ITS IT AUSTRALIA PTY LTD (Migration)

[2019] AATA 2638

ITS IT AUSTRALIA PTY LTD (Migration) [2019] AATA 2638 (4 April 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  ITS IT AUSTRALIA PTY LTD

CASE NUMBER:  1800988

DIBP REFERENCE(S):  BCC2017/3033654

MEMBER:Peter Emmerton

DATE:4 April 2019

PLACE OF DECISION:  Adelaide

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

Statement made on 04 April 2019 at 4:54pm

CATCHWORDS

MIGRATION – nomination – Direct Entry Nomination stream – applicant’s nomination did not satisfy – not satisfied that the applicant had provided sufficient evidence to demonstrate a genuine need for a paid employee – applicant has not responded – no substantial explanation of the business need for this position was proffered – no information was provided – has not sought to satisfy the criteria – decision under review affirmed 

LEGISLATION

Migration Act 1958 (Cth), s 359(2)
Migration Regulations 1994 (Cth), r 5.19

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 22 December 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 August 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).

3. In this case, the applicant has applied for approval of a nomination, seeking to satisfy the criteria in the Direct Entry Nomination stream.

4. The delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19(4)(h)(ii)(B) of the Regulations because they were not satisfied that the applicant had provided sufficient evidence to demonstrate a genuine need for a paid employee to work in the position under the direct control of the nominator.

5. 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 in relation to the application for review made by ITS IT Australia Pty Ltd.
   ITS IT Australia Pty Ltd is invited to provide the following information in writing:

   • BAS statements for the 2018 financial year;
   • ATO tax returns for the 2017 and 2018 financial years;
   • Profit and Loss statements for the 2017 and 2018 financial years

   The information should be received by 3 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 3 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 3 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.’

6. At the time of writing this Decision the applicant had not responded and has therefore lost the right to appear before the Tribunal in a Hearing. The Tribunal has made its’ decision upon the materials and evidence before it.

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

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. 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.

10. 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.

11. 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.

12. Genuine need to employ a paid employee to work in the position r.5.19(4)(h)(ii)(B)

13. The nominator provided the delegate with some rudimentary 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)(h)(ii)(B) because they were not satisfied that the applicant had provided sufficient evidence to demonstrate a genuine need for a paid employee to work in the position under the direct control of the nominator.

14. 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. No substantial explanation of the business need for this position was proffered.

15. The Tribunal in its fore mentioned letter requested BAS Statements for FY 2018, ATO tax returns and Profit and Loss Statements for FY 2017 and 2018. As previously stated no information was provided.

16. The Tribunal acknowledges the Organisation Chart, the description of the organisation and the 4 line “Need Analysis”, the internally generated finance statements, and the signed Employment Contract dated 22 August 2017.

17. As no current financial documentation has been presented to the Tribunal and little evidence to justify the genuine need for this position has been presented in the initial documentation, it is not satisfied that there is a genuine need for a paid employee to work in the position under the direct control of the nominator.

18. Accordingly, the requirement in r.5.19(4)(h)(ii)(B) is not met.

19. 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

20. 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).