Mitchell Constructions (NSW) Pty Ltd (Migration) - [2024] AATA 915

Mitchell Constructions (NSW) Pty Ltd (Migration) [2024] AATA 915 (18 April 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mitchell Constructions (NSW) Pty Ltd
REPRESENTATIVE:  Ms Wing Yee Li (MARN: 1461503)
CASE NUMBER:  2118602
HOME AFFAIRS REFERENCE(S):          BCC2016/4023897
MEMBER:Alan McMurran
DATE:18 April 2024
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision under review to refuse the nomination.

Statement made on 18 April 2024 at 12:20pm

CATCHWORDS
MIGRATION – approval of a nomination – Direct Entry nomination stream – position of Marketing Specialist – genuine need for the employment – no current financial information or employment details – terms and conditions of employment – average salary for the role – tasks of the position – decision under review affirmed
LEGISLATION
Administrative Appeals Tribunal Act, s 2A
Migration Act 1958, ss 245, 359, 362
Migration Regulations 1994, rr 5.19, 5.37
CASES
H&L Hydroponics Pty Ltd as trustee for the H&L Hydroponics Trading Trust v MICMSMA [2022] FCA 825
Pexbury Pty Ltd v MICMSMA [2022] FCA 660
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application lodged 8 December 2021 for review of a decision made by a delegate of the Minister for Home Affairs on 18 November 2021 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).
The applicant, Mitchell Constructions (NSW) Pty Ltd, applied for approval on 29 November 2016. 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.
In this case, the applicant has applied for approval of a nomination, seeking to satisfy the criteria in the Direct Entry nomination stream.
The applicant has nominated Ms Thuy Minh Truong (“the nominee”), a 36 year-old citizen of Vietnam, for the position of Marketing Specialist (ANZSCO 225113) for a Subclass 187 RSMS visa. The related visa application was refused when the nomination failed.[1]
Delegate’s decision for review
[1] Tribunal related visa case 2207573
The delegate refused the nomination application on the basis the applicant’s nomination did not satisfy reg 5.19(4)(h)(ii)(B) of the Regulations because the delegate found from the available information that the applicant has not demonstrated there is a genuine need for the nominator to employ a paid employee to work in the position under the nominator’s direct control.
On review, the Tribunal is required to consider the delegate’s decision together with all the requirements for the nomination. If any of the requirements are not met then the application must be refused: reg 5.19(5).
Hearing process – a combined hearing
On 27 March 2024, the Tribunal invited the applicant to a hearing, to be conducted by video with the applicant and its representative in Melbourne, and the Tribunal sitting in Sydney. It was a combined hearing invitation with the nominee’s review for the refusal of the visa.
The applicant did not respond to the hearing invitation. A check of the Tribunal’s file record shows that an SMS reminder was sent to the applicant’s recorded address on 11 April 2024 and again on 17 April 2024, to remind the applicant of the hearing date and details. The applicant did not respond to the hearing reminders.
The applicant did not appear before the Tribunal on the scheduled date and time, 18 April 2024, to give evidence and present arguments.
The hearing was scheduled at 9.30am and the Tribunal waited until 10:00 am. A Tribunal officer called the office of the representative from the hearing, shortly after the appointed time. The Tribunal was informed that the representative was on holiday and would not be appearing. No explanation was provided for the applicant’s non-appearance.
No appearance by applicant
The Tribunal did not receive any communication from the applicant itself, following the hearing invitation, and who did not appear at the scheduled time. The Tribunal cancelled the hearing at 10am when the applicant had not appeared in person.
The applicant was represented throughout the process by a registered migration agent.
The nominee withdraws
On 17 April 2024, the nominee appointed a legal practitioner as her representative.
On 18 April 2024, the morning of the combined hearing, the Tribunal was asked by email from the legal representative to withdraw the nominee’s review application.
The Tribunal processed the withdrawal decision for the Tribunal’s related visa case before the hearing commenced, having no jurisdiction then to review an application which has been withdrawn.
The combined hearing with the applicant was cancelled.
Decision
For the following reasons, the Tribunal has decided to affirm the decision under review to refuse the nomination.
CONSIDERATION OF CLAIMS AND EVIDENCE
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. If any one requirement fails, the Tribunal is not required to consider any remaining criteria.
The Tribunal has available for this merits’ review copies of extracts from the Department’s file for the applicant[2], and the nominee[3], together with the Tribunal’s files. The information available includes the applicant’s responses to the Tribunal’s recent information request and regard to the Act and Regulations, Department Policy, and relevant court authorities and information generally available from the Internet, where referenced.
[2] BCC2016/4023897;
[3] BCC2016/4026769
On 25 January 2024, the Tribunal wrote to the applicant under s 359(2) of the Act. The letter invited the applicant to update its information from lodgement in 2016 to decision in 2021, and to include current financial information as at 2024, and to provide details of the nominee’s current employment for this review.
On 7 February 2024, the applicant replied and provided some additional information, as well as requesting an extension to provide further responses. The applicant was asked to provide any further information before the hearing following the applicant’s initial response.
The information did not include any current financial information as to performance of the applicant, any details of the applicant’s work activity or schedule of projects, or current employment details for the nominee. The information provided was updated as at January 2020 and was not current.
The applicant provided no further information from its representative following the response on 8 February 2024. The Tribunal has considered pursuant to section 363(1)(b) whether any further adjournment is warranted.
The Tribunal has decided this is not a case where an adjournment is warranted. No such request having been made by the applicant. No reasons have been submitted as to any prejudice the applicant may suffer if the matter is now determined in accordance with the Tribunal’s statutory obligation to conclude the review in a manner which is “fair, just, economical, informal and quick”.[4] The applicant has elected to provide no further information and not to appear to make submissions and argument and to answer questions as to its current circumstances.
[4] Administrative Appeals Tribunal Act , s 2A
For those reasons, the Tribunal has decided to complete the review on the available information and without offering the applicant any further opportunity to appear.[5]
[5] S 362B(1A)(a)
The application is compliant: reg 5.19(4)(a)
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 a paid employee to work in the position under their direct control.[6]
[6] Reg 5.19(4)(a)(ii)
There is no prescribed test for what will amount to ‘a need for the nominator’, which is essentially a commercial decision based upon the requirements of the applicant at the time of decision. The requirements may include such things as the business size and context, work pressures caused by staff shortages for skilled specialists, the applicant’s marketing objectives and business planning, its regional location and current financial performance. It is for the nominator to put forward evidence to support its case and to show how it has identified the need for the employee in those current circumstances.
The applicant was invited to provide current information to support the need to employ the nominee as the ‘paid employee’. A copy of an employment agreement made at 1 January 2020 was submitted. This was information before the Department delegate. The Tribunal places little weight on that document which is not current and does not reflect the applicant’s circumstances at the time of decision in 2024.
No evidence was submitted of the nominee’s current employment, the applicant’s financial situation, and whether the nominee is still working on any marketing projects for the applicant at all and what those projects might be in the context of the applicant’s business in the construction industry in and around Albury, Victoria.
Without current information in the form of documents showing the applicant’s performance, including financial statements, and its current marketing projects and related work being performed by the nominee as a marketing specialist, the Tribunal is not satisfied that the applicant has demonstrated a need to employ a paid employee to work in the position under their direct control.
Accordingly, the requirement in reg 5.19(4)(a) is not met.
Term of employment of the visa holder: reg 5.19(4)(d)
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.
The applicant has submitted an employment agreement with the nominee dated 1 January 2020. The agreement states it will commence when the nominee/employee has an approved “Australian work visa Subclass 187, and where the employment is for 2 years”. The nominated salary for the role is $68,000pa plus superannuation.
The nominee has informed the Tribunal that she is not proceeding with a review of the refusal of her Subclass 187 visa application. Without that review, the nominee’s visa refusal remains undisturbed, and the nominee will not have “an approved Australian work visa Subclass 187, and where the employment is for 2 years”.
The Tribunal is informed from the nominee’s Department ICSE records, that the nominee has applied for a Subclass 491 Skilled Work Regional (Provisional) visa. The details and outcome of that application is not before the Tribunal at the time of this decision. The Tribunal finds in the circumstances that the nominee is no longer proceeding with the application for the Subclass 187 visa related to this nomination application, which has been withdrawn, and is pursuing another visa.
There is no information before the Tribunal as to the applicant’s current financial situation. There is no submission that the employment of the nominee is an affordable proposition based on the applicant’s financials, including its current assets and liabilities, and its overall payroll responsibilities and its profitability. The salary proposed is also 4 years’ old, at the time of decision and would need to be reviewed in line with current market expectations for the role. Indications are that the average salary for a marketing specialist can vary from $75,000 to $90,000pa for marketing executives in Australia.[7] Current indications then are that the nominee would not be paid an average salary for the role on the submitted contract.
[7] SEEK internet information for the occupation
There is no evidence submitted as to the nominee’s current role. There is no information as to what tasks she is performing, where or when and at what skill level, and what level of current salary might be appropriate given her circumstances in the context of the applicant’s business as at the time of this decision.
It is for the applicant to put forward its evidence to support both its current financial performance, its profitability, and ability to support the salary proposed from its resources. There is no indication of any allocation for its wages and employee requirements which might include the nominee, and to demonstrate that it has sufficient work to keep the nominee occupied in the role for at least two years.[8]
[8]See Pexbury Pty Ltd v MICMSMA [2022] FCA 660 and H&L Hydroponics Pty Ltd as trustee for the H&L Hydroponics Trading Trust v MICMSMA [2022] FCA 825
The Tribunal finds there is no information before it to determine that the applicant can meet the requirement that the nominee will be employed in the nominated position for at least 2 years full time. That is because the applicant has chosen not to submit any current financial information or details concerning the nominee’s current activity and employment and its ability to meet a salary obligation for the nominee.
Accordingly, the requirement in reg 5.19(4)(d) is not met.
Tasks of the position, genuine need for the position and training requirements reg 5.19(4)(h)
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 in the relevant instrument and 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.
The application is for a position for the nominee to work at Albury, Victoria, being a designated area in regional Australia. For the reasons expressed above[9], the Tribunal is not satisfied that the applicant has shown that as at the time of decision, there is a genuine need to employ a paid employee to work in the position under the nominator’s direct control.
[9] Pars 29-33
Accordingly the requirements of reg 5.19(4)(h) are not met.
Conclusion
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
The Tribunal affirms the decision under review to refuse the nomination.
Alan McMurran
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)       both 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;
(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 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).