R&V Rana Enterprises Pty Ltd (Migration)

[2021] AATA 1502

R&V Rana Enterprises Pty Ltd (Migration) [2021] AATA 1502 (16 March 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  R&V Rana Enterprises Pty Ltd

CASE NUMBER:  1815858

HOME AFFAIRS REFERENCE(S):          BCC2017/2311163

MEMBER:Mary Sheargold

DATE:16 March 2021

PLACE OF DECISION:  Melbourne

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

Statement made on 16 March 2021 at 10:33am

CATCHWORDS
MIGRATION – nomination – Temporary Residence Transition nomination stream – financial status of the business – financial capacity to meet all employment obligations – applicant’s ABN was cancelled – no evidence to show applicant is actively and lawfully operating any business –decision under review affirmed

LEGISLATION
Migration Act 1958, ss 245AR, 359,363
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 21 May 2018 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 2017. 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 stream (r.5.19(3)) and a Direct Entry nomination stream (r.5.19(4)). 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 Temporary Residence Transition nomination stream.

4. The delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19(3)(d)(i) of the Regulations because it did not demonstrate that it had the financial capacity to pay the nominee’s full-time salary for at least 2 years.

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

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. On 30 November 2020, the Tribunal wrote to the applicant pursuant to s.359(2) of the Act, inviting it to provide updated information in relation to its business.  The letter stated that a response was due by 14 December 2020.  At 8:36pm on 14 December 2020, the applicant’s representative wrote to the Tribunal requesting an extension of time, to 15 January 2021, to provide the documents requesting, citing the Christmas period and the applicant being very busy as reasons for the extension to be granted.

9. The Tribunal granted an extension of time to 15 January 2021 to provide the information requested.  At 9:54pm on 15 January 2021, the applicant’s representative provided the following documents to the Tribunal in support of the application:

   ·a copy of the current and historical extract for the applicant from the Australian Securities and Investments Commission (ASIC) dated 9 December 2020;

   ·a photograph of an undated extract from the Australian Business Register showing the applicant’s Australian Business Number (ABN) being registered on 4 July 2011;

   ·a company summary for the applicant from ASIC dated 28 March 2017;

   ·copies of business activity statements (BAS) for the applicant’s business for each quarter from July 2018 to September 2019;

   ·detailed financial statements for the applicant’s business for the financial years ending on 30 June in 2016, 2017 and 2018;

   ·a copy of the position description for the nominee’s role;

   ·a copy of the employment contract between the applicant and the nominee dated 10 May 2016;

   ·a letter from the applicant’s director to the Department confirming the nominee’s employment; and

   ·receipts for training courses paid for in 2013, 2014, 2016, 2017, and 2018.

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

10. 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.

11. On 5 February 2021, the Tribunal wrote to the applicant pursuant to s.359A of the Act.  The Tribunal’s letter invited the applicant to comment on or respond to certain information that it considered would, subject to any comments or response from the applicant, be the reason, or a part of the reason, for affirming the decision under review.  The particulars of the information were that the ABN for the applicant had been cancelled on 3 December 2019.  

12. The Tribunal noted that this information was relevant to the review because it is a requirement for the approval of the application that the applicant is actively and lawfully operating a business in Australia at the time the decision is made.  The Tribunal noted that if it relied on this information in making its decision, being that the applicant’s ABN had been cancelled, it may find that the applicant is not actively and lawfully operating a business in Australia, and that this would mean the applicant did not satisfy a requirement for approval of the nomination and that the Tribunal must affirm the decision under review. 

13. The applicant was given until 19 February 2021 to comment on or respond to this information.  The Tribunal’s letter noted that if the applicant could not provide its comments or response by 19 February 2021, it may request an extension of time in which to provide its comments or response, and that such a request must be made by 19 February 2021.

14. At 5:31pm on 19 February 2021, the applicant’s representative wrote to the Tribunal requesting an extension of time, to 19 March 2021, to submit its comments or response.  The representative noted that “this is because the employer is very busy due to business operations and asking for more time.” 

15. The Tribunal considered the request carefully and granted an extension of time until 5 March 2021 for the applicant to provide its comments or response to the information.  The Tribunal notes that as at the date of this decision, no response has been received.  In these circumstances, it is able to proceed to decision based on the evidence before it.

16. 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.

17. 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).

18. The Tribunal has considered whether, in the circumstances of this case, the information that the applicant meets the requirements in r.5.19(3)(b)(ii) 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.

19. 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(3)(b)(ii). The Tribunal is not disposed to delay making a decision indefinitely.

20. 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).

21. The Tribunal notes that the applicant’s ABN was cancelled on 3 December 2019.  There is no evidence before the Tribunal to demonstrate that the applicant has registered a new ABN or attempted to reinstate its cancelled ABN.  The applicant has not provided the Tribunal with any documents or information to confirm that it is actively and lawfully operating a business at the time the Tribunal is making its decision.  Relevantly, the Tribunal notes that the applicant has not provided evidence of any BAS beyond 30 September 2019, nor has it provided financial statements or copies of company tax returns for the previous 2 financial years. 

22. Although the Tribunal has a copy of the current and historical company extract from ASIC dated 9 December 2020, showing that the applicant itself is still registered, there is no evidence before the Tribunal that the applicant is actively and lawfully operating any business as at the date of this decision.  The Tribunal finds that there is no quantifiable evidence before it at the time of review that could lead the Tribunal to find that the applicant is actively and lawfully operating a business.

23. The Tribunal is not satisfied that the applicant has demonstrated that it is actively and lawfully operating a business. Therefore, r.5.19(3)(b)(ii) is not met, and the applicant cannot satisfy r.5.19(3)(b).

24. Given the above, the requirement in r.5.19(3)(b) is not met.

25. 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

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

    Mary Sheargold
    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.