H DU & H.Q WU (Migration)

[2022] AATA 3037

H DU & H.Q WU (Migration) [2022] AATA 3037 (18 August 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  H DU & H.Q WU

CASE NUMBER:  1916310

HOME AFFAIRS REFERENCE(S):          BCC2017/4619098

MEMBER:Karen McNamara

DATE:18 August 2022

PLACE OF DECISION:  Sydney

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

Statement made on 18 August 2022 at 1:25pm

CATCHWORDS
MIGRATION – nomination – Direct Entry nomination stream – Cook – applicant failed to provide the requested information within the prescribed period – applicant has failed to identify a need for the nominator to employ the nominee –decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 245AR, 359, 360, 363
Migration Regulations 1994, r 5.19

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 Citizenship v Li [2013] HCA 18
Minister for Immigration and Border Protection v Singh [2014] FCAFC 1
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 1 June 2019 to reject the application by H DU & H.Q WU (the applicant) 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 applied for approval on 5 December 2017. 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 Direct Entry nomination stream.

4. The delegate refused the application because the applicant did not meet r.5.19(4)(h)(ii) (B). The delegate found that the application for approval did not demonstrate a genuine need for the nominator to employ the nominee, as a paid employee, to work in the position under the nominator’s direct control. Since r.5.19(4)(h)(ii) (B) was not met, the applicant subsequently did not meet r.5.19(4)(h).

5. The applicant lodged an application for review with the Tribunal on 21 June 2019. The review application was accompanied by a copy of the delegate’s decision. No additional information was provided. The Tribunal also has before it the Department file containing all information before the delegate at the time of their decision.

6. On 26 July 2022, the Tribunal wrote to the review applicant pursuant to s.359(2) of the Migration Act 1958 (the Act), inviting the review applicant to provide updated and current information about the various requirements in rr.5.19(2) and (4). The letter also advised that, in order for the nomination of a position to be approved, the Tribunal must be satisfied that all of the relevant criteria in r.5.19 are met at the time of its decision.

7. The invitation was sent to the authorised recipient at the last email address provided in connection with the review and advised that, if the information was not provided in writing by 9 August 2022, 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.

8. As at the time of this decision the Tribunal has received no response from the applicant or an authorised representative of the applicant.

9. Where an applicant is invited to provide further information in accordance with subsection 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 (subsection 359C(1) of the Act), and pursuant to s.360(3) of the Act, 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; (2010) 183 FCR 413 at [26]; and Yang v MIAC [2010] FMCA 890 at [40].

10. Accordingly, as the applicant failed to provide the information requested within the prescribed period, the applicant has lost the right to appear before the Tribunal to give evidence and present arguments relating to this review application.

11. 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 its 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. It has also had regard to the decision in Minister for Immigration and Citizenship v Li [2013] HCA 18 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 1 which considered this issue, as well as the decision in Kaur v Minister for Immigration and Border Protection [2014] FCA 915 where analogous issues were discussed.

12. The Tribunal considered whether, in the circumstances of this case, the information that the applicant meets the requirements in r.5.19(4) of the Regulations is likely to be forthcoming and whether the applicant has had a fair opportunity to provide the relevant information or documents already, and the significance of the information or documents to the applicant.

13. The Tribunal has had regard to the fact that the application was refused by the Department on 1 June 2019, because the delegate concluded that the applicant had not demonstrated it met the requirements of r.5.19(4)(h)(ii) (B). 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 over three years of the reasons for the nomination refusal. Since lodging the review application, the applicant has not engaged with the Tribunal and there has been no request for an extension of time within which to respond to the Tribunal’s request for information or reasons provided for lack of response.

14. The Tribunal has also taken into account the fact that the implications of not providing the information requested in the invitation from the Tribunal, were set out in the Tribunal’s letter of 26 July 2022.

15. The Tribunal is satisfied that the invitation to provide information was sent to the authorised recipient at the correct email address. The invitation was not returned to sender as undeliverable mail. To date, the requested information has not been provided.

16. 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 and, in the circumstances, the Tribunal has decided to proceed to a decision without taking further steps to obtain the information.

17. Accordingly, the Tribunal has decided not to exercise its discretion under s.359C(1) to take further steps to obtain information from the applicant, or to exercise its discretion under s.363(1)(b) 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).

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

19. 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 reg 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 reg 5.19(4)(h)

20. 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 in the relevant instrument, the occupation is applicable to the proposed employee in accordance with any specifications made in that instrument, and 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.

21. In this case, the applicant claims to meet the requirements in r.5.19(4)(h)(ii).

22. The review applicant nominated the position/occupation of Cook (ANZSCO 351411). On 1 June 2019, the delegate refused the application because the applicant did not meet r.5.19(4)(h)(ii) (B) because the application for approval did not demonstrate 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.

23. On 26 July 2022, the Tribunal invited the applicant to provide information including the genuine need to employ the nominee as a paid employee to work in the nominated position under the applicant’s direct control. As noted above, no response has been received to the Tribunal’s invitation to provide information.

24. The applicant has not provided current information about the genuine need to employ the nominee to work in the nominated position. As such the Tribunal is unable to be satisfied at the time of this decision that the applicant (the nominator) demonstrated there is a genuine need to employ the person identified under subparagraph (a)(ii), as a paid employee, to work in the position under the nominator’s direct control. Accordingly, the Tribunal is not satisfied that r.5.19(4)(h)(ii) (B) is met and therefore the applicant does not satisfy the requirements r.5.19(4)(h)(ii).

25. It follows that the requirements in r.5.19(4)(h) are not met.

26. As the Tribunal has found that the applicant has not met r.5.19(4)(h), it is not required to consider the rest of the requirements as set out in r.5.19(4).

27. For the above reasons the Tribunal is not satisfied that the applicant meets the requirements of reg 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 reg 5.19(3). Accordingly, the nomination of the position cannot be approved. Therefore, the Tribunal must affirm the decision under review.

    DECISION

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

    Karen McNamara
    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 an identified person, as 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).