Polat, Sabri (Migration)

[2023] AATA 3904

Polat, Sabri (Migration) [2023] AATA 3904 (24 July 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Polat, Sabri

CASE NUMBER:  2000274

HOME AFFAIRS REFERENCE(S):          BCC2016/972027

MEMBER:Mary Sheargold

DATE:24 July 2023

PLACE OF DECISION:  Melbourne

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

Statement made on 24 July 2023 at 2:34pm

CATCHWORDS
MIGRATION – Employer Nomination – approval of nominated position – Temporary Residence Transition stream – term of employment – major restructure of his business model – status of the nominator – active and lawful operation of business – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 363
Migration Regulations 1994 (Cth), r 5.19

CASES
Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617
Kaur v Immigration and Border Protection [2014] FCA 915
Manna v Minister for Immigration and Citizenship [2012] FMCA 28
Minister for Immigration and Border Protection v Singh [2014] FCAFC 1
Minister for Immigration and Citizenship v Li [2013] HCA 18

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 17 December 2019 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).

2. The applicant applied for approval on 8 March 2016. 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).

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

4. The delegate refused the application on the basis the applicant’s nomination did not satisfy reg 5.19(3)(d)(i) of the Regulations because the change to the applicant’s business structure from sole trader to a body corporate, Oorhay Pty Ltd, meant that the nominator could no longer offer the nominee at least 2 years of full time employment.

5. On 20 June 2023, the Tribunal wrote to the applicant inviting the applicant to provide information that demonstrated that the business meets all of the requirements of the criteria in r.5.19(4) of the Regulations at the time of the Tribunal’s decision. A response to the request for information was due by 4 July 2023. As at the date of this decision, no response has been received.

6. The Tribunal notes it has not received the information requested, and in these circumstances, it is able to proceed to decision based on the evidence before it.

7. The Tribunal has considered whether it should adjourn the review under s.363(1)(b) of the Act to allow the applicant additional time in which to provide further evidence to support its review application.

8. In doing so, the Tribunal has taken into account the decisions in the Tribunal has taken into account the decisions in Huo v Minister for Immigration and Multicultural Affairs[1] and Manna v Minister for Immigration and Citizenship[2] where the Courts have held that the Tribunal is not required to indefinitely defer its decision-making processes. It has also had regard to the decision in Minister for Immigration and Citizenship v Li[3] regarding the reasonableness of any request for an adjournment, and the Full Federal Court of Australia decision in Minister for Immigration and Border Protection v Singh[4] which considered this issue, as well as the more recent decision in Kaur v Minister for Immigration and Border Protection[5] where analogous issues were discussed.

   [1] [2002] FCA 617.

   [2] [2012] FMCA 28.

   [3] [2013] HCA 18 (8 May 2013).

   [4] [2014] FCAFC 1 (4 February 2014).

   [5] [2014] FCA 915 (28 August 2014).

9. The Tribunal has considered whether, in the circumstances of this case, the information that the applicant meets the requirements in r.5.19(9) of the Regulations is likely to be forthcoming and whether the applicant has had a fair opportunity to provide the relevant information already, and the significance of the information to the applicant.

10. The Tribunal has had regard to the fact that the nomination application was refused by the Department on 17 December 2019 because the delegate concluded that the applicant could no longer offer the nominee 2 years of full time employment due to a major restructure of his business model from operating as a sole trader to incorporating a body corporate to take over his business.  The Tribunal observes that the applicant has been aware for more than 37 months of the reasons for the nomination application refusal.

11. Further, as noted above, the applicant has provided no further information to the Tribunal to demonstrate that the applicant can satisfy the requirements of r.5.19(3) of the Act since the application for review was received on 7 January 2020, despite being invited to do so.

12. In these circumstances, and for the reasons set out in this decision record, the Tribunal considers that the applicant has had a fair opportunity to provide the relevant information and sufficient time to take steps to satisfy the regulatory criteria. The Tribunal notes that it is uncertain if and when the applicant will provide information in writing as to whether the nominating business meets the requirements of r.5.19(2) and (3) of the Regulations. The Tribunal is not disposed to delay making a decision indefinitely. The Tribunal notes that the applicant is not precluded from making a further nomination application in relation to the nominated position.

13. Accordingly, the Tribunal has decided not to exercise its discretion under s.363(1)(b) of the Act to adjourn the review any further to allow the applicant more time in which to demonstrate that the nominating business meets the requirements of r.5.19(3) of the Regulations.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

15. The issue in this case is whether the applicant meets the requirements for approval of the nomination set out in reg 5.19(3), which are extracted in the attachment to this decision. For the nomination to be approved, all the requirements must be met.

    Status of the nominator: r.5.19(3)(b)

16. Regulation 5.19(3)(b) requires the nominator to be or have been the relevant standard business sponsor who is actively and lawfully operating a business in Australia. In addition, the nominator, as that standard business sponsor, must not have met certain criteria relating to the operation of a business overseas, in the most recent sponsorship approval.

17. There is no evidence available to the Tribunal at the time of its decision to demonstrate that the applicant is actively, lawfully, and directly operating a business in Australia.  The applicant has not provided the Tribunal with any information whatsoever regarding its business since the application was lodged.  The Tribunal acknowledges that a number of years have passed since the nominator changed the structure of their business and appreciates that there is no additional evidence available, such as Business Activity Statements or company tax returns, to demonstrate that the applicant, as identified in this application, is actively operating a business at this time.

18. Therefore, based on the evidence available to the Tribunal at the time of its decision, the Tribunal finds that the requirement in reg 5.19(3)(b) is not met.

19. For these reasons the Tribunal is not satisfied that the applicant meets the requirements of reg 5.19(3). Accordingly, the nomination must be refused. The decision under review must be affirmed.

    DECISION

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

    Mary Sheargold
    Member