K & S Pallets Pty. Ltd. (Migration)

[2023] AATA 1498

K & S Pallets Pty. Ltd. (Migration) [2023] AATA 1498 (24 May 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  K & S Pallets Pty Ltd

REPRESENTATIVE:  Mr Degong Yang (MARN: 1684211)

CASE NUMBER:  1933572

HOME AFFAIRS REFERENCE(S):          BCC2017/2214758

MEMBER:Katie Malyon

DATE:24 May 2023

PLACE OF DECISION:  Sydney

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

Statement made on 24 May 2023 at 2:42 pm

CATCHWORDS
MIGRATION – application for approval of nomination of position – direct entry stream – supply and distribution manager – genuine need for position – no response to tribunal’s invitation to provide updated and current information – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 359(2), 359C, 360(3), 363(1)(b), 363A
Migration Regulations 1994 (Cth), r 5.19(4)(h)(i)(B)

CASES
Hasran v MIAC [2010] FCAFC 40
Huo v MIMA [2002] FCA 617
Manna v MIAC [2012] FMCA 28

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 8 November 2019 to refuse 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). Relevant criteria from the Regulations are extracted in the Attachment to this decision.

2. The applicant, K & S Pallets Pty Ltd as Trustee for K & S Unit Trust T/A K & S Pallets ABN 78 522 871 186 (the Trustee), applied for approval on 22 June 2017.  The Trustee indicated in its nomination application that it was seeking to nominate Chinese national Mr Wenyao Ruan to work in the nominated occupation of Supply and Distribution Manager ANZSCO 133611 at its business in Shepparton in regional Victoria.

3. The requirements for the approval of the nomination of a position in Australia are found in reg 5.19 of the Regulations which contains 2 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 all of the requirements of either stream, then the application must be approved.  However, if any of the requirements are not met, then the application must be refused: reg 5.19(5).

4. In this case, the Trustee has applied for approval of a nomination seeking to satisfy the criteria in the Direct Entry nomination stream.

5. The delegate refused the Trustee’s application on the basis it not satisfy reg 5.19(4) of the Regulations because the Trustee failed to demonstrate a genuine need for Mr Ruan to work in the position of Supply and Distribution Manager under the Trustee’s direct control at its business in Shepparton as required by reg 5.19(4)(h)(i)(B) of the Regulations.

6. Inconsistent with cl 5.1 of the Tribunal President’s Migration and Refugee Matters Practice Direction dated 1 August 2018, the representative did not provide on lodgement of the review application all relevant evidence and a detailed submission to address the delegate’s reasons for refusing the Trustee’s nomination and nor did he do so within 14 days of thereof. 

   The Tribunal’s s 359(2) letter

7. To enable the Tribunal to assess whether the Trustee meets all of the relevant requirements for approval of its nomination, on 13 April 2023 the Tribunal wrote to the Trustee pursuant to s 359(2) of the Migration Act 1958 (the Act) and invited it to provide updated and current information about the business and the nominated occupation.  The Tribunal’s letter was sent to Mr Degong Yang, the Registered Migration Agent appointed to receive communications on behalf of the Trustee.

8. The Tribunal’s s 359(2) letter advised the Trustee that, if information in writing was not received by the Tribunal on or before 27 April 2023 or, in the alternative, if it did not, on or before that date, make a request for an extension of time in which to provide the information, the Tribunal: may make a decision on the review without taking further steps to obtain the information; and, the Trustee would lose any entitlement it might otherwise have under the Act to appear before the Tribunal to give evidence and present arguments.

9. The Tribunal is satisfied that its information was properly dispatched to the email address of the Trustee’s representative provided in the review application. No response has been received from the Trustee in response to the Tribunal’s s 359(2) letter. The Trustee has not provided any updated and current information about its business or the nominated occupation as evidence to support that it meets all the requirements of reg 5.19(4) of the Regulations. Nor has it requested additional time in which to do so. In these circumstances, s 359C of the Act applies and, pursuant to s 360(3) of the Act, the Trustee is not entitled to appear before the Tribunal. If a review applicant has no entitlement to a hearing, the effect of s 363A of the Act is that the Tribunal has no power to permit the applicant to appear Hasran v MIAC [2010] FCAFC 40.

10. Although the Trustee has not requested this, the Tribunal has considered whether it would be appropriate to adjourn the review under s 363(1)(b) of the Act to allow the Trustee additional time in which to provide evidence to support its review application. In this regard, the Tribunal has considered whether, in the circumstances of this case and having regard to the passage of nearly 6 years since lodgement of the nomination application with the Department, the impact of the recent COVID-19 pandemic on many businesses, evidence that the Trustee meets all the relevant requirements of reg 5.19(4) is likely to be forthcoming, whether the Trustee has had a fair opportunity to provide the information or documents already, and the significance of the information or documents to the Trustee. 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. 

    [1] [2002] FCA 617.

    [2] [2012] FMCA 28.

11. In the circumstances of this case, the Tribunal considers the Trustee has had sufficient time to provide requested information and thereby address all of the issues arising on review. Accordingly, the Tribunal has decided not to exercise its discretion under s 363(1)(b) of the Act to adjourn the review any further. The Tribunal has determined to make a decision on the review without taking any further action to obtain the information in accordance with s 359C of the Act.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

13. 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)

14. Regulation 5.19(4)(h) contains 2 alternative requirements.  These are set out in full in the Attachment to this 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, the occupation is applicable to the proposed employee in accordance with any specifications made in that instrument, and specified training requirements are met; or,

    ·the position and nominator’s business is located in regional Australia, there is a genuine need for the paid position under the nominator’s direct control which 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 (IMMI 15/083), the occupation is applicable to the proposed employee in accordance with the specification of the occupation and that regional certifying body has advised the Minister about certain matters relating to the position.

15. As noted above, the delegate refused the Trustee’s nomination as it had failed to demonstrate a genuine need to employ the nominee Mr Ruan in the position of Supply and Distribution Manager under the Trustee’s direct control as required by reg 5.19(4)(h)(ii)(B) of the Regulations.

16. On 13 April 2023, the Tribunal wrote to the Trustee pursuant to s 359(2) of the Act and invited it to provide updated and current information to demonstrate that it meets all the relevant requirements in reg 5.19(4) of the Regulations. No response has been received from the Trustee: it has not provided any updated evidence. In these circumstances, the Tribunal has no current information before it to demonstrate that the Trustee satisfies the criteria in reg 5.19(4) of the Regulations.

17. Based on available evidence, the Tribunal is not satisfied that the Trustee has demonstrated it currently has a genuine need to employ Mr Ruan as a Supply and Distribution Manager under the Trustee’s direct control at its business in Shepparton. As such, reg 5.19(4)(h)(i)(B) is not met.

18. Accordingly, the requirements of reg 5.19(4)(h) are not met.

19. For the above reasons, the Tribunal is not satisfied that the Trustee meets the requirements of reg 5.19(4). The Trustee has not sought to satisfy the criteria in Temporary Residence Transition Nomination stream and, as such, it has not met the requirements in reg 5.19(3) of the Regulations. 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.

    Katie Malyon

    
    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;

    (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;

    (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).

    oOOo