Muray Pty Ltd (Migration) - [2023] AATA 2174

Muray Pty Ltd (Migration) [2023] AATA 2174 (12 June 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Muray Pty Ltd
REPRESENTATIVE:  Mrs Athina Stephanou (MARN: 0103875)
CASE NUMBER:  1924170
HOME AFFAIRS REFERENCE(S):          BCC2017/3864276
MEMBER:Terrence Baxter
DATE:12 June 2023
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision under review to refuse the nomination.

CATCHWORDS
MIGRATION – nomination – Direct Entry stream – applicant failed to demonstrate that the position could not be filled by an Australian citizen or an Australian permanent resident – engagement of the recruitment agency was not a genuine attempt by the applicant–decision under review affirmed
LEGISLATION
Migration Act 1958, ss 65, 359
Migration Regulations 1994, r 5.19
CASES
Bharaj Construction Pty Ltd v MIBP [2016] FCCA 902
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 12 August 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).
The applicant, Muray Pty Ltd, applied for approval on 20 October 2017. The applicant nominated Ms Aylin Ozgun (the nominee) in the position of Office Manager. 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).
In this case, the applicant has applied for approval of a nomination, seeking to satisfy the criteria in the Direct Entry nomination stream.
The delegate refused the application on the basis that the applicant’s nomination did not satisfy reg 5.19(4)(h)(ii)(C) of the Regulations because the delegate found that the applicant failed to demonstrate that the position could not be filled by an Australian citizen or an Australian permanent resident who is living in the area where the position was to be filled.
The applicant lodged an application for review of the delegate’s decision with the Tribunal on 28 August 2019.
The director of the applicant, Ms Listyawati Sahinel, appeared before the Tribunal by video conference on 18 January 2023 to give evidence and present arguments. The hearing was a joint hearing with the application for review of a decision to refuse the visa application of the nominee. The Tribunal also received oral evidence from the nominee by video conference. The Tribunal hearing was conducted with the assistance of an interpreter in the Turkish and English languages.
The Tribunal exercised its discretion to hold the hearing by video conference. The Tribunal determined it was reasonable to hold a hearing by video conference, having regard to the nature of this matter and the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Muray Pty Ltd (Migration)

Details

AGLC: Muray Pty Ltd (Migration) [2023] AATA 2174
Case: [2023] AATA 2174
Decision Date: 12 June 2023

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered a nomination dispute involving Muray Pty Ltd. The core of the disagreement concerned whether Muray Pty Ltd had adequately demonstrated that the position it sought to fill could not be occupied by an Australian citizen or permanent resident, a key requirement for nominations under the Direct Entry stream. The Tribunal was tasked with reviewing the delegate's decision to refuse the nomination.

The legal issues before the Tribunal were whether Muray Pty Ltd had met the criteria stipulated in regulation 5.19(4) of the Migration Regulations 1994 for the approval of a nomination under the Direct Entry stream. Specifically, the Tribunal had to determine if the applicant had provided sufficient evidence to establish a genuine need for the nominated employee and to prove that reasonable efforts had been made to recruit an Australian worker for the position.

The Tribunal affirmed the delegate's decision to refuse the nomination. The reasoning focused on the applicant's failure to demonstrate that the position could not be filled by an Australian citizen or permanent resident. The Tribunal found that the engagement of a recruitment agency did not constitute a genuine attempt by the applicant to fill the role with a local worker, implying that the recruitment efforts were insufficient or not conducted in good faith. Consequently, the nomination did not meet the requirements of the relevant regulations.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

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Evidence

Evidence Before The Court

The applicant produced to the Tribunal the following documents: a.A copy of the delegate’s decision. b.Various documents previously provided to the Department.c.Business activity statements of the applicant for the period from January 2020 to March 2022. d.Financial statements of the applicant for the 2017, 2018, 2019, 2020 and 2021 financial years. e.Correspondence regarding the applicant's tenancy of the business premises. f.ASIC company statements of the applicant dated 4 October 2021 and 4 October 2022. g.Certificates of currency of the public liability and WorkCover insurance of the applicant. h.A further ASIC company extract of the applicant dated 24 June 2021. i.A profit and loss statement for the 2022 financial year. j.Submissions from the representative dated 4 October 2022 and 9 January 2023. k.A submission from the applicant’s accountant dated 18 May 2020. l.A current organisational chart. m.An updated business card of the nominee. n.A tax return of the nominee for the 2022 financial year. o.Taxation notices of assessment of the nominee for the 2019, 2020 and 2021 financial years. p.Payroll summaries of the applicant for the 2022 financial year and for the period from 1 July 2022 to 25 September 2022. q.An employment contract of the nominee dated 10 June 2019. r.A position description. s.Tax returns of the applicant for the 2017, 2018, 2019, 2020 and 2021 financial years. t.An ASIC current and historical company extract of the applicant. u.Further market salary evidence. Evidence presented after the hearing After the hearing, the applicant produced to the Tribunal the following documents: a.A submission from the representative dated 20 February 2023. b.Employment contracts of the nominee dated 10 June 2019 and 10 June 2021. c.Payroll employee summaries of the applicant for the 2019, 2020, 2021, 2022 and 2023 financial years. d.An occupational health and safety policy of the applicant. e.Job advertisements of the position, a recruitment report, a summary of the domestic recruitment efforts undertaken by the applicant and an invoice for the costs of advertising the position. f.Further market salary evidence. g.An ASIC business name extract of IST Cleaning, held by the applicant. h.An ATO income tax 001 statement of the applicant for the period from 7 February 2021 to 7 February 2023.i.An ATO activity statement 002 of the applicant for the period from 7 February 2021 to 7 February 2023.j.A business activity statement of the applicant for the period from July 2022 to September 2022. k.A financial report of the applicant for the 2022 financial year. The invitation to a second hearing After the hearing on 18 January 2023, the Tribunal ascertained that audio malfunctions had occurred during the recording of that hearing. Parts of the audio recordings were indistinct, and other parts were missing. The malfunctions were apparently caused by a global problem experienced by Microsoft on that day. On 15 May 2023, the Tribunal issued an invitation to the applicant to attend a second hearing by video conference to give evidence and present arguments relating to the issues arising in this matter. The Tribunal’s intentions in issuing the invitation to a further hearing were to allow the applicant to clarify any sections of the audio recording that were indistinct or missing. The second hearing was scheduled to take place on 30 May 2023, commencing at 10 AM. In the hearing invitation, the applicant was advised that a Response to Hearing Invitation form should be completed and returned to the Tribunal within seven days of receipt of the invitation. The hearing invitation was forwarded to the applicant by email and accordingly the hearing response was due to be received by the Tribunal by 22 May 2023.

Decision

Reasons for 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.Evidence presented prior to the hearing The applicant produced to the Department of Immigration and Border Protection (now the Department of Home Affairs) (the Department) the following documents: a.Correspondence and a Form 1404 advice from the Regional Certifying Body (RCB), the Queensland Chamber of Commerce and Industry, Toowoomba, dated 2 November 2017. b.Submissions of the applicant’s accountant dated 16 October 2017 and 20 October 2017. c.Screenshots taken of the website of the business. d.An employment contract of the nominee accompanied by an offer of employment later dated 10 June 2017. e.A licence agreement in favour of the applicant in respect of office space dated 27 September 2017. f.An agreement for the provision of services by the applicant dated 24 October 2017. g.Business activity statements of the applicant for the period from April 2016 to December 2018. h.Financial reports of the applicant for the 2016, 2017 and 2018 financial years. i.Market salary evidence. j.An organisational chart. k.A position statement. l.Job advertisements for the position accompanied by a recruitment report of unsuccessful applicants. m.An ASIC company extract of the applicant. n.Current ABN information of the applicant. o.A submission from the then representative of the applicant to the RCB dated 27 October 2017. p.A submission from the then representative of the applicant dated 20 October 2017. q.A business card of the nominee. r.Invoices issued by the applicant. s.An updated organisational chart. The applicant produced to the Tribunal the following documents: a.A copy of the delegate’s decision. b.Various documents previously provided to the Department.c.Business activity statements of the applicant for the period from January 2020 to March 2022. d.Financial statements of the applicant for the 2017, 2018, 2019, 2020 and 2021 financial years. e.Correspondence regarding the applicant's tenancy of the business premises. f.ASIC company statements of the applicant dated 4 October 2021 and 4 October 2022. g.Certificates of currency of the public liability and WorkCover insurance of the applicant. h.A further ASIC company extract of the applicant dated 24 June 2021. i.A profit and loss statement for the 2022 financial year. j.Submissions from the representative dated 4 October 2022 and 9 January 2023. k.A submission from the applicant’s accountant dated 18 May 2020. l.A current organisational chart. m.An updated business card of the nominee. n.A tax return of the nominee for the 2022 financial year. o.Taxation notices of assessment of the nominee for the 2019, 2020 and 2021 financial years. p.Payroll summaries of the applicant for the 2022 financial year and for the period from 1 July 2022 to 25 September 2022. q.An employment contract of the nominee dated 10 June 2019. r.A position description. s.Tax returns of the applicant for the 2017, 2018, 2019, 2020 and 2021 financial years. t.An ASIC current and historical company extract of the applicant. u.Further market salary evidence. Evidence presented after the hearing

Ratio Decidendi

Legal Principle Established

The Tribunal affirms the decision under review to refuse the nomination.Terrence BaxterMemberATTACHMENT - EXTRACTS FROM THE MIGRATION REGULATIONS 19945.19Approval 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).