Renault Master Pty Ltd (Migration)

[2022] AATA 4168

Renault Master Pty Ltd (Migration) [2022] AATA 4168 (24 October 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Renault Master Pty Ltd

REPRESENTATIVE:  Mr Harmanjeet Singh (MARN: 1791617)

CASE NUMBER:  1924086

HOME AFFAIRS REFERENCE(S):          BCC2018/1232286

MEMBER:Alison Mercer

DATE:24 October 2022

PLACE OF DECISION:  Melbourne

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

Statement made on 24 October 2022 at 4:54pm

CATCHWORDS
MIGRATION – nomination – Direct Entry nomination stream – Cook – applicant failed to provide the requested information within the prescribed period – no updated information from the applicant as to its labour market testing efforts –decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 140GBA, 359
Migration Regulations 1994, r 5.19

CASES
Minister for Immigration and Citizenship v Li [2013] HCA 18
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 9 August 2019 to reject the applicant’s application for approval of the nomination of a position in Australia under reg 5.19 of the Migration Regulations 1994 (Cth) (the Regulations).

2. The applicant, Renault Master Pty Ltd (trading as Toodyay Café and Curry Club), applied for approval on 14 March 2018 of its nominated position of Cook. The requirements for the approval of the nomination of a position in Australia are found in reg 5.19 of the Regulations which contains two alternative streams: a Temporary Residence Transition nomination stream (reg 5.19(3)) and a Direct Entry nomination stream (reg 5.19(4)). If the application is made in accordance with reg 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: reg 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 reg 5.19(4)(h)(ii)(C) of the Regulations, which required that the nominated position could not be filled by an Australian citizen or an Australian permanent resident who was living in the same local area as the location of the nominated position. The delegate noted that the local Regional Certifying Body (RCB) had certified that the position could not be locally filled, but gave greater weight to the fact that the nominee’s employment contract with the applicant was dated 14 March 2018, only 1 day after the applicant advertised the nominated position on the Career One website, and while another advertisement on the Locanto website was still running. The delegate therefore concluded that the applicant had not genuinely tested the local labour market and refused to approve the nomination.

5. The Tribunal received a review application on 28 August 2019. It was lodged on the applicant’s behalf by its director, Mr Bhupinder Singh, and was accompanied by a copy of the delegate’s decision.

6. On 20 September 2022, the Tribunal wrote to Mr Singh to invite him, pursuant to s.359(2) of the Act, to provide updated and current information demonstrating that the applicant met all of the relevant criteria in r.5.19(4) (not just the criterion that the delegate found was not met). Mr Singh was requested to provide this information by 4 October 2022, and was advised that if he did not (or did not request an extension of time to do so) by that date, then the applicant would lose its entitlement to have a person appear before the Tribunal at a hearing on its behalf, and the Tribunal might proceed to make its decision on the available evidence.

7. The Tribunal did not receive the requested information by 4 October 2022. Nor did it receive a request for an extension of time to provide the information by that date. The Tribunal has received no further communication from Mr Singh or any other authorised representative of the applicant to date.

8. The Tribunal is satisfied that its s.359(2) letter of 20 September 2022 was sent to the nominated email address of the applicant's authorised recipient for correspondence. There is no indication from the Tribunal's records that the email was undelivered or undeliverable.

9. On behalf of the applicant, Mr Singh has not responded to the Tribunal's s.359(2) letter. In the circumstances, s.359C applies and pursuant to s.360(3), a person representing 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.

10. Accordingly, the Tribunal has proceeded to make its decision on the available evidence without taking further steps to obtain additional information. In doing so, the Tribunal notes that Mr Singh was invited to provide updated and current information, with detailed examples given, to enable the Tribunal to obtain relevant evidence to assess whether the applicant currently meets the r.5.19(4) criteria. However, no information was provided. In the circumstances, the Tribunal does not consider it unreasonable to proceed to a decision without any further deferral, having regard to the principles outlined in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332.

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

    CONSIDERATION OF LAW, CLAIMS AND EVIDENCE

12. 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 application is compliant: r.5.19(4)(a)

13. 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.

14. Having reviewed the nomination application on the Department’s file, the Tribunal is satisfied that it met the above requirements.

15. Accordingly, the Tribunal finds that the requirement in r.5.19(4)(a) is met.

    Nominator is actively and lawfully operating a business in Australia: r.5.19(4)(b)

16. Regulation 5.19(4)(b) requires that the applicant is actively, lawfully and directly operating a business in Australia.

17. The Tribunal notes that the most recent information provided by the applicant to the Department was in July 2019, and no updated information has been provided to the Tribunal despite its s.359(2) request of 22 September 2022.

18. The Tribunal finds that there is insufficient evidence before it that the applicant continues to actively and lawfully operate a business in Australia as at October 2022, and as such, finds that the requirement in r.5.19(4)(b) is not met.

    Tasks of the position, genuine need for the position and training requirements reg 5.19(4)(h)

19. Regulation 5.19(4)(h) contains a number of alternative requirements. These are set out in detail in the attachment to the decision but can be briefly summarised as requiring either that:

    ·the tasks to be performed in the position will be performed in Australia and correspond to those of an occupation specified by the Minister in the relevant legislative instrument, the occupation is applicable to the proposed employee in accordance with any specifications made in that instrument, there is a genuine need for the nominee to be employed as a paid employee in the position, and certain specified training requirements are met; or

    ·the position and nominator’s business is located in regional Australia, there is a genuine need for the nominee to be employed as a paid employee in the position under the nominator’s direct control, the position cannot be filled by a locally resident Australian citizen or permanent resident, the tasks of the position correspond to those of an occupation specified in the relevant legislative instrument, the occupation is applicable to the proposed employee in accordance with the specification of the occupation, and that a regional certifying body has advised the Minister about certain matters relating to the position.

20. The Tribunal is satisfied that the position and nominator’s business are located in Toodyay, postcode 6566 in Western Australia. The relevant written instrument, IMMI 17/059, designates this postcode as being in regional Australia. Accordingly, the requirements of the second dot point must be met by the applicant.

21. As noted above, the Tribunal is satisfied that the position and nominator’s business are located in regional Australia and therefore r.5.19(4)(h)(ii)(A) and (E) are met.

22. Subparagraph r.5.19(4)(h)(ii)(B) requires that there is a genuine need for the nominator to employ the nominee, as a paid employee, to work in the position under the nominator’s direct control. The Tribunal notes that the applicant operates an Indian café/restaurant in Toodyay, and nominated the position of Cook as being genuinely needed in the business at the time that the nomination application was lodged in March 2018. The Department’s records indicate that the applicant provided additional material to the Department in July 2019 including (amongst other things) about its continuing genuine need for the nominated position. However, the Tribunal notes that this information is now 3 to 4 years old. Despite its request for updated information on 22 September 2022, the Tribunal has not been supplied with any current information as to the applicant’s operations (including what effect – if any – the COVID19 pandemic had on it) and whether the nominated position is still genuinely needed within the business. Accordingly, the Tribunal is not satisfied that r.5.19(4)(h)(ii)(B) is met.

23. As noted above, the delegate found that r.5.19(4)(h)(ii)(C) was not met, as they were not satisfied that the applicant had genuinely tested the local labour market prior to signing an employment contract with the nominee on 14 March 2018, given that the applicant had only advertised the position on the Career One website on 13 March 2018 and had a live advertisement running on the Locantro website at this time. The delegate gave this greater weight than the fact that the local RCB had certified that there was no suitable local candidate available.

24. The Tribunal acknowledges the RCB certification, and notes that there is a documented shortage of hospitality workers in Australia at present (including Cooks, and including in regional Australia). However, it has not been provided with any updated information from the applicant as to its labour market testing efforts, either in 2018 or more recently. In the absence of more information than was provided to the delegate in 2018, the Tribunal cannot be satisfied that the position cannot be filled by an Australian citizen or an Australian permanent resident who is living in the same local area as the applicant’s business is located, and it finds that r.5.19(4)(h)(ii)(C) is not met.

25. Subparagraph 5.19(4)(h)(ii)(D) requires that 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. The Tribunal has reviewed the position description provided to the Department and the duties of a Cook as set out in the Australian and New Zealand Classification of Occupations (ANZSCO) dictionary. It is satisfied that the tasks of the nominated position correspond to those of a Cook as set out in ANZSCO and it finds that r.5.19(4)(h)(ii)(D) is met.

26. Subparagraph r.5.19(4)(h)(ii)(DA) requires that the occupation is applicable to the nominee in accordance with the specification of the occupation in the relevant instrument. The Tribunal is satisfied that there is no applicable instrument for these purposes and therefore r.5.19(4)(h)(ii)(DA) is met.

27. Subparagraph r.5.19(4)(h)(ii)(F) requires that the relevant RCB has certified that (B) and (C) above are met. The Tribunal is satisfied that the relevant RCB provided a certification to this effect on 25 July 2018, as it is on the Department file. Accordingly, the Tribunal finds that r.5.19(4)(h)(ii)(F) is met.

28. Accordingly, the Tribunal finds that the requirement in r.5.19(4)(h) is not met, as it is not satisfied that the applicant meets subparagraphs (B) and (C) of r.5.19(4)(h)(ii) (despite meeting the other subparagraphs) and r.5.19(4)(h)(i) is not applicable in this case.

29. As the applicant does not meet r.5.19(4)(b) and (h), the Tribunal finds that it cannot meet r.5.19(4) as a whole (as all the subparagraphs in r.5.19(4) must be met in order for the nomination to approved) and thus it is unnecessary for the Tribunal to consider the remaining subparagraphs in r.5.19(4).

30. In conclusion, 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

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

    Alison Mercer
    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 an identified person as 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).