RMYS Enterprises Pty Ltd (Migration)

[2022] AATA 1618

RMYS Enterprises Pty Ltd (Migration) [2022] AATA 1618 (9 March 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  RMYS Enterprises Pty Ltd

CASE NUMBER:  1903914

HOME AFFAIRS REFERENCE(S):          BCC2016/4417393

MEMBER:P. Maishman

DATE:9 March 2022

PLACE OF DECISION:  Perth

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

Statement made on 09 March 2022 at 4:30pm

CATCHWORDS
MIGRATION – nomination – Temporary Residence Transition nomination stream – applicant failed to provide requested information – no updated or current information before the Tribunal about the applicant’s business and the nominated position – Tribunal is unable to be satisfied that nominee will be employed on a full time basis for at least 2 years – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 359, 360, 363
Migration Regulations 1994, r 5.19

CASES

Hasran v MIAC [2010] FCAFC 40

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 1 February 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 applied for approval on 31 December 2016. 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 Temporary Residence Transition nomination stream.

4. The delegate refused the application on the basis the applicant’s nomination did not satisfy reg 5.19(3)(d) or (e) of the Regulations because the applicant did not demonstrate that the nominated person will be employed on a full-time basis in the position for at least 2 years; or that the terms and conditions of employment applicable to the position were no less favourable than the terms and conditions that are or would be provided to an Australian citizen or an Australian permanent resident for performing equivalent work in the same workplace at the same location.

5. On 12 January 2022 the Tribunal wrote to the review applicant pursuant to s 359 of the Act, inviting the review applicant to provide information about updated and current information addressing the relevant criteria in reg 5.19(2) and (3) of the Regulations in writing. The invitation notified the applicant the Tribunal must be satisfied the requirements of all relevant criteria in reg 5.19 are met at the time of its decision for the nomination of the position to be approved.

6. The invitation was sent to the email address provided in connection with the review. The invitation advised if the information was not provided in writing, or an extension of time requested, by 27 January 2022 the Tribunal may make a decision on the review without taking further steps to obtain the information and the review applicant would lose any entitlement they might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

7. The review applicant did not provide the information, or seek an extension of time to do so, within the prescribed period i.e. by 27 January 2022. In these circumstances, s 359C applies and pursuant to s 360(3) the review applicant is not entitled to appear before the Tribunal. The effect of s 363A of the Act is that if a review applicant has no entitlement to a hearing, the Tribunal has no power to permit her to appear: Hasran v MIAC [2010] FCAFC 40.

8. The application was constituted to the Member on 7 March 2022. The Tribunal has received no further information or submissions. The Tribunal has decided to proceed to decision without taking further steps to obtain the information.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The Tribunal had before it a copy of the Department’s file containing the nomination application and documents received by the Department.

11. The applicant gave the Tribunal a copy of the delegate’s notice of decision with its application for review. The delegate refused the nomination on the basis that reg 5.19(3)(d) and (e) were not met.

12. Regulation 5.19(3)(d) requires that the nominee will be employed on a full time basis for at least 2 years on terms that do not expressly preclude the possibility of an extension. Regulation 5.19(3)(e) requires that the terms and conditions of employment applicable to the nominated position will be no less favourable than those that are, or would be, provided to an Australian citizen or permanent resident performing equivalent work in the same workplace at the same location.

13. The delegate’s decision records the documents it received indicated the nominee for the position was not paid the contracted full time salary by the applicant since commencing employment in 2013. The delegate found the nominee was a part time or casual employee; the applicant had not demonstrated the nominee would be employed for at least 2 years; and the applicant had not demonstrated the terms and conditions of employment applicable to the nominated position will be no less favourable than those that are, or would be, provided to an Australian citizen or permanent resident performing equivalent work in the same workplace at the same location.

14. The Tribunal’s letter to the applicant of 12 January 2022 invited the applicant to provide updated and current information about all the requirements in r.5.19. It also advised that, for the nomination to be approved, the Tribunal must be satisfied that all of the relevant criteria are met at the time of its decision. As stated above, the applicant did not respond to the invitation and no updated information about the applicant, or its business, has been received by the Tribunal. As the applicant has not provided the information requested, the Tribunal is unable to be satisfied that at the time of this decision the applicant meets the requirements for approval of the nomination in the Temporary Residence Transition nomination stream.

15. 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 reg 5.19(3), which is extracted in the attachment to this decision. For the nomination to be approved, all the requirements must be met.

16. The Tribunal invited the applicant to provide updated and current information about a range of matters, including information about its financial circumstances; information about the terms and conditions of employment in the nominated position; whether the nominee had been previously employed full time in the position; and whether the nominee would be employed on a fulltime basis for the next two years. Without limiting the type of information that could be provided, the Tribunal suggested examples of information and/or documents that the applicant could provide, such as ASIC current and historical extract; the applicant’s lodged tax returns for the last two full financial years; business activity statements for the last 24 months; recent financial statements prepared in accordance with Australian accounting standards; previous and current employment contracts in respect of the nominee; and PAYG summaries for the nominee. No response has been received to the invitation to provide information.

17. There is no current evidence before the Tribunal about whether the nominator is lawfully and actively operating a business in Australia, or whether it still wishes to employ the nominee.

18. In the absence of current information, the Tribunal is unable to be satisfied that, at the time of its decision, the nominator is actively and lawfully operating a business in Australia. Accordingly, the Tribunal is not satisfied that the requirement in reg 5.19(3)(b)(ii) is met.

19. Further the Tribunal is unable to be satisfied that nominee will be employed on a full time basis for at least 2 years on terms that do not expressly preclude the possibility of an extension; or that the terms and conditions of employment applicable to the nominated position will be no less favourable than those that are, or would be, provided to an Australian citizen or permanent resident performing equivalent work in the same workplace at the same location. Accordingly, the Tribunal is not satisfied that the requirements in reg 5.19(3)(d) or (e) are met.

20. For the above reasons the Tribunal is not satisfied that the applicant meets the requirements of reg 5.19(3).

21. The applicant has not sought to satisfy the criteria in Direct Entry nomination stream, and as such has not met the requirements in reg 5.19(4). Accordingly, the nomination of the position cannot be approved. Therefore, the Tribunal must affirm the decision under review.

    DECISION

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

    P. Maishman
    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.