SAINI PTY LTD (Migration)

[2021] AATA 1900

SAINI PTY LTD (Migration) [2021] AATA 1900 (1 June 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  SAINI PTY LTD

CASE NUMBER:  1834391

HOME AFFAIRS REFERENCE(S):          BCC2017/3973136

MEMBER:Penelope Hunter

DATE:1 June 2021

PLACE OF DECISION:  Sydney

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

Statement made on 1 June 2021 at 2:55pm

CATCHWORDS
MIGRATION – application for approval of nomination of position – direct entry stream – genuine need for position – no current information provided – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 359(2), 359C, 360(3), 363(1)(b), 363A

Migration Regulations 1994 (Cth), r 5.19(4)(d), (h)(ii)(B)

CASE

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 6 November 2018 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 27 October 2017. 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 stream (r.5.19(3)) and a Direct Entry nomination stream (r.5.19(4)). 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, and nominated the position of Restaurant Manager to work in their business.

4. The delegate refused the application on the basis that applicant’s nomination did not satisfy r.5.19(4)(h) of the Regulations because the applicant had not demonstrated to the satisfaction of the delegate the genuine need for a Restaurant Manager in their business.

5. The Tribunal received an application for review from the applicants on 28 August 2018. The applicant was represented in relation to the review by their registered migration agent.

6. On 25 February 2021, the Tribunal wrote to the applicant and requested that the applicant provide information to the Tribunal pursuant to s.359(2) of the Act, in writing demonstrating that the business currently met all relevant criteria in r.5.19(2) and (4) of the Regulations, including but not limited to, the criteria that the Department had found was not met. The Tribunal requested that the information be provided by 12 March 2021, and advised that an extension of time to respond could be requested, but that this would need to be made before 12 March 2021. Finally, the Tribunal advised the applicant that if the requested information was not received by the due date (or by the extended due date, if an extension of time was requested and granted), then the entitlement to appear at the Tribunal hearing would be lost, and the Tribunal might proceed to make its decision on the available evidence without taking further steps to obtain the requested information.

7. On 11 March 2021, the Tribunal received a request from the applicant for an additional two to three weeks to provide information. The Tribunal wrote to the applicant and granted an extension to 8 April 2021. The applicant was further advised that if the Tribunal did not receive information by 8 April 2021, it may make a decision on review without taking any further action to obtain the information, and that the applicant would lose any entitlement it might otherwise have had to appear before the Tribunal and give evidence and present arguments.

8. On 12 April 2021, after the time stipulated by the Tribunal had expired, a further request was received from the applicant for additional time to provide information. The Tribunal wrote to the applicant and set out that if the applicant intended to provide the information requested, and any other material on review, they should do so by 22 April 2021. The applicant was further advised that as the information had not previously been provided by 8 April 2021, and the Tribunal had not received a further request for an extension of time, it appeared that they had lost the right to a hearing, but that this was a matter to be determined by a Member.

9. The applicant did not provide any further information or submissions to the Tribunal by 22 April 2021 or as at the date of this decision.

10. As the applicant had not responded to the Tribunal’s request for information of 25 February 2021, by 8 April 2021, or requested a further extension of time prior to 8 April 2021, s.359C  of the Act applies. Pursuant to s.360(3) of the Act the 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 them to appear: Hasran v MIAC [2010] FCAFC 40.

11. The Tribunal has twice extended the time for the applicant to provide the requested information and submissions. It has also been put on notice that because of the delay in the provision of information of the loss of its right to appear. In these circumstances the Tribunal did not consider that it should further adjourn the application to under s.363(1)(b) of the Act to allow the applicant additional time in which to provide evidence to support the application for review. The Tribunal has also considered in the circumstances of this case, whether the applicant had a fair opportunity to provide the relevant information or documents already, and the fact that the nomination was refused by the Department on 6 November 2018. The Tribunal observes that the applicant has been aware for more than 30 months of the reason for the refusal of the nomination application. In the circumstances the Tribunal considers that the applicant has had sufficient time to address the central issues arising from the application for review.

12. Accordingly, the Tribunal has determined to proceed to a decision on the review without taking further action to obtain the information in accordance with s.359C of the Act.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

14. 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.

15. The Tribunal’s letter to the applicant dated 25 February 2021 invited them to provide all updated and current information about the company’s business relevant to the requirements of r.5.19(4), which is attached to this decision. For the nomination to be approved, all of the requirements must be met.

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

16. 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.

17. The applicant has not provided any of the requested current and up to date information about the business’ financial capacity and the operation of the business. Without limiting the type of information that could be provided, the Tribunal suggested examples of information that could be provided, including tax returns and business activity statements, financial statements for the most recent two years and current employment contract or letter of engagement. In the circumstances, and in the absence of any current and up to date information, the Tribunal is unable to be satisfied at the time of this decision that the applicants’ business is continuing to operate, has the financial capacity and will employ the nominee on a full time basis in the nominated position for at least two years.

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

    Tasks of the position, genuine need for the position and training requirements r.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 local 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 delegate in this matter refused the nomination on the basis that r.5.19(4)(h)(ii)(B) was not met as the applicant had not demonstrated that there was a genuine need for it to employ the nominee as a paid employee, to work in the position under the applicant’s control.

21. As set out above the applicants have provided no new information on review. In their decision the delegate commented that there was no organisation chart submitted with the application or details of trading hours and days. The delegate further commented that the financial documents submitted to the Department demonstrated a loss of sales and profit for the 2017 financial year, and this was not conducive to an expanded business requiring the services of the nominee. In the absence of any up to date information about the business or its financial performance, the Tribunal, is unable to be satisfied that the applicants’ have identified a need to employ the nominee in a full time capacity, to support or expand the ongoing business. Particularly given the time that has passed since the application was made. Without further evidence the Tribunal cannot be satisfied of the size or operation of the applicant’s business, that it has the potential for expansion as claimed or that it has identified that there is a genuine need to engage the nominee in a full time position under the applicant’s direct control.

22. On the material before it, the Tribunal is also not satisfied that the applicant has met the requirement in r.5.19(4)(h)(ii)(B).

23. For the above reasons the Tribunal is not satisfied that the applicant meets the requirements of r.5.19(4).

24. 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

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

    Penelope Hunter
    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)       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).