Premier Group (AUS) Pty Ltd (Migration)

[2024] AATA 646

Premier Group (AUS) Pty Ltd (Migration) [2024] AATA 646 (19 March 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Premier Group (AUS) Pty Ltd

CASE NUMBER:  2110441

HOME AFFAIRS REFERENCE(S):          BCC2021/1194561

MEMBER:Jade Murphy

DATE:19 March 2024

PLACE OF DECISION:  Melbourne

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

Statement made on 19 March 2024 at 5:28pm

CATCHWORDS
MIGRATION – application for approval of nomination of position – direct entry stream – genuine need for position – financial capacity to employ nominee for two years – no information provided in response to tribunal’s invitation – loss of entitlement to hearing – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 140GB, 359(2), 359C(1), 360(3), 363(1)(b)
Migration Regulations 1994 (Cth), r 5.19(4), (9)(d)

CASES
Huo v MIMA [2002] FCA 617
Kaur v MIBP [2014] FCA 915
Manna v MIAC [2012] FMCA 28
MIAC v Li [2013] HCA 18
MIBP v Singh [2014] FCAFC 1
Yang v MIAC [2010] FMCA 890

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 23 July 2021 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 4 June 2021. 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 Direct Entry stream.

4. 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 is a genuine need for the identified person to be employed in the position, under the direct control of the nominator.

5. On 16 October 2023, the Tribunal wrote to the applicant and invited it to provide information to the Tribunal pursuant to s.359(2) of the Act. Specifically, the Tribunal invited information to be provided demonstrating that the business currently met all relevant criteria in r.5.19(4) and (9) of the Regulations and s.140GB of the Act, including but not limited to, the criterion that the Department had found was not met. The Tribunal requested that the information be provided by 30 October 2023, noting that an extension of time to respond could be requested but that this would need to be made by 30 October 2023. Finally, the Tribunal advised the applicant that if the requested information was not received by the due date (or by the extended due date, if an extension of time was requested and granted), then the entitlement to appear at the Tribunal hearing would be lost and the Tribunal might proceed to make its decision on the available evidence without taking further steps to obtain the requested information.

6. On 2 November 2023 the applicant wrote to the Tribunal requesting an extension of 28 days to provide supporting documentation. On 3 November 2023 the Tribunal wrote to the applicant advising that as the applicant’s response to the 359(2) request had been provided out of time it appeared the applicant had lost their right to a hearing. The Tribunal requested that any further documentation the applicant wished to rely on be provided to the Tribunal by an extended date of 16 November 2023.

7. The applicant did not respond to the request to provide information within the extended specified timeframe, nor did it request a further extension of time in which to do so.

8. As the applicant failed to respond within the prescribed period, s.359C(1) applies and pursuant to s.360(3), the applicant is not entitled to appear before the Tribunal. The Tribunal has no power to permit them to appear, see Yang v MIAC [2010] FMCA 890.

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

10. In doing so, the Tribunal has considered 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 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).

11. The Tribunal considered whether, in the circumstances of this case, the information that the applicant meets the requirements in r.5.19 of the Regulations and s.140GB of the Act is likely to be forthcoming and whether the applicant has had a fair opportunity to provide the relevant information or documents already, and the significance of the information or documents to the applicant.

12. The Tribunal has had regard to the fact that the application was refused by the Department on 23 July 2021 because the delegate was not satisfied that there is a genuine need for the identified person to be employed in the position, under the direct control of the nominator and as a result was not satisfied the applicant met r.5.19(9)(d). The applicant submitted a copy of the primary decision record with the review application. As a result, the Tribunal observes that the applicant has been aware for over two years of the reason for the nomination refusal.

13. 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, or when the applicant will provide information in writing as to whether the nominating business meets the requirements of r.5.19 of the Regulations and s.140GB of the Act. The Tribunal is not disposed to delaying making a decision indefinitely.

14. Accordingly, the Tribunal has decided not to exercise its discretion under subsection 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 of the Regulations and s.140GB of the Act.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

16. 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.

    Future employment – regs 5.19(9)(e), (f) and (g)

17. Regulations 5.19(9)(e), (f) and (g) contain requirements relating to the future employment of the identified person.

18. Firstly, reg 5.19(9)(e) requires that the identified person will be employed on a full-time basis in the position for at least two years.

19. Secondly, reg 5.19(9)(f) requires that 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.

20. Finally, reg 5.19(9)(g) requires that the nominator’s business has the capacity to employ the identified person for at least two years and to pay the person at least the annual market salary rate for the occupation each year. The ‘annual market salary rate’ is the earnings an Australian citizen or permanent resident earns or would earn for performing equivalent work on a full-time basis for a year in the same workplace at the same location: reg 1.03.

21. At the time of review application, the applicant did not provide any supporting financial information, all that was provided was a copy of the Department’s decision. The only supporting information the Tribunal has reference to is contained on the Department file and is what the delegate had before them when they made their decision. This information is now well over two years old, so the Tribunal is unable to give it any weight.

22. The Tribunal wrote to the applicant under subsection 359(2) of the Act inviting the applicant to provide information in writing demonstrating that the nominating business meets all the requirements of the criteria in regulation 5.19(4) and (9) of the Migration Regulations. The applicant has failed to respond. The Tribunal has no contemporary information before it concerning the financial capacity of the nominating business to pay the nominee's salary, or the terms and conditions of employment.

23. The applicant has not provided sufficient evidence of its financial capacity to employ the nominated person on a full-time basis for at least two years, or the terms and conditions of employment.

24. Based on the evidence before it, the Tribunal is not satisfied that the nominating business has demonstrated its financial capacity to pay the nominated full-time salary for the nominated position for at least two years. The Tribunal is also not satisfied the nominator has demonstrated it meets the requirements regarding the terms and conditions of the nominee’s employment.

25. Given the above findings, the Tribunal is not satisfied that reg 5.19(9)(e), reg 5.19(9)(f) are reg 5.19(9)(g) is met. Accordingly, reg 5.19(4)(f) is not met.

26. 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

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

    Jade Murphy
    Member

    
    

    ATTACHMENT – 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:

    (aa) if the application identifies a Subclass 187 (Regional Sponsored Migration Scheme) visa–be made before 16 November 2019 (subject to subclause (2A)); and

    (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.

    (2A) Paragraph (2)(aa) does not apply if:

    (a) the application identifies a Subclass 187 (Regional Sponsored Migration Scheme) visa in the Temporary Residence Transition stream; and

    (b) the identified person is a transitional 457 worker or transitional 482 worker at the time the application is made.

    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.