J.JAROCKI & S.K.JAROCKI (Migration)

[2020] AATA 4049

J.JAROCKI & S.K.JAROCKI (Migration) [2020] AATA 4049 (25 September 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  J.JAROCKI & S.K.JAROCKI

CASE NUMBER:  1807027

HOME AFFAIRS REFERENCE(S):          BCC2017/1269676

MEMBER:R.Skaros

DATE:25 September 2020

PLACE OF DECISION:  Sydney

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

Statement made on 25 September 2020 at 9:22am

CATCHWORDS
MIGRATION – application for approval of nomination of position – training requirements – no response to tribunal’s invitation to provide current information – no evidence of compliance – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 359(2), 359C, 360(3), 363A
Migration Regulations 1994 (Cth), r 5.19(3)(f)

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 8 March 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 4 April 2017, seeking to satisfy the criteria in the Temporary Residence Transition stream. The delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19(3) of the Regulations. In particular, the delegate considered whether the applicant satisfied the requirement in r.5.19(3)(f) to fulfill any commitments made relating to meeting their training requirements and comply with applicable obligations under Division 2.19 during the period of their most recent approval as a standard business sponsor. The applicant provided a copy of the decision to the Tribunal.

3. On 10 December 2018 the Tribunal advised the applicant that the registration of their nominated representative with the Office of the Migration Agent’s Registration Authority (MARA) lapsed on14 August 2018.The applicant was advised that the Tribunal is required to continue to correspond with their nominated representative, in their capacity as authorised recipient, unless and until the applicant advised otherwise in writing. The applicant did not respond to this letter or otherwise change or amend the details of their authorised recipient.

4. On 10 August 2020 the Tribunal wrote to the review applicant pursuant to s.359(2) of the Migration Act 1958 (the Act), inviting the review applicant to provide updated and current information about the various requirements in rr.5.19(2) and (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 are met at the time of its decision.

5. Relevantly, where the registration of a migration agent is suspended or cancelled by MARA, this does not in itself affect that person’s appointment as an authorised recipient. As such the invitation was sent to the last email address provided in connection with the review being that of the applicant’s authorised recipient. A copy of the letter was also sent to the applicant’s email.

6. The s.359(2) letter advised that, if the information was not provided in writing by 24 August 2020 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 review 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 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 provide information was sent to the correct email address and a copy was also sent to the applicant’s email. The invitation was not returned to sender as undeliverable mail and was in fact received by the authorised recipient. In their correspondence to the Tribunal, the authorised recipient indicated that they were no longer acting for the applicant and the applicant was also copied in on that correspondence. 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 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. The Tribunal’s letter to the applicant of 10 August 2020 invited the applicant to provide updated and current information about all the relevant requirements in r.5.19. It also 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 its decision. As stated above, the applicant did not respond to the Tribunal’s invitation and no updated and current information about the applicant or its business has been received.

12. In this case, the review applicant nominated the position of Customer Service Manager (ANZSCO 149212). The delegate had regard to evidence provided by the applicant to support their satisfaction of r.5.19(3)(f), including financial statements, accountant letters, and tax invoices. However, the delegate was not satisfied the applicant satisfied the requirements of r.5.19(3).

13. The Tribunal invited the applicant to provide updated and current information about a range of matters, including the applicant’s compliance with training commitments and sponsorship obligations. Without limiting the type of information that could be provided, the Tribunal suggested examples of information that could be provided, including: notification of sponsorship approval; information about the applicant’s payroll for each year of the most recent approval as standard business sponsor; evidence of payments made to an industry training fund; receipts of payment/s to training organisations; and details of the employees who had received the training. No response has been received to the invitation to provide information.

14. The applicant has not provided information to the Tribunal regarding their compliance with training commitments and sponsorship obligations. In these circumstances, the Tribunal is unable to be satisfied at the time of its decision that the applicant has fulfilled any commitments made relating to meeting their training requirements during the period of their most recent approval as a standard business sponsor as required by r.5.19(3)(f)(i)(A). Nor is the Tribunal able to be satisfied that the applicant has complied with any applicable obligations under Division 2.19 of the Regulations during their most recent approval as a standard business sponsor as required by r.5.19(3)(f)(i)(B). Nor is the Tribunal satisfied on the material before it that it is reasonable to disregard these requirements for the purpose of r.5.19.(3)(f)(ii). Accordingly, the Tribunal is not satisfied that r.5.19(3)(f) is met.

15. Further, the Tribunal also invited the applicant to provide information about the terms and conditions of employment for the nominated position and whether they are more or less favourable than those provided for an Australian citizen or permanent resident performing equivalent work in the same work place and same location. Without limiting the type of information that could be provided, the Tribunal suggested examples of information and/or documents that the applicant could provide, such as a current employment contract in respect of the nominee or letter of engagement that complies with relevant awards for the nominated position, if any. As sated above, no response has been received to the invitation.

16. The applicant has not provided any current information about the terms and conditions of employment in the nominated position and whether they are more or less favourable than those provided for an Australian citizen. In the circumstances, the Tribunal is unable to be satisfied that, at the time of its decision, the terms and conditions of employment applicable to the position will be no less favourable than the terms and conditions that are, or would be, provided to an Australian citizen or an Australian permanent resident for performing equivalent work in the same workplace at the same location. Accordingly, the requirement in r.5.19(3)(e) is also not met.

17. 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

18. 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.