which confirmed that the invitation to comment was properly sent to the authorised recipient at the last email provided in connection with the review. The invitation has not been returned to sender. The applicant has been on notice of the issue in the review, namely whether the applicant meets the requirements in r.5.19(3)(c), since they were notified of the delegate’s decision in December 2016. The applicant has not provided any information or evidence to the Tribunal during the processing of the review to demonstrate that the nominee did hold one or more Subclass 457 visas for a total period of at least 2 years in the 3 years before the nomination application was made. In the circumstances, the Tribunal has decided to proceed to decision without taking further steps to obtain the information.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. 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 r.5.19(3), which is extracted in the attachment to this decision. For the nomination to be approved, all the requirements must be met.

    Previous employment of the nominee: r.5.19(3)(c)

11. Broadly speaking, to meet the requirement in r.5.19(3)(c), either:

    ·     the nominee must have been employed full time in Australia in the position for which he or she holds a Subclass 457 visa for at least 2 of the 3 years preceding the nomination application; or

    ·     the nominee holds a Subclass 457 visa on the basis that s/he was identified in a nomination of a specified occupation for that visa, the nominator nominated the occupation, and the nominee has been employed in that occupation for at least 2 years in the 3 years immediately before the application.

12. The information before the Tribunal indicates that the nominee held the Subclass 457 visa on the basis of a nomination in the occupation of Accommodation and Hospitality Manager. As this occupation is not one of the occupations specified in the relevant instrument for the purposes of r.5.19(3)(c)(ii), this provision is not relevant in the circumstances of this case. The alternative requirements in r.5.19(3)(c)(i) must therefore be met for the nomination to satisfy r.5.19(3)(c).

13. The information before the Tribunal, which is set out in the delegate’s decision record, indicates that the applicant applied for approval of the position in the nomination lodged with the Department on 20 April 2016. On this basis, the Tribunal considers that the relevant 3 years period before the nomination application, is between 19 April 2013 and 20 April 2016.

14. The decision record sets out the periods within which the nominee held a 457 visa as follows: The nominee was granted the first Subclass 457 visa on 29 April 2014 which ceased on 29 April 2015. On 4 August 2015, the nominee was granted a visa in a different Subclass (i.e. a Subclass 601) which ceased on 21 August 2015 when his second Subclass 457 visa was granted.

15. The above information indicates that the nominee, within the 3 years period immediately before the nomination application was made, held one or more 457 visas for a total period of approximately 19 months , as this is less than a period of at least 2 years the requirements in r. 5.19(c)(i)(A) is not satisfied.

16. As the requirement in r. 5.19(c)(i)(A) has not been satisfied, r.5.19(c)(i) is therefore not satisfied as a whole.

17. As the applicant does not meet r.5.19(c)(i) or (ii), the requirement in r.5.19(3)(c) is not met.

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

    DECISION

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

    R. Skaros
    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

    (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.