Settlers Pty Ltd (Migration)

Settlers Pty Ltd (Migration) [2019] AATA 2804 (21 May 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Settlers Pty Ltd
CASE NUMBER:  1622320
DIBP REFERENCE(S):  BCC2016/421240
MEMBER:Stavros Georgiadis
DATE:21 May 2019
PLACE OF DECISION:  Adelaide
DECISION:The Tribunal affirms the decision under review to refuse the nomination.

Statement made on 21 May 2019 at 6:21pm

CATCHWORDS
MIGRATION – nomination – Direct Entry Nomination stream – Cook – position not in regional Australia – relevant legislative instrument in force at time of application revoked – new instrument excluded Perth metropolitan area from regional Australia – time of decision interpretation consistent with intention of visa scheme – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth)
Migration Regulations 1994 (Cth), r 5.19
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 9 December 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).
The applicant applied for approval on 28 January 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) of the Regulations because the delegate was not satisfied that the applicant had identified a need for a paid employee to work in the nominated occupation of Cook (ANZSCO 351411) under the direct control of the nominator.
The applicant is a corporation that trades as Jai Ho Indian Gourmet. One of the two current directors of the applicant, Mr Harneet Singh Arora, appeared before the Tribunal on 18 April 2019 to give evidence and present arguments. The Tribunal also heard from nominee for the position of Cook, Ms Harjeet Kaur, in the related matter 1622320.
The applicant was represented in relation to the review by its registered migration agent. The applicant’s director, Mr Arora is also a 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 in a 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.
Regulation 5.19 is in Division 3.1 of Part 5 of the Regulations. It sets out the procedure for an application for an approved nomination and requirements that must be met for approval. Regulation 5.19(1) enables a person to apply for approval of the nomination of a position in Australia. An application must meet certain requirements in r.5.19(2) including being made in accordance with the approved form and being accompanied by the relevant fee. Consistently with the Subclass 187 criteria, rr.5.19(3) and (4) set out criteria for two alternative streams: the Temporary Residence Transition and Direct Entry streams. If an application meets the requirements of either stream, the application must be approved. If any of the requirements are not met, the application must be refused: r.5.19(5). For Direct Entry stream nominations which are intended to support the grant of a Subclass 187 visa (as in the present case), the requirements in r.5.19(4)(h)(ii) must be met (see cl.187.233).
The Tribunal accepts that the relevant criteria to be satisfied here are those set out in the second limb, that is under r.5.19(4)(h)(ii) where all subclauses r.5.19(4)(h)(ii)(A) to r.5.19(4)(h)(ii)(F) apply.
The Tribunal notes the certificate dated 5 April 2016 from a Regional Certifying Body (Skilled Migration WA - Department of Training and Workforce Development) located in the same State (Western Australia) as the position advising the Minister about the matters in r.5.19(4)(e) and r.5.19(4)(h)(ii)(B) & (C) and gives this some weight.
The material issue is p for the purpose of meeting the criteria set out in in r.5.19(4)(h)(ii)(A) and r.5.19(4)(h)(ii)(F).
The Tribunal accepts from the oral evidence provided and confirmed in the application and other documents before it, that the applicant’s business is located in metropolitan Perth. The business operates two restaurant outlets, one in the suburb of South Lake (post code 6164) and the other in the suburb of Baldivis (post code 6171). The nominated position is for a Cook (ANZSCO 351411) to work at the Baldivis location as confirmed in the oral evidence and also set out in the applicant organisational chart.
‘Regional Australia’ means a part of Australia specified by the Minister in an instrument in writing: r.5.19(7).
The areas that constitute ‘regional Australia’ for the purposes of r.5.19(4)(h)(ii)(A) and the ‘Regional Certifying Bodies’ (RCB) who can provide the required advice under r.5.19(4)(h)(ii)(F) are specified by legislative instrument.
Prior to the time of application for the nomination on 9 December 2016, the relevant legislative instrument that was in force was IMMI 13/049 (with effect from 1 July 2013 to 30 June 2016). This instrument specified the entire state of Western Australia as ‘regional Australia’ for the material purpose. This was subsequently replaced by IMMI 16/045. From 1 July 2016 to 16 November 2017, IMMI 16/045 was the instrument in force and again specified the entire state of Western Australia (including the Perth metropolitan area) for the purposes of the definition of ‘regional Australia’.
On 17 November 2017, IMMI 17/059 commenced, and revoked the whole of IMMI 16/045. It also changed the specification of ‘regional Australia’ to exclude the Perth metropolitan area from the definition. IMMI 17/059 also removed a number of Regional Certifying Bodies from the specification for r.5.19(4)(h)(ii)(F) and updated the names of several bodies. The Tribunal accepts that the instrument IMMI 17/059 did not include any saving or transitional provisions and was silent on how applications that had been made (and not finally determined on the date it came into effect) were to be treated. On this point, the Tribunal notes the applicant’s further written submissions following the hearing (with leave) regarding the Department’s treatment of applications lodged before 13 March 2017 (with RCB certification).
The Tribunal has considered the applicant’s further written submissions that the relevant legislative instrument in this case specifying ‘regional Australia’ for the purposes of r.5.19 of the Migration Regulations 1994, should be IMMI 17/059 (replacing the instrument IMMI 16/045 that was in force at the time the nomination application was made). The Tribunal has also considered the submission that this instrument is to be applied prospectively in accordance with the Department’s policy advice. However, IMMI 17/059 is not the current instrument as this was repealed on 18 March 2018 by IMMI 18/037, which is the current instrument in force at the time of decision. The changes to r.5.19 were introduced on 18 March 2018 by the Migration Amendment (Temporary Skill Shortage Visa and Complementary Reforms Regulations 2018 (the Amending Regulations).
There are persuasive indicators in the Tribunal’s view, that the instrument at the time of decision should be applied to the assessment of r.5.19(4)(h)(ii)(A) and r.5.19(4)(h)(ii)(F). As aforementioned, IMMI 13/049 was replaced by IMMI 16/045 in force at the time of nomination application. Then IMMI 17/059 revoked IMMI 16/045 without any savings provisions, suggesting that IMMI 16/045 could no longer have any operation from the time it was revoked. IMMI 17/059 was subsequently revoked by IMMI 18/037, again without any savings provisions, suggesting that it could also have no operation from that time. In addition the requirement in r.5.19(4)(h)(ii)(A) as in force before 18 March 2018 falls to be decided at the time of decision, suggesting that it is the instrument in force at that time which applies.
The Tribunal notes the Department’s policy intention raised by the applicant, for IMMI 17/059 to apply to nominations made on or after it commenced.[1] The Tribunal accepts that this outcome would provide some certainty and fairness for applicants. However, this interpretation is difficult to reconcile with the terms or words of the instrument itself and the unqualified revocation of the instruments previously in force. Because IMMI 17/059 was repealed on 18 March 2018,[2] and no further instrument under r.5.19(7) has been made,[3] there exists some lack of clarity regarding which instrument applies to outstanding nomination applications. Having regard to the two instruments most recently made under these provisions, key changes are as follows:
·IMMI 16/045, which commenced on 1 July 2016 and was repealed on 17 November 2017, added Norfolk Island to the list of areas which constitute ‘regional Australia’.
·IMMI 17/059, which commenced on 17 November 2017 and was repealed on 18 March 2018, removed the Perth metropolitan area from the definition of ‘regional Australia’. It also removed a number of RCBs from the specification for r.5.19(4)(h)(ii)(F) (particularly Queensland and Western Australian bodies) and updated the names of several bodies (particularly Victorian bodies, as well as the bodies specified for NT, SA and Tasmania).
[1] See the Skilled Visa E news November 2017’ publication, which was published at the time IMMI 17/059 took effect, at:
[2] IMMI 18/037.
[3] The specification of regional Australia made by IMMI 18/037 is expressly made under r.5.19(12)(g)(i), and r.5.19(16), reflecting significant amendments made to r.5.19 by the Migration Legislation Amendment (Temporary Skill Shortage Visa and Complementary Reforms) Regulations 2018 (F2018L00262).
From a consideration of the specific words or terms of the substantive criteria in r.5.19(4), including the ‘regional Australia’ requirement contained in r.5.19(4)(h)(ii)(A), the Tribunal notes these are in the present tense, consistent with the other requirements of r.5.19(4)(h)(ii) which appear to need to be met at the time of decision, including requirements about the genuine need for the position and the nature of tasks to be performed. The Tribunal considers that it would not be consistent with the scheme’s objectives to approve a nomination of a position for which there was formerly say a genuine need (at time of application), but for which that ‘genuine need for the paid position’ had ceased by the time of the decision on the nomination.
The Tribunal acknowledges, on the other hand, that the time span between lodgement and determination of an application is at times lengthy. The Tribunal has considered the circumstances that if the matter had been determined and finalised before the changes introduced regarding the legislative instruments, the ‘regional Australia’ factor would not be a detrimental issue. The Tribunal has also had regard to Subdivision AB of Division 3 of Part 2 of the Act which establishes a code of procedure for dealing fairly, efficiently and quickly with visa applications, including Subclass 187 visas, for which a nomination under r.5.19 is essential.
Having weighed up the competing arguments, the Tribunal considers on balance, that a time of decision interpretation is consistent with the apparent intention or purpose of the scheme as it relates to the content of r.5.19(4)(h)(ii)(A). The Subclass 187 visa is intended to help businesses in regional, remote or low population growth areas to recruit skilled workers to fill positions that are unable to be filled from the local labour market.[4] Regulation 5.19(4)(h)(ii)(A) therefore, has a purpose of ensuring that positions are filled in specified locations in Australia that need workers that cannot be sourced locally. The Tribunal considers that an interpretation, which favours consideration of the legislative instrument in place at the time of decision (as opposed to the time of nomination application), would best serve that overall purpose. This would facilitate the approval of nominations where the position is actually in a specified location when the decision is made, rather than at the time the application is lodged.
[4] Policy - Migration Regulations - Schedules - [Sch2Visa187] Regional Sponsored Migration Scheme (subclass 187 visa) - visa applications – re-issued 13/04/2018, at 4.1.
As the location of the applicant’s business falls outside of the post codes for ‘regional Australia’ set out in the current instrument IMMI 18/037 at the time of this decision, the applicant is unable to satisfy r.5.19(4)(h)(ii)(A).
Accordingly, the requirements of r.5.19(4)(h) are not met.
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.
Stavros Georgiadis
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 2804

21 May 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Natural Justice