Lanmark Insulations Pty Ltd (Migration)

[2022] AATA 2180

Lanmark Insulations Pty Ltd (Migration) [2022] AATA 2180 (23 June 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Lanmark Insulations Pty Ltd

REPRESENTATIVE:  Ms Tapaswini Patel (MARN: 1800513)

CASE NUMBER:  1909842

HOME AFFAIRS REFERENCE(S):          BCC2018/635295

MEMBER:K. Chapman

DATE:23 June 2022

PLACE OF DECISION:  Brisbane

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

Statement made on 23 June 2022 at 9:54pm

CATCHWORDS

MIGRATION – approval of a nomination – Direct Entry stream – occupation of Contract Administrator – genuine need for the position – terms and conditions of employment no less favourable – decision under review affirmed           

LEGISLATION

Migration Act 1958, ss 359, 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
Manna v Minister for Immigration and Citizenship [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 30 March 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’).

2. 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. The applicant, Lanmark Insulations Pty Ltd (also ‘the nominator’), applied for approval on 7 February 2018. The applicant nominated Mr Ankit Kirtikumar Shah (‘the nominee’) in the occupation of Contract Administrator (ANZSCO Code 511111). The application for nomination was made in connection with the Regional Sponsored Migration Scheme. In this case, the applicant has applied for approval of a nomination, seeking to satisfy the criteria in the Direct Entry nomination stream.

4. The delegate refused the application on the basis the applicant’s nomination did not satisfy reg 5.19(4)(h)(ii)(B), due to a lack of satisfaction there is a genuine need for the nominator to employ the nominee, as a paid employee, to work in the position under the nominator’s direct control. On 18 April 2019, the applicant applied to the Tribunal for review of the nomination decision. The applicant submitted a copy of the delegate’s decision with their application for review.

5. On 28 March 2022, the Tribunal wrote to the applicant pursuant to subsection 359(2) of the Act inviting them to provide current information addressing the relevant criteria under reg 5.19(2) and (4). The Tribunal is satisfied this invitation was properly despatched to the email address of the applicant’s representative. On 11 April 2022, the representative requested an extension of time to respond. On 12 April 2022, the Tribunal granted an extension to respond until 9 May 2022. The applicant failed to respond to the information within the prescribed period as extended. No substantive response to that invitation has been received by the Tribunal at the time of this decision.

6. Where an applicant is invited to provide further information in accordance with subsection 359(2) of the Act, and fails to do so within the prescribed period, the Tribunal may make a decision on the review without taking any further action to obtain the information according to subsection 359C(1) of the Act. In these circumstances, the applicant is not entitled to appear before the Tribunal in accordance with subsection 360(3) of the Act. Of note, 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 the review applicant to appear before it as outlined in the Full Federal Court matter of Hasran v MIAC [2010] FCAFC 40.

7. The Tribunal has carefully considered whether to afford additional time to the applicant to give the information requested in the s.359(2) invitation, or to provide further material in support of their application for review. In doing so, it has paid careful regard to the guidance in the decisions of Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617 and Manna v Minister for Immigration and Citizenship [2012] FMCA 28 where the Courts held that the Tribunal is not required to indefinitely defer its decision making process.

8. The Tribunal has taken into account that the applicant has been aware since around 30 March 2019 of the reasons for the nomination application being refused and also that the implications of not responding to the information requested in the invitation from the Tribunal of 28 March 2022 (with the extension of time to respond) were set out in the relevant correspondence.

9. In these circumstances, the Tribunal considers that the applicant has had sufficient time in which to provide the information requested in the s.359(2) invitation and address the central issues arising in the application for review. On balance, the Tribunal considers it appropriate to make its decision on the review without taking any further action to obtain the information requested in the aforementioned invitation. Accordingly, the Tribunal has made its decision on this review application having due regard to the documentary material before it.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. 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.

    Term of employment of the visa holder: reg 5.19(4)(d)

12. Regulation 5.19(4)(d) requires the nominee to be employed in the nominated position for at least 2 years full time, and the terms and conditions of that employment do not expressly exclude the possibility of an extension.

13. There is a dearth of contemporary information before the Tribunal regarding the future employment of the nominee, particularly as the applicant failed to respond its invitation pursuant to s.359(2) of the Act. On balance, the Tribunal cannot be satisfied that the nominee will be employed by the applicant on a full time basis in the nominated position for at least 2 years.

14. Accordingly, the Tribunal finds that the applicant does not satisfy reg 5.19(4)(d)(i).

    No less favourable terms and conditions of employment: reg 5.19(4)(e)

15. Regulation 5.19(4)(e) requires that the terms and conditions of employment applicable to the nominated position will be no less favourable than those that are, or would be, provided to an Australian citizen or permanent resident performing equivalent work in the same workplace at the same location.

16. There is no contemporary information before the Tribunal regarding the terms and conditions of employment within the applicant’s business, particularly as it failed to respond to the invitation pursuant to s.359(2) of the Act. On balance, the Tribunal cannot be satisfied that the terms and conditions of employment applicable to the nominated position will be no less favourable than those that are, or would be, provided to an Australian citizen or permanent resident performing equivalent work in the same workplace at the same location.

17. Accordingly, the requirement in reg 5.19(4)(e) is not met.

    Tasks of the position, genuine need for the position and training requirements: reg 5.19(4)(h)

18. Regulation 5.19(4)(h) contains a number of alternative requirements. The present review concerns an application for nomination in connection with the Regional Sponsored Migration Scheme, in the Direct Entry nomination stream. Accordingly, reg 5.19(4)(h)(i) is not relevant to the review.

19. Regulation 5.19(4)(h)(ii), as is relevant to this review, requires that:

    ·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.

20. There is a paucity of contemporary information before the Tribunal regarding whether there is a genuine need for the applicant/nominator to employ the nominee as a paid employee, to work in the position under the nominator’s direct control. This is particularly so, given the applicant failed to respond to the Tribunal’s invitation pursuant to s.359(2) of the Act. On balance, the Tribunal is not satisfied that there is a genuine need for the applicant/nominator to employ the nominee as a paid employee, to work in the position under the nominator’s direct control.

21. Therefore, the applicant does not meet the requirements of reg 5.19(4)(h)(ii)(B).

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

    DECISION

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

    K. Chapman
    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 an identified person, as 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).