Port Curtis Sailing Club Inc (Migration)

[2020] AATA 4753

Port Curtis Sailing Club Inc (Migration) [2020] AATA 4753 (17 August 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Port Curtis Sailing Club Inc

CASE NUMBER:  1910934

HOME AFFAIRS REFERENCE(S):          BCC2017/1814159

MEMBER:R. Skaros

DATE:17 August 2020

PLACE OF DECISION:  Sydney

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

Statement made on 17 August 2020 at 10:45am

CATCHWORDS
MIGRATION – nomination – Temporary Residence Transition Nomination stream – financial capacity to pay the full-time salary for the nominated position for at least 2 years– nominator did not provide any updated or current information –decision under review affirmed

LEGISLATION
Migration Act 1958, s 359
Migration Regulations 1994, r 5.19

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 12 April 2019 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 22 May 2017 seeking to satisfy the criteria in the Temporary Residence Transition Nomination stream. The delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19(3)(d)(i) because the delegate was not satisfied that the business had the financial capacity to pay the full-time salary for the nominated position for at least 2 years. The applicant provided a copy of the delegate’s decision record to the Tribunal.

3. On 22 May 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 (3). 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 5 June 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 applicant’s representative responded to the Tribunal’s invitation in an email dated 26 May 2020 and advised that the review applicant business closed in June 2019. The representative advised that they were unable to contact the review applicant, and that the Tribunal should proceed to make a decision on the material before it.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in this case is whether the applicant meets the requirements for approval of the nomination under the Temporary Residence Transition Nomination stream set out in r.5.19(3), which is extracted in the attachment to this decision. For the nomination to be approved, all the requirements must be met.

8. The Tribunal’s letter to the applicant of 22 May 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. The applicant did not provide any updated and current information about the applicant or its business. 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 Temporary Residence Transition Nomination stream.

9. In this case, the delegate noted that there was no evidence that the monthly Business Activity Statements provided by the applicant were lodged with the Australian Tax Office. Further, the Financial Statements provided for the years ending 31 May 2016 and 2017 showed an increasing Net loss for the business, and the revenue appeared insufficient to demonstrate the business had the financial capacity to carry the cost of employing the nominee as well as meeting their business expenses. The delegate refused the nomination on the basis that r.5.19(3)(d)(i) was not met because they were not satisfied that the nominee would be employed full time in the position for at least 2 years.

10. The Tribunal invited the applicant to provide updated and current information about a range of matters, including the business’ financial circumstances as well as the roles, duties and terms and conditions of employment for the nominated position. Without limiting the type of information that could be provided, the Tribunal suggested examples of information and/or documents that the applicant could provide included tax returns, business activity and financial statements for the most recent two financial years, a job description for the nominated position and a current employment contract or letter of engagement. The requested information was not provided to the Tribunal.

11. 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(3)(d) is not met.

12. In addition, the Tribunal also invited the applicant to provide current and updated information about the terms and conditions of employment in the nominated position and whether they are more or less favourable than those provided for an Australian citizen or permanent resident performing equivalent work in the same workplace and in the same location. Without limiting the type of information that could be provided the Tribunal suggested examples of information and/or documents that the applicant could provide included a current employment contact in respect of the nominee or a letter of engagement that complies with relevant awards (if any) for the nominated position. As noted, the applicant did not provide any further information to the Tribunal.

13. The applicant has not provided any current information about the conditions of employment in the nominated position. In these circumstances, the Tribunal is unable to be satisfied that, at the time of its decision, the terms and conditions of employment applicable to the nominated position will be no less favourable than the terms and conditions that are, or would be, provided to an Australian citizen or Australian permanent resident for performing equivalent work in the same workplace at the same location. Accordingly, the requirement in r.5.19(3)(e) is not met.

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

    DECISION

15. 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.

    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 applicant operates a business and employs employees in the business, relating to workplace relations.