Insta-gator Pty Ltd (Migration)

[2021] AATA 597

Insta-gator Pty Ltd (Migration) [2021] AATA 597 (2 March 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Insta-gator Pty Ltd

CASE NUMBER:  1822095

HOME AFFAIRS REFERENCE(S):          BCC2017/4548852

MEMBER:Phoebe Dunn

DATE:2 March 2021

PLACE OF DECISION:  Melbourne

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

Statement made on 02 March 2021 at 10:34am

CATCHWORDS
MIGRATION – application for approval of nomination of position – temporary residence transition stream – training requirements – change to requirements during most recent sponsorship period – no response to tribunal’s invitation to provide information – not reasonable to disregard non-compliance – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 359, 359C, 360, 363A
Migration Regulations 1994 (Cth), r 2.87B, 5.19

CASE
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 12 July 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 30 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 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)(f)(i) of the Regulations because the applicant failed to demonstrate that it had met its training benchmark commitments and obligations under either Training Benchmark A or B and it was not reasonable to disregard those requirements under r.5.19(3)(f)(ii).

5. On 21 January 2021, the Tribunal wrote to the applicant pursuant to s.359(2) of the Migration Act 1958 (the Act), inviting the applicant to provide updated and current information about the various requirements in r.5.19(2) and r.5.19(3). 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(2) and r.5.19(3) are met at the time of its decision.

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 4 February 2021 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 applicant has not provided the information within the prescribed period and no extension has been requested or granted. In these circumstances, s.359C of the Act applies and pursuant to s.360(3) 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.

8. The Tribunal is satisfied that the invitation to provide information was sent to the correct email address. The invitation was not returned to sender as undeliverable mail. To date, the requested information has not been provided and the applicant has not made any contact with the Tribunal to indicate that the information is forthcoming. The Tribunal is not required to delay indefinitely making its decision. In the circumstances, the Tribunal has decided to proceed to a decision without taking further steps to obtain the information.

9. The applicant was represented in relation to the review by its registered migration agent, Mrs Elaine Nunez.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. 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.

    Training commitments and obligations: r.5.19(3)(f)

12. Regulation 5.19(3)(f) requires the applicant to have fulfilled any commitments made relating to meeting training requirements, and complied with applicable obligations relating to training  requirements, during the period of the applicant’s most recent sponsorship approval.  These requirements may be disregarded if it is reasonable to do so.

13. The Tribunal’s letter to the applicant dated 21 January 2021, invited the applicant to provide updated and current information about all the requirements in r.5.19(3), including the requirement in r.5.19(3)(f) relating to training. The Tribunal advised that, for the nomination to be approved, the Tribunal must be satisfied that all of the relevant criteria are met at the time of the decision. As stated above, the applicant did not respond to the Tribunal’s invitation and no updated and current information has been received. As the applicant has not provided the information requested, the Tribunal is unable to be satisfied at the time of this decision that the applicant meets the requirements for approval of the nomination.

14. The delegate refused the nomination on the basis that there was insufficient evidence given to substantiate compliance with the applicant’s training benchmark commitments and obligations under r.5.19(3)(f)(i) and it was not reasonable to disregard those requirements under r.5.19(3)(f)(ii).

15. The applicable instrument is IMMI 17/045.  For the purposes of Training Benchmark B, it provides the applicant is required to establish recent expenditure to the equivalent of at least 1% of the payroll of the business, in the provision of training of employees of the business who are Australian citizens and permanent residents.  The business is also required to demonstrate that the training is related to the purpose of the business.

16. The applicant’s most recent standard business sponsorship (SBS) was approved on 3 May 2016 for a period of five years to 3 May 2021.  In its application, the applicant has stated that it is seeking to establish compliance with Training Benchmark B.  The applicant provided the following document with its application:

    a.Letter from the applicant’s accountant dated 31 October 2017, stating that from the period from October 2016 to October 2017, the applicant’s total payroll was $4,028,562.12, with expenditure on training of $47,109.39 over the last 12 months (for a formal course of study and payments to a registered training organisation).  The applicant’s accountant also states that the director/manager of the business understands its obligations relating to training and will maintain a minimum of 1% of the annual wages and superannuation on training Australian citizens or permanent resident employees.

17. In its application, the applicant states that it expended $47,109 on training in the last 12 months, with a gross payroll of $4,028,562.  The applicant also stated that it employed a Subclass 457 visa holder in the first year of the most recent SBS and that it expended $3,915,639 on payroll and $37,837 on training an Australian citizen or permanent resident during that first SBS year.  No other documents were provided with the application to substantiate this expenditure.

18. The Tribunal notes that when the nomination was lodged on 30 November 2017, the applicant was required to comply with the training benchmark commitments and obligations set out in r.5.19(3)(f) as it applied at that time. These requirements have since been replaced with the requirement to pay the ‘Skilling Australians Fund’ training contribution charge by the Migration Amendment (Skilling Australians Fund) Act 2018 and the Migration Amendment (Skilling Australians Fund) Regulations 2018 (the amending Regulations). The new training contribution charge requirement applies to nomination applications made on or after 12 August 2018.

19. Relevantly for the applicant in this case, the obligation in r.2.87B of the Regulations for sponsors to meet the training benchmarks was repealed by item 33 of the amending Regulations from 12 August 2018, and there is a transitional provision exempting a sponsor from complying with the repealed r.2.87B in relation to a period of 12 months ending on or after 12 August 2018.

20. This means that for the applicant’s most recent SBS, the applicant is exempt from complying with r.2.87B for the third year of the most recent SBS as it ended after 12 August 2018. However, the requirement to ‘fulfil any commitments’ under r.5.19(3)(f)(i)(A) remains. There is no evidence before the Tribunal that the applicant made any other commitments relating to training beyond complying with the r.2.87B obligations.

21. Notwithstanding this, as the applicant failed to response to the Tribunal’s invitation to provide updated and current information to support its application, including evidence that the applicant has met its training benchmark commitments and obligations, the Tribunal has no current information on which to establish whether or not the applicant met these commitments and obligations during the first two years of the most recent SBS. With the exception of the letter from the applicant’s accountant and information submitted on the application form, the Tribunal has no information on which to establish compliance with r.5.19(3)(f)(i). The Tribunal notes in particular, that it has no information or documents on which to establish that the applicant expended $37,837 in the first year of the most recent SBS training Australian citizen or permanent resident employees on matters relevant to the business, such as receipts from registered training organisations, details of what training was undertaken or information regarding who undertook the training and their residency status. The Tribunal notes further that it has no information before it on which to assess compliance with these requirements in the second year of the most recent SBS. The applicant has not made any submissions regarding whether it is reasonable to disregard any non-compliance with these commitments and obligations under r.5.19(3)(f)(ii).

22. The Tribunal notes that the applicant has been aware of the reasons for refusal of the application at first instance since 12 July 2018, over two and a half years ago. The Tribunal invited the applicant to provide updated and current information addressing this requirement as well as the other criteria in r.5.19(3) and none has been forthcoming. The Tribunal has no verifiable information on which to establish the applicant’s claims that it complied with these requirements in year 1 of the most recent SBS by spending $37,837 on training an Australian citizen or permanent resident on matters relevant to the business, and no information regarding expenditure on training for the second year of the most recent SBS. As such, the Tribunal finds that r.5.19(3)(f)(i) is not met.

23. The Tribunal has considered whether it is reasonable in the circumstances to disregard the non-compliance with r.5.19(3)(f)(i). The Tribunal notes that the applicant did not make any submissions regarding the application of r.5.19(3)(f)(ii) at first instance or on review. As the applicant did not respond to the Tribunal’s request for information under s.359(2) of the Act and has not engaged with the Tribunal since lodging its application for review of the delegate’s decision on 31 July 2017, the Tribunal does not consider it is reasonable to disregard these requirements under r.5.19(3)(f)(ii).

24. Accordingly, the Tribunal finds that r.5.19(3)(f) is not met.

25. As the Tribunal has found that r.5.19(3)(f) is not met, it is not required to consider the remaining criteria in r.5.19(3).

26. 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 the 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

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

    Phoebe Dunn
    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.