McTatts Property Pty Ltd (Migration)

[2023] AATA 2553

McTatts Property Pty Ltd (Migration) [2023] AATA 2553 (12 July 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  McTatts Property Pty Ltd

REPRESENTATIVE:  Mr Matthew Paul Gentle (MARN: 0701599)

CASE NUMBER:  1931825

HOME AFFAIRS REFERENCE(S):          BCC2018/984255

MEMBER:Peter Emmerton

DATE:12 July 2023

PLACE OF DECISION:  Adelaide

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

Statement made on 12 July 2023 at 11:29am

CATCHWORDS

MIGRATION – approval of a nomination – Direct Entry nomination stream – genuine position – terms and conditions of employment no less favourable – no Regional Certifying Body approval – employer nomination fee – decision under review affirmed 

LEGISLATION

Migration Act 1958, ss 245, 359
Migration Regulations 1994, rr 5.19, 5.37

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 21 October 2019 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 1 March 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 r.5.19(4)(h)(ii)(F) of the Regulations because in the information submitted, no person specified in the instrument relevant to sub-subparagraph 5.19(4)(h)(ii)(F) has advised the Minister that the matters mentioned in paragraph (e) or sub-subparagraphs (B) and (C) have been met.

5. The applicant, Mr Adrian Hill, General Manager, representing McTatts Property Pty Ltd, appeared before the Tribunal on 5 July 2023 in a combined hearing with MRT file reference 1934577.  to give evidence and present arguments. The Tribunal also received evidence from Ms Livia Caram Meireles, the visa applicant and Mr John McElhone, Managing Director of the nominating entity.

6. The applicant was represented at the hearing in relation to the review by its registered migration agent.

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 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.

9. In determining the applicant’s claims the Tribunal must first make findings of fact on material matters in dispute. This may involve an assessment of credibility and in so doing, the Tribunal is aware of the need and the importance of being sensitive to the circumstances and the difficulties applicants often face before the Tribunal in their particular circumstances.

10. The Tribunal found the applicants participating in the hearing appeared truthful and answered to the best of their ability without any apparent obfuscation.

11. The applicants rely on the evidence given before the Tribunal together with written submissions and supporting evidence provided to the Tribunal and previously to the department.

    Tasks of the position genuine need for the position and training requirements r.5.19(4)(h)

12. Regulation 5.19(4)(h) contains a number of alternative requirements. These are set out in detail in the attachment to the decision but can be briefly summarised as requiring either that:

    ·the tasks to be performed in the position will be performed in Australia and correspond to those of an occupation specified by the Minister (see legislative instrument IMMI 17/059), the occupation is applicable to the proposed employee in accordance with any specifications made in that instrument, and specified training requirements are met; or

    ·the position and nominator’s business is located in regional Australia, there is a genuine need for the paid position under the nominator’s direct control which 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.

13. The applicant applied for the nomination as a Regional Sponsored Migration Scheme position. They are therefore required to meet the second set of requirements stated above.

14. Regulation 5.19(4)(h)(ii)(F) requires that a Regional Certifying Body, located in the same State or Territory as the position, has advised the Minister about the matters in r.5.19(4)(e) and r.5.19(4)(h)(ii)(B) and r.5.19(4)(h)(ii) (C).

15. The Tribunal during the hearing invited the applicant to provide information which included whether a specified Regional Certifying Body (RCB) located in the same State or Territory as the nominated position has provided advice to the Minister that:

    i. the terms and conditions of employment are no less favourable than
    those provided to Australian citizens or permanent residents performing
    equivalent work in the same workplace; and

    ii. there is a genuine need to employ the nominated person as a paid
    employee to work in the nominated position under the applicant’s direct
    control; and

    iii. the position cannot be filled by an Australian citizen or permanent resident living in the same area. 

16. The applicant did not provide an RCB advice document to the Department nor to the Tribunal prior to the hearing.

17. The Tribunal acknowledges that the department sent the nominator an invitation on 28 September 2019, to comment on adverse information, namely that they did not meet the requirement to provide RCB advice and provided them with 28 days from the date of the notice to respond. At the time of the department’s decision on 25 November 2019 no response had been received.

18. The Tribunal in addition notes that in their original application dated 1 March 2018 states the following on page 4.  ‘Has this nomination been certified by a Regional Certifying Body? No’.

19. The Tribunal sent the nominating entity, via their representative, on 13 April 2023 an invitation to provide information under Section 359(2). In that document reference was made to the RCB certification. Some additional materials were provided prior to the hearing but they did not include the relevant RCB advice as outlined in paragraphs 14-15 of this decision.

20. Under questioning during the hearing, the applicant confirmed that they were unable to provide the evidence required, as previously detailed in paragraphs 14-15 of this decision. For clarity, it is a requirement to satisfy Regulation 5.19(4)(h)(ii)(F) that a Regional Certifying Body, located in the same State or Territory as the position, has advised the Minister about the matters in r.5.19(4)(e) and r.5.19(4)(h)(ii)(B) and r.5.19(4)(h)(ii) (C). The Tribunal was told by both the nominator and the nominee that they were unaware of the issue associated with the failure to provide the RCB advice until recently.

21. The Tribunal was asked to delay its decision for 14 days in order that the representative could attempt to obtain the necessary RCB advice. The Tribunal granted 7 days and advised the representative that the decision would be delayed for 7 days and then made.

22. The Tribunal notes that the applicant’s representative was unable to provide the RCB advice within the stipulated 7-day extension of time as the relevant Regional Certifying Body advised that it was no longer able to perform this activity. In a letter addressed to the Tribunal dated 10 July 2023 it stated the following.

23. ‘The migration agent in this matter (name provided) has advised me RCB Certification was not sought before a decision was made by the Department of Home Affairs to refuse the RSMS 187 Direct Entry Nomination application. The RCB was not approached for certification before the RSMS scheme closed on 16 November 2019.’

24. The Tribunal notes that the relevant Officer of the Regional Development Australia Northern Rivers, explained in substantial detail, in a cogent 4-page letter addressed to the Tribunal, as to why the RCB Certification would have been approved and issued had the scheme still be operating. The Tribunal accepts the explanation as valid. The Tribunal has some sympathy for the plight facing the nominating entity and the visa applicants due to the failure of their representative to act in a timely manner. It is reasonable that organisations unfamiliar with the requirements, having never applied for this scheme prior to this application, rely upon their representative to act appropriately. They are unlikely to be able to reasonably assess if the application process was not undertaken in a competent manner. However, the Tribunal within the confines of the legislation, has no capacity to exercise discretion in this matter.

25. There is no evidence on the Department’s file that the applicant has obtained the necessary certification from a Regional Certifying Body related to the review currently before the Tribunal, (1803383). Nor was the applicant able to provide any evidence of having obtained the necessary certification linked to this nomination when requested by the Administrative Appeals Tribunal, (AAT).

26. There is no evidence before the Tribunal that the necessary certification from a Regional Certifying Body has or can be provided for the related nomination being considered in this decision.

27. The Tribunal has no discretionary power in relation to r.5.19(4)(e), r.5.19(4)(h)(ii)(B), r.5.19(4)(h)(ii) (C) and r.5.19(4)(h)(ll)(F).

28. There is no evidence before the Tribunal that a Regional Certifying Body, located in the same State or Territory as the position, has advised the Minister about the matters in r.5.19(4)(e) and r.5.19(4)(h)(ii)(B) and r.5.19(4)(h)(ii) (C) relating to the case being reviewed, (1931825).

29. Therefore, there is no evidence before the Tribunal that the applicant meets r.5.19(4)(h)(ii)(F). Accordingly, the requirements of r.5.19(4)(h) are not met.

30. The Tribunal notes that the applicant has made no claims towards regulation 5.19(4)(h)(i) and has not paid an employer nomination fee mentioned in regulation 5.37 in order for the application to be assessed under regulation 5.19(4)(h)(i).

31. 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 the 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

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

    Peter Emmerton

    
    

    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).