Pacific Vintners Pty Ltd (Migration)
[2023] AATA 3688
•2 November 2023
Pacific Vintners Pty Ltd (Migration) [2023] AATA 3688 (2 November 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT: Pacific Vintners Pty Ltd
REPRESENTATIVE: Mr Hui Fan (MARN: 1384349)
CASE NUMBER: 2010240
HOME AFFAIRS REFERENCE(S): BCC2019/5735359
MEMBER:P. Maishman
DATE:2 November 2023
PLACE OF DECISION: Perth
DECISION:The Tribunal affirms the decision under review to refuse the nomination.
Statement made on 02 November 2023 at 9:49am
CATCHWORDS
MIGRATION – nomination – Direct Entry stream – Sales and Marketing Manager – not satisfied that there was a genuine need for the identified person to be employed in the position – decision under review affirmedLEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, r 5.19CASES
Bharaj Construction Pty Ltd v MIBP [2016] FCCA 902STATEMENT 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 5 June 2020 to reject the applicant’s application for approval of the nomination of a position under reg 5.19 of the Migration Regulations 1994 (Cth) (the Regulations).
The applicant applied for approval on 13 November 2019. The requirements for the approval of the nomination of a position in Australia are found in reg 5.19 of the Regulations, which contains general requirements for approval and additional requirements for approval set out in three alternative streams: a Temporary Residence Transition stream, a Direct Entry stream and a Labour Agreement stream. If the application meets the requirements for approval then the application must be approved: reg 5.19(3)(a). If any of the requirements are not met then the application must be refused: reg 5.19(3)(b).
In this case, the applicant has applied for approval of a nomination, seeking to satisfy the criteria in the Direct Entry stream.
The delegate refused the application on the basis the applicant’s nomination did not satisfy reg 5.19(9)(d) of the Regulations because the delegate was not satisfied that there was a genuine need for the identified person to be employed in the position, under the direct control of the nominator.
On 29 September 2023 the Tribunal wrote to the review applicant advising that it had considered all the material before it relating to its application but it was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing on 9 November 2023.
On 12 October 2023 the applicant’s registered migration agent advised the Tribunal the applicants director, Mr Guanpeng Yang relocated to Hong Kong.
On 12 October 2023 the Tribunal rescheduled the hearing and sent a written invitation to the applicant to give oral evidence and present arguments by video at a hearing on 2 November 2023.
On 19 October 2023 the applicant responded to the hearing invitation and said it did not wish to give oral evidence and consented to the Tribunal making a decision on the review without taking any further action to allow or enable it to appear before it. Mr Yang included a signed letter that he would not be able to attend the Tribunal hearing and sought to authorise his migration agent to attend the hearing on his behalf. The Tribunal advised the applicant by email that its migration agent could not give evidence on the applicant’s behalf.
The applicant’s representative made further submissions by email dated 20 October 2023 confirming Mr Yang would not be available for the hearing. On 20 October 2023 the Tribunal wrote to the applicant confirming a decision would be made on the papers and invited the applicant to provide any further information it wanted the Tribunal to consider by 27 October 2023.
The Tribunal has at the date of this decision received no further information.
This matter has therefore been determined on the evidence available to the Tribunal.
The applicant was represented in relation to the review.
For the following reasons, the Tribunal has decided to affirm the decision under review to refuse the nomination.
CONSIDERATION OF CLAIMS AND EVIDENCE
The Tribunal had before it a copy of the Departments file containing the nomination application and documents provided to the Department in support of that application.
The applicant gave the Tribunal a copy of the delegate’s notice of decision with its application for review.
On 11 August 2023 the Tribunal wrote via email to the agent pursuant to s 359(2) of the Act to invite Mr Yang, the applicants nominated contact person, to provide updated and current information demonstrating that the applicant met all of the applicable reg 5.19(4) and 5.19(9) criteria (not merely the subparagraph that the delegate had found were not met). The Tribunal provided Mr Yang detailed examples of the kind of documentary evidence that would assist the Tribunal to assess the criteria set out in reg 5.19(4) and (9). Mr Yang was requested to provide the requested information by 25 August 2023 and advised that if they failed to do so (or failed to ask for an extension of time to do so) by that date, the applicant would lose its entitlement to have someone attend a hearing to present evidence and arguments on its behalf, and the Tribunal might proceed to make its decision without requesting further information. The applicant sought an extension of time because Mr Yang was on a business trip to China. The Tribunal extended the time for the applicant to respond until 22 September 2023.
On 21 September 2023 the Tribunal received the applicant’s response including a written submission; a copy of the nominee’s English language test results, her payslips and a number of tax notices of assessment; an organisation chart; and an ASIC and ABN extract. The Tribunal received a letter from Mr Yang dated 15 October 2023.
The issue in this case is whether the applicant meets the general requirements for approval of the nomination set out in reg 5.19(4) and the stream specific requirements set out in reg 5.19(9), which are extracted in the attachment to this decision. For the nomination to be approved, all the requirements must be met.
Genuine need for employment – regs 5.19(9)(c) and (d)
Regulation 5.19(9)(c) requires the nomination application to identify a need for the identified person to be employed in the position, under the direct control of the nominator, and reg 5.19(9)(d) requires this need to be genuine.
The Tribunal’s letter of 11 August 2023 invited the applicant to provide updated and current information, amongst other things, about the need to employee the nominee in the nominated position either position cannot be filled by an Australian citizen or permanent resident living in the same local area; and whether a specified Regional Certifying Body has provided the appropriate advice. The letter provided an example of information that might be provided to include local job advertisements for the nominated position that were not successfully filled, and the Regional Certifying Body certificate issued to the applicant in respect of the position.
On 20 September 2023 the applicant’s registered migration agent provided a written submission, in part stating:
…
In preparing the documentation required in your invitation, I was informed by the sponsor company about some developments of the company during recent months:
· the company's director, Mr. YANG, Guanpeng, was relocated to Hong Kong recently;
· the company has downsized during the Covid pandemic;
· the company did not renew its sponsorship as a Standard Business Sponsor when it
expires in June 2021I have been communicating with Director YANG. I was advised that he has been appointed to a new position in the mother company in Hong Kong and the applicant company is under the direction of a new leadership.
Mr YANG again advised that the impact of the COVID-19 pandemic, as well as the trading argument between the Australian and Chinese governments, namely the Chinese government's embargo on Australian-made wine, had seriously impacted the company's wine export business. The company has since adapted, downsizing its staff team, and switching its business to markets such as Singapore, Japan, and Korea. However, inevitably, turnover has dropped during the last three years and the company is not making a profit at the moment.
One of the results of these developments is that the applicant company did not renew its Standard Business Sponsorship when it expired.
Under this circumstance, Mr YANG indicated that it is pointless to provide the company's
current business details as the financial figures and company structure will not be supportive of the review application. However, Mr. YANG did express that he would be more than willing to offer the position to the visa applicant should the trading obstacles be removed and the business begin to recover.Ms WANG, the main visa applicant has been working for the nominating company since the employment contract was signed. Her employment with the nominating company was put on hold since the COVID-19 pandemic. Ms WANG was recently informed by the nominating company that its Sponsorship has not been renewed and the company's business sphere has changed dramatically.
…We believe the nomination application included sufficient information and evidence to
establish the genuine need for the nomination. This information and evidence is well
presented and verifiable. Submitted evidence also suggested that the nomination applicant had put great effort into hiring locally without success. The visa applicant's background and qualifications had been taken into account and approved by the company and the Regional Certifying Body of the South Australian government.
…
At this stage, the nomination applicant can not act as the nominating sponsor for the visa applicant due to the reasons mentioned above. The nomination applicant and the visa applicant would like to bring these arguments and statements to the Tribunal’s attention and request the Tribunal to replace the Department’s decision with a decision more favorable to the applicant or allow the visa applicant to seek sponsorship from another company.The Tribunal has considered the Regional Sponsored Migration Scheme – Regional Certifying Body (RCB) advice issued 24 July 2019 which the applicant claims approves the nomination. The advice was issued in relation to a nomination application with a transaction reference number of EGOL02X8YZ. The Tribunal observes the transaction reference number for the nomination application submitted on 13 November 2019 is a GIOO5FF3JR. While it appears the RCB advice was issued in relation to a different nomination the Tribunal notes the advice appears to be the same position with the same employer.
However, consistent with the decision of the Federal Circuit Court of Australia in Bharaj Construction Pty Ltd v MIBP [2016] FCCA 902, certification by a regional certifying body is not sufficient or determinative in relation to whether the nominator meets reg 5.19(9)(d) of the Regulations. Accordingly, the Tribunal notes that, whilst having regard to the advice provided by the regional certifying body, it has reached its own conclusions about the matters the subject of the regional certifying body’s advice.
The Tribunal does not accept the applicant submission that the nomination application included sufficient information and evidence to establish the genuine need for the nomination. The applicant has not provided evidence of advertising it undertook in order to fill the genuine position either when the application was submitted or in response to the Tribunal’s invitation in August 2023.
The Tribunal attributes weight to the submissions the visa applicant’s employment with the applicant was put on hold since the Covid 19 pandemic and that the applicant cannot act as the nominating sponsor for the visa applicant due to the adverse trading obstacles including the Chinese government’s embargo on Australian made wine. The applicant has indicated its turnover has dropped during the last three years and it is not making a profit. The Tribunal received no details of the applicant’s financial figures or company structures has the applicant considered they would not be supportive of the application.
The Tribunal was not satisfied that the applicants need to employee the person it identified in the nominated position of Sales and Marketing Manager is genuine.
Given the above findings, the Tribunal is not satisfied that reg 5.19(9)(d) is met. Accordingly, reg 5.19(4)(f) is not met.
For these reasons the Tribunal is not satisfied that the applicant meets the requirements of reg 5.19. Accordingly, reg 5.19(3)(b) requires that the nomination must be refused. The decision under review must be affirmed.
DECISION
The Tribunal affirms the decision under review to refuse the nomination.
P. Maishman
MemberATTACHMENT – EXTRACTS FROM THE MIGRATION REGULATIONS 1994
5.19Approval of nominated positions—Subclass 186 (Employer Nomination Scheme) visa and Subclass 187 (Regional Sponsored Migration Scheme) visa
Application
(1)A person (the nominator) (including a partnership or unincorporated association) may apply to the Minister for approval of the nomination of a position in Australia.
(2)The application must:
(a)be made in accordance with approved form 1395 (Internet); and
(b)identify the position; and
(c)identify a person (the identified person) in relation to the position; and
(d)identify an occupation in relation to the position; and
(e)identify the subclass and stream to which the nomination relates, which must be one of the following:
(i)a Subclass 186 (Employer Nomination Scheme) visa in the Temporary Residence Transition stream;
(ii)a Subclass 187 (Regional Sponsored Migration Scheme) visa in the Temporary Residence Transition stream;
(iii)a Subclass 186 (Employer Nomination Scheme) visa in the Direct Entry stream;
(iv)Subclass 187 (Regional Sponsored Migration Scheme) visa in the Direct Entry stream;
(v)a Subclass 186 (Employer Nomination Scheme) visa in the Labour Agreement stream; and
(f)be accompanied by the fee mentioned in regulation 5.37; and
(fa)be accompanied by any nomination training contribution charge the nominator is liable to pay in relation to the nomination; and
(fb)identify the annual turnover (within the meaning of the Migration (Skilling Australians Fund) Charges Regulations 2018) for the nomination; and
(g)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.
Approval of nomination
(3)The Minister must, in writing:
(a)approve the nomination if the Minister is satisfied that the requirements set out in subregulation (4) are met; or
(b)otherwise—refuse to approve the nomination.
Requirements for approval—general
(4)The requirements to be met for the nomination to be approved are as follows:
(a)the application is made in accordance with subregulation (2);
(b)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;
(c)if it is mandatory, in the State or Territory in which the position is located, for a person to:
(i)hold a licence of a particular kind; or
(ii)hold registration of a particular kind; or
(iii)be a member (or a member of a particular kind) of a particular professional body;
to perform tasks of the kind to be performed in the occupation, the identified person is, or is eligible to become, the holder of the licence, the holder of the registration, or a member of the body, at the time of application;
(d)the nominator has a satisfactory record of compliance with the laws of the Commonwealth, and of each State or Territory in which the nominator operates a business and employs employees in the business, relating to employment;
(da)any debt due by the nominator as mentioned in section 140ZO of the Act (recovery of nomination training contribution charge and late payment penalty) has been paid in full;
(e)if the nomination relates to a visa in a Temporary Residence Transition stream—the requirements set out in subregulation (5) are met;
(f)if the nomination relates to a visa in a Direct Entry stream—the requirements set out in subregulation (9) are met;
(g)if the nomination relates to a visa in a Labour Agreement stream—the requirements set out in subregulation (14) are met.
…
Direct Entry stream—additional requirements for approval
(9)If the nomination relates to a visa in a Direct Entry stream, the following requirements must also be met:
(a)the nominator is actively and lawfully operating a business in Australia;
(b)if the nominator’s business activities include activities related 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;
(c)the application identifies a need for the identified person to be employed in the position, under the direct control of the nominator;
(d)there is a genuine need for the identified person to be employed in the position, under the direct control of the nominator;
(e)the identified person will be employed on a full‑time basis in the position for at least 2 years;
(f)the terms and conditions of the identified person’s employment will not include an express exclusion of the possibility of extending the period of employment;
(g)the nominator’s business has the capacity to employ the identified person for at least 2 years and to pay the person at least the annual market salary rate for the occupation each year;
(h)the requirements set out in subregulation 2.72(15) are met, applying subregulations 2.72(15) and (16) as if:
(i)paragraph 2.72(15)(a) did not apply; and
(ii)references to the nominee were references to the identified person; and
(iii)references to the person were references to the nominator;
(i)either:
(i)there is no information known to Immigration that indicates that the employment conditions (other than in relation to earnings) that will apply to the identified person are less favourable than those that apply, or would apply, to an Australian citizen or an Australian permanent resident performing equivalent work at the same location; or
(ii)it is reasonable to disregard any such information;
(j)the requirements set out in subregulation (10) or (12) are met.
Occupations for the Subclass 186 (Employer Nomination Scheme) visa in the Direct Entry stream
(10)The requirements of this subregulation are as follows:
(a)the tasks to be performed in the position will be performed in Australia and correspond to the tasks of an occupation specified in a legislative instrument:
(i)made under subregulation (11); and
(ii)in force at the time the application is made;
(b)the occupation applies to the identified person in accordance with that instrument.
(11)The Minister may, by legislative instrument, specify occupations for the purposes of subregulation (10) and, for each occupation, specify any matters for the purposes of determining whether the occupation applies to an identified person, including matters relating to any of the following:
(a)the nominator;
(b)the identified person;
(c)the occupation;
(d)the position in which the identified person is to work;
(e)the circumstances in which the occupation is undertaken;
(f)the circumstances in which the person is to be employed in the position.
Occupations for the Subclass 187 (Regional Sponsored Migration Scheme) visa in the Direct Entry stream
(12)The requirements of this subregulation are as follows:
(a)the position is located at a place in regional Australia;
(b)the business operated by the nominator is located at that place;
(c)the position cannot be filled by an Australian citizen or an Australian permanent resident who is living in, or would move to, the local area concerned;
(d)the tasks to be performed in the position correspond to the tasks of an occupation specified in a legislative instrument:
(i)made under subregulation (13); and
(ii)as in force at the time the application is made;
(e)the occupation applies to the identified person in accordance with that instrument;
(f)the Minister has been advised by a body that meets the requirements set out in paragraph (g) of this subregulation about matters relating to the following:
(i)whether the identified person would be paid at least the annual market salary rate for the occupation;
(ii)whether there is a genuine need for the identified person to be employed in the position, under the direct control of the nominator;
(iii)whether the position can be filled by an Australian citizen or an Australian permanent resident who is living in, or would move to, the local area concerned;
(g)the body must:
(i)be specified in a legislative instrument made by the Minister for the purposes of this paragraph; and
(ii)be located in the State or Territory in which the position is located; and
(iii)have responsibility for the local area in which the position is located.
(13)The Minister may, by legislative instrument, specify occupations for the purposes of subregulation (12) and, for each occupation, specify any matters for the purposes of determining whether the occupation applies to an identified person, including matters relating to any of the following:
(a)the nominator;
(b)the identified person;
(c)the occupation;
(d)the position in which the identified person is to work;
(e)the circumstances in which the occupation is undertaken;
(f)the circumstances in which the person is to be employed in the position.
…
Meaning of regional Australia
(16)In this regulation:
regional Australia means a part of Australia specified in legislative instrument made by the Minister for the purposes of this definition.
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Immigration
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Administrative Law
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Judicial Review
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