ITS IT AUSTRALIA PTY LTD (Migration)

ITS IT AUSTRALIA PTY LTD (Migration) [2019] AATA 2581 (30 April 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  ITS IT AUSTRALIA PTY LTD
CASE NUMBER:  1805178
DIBP REFERENCE(S):  BCC2017/4247836
MEMBER:Peter Emmerton
DATE:30 April 2019
PLACE OF DECISION:  Adelaide
DECISION:The Tribunal affirms the decision under review to refuse the nomination.
Statement made on 30 April 2019 at 12:17pm

CATCHWORDS
MIGRATION – nomination of position – Employer Nomination Scheme – Direct Entry nomination stream – finance documents provided could not be verified – insufficient financial evidence for compliance in providing two years full-time employment – nomination of position not approved – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), s 359
Migration Regulations 1994, Schedule 2, r 5.19

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 23 February 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).
The applicant applied for approval on 13 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 (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 r.5.19(4)(d)(i) of the Regulations because they were not satisfied that the applicant had provided sufficient financial evidence to demonstrate that they could comply with the requirement to provide two years full-time employment for the nominee under the Employer Nomination Scheme.
A letter was sent to the applicant pursuant to s.359(2) on 20 March 2019, requesting information.
‘INVITATION TO PROVIDE INFORMATION – ITS IT AUSTRALIA PTY LTD
I am writing about the application for review made by ITS IT AUSTRALIA PTY LTD (“the applicant” or “the nominator”) in respect of a decision to refuse their application for approval of a nominated position under r.5.19 of the Migration Regulations 1994 (the Regulations).
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 of the Regulations are met at the time of its decision. As the application for nomination was made under the Direct Entry nomination stream, the relevant criteria are in r.5.19(2) and (4) of the Regulations.
The Tribunal now requires updated and current information addressing these criteria. Accordingly, and without limiting the information that may be given, you or another person authorised by the applicant are invited to give the following information in writing:
1. Information about the identity of any person authorised to speak and make decisions on behalf of the applicant;
Ø for example, if the applicant is a company or registered business, an ASIC company or business name extract ( the applicant is a company or registered business, current and historical information about its office holders registration details;
Ø for example, an ASIC current and historical extract ( about the applicant directly operating an active and lawful business in Australia, and its financial position for at least the last two financial years;
Ø for example, the applicant’s tax returns, financial statements prepared by an accountant/ financial advisor that include a detailed profit and loss statement and balance sheet, and business activity statements lodged with the ATO for the financial years ending June 2016 and June 2017
4.Information about the applicant’s current organisational structure and where the nominated position sits in relation to that structure;
Øfor example, an organisational structure chart that includes all of the applicant’s current and proposed employees, their position title/duties, and whether they are an Australian citizen, permanent resident or visa holder
5. Information about the roles and duties of the nominated position and how they correspond to the nominated occupation’s position description in ANZSCO;
Øfor example, job descriptions, work samples, emails, correspondence and other examples of the daily tasks to be performed in the nominated position, and also the nominated occupation’s position description in ANZSCO (see and type the nominated occupation’s 6 digit ANZSCO code number into the ‘Search’ function)
6.      Information about whether the terms and conditions of employment in the nominated       position:
a.are on a full time basis for at least 2 years; and
b.exclude extending the period of employment; and
c.are more or less favourable than those provided to an Australian citizen or permanent resident performing equivalent work in the same workplace
Ø for example, an employment contract or letter of engagement that complies with relevant awards for the nominated position (if any)
7.   If the nominated position is not located in regional Australia and the applicant has paid the non-regional position application fee, information about:
a.the applicant’s business operating for at least 12 months and its recent training expenditure and commitment to future training expenditure; OR
b.the applicant’s business operating for less than 12 months and its plan for future training expenditure
Ø for example, invoices or contracts for employee training, a training program that includes a course outline, attendance and identifies increased work competencies, or records of investment in certain industry training funds or recognised industry bodies
8.   If the nominated position is located in regional Australia, information about:
a.the need to employ a paid employee in the nominated position and why the position cannot be filled by an Australian citizen or permanent resident living in the same local area; and
b.whether a specified Regional Certifying Body located in the same State or Territory as the nominated position has provided advice that:
i.the terms and conditions of employment are no less favourable than those provided to Australian citizens or permanent residents performing equivalent work in the same workplace; and
ii.there is a genuine need to employ the nominated person as a paid employee to work in the nominated position under the applicant’s direct control; and
iii.the position cannot be filled by an Australian citizen or permanent resident living in the same area.
Ø for example, local job advertisements for the nominated position that were not successfully filled, and the Regional Certifying Body’s certificate issued to the applicant in respect of this position
Relevant extracts of r.5.19 of the Regulations are set out in the Attachment for your reference. Any information that you give the Tribunal should be up to date and address all the relevant criteria.

The information should be received by 23 April 2019. If the information is in a language other than English, it must be accompanied by an English translation from an accredited translator.

If ITS IT AUSTRALIA PTY LTD cannot provide the information by 23 April 2019, it may ask us for an extension of time in which to provide the information. If ITS IT AUSTRALIA PTY LTD makes such a request, it must be received by us before 23 April 2019 and ITS IT AUSTRALIA PTY LTD must state the reason why the extension of time is required.

We will carefully consider any request for an extension of time and will advise whether or not the extension has been granted.
If we do not receive the information within the period allowed or as extended, we may make a decision on the review without taking any further action to obtain the information. ITS IT AUSTRALIA PTY LTD will also lose any entitlement it might otherwise have had under the Migration Act 1958 to appear before us to give evidence and present arguments.’

At the time of writing this Decision the applicant had not responded and has therefore lost any entitlement it might otherwise have had under the Migration Act 1958 to appear before the Tribunal and present arguments. The Tribunal has made its’ decision upon the materials and evidence before it.
The applicant was represented in relation to the review by its registered migration agent.
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.
In determining the applicant’s claims the Tribunal must first make findings of fact on material matters in dispute. This may involve an assessment of credibility and in so doing, the Tribunal is aware of the need and importance of being sensitive to the circumstances and the difficulties applicants often face before the Tribunal in their particular circumstances.
The applicants rely on the evidence given before the Tribunal together with written submissions and supporting evidence provided to the Tribunal and previously to the department.
The employee will be employed on a full-time basis in the position for at least 2 years r.5.19(4)(d)(i)
The nominator provided the delegate with some rudimentary finance documents in support of their case. The delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19(4)(d)(i) of the Regulations because they were not satisfied that the applicant had provided sufficient financial evidence to demonstrate that they could comply with the requirement to provide two years full-time employment for the nominee under the Employer Nomination Scheme.
The Tribunal notes that the only finance documents provided in the application were internally generated and could not be verified by cross-referencing them with ATO BAS statements or ATO Tax Returns. Nor did they supply Profit and Loss Statements.
The Tribunal in its fore mentioned letter requested updated finance documentation such as BAS Statements, ATO tax returns and Profit and Loss Statements. As previously stated no information was provided.
The Tribunal acknowledges the Organisation Chart, the ASIC Business Register information, the internally generated finance documents, the Job Description and the signed Employment Contract dated 19 December 2017.
No current financial documentation has been presented to the Tribunal and little previous evidence was provided to the delegate to demonstrate that they could comply with the requirement to provide two years full-time employment for the nominee under the Employer Nomination Scheme. Therefore, the Tribunal is not satisfied that sufficient evidence has been provided to demonstrate that the nominator could comply with the requirement to provide two years full-time employment for the nominee under the Employer Nomination Scheme.
Accordingly, the requirement in r.5.19(4)(d)(i) is not met.
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.
Peter Emmerton
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).

[2019] AATA 2581

30 April 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Appeal