PATB Corp Pty Ltd (Migration)

[2022] AATA 4161

PATB Corp Pty Ltd (Migration) [2022] AATA 4161 (15 September 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  PATB Corp Pty Ltd

REPRESENTATIVE:  Mr Mark Glazbrook (MARN: 0100185)

CASE NUMBER:  1916488

HOME AFFAIRS REFERENCE(S):          BCC2018/1233518

MEMBER:George Hallwood

DATE:15 September 2022

PLACE OF DECISION:  Adelaide

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

Statement made on 15 September 2022 at 4:20pm

CATCHWORDS
MIGRATION – Employer Nomination – approval of nominated position – Direct Entry nomination stream – no response to section 359(2) invitation – term of employment – financial capacity – Transport Company Manager – genuine need – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 140GB, 140GBA, 359C, 360, 363A

Migration Regulations 1994 (Cth), rr 2.72, 2.73

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 4 June 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).

2. The applicant applied for approval on 15 March 2018. 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).

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 reg 5.19(4) of the Regulations because: they were not satisfied the nominee would 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; and, they were not satisfied there is a genuine need for the nominee to be employed as a paid employee in the position under the nominator’s direct control.

5. On 5 July 2022 the Tribunal wrote to the review applicant pursuant to s 359 of the Act, inviting the review applicant to provide, in writing, updated and current information about the application for review by the applicant in respect of the decision to refuse their application for approval of a nominated position under r.5.19 of the Regulations.

6. The invitation was sent to the last address provided in connection with the review and advised that, if the information was not provided in writing by 19 July 2022, 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.

7. On 19 July 2022 the Tribunal received a request from the applicant’s registered migration agent (the Agent) for an extension of time indicating that the Agent had not yet received information from the applicant:

   […] Please note that I am yet to hear back from the employer in relation to this application and cannot advise the Tribunal on how they intend to proceed. With limited options I write to request further time so that I can continue to follow this up with the appropriate person. […]

8. On 20 July the Tribunal wrote to the applicant granting an extension of time and repeating the notice that if the Tribunal did not receive the information by 17 August 2022, we may make a decision on the review without taking any further action to obtain the information; and, that the applicant will also lose any entitlement it might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

9. The review applicant has not provided the information within the prescribed period and no further extension has been 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. In the absence of any response from the applicant, the Tribunal has decided to proceed to decision without taking further steps to obtain the information.

10. The applicant was represented in relation to the review although no further information was provided by the nominated representative.

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 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.

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

13. 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. 

14. The applicant has provided an employment agreement dated 10 March 2018 indicating that the nominee’s start date will be subject to the approval of the visa subclass 187 (RSMS) by the Department of Immigration and Border Protection for a minimum of two years and that the employment will be full time. There is nothing in the agreement that expressly excludes an extension beyond two years.

15. In their application dated 15 March 2018 the applicant indicated the nominee would be paid a base rate of $57,000 per annum. This rate was also reflected in the Employment Agreement dated 10 March 2018. Payslips provided to the Department indicated the nominee was working full time for the applicant in the position to be filled at the rate of $1,096 per week which is also in accord with the stated base rate.

16. Financial Statements for Financial Year (FY) ending 30 June 2016, 30 June 2017 and 30 June 2018 show total salary and wages paid of $25,980; $29,962 and $33,972 respectively. The applicant’s application form indicates the applicant employs a total of 55 employees, 44 of whom are Australian employees. The organisation chart submitted to the Department indicates that 46 of the drivers are full-time and nine are part-time. The Tribunal is unable to reconcile the dollar amount of salaries and wages paid with the total number of employees, including the nominee on $57,000 per annum. This militates against the applicant having a capacity to employ the nominee in the nominated position for at least two years full time. The ability of the applicant to fulfil the term of employment criteria is less likely as the applicant’s business made losses of: $44,942 in FY ending 30 June 2016; $63,810 in FY ending 30 June 2017; and, $137,656 in FY ending 30 June 2018.

17. Despite a request from the Tribunal for updated and current information in relation to this matter, the applicant has provided no new information that may demonstrate capacity to employ the nominee in the nominated position for at least 2 years full time and so the Tribunal is not satisfied that it will.

18. Accordingly, the requirement in reg 5.19(4)(d) is not met.

    Tasks of the position, genuine need for the position and training requirements reg 5.19(4)(h)

19. Regulation 5.19(4)(h) contains a number of alternative requirements. These are set out in detail in the attachment to the decision but can be briefly summarised as requiring either that:

    ·the tasks to be performed in the position will be performed in Australia and correspond to those of an occupation specified by the Minister (see legislative instrument IMMI 18/005), the occupation is applicable to the proposed employee in accordance with any specifications made in that instrument, there is a genuine need for the nominee to be employed as a paid employee in the position, and certain specified training requirements are met; or

    ·the position and nominator’s business is located in regional Australia, there is a genuine need for the nominee to be employed as a paid employee in the position under the nominator’s direct control, the position cannot be filled by a locally resident Australian citizen or permanent resident, the tasks of the position correspond to those of an occupation specified in the relevant legislative instrument, the occupation is applicable to the proposed employee in accordance with the specification of the occupation, and that a regional certifying body has advised the Minister about certain matters relating to the position.

20. As the applicant does not satisfy r.5.19(4)(d) there is no requirement for the Tribunal to make a finding in relation to r.5.19(4)(h), however in the interests of completion, I will consider whether there is a genuine need for the nominator to employ the person identified under reg 5.19(4)(a)(ii) as a paid employee to work in the position under the nominator’s direct control.

21. The business is described in the company tax return as a Taxi Service Operation and the position being sought to be filled is that of a Transport Manager. The associated occupation is Transport Company Manager – ANZSCO Code 149413 which ANZSCO provides is required to: organise and control the operations of an enterprise that operates a fleet of vehicles to transport goods and passengers.

22. If the business has 55 drivers as indicated in the organisation chart and the application, the Tribunal may be satisfied would have a genuine need for a Transport Manager. The financial evidence before the Tribunal, in the absence of further information, and in particular updated and current information as invited by the Tribunal, suggests that the applicant has far fewer than 55 drivers with total salaries and wages paid by the applicant of $33,972 for FY ending 30 June 2018.

23. A Regional Sponsored Migration Scheme – Regional Certifying Body (RCB) Advice declares that “there is a need for a paid employee in the nominated position within the business activities of the nominating employer”. This advice is dated 24 July 2018 and under the comments identifies that the RCB had received information that the nominee under a previous nomination has resigned from the position hence the need for this nomination. It is not clear from the RCB Advice how long previously the RCB considered the need for a permanent employee.

24. Despite the declaration of the certifying body, the Tribunal is satisfied that the financial information provided indicates that the scale and financial position of the applicant is not sufficient to support that there is a genuine need for the nominator to employ the person identified under reg 5.19(4)(a)(ii) as a paid employee to work in the position under the nominator’s direct control. Therefore, the Tribunal in the absence of further information cannot be satisfied of the genuine need.

25. Accordingly, the requirements of reg 5.19(4)(h) are not met.

    CONCLUDING PARAGRAPH

26. For the above reasons the Tribunal is not satisfied that the applicant meets the requirements of reg 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 reg 5.19(3). Accordingly, the nomination of the position cannot be approved. Therefore, the Tribunal must affirm the decision under review.

    DECISION

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

    George Hallwood
    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).