Kings Lake Estate Pty Ltd (Migration)
[2020] AATA 2852
•3 June 2020
Kings Lake Estate Pty Ltd (Migration) [2020] AATA 2852 (3 June 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT: Kings Lake Estate Pty Ltd
CASE NUMBER: 1818771
HOME AFFAIRS REFERENCE(S): BCC2017/4559737
MEMBER:Cathrine Burnett-Wake
DATE:3 June 2020
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decision under review to refuse the nomination.
Statement made on 03 June 2020 at 1:33pm
CATCHWORDS
MIGRATION – nomination – Direct Entry nomination stream– applicant failed to provide the requested information within the prescribed period– genuine need for the position – insufficient evidence – decision under review affirmedLEGISLATION
Migration Act 1958, ss 359, 360, 363
Migration Regulations 1994, r 5.19CASES
Hasran v MIAC [2010] FCAFC 40
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 1STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW
This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 7 June 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).
The applicant applied for approval on 1 December 2017. 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).
In this case, the applicant has applied for approval of a nomination, seeking to satisfy the criteria in the Direct Entry nomination stream. The nominated occupation was that of ‘Marketing Specialist (ANZSCO 225113)'.
The delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19(4)(a)(ii). The decision record quoted in part:
I have considered all the information before me including the nature of the business, the current staffing, size and scale of the business and RCB advice. Based on the evidence presented and assessment above, I find the application for approval has not identified a need for the nominator to employ a paid employee to work in the position under the nominator’s direct control. Therefore, the nomination does not meet Regulation 5.19(4)(a)(ii).
On 9 April 2020 the Tribunal wrote to the review applicant pursuant to s.359(2) of the Act, inviting the review applicant to provide information demonstrating that the business currently met all relevant criteria in r.5.19(4), including but not limited to, the particular criteria that the Department had found were not met. The Tribunal provided a copy of r.5.19(4) for reference.
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 23 April 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.
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. The Tribunal has decided to proceed to decision without taking further steps to obtain the information.
The Tribunal has given consideration to whether it should adjourn the review under subsection 363(1)(b) of the Act to allow the applicant additional time in which to provide further evidence to support the review application.
In doing so, 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 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)
The Tribunal considered whether, in the circumstances of this case, the information that the applicant meets the requirements in regulation 5.19(4) of the Migration Regulations is likely to be forthcoming and whether the applicant has had a fair opportunity to provide the relevant information or documents already, and the significance of the information or documents to the applicant.
The Tribunal has had regard to the fact that the application was refused by the Department on 7 June 2018 because the delegate was not satisfied they met r.5.19(4)(a)(ii) as they had not identified a need to employ a paid employee to work in the position under their direct control. 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 approximately 2-years of the reasons for the nomination refusal.
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 regulation 5.19(4). The Tribunal is not disposed to delaying making a decision indefinitely.
Accordingly, the Tribunal has decided not to exercise its discretion under subsection 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 Regulation 5.19(4).
For the following reasons, the Tribunal has decided to affirm the decision under review to refuse the nomination.
CONSIDERATION OF CLAIMS AND EVIDENCE
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.
Tasks of the position, genuine need for the position and training requirements r.5.19(4)(h)
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 (see legislative instrument IMMI 17/058 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.
The primary nomination application form lists the nominated position as Marketing Specialist and that it is to be in Upper Capel, Western Australia, which at the time of application was considered a regional area.
The nominator provided a signed Regional Certifying Body Advice Certificate.
The Advice Certificate includes advice on the matters in relation to r.5.19(4)(e) and r.5.19(4)(h)(ii)(B) and r.5.19(4)(h)(ii)(C). The Advice Certificate addresses the following detail:
·the terms and conditions of employment will be no less favourable than those provided to an Australian citizen/permanent resident performing equivalent work in same workplace at the same location;
·there is a genuine need for the nominator to employ a paid employee to work in the position under the nominator's direct control; and
·the position cannot be filled by an Australian citizen/permanent resident who is living in the same local area as that place.
The Tribunal does not have before it the information that was provided to the Regional Certification Body that their advice was based on.
Is the advice of a regional certifying body conclusive?
While r.5.19(4)(h)(ii)(F) requires that a specified body provide advice on the matters mentioned in r.5.19(4)(e) (relating to terms and conditions of employment) and r.5.19(4)(h)(ii)(B) and (C) (relating to a genuine need for the position and the filling of the position by an Australian employee), that advice is not conclusive or determinative of the question whether those other criteria are satisfied. That is, although the advice itself will be enough to satisfy r.5.19(4)((h)(ii)(F), the Tribunal must consider and be satisfied of the matters about which the advice is provided and make separate findings on those other criteria. The advice given by the regional certifying body will, however, be relevant to that separate consideration.
In Bharaj, the Court considered a similar requirement in the pre-July 2012 version of r.5.19(4), and commented in obiter that the use of the word ‘advice’ undoubtedly puts beyond doubt the construction of r.5.19(4), i.e. the advice is to be considered by the Minister (or Tribunal) in determining whether those requirements are satisfied but it is not determinative.[6] That is also the position reflected in Departmental policy.[7]
Is there 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?
[6] Bharaj Construction Pty Ltd v MIBP [2016] FCCA 902 (Judge Barnes, 28 April 2016) at [81].
[7] PAM3: Migration Regulations – Division 5.3 - General > Approval of nominated positions (employer nomination) > 10. Part C - Criteria applicable to Direct Entry stream nominations > [10.7] Consideration of the advice provided by the RCB (reissued on 18/11/17).
The Tribunal notes the applicant posted a job advertisement on Adzuna on 3 November 2017. A copy of the advertisement has not been provided, only a receipt for $108 with the description ‘post a job add to Adzuna Australia.’
The director provided several letters addressing the genuine need for the position and why the position cannot be filled by an Australian citizen or permanent resident who is living in the same local area.
These letters are undated and state in part:
‘… As the director of Kings Lake Pty Ltd, I would like to state that I have made a genuine attempt to fill the vacant position with an Australian citizen or permanent resident.
In our company, we have a standard recruitment procedure which is followed at all times. The procedure is fair and equitable allowing any qualified candidate who matches the criteria to apply. Through the job advertisement we shortlisted candidates based on their working experiences and qualifications, we are proposing to assign Ms. Jianjian Huang working in our company on subclass visa 187. She has shown exceptional working experiences and practical skills in the wine marketing field, and her communication skills and other relevant skills totally fulfilled our requirements. …’
‘…According to our current business structure, our company is operating more efficient with hiring a full-time Marketing Specialist who can perform and support the business as a whole. Generally speaking, a marketing specialist is responsible for creating and delivering marketing strategies to support the growth of business and promote company’s brand and products. We need a full-time marketing specialist to assist in creating new market campaigns, delivering marketing strategies and promote our brand and wine. Although our company has grown to be one of the largest winery in Western Australia, we are still affected by severe and fierce market competitions and the environment of economic recession. There are more than 150 wineries in Western Australia, and some of them quite like ours, such as Mad Fish, Golden Wings, 3 Oceans and Millbrook Winery. To survive from the local market competition, we are in need of someone who is professional in marketing field with sufficient of relevant knowledge and experience to explore potential clients, launch new market campaigns, deliver marketing strategies and promote company’s wine and brand etc…’
These letters were provided approximately 18-months ago. The Tribunal has no contemporary information before it about the business’s current genuine need to employ a Marketing Specialist under their direct control. As such, the claims made are not sufficient to persuade the Tribunal the business has a genuine need for a Marketing Specialist under the nominator’s direct control.
The Tribunal acknowdelges the letter provided by the director which has been reproduced in part at paragraph [25] in relation to the position not being able to be filled by an Australian citizen or permanent resident who is living in the same local area. The Tribunal accepts that the applicant posted a job advertisement in Adzure, however, a one-off job advertisement does not, in the Tribunal’s view, reflect a rigours and robust recruitment exercise. The letter from the director also does not provide detail about job seekers who applied and why they may not have been suitable. A business that is truly engaged in genuinely testing the local labour market and attracting quality candidates would extend a recruitment exercise beyond that of one website.
The Tribunal acknowledges that the certification received from the Regional Certification Board and has provided advice that there is a genuine need for the paid position under the nominator’s direct control which cannot be filled locally by an Australian citizen or permanent resident. However, given approximately 2.5 years has passed since this advice was provided the Tribunal gives the advice little weight as it is out date and not based on current information.
There is insufficient evidence before the Tribunal to support the applicant’s claims that there is a genuine need for the position of Marketing Specialist, and that it cannot be filled locally. The Tribunal is not persuaded based on the information provided to date.
The Tribunal wrote to the applicant under subsection 359(2) of the Act inviting them to provide information in writing demonstrating that the nominating business meets all the requirements of the criteria in regulation 5.19(4) of the Migration Regulations. The applicant has failed to respond. The Tribunal has no contemporary information before it.
Given the deficiencies in the evidence before the Tribunal, it had questions surrounding the criteria relating to genuine need and recruitment efforts of a local, which it planned to address at hearing, the right to which the applicant lost as they did not respond to the s. 359(2) letter. The Tribunal has considered sending out a further general request letter; however, has decided not to do so as the Tribunal previously sent a request for further information, which included specific reference to these two criteria and the applicant failed to respond.
The Tribunal finds that the applicant has failed meet r.5.19(4)(h)(ii)(B) and (C) as they have not demonstrated a genuine need for the paid position under the nominator’s direct control, which cannot be filled by an Australian citizen or permanent resident who is living in the same local area, in this case Upper Capel, Western Australia.
Accordingly, the requirements of r.5.19(4)(h) are not met.
As the Tribunal has found the applicant does not meet r.5.19(4) it is not required to consider the rest of the requirements as set out in r.5.19(4).
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
The Tribunal affirms the decision under review to refuse the nomination.
Cathrine Burnett-Wake
MemberATTACHMENT - 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) 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).
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
Legal Concepts
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Judicial Review
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Procedural Fairness
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Statutory Construction
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Natural Justice
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