RDS Worldwide Pty Ltd (Migration)

[2018] AATA 1207

RDS Worldwide Pty Ltd (Migration) [2018] AATA 1207 (17 April 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  RDS Worldwide Pty Ltd

CASE NUMBER:  1700871

DIBP REFERENCE(S):  BCC2016/624960

MEMBER:Mary Sheargold

DATE:17 April 2018

PLACE OF DECISION:  Melbourne

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

Statement made on 17 April 2018 at 4:15pm

CATCHWORDS

Migration – Nominating sponsor – Direct Entry Nomination stream – Unlikely that the applicant has the capacity to employ the nominee – Practice and Procedure – Request for further information – Extension of time granted – No response from the representative  – Fair opportunity to respond – Lost right to a hearing

LEGISLATION
Migration Act 1958 ss 359, 363, 363A
Migration Regulations 1994 r 5.19

CASES
Harsan v Minister for Immigration and Citizenship [2010] FCAFC
Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617
Kaur v Minister for Immigration and Border Protection [2014] FCA 915
Manna v Minister for Immigration and Citizenship [2012] FMCA 28.
Minister for Immigration and Border Protection v Singh [2014] FCAFC 1
Minister for Immigration and Citizenship v Li [2013] HCA 18
Sing v Minister for Immigration and Border Protection [2014] FCCA 1403
Yang v Minister for Immigration and Citizenship [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 Immigration on 4 January 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. The applicant applied for approval on 12 February 2016. 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)(d)(i) of the Regulations because the applicant did not provide satisfactory evidence to demonstrate its financial capacity to be able to pay the full-time salary for the nominated position for at least 2 years.

5. The Tribunal received an application for review on 17 January 2017, accompanied by a copy of the delegate’s decision.  No further submissions were received.  The applicant was represented in relation to the review by its registered migration agent, Ms Simone Dickenson.

6. The Tribunal has before it the departmental file relating to the application.

7. On 13 February 2018, the Tribunal wrote to the applicant via its authorised representative, Ms Dickenson. The letter was issued pursuant to subsection 359(2) of the Migration Act 1958 (the Act), inviting the applicant to provide current information addressing the relevant criteria for a nomination under r.5.19 of the Regulations. The Tribunal provided a copy of r.5.19 for reference.

8. The invitation requested that the information be provided by 27 February 2018, noting that an extension of time to respond could be requested prior to that date.  The Tribunal advised the applicant that if the information, or a request for an extension, was not received by the due that, then entitlement to appear before the Tribunal would be lost and the Tribunal might proceed to make its decision on the available evidence without taking any further steps to obtain the requested information.

9. On 22 February 2018, Ms Dickenson wrote to the Tribunal requesting an extension of time to provide the required documents, noting that her client was overseas and would not be back in Australia until 20 March 2018.  On 26 February 2018, the Tribunal wrote a further letter to the applicant stating that an extension of time would be granted until 13 March 2018.  That letter also noted that if further information was not received by that date, that the Tribunal may make a decision on the review without taking any further action to obtain the information.  The Tribunal did not receive a response to this letter.

10. The courts have confirmed that where an applicant fails to provide the requested information within the prescribed period, s.363A of the Act precludes the Tribunal from offering the applicant a hearing.[1]  Accordingly, as the applicant failed to give the information requested within the prescribed period, it has lost its right to appear before the Tribunal to give evidence and present arguments relating to the review application.

    [1] See Sing v Minister for Immigration and Border Protection [2014] FCCA 1403 at [32]-[39]; Yang v Minister for Immigration and Citizenship [2010] FMCA 890 at [40]; Harsan v Minister for Immigration and Citizenship [2010] FCAFC at [40].

11. The Tribunal gave consideration to 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. On 21 March 2018, the Tribunal wrote to the applicant stating that as the applicant had not provided a response to the Tribunal’s letter dated 22 February 2018, the applicant had lost its entitlement to a hearing, but noted that the matter would be adjourned until 5 April 2018 to allow the applicant an opportunity to provide the Tribunal with any materials in support of its application. The Tribunal did not receive a response to this letter.

12. Given the circumstances, the Tribunal has again considered whether it should further adjourn the review under s.363(1)(b) of the Act. In doing so, the Tribunal has taken into account the decisions in Huo v Minister for Immigration and Multicultural Affairs[2] and Manna v Minister for Immigration and Citizenship[3] 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[4] regarding the reasonableness of any request for an adjournment, and the Full Federal Court decision in Minister for Immigration and Border Protection v Singh[5] which considered this issue, as well as the more recent decision in Kaur v Minister for Immigration and Border Protection[6] where analogous issues were discussed.

    [2] [2002] FCA 617.

    [3] [2012] FMCA 28.

    [4] [2013] HCA 18 (8 May 2013).

    [5] [2014] FCAFC 1 (4 February 2014)

    [6] [2014] FCA 915 (28 August 2014)

13. The Tribunal has considered whether, in the circumstances of this case, the information that the applicant meets the requirements in r.5.19 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.

14. The Tribunal has had regard to the fact that the nomination application was refused by the Department on 4 January 2017 because the delegate concluded that the applicant did not have the financial capacity to be able to pay the full-time salary for the nominated position for at least 2 years.  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 more than 15 months of the reasons for the nomination application refusal.

15. Further, as noted above, the applicant has provided no further information to the Tribunal since the application for review was received on 17 January 2017, despite being invited to do so.

16. 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 and when the applicant will provide information in writing as to whether the nominating business meets the requirements of r.5.19. The Tribunal is not disposed to delay making a decision indefinitely.

17. Accordingly, the Tribunal has decided not to further exercise its discretion under s.363(1)(b) of the Act to adjourn the review to allow the applicant more time in which to demonstrate that the nominating business meets the requirements of r.5.19.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

19. 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.

    Term of employment of the visa holder: r.5.19(4)(d)

20. Regulation 5.19(4)(d) requires the nominee to be employed in the nominated position for at least 2 years full time, and the terms and conditions of that employment do not expressly exclude the possibility of an extension. 

21. The applicant’s application form submitted to the Department on 12 February 2016 notes that the nominee, Mr Amrinder Singh, will be employed in the position of Cook and paid an annual base salary of $54,000.00 per annum, with guaranteed total earnings of $59,130.00 per annum.

22. The application notes that the applicant currently employees 6 staff: 3 Australian permanent residents and 3 foreign employees, all of whom are students.

23. The Tribunal has considered the applicant’s detailed financial statements for the financial years ending 30 June 2015 and 30 June 2016 that are included in the departmental file.  The Tribunal notes that it does not have any more recent information to consider.

24. In its financial statement for the financial year ending 30 June 2015, the Tribunal notes that the applicant’s business recorded a profit before income tax of $3,575.00, after a total trading income of $100,432.00 and a gross profit from trading of $68,873.00.  The Tribunal notes that the applicant’s total wage expenditure in this financial year was $18,036.00.

25. In its financial statement for the financial year ending 30 June 2016, the Tribunal notes that the applicant’s business recorded a profit before income tax of $13,898.00, after a total trading income of $225,074.00 and a gross profit from trading of $174,777.00.  The Tribunal notes the significant growth in the applicant’s business from the financial year ended 30 June 2015.  However, the Tribunal notes the applicant’s total wage expenditure in the 2015-16 financial year was $108,036.00.

26. As noted above, at the time of application, the applicant claimed to employ 6 staff.  It is unclear from the financial statement for the financial year ending 30 June 2016 whether any of the wage expenditure covers wages for the nominee or only the 6 existing employees.  Even if the applicant had not yet employed the nominee in any capacity, the Tribunal notes that the nominee’s proposed base salary is almost 50% of the total wage expenditure for the applicant’s 6 existing employees.

27. There is no evidence before the Tribunal regarding the applicant’s current income, profits or wage expenditure.  Based on the information in the departmental file explained above, the Tribunal finds it is unlikely that the applicant has the capacity to employ the nominee on a full-time basis in the position of Cook for at least 2 years.

28. Accordingly, the requirement in r.5.19(4)(d)(i) is not met.

29. 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

30. 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.

    …

    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).