Insight Cleaning Australia Pty Ltd (Migration)

[2020] AATA 5871

Insight Cleaning Australia Pty Ltd (Migration) [2020] AATA 5871 (4 December 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Insight Cleaning Australia Pty Ltd

CASE NUMBER:  1813484

HOME AFFAIRS REFERENCE(S):          BCC2017/4276713

MEMBER:Michelle East

DATE:4 December 2020

PLACE OF DECISION:  Perth

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

Statement made on 04 December 2020 at 1:08pm

CATCHWORDS
MIGRATION – Employer Nomination – approval of nominated position – Direct Entry Nomination – training requirements – nominator operated for less than 12 months – evidence of an auditable training plan – no response to s.359(2) invitation – Tribunal declined indefinite adjournment of decision – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 359C, 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 Home Affairs on 5 May 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 15 November 2017. 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. The applicant submitted a copy of the primary decision with the application.

4. The applicant was represented in relation to the review by its registered migration agent.

5. The delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19(4)(h)(i)(B)(II) of the Regulations as the nominator had operated for less than 12 months at the time the nomination was lodged and had not provided any evidence of an auditable training plan.

6. On 9 November 2020, the Tribunal wrote to the applicant pursuant to s.359(2) of the Act. The Tribunal’s letter advised that the applicant was required to meet the criteria in r.5.19(4) of the Regulations. The letter invited the applicant to provide information in writing that will demonstrate the applicant meets all of the requirements of r.5.19(4).

7. The invitation was sent to the applicant’s representative as stated on the application for review. The applicant was advised that if the information was not provided in writing by 23 November 2020 or the applicant had not made a request for an extension of time in which to provide information, the Tribunal may make a decision on the review without taking further steps to obtain the information and the applicant would lose any entitlement it might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

8. The applicant has not provided the information within the time period given, or at all. In these circumstances, s.359C applies and pursuant to s.360(3) of the Act the applicant is not entitled to appear before the Tribunal. The effect of s.363A of the Act is that if an 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.

9. The Tribunal has also considered whether it should adjourn the review under subsection 363(1)(b) of the Act to allow the applicant additional time in which to provide further evidence to support the review application.

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

11. The Tribunal has had regard to the fact that the nomination application was refused by the Department on 5 May 2018. The applicant submitted a copy of the primary decision record with the review application.

12. With its acknowledgement letter of 10 May 2018, the Tribunal invited the applicant to provide material or written arguments in support of the review application. The applicant has not done so.

13. The Tribunal wrote to the applicant under subsection 359(2) of the Act inviting the applicant to provide material or written arguments in support of the review application. The applicant has not done so.

14. In the circumstances, the Tribunal considers 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 subsection 363(1)(b) of the Act to adjourn the review any further. The Tribunal has determined to make a decision on the review  without taking any further action to obtain the information in accordance with section 359C of the Act.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

16. 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)

17. 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, 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.

18. The applicant lodged its nomination application on 15 November 2017.  The Tribunal has had regard to information located in the Department’s file.  In their application form the applicant stated that they commenced trading in Australia on 12 December 2016.

19. With respect to the training benchmarks, the applicant stated they had met training benchmark B.  The type of training was expressed as ‘expenses for accessing an online learning program’.  They stated their gross payroll for the last 12 months was $273,009 and their gross training expenditure was $3850.  No further evidence was provided with the application.

20. As the applicant has stated that at the date of their application they had not been trading in Australia for at least 12 months, r.5.19(4)(h)(i)(B)(II) applies. This requires the applicant nominator to have an auditable plan for meeting the requirements specified in the instrument mentioned in sub-sub-subparagraph (I).

21. At the date of the delegate’s decision details of an auditable plan had not been provided.

22. The Tribunal has carefully reviewed all the evidence on the Departmental and Tribunal file and finds that no details of an auditable plan had been provided.

23. Given the time that has elapsed and the lack of any current and up to date evidence of the applicant’s current workforce, training expenditure or training plans the Tribunal cannot be satisfied that the applicant meets r.5.19(4)(h)(i)(B)(II).

24. As r.5.19(4)(h)(i) is not met and r.5.19(4)(h)(ii) does not apply, r.5.19(h) is not met.

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

26. 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

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

    Michelle East
    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).