JAI SACHIDANAND PTY LTD (Migration)

[2020] AATA 4042

JAI SACHIDANAND PTY LTD (Migration) [2020] AATA 4042 (17 July 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  JAI SACHIDANAND PTY LTD

CASE NUMBER:  1800070

HOME AFFAIRS REFERENCE(S):          BCC2017/2302437

MEMBER:R. Skaros

DATE:17 July 2020

PLACE OF DECISION:  Sydney

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

Statement made on 17 July 2020 at 5:01pm

CATCHWORDS

MIGRATION – nomination of a position – Temporary Residence Transition Nomination stream – position of Transport Company Manager – nominee employed in the position – demonstrated commitment to training requirements – sponsorship obligations – terms and conditions of employment – decision under review affirmed          

LEGISLATION

Migration Act 1958, ss 359, 360, 363
Migration Regulations 1994, rr 5.19, 2.72, 2.73

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 and Border Protection on 14 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 29 June 2017 seeking to satisfy the criteria in the Temporary Residence Transition Nomination stream. The delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19(3)(c) and r.5.19(3)(f) of the Regulations.

3. On 15 June 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.

4. The invitation was sent to the last email address provided in connection with the review and advised that, if the information was not provided in writing by 29 June 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.

5. On 30 June 2020, the applicant’s nominated representative advised the Tribunal via email that they no longer represented the applicant. On 1 July 2020 the Tribunal advised the applicant’s nominated representative that as they were also the applicant’s nominated authorised recipient the Tribunal was required to send him correspondence in connection with the review unless and until the applicant advised otherwise. A copy of this correspondence was also sent directly to the applicant by email. No further correspondence was received by the applicant’s nominated representative and nor did the Tribunal receive any advice from the applicant withdrawing them as either the nominated representative or authorised recipient.

6. 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.

7. The Tribunal is satisfied that the invitation to provide information was sent to the correct email being that of the applicant’s nominated authorised recipient. The invitation was not returned to sender as undeliverable mail and, as evidenced by the correspondence of the applicant’s nominated authorised recipient, the Tribunal is satisfied that the invitation was received. 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.

8. The Tribunal notes that the Departmental file contains a certificate issued pursuant to s.375A of the Act pertaining to information related to the Department’s internal processes. The Tribunal has not had regard to the material referred to therein as this case turns on a different issue, namely the Tribunal’s lack of satisfaction on the current evidence before it that the applicant satisfies the criteria specified in r.5.19(3)(c) and r.5.19(3)(f) for the approval of the nomination. In determining this matter, the Tribunal has placed no weight upon that information covered by the certificate as the Tribunal did not consider the information to be relevant to issue in the present review.

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 15 June 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, no updated and current information about the applicant or its business has been received. As the applicant has not provided the information requested, the Tribunal is unable to be satisfied that at the time of this decision the applicant meets the requirements for approval of the nomination in the Temporary Residence Transition Nomination stream.

12. The delegate found that the applicant had not demonstrated that the nominee was employed in the position in respect of which they held the Subclass 457 visa, in this case the position of Transport Company Manager, for a total period of at least 2 years for r.5.19(3)(c)(i)(A)(II) and therefore r.5.19(3)(c)(i) was not met . As the nominee was not identified in a nomination of an occupation mentioned in r.2.72(10)(d)(iii)(B) or r.2.72(10)(e)(iii)(B), as required by r.5.19(3)(c)(ii)(A) , r.5.19(3)(c)(ii) was also not met, and the applicant did not meet the requirements of r.5.19(3)(c).

13. The Tribunal invited the applicant to provide updated and current information about a range of matters, including whether the nominee had been employed full time in Australia in the position for which they held a Subclass 457 visa for at least 2 of the 3 years preceding the date of the nomination application, whether the employment in that position was full time and in Australia, and whether they will be employed on a full time basis for at least 2 years with terms and conditions not expressly excluding the possibility of extension. Without limiting the type of information that could be provided, the Tribunal suggested examples of information that could be provided such as PAYG payment summaries for the nominee for each year of employment and associated tax assessment notices, previous employment contracts and current employment contracts. No response has been received to the invitation to provide information.

14. In the absence of current information, the Tribunal is unable to be satisfied that, at the time of its decision, that the nominee has been employed in the position in respect of which that person holds the Subclass 457 visa for a total period of at least 2 years for r.5.19(3)(c)(i)(A)(II) of the regulations. Accordingly, the Tribunal is not satisfied that r.5.19(3)(c)(i) is met.

15. The nominated occupation is Transport Company Manager (ANZCO 149413), which is not a nominated occupation for the purpose of r.2.72(10)(d)(iii)(B) or r.2.72(10)(e)(iii)(B). As the nominee was not identified in a nomination of an occupation mentioned in r.2.72(10)(d)(iii)(B) or r.2.72(10)(e)(iii)(B), as required by r.5.19(3)(c)(ii)(A) , the Tribunal is not satisfied that r.5.19(3)(c)(ii) is met.

16. As the Tribunal is not satisfied that either r.5.19(3)(c)(i) or r.5.19(3)(c)(ii) is met, it follows that the requirement of r.5.19(3)(c) is not met.

17. The delegate also concluded that the applicant did not satisfy the requirements of r.5.19(3)(f). The delegate found that the applicant had not demonstrated the applicant had fulfilled any commitments made relating to meeting their training requirements during the period of their most recent approval as a standard business sponsor and nor had they demonstrated they had complied with any applicable obligations under Division 2.19 of the Regulations during this period for r.5.19(3)(f)(i). As the delegate concluded it was not reasonable to disregard these requirements for r.5.19(3)(f)(ii), r.5.19(f) was not met.

18. The Tribunal also invited the applicant to provide updated and current information about 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.

19. In the absence of current information, the Tribunal is unable to be satisfied that, at the time of its decision, 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.

20. 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

21. 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.