Jacmah Enterprises Pty Ltd (Migration)

[2020] AATA 2587

Jacmah Enterprises Pty Ltd (Migration) [2020] AATA 2587 (22 June 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Jacmah Enterprises Pty Ltd

CASE NUMBER:  1825083

HOME AFFAIRS REFERENCE(S):          BCC2017/30739

MEMBER:Peter Emmerton

DATE:22 June 2020

PLACE OF DECISION:  Adelaide

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

Statement made on 22 June 2020 at 2:38pm

CATCHWORDS
MIGRATION – application for approval of nominated position – direct entry nomination stream – tasks to be performed in position – capacity to pay full-time salary for two years – structure of business and financial operations – no response to tribunal’s s 359(2) letter – company under external administration – decision under review affirmed

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

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 9 August 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 January 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 stream (r.5.19(3)) and a Direct Entry nomination stream (r.5.19(4)). 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)(D) as they were not satisfied that the tasks to be performed in the position correspond to the tasks of an occupation specified in the relevant instrument. Nor 5.19(4)(h)(i) of the Regulations because the nominated tasks do not therefore correspond to the tasks of an occupation specified by the Minister.

5. A letter was sent to the applicant pursuant to s.359(2) on 29 May 2020, requesting information.

   ‘INVITATION TO PROVIDE INFORMATION –JACMAH ENTERPRISES PTY LTD

   I am writing about the application for review made by JACMAH ENTERPRISES Pty Ltd
   (“the applicant”) 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 rr.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. We have given examples of the type of information you could provide:

   1. Information about the identity of any person authorised to speak and make
   decisions on behalf of the applicant;

   ·    If the applicant is a company or registered business, an ASIC company or

   business name extract ( If the applicant is a company or registered business, current and historical
   information about its owners or office holders’ registration details;

   ·    An ASIC current and historical extract ( Information about the applicant directly operating an active and lawful business in
   Australia, including its financial circumstances;

   ·    The applicant’s lodged tax returns for the last two full financial years,

   business activity statements that have been lodged with the ATO for the
              last 24 months and financial statements prepared in accordance with
              Australian accounting standards, including profit and loss statements and   balance sheets, for the most recent two financial years.

   4. Information about the applicant’s current organisational structure and where the
   nominated position sits in relation to that structure;

   ·    An organisational structure chart that includes all of the applicant’s

   current and proposed employees, their position title/duties and their
              immigration status (i.e. Australian citizen, permanent resident or temporary
              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;

   ·    Job descriptions, work samples, emails, correspondence and other

   examples of the daily tasks performed in the nominated position, and also
              the nominated occupation’s position description in ANZSCO (go to
               and type the nominated
              occupation’s 6 digit ANZSCO code number into the ‘Search’ function).

   6. Information about the terms and conditions of employment in the nominated
   position, including whether they are more or less favourable than those provided
   for an Australian citizen or permanent residence performing equivalent work in the
   same workplace at the same location, and whether the nominee will be employed
   on a full time basis for at least 2 years with terms and conditions not expressly
   excluding the possibility of extension;

   ·    A current employment contract in respect of the nominee 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 need to employ the nominee in the nominated position; AND

   b.the applicant’s business operating for at least 12 months and its recent training
   expenditure; OR

   c. the applicant’s business operating for less than 12 months and its plan for future
   training expenditure

   ·    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 the nominee 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.

   ·    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.

   9. Information about whether the applicant has been subject to monitoring by the
   Department and, if relevant, the outcome of the monitoring audit;

   10. Information about whether the applicant has been the subject of any investigation
   about a possible contravention of the law.

   This information, in writing, should be received by 12 June 2020. If the information
   is in a language other than English, it must be accompanied by an English translation
   from an accredited translator.

   If you or another person authorised by the applicant cannot provide the information by
   12 June 2020, you or another person authorised by the applicant may ask us for
   an extension of time in which to provide the information. If an extension of time
   request is made, it must be received by us before 12 June 2020 and it 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. The applicant will also lose any entitlement it might otherwise have
   had under the Migration Act to appear before us to give evidence and present
   arguments.’

6. The review applicant did not provide the information within the prescribed period and no extension of time was requested within the prescribed period. 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. The Tribunal has decided to proceed to a decision without taking further steps to obtain the information.

   The applicant was represented in relation to the review by its registered migration agent and stated in a letter to the Tribunal dated 29 May 2020….’ We note that the review applicant is stated by ASIC to be under external administration. We have not been able to receive instructions for some time. We have forwarded the Tribunal’s letter to the last known address but note, as happened in a separate review for the same company, no response was received.’

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. 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.

9. 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.

10. 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.

11. The Tribunal notes that the delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19(4)(h)(ii)(D) as they were not satisfied that the tasks to be performed in the position correspond to the tasks of an occupation specified in the relevant instrument. Nor 5.19(4)(h)(i) of the Regulations because the nominated tasks do not therefore correspond to the tasks of an occupation specified by the Minister.

12. No evidence has been provided to the Tribunal to demonstrate that r.5.19(4)(h)(ii)(D) nor therefore 5.19(4)(h)(i) have been met, therefore the Tribunal finds that they have not been met.

13. There is no evidence before the Tribunal that demonstrates that the applicant’s nomination can satisfy r.5.19(4)(d)(i) as the nominator has not demonstrated the capacity to be able to pay the full-time salary for the nominated position for at least 2 years. Therefore, they had not demonstrated that the appointment would provide the employee with full-time employment for at least 2 years.

14. As no current evidence of the financial operations or the structure of the business were provided, the Tribunal is not satisfied that r.5.19(4)(b)(i) or r.5.19(4)(b)(ii) of the Regulations are satisfied, as the nominator has not demonstrated that they are lawfully and directly operating a business in Australia.

15. For the above reasons the Tribunal is not satisfied that the applicant meets the requirements of r.5.19(4).

16. The applicant has not sought to satisfy the criteria in the 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

17. 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)       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).