NSW FIRE EXTINGUISHER SERVICES PTY LTD (Migration)

[2018] AATA 504

NSW FIRE EXTINGUISHER SERVICES PTY LTD (Migration) [2018] AATA 504 (6 March 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  NSW Fire Extinguisher Services Pty Ltd

CASE NUMBER:  1710846

DIBP REFERENCE(S):  BCC2016/2858692

MEMBER:Katie Malyon

DATE:6 March 2018

PLACE OF DECISION:  Sydney

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

Statement made on 06 March 2018 at 3:55 pm

CATCHWORDS

Migration – Sponsor – Failed to demonstrate its commitments made in meeting training requirements – Failure to provide information – No extension sought

LEGISLATION

Administrative Appeals Tribunal Act 1975 s.2A
Migration Act 1958, ss 353, 359, 359C, 360, 363, 363A
Migration Regulations 1994, rr 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 on 2 May 2017 to refuse the application made by NSW Fire Extinguisher Services Pty Ltd (the Company) for approval of the nomination of a position in Australia under r.5.19 of the Migration Regulations 1994 (the Regulations).

2. The Company applied for approval on 26 August 2016. The requirements for the approval of the nomination of a position in Australia are found in r.5.19 of the Regulations which contains 2 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) of the Regulations and meets all 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) of the Regulations.

3. In this case, the Company has applied for approval of a nomination seeking to satisfy the criteria in the Temporary Residence Transition nomination stream.

4. The delegate refused the application on the basis the Company’s nomination did not satisfy r.5.19(3)(f) of the Regulations because the Company failed to demonstrate its commitments made in meeting training requirements in each relevant year of its approved standard business sponsorship. A copy of the delegate’s decision was provided to the Tribunal. The Company was represented in relation to the review by its registered migration agent.

5. No documentation was lodged with the Tribunal in support of the review application, other than the delegate’s decision. Accordingly, on 13 February 2018, the Tribunal wrote to the Company pursuant to s.359(2) of the Act and invited it to provide documentation to enable the Tribunal assess whether the Company meets the requirements for approval of the nomination. In this regard, the Tribunal requested updated and current information addressing all the criteria for approval of the nomination. Without limiting the information that may be provided, the Company was requested to provide: an ASIC current and historical extract for the Company; the Company’s tax returns, financial statements prepared by an Accountant and BAS lodged with the ATO for FY2015/16 and FY2016/17; an Organisational Chart with details of all current and proposed employees, their position title, residence status in Australia; information about the roles and duties of the nominated position and how they correspond to the ANZSCO occupation of Customer Service Manager; an employment contract or letter of offer with the nominee; previous contracts of employment with the nominee including details of their role and duties; and, information about the Company’s compliance with its training commitments and sponsorship obligations.

6. The Tribunal’s invitation letter was sent to the address provided by the representative assisting the Company with the review.  The Company was advised that, if the information was not provided in writing by 27 February 2018 or if the Company has not made a request for an extension of time in which to provide the information, the Tribunal may make a decision on the review without taking further steps to obtain the information and, furthermore, the Company would lose any entitlement it might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

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

8. The Tribunal has considered whether this is an appropriate case for it to adjourn the review under s.363(1)(b) of the Act to allow the Company additional time in which to provide evidence to support the review application. In this regard, the Tribunal has considered whether, in the circumstances of this case, evidence that the Company meets all of the requirements of r.5.19(3) of the Regulations is likely to be forthcoming, whether the Company has had a fair opportunity to provide the relevant information or documents already, and the significance of the information or documents to the Company.

9. As noted above, on 2 May 2017 the delegate refused the nomination made by the Company essentially due to of the lack of documentary evidence confirming the Company’s demonstrated commitment in meeting training requirements during its 3 year term as an approved standard business sponsor which expired 5 September 2016.  In particular, the delegate noted that supporting documents indicate the only Australian employee who had undertaken any training was a Director of the Company and, furthermore, no evidence was provided of payments made by Company to its training provider Hootspah Pty Ltd trading as Safety Consultants International (CSI). The Tribunal wrote to the Company under s.359(2) of the Act inviting it to provide information demonstrating that the nomination meets all the requirements of the criteria in r.5.19(3) of the Regulations. The Company has failed to provide requested information within the prescribed period set for this purpose, and nor has any request been received to extend the time to provide requested documentation.

10. In the circumstances, the Tribunal considers the Company has had sufficient time in which to address the issues arising on review. The Tribunal observes that adjourning the review any further is only likely to unnecessarily further delay conduct of the review, contrary to the legislative objects of the Tribunal as set out in s.353 of the Act and s.2A of the Administrative Appeals Tribunal Act 1975. Accordingly, the Tribunal has decided not to exercise its discretion under s.363(1)(b) of the Act to adjourn the review any further. The Tribunal has determined to make a decision on the review without taking any further action to obtain the information in accordance with s.359C of the Act. In passing, the Tribunal notes that the Company is not prevented from lodging a new nomination application with the Department, if it so desires.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. The issue in this case is whether the Company meets the requirements for approval of the nomination under the Temporary Residence Transition nomination stream set out in r.5.19(3) of the Regulations, which is extracted in the Attachment to this decision.  For the nomination to be approved, all the requirements must be met.  If any of the requirements are not met then the application must be refused: r.5.19(5) of the Regulations. In the circumstances, the Tribunal has considered the criterion on which the delegate decided to refuse the Company’s nomination application.

    Training commitments and obligations: r.5.19(3)(f)

13. Regulation 5.19(3)(f) requires the Company to have fulfilled any commitments made relating to meeting training requirements, and complied with applicable obligations relating to training  its employees, during the period of the  Company’s most recent sponsorship approval.  These requirements may be disregarded if it is reasonable to do so. 

14. The Tribunal has reviewed documentation in the Department’s file.  Financial Statements signed by the Company’s Director have been provided in respect of financial years ended 30 June 2014 and 2015.  Total wages expenditure including superannuation and subcontracting of $598,778 for the year ended 30 June 2014 and $591,632 for the year ended 30 June 2015 has been reported.  No training expenditure item is listed in the Financial Statements.  However, the Company has provided 3 training receipts from training provider CSI.  Receipt Ref 2059-0914 dated 16 September 2014 states safety training services valued at $3,780 were provided by CSI to the Company in the period Oct 2013 – Sept 2014 and the invoice has been ‘paid in full’.  Further, a receipt Ref 2059-0915 dated 18 September 2015 states safety training services valued at $7,027 and ‘AUD $3,870’ were provided by CSI to the Company in the period Oct 2014 – Sept 2015 and have been ‘paid in full’ (emphasis added).  As noted in the delegate’s letter, no evidence of corresponding account transactions or clarification from the amount ’paid in full’ was provided to substantiate payments made by the Company to CSI.  Subsequently, this last invoice was reissued: receipt Ref 2059-0915 dated 24 March 2016 states safety training services valued at $4,527 were provided by CSI to the Company in the period Oct 2014 – Sept 2015 and the invoice been ‘paid in full’.  Again, no evidence of a corresponding account transaction was provided to substantiate payment being made by the Company to CSI.  Furthermore, the Tribunal notes no evidence has been provided of the Australian citizenship or residence status of any employees of the business other than the Company’s Director who provided evidence of his Australian citizenship. 

15. In the circumstances, the Tribunal finds that there is insufficient evidence to demonstrate that the Company has met Training Benchmark B during the 3 year term of its standard business sponsorship approval which expired on 5 September 2016.  No evidence was provided of the Company meeting Training Benchmark A in this period. 

16. In its letter to the Company under s.359(2) of the Act on 13 February 2018, the Tribunal invited the Company to provide information to demonstrate that it meets all the requirements of the criteria in r.5.19(3) of the Regulations, including r.5.19(3)(f). The Company has failed to provide any of the requested documentation or seek an extension of time to provide the documentation. In the circumstances, the Tribunal has no information before it concerning whether or not the Company has met the training requirements throughout its most recent standard business sponsorship approval.

17. Based on evidence before the Tribunal and, in respect of the period of its most recent approval as a standard business sponsor, the Tribunal is not satisfied that the Company has demonstrated it has fulfilled any commitments made in relation to meeting its training requirements and nor has it demonstrated it has complied with applicable training obligations. Further, in the circumstances of this case, the Tribunal does not consider it reasonable to disregard the lack of evidence from the Company regarding its commitment to train its employees who are Australian citizens or permanent residents. Accordingly, the requirement in r.5.19(3)(f) of the Regulations is not met.

18. For the above reasons the Tribunal is not satisfied that the Company meets the requirements of r.5.19(3) of the Regulations. The Company has not sought to satisfy the criteria in Direct Entry nomination stream and, as such, has not met the requirements in r.5.19(4) of the Regulations. In the circumstances, 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.

    Katie Malyon

    
    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.

    Temporary Residence Transition nomination

    (3)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 person who holds a Subclass 457 … visa granted on the basis that the person satisfied the criterion in subclause 457.223(4) of Schedule 2; and

    (iii)     identifies an occupation, in relation to the position, that:

    (A)is listed in ANZSCO; and

    (B)has the same 4-digit occupation unit group code as the occupation carried  out by the holder of the Subclass 457 … visa; and

    (b)the nominator:

    (i)     is, or was, the standard business sponsor who last identified the holder of the Subclass 457 … visa in a nomination made under section 140GB of the Act or under regulation 1.20G or 1.20GA as in force immediately before 14 September 2009; and

    (ii)    is actively and lawfully operating a business in Australia; and

    (iii)     did not, as that standard business sponsor, meet regulation 1.20DA, or paragraph 2.59(h) or 2.68(i), in the most recent approval as a standard business sponsor; and

    (c)either:

    (i)     both of the following apply:

    (A)in the period of 3 years immediately before the nominator made the application, the holder of the Subclass 457 …visa identified in subparagraph (a) (ii) has:

    (I)held one or more Subclass 457 visas for a total period of at least 2 years; and

    (II)been employed in the position in respect of which the person holds the Subclass 457 … visa for a total period of at least 2 years (not including any period of unpaid leave);

    (B)the employment in the position has been full-time, and undertaken in Australia; or

    (ii)    all of the following apply:

    (A)the person holds the Subclass 457 … visa on the basis that the person was identified in a nomination of an occupation mentioned in sub-subparagraph 2.72(10)(d)(iii)(B) or sub-subparagraph 2.72(10)(e)(iii)(B);

    (B)the nominator nominated the occupation;

    (C)the person has been employed, in the occupation in respect of which the person holds the Subclass 457 … visa, for a total period of at least 2 years in the period of 3 years immediately before the nominator made the application; and

    (d)for a person to whom subparagraph (c)(i) applies:

    (i)     the person will be employed on a full-time basis in the position for at least 2 years; and

    (ii)    the terms and conditions of the person’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)     the nominator:

    (A)fulfilled any commitments the nominator made relating to meeting the nominator’s training requirements during the period of the nominator’s most recent approval as a standard business sponsor; and

    (B)complied with the applicable obligations under Division 2.19 relating to the nominator’s training requirements during the period of the nominator’s most recent approval as a standard business sponsor; or

    (ii)    it is reasonable to disregard subparagraph (i); and

    Note Different training requirements apply depending on whether the application for approval as a standard business sponsor was made before 14 September 2009 or on or after that date.

    (g)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

    (h)the nominator has a satisfactory record of compliance with the laws of the Commonwealth, and of each State or Territory in which the Company operates a business and employs employees in the Company, relating to workplace relations.

    oOOo