SAVANA GROUP PTY LTD (Migration)

[2018] AATA 2325

SAVANA GROUP PTY LTD (Migration) [2018] AATA 2325 (5 July 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  SAVANA GROUP PTY LTD

CASE NUMBER:  1603964

DIBP REFERENCE(S):  BCC2015/2074974

MEMBER:Denise Connolly

DATE:5 July 2018

PLACE OF DECISION:  Sydney

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

Statement made on 05 July 2018 at 10:38am

CATCHWORDS
Migration – Sponsor approval –Direct Entry stream – Genuine need for a paid employee – No contract of employment – No evidence of financial capacity – Practice and procedure – Information not provided to the Tribunal – Decision made on review – Decision under review affirmed

LEGISLATION
Migration Act 1958, ss 359, 359C, 360, 363A
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 Immigration on 14 March 2016 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 20 July 2015. 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).

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 r.5.19(4)(a)(ii) of the Regulations because the delegate was not satisfied the applicant had identified a need to employ a paid employee under the applicant’s direct control.

5. The applicant was represented in relation to the review by its registered migration agent.

6. On 29 May 2018 the Tribunal wrote to the review applicant pursuant to s.359(2) of the Act, inviting the review applicant to provide current information, in writing, to demonstrate that the nominator meets the requirements for approval of the nomination in r.5.19(4).

7. The invitation was sent to the representative, the authorised recipient, at the last email address provided in connection with the review. It advised that, if the information was not provided in writing by 12 June 2018, 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 it might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

8. The review applicant has not provided the information within the prescribed period and no extension has been sought or granted. 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 him or her to appear: Hasran v MIAC [2010] FCAFC 40. The Tribunal has decided to proceed to its 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 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.

11. The applicant provided to the Tribunal a copy of the delegate’s decision record. The delegate sets out the background to her decision to refuse to approve the nomination. She explained that the applicant lodged the Regional Sponsored Migration Scheme nomination application nominating Mrs Harjeet Kaur in the position of Café or Restaurant Manager (ANZSCO 141111). The business commenced operating on 1 January 2015. While the Department had considered the information accompanying the nomination application, including advice from the Regional Certifying Body, it was not satisfied that the nominator had adequately identified a need to employ the nominee in the position. On 21 December 2015 the Department invited the applicant to provide further information demonstrating a need for a paid employee. The Department sought evidence that the position could not be filled by an Australian citizen or permanent resident who lived in the same local area. It also sought information demonstrating that the business was actively operating in Australia, such as Business Activity Statements for each complete quarter from the time of commencement of operation, tax returns for the last financial year, recent financial reports, evidence of registration, advertisements/promotional information, letters from suppliers and any other evidence that the nominated directly operates the business. The delegate also sought a contract of employment demonstrating that the nominee would be employed on a full-time basis in the nominated position for at least two years. The delegate notes that the applicant did not respond. On the basis of the evidence before her, the delegate was not satisfied that the applicant had identified a need to employ a paid employee to work in the position under the nominator’s direct control.

12. The Tribunal wrote to the applicant on 29 May 2018 under s. 359(2) inviting the applicant to provide updated and current information demonstrating that the requirements of r.5.19(4) are met. This included information about the businesses operations, the roles and duties of the nominated position and information about the terms and conditions of employment. The Tribunal suggested as an example a contract of employment. The applicant did not respond.

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

13. Regulation 5.19(4)(d) requires the nominee to be employed in the nominated position for at least two years full-time, and the terms and conditions of that employment do not expressly exclude the possibility of an extension. 

14. The applicant indicated in the nomination application that the nominee would be paid a base salary of $55,000 and superannuation. However no contract of employment was provided. The delegate sought a contract of employment but the applicant did not respond. The Tribunal also invited the applicant to provide information about the contract of employment but the applicant did not respond.

15. The Tribunal has no current information before it concerning the financial capacity of the business to pay the nominee’s salary of $55,000. There is no contract of employment before the Tribunal. Based on the evidence before it, the Tribunal is not satisfied that the applicant has demonstrated its financial capacity to pay the base salary for the nominated position of a Cafe or Restaurant Manager for at least 2 years. As such, the applicant does not meet the requirements of r.5.19(4)(d)(i). Nor is there a contract demonstrating that the terms and conditions of the employment will not include an express exclusion of the possibility of extending the period of employment. Accordingly the Tribunal is not satisfied the requirements of r.5.19(4)(d)(ii) are met.

16. On the basis of its findings the Tribunal is not satisfied the requirements in r.5.19(4)(d) are met.

17. 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

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

    Denise Connolly
    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

    (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).