KT Autocare Pty Ltd (Migration)

KT Autocare Pty Ltd (Migration) [2018] AATA 1023 (22 March 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  KT Autocare Pty Ltd
CASE NUMBER:  1703640
DIBP REFERENCE(S):  BCC2016/1761990
MEMBER:Karen McNamara
DATE:22 March 2018
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision under review to refuse the nomination.

Statement made on 22 March 2018 at 10:10am

CATCHWORDS
Migration – Business nomination approval – Direct Entry Nomination stream – Applicant unable to provide information to the Tribunal as requested – Tribunal did not adjourn review – Requirements of r.5.19 (4) (a)(ii) not met – Lack of evidence to support the nominators’ claims – No evidence of an increase in business
LEGISLATION
Migration Act 1958, ss 245AR, 359, 359C, 360, 363, 363A
Migration Regulations 1994, r 5.19 Schedule 2
CASES
Hasran v MIAC [2010] FCAFC 40
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration on 13 February 2017 to reject the application by KT Autocare Pty Ltd (the applicant) 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 17 May 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 (r.5.19(3)) stream and a Direct Entry nomination (r.5.19(4)) stream. 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 delegate refused the application on the basis the applicant’s nomination did not meet the requirements of r.5.19 (4) (a)(ii) of the Regulations because the delegate was not satisfied that the applicant demonstrated a need for the nominator to employ a paid employee to work in the position of fulltime Motor Mechanic under the nominator’s direct control.
The applicant applied to the Tribunal on 1 March 2017 for review of the delegate’s decision.
On the 14 February 2018, the Tribunal wrote to the applicant pursuant to section 359(2) of the Act (dispatched by email to the authorised recipient), requesting the applicant to provide updated and current information that would assist to determine whether the criteria in r. 5.19(2) & (4) of the Regulations were met. The applicant was advised if the information was not provided in writing by 28 February 2018, or if the applicant has not made 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 further, 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.
The applicant’s authorised recipient and registered migration agent, BAJWA Immigration Consultants, advised the Tribunal by way of email dated 27 February 2018 that their client KT Autocare Pty Ltd (the applicant) was seeking an extension of time “for a few weeks.” The Tribunal wrote to the applicant on the 28 February 2018 (dispatched by email to the authorised recipient and registered migration agent) advising an extension of time was granted with information to be received by the Tribunal by 14 March 2018.
On 13 March 2018 the Tribunal received by way of email from the applicant’s authorised recipient and registered migration agent, advice stating “ I would like to inform you that , I have recently received an email from our client stating that they cannot provide the further information requested by AAT in regards to the nomination refusal of KT Autocare Pty Ltd.” The email went on to state, “I really appreciate your patience and apologies for any inconvenience caused. I will definitely forward you the documents in case client provide me any in regards to same.”
Having regard for the applicant’s inability to provide information requested by the Tribunal in accordance with s 359(2) of the Act, 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, if a review applicant has no entitlement to a hearing, the tribunal has no power to permit the applicant to appear: Hasran v MIAC [2010] FCAFC 40.
The Tribunal has considered whether this is an appropriate case for it to adjourn the review under s.363(1)(b) of the Act, to allow the applicant additional time in which to provide evidence to support the review application. In this regard the Tribunal considered whether, in the circumstances of this case, evidence that the applicant meets all of the requirements of r.5.19(4) of the Regulations is likely to be forthcoming, whether the applicant 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 regard to the fact that the nomination application was refused by the Department on 13 February 2017. 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 12 months of the reasons for the nomination application refusal.
The Tribunal wrote to the applicant under subsection 359(2) of the Act inviting the applicant to provide information demonstrating that the nomination meets all the requirements of the criteria in regulation 5.19(4) of the Regulations. The applicant was granted an extension of time to provide the information. The applicant then advised the Tribunal by way of their authorised recipient and registered migration agent, their inability to provide the information. The Tribunal notes, the applicant has not sought an extension of time additional to that provided by the Tribunal on the 28 February 2018.
In these circumstances, the Tribunal considers 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 advice from the applicant’s authorised recipient and registered migration agent in their email of 13 March 2018. “I will definitely forward you the documents in case client provide me any in regards to the same.” The Tribunal notes that it is uncertain if and when the applicant will provide information in writing as to whether the applicant meets the requirements of reg. 5.19(3) & (4). The Tribunal has decided not to delay its decision any further.
Accordingly, the Tribunal has decided not to exercise its discretion under subsection 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 section 359C of the Act. In passing, the tribunal notes that the applicant is not prevented from lodging a new nomination application with the Department.
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.

The application is compliant: r.5.19(4)(a)

Regulation 5.19(4)(a) requires that the application for approval must be in the approved form, must be accompanied by the prescribed fee, and, where applicable, must include the required written certification relating to conduct that contravenes s.245AR(1). The application must also identify a need for the nominator to employ a paid employee to work in the position under their direct control.
On 17 May 2016, the applicant lodged online a Regional Sponsored Migration Scheme nomination application, under the Direct Entry stream. In that application, the positon nominated was for a “Motor Mechanic – ANZSCO 321211” within their business, being KT Autocare Pty Ltd. The delegate noted that r.5.19(4) requires the nomination to identify the need for a paid employee to work in the position under the direct control of the nominator. The proposed base salary is $67,000.
On 25 November 2016, the Department invited the applicant to provide further information. On 6 December 2016, the applicant notified the Department of change of email address. On 3 January 2017 the Department invited the applicant to provide further information as per the Department’s initial request of the 25 November 2016
17.As noted on the primary decision record (a copy which was provided with the review application), on the 9 January 2017 the applicant provided, among other documents to the Department:
·Need for paid employee –Statement by Director of the business Mr Ranjith Nagarajah dated 20 December 2016
·Organisation Chart as at 9 January 2017
The delegate noted comments within the document titled “Need for paid employee” that Mr Nagarajah claims, “the business is doing very well”, and that the business is “constantly getting new clients”. The nominator also claims the position is “very important” to the growth of the business, smooth functioning of the business and timely delivery of services to clients. The nominator also claims the nominee has been working within the organisation in a fulltime capacity since 5 December 2016.
The delegate also noted the employee structure of the business consisting of;
·Director: Ranjith Kumat Nagarajah
·Manager: Pardeep Palanisamy
·Motor Mechanic:Van Nguyen
·Motor Mechanic: Jagwant Kaur (nominee)
·Worker: Nicholos Revel
The delegate further noted the lack of evidence to support the nominators’ claims that the business is expanding. There is no evidence of an increase in business activity or for overtime worked by current employees. Claims the positon is very important to the growth of the business, have not been supported, by any evidence that the business is actually growing. In addition, no evidence has been provided supporting the nominator’s claim that the positon is currently occupied by a Temporary resident (the nominee).
The Tribunal wrote to the applicant under s.359 (2) of the Act on 14 February 2018 inviting them to provide information in writing to demonstrate that the applicant meets the requirements of the criteria in r.19(4) of the Regulations, including r.5.19(4)(a) of the Regulations. This information was required to be provided in writing to the Tribunal by 27 February 2018; or to request an extension of time if same was needed.
The applicant’s authorised recipient and registered migration agent, sought an extension by way of email dated 27 February 2018. The Tribunal granted an extension of time providing the applicant to the 14 March 2018 to provide information. On the 13 March 2018, the Tribunal received by way of email from the applicant’s authorised recipient and registered migration agent, advice that the applicant could not provide further information.
The Tribunal has regard to the fact that the only information submitted by the applicant with the review application is a copy of the primary decision record. The Tribunal did not receive any further information from or on behalf of the applicant at the date and time of this decision.
The Tribunal finds that there is no evidence, which would lead it to depart from the Departmental findings that have been made. Having regard to the applicant’s claims that the business is expanding, the position is very important to the growth of the business and the nominee is currently occupying the position, there is no evidence to satisfy the Tribunal that the applicant has established a need for the full time positon of Motor Mechanic in the business, to work under the direct control of the nominator.
Accordingly, the requirement in r.5.19(4)(a) is not met.
Term of employment of the visa holder: r.5.19(4)(d)
Regulation 5.19(4)(d) requires the nominee to be employed in the nominated position for at least 2 years full time, on terms that do not expressly exclude the possibility of an extension.
The Tribunal has had regard to the information presently before it. The applicant did not provide financial statements that will indicate the applicant’s financial capacity to provide for the person nominated, to be employed by the applicant on a fulltime basis in the position for two years.
Given the above findings, the applicant does not meet the requirements of r.5.19(4)(d)(i) of the Regulations.
Accordingly, the requirements in r.5.19(4)(d) of the Regulations are not met.
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.
Karen McNamara
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).

[2018] AATA 1023

22 March 2018

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Remedies