ISMAIL, AHMER ARIF (Migration)

[2019] AATA 6452

ISMAIL, AHMER ARIF (Migration) [2019] AATA 6452 (19 December 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  ISMAIL, AHMER ARIF

CASE NUMBER:  1727909

DIBP REFERENCE(S):  BCC2016/764906

MEMBER:R. Skaros

DATE:19 December 2019

PLACE OF DECISION:  Sydney

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

Statement made on 19 December 2019 at 11:25am

CATCHWORDS
MIGRATION – nomination refusal– Temporary Residence Transition Nomination stream – adverse information known about the applicant – sponsor was previously barred as a sponsor – no longer be actively and lawfully operating business in Australia – applicant failed to respond to the requested information

LEGISLATION
Migration Act 1958, ss 245, 359, 360, 363
Migration Regulations 1994, 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 Immigration on 24 October 2017 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 23 February 2016 seeking to satisfy the criteria in the Temporary Residence Transition Nomination stream. The delegate refused the application on the basis that the nomination did not satisfy r.5.19(3)(g) of the Regulations because there was adverse information known about the applicant, namely that it was barred from making future applications for approval as a standard business sponsor until August 2022, which the delegate did not consider reasonable to disregard.

3. A copy of the delegate’s decision record was provided to the Tribunal with the application for review.

4. During the process of the review, the Tribunal became aware of information from the Australian Securities and Investment Commission (ASIC) and the Australian Business Register suggesting that the review applicant may no longer be actively and lawfully operating business in Australia.

5. On 2 December 2019, the Tribunal wrote to the review applicant pursuant to s.359A of the Migration Act 1958 (the Act), inviting the review applicant to comment on or respond to information that the Tribunal considered would, subject to the applicant’s comments or response, be a reason or part of the reason for affirming the decision under review.

6. The invitation was sent to the review applicant at the last email address provided in connection with the review and advised that, if the review applicant did not comment on or respond in writing by 16 December 2019 the Tribunal may make a decision on the review without taking further action to obtain the review applicant’s views on the information and that the review applicant would also lose any entitlement it might otherwise have had under the Act to appear before the Tribunal to given evidence and present arguments.

7. The review applicant did not comment on or respond to the information within the prescribed period and no extension has been requested or granted. In these circumstances, s.359C 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 him or her to appear: Hasran v MIAC [2010] FCAFC 40.

8. The Tribunal is satisfied that the invitation to comment on or respond was sent to the correct email address. The invitation was not returned to sender as undeliverable mail. To date, the review applicant’s written comments or response have not been provided and the applicant has not made any contact with the Tribunal to indicate that comments or a response are forthcoming. The Tribunal is not required to delay indefinitely making its decision. In the circumstances, the Tribunal has decided to proceed to decision without taking further steps to obtain the information.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. 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.

11. Regulation 5.19(3)(b)(ii) requires the nominator to be actively and lawfully operating a business in Australia.  

12. In its application for an Employer Nomination for a Permanent Appointment lodged with the Department, the review applicant listed Python Tech as the business or organisation’s legal registered name, trading as Python Technologies. The Australian Business Number (ABN) 41 405 271 488, registered to Ahmer Arif Ismail as an individual/sole trader, was also provided.

13. Information before the Tribunal from the Australian Business Register shows that ABN 41 405 271 488, registered to Mr Ahmer Arif Ismail and with the business name Python Tech, was cancelled from 17 January 2019.

14. Further information from ASIC indicates that registration of the business name, Python Tech, was also cancelled on 30 May 2019.

15. As stated above, the review applicant was invited to comment on or respond, in writing, to this information pursuant to s.359A of the Act. The review applicant was advised that the information was considered relevant to the review because one of the requirements for approval of the nomination is that the nominator is actively and lawfully operating a business in Australia. It was explained that if the Tribunal relied upon the information, it may find that the nominator is no longer registered with the relevant authorities as required to lawfully operate a business. It was further explained that if the Tribunal was not satisfied that the nominator is actively and lawfully operating a business in Australia, the decision under review may be affirmed. The review applicant did not comment on or respond to this information.

16. The review applicant has not commented on or responded to information indicating that the ABN and business name registration are cancelled. In the circumstances, the Tribunal is unable to be satisfied that the review applicant is actively and lawfully operating a business in Australia. According, the requirement in r.5.19(3)(b)(ii) to be actively and lawfully operating a business in Australia is not met.

17. As the Tribunal has found that r.5.19(3)(b)(ii) is not met because the review applicant is not actively and lawfully operating a business in Australia, the Tribunal did not consider it necessary to also consider whether there was adverse information known about the nominator, which was the issue before the delegate.

18. 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 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

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

    R. Skaros
    Senior 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

    (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.