JSD Australia Pty Ltd (Migration)

[2021] AATA 2594

JSD Australia Pty Ltd (Migration) [2021] AATA 2594 (23 July 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  JSD Australia Pty Ltd

CASE NUMBER:  1830143

HOME AFFAIRS REFERENCE(S):          BCC2016/3885676

MEMBER:Mary Sheargold

DATE:23 July 2021

PLACE OF DECISION:  Melbourne

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

Statement made on 23 July 2021 at 3:58pm

CATCHWORDS
MIGRATION – application for approval of nomination of position – direct entry nomination stream – adverse information relating to one director – no response to tribunal’s invitation to provide information – no evidence of active business operations – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 359(2), 363(1)(b)
Migration Regulations 1994 (Cth), rr 1.13A(1)(b), 5.19(4)(b), (f)

CASES
Huo v MIMA [2002] FCA 617
Kaur v MIBP [2014] FCA 915
Manna v MIAC [2012] FMCA 28
MIAC v Li [2013] HCA 18
MIBP v Singh [2014] FCAFC 1

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 27 September 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 18 November 2016. 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)(f) of the Regulations because there was adverse information, within the meaning of r.1.13A(1)(b), before the delegate relating to a director of the applicant, and that adverse information could not be disregarded.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. 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.

   Nominator is actively and lawfully operating a business in Australia: r.5.19(4)(b)

7. Regulation 5.19(4)(b) requires that the applicant is actively, lawfully and directly operating a business in Australia.  

8. The nomination application was lodged with the Department on 18 November 2016, and the Department refused the nomination application in a decision made on 27 September 2018.  While the Tribunal notes the Departmental file contains documents relied upon by the delegate in reaching their decision, no additional information was provided to the Tribunal at review.

9. On 18 June 2021, the Tribunal wrote to the applicant inviting it to provide information that demonstrated that the business meets all of the requirements of the criteria in r.5.19(4) of the Regulations at the time of the Tribunal’s decision. A copy of r.5.19(4) was annexed to the letter. A response to the request for information was due by 2 July 2021. As at the date of this decision, no response has been received.

10. The Tribunal notes it has not received the information requested, and in these circumstances, it is able to proceed to decision based on the evidence before it.

11. The Tribunal has considered whether it should adjourn the review under s.363(1)(b) of the Act to allow the applicant additional time in which to provide further evidence to support its review application.

12. In doing so, the Tribunal has taken into account the decisions in the Tribunal has taken into account the decisions in Huo v Minister for Immigration and Multicultural Affairs[1] and Manna v Minister for Immigration and Citizenship[2] where the Courts have held that the Tribunal is not required to indefinitely defer its decision-making processes. It has also had regard to the decision in Minister for Immigration and Citizenship v Li[3] regarding the reasonableness of any request for an adjournment, and the Full Federal Court of Australia decision in Minister for Immigration and Border Protection v Singh[4] which considered this issue, as well as the more recent decision in Kaur v Minister for Immigration and Border Protection[5] where analogous issues were discussed.

    [1] [2002] FCA 617.

    [2] [2012] FMCA 28.

    [3] [2013] HCA 18 (8 May 2013).

    [4] [2014] FCAFC 1 (4 February 2014).

    [5] [2014] FCA 915 (28 August 2014).

13. The Tribunal has considered whether, in the circumstances of this case, the information that the applicant meets the requirements in r.5.19(4) is likely to be forthcoming and whether the applicant has had a fair opportunity to provide the relevant information already, and the significance of the information to the applicant.

14. The Tribunal has had regard to the fact that the nomination application was refused by the Department on 27 September 2018 because the delegate concluded that there was adverse information before it relating to one of the applicant’s directors, and that it was not reasonable to disregard that information.  The applicant submitted a copy of the primary decision record with the review application.  As a result, the Tribunal observes that the applicant has been aware for more than 33 months of the reasons for the nomination application refusal.

15. Further, as noted above, the applicant has provided no further information to the Tribunal to demonstrate that the applicant can satisfy the requirements of r.5.19(4) since the application for review was received on 15 October 2018, despite being invited to do so.

16. In these circumstances, and for the reasons set out in this decision record, the Tribunal considers that the applicant has had a fair opportunity to provide the relevant information and sufficient time to take steps to satisfy the regulatory criteria. The Tribunal notes that it is uncertain if and when the applicant will provide information in writing as to whether the nominating business meets the requirements of r.5.19(4). The Tribunal is not disposed to delay making a decision indefinitely.

17. Accordingly, the Tribunal has decided not to exercise its discretion under s.363(1)(b) of the Act to adjourn the review any further to allow the applicant more time in which to demonstrate that the nominating business meets the requirements of r.5.19(4).

18. The Tribunal notes that its letter to the applicant sent pursuant to s.359(2) of the Act included a request for information about the applicant directly operating an active and lawful business in Australia, including its financial circumstances. The applicant did not provide any information to demonstrate that it is directly operating an active and lawful business in Australia. Therefore, the Tribunal is unable to find that the applicant is directly operating an active and lawful business in Australia at the time of this decision. Accordingly, the requirement in r.5.19(4)(b) is not met.

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.

    Mary Sheargold
    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).