Positive Fix Pty LTd (Migration)

[2018] AATA 4747

Positive Fix Pty LTd (Migration) [2018] AATA 4747 (5 December 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Positive Fix Pty Ltd

CASE NUMBER:  1704757

HOME AFFAIRS REFERENCE:                BCC2016/2487142

MEMBER:Lilly Mojsin

DATE:5 December 2018

PLACE OF DECISION:  Sydney

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

Statement made on 05 December 2018 at 04:06 pm

CATCHWORDS

MIGRATION – nomination of an occupation (employer nomination) – Direct Entry Nomination stream – position of Architectural Draftsperson – identified need for employee to work in the position – applicant did not attend the hearing – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 245AR, 360, 362

Migration Regulations 1994, 5.19, 5.37

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 22 February 2017 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. Positive Fix Pty Ltd, the nominator [applicant], applied for approval on 27 June 2016 to employ an Architectural Draftsperson (Australian and New Zealand Standard Classification of Occupations (ANZSCO) 312111), nominating Sama Sthapit. The requirements for the approval of the nomination of a position in Australia are found in r.5.19 of the Regulations which contains two 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) 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: r.5.19(5).

3. In this review, 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 r.5.19(4)(a)(ii) of the Regulations because the applicant did not identify a need for a paid employee to work in the position under the direct control of the nominator.

5. The applicant appealed that decision to this Tribunal, annexing a copy of the Department decision to the application for review.

6. The applicant was invited under s.360 of the Migration Act 1958 to appear before the Tribunal on 5 December 2018 at 9.00 am. The invitation stated that if the applicant did not attend the hearing, the Tribunal may dismiss the application for review without any further consideration of the application or the information before it.

7. The applicant did not acknowledge the Tribunal correspondence. The applicant did not attend the scheduled Tribunal hearing on 5 December 2018 at 9.00 am.

8. In these circumstances, pursuant to s.362B of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear before it.

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The issue in this review is whether the applicant meets the requirements for approval of the nomination under the Direct Entry nomination stream set out in r.5.19(4), which is extracted in the attachment to this decision. For the nomination to be approved, all the requirements must be met.

10. Regulation 5.19(5) provides that the Minister must not approve an application unless it satisfies all relevant requirements for one stream.

11. The Tribunal notes that the nomination application was refused by the Department on 22 February 2017 because the delegate concluded that the application for approval had not identified a need for the applicant to employ a paid employee to work in the position under the nominator’s direct control and the nomination did not meet r.5.19(4)(a)(ii).

12. The applicant did not provide any documents to the Tribunal. The Tribunal finds that the applicant was aware of the issues before the Tribunal, as the issues were set out in the delegate's decision provided by the applicant to the Tribunal, and the applicant failed to take advantage of the opportunity to attend the hearing and present evidence and arguments in support of the application for review, or provide any other supporting evidence to the Tribunal.

13. Documents provided by the applicant to the Department in support of this application were:

    ● PAYG payment summary statement for the nominee
    ● ASIC company summary
    ● Employment contract for another employee
    ● Diploma of Building Design for another employee
    ● Employment contract for nominee
    ● Payslips for another employee
    ● Payslips for another employee
    ● Payslip for nominee
    ● Appointment of new authorised recipient
    ● A statement of services from the nominator
    ● Graphisoft implementation proposal
    ● Acknowledgement of nomination application received
    ● Tax invoice and other documents from CAFG Australease
    ● Certification Form – Paying for visa sponsorship
    ● Professional indemnity insurance
    ● Notification of incorrect information
    ● Tax invoices and confirmation of registrations from Engineering Training Institute of
    Australia
    ● Tax invoice from Kustom Engineering

14. Regulation 5.19(4)(a) requires that the application for approval must be in the approved form, must be accompanied by the prescribed fee, and, where applicable, must include the required written certification relating to conduct that contravenes s.245AR(1). The application must also identify a need for the nominator to employ a paid employee to work in the position under their direct control.

15. The Tribunal has had regard to the Department file. The Tribunal finds that the application was made in accordance with the approved form, accompanied by the fee prescribed in r.5.37 and included a written certification by the nominator stating the nominator has not engaged in conduct, in relation to the nomination, that constitutes a contravention of s.245AR(1) of the Act. The Tribunal finds that the applicant meets r.5.19(4)(a)(i)

16. The Tribunal has considered Departmental Policy guidance in assessing r.5.19(4)(a)(ii) that requires the nomination to identify a need for a paid employee to work in the position under the direct control of the nominator.

17. Documents provided by the applicant do not show the organisational structure of the applicant business, nor provided details of goods and/or services provided by the business nor details of how the position contributes to maintaining or enhancing the volume and/or quality of these outputs (such as detailed and quantifiable plans for future expansion). Had the applicant attended the hearing the Tribunal would have been able to explore with the applicant information about an employment contract for the nominee and other evidence about the need for the nominated position including the number of employees in the business, the applicant’s salary level and financial information about the applicant’s business.

18. On the information before it the Tribunal is not satisfied that the applicant has identified a need for a paid employee to work in the position under the direct control of the nominator. The applicant does not meet r.5.19(4)(a)(ii).

19. As the applicant does not meet r.5.19(4)(a)(ii) the applicant does not meet the requirement in r.5.19(4)(a).

20. For the above reasons the Tribunal is not satisfied that the applicant meets the requirements of r.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 r.5.19(3). Accordingly, the nomination of the position cannot be approved.

21. Therefore, the Tribunal must affirm the decision under review.

    DECISION

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

    Lilly Mojsin
    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)       both 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;

    (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 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).