M G Creative Enterprise Pty Ltd (Migration)

[2023] AATA 4274

M G Creative Enterprise Pty Ltd (Migration) [2023] AATA 4274 (12 December 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  M G Creative Enterprise Pty Ltd

REPRESENTATIVE:  Mr Satyaprakash Shukla (MARN: 2013945)

CASE NUMBER:  2211838

HOME AFFAIRS REFERENCE(S):          BCC2018/936647

MEMBER:P. Maishman

DATE:12 December 2023

PLACE OF DECISION:  Perth

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

Statement made on 12 December 2023 at 11:31pm

CATCHWORDS

MIGRATION – approval of a nomination – Direct Entry nomination stream – employing the nominee for at least two years – terms and conditions employment exclude the possibility of an extension – nominee resigned the position – updated financial information – decision under review affirmed     

LEGISLATION

Migration Act 1958, ss 245, 359, 363
Migration Regulations 1994, rr 15.19, 5.37

CASES

Hasran v MIAC [2010] FCAFC 40

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 26 July 2022 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 27 February 2018. 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 Direct Entry nomination stream.

4. The delegate refused the application on the basis the applicant’s nomination did not satisfy reg 5.19(4)(d) of the Regulations because the delegate was not satisfied the nominee would be employed in the nominated position for at least 2 years full time, or that the terms and conditions of that employment do not expressly exclude the possibility of an extension.

5. On 11 August 2023 the Tribunal wrote to the review applicant pursuant to s 359 of the Act, inviting the review applicant to provide information about updated and current information addressing the relevant criteria in reg 5.19(2) and (4) of the Regulations in writing. The invitation notified the applicant the Tribunal must be satisfied the requirements of all relevant criteria in reg 5.19 are met at the time of its decision for the nomination of the position to be approved.

6. The invitation was sent to the email address provided in connection with the review. The invitation advised if the information was not provided in writing, or an extension of time requested, by 25 August 2023 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.

7. The applicant did not request an extension or provide the information within the prescribed period i.e. by 25 August 2023. 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 the applicant to appear: Hasran v MIAC [2010] FCAFC 40.

8. On 1 September 2023 the Tribunal received some financial statements and a letter from the applicant, however this response was received outside of the prescribed period i.e. 25 August 2023.

9. The Tribunal interviewed Mrs Monique Guirguis, director of the applicant, by telephone on 12 December 2023. Mrs Guirguis told the Tribunal the nominee had resigned and was no longer going to be employed by the applicant.

10. The Tribunal has decided to proceed to decision without taking further steps to obtain further information.

11. The applicant was represented in relation to the review.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

13. 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)

14. 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.

15. Mrs Guirguis told the Tribunal during an interview that the nominee had recently tendered his resignation and would not be continuing to work for the applicant.

16. The applicant has provided no documentary evidence to indicate the period the nominee would be employed for, nor the terms and conditions of employment.

17. The Tribunal is not satisfied the nominee would be employed in the nominated position for at least 2 years full time, or that the terms and conditions of the nominee’s employment do not expressly exclude the possibility of an extension.

18. Accordingly, the requirement in reg 5.19(4)(d) is not met.

19. For the above reasons 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

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

    P. Maishman
    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).