ISIP AUSTRALIA PTY LTD (Migration) - [2018] AATA 2916

ISIP AUSTRALIA PTY LTD (Migration) [2018] AATA 2916 (26 June 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  ISIP AUSTRALIA PTY LTD
CASE NUMBER:  1606992
DIBP REFERENCE(S):  BCC2015/2955528
MEMBER:Sheridan Lee
DATE:26 June 2018
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision under review to refuse the nomination.

Statement made on 26 June 2018 at 12:09pm
CATCHWORDS
Migration – Nomination – Not a genuine position – Direct Entry Nomination stream – Unsatisfactory compliance with workplace relations obligations – Decision under review affirmed
LEGISLATION
Migration Act 1958, s.359A
Migration Regulations 1994, Schedule 2, rr 5.19, 1.13A, 1.13B,
Superannuation Guarantee (Administration) Act 1992
Workplace Injury Rehabilitation and Compensation Act 2013
CASES
Nice Shoes Pty Ltd v MIMIA [2004] FCA 252
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration on 28 April 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).
The applicant applied for approval on 9 October 2015. 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).
In this case, the applicant has applied for approval of a nomination, seeking to satisfy the criteria in the Direct Entry Nomination stream.
The delegate refused the application on the basis the applicant’s nomination did not satisfy the requirements in sub regulations 5.19(4)(a)(ii), (e), (h)(i) and (h)(i)(B) of the Regulations because there was insufficient evidence to establish:
·a need for a paid employee to work in the position under the direct control of the nominator
·if the terms and conditions of employment would be no less favourable to an Australian citizen or permanent resident performing equivalent work
·that the tasks would correspond to an occupation specified by the Minister
·that the company had met the training benchmark.
Ms Jinhua Wang, Director of ISIP Australia Pty Ltd, appeared before the Tribunal on 1 June 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
The applicant was represented in relation to the review by its registered migration agent. The representative attended the Tribunal hearing.
For the following reasons, the Tribunal has decided to affirm the decision under review to refuse the nomination.
CONSIDERATION OF CLAIMS AND EVIDENCE
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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2018] AATA 2916
Decision Date: 26 June 2018

CaseChat Overview and Summary

This matter concerned an appeal by ISIP Australia Pty Ltd against a decision to refuse its nomination under the Direct Entry nomination stream. The core dispute revolved around whether the applicant met the various requirements stipulated in regulation 5.19(4) of the Migration Regulations 1994 for the approval of a nominated position.

The Tribunal was required to determine if ISIP Australia Pty Ltd satisfied all the criteria for nomination approval, specifically focusing on whether there was a genuine need for the nominated position, if the nominator was actively and lawfully operating a business in Australia, and if there was any adverse information known to Immigration concerning the nominator or associated persons. The Tribunal also considered whether the nominated position itself was genuine and if the applicant had provided sufficient evidence to demonstrate compliance with all relevant regulatory requirements.

The Tribunal affirmed the decision to refuse the nomination, finding that ISIP Australia Pty Ltd had not satisfied the requirements of regulation 5.19(4). This conclusion was based on adverse information contained within the Department's file, including allegations of involvement in organised visa fraud and concerns that the business may not be operating, supported by evidence from a site visit in 2014 where no staff were present and the premises appeared insufficient for more than three employees. The Tribunal considered this information relevant to criteria concerning the need for a paid employee, the lawful operation of the business, the existence of the position, and the performance of tasks in Australia. As the applicant had not sought to satisfy the criteria under the Temporary Residence Transition Nomination stream, and had failed to meet the requirements of regulation 5.19(4), the nomination could not be approved.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

For the following reasons, the Tribunal has decided to affirm the decision under review to refuse the nomination.CONSIDERATION OF CLAIMS AND EVIDENCE 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.No adverse information known to Immigration: r.5.19(4)(f) Regulation 5.19(4)(f) requires that there is no adverse information known to Immigration about the nominator or person associated with the nominator; or it is reasonable to disregard any such information. For these purposes, ‘adverse information’ and ‘associated with’ have the meaning given in rr.1.13A and 1.13B. The Tribunal notes that the definition of adverse information in r.1.13A is not exhaustive and as such considered the below information to fall within the scope of its consideration. On 19 April 2018, the Tribunal wrote to invite the applicant to comment on or respond to information that would, subject to any comments or response, be the reason, or a part of the reason, for affirming the decision under review, pursuant to s.359A of the Act. The letter outlined that the Department file contains notes indicating it - ·received allegations that the registered migration agent is involved in a ‘complex network of companies onshore and offshore to facilitate organised visa fraud in the business visa case load’·had concerns that ISIP Australia Pty Ltd may not be operating. The business address was visited in 2014 and no staff were present. In addition, the accommodation did not appear to have sufficient space for more than 3 full-time employees. The Tribunal explained that the information was relevant to the review because it is a requirement for the grant of the nomination that the following criteria are met: ·r.5.19(4)(a)(ii) requires the application to identify a need for the nominator to employ a paid employee to work in the position under the nominator’s direct control;·r.5.19(4)(b)(i) requires that the nominator is actively and lawfully operating a business in Australia;·r.5.19(4)(d) requires the employee to be employed on a full-time basis in the position for at least 2 years, and the terms and conditions of employment will not include an express exclusion of the possibility of extending the period of employment; and·r.5.19(4)(h)(i)(A) requires that 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. The letter outlined that the information suggests that the nomination application for ISIP Australia may not be genuine, that the business is not lawfully operating and that the position does not exist. Further, the applicant was advised that if this information was accepted as correct by the Tribunal, the Tribunal may find that the nomination does not meet the requirements in r.5.19(4)(a)(ii), (4)(b)(i), (4)(d) or (4)(h)(i)(A).

Decision

Reasons for decision

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 The Tribunal affirms the decision under review to refuse the nomination.Sheridan LeeMemberATTACHMENT - EXTRACTS FROM THE MIGRATION REGULATIONS 19945.19Approval of nominated positions (employer nomination)…(2)The application must:(a)be made in accordance with approved form 1395…; 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) both 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;(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 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).

Ratio Decidendi

Legal Principle Established

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.No adverse information known to Immigration: r.5.19(4)(f) Regulation 5.19(4)(f) requires that there is no adverse information known to Immigration about the nominator or person associated with the nominator; or it is reasonable to disregard any such information. For these purposes, ‘adverse information’ and ‘associated with’ have the meaning given in rr.1.13A and 1.13B. The Tribunal notes that the definition of adverse information in r.1.13A is not exhaustive and as such considered the below information to fall within the scope of its consideration. On 19 April 2018, the Tribunal wrote to invite the applicant to comment on or respond to information that would, subject to any comments or response, be the reason, or a part of the reason, for affirming the decision under review, pursuant to s.359A of the Act. The letter outlined that the Department file contains notes indicating it - ·received allegations that the registered migration agent is involved in a ‘complex network of companies onshore and offshore to facilitate organised visa fraud in the business visa case load’·had concerns that ISIP Australia Pty Ltd may not be operating. The business address was visited in 2014 and no staff were present. In addition, the accommodation did not appear to have sufficient space for more than 3 full-time employees. The Tribunal explained that the information was relevant to the review because it is a requirement for the grant of the nomination that the following criteria are met: ·r.5.19(4)(a)(ii) requires the application to identify a need for the nominator to employ a paid employee to work in the position under the nominator’s direct control;·r.5.19(4)(b)(i) requires that the nominator is actively and lawfully operating a business in Australia;·r.5.19(4)(d) requires the employee to be employed on a full-time basis in the position for at least 2 years, and the terms and conditions of employment will not include an express exclusion of the possibility of extending the period of employment; and·r.5.19(4)(h)(i)(A) requires that 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. The letter outlined that the information suggests that the nomination application for ISIP Australia may not be genuine, that the business is not lawfully operating and that the position does not exist. Further, the applicant was advised that if this information was accepted as correct by the Tribunal, the Tribunal may find that the nomination does not meet the requirements in r.5.19(4)(a)(ii), (4)(b)(i), (4)(d) or (4)(h)(i)(A). The applicant received copies of the relevant notes from the departmental file through its migration agent.