RK and NK Pty Ltd ATF The Karthikeyan Family Trust (Migration)

RK and NK Pty Ltd ATF The Karthikeyan Family Trust (Migration) [2019] AATA 6360 (17 October 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  RK and NK Pty Ltd ATF The Karthikeyan Family Trust
CASE NUMBER:  1800411
DIBP REFERENCE(S):  BCC2016/4301881
MEMBER:Mark Bishop
DATE:17 October 2019
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision under review to refuse the nomination.

Statement made on 17 October 2019 at 8:32am
CATCHWORDS
MIGRATION – application for approval of nomination of position – Direct Entry Nomination stream – position description in application did not match occupation specified in relevant instrument – employer since sold business – position no longer exists – decision under review affirmed
LEGISLATION
Migration Regulations 1994 (Cth), r 5.19(4)(h)(ii)(D)
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 Immigration on 21 December 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).
The applicant applied for approval on 20 December 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).
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 R.5.19(4)(h)(ii)(D) of the Regulations because position description in the application did not match occupation specified in the relevant instrument.
The applicant appeared before the Tribunal on 14 October 2019 to give evidence and present arguments. The nominee in Case number 1804454 also gave evidence as did his wife.
The applicant was represented in relation to the review by its registered migration agent.
For the following reasons, the Tribunal has decided to affirm the decision under review to refuse the nomination.
CONSIDERATION OF 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.
Tasks of the position genuine need for the position and training requirements r.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 under the relevant legislative instrument, the occupation is applicable to the proposed employee in accordance with any specifications made in that instrument, and specified training requirements are met; or
·the position and nominator’s business is located in regional Australia, there is a genuine need for the paid position under the nominator’s direct control which 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.
On 21 August 2019 the Tribunal wrote to the applicant advising it required updated and current information addressing criteria set out in r.5.19(2) and (4) of the Regulations. The Tribunal specified the information sought and requested it be provided by 4 September 2019. On 4 September 2019 the Tribunal received a request for an extension of time to provide the information. The Tribunal granted an extension of time until 18 September 2019 for the applicant to provide the information.
On Wednesday 18 September the Migration Agent (MA) for the applicant advised the Tribunal that the “Director of the sponsoring company has advised that he would like to attend a hearing and kindly requests the opportunity to put forward his case rather than providing documents at this point in time. The Director believes it will be more beneficial to both the applicant and himself to present details at the hearing”
The applicant did not provide any information to the Tribunal prior to the hearing.
The applicant provided a copy of a letter of employment dated 6 February 2017 addressed to the nominee. It provided an offer of employment as Store Manager in the Ocean Grove store. The letter of offer was signed and dated by both parties to the employment agreement. The applicant provided a large amount of information relating to employment conditions in the Ocean Grove store, business needs of the Ocean Grove store, payslips for the nominee as Manager of the Ocean Grove store and material relating to an RCB application for approval of the nominee in the Ocean Grove store as Retail Manager
At the hearing the applicant advised the Tribunal he had sold the Ocean Grove store in Geelong. He sold it in November 2018. The position of Retail Manager no longer exists. The applicant advised the Tribunal the position of Retail Manager had been abolished with the sale of the store and the position of Retail Manager was no longer in use. The nominee advised the Tribunal his former position no longer existed. In evidence the nominee advised the Tribunal he had not worked for his former employer since November 2018 and had been employed in a series of jobs in the hospitality industry in Geelong and Torquay. The wife of the nominee in Case number 1804454 gave evidence in the proceedings and corroborated the evidence of the applicant and the nominee that the Ocean Grove store had been sold and her husband had not worked as a Retail Manager in the Ocean Grove store since November 2018. Neither the applicant nor the nominee advised of continuing employment in the former store.
The Tribunal finds that the position of Retail Manger in the Ocean Grove store no longer exists.
Accordingly the Tribunal is not satisfied the applicant meets the requirement “there is a genuine need for the nominator to employ a paid employee to work in the position under the nominator’s direct control”
Accordingly the Tribunal is not satisfied the applicant meets the requirement 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”
Accordingly the Tribunal is not satisfied the applicant meets the requirements of r.5.19(4)(h)(ii)(D)
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
The Tribunal affirms the decision under review to refuse the nomination.
Mark Bishop
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).

[2019] AATA 6360

17 October 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Statutory Construction

Procedural Fairness

Remedies