Green Pickles Industries Pty Ltd ATF the Lanza Family Trust (Migration)

[2020] AATA 4522

Green Pickles Industries Pty Ltd ATF the Lanza Family Trust (Migration) [2020] AATA 4522 (29 October 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Green Pickles Industries Pty Ltd ATF the Lanza Family Trust

CASE NUMBER:  1910029

HOME AFFAIRS REFERENCE(S):          BCC2018/817167

MEMBER:Mark Bishop

DATE:29 October 2020

PLACE OF DECISION:  Melbourne

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

Statement made on 29 October 2020 at 12:57pm

CATCHWORDS
MIGRATION – applicant for approval of nomination of position – direct entry nomination stream – genuine need for position – lack of particulars provided to department – no response to tribunal’s invitation to provide further information – 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(4)(h)(ii)(B)

CASES
Hasran v MIAC [2010] FCAFC 40
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
Minister for Immigration and Citizenship v Li [2013] HCA18
Yang v MIAC [2010] FMCA 890

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 4 April 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).

2. The applicant applied for approval on 20 February 2018. 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 nominator provided a copy of the decision record to the Tribunal. The decision record clearly outlined the fact the applicant provided limited supporting documentation to the Department. The delegate outlined the lack of particulars provided by the nominator that addressed sub regulation 5.19(4)(h)(ii)(B).

5. The delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19(4)(h)(ii)(B) of the Regulations as the nominator failed to provide sufficient information that substantiated the claim in respect of the genuine need for a paid employee in the identified position.

6. In this case the Tribunal formally wrote to the review applicant pursuant to s.359(2) of the Act inviting the review applicant to provide further information under the Direct Entry Nomination Scheme to the Tribunal, including information in relation to r.5.19(2) and (4) of the Regulations.

7. The Tribunal did not receive any response to the before mentioned written invitation within time. That is the review applicant has not provided the Tribunal with any further information within time other than that which was provided to the Department.

8. The Tribunal is satisfied that the review applicant was properly sent an invitation to provide further information under s.359(2) of the Act. The invitation was sent to the review applicant’s nominated address, being an address provided by the review applicant in connection with this application for review.

9. As the applicant failed to respond within the prescribed period, s.359C(1) 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 them to appear see Hasran v MIAC [2010] FCAFC 40 at [26]; Yang v MIAC [2-010] FMCA 890 at [40].

10. The Tribunal has considered whether, in the circumstances of this case, information that the review applicant meets the requirements of the Act and Regulations is likely to be forthcoming and whether the review applicant has had a fair opportunity to provide relevant information already.

11. The Tribunal has given consideration to 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 the review application. In doing so, the Tribunal has had regard to the decisions in 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 have held that the Tribunal is not required to indefinitely defer its decision-making processes. It has also had regard to Minister for Immigration and Citizenship v Li [2013] HCA18 (8 May 2013) regarding the reasonableness of any request for an adjournment, and the Full Federal Court decision in Minister for Immigration and Border Protection v Singh [2014] FCAFC (4 February 2014) which considered analogous issues, as well as the recent decision of Kaur v Minister for Immigration and Border Protection [2014 FCA 915 (28 August 2014).

12. The applicant did not respond to a Request for Information made on 9 October 2020. At the time of decision only 20 days have elapsed.

13. In these circumstances, for the reasons set out in this decision record above, the Tribunal considers that the review applicant has had a fair opportunity to provide relevant information.

14. 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 review applicant more time. In these circumstances, the Tribunal has decided to proceed to make a decision having regard to the information it has before it, including the information previously provided by the review applicant to the Department.

15. Ultimately, a decision maker is not required to make the review applicant’s case. It is for the review applicant to satisfy the Tribunal that the requirements of the Act and Regulations have been met. Although the concept of onus of proof is not appropriate to administrative decision-making, the relevant facts of the individual case have to be supplied by the review applicant, in as much detail as is necessary to enable the examiner to establish the relevant facts.

16. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    CONSIDERATION OF CLAIMS AND EVIDENCE

17. 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.

    Tasks of the position genuine need for the position and training requirements r.5.19(4)(h)

18. Regulation 5.19(4)(h) contains a number of alternative requirements. These are set out in detail in the attachment to the decision but can be briefly summarised as requiring either that:

    ·the tasks to be performed in the position will be performed in Australia and correspond to those of an occupation specified by the Minister for the relevant instrument the occupation is applicable to the proposed employee in accordance with any specifications made in that instrument, there is a genuine need for the nominee to be employed as a paid employee in the position, and certain specified training requirements are met; or

    ·the position and nominator’s business is located in regional Australia, there is a genuine need for the nominee to be employed as a paid employee in the position under the nominator’s direct control, the position cannot be filled by a locally resident Australian citizen or permanent resident, the tasks of the position correspond to those of an occupation specified in the relevant legislative instrument, the occupation is applicable to the proposed employee in accordance with the specification of the occupation, and that a regional certifying body has advised the Minister about certain matters relating to the position.

19. The delegate outlined that on 20 February 2018, Green Pickles Industries Pty Ltd ATF The Lanza Family Trust lodged a nomination application under the Direct Entry stream of the Regional Sponsored Migration Scheme (RSMS) for the position of Retail Manager (General) 142111.The nomination was lodged in favour of Mr Anthony Lincy (date of birth: 07/11/1987). The base salary offered to the nominee is $45,000.00 per annum.

20. The delegate outlined the nominating business nominating business operates two Discovery Cycles stores specialising in cycling equipment in Smithfield and Cairns, Queensland. The business also has an online store. In the nomination application, the nominator advised that the business was established or commenced trading in Australia on 20 November 2012 and employs a total of 11 employees, comprising 10 Australian employees and 1 overseas employee.

    Consideration of Subregulation 5.19(4)(h)(ii)(B)

21. The delegate outlined the nominator had provided a range of documentation to the Department of Home Affairs (the Department) in support of the application, including the following:

    ·Employment contract dated 20 February 2018 including a position description for the position Retail Store Manager and Overall Area Manager

    ·Organisation chart

    ·Form 1404 signed by Cairns Chamber of Commerce

22. The delegate outlined the occupation of Retail Manager (ANZSCO 142111) is a Skill Level 2 occupation found on the instrument and is described as follows in the ANZSCO dictionary:

    ·Organise and control the operations of establishments which provide retail services

23. The delegate gave weight to the contract provided and the position description included with the contract.

24. The delegate outlined that the contract and the position description state that the nominated position is Retail Store Manage and Overall Area Manager.

25. The delegate went onto make a series of findings addressing the following matters:

    ·Current staffing profile;

    ·Organisational chart;

    ·Managerial positions and location across the organisation;

    ·Inconsistencies between the organisational chart and position responsibilities of nominated persons in nominated positions;

    ·The relevance of Form 1404;

    ·The need for independent assessment concerning Regulation 5.19(4)(h)(ii)(B)

26. The delegate made a finding as follows:

    • For the purposes of assessing the above sub regulation, I have considered if the nominating employer has identified a genuine need for a paid employee in its business operations.
    • Whilst I acknowledge that, as declared on the application form, the applicant’s business was established or commenced trading in Australia from November 2012 and employs a total of 11 staff, the applicant has not provided any other claims or sufficient information explaining why there is a genuine need for a paid employee to work in the nominated position under the nominator's direct control.
    • I find that the current staffing profile of the business does not support the nominator’s claim that there is a genuine need for a retail manager. The nominator has not demonstrated or provided reasoning as to why the nominated position would be responsible for the organisation and control of the store when there are three senior management positions in the organisation.
    • The applicant has not adequately described how the nominated position fits into organisational structure. The application has also not identified whether this is a newly created position or if it has become available through natural attrition.
    • Based on the above assessment, I find that the application for approval has not identified a need for the nominator to employ a paid employee to work in the position under the applicant’s direct control. I therefore find that the applicant does not mee the requirements of subregulation 5.19(4)(h)(ii)(B)
    • Since the nominator does not meet regulation 5.19(4)(h)(ii)(B). I therefore find that regulation 5.19(4)(h)(ii) does not apply to the nomination.

27. On 9 October 2020 the Tribunal wrote to the applicant under s.359(2) seeking updated information that addressed relevant criteria in r.5.19 of the regulations. This Request for Information addressed the matters outlined above and otherwise contained in the delegate’s decision.

28. The nominator did not provide any additional information or a written submission to the Tribunal. Accordingly the only information before the Tribunal is the material on the Departmental file and the decision record.

29. Regulation 5.19(4)(h)(ii)(B) requires nomination application identifies there is a genuine need for the nominator to employ a paid employee to work in the position under the nominator's direct control. In assessing whether there is a genuine need for a paid employee in the position of a Retail Store Manager and Area Manager the Tribunal has made the following considerations based on the documents and information outlined above.

30. The Tribunal has examined all of the information contained on the Departmental file. The applicant has not challenged the findings of the delegate in any way. The applicant has not outlined any errors in the findings of the delegate. The applicant has not provided any information to the Tribunal that outlines fault in the reasoning or findings of the delegate. The Tribunal is satisfied the narrative outlined by the delegate as based upon information on the Departmental file is in all material respects correct. The Tribunal is satisfied the findings of the delegate as based upon information on the Departmental file are correct. The applicant has not challenged these findings in any way. The Tribunal gives weight to these findings.

31. Having assessed the information provided the Tribunal finds that the nominator has not identified there is a genuine need for the nominator to employ a paid employee to work in the position under the nominator's direct control. Therefore regulation 5.19(4)(h)(ii)(B) is not met. Accordingly, nominator does not satisfy regulation 5.19(4)(h)(ii).

32. Since regulation 5.19(4)(h)(ii) is not met, the nominator does not satisfy regulation 5.19(4).

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

    CONCLUDING PARAGRAPHS

34. 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.

35. Therefore, the Tribunal must affirm the decision under review.

    Decision

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

    Mark Bishop

    
    

    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).