Sheila Baxter Training Centre Pty Ltd (Migration)

Sheila Baxter Training Centre Pty Ltd (Migration) [2022] AATA 2206 (29 June 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Sheila Baxter Training Centre Pty Ltd
REPRESENTATIVE:  Ms Helen Friedmann (MARN: 9256768)
CASE NUMBER:  1912640
HOME AFFAIRS REFERENCE(S):          BCC2018/891081
MEMBER:Alison Mercer
DATE:29 June 2022
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision under review to refuse the nomination.

Statement made on 29 June 2022 at 10:14am

CATCHWORDS
MIGRATION – approval of a nomination – Direct Entry nomination stream – position of Project or Program Administrator – employed for at least 2 years full time – actively and lawfully operating a business in Australia – no updated financial information – terms and conditions of employment – genuine need for the employment – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 245, 359, 363
Migration Regulations 1994, r 5.19
CASES
Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617
Kaur v Minister for Immigration and Border Protection [2014] FCA 915
Manna v Minister for Immigration and Citizenship [2012] FMCA 28
Minister for Immigration and Border Protection v Singh [2014] FCAFC 1
Minister for Immigration and Citizenship v Li [2013] HCA 18
Yang v MIAC [2010] FMCA 890
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 Home Affairs on 9 May 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).
The applicant, Sheila Baxter Training Centre Pty Ltd, applied for approval of its nominated position of Project or Program Administrator (ANZSCO code 511112) on 24 February 2018. 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).
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 reg 5.19(4)(d) of the Regulations, which required (amongst other things) that the applicant would employ the nominee for at least 2 years on a full time basis. The delegate found that, despite being requested to, the applicant did not provide specific evidence that it would offer 2 years of fulltime employment to the nominee, such as an employment contract specifying this.
The Tribunal received a review application on 21 May 2019. It was lodged on behalf of the applicant by its HR director, Ms Marie O’Connell, and was accompanied by a copy of the delegate’s decision and an authority by which Ms O’Connell appointed a registered migration, Ms Helen Friedman, as the applicant’s representative and authorised recipient for correspondence.
On 24 May 2022, the Tribunal wrote to Ms O’Connell, via the agent, to invite her, pursuant to s.359(2) of the Act, to provide updated and current information demonstrating that the applicant met all of the relevant criteria in r.5.19(4), not just the one that the delegate found was not met. The Tribunal provided examples of the kind of information that would assist it to assess whether the applicant met the relevant r.5.19(4) criteria and requested that the information be provided by 7 June 2022. The Tribunal advised Ms O’Connell that if she did not provide the requested information, or seek an extension of time to do so, by 7 June 2022, then the applicant would lose its entitlement to have a person appear on its behalf at a hearing with the Tribunal, and the Tribunal might proceed to make its decision on the available evidence without taking any further steps to obtain the requested information.
The Tribunal did not receive any information by 7 June 2022, nor a request for an extension of time to do so. It has received no further communication from Ms O’Donnell or the agent to date.
The Tribunal is satisfied that its s.359(2) letter of 24 May 2022 was sent to the nominated email address of the applicant's authorised recipient for correspondence. There is no indication from the Tribunal's records that these emails were undelivered or undeliverable.
On behalf of the applicant, Ms O’Donnell has not responded to the Tribunal's s.359(2) letter. In the circumstances, s.359C applies and pursuant to s.360(3), a person representing the applicant is not entitled to appear before the Tribunal. The Tribunal has no power to permit them to appear: see Yang v MIAC [2010] FMCA 890.
Accordingly, the Tribunal has proceeded to make its decision on the available evidence without taking further steps to obtain the requested information. In doing so, the Tribunal had regard to the decisions in Huo v Minister for Immigration and Multicultural Affairs[1] and Manna v Minister for Immigration and Citizenship[2] where the Courts have held that the Tribunal is not required to indefinitely defer its decision-making processes. It has also had regard to the decision in Minister for Immigration and Citizenship v Li[3] regarding the reasonableness of any request for an adjournment (for instance, where the applicant would be able to imminently provide information that would favourably affect the outcome of the case), and the Full Federal Court decision in Minister for Immigration and Border Protection v Singh[4] which considered this issue, as well as the more recent decision in Kaur v Minister for Immigration and Border Protection[5] where analogous issues were discussed.
[1] [2002] FCA 617
[2] [2012] FMCA 28
[3] [2013] HCA 18 (8 May 2013)
[4] [2014] FCAFC 1 (4 February 2014)
[5] [2014] FCA 915 (28 August 2014)
The Tribunal notes that Ms O’Donnell was invited to provide updated and current information, with detailed examples given, to enable the Tribunal to obtain relevant evidence to assess whether the applicant currently meets the r.5.19(4) criteria. Ms O’Donnell also had the assistance of a migration agent. In the circumstances, the Tribunal does not consider it unreasonable to proceed to a decision without any further deferral.
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 reg 5.19(4), which is extracted in the attachment to this decision. For the nomination to be approved, all the requirements must be met.
Nominator is actively and lawfully operating a business in Australia: reg 5.19(4)(b)
Regulation 5.19(4)(b) requires that the applicant is actively, lawfully and directly operating a business in Australia.
The Tribunal notes that the most recent information provided by the applicant to the Department was in October 2018 (that information related to advertising for the nominated position; the most recent financial information provided to the Department was in February 2018), and no updated information has been provided to the Tribunal despite its s.359(2) request of 24 May 2022.
The Tribunal finds that there is insufficient evidence before it for it to be satisfied that the applicant continues to actively and lawfully operate a business in Australia as at June 2022, and as such, finds that the requirement in r.5.19(4)(b) is not met.
Term of employment of the visa holder: reg 5.19(4)(d)
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.
The Tribunal notes that the delegate was not satisfied that this requirement was met in May 2019 due to the lack of information provided about the proposed terms of the nominee’s employment, such as a contract of employment.
The Tribunal has reviewed the material provided by the applicant to the Department, and is satisfied that although the Department requested that a contract of employment between the nominee and the applicant be provided, no employment contract was in fact provided by the applicant, from which the terms of the nominee’s employment could be discerned.
While it is possible to infer from other material submitted, such as statements as to the genuine need for the position on an ongoing basis, that the position was considered a long term one, this (in the Tribunal’s view) falls short of establishing that the nominee would be employed for at least 2 years full time, and that the terms and conditions of that employment did not expressly exclude the possibility of a extension.
The Tribunal notes that it has not received any updated information on this issue. Nor has it received any information that establishes the applicant’s financial capacity to offer the nominee full time employment for at least 2 years, such as recent financial statements, company tax returns, PAYG summary statements for the nominee, or any other evidence of her current employment contract and/or the applicant’s financial status.
Given the lack of current information, the Tribunal is unable to be satisfied that the nominee will be employed in the nominated position for at least 2 years full time, or that the terms and conditions of the nominee’s employment do not expressly exclude the possibility of an extension.
Accordingly, the Tribunal finds that the requirement in r.5.19(4)(d) is not met.
Tasks of the position, genuine need for the position, and training requirements reg 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 the relevant written 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 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.
From the nomination application, the Tribunal is satisfied that the nominated position, and the business operated by the applicant, are both located in metropolitan Melbourne, and therefore the requirements of the first dot point above apply in this case.
As noted above, the Tribunal has no material from the applicant that is more recent than October 2018, and in fact, the bulk of the information provided to the Department by the applicant dates from February and March 2018, which is now over 4 years ago.
Given the dearth of any current information about the applicant’s employees, structure, operations and financial situation, the Tribunal is not satisfied that there is currently a genuine need for the applicant to employ the nominee as a paid employee in the nominated occupation within the applicant’s business.
Accordingly, it is not satisfied that the applicant meets r.5.19(4)(h)(i)(AA), which in turn means that the applicant cannot meet r.5.19(4)(h)(i), and therefore cannot meet r.5.19(4)(h) as a whole.
For the above reasons the Tribunal is not satisfied that the applicant meets the requirements of reg 5.19(4)(b), (d) or (h) and thus does not meet r.5.19(4) as a whole. The applicant has not sought to satisfy the criteria in Temporary Residence Transition Nomination stream, and as such has not met the requirements in reg 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.
Alison Mercer
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 an identified person as 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).

[2022] AATA 2206

29 June 2022

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Immigration

Administrative Law

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Judicial Review

Statutory Construction

Procedural Fairness

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