Joe Group Pty Ltd (Migration)

[2020] AATA 2485

Joe Group Pty Ltd (Migration) [2020] AATA 2485 (30 March 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Joe Group Pty Ltd

CASE NUMBER:  1800107

DIBP REFERENCE(S):  BCC2016/2461095

MEMBER:R. Skaros

DATE:30 March 2020

PLACE OF DECISION:  Sydney

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

Statement made on 30 March 2020 at 1:06pm

CATCHWORDS
MIGRATION – nomination– Direct Entry Nomination – tasks of the nominated position did not correspond to the tasks of an occupation specified in the relevant instrument – applicant failed to provide the requested information within the prescribed period – no evidence to show financial capacity – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 359, 360, 363
Migration Regulations 1994, rr 5.19, 5.37

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 19 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 25 July 2016 seeking to satisfy the criteria in the Direct Entry Nomination stream. The delegate refused the application on the basis that the applicant’s nomination did not satisfy r.5.19(4)(h) because the tasks of the nominated position did not correspond to the tasks of an occupations specified in the relevant instrument. The applicant provided a copy of the delegate’s decision record to the Tribunal.

3. The applicant’s former representative wrote to the Tribunal on 26 April 2018 requesting that his email contact details be updated because he no longer had access to the first email account. On 9 May 2018, the Tribunal responded to the representative confirming that his change of contact details was received and actioned on 27 April 2018.

4. On 30 January 2020 the Tribunal wrote to the review applicant pursuant to s.359(2) of the Act, inviting the review applicant to provide updated and current information about the various requirements in rr.5.19(2) and (4). 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. The invitation was sent to the last email address provided in connection with the review, being and advised that, if the information was not provided in writing by 13 February 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.

6. On 3 February 2020, a new appointment of representative and appointment of authorised recipient form was received. This form was signed by the applicant on 2 February 2020 and appointed a new representative and authorised recipient. The applicant and their new representative have not made any further contact with the Tribunal since that time.

7. The review applicant has not provided the information within the prescribed period and no extension has been granted. 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.

8. The Tribunal is satisfied that the invitation to provide information was sent to the relevant authorised recipient at the correct email address. The invitation was not returned to sender as undeliverable mail. The Tribunal acknowledges that a new representative was appointed shortly after the invitation was sent to the previous representative, however, neither the applicant nor the new representative have since contacted the Tribunal or provided the requested information.

9. There is not information before the Tribunal which suggests that the requested 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.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. 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.

12. The Tribunal’s letter to the applicant of 30 January 2020 invited the applicant to provide updated and current information about all the 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.

13. The delegate refused the nomination on the basis that r.5.19(4)(h)(ii)(D) was not met because the tasks of the nominated were more closely aligned with those of a Retail Supervisor position and not the higher level Retail Manager position.

14. The Tribunal invited the applicant to provide updated and current information about a range of matters, including the roles and duties of the nominated position and how they correspond to the nominated occupation’s position description in ANZSCO. Without limiting the type of information that could be provided, the Tribunal suggested examples of information and/or documents that the applicant could provide included a job description, work samples and other examples of the daily tasks to be performed in the nominated position. No response has been received to the invitation to provide information.

15. In the circumstances, the Tribunal is unable to be satisfied that, at the time of its decision, the tasks to be performed in the position correspond to the tasks of an occupation specified in the relevant instrument. Accordingly, the Tribunal is not satisfied that the requirements in r.5.19(4)(h)(ii)(D) are met.

16. The alternative requirements in r.5.19(4)(h)(i)(A) also require that the tasks to be performed in the position corresponded to the tasks of an occupation specified in the relevant written instrument. For the reasons already given above, the Tribunal is not satisfied that the alternative requirements in r.5.19(4)(h)(i)(A) are met.

17. As the applicant does not satisfy r.5.19(4)(h)(i) or (ii), the requirements in r.5.19(4)(h) are not met.

18. The Tribunal also invited the applicant to provide updated and current information about their financial circumstances as well as the roles, duties and terms and conditions of employment for the nominated position. 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 tax returns, business activity and financial statements for the most recent two financial years, a job description for the nominated position and a current employment contract or letter of engagement.

19. The applicant did not provide any current information about their financial capacity to comply with the requirements to provide the nominee with two years of full time employment. In the circumstances, the Tribunal is unable to be satisfied that, at the time of its decision, the applicant will employ the nominee on a full time basis in the position for at least two years. Accordingly, the requirement in r.5.19(4)(d) is not met.

20. 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

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.

    …

    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).