MINECCO PTY LTD (Migration)

[2020] AATA 2842

MINECCO PTY LTD (Migration) [2020] AATA 2842 (21 April 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  MINECCO PTY LTD

CASE NUMBER:  1810657

DIBP REFERENCE(S):  BCC2017/4182020

MEMBER:Andrew George

DATE:21 April 2020

PLACE OF DECISION:  Darwin

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

Statement made on 21 April 2020 at 4:20pm

CATCHWORDS

MIGRATION – nomination of a position – Direct Entry Nomination stream – position of Other Sports Coach or Instructor – genuine need for the employment – evidence of current employment by the nominator in the position – tasks do not align with the position description – decision under review affirmed          

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, r 5.19

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 28 March 2018 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 on 9 November 2017. 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 Direct Entry Nomination stream. The nominated person is Mr Gabriel Sineiro. The proposed occupation is Other Sports Coach or Instructor – 452317.

4. The delegate refused the application on the basis that the applicant’s nomination did not satisfy r.5.19(4)(a)(ii) of the Regulations. The delegate wrote:

   “I note the submission of the Genuine need provided, the nominator has claimed that the nominee currently is employed in their business and fills many roles, which the business is in dire need of. However, there is no clear evidence (such as payslips or PAYG payment summary for the nominee) to demonstrate that the nominee has been employed by the nominator in the position. I therefore give little weight to this claim and this raises further concern regarding the vacancy for the nominated position.

   I have considered all the information before me including the nature of the business, the current staffing, size and scale of the business. Based on the evidence presented and assessment above, I find the application for approval has not identified a need for the nominator to employ a paid employee to work in the position under the nominator’s direct control. Therefore, the nomination does not meet Regulation 5.19(4)(a)(ii).”

5. The applicant was represented in relation to the review by its registered migration agent, Ms Watts of Inclusive Migration.

6. On 31 October 2019, the Tribunal invited the applicant to provide updated and current information. This invitation was returned to sender on the same date.

7. On 30 January 2020, the applicant’s agent provided updated contact details and another invitation to provide updated and current information as made. The Tribunal granted a request for an extension of time until 27 February 2020 to provide information, however no the Tribunal received no response.

8. On 5 February 2020, Ms Ainsley Smith notified the Tribunal that she no longer worked for the applicant. The Tribunal raised this issue with the applicant’s agent on 7 February 2020. Again, the Tribunal received no response.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. 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. All the requirements must be met for the nomination to be approved.

    The application is compliant: r.5.19(4)(a)

11. Regulation 5.19(4)(a) requires that the application for approval must be in the approved form, must be accompanied by the prescribed fee, and, where applicable, must include the required written certification relating to conduct that contravenes s.245AR(1). The application must also identify a need for the nominator to employ an identified person as a paid employee to work in the position under their direct control. It is this last criterion that is most relevant.

12. The Tribunal has examined an undated statement from Ms Ainsley Smith, the Club Manager, which “…serves to address the need for the position”. This statement lacks many specifics, however is broadly complimentary of the nominee. For example, Ms Smith writes, “It is clear from our organisational chart that qualified Instructors are essential to the success of our business. We have seen the club grow from 599 members to 655 in the past 8 months”. Nevertheless, the apportionment of duties between staff is unclear from the chart and the statement. The Tribunal notes that Ms Smith has also said:

    “Gabriel fills many roles, which we are in dire need of. He is able to lead group fitness classes, offer one-on-one training for our members, provide members with orientations and customised programs, supervise members in the gym to ensure they are using the equipment safely, as well as give us hours in the office when needed”.

13. What is unclear to the Tribunal is the frequency and extent to which the nominated person, and his colleagues, completes each of these tasks as at the time of this decision. This is especially so as the tasks listed by Ms Smith in her statement does not completely align with the position description of the nominated position.

14. The Tribunal notes the Region Certifying Body Form 1404 dated 26 October 2017. This Form 1404 assessed that “there is a need for a paid employee in the nominated position within the business activities of the nominating employer”. The supporting documentation upon which this assessment was based was provided to the Department under the cover of an email from Ms Josephine Clark dated 31 October 2017. In that material is a statutory declaration signed by Ms Smith dated 8 September 2017 stating “there is a genuine need for the business to employ a paid employee to work in the position under the nominator’s direct control …” This is a bald statement. There is no reasoning in Ms Smith statutory declaration to support this statement. As such, and in light of the other material before it, the Tribunal does accept Ms Smith’s statutory declaration dated 8 September 2017. Flowing from this, the Tribunal also does not accept the Form 1404 that uncritically relies upon Ms Smith statutory declaration.

15. The delegate’s decision raised the issue of non-provision of payslips or a PAYG summary for the nominee. This is material, as the application must identify the need to employ a paid employee. Although the Tribunal has before it employment contracts dated 28 February 2018 and 25 October 2017, there is scant evidence before the Tribunal that the nominated person has in fact been paid. Amongst the documentation supporting the Regional Certifying Body assessment is a pay slip for the nominated person for the period 16-29 September 2017. However, there is insufficient evidence before the Tribunal to satisfy it that the nominated person was paid at the time of application or remains so.

16. Accordingly, the Tribunal is not satisfied that that there is a need for a paid employee in the nominated position within the business activities of the nominating employer. The requirement in r.5.19(4)(a)(ii) is not met.

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

17. Regulation 5.19(4)(h) contains a number of alternative requirements. These are set out in detail in the attachment to the decision. Materially, they require that 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 Tribunal observes from the findings already made that this requirement is not met, although it is unnecessary to examine this point further.

18. 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 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

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

    Andrew George
    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 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).