Jakkarin Tangphunpholwiwat (Migration)

[2022] AATA 2555

Jakkarin Tangphunpholwiwat (Migration) [2022] AATA 2555 (17 June 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Jakkarin Tangphunpholwiwat

CASE NUMBER:  1912405

HOME AFFAIRS REFERENCE(S):          BCC2017/3056556

MEMBER:Alison Mercer

DATE:17 June 2022

PLACE OF DECISION:  Melbourne

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

Statement made on 17 June 2022 at 1:40pm

CATCHWORDS

MIGRATION – approval of a nomination – Direct Entry nomination stream – position of Café or Restaurant Manager – genuine position – updated financial information – businesses expansion plans – impact of the COVID19 pandemic – decision under review affirmed         

LEGISLATION

Migration Act 1958, ss 359, 360
Migration Regulations 1994, r 5.19

CASES

Yang v MIAC [2010] FMCA 890

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 29 April 2019 to reject the applicant’s application for approval of the nomination of a position in Australia under reg 5.19 of the Migration Regulations 1994 (Cth) (the Regulations).

2. The applicant applied for approval on 24 August 2017 of its nominated position of Café or Restaurant Manager. The requirements for the approval of the nomination of a position in Australia are found in reg 5.19 of the Regulations which contains two alternative streams: a Temporary Residence Transition nomination stream (reg 5.19(3)) and a Direct Entry nomination stream (reg 5.19(4)). If the application is made in accordance with reg 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: reg 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 reg 5.19(4)(h)(ii)(B) of the Regulations, which required that there was a genuine need for the nominator to employ the nominee, as a paid employee, to work in the position under the nominator’s direct control. The delegate found that inconsistent information had been provided by the applicant about its operations, staffing and opening hours, such that they were not satisfied that the applicant had a genuine need for the nominated position. As part of r.5.19(4) was not met, the delegate refused to approve the applicant’s nomination.

5. The Tribunal received a review application on 19 May 2019. It was lodged on behalf of the applicant by Mr Jakkarin Tangphunpholwiwat, the owner of the applicant business. The review application was accompanied by a copy of the delegate’s decision, profit and loss statements for the 2 businesses operated by the applicant for 2016/2017 and 2017/2018, a contract of employment for the nominee dated 17 August 2017, advertising for the business in which the nominated position was said to be based, and evidence of the registration of the businesses. Mr Tangphunpholwiwat appointed a registered migration agent, Ms Natnicha Wilaiwan, as the applicant’s representative and authorised recipient for correspondence.

6. On 24 May 2022, the Tribunal wrote to Mr Tangphunpholwiwat via the agent to invite him, pursuant to s.359(2) of the Act, to provide updated and current information to demonstrate that the applicant met all of the relevant criteria in r.5.19(4) (not merely the criterion that the delegate found was not met). Mr Tangphunpholwiwat was requested to provide this information by 7 June 2022, and was advised that if he did not do so, and did not seek an extension of time to do so by that date, the applicant would lose its entitlement to have an authorised person appear on its behalf at a Tribunal hearing, and the Tribunal might proceed to make its decision on the available evidence, without taking any further steps to obtain the requested information.

7. The Tribunal did not receive any information or request for an extension of time to respond from Mr Tangphunpholwiwat or the agent by 7 June 2022. On 8 June 2022, the Tribunal received notification from the agent that she had withdrawn from the case.

8. The Tribunal is satisfied that its s.359(2) letter of 24 May 2022 was sent to the nominated email address of the applicant’s authorised recipient for correspondence. There is no indication from the Tribunal’s records that the email was undelivered or undeliverable. 

9. On behalf of the applicant, neither Mr Tangphunpholwiwat nor the agent has responded to the Tribunal’s s.359(2) letter. In the circumstances, s.359C applies and pursuant to s.360(3), a person representing the applicant is not entitled to appear before the Tribunal. The Tribunal has no power to permit them to appear: see Yang v MIAC [2010] FMCA 890.

10. Accordingly, the Tribunal has proceeded to make its decision on the available evidence. In doing so, the Tribunal notes that Mr Tangphunpholwiwat was invited to provide updated and current information, with detailed examples given, to enable the Tribunal to obtain relevant evidence to assess whether the applicant currently meets the r.5.19(4) criteria. He also had the benefit of the assistance of a migration agent to respond. In the circumstances, the Tribunal does not consider it unreasonable to proceed to a decision without any further deferral.

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

    CONSIDERATION OF LAW, CLAIMS AND EVIDENCE

12. 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 reg 5.19(4), which is extracted in the attachment to this decision. For the nomination to be approved, all the requirements must be met.

    Tasks of the position, genuine need for the position and training requirements reg 5.19(4)(h)

13. Regulation 5.19(4)(h) contains a number of alternative requirements. These are set out in detail in the attachment to the decision but can be briefly summarised as requiring either that:

    ·the tasks to be performed in the position will be performed in Australia and correspond to those of an occupation specified by the Minister in the relevant written instrument, the occupation is applicable to the proposed employee in accordance with any specifications made in that instrument, there is a genuine need for the nominee to be employed as a paid employee in the position, and certain specified training requirements are met; or

    ·the position and nominator’s business is located in regional Australia, there is a genuine need for the nominee to be employed as a paid employee in the position under the nominator’s direct control, the position cannot be filled by a locally resident Australian citizen or permanent resident, the tasks of the position correspond to those of an occupation specified in the relevant legislative instrument, the occupation is applicable to the proposed employee in accordance with the specification of the occupation, and that a regional certifying body has advised the Minister about certain matters relating to the position.

14. The Tribunal is satisfied, from the material provided to the Department, that the applicant’s business and the nominated position are based in regional Australia, and thus the requirements of r.5.19(4)(h)(ii) set out in the second dot point apply.

15. As noted above, the delegate found r.5.19(4)(h)(ii)(B) was not met, which requires that there is a genuine need for the nominator to employ a paid employee to work in the position under the nominator’s direct control. The delegate was not satisfied of this as they found that the applicant had provided inconsistent evidence about the number of staff in the 2 businesses operated by the applicant, as well as about the opening hours of the businesses and its expansion plans, such that they were not satisfied that a Café or Restaurant Manager was genuinely required.

16. The Tribunal notes that the applicant provided various documents to the Department, including an employment contract for the nominee, organisational charts, business plans, submissions in support of the position and financial documents between August 2017 and December 2018.  However, the Tribunal has not received any more recent information about the applicant’s organisational structure and staffing, business activities and its financial position, or whether its business has been affected by the intermittent restrictions on hospitality venues imposed during the ongoing COVID19 pandemic. The most recent information provided to the Tribunal related to the 2017/18 financial year, and that information is now over 3 years old.

17. Given this, the Tribunal is not satisfied that the applicant has demonstrated that it has a current genuine need for the nominator to employ a paid employee to work in the position of Café or Restaurant Manager under the nominator’s direct control. It finds that r.5.19(4)(h)(ii)(B) is not met, and thus r.5.19(4)(h)(ii) is not met as a whole.

18. As r.5.19(4)(h)(i) does not apply to the applicant, the Tribunal finds that the requirements of r.5.19(4)(h) are not met as a whole.

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.

    Alison Mercer
    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 an identified person as 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).