KT Halden and EM Mclaughlin and J Mclaughlin (Migration)

[2018] AATA 5459

KT Halden and EM Mclaughlin and J Mclaughlin (Migration) [2018] AATA 5459 (14 November 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  KT HALDEN AND EM MCLAUGHLIN AND J MCLAUGHLIN

CASE NUMBER:  1611742

DIBP REFERENCE(S):  BCC2015/3789226 BCC2015/3789858

MEMBER:Sheridan Lee

DATE:14 November 2018

PLACE OF DECISION:  Melbourne

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

Statement made on 14 November 2018 at 5:20pm

CATCHWORDS
MIGRATION – nomination – Temporary Residence Transition stream –  demonstrate business fulfilled its obligations relating to training – business continued to actively and lawfully operate since that time  – decision under review affirmed

LEGISLATION
Migration Regulations 1994, Schedule 2, rr 5.19(2), 5.19(3), 5.19(4), 5.19(5)

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 Immigration on 19 July 2016 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 to nominate the occupation of Bricklayer on 10 December 2015. 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).

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 r.5.19(3)(f)(i) of the Regulations because the applicant did not supply any evidence to demonstrate that the business had fulfilled its obligations relating to training as a standard business sponsor.

5. On 3 September 2018, the applicant’s migration agent, Mr Youngki Hong of Gongshin Migration services, wrote to advise that all supporting documents had been provided to the Tribunal and the applicant would like the Tribunal to make a decision on the documents provided to date. On 4 September 2018, the Tribunal wrote to confirm that the applicant wished the Tribunal to proceed to make a decision on the available evidence and did not wish to attend a hearing.

6. On 7 September 2018, Mr Keith Halden responded on behalf of the business to confirm the request for the Tribunal to proceed to make a decision on the documentary evidence submitted.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

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

9. The applicant supplied the Tribunal with a range of documents, including apprenticeship records relating to the question of whether the business had fulfilled its training obligations as a standard business sponsor, some payslips issued to the nominee in 2015, a payroll summary for the nominee for the period 12 December to 16 November 2015, a position description, profit and loss statements for 2012 – 13, 2013 – 14 and 2014 – 15, business activity statements lodged with the Australian Taxation Office in 2015, an assessment of the market salary rate undertaken in 2015 and a contract of employments signed 8 December 2015. Some information on the applicant’s visa history was also provided.

10. For both nomination streams, it is a requirement that the nominator is actively and lawfully operating a business in Australia.[1] The applicant has submitted no evidence of its business activities since 2015. As such, the Tribunal cannot be satisfied that the business has continued to actively and lawfully operate since that time, or that it is actively and lawfully operating at the time of decision.

    [1] r.5.19(3)(b)(ii), r.5.19(4)(b)(i).

11. Similarly, it is a requirement for both nomination streams that the nominating employer has a satisfactory record of compliance with the workplace relations laws of the Commonwealth and each State or Territory in which the employer operates their business and has employees of that business.[2] Without any evidence of the nominee or other employees’ current terms and conditions of employment, or any other evidence in respect of the applicant’s compliance with workplace relations laws, the Tribunal cannot be satisfied that the applicant meets this requirement at the time of decision.

    [2] R.5.19(3)(h), r.5.19(4)(g).

12. For the above reasons the Tribunal is not satisfied that the applicant meets the requirements of r.5.19(3) or r.5.19(4). Accordingly, the nomination of the position cannot be approved. Therefore, the Tribunal must affirm the decision under review.

    DECISION

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

    Sheridan Lee
    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

    (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.