KARTAR DHALIWAL PTY LTD (Migration)

[2022] AATA 1575

KARTAR DHALIWAL PTY LTD (Migration) [2022] AATA 1575 (17 February 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  KARTAR DHALIWAL PTY LTD

CASE NUMBER:  1900280

HOME AFFAIRS REFERENCE(S):          BCC2017/414033

MEMBER:Amanda Mendes Da Costa

DATE:17 February 2022

PLACE OF DECISION:  Melbourne

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

Statement made on 17 February 2022 at 11.53am

CATCHWORDS
MIGRATION – nomination – Temporary Residence Transition nomination stream – Hairdresser – applicant failed to provide with a completed withdrawal form – applicant failed to provide requested information – no updated or current information before the Tribunal about the applicant’s business and the nominated position – not satisfied that the nominee will be employed on a full-time basis in the nominated position – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 359, 360, 363
Migration Regulations 1994, r 5.19

CASES

Hasran v MIAC [2010] FCAFC 40

Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617
Kaur v Minister for Immigration and Border Protection [2014] FCA 915
Manna v Minister for Immigration and Citizenship [2012] FMCA 28
Minister for Immigration and Citizenship v Li [2013] HCA 18
Minister for Immigration and Border Protection 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 17 December 2018 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 1 February 2017. 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 Temporary Residence Transition nomination stream.

4. The delegate refused the application on the basis the applicant’s nomination did not satisfy reg 5.19(3)(d)(i) of the Regulations because the delegate was not satisfied that the nominee would be employed on a full-time basis in the nominated position (Hairdresser ANZSCO 391111) for at least two years.

5. On 6 September 2021 the Tribunal wrote to the applicant pursuant to s.359(2) of the Act, inviting it to provide updated and current information (in writing) addressing the criteria in r.5.19 of the Regulations.

6. The applicant was requested to provide any information by 20 September 2021.

7. The invitation was sent to the last address provided in connection with the review and advised that, if the information was not provided in writing by 20 September 2021, the Tribunal may make a decision on the review without taking further steps to obtain to the information and the applicant would lose any entitlement it might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

8. The applicant has not provided the information within the prescribed period (or at all) and no extension has either been sought or granted.  In these circumstances, s.359C applies and pursuant to s.360(3) the applicant is not entitled to appear before the Tribunal.  The effect of s.363A of the Act is that if an 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. The Tribunal has decided to proceed to decision without taking further steps to obtain the information.

9. The applicant has not requested additional time to provide evidence and present arguments, relating to the review application.

10. On 22 December 2021 the Tribunal wrote to the applicant, noting that on 9 December 2021 the Tribunal received correspondence from the applicant’s representative in two other review applications involving the applicant, indicating its intention to withdraw those applications.  The Tribunal sought advice from the applicant about whether it intended to withdraw its review application in this case and if so, requested the applicant to complete a withdrawal of application for review (Form MR10) and return it to the Tribunal at its earliest convenience.

11. On 23 December 2021 the applicant’s representative sent the Tribunal an email attaching a letter from the applicant (dated 8 December 2021).  In that letter, the applicant indicated that it intended to withdraw the review application in this case and another review application by the applicant.  The applicant requested the Tribunal to send it any forms needed to facilitate the withdrawals.

12. On 21 January 2022 the applicant’s representative sent an email to the Tribunal indicating that they had been instructed by the applicant to withdraw the review application in this case and another review application involving the applicant and that a signed withdrawal form in the other case would be sent to the Tribunal in a separate email as soon as it was received from their client.

13. On 24 January 2022 the Tribunal wrote to the applicant requesting it to complete and return to the Tribunal, a Form MR10 withdrawal form in this case and a separate one in the other  review application lodged by the applicant.  An online link to the MR10 form was included in the Tribunal’s letter.

14. The Tribunal notes that despite being given a number of weeks in which to provide it with a completed withdrawal form in this matter, the applicant has failed to do so.  

15. The Tribunal has also considered whether it would be appropriate to adjourn the application for review under s.363(1)(b) of the Act to allow the applicant additional time in which to provide evidence to support its application for review or to allow the applicant further time in which to provide it with a completed withdrawal form.

16. In doing so, the Tribunal has taken into account the decisions in Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617 and Manna v Minister for Immigration and Citizenship [2014] FMCA 28, 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 [2013] HCA 18 regarding the reasonableness of any request for an adjournment, and the Full Federal Court decision in Minister for Immigration and Border Protection v Singh [2014] FCAFC 1, which considered this issue, as well as the decision in Kaur v Minister for Immigration and Border Protection [2014] FCA 915 where analogous issues were discussed.

17. The Tribunal has taken into account that the applicant has not provided the information invited to be provided, within the prescribed period set for this purpose.

18. The Tribunal has also taken into account the fact that the applicant has been aware since the delegate’s decision on 17 December 2018 of the reasons for the nomination application being refused. The Tribunal also notes that the implications of not providing the information requested in the invitation from the Tribunal were set out in the letter of 6 September 2021.

19. In these circumstances, the Tribunal considers that the applicant has had sufficient time in which to provide information addressing the central issues arising in the application for review, or in which to request an extension of time in order to provide that information, but 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 it meets the relevant criteria under r.5.19.

20. The Tribunal has also taken into account that the appropriate means of withdrawing a review application is for an applicant to provide the Tribunal with a completed withdrawal form.  The Tribunal further notes that despite being requested to provide it with a completed withdrawal form on two occasions, being provided a link to the appropriate withdrawal form (MR10) and being given sufficient time in which to send the Tribunal a completed withdrawal form, the applicant has failed to do so.         

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

22. 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 reg 5.19(3), which is extracted in the attachment to this decision. For the nomination to be approved, all the requirements must be met.

    Future employment of the visa holder: reg 5.19(3)(d)

23. Regulation 5.19(3)(d) only applies to certain nominees (those described in reg 5.19(3)(c)(i)). For this class of person, the Regulations require that the nominee will be employed on a full- time basis for at least 2 years on terms that do not expressly preclude the possibility of an extension.

24. The Tribunal notes that the applicant has not provided it with any information regarding either the applicant’s business or the nominated position since the review application was lodged and that the delegate’s decision was made approximately 34 months ago.  Accordingly, there is no updated or current information before the Tribunal about the applicant’s business and the nominated position.

25. Based on the evidence before it, the Tribunal is not satisfied that the nominee will be employed on a full-time basis in the nominated position (Hairdresser) for at least two years.

26. Given the above findings, the requirement in reg 5.19(3)(d) is not met. Given that the applicant has not met one of the criteria in r.5.19, the Tribunal does not consider it necessary to consider the remaining criteria.

27. For the above reasons the Tribunal is not satisfied that the applicant meets the requirements of reg 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 reg 5.19(4). Accordingly, the nomination of the position cannot be approved. Therefore, the Tribunal must affirm the decision under review.

    DECISION

28. The Tribunal affirms the decision under review to refuse the nomination.

    Amanda Mendes Da Costa
    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.