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

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).
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).
In this case, the applicant has applied for approval of a nomination, seeking to satisfy the criteria in the Direct Entry nomination stream.
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.
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.
On 20…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Renault Master Pty Ltd (Migration)

Details

AGLC: Renault Master Pty Ltd (Migration) [2022] AATA 4168
Case: [2022] AATA 4168
Decision Date: 24 October 2022

CaseChat Overview and Summary

This matter concerned an application by Renault Master Pty Ltd for approval of a nomination under the Direct Entry stream. The Administrative Appeals Tribunal (AAT) was required to determine whether the applicant met the requirements for approval of the nomination as set out in regulation 5.19(4) of the Migration Regulations 1994.

The primary legal issue before the Tribunal was whether the applicant had satisfied all the mandatory requirements for the Direct Entry nomination stream. Specifically, the Tribunal considered whether the applicant was actively and lawfully operating a business in Australia, and whether there was sufficient evidence to support this claim, given the lack of updated information provided by the applicant. The Tribunal also examined the requirements relating to the tasks of the position, the genuine need for the position, and any applicable training requirements.

The Tribunal found that while the initial application met the formal requirements of regulation 5.19(4)(a), it could not be satisfied that the nominator was actively and lawfully operating a business in Australia as required by regulation 5.19(4)(b). This conclusion was based on the fact that the most recent information provided by the applicant to the Department was from July 2019, and no updated information had been supplied to the Tribunal despite a request made in September 2022. Consequently, the Tribunal determined there was insufficient evidence to demonstrate the continued operation of the business as at October 2022.

The Tribunal affirmed the decision under review to refuse the nomination.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

For the following reasons, the Tribunal has decided to affirm the decision under review to refuse the nomination.CONSIDERATION OF LAW, CLAIMS AND EVIDENCE 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) 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. Having reviewed the nomination application on the Department’s file, the Tribunal is satisfied that it met the above requirements. 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) Regulation 5.19(4)(b) requires that the applicant is actively, lawfully and directly operating a business in Australia. 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. 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) 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.

Decision

Reasons for decision

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 The Tribunal affirms the decision under review to refuse the nomination.Alison MercerMemberATTACHMENT - Extracts from the Migration Regulations 19945.19Approval 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).

Ratio Decidendi

Legal Principle Established

The Tribunal affirms the decision under review to refuse the nomination.Alison MercerMemberATTACHMENT - Extracts from the Migration Regulations 19945.19Approval 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).