NEW TRAINING CHOICE PTY LTD (Migration)

[2020] AATA 3919

NEW TRAINING CHOICE PTY LTD (Migration) [2020] AATA 3919 (6 August 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  NEW TRAINING CHOICE PTY LTD

CASE NUMBER:  1733173

HOME AFFAIRS REFERENCE(S):          BCC2017/2420810

MEMBER:R.Skaros

DATE:6 August 2020

PLACE OF DECISION:  Sydney

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

Statement made on 06 August 2020 at 10:25am

CATCHWORDS
MIGRATION – Employer Nomination – approval of nominated position – Direct Entry Nomination – ICT Customer Support Officer – identification of need – financial capacity to maintain employment – no response to s.359(2) invitation – 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 Immigration and Border Protection on 12 December 2017 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 7 July 2017 seeking to satisfy the criteria in the Direct Entry Nomination stream. The delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19(4)(a)(ii) of the Regulations because there was insufficient evidence given to substantiate the claim to have a need to employ the nominee as a paid employee in the nominated position. The applicant provided a copy of the delegate’s decision record to the Tribunal.

3. On 3 July 2020 the Tribunal wrote to the review applicant pursuant to s.359(2) of the Migration Act 1958 (the Act), inviting the review 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.

4. 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 17 July 2020 the Tribunal may make a decision on the review without taking further steps to obtain the information and the review applicant would lose any entitlement they might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

5. The review applicant has not provided the information within the prescribed period and no extension has been requested or granted. In these circumstances, s.359C applies and pursuant to s.360(3) the review 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.

6. The Tribunal is satisfied that the invitation to provide information was sent to the correct email address. The invitation was not returned to sender as undeliverable mail. To date, the requested information has not been provided and the applicant has not made any contact with the Tribunal to indicate that the information is forthcoming. 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.

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. The Tribunal’s letter to the applicant of 3 July 2020 invited the applicant to provide updated and current information about all the relevant requirements in r.5.19. It also advised that, for the nomination to be approved, the Tribunal must be satisfied that all of the relevant criteria are met at the time of its decision. As stated above, the applicant did not respond to the Tribunal’s invitation and no updated and current information about the applicant or its business has been received. As the applicant has not provided the information requested, the Tribunal is unable to be satisfied that at the time of this decision the applicant meets the requirements for approval of the nomination in the Direct Entry Nomination stream.

10. The delegate refused the nomination on the basis there was insufficient evidence given to substantiate the claim to have a need to employ the nominee as a paid employee in the nominated position of ICT Customer Support Officer (ANZCO 313112). The nomination application stated that the business was established or commenced trading in September 2015 and that it employed 8 Australian employees and 3 foreign employees. However, despite requests from the Department, the applicant did not provide any documents in support of the nomination. 

11. The review applicant provided some material to the Tribunal in support of the nomination application. The material included: a copy of the online application form for Employer Sponsored Migration with the Australian Capital Territory (ACT) Government dated July 2017; an overview of the business; an organisation chart and job description dated July 2017; one PAYG Summary for the period 2016/2017; an employee agreement dated May 2016; and a copy of an advertisement for the position dated December 2017.

12. Given the above material dates from 2016 and 2017, the Tribunal invited the applicant to provide updated and current information about a range of matters, including the roles and duties of the nominated position and where the nominated position sits in relation to structure and needs of the business and other information about the operation of the business. Without limiting the type of information that could be provided, the Tribunal suggested examples of information and/or documents that the applicant could provide to substantiate their claim, including a current position description, examples of daily tasks to be performed, a current organisational structure chart that included the position, title and duties of all current and proposed employees, tax returns, business activity statements and other financial records. No response has been received to the invitation to provide updated and current information on these matters.

13. In the absence of current information, the Tribunal is unable to be satisfied that, at the time of its decision, the application identifies a need to employ a paid employee to work in the position under the nominator’s direct control. Accordingly, the Tribunal is not satisfied that r.5.19(4)(a)(ii) is met and is therefore also not satisfied that r.5.19(4)(a) is met.

14. The applicant was also invited to provide current information about its financial capacity to employ the nominee in the nominated position for at least two years full time as required by r.5.19(4)(d). As noted above, without limiting the type of information that could be provided, the Tribunal suggested examples of information that could be provided, including tax returns and business activity statements, financial statements for the most recent two financial years and a current employment contract or letter of engagement. As stated above, no information was given in response to the Tribunal’s invitation.

15. The applicant has not provided any current information about its financial capacity to comply with the requirements to provide the nominee with two years of full time employment. In the circumstances, the Tribunal is unable to be satisfied that, at the time of its decision, the applicant will employ the nominee on a full time basis in the position for at least two years. Accordingly, the requirement in r.5.19(4)(d) is also not met.

16. 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

17. 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)       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).