Sheila Baxter Training Centre Pty Ltd (Migration) - [2022] AATA 2206

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Sheila Baxter Training Centre Pty Ltd (Migration) [2022] AATA 2206
Case: [2022] AATA 2206
Decision Date: 29 June 2022

CaseChat Overview and Summary

This matter concerned an appeal by Sheila Baxter Training Centre Pty Ltd against a decision to refuse the approval of a nomination under the Direct Entry nomination stream. The Tribunal was required to determine whether the applicant met the requirements of regulation 5.19(4) of the Migration Regulations 1994.

The legal issues before the Tribunal were whether the nominator was actively and lawfully operating a business in Australia, and whether the nominee would be employed in the nominated position for at least two years full-time, with terms and conditions that did not expressly exclude the possibility of an extension. The Tribunal also considered whether there was a genuine need for the employment, as required by regulation 5.19(4)(h).

The Tribunal affirmed the decision to refuse the nomination. It found that there was insufficient evidence to satisfy it that the nominator continued to actively and lawfully operate a business in Australia, noting that the most recent financial information provided was from February 2018 and no updated information had been provided despite a request. Furthermore, the Tribunal was not satisfied that the nominee would be employed for at least two years full-time, as no employment contract had been provided to establish the terms and conditions of employment, nor had evidence of the applicant's financial capacity to offer such employment been presented. Consequently, the Tribunal concluded that the applicant had not met the requirements of regulation 5.19(4)(b), (d), or (h), and therefore the nomination could not be approved.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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.

Decision

Reasons for decision

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 MercerMemberATTACHMENT - EXTRACTS FROM THE MIGRATION REGULATIONS 19945.19Approval 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).

Ratio Decidendi

Legal Principle Established

The Tribunal affirms the decision under review to refuse the nomination.Alison MercerMemberATTACHMENT - EXTRACTS FROM THE MIGRATION REGULATIONS 19945.19Approval 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).