Move Services Pty Ltd (Migration)

[2020] AATA 3154

Move Services Pty Ltd (Migration) [2020] AATA 3154 (9 June 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Move Services Pty Ltd

CASE NUMBER:  1913150

HOME AFFAIRS REFERENCE(S):          BCC2017/1742102

MEMBER:R. Skaros

DATE:9 June 2020

PLACE OF DECISION:  Sydney

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

Statement made on 09 June 2020 at 4:41pm

CATCHWORDS
MIGRATION – Employer Nomination – approval of nominated position – Direct Entry nomination stream – active and lawful operation in Australia – financial capacity to maintain visa holder’s employment – no response to s 359(2) invitation – not entitled to appear before the Tribunal – validity of s.376 certificate – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 359C, 360, 363A
Migration Regulations 1994 (Cth), 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 6 May 2019 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 16 May 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 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 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.

4. The delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19(4)(b) of the Regulations because the applicant did not demonstrate it has been actively and lawfully operating in Australia. The delegate also found the applicant did not satisfy r.5.19(4)(a) of the Regulations because the applicant did not demonstrate there was a need to employ a paid employee to work in the position under the nominator’s direct control.

5. The applicant provided a copy of the delegate’s decision record with the application for review.

6. On 24 February 2020 the Tribunal wrote to the applicant pursuant to s.359(2) of the Act, inviting the applicant to provide updated and current information about the various requirements in rr.5.19(2) and (4). The letter also advised that, in order for the nomination of a position to be approved, the Tribunal must be satisfied that all of the relevant criteria in r.5.19 are met at the time of its decision.

7. The invitation was sent to the last email address provided in connection with the review and advised that, if the information was not provided in writing by 10 March 2020, the Tribunal may make a decision on the review without taking further steps to obtain the information and the applicant would lose any entitlement they might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

8. On 24 February 2020 the Tribunal received notification that the email address to which the invitation was sent was returned as undeliverable. On 28 and 29 May 2020 the Tribunal made numerous attempts to call the authorised contact person on the telephone number provided in the review application form to obtain an alternative email address. However, the Tribunal’s attempts were unsuccessful as there was no answer.

9. The applicant has not provided the information within the prescribed period and no extension has been granted. In these circumstances, s.359C applies and pursuant to s.360(3) the 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 him or her to appear: Hasran v MIAC [2010] FCAFC 40.

10. The Tribunal is satisfied that the invitation to provide information was sent to the correct email address. The Tribunal also made numerous attempts over two consecutive days to contact the applicant by telephone to obtain updated contact information, however, there was no answer. The applicant has not contacted the Tribunal to update their contact information and it appears that the applicant has lost interest in pursuing this review. 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.

11. The Tribunal notes that a certificate and notification under s.376 of the Act was issued by the Department in relation to information received about the applicant from the regional certifying body (RCB). The certificate, which provides a discretion for the Tribunal to disclose the information covered by the certificate, does not appear to provide a public interest reason for the non-disclosure or explain on what basis the information, which was given by the RCB about the applicant, was given in confidence. The certificate merely indicates that the information covered by the certificates relates to the RCB notifying the Department that they do not endorse the applicant and that disclosure of the information may reveal the identity of a person or information given in confidence. The Tribunal notes that there was nothing in the correspondence from the RCB indicating that the information was given in confidence to the Department, and it would be expected, as was done in this case, that the information about the applicant not being recommended by the RCB, would have to given to the applicant to comment on as it was unfavourable information that related to one of the requirements for approval. The Tribunal further notes that any concerns about the identity of the person giving the information can be redacted under privacy provisions and did not require the issuance of a certificate.

12. In considering the validity of the certificate, the Tribunal has formed the view that the certificate is not valid. It was therefore not necessary to inform the applicant of the certificate. Furthermore, in considering the relevance of the information covered by the certificate, the Tribunal notes that the relevant information was set out in a natural justice letter sent to the applicant by the Department, to which the applicant had responded, and was set out in the delegate’s decision record. 

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

14. 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.

    Nominator is actively and lawfully operating a business in Australia: r.5.19(4)(b)

15. Regulation 5.19(4)(b) requires that the applicant is actively, lawfully and directly operating a business in Australia.

16. In the delegate’s decision record indicates that checks were conducted on the applicant’s place of business which raised concerns about whether the applicant was genuinely operating a business as claimed. It was noted that the property managers confirmed that the applicant had signed a rental agreement but never moved in and rental payments were in arrears. It was also noted that two people were living in the premises and that there was a mattress and desk at the location.  

17. The Tribunal notes that concerns were also raised by the RCB regarding whether the applicant was genuinely operating a business in the specified region. The concerns regarding whether the applicant was actively operating a business were set out in a natural justice letter to the applicant. The applicant provided a response to the Department which relevantly included financial reports, company returns and activity statements.  The delegate observed that the company returns and activity statements appeared to be in draft form as they indicated “sensitive (when completed)” and that the applicant had not provided documents that had been lodged with the ATO as substantive evidence of its business activities. The delegate, after considering the information, was not satisfied that the applicant had been actively and lawfully operating a business in Australia.

18. When applying for review, the applicant did not provide any submissions or supporting documents to address the concerns raised by the delegate in the decision record.

19. On review, the Tribunal invited the applicant to provide updated and current information about whether they are directly operating an active and lawful business in Australia. Without limiting the types of information that could be provided, the Tribunal noted some examples of documents that the applicant could provide, such as current and historical company registration, lodged tax returns for the last two full financial years, business activity statements that have been lodged with the ATO for the last 24 months and financial statements.

20. As noted above, the applicant has not provided the requested information within the prescribed period and numerous attempts were made to contact the applicant without success. The applicant has not contacted the Tribunal since lodgement of the review, which is now more than 12 months ago.

21. Given the limited current evidence before it, the Tribunal is unable to be satisfied, at the time of this decision, that the applicant is actively and lawfully operating a business in Australia. The Tribunal accordingly finds that r.5.19(4)(b) is not met.

    Term of employment of the visa holder: r.5.19(4)(d)

22. 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.

23. Further to the above, the Tribunal also invited the applicant to provide current information about the terms and conditions of employment for the nominated position. Without limiting the type of information that could be provided, the Tribunal suggested examples of what could be provided, such as a current employment contract or letter of engagement. During the course of the review, no updated information about the nominee’s terms and conditions of employment or the applicant’s financial circumstances were provided to the Tribunal.

24. In the absence of current information regarding the terms and conditions of the nominee’s employment, and in the absence of any current information regarding the applicant’s financial capacity to employ the nominee in the nominated position for at least two years, the Tribunal is unable to be satisfied that the nominee to be employed for at least 2 years full time on terms and conditions that do not expressly exclude the possibility of an extension. Therefore r.5.19(4)(d) is also not satisfied.

    Conclusion

25. 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

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

    R. Skaros
    Senior 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).