MASA ENTERTAINMENT HOLDING PTY LTD (Migration)

[2021] AATA 552

MASA ENTERTAINMENT HOLDING PTY LTD (Migration) [2021] AATA 552 (29 January 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  MASA ENTERTAINMENT HOLDING PTY LTD

CASE NUMBER:  1816804

HOME AFFAIRS REFERENCE(S):          BCC2017/2288251

MEMBER:Katie Malyon

DATE:29 January 2021

PLACE OF DECISION:  Sydney

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

Statement made on 29 January 2021 at 2:43 pm

CATCHWORDS

MIGRATION – approval of a nomination – Temporary Residence Transition Nomination stream – position of Cook – financial capacity to employ the nominee for at least 2 years – decision under review affirmed    

LEGISLATION

Migration Act 1958, ss 359, 360, 363
Migration Regulations 1994, r 5.19

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 19 May 2018 to refuse the application for approval of the nomination of a position in Australia under r.5.19 of the Migration Regulations 1994 (the Regulations) made by Masa Entertainment Holding Pty Ltd (the Company).

2. The Company applied for approval on 28 June 2017. Requirements for the approval of the nomination of a position in Australia are found in r.5.19 of the Regulations which contains 2 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 all 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) of the Regulations.

3. In this case, the Company has applied for approval of a nomination seeking to satisfy the criteria in the Temporary Residence Transition nomination stream.  It nominated the position of Cook ANZSCO 351411 for Shuting Zheng.

4. The delegate refused the application on the basis the Company’s nomination did not satisfy r.5.19(3)(d)(i) of the Regulations because, based on evidence provided, the delegate was not satisfied that the business had the financial capacity to pay the full-time salary for the nominated position for at least 2 years. A copy of the delegate’s decision was provided to the Tribunal.

5. The Tribunal wrote to the Company on 9 December 2020 pursuant to s.359(2) of the Migration Act 1958 (the Act) and invited it to provide a range of information to enable the Tribunal to assess whether the Company now meets all the requirements for approval of the nomination.  Relevantly, the Tribunal requested evidence of:

   ·Financial Reports prepared in accordance with Australian Accounting Standards including Profit and Loss Statements and Balance Sheets for the 2 most recent financial years;

   ·Tax Returns as lodged with the Australian Taxation Office (ATO) for the last 2 financial years; and,

   ·Business Activity Statements (BAS) as lodged with the ATO for the last 2 financial years and the current financial year to date using the ATO’s Tax Agent Portal (or Business Portal) and which have been issued with a receipt number.

6. The Tribunal’s invitation letter was sent to the email address provided by Company’s representative when he lodged the review application. The Tribunal advised the Company in its s.359(2) letter that, if the information was not provided in writing by 23 December 2020 or a request was not made on or before then 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. The Tribunal’s s.359(2) letter also notes that, in either of these circumstances, the Company would lose any entitlement it might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

7. No documentation has been received from the Company within the period of the timeframe to respond to the Tribunal’s s.359(2) letter. No explanation has been provided as to why documentation requested cannot be provided and nor has the Company sought an extension of time in which to provide the information.

8. In these circumstances, s.359C of the Act applies and, pursuant to s.360(3) of the Act, the Company 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.

9. The Tribunal is satisfied that the invitation to provide information was sent to the correct email.  To date, the requested information has not been provided and neither the Company nor its representative has made any contact with the Tribunal to indicate that the information is forthcoming.  The Tribunal is not required to delay indefinitely making its decision.  In the circumstances, the Tribunal has decided to proceed to decision without taking further steps to obtain the information.

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 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.  If any of the requirements are not met then the application must be refused: r.5.19(5) of the Regulations.

    Future employment of the visa holder: r.5.19(3)(d)

12. Regulation 5.19(3)(d) only applies to nominees described in r.5.19(3)(c)(i) of the Regulations. It applies to a nominee who: held a Subclass 457 visa for a total period of at least 2 years in the 3 years immediately before the nominator made the nomination application; and, was employed full-time in Australia in the position in respect of which they hold their 457 visa a period of at least 2 years. For this class of person, the Regulations require that the nominator must demonstrate that the nominee will be employed on a full-time basis for at least 2 years on terms that do not expressly preclude the possibility of an extension.

13. As noted above, the delegate’s decision confirms the Company failed to provide sufficient evidence of its financial capacity to be able to pay the full-time salary to nominee for the nominated position for at least 2 years. 

14. The Tribunal wrote to the Company under s.359(2) of the Act on 9 December 2020 inviting it to provide information in writing to demonstrate that it meets all the requirements of the criteria in r.5.19(3) of the Regulations including criteria in r.5.19(3)(d)(i) of the Regulations. The Company has failed to provide any requested documentation and nor has it sought, within the prescribed period, an extension of time to do so.

15. Based on the total absence of any current evidence regarding the recent financial performance of the Company, the Tribunal is not satisfied the Company has demonstrated it will employ nominee Mr Zheng on a full-time basis in the position of Cook for at least 2 years. In the circumstances, the Company does not meet the requirements in r.5.19(3)(d)(i) of the Regulations.

16. Accordingly, the requirement in r.5.19(3)(d) of the Regulations is not met.

17. For the above reasons, the Tribunal is not satisfied that the Company meets the requirements of r.5.19(3) of the Regulations. The Company has not sought to satisfy the criteria in Direct Entry nomination stream and, as such, has not met the requirements in r.5.19(4) of the Regulations. Accordingly, the nomination of the position cannot be approved. Therefore, the Tribunal must affirm the decision under review.

    DECISION

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

    Katie Malyon

    
    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.

    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.