Proadvance Pty Ltd (Migration)

[2019] AATA 4851

Proadvance Pty Ltd (Migration) [2019] AATA 4851 (29 October 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Proadvance Pty Ltd

CASE NUMBER:  1921304

DIBP REFERENCE(S):  BCC2018/4002205

MEMBER:Amanda Mendes Da Costa

DATE:29 October 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 29 October 2019 at 10:01am

CATCHWORDS
MIGRATION – Temporary Business Entry (Class UC) visa – Direct Entry Nomination stream – employer’s nomination of position – financial capacity to pay salary – no financial information provided – no response to Tribunal’s s 359 letter – decision under review affirmed

LEGISLATION

Migration Act 1959 (Cth), ss 359(2), 359C, 360(3), 363A
Migration Regulations 1994 (Cth), r 5.19(9)(g)

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 Immigration on 15 July 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 29 June 2018. 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 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 r.5.19(4)(f) of the Regulations. The delegate found that given the nomination related to a visa application in the Direct Entry nomination stream, the requirements set out in sub-regulation (9) were also required to be met. The delegate was not satisfied that the applicant had met these requirements.

5. On 7 October 2019 the Tribunal wrote to the applicant pursuant to s.359 (2) of the Act, inviting the applicant to provide information about the criteria in r.5.19 (2) and (4) in writing. 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 21 October 2019, the Tribunal may make a decision on the review without taking further steps to obtain the information and the applicant would lose any entitlement it may otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

6. The applicant has not provided the information within the prescribed period and no extension has been granted.  In these circumstances, s.359C applies and pursuant to s.360 (3), the applicant is not entitled to appear before the Tribunal.  The effect of s.363A of the Act is that if an applicant has no entitlement to a hearing, the Tribunal has no power to permit him or to appear: Hasran v MIAC [2010] FCAFC 40. The Tribunal has decided to proceed to decision without taking further steps to obtain the information.

7. The applicant was represented in relation to the review by its registered migration agent.

8. The Tribunal notes that the documents provided to the Department by the applicant included:

   ·Genuine need statement;

   ·Regional Certifying Body certificate;

   ·Market salary report;

   ·copy of the change of registration of the applicant’s name;

   ·letter containing job offer;

   ·job description; and

   ·Australian Business Number details.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. 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 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.

    The nominator’s business has the capacity to employ the nominee for at least 2 years and to pay the person at least the annual market salary rate for the occupation each year: r.5.19(9)(g)

11. Regulation 5.19(9) (g) requires that the applicant’s business has the capacity to employ the nominee for at least 2 years and to pay the nominee at least the annual market salary for the occupation each year.  The information provided to the Department about its business activities did not include any financial information such as profit and loss statements and balance sheets; business activity statements, information from the applicant’s accountant; business taxation returns; position description or organizational chart.  Nor has the applicant provided to the Tribunal, any financial documentation about its business activities.

12. The Tribunal finds that it has not been provided with any current information about whether the applicant’s business has the capacity to employ the nominee for at least 2 years and to pay the person at least the annual market salary for the occupation each year.

13. Accordingly, the Tribunal is not satisfied that at the time of this decision, the applicant’s business has the capacity to employ the nominee for at least 2 years and to pay the person at least the annual market salary for the occupation each year. 

14. Accordingly, the requirement in r.5.19 (9) (g) is not met.

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

    DECISION

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

    Amanda Mendes Da Costa
    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).