Shree Venktashwarra Chetty (Migration)

[2022] AATA 3042

Shree Venktashwarra Chetty (Migration) [2022] AATA 3042 (18 August 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Shree Venktashwarra Chetty

REPRESENTATIVE:  Mr Govind Swamy Pillay (MARN: 0743677)

CASE NUMBER:  1918609

HOME AFFAIRS REFERENCE(S):          BCC2019/1776916

MEMBER:Katie Malyon

DATE:18 August 2022

PLACE OF DECISION:  Sydney

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

Statement made on 18 August 2022 at 12:57 pm

CATCHWORDS
MIGRATION – nomination – Direct Entry nomination stream – Carpenter – applicant failed to provide the requested information within the prescribed period – not satisfied that Mr Chetty has demonstrated he has the financial capacity to pay the full-time salary –decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 245AR, 359, 360, 363
Migration Regulations 1994, r 5.19

CASES
Hasran v MIAC [2010] FCAFC 40
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 Citizenship v Li [2013] HCA 18
Minister for Immigration and Border Protection v Singh [2014] FCAFC 1

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 28 June 2019 to refuse the applicant’s nomination of a position under reg 5.19 of the Migration Regulations 1994 (Cth) (the Regulations).

2. The applicant, sole trader Shree Venktashwarra Chetty T/A Mahen Construction ABN 36 630 102 934 (hereinafter Mr Chetty) applied for approval on 10 April 2019. The requirements for the approval of the nomination of a permanent position in Australia are found in reg 5.19 of the Regulations, which contains general requirements for approval and additional requirements for approval set out in three alternative streams: a Temporary Residence Transition stream; a Direct Entry stream; and, a Labour Agreement stream. If the application meets all of the requirements for approval, then the application must be approved: reg 5.19(3)(a). If any of the requirements are not met, then the application must be refused: reg 5.19(3)(b).

3. In this case, Mr Chetty applied for approval of a nomination seeking to satisfy the criteria in the Direct Entry stream.  He nominated the position of Carpenter ANZSCO 331212 for Fijian national Justin Christopher Mani.

4. The delegate decided not to approve Mr Chetty’s nomination on the basis it did not satisfy reg. 5.19(9)(e) of the Regulations because it had not been demonstrated that Mr Chetty had the financial capacity to pay the full-time salary of its nominee Mr Mani for at least 2 years. At the time of lodgement of the nomination with the Department, Mr Chetty did not provide any documentary evidence whatsoever in support of his nomination application. A copy of the delegate’s decision refusing the nomination was provided to the Tribunal.

5. Inconsistent with cl 5 of the Migration and Refugee Matters Practice Direction of 1 August 2018, no documentation was lodged with the Tribunal in support of the review application.

6. To enable the Tribunal to assess whether Mr Chetty meets all of the relevant requirements for approval of its nomination, on 26 July 2022 the Tribunal wrote to Mr Chetty pursuant to
   s 359(2) of the Migration Act 1958 (the Act) and invited him to provide updated and current information about his carpentry business and the nominated position.  The Tribunal’s letter was sent to the person appointed to receive communications on behalf of Mr Chetty, his representative, registered migration agent Mr Govind Swamy Pillay. 

7. The Tribunal’s s 359(2) letter advised Mr Chetty that, if information in writing was not received by the Tribunal on or before 9 August 2022 or, in the alternative, if he did not, on or before that date, make a request for an extension of time in which to provide the information, the Tribunal: may make a decision on the review without taking further steps to obtain the information; and, Mr Chetty would lose any entitlement he might otherwise have under the Act to appear before the Tribunal to give evidence and present arguments.

8. The Tribunal is satisfied that its invitation was properly dispatched to the email address of Mr Chetty’s representative. No response has been received in response to its s 359(2) letter. Mr Chetty has not provided updated and current information about his business and the nominated position. Nor has he requested additional time it which to do so. In these circumstances, s 359C of the Act applies and, pursuant to s 360(3) of the Act, Mr Chetty is not entitled to appear before the Tribunal. If a review applicant has no entitlement to a hearing, the effect of s 363A of the Act is that the Tribunal has no power to permit the applicant to appear: Hasran v MIAC [2010] FCAFC 40.

9. Although Mr Chetty has not requested this, the Tribunal has considered whether it would be appropriate to adjourn the review under s 363(1)(b) of the Act to allow Mr Chetty additional time in which to provide evidence to support his review application. In this regard, the Tribunal has considered whether, in the circumstances of this case and having regard to the COVID-19 pandemic, evidence that Mr Chetty meets all of the relevant requirements of reg 5.19(4) of the Regulations is likely to be forthcoming, whether Mr Chetty has had a fair opportunity to provide the information or documents already, and the significance of the information or documents to Mr Chetty. The Tribunal has taken into account 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, and the Full Federal Court decision in Minister for Immigration and Border Protection v Singh.[4]

   [1] [2002] FCA 617.

   [2] [2012] FMCA 28.

   [3] [2013] HCA 18

   [4] [2014] FCAFC 1

10. As noted above, the Tribunal wrote to Mr Chetty under s 359(2) of the Act inviting him to provide current and updated information demonstrating that his nomination meets all the relevant requirements of the criteria in reg 5.19(4) of the Regulations. Mr Chetty has failed to provide any of the requested information within the prescribed period set for this purpose, or seek additional time in which to do so.

11. In the circumstances of this case, the Tribunal considers Mr Chetty has had sufficient time to provide requested information and thereby address all of the issues arising on review. Accordingly, the Tribunal has decided not to exercise its discretion under s 363(1)(b) of the Act to adjourn the review any further. The Tribunal has determined to make a decision on the review without taking any further action to obtain the information in accordance with
    s 359C of the Act.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

13. The issue in this case is whether the applicant meets the general requirements for approval of the nomination which are set out in reg 5.19(4) and the stream specific requirements set out in reg 5.19(9). Relevant provisions of the Regulations are extracted in the Attachment to this decision.  For the nomination to be approved, all of the requirements must be met.  If any of the requirements are not met, the application must be refused: reg 5.19(3)(b) of the Regulations.

    Future employment – regs 5.19(9)(e)

14. Regulations 5.19(9)(e), (f) and (g) contain requirements relating to the future employment of the nominee Mr Mani. Relevantly, reg 5.19(9)(e) requires that the identified person will be employed on a full-time basis in the position for at least 2 years. As noted above, this was the basis of the delegate’s refusal of Mr Chetty’s nomination.

15. Review of the Department’s file confirms that no documentation whatsoever accompanied Mr Chetty’s nomination application when it was lodged with the Department. Further, apart from a copy of the delegate’s decision, no documentation was provided in support of the review application when it was lodged with the Tribunal on 10 July 2019. The Tribunal wrote to Mr Chetty via his representative under s 359(2) of the Act on 26 July 2022 inviting him to provide updated and current information in writing to demonstrate that he meets all of the relevant requirements of the criteria in reg 5.19(4) and reg 5.19(9) of the Regulations including reg 5.19(9)(e).

16. Mr Chetty has not provided any evidence to demonstrate that he is operating a business in Australia including information regarding the financial circumstances of the business.  In this regard, Mr Chetty has not provided requested evidence of his Tax Returns for the last 2 financial years as lodged with the Australian Taxation office or Financial Statements (including Profit & Loss Statements and Balance Sheets) for the 2 most financial years as evidence to demonstrate that the nominee Mr Mani will be employed on a full-time basis for at least 2 years. 

17. In these circumstances, the Tribunal has no current information before it to demonstrate that Mr Chetty has the financial capacity to pay Mr Mani’s proposed salary of $55,328 per annum as set out in the Direct Entry stream nomination application lodged by Mr Chetty with the Department on the 10 April 2019.

18. Based on the available evidence, the Tribunal is not satisfied that Mr Chetty has demonstrated he has the financial capacity to pay the full-time salary of the nominee Mr Mani for the nominated position of Carpenter for at least 2 years. In these circumstances, Mr Chetty does not meet the requirements of reg 5.19(9)(e) of the Regulations.

19. Given the above findings, the Tribunal is not satisfied that reg 5.19(9) met. Accordingly, reg 5.19(4)(f) is not met.

20. For the above reasons the Tribunal is not satisfied that Mr Chetty meets the requirements of reg 5.19(4) of the Regulations. Mr Chetty has not sought to satisfy the criteria in the Temporary Residence Transition stream or the Labour Agreement stream. As such, he has not met the requirements in reg 5.19(3) of the Regulations. Accordingly, the nomination cannot be approved. Therefore, the Tribunal must affirm the decision under review to refuse Mr Chetty’s nomination application.

    decision

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

    Katie Malyon

    
    Member
    

    Attachment – extracts from the Migration Regulations 1994
    
    

    5.19Approval of nominated positions—Subclass 186 (Employer Nomination Scheme) visa and Subclass 187 (Regional Sponsored Migration Scheme) visa

    Application

    (1)A person (the nominator) (including a partnership or unincorporated association) may apply to the Minister for approval of the nomination of a position in Australia.

    (2)The application must:

    (a)be made in accordance with approved form 1395 (Internet); and

    (b)identify the position; and

    (c)identify a person (the identified person) in relation to the position; and

    (d)identify an occupation in relation to the position; and

    (e)identify the subclass and stream to which the nomination relates, which must be one of the following:

    (i)a Subclass 186 (Employer Nomination Scheme) visa in the Temporary Residence Transition stream;

    (ii)a Subclass 187 (Regional Sponsored Migration Scheme) visa in the Temporary Residence Transition stream;

    (iii)a Subclass 186 (Employer Nomination Scheme) visa in the Direct Entry stream;

    (iv)Subclass 187 (Regional Sponsored Migration Scheme) visa in the Direct Entry stream;

    (v)a Subclass 186 (Employer Nomination Scheme) visa in the Labour Agreement stream; and

    (f)be accompanied by the fee mentioned in regulation 5.37; and

    (fa)be accompanied by any nomination training contribution charge the nominator is liable to pay in relation to the nomination; and

    (fb)identify the annual turnover (within the meaning of the Migration (Skilling Australians Fund) Charges Regulations 2018) for the nomination; and

    (g)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.

    Approval of nomination

    (3)The Minister must, in writing:

    (a)approve the nomination if the Minister is satisfied that the requirements set out in subregulation (4) are met; or

    (b)otherwise—refuse to approve the nomination.

    Requirements for approval—general

    (4)The requirements to be met for the nomination to be approved are as follows:

    (a)the application is made in accordance with subregulation (2);

    (b)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;

    (c)if it is mandatory, in the State or Territory in which the position is located, for a person to:

    (i)hold a licence of a particular kind; or

    (ii)hold registration of a particular kind; or

    (iii)be a member (or a member of a particular kind) of a particular professional body;

    to perform tasks of the kind to be performed in the occupation, the identified person is, or is eligible to become, the holder of the licence, the holder of the registration, or a member of the body, at the time of application;

    (d)the nominator has a satisfactory record of compliance with the laws of the Commonwealth, and of each State or Territory in which the nominator operates a business and employs employees in the business, relating to employment;

    (da)any debt due by the nominator as mentioned in section 140ZO of the Act (recovery of nomination training contribution charge and late payment penalty) has been paid in full;

    (e)if the nomination relates to a visa in a Temporary Residence Transition stream—the requirements set out in subregulation (5) are met;

    (f)if the nomination relates to a visa in a Direct Entry stream—the requirements set out in subregulation (9) are met;

    (g)if the nomination relates to a visa in a Labour Agreement stream—the requirements set out in subregulation (14) are met.

    …

    Direct Entry stream—additional requirements for approval

    (9)If the nomination relates to a visa in a Direct Entry stream, the following requirements must also be met:

    (a)the nominator is actively and lawfully operating a business in Australia;

    (b)if the nominator’s business activities include activities related 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;

    (c)the application identifies a need for the identified person to be employed in the position, under the direct control of the nominator;

    (d)there is a genuine need for the identified person to be employed in the position, under the direct control of the nominator;

    (e)the identified person will be employed on a full‑time basis in the position for at least 2 years;

    (f)the terms and conditions of the identified person’s employment will not include an express exclusion of the possibility of extending the period of employment;

    (g)the nominator’s business has the capacity to employ the identified person for at least 2 years and to pay the person at least the annual market salary rate for the occupation each year;

    (h)the requirements set out in subregulation 2.72(15) are met, applying subregulations 2.72(15) and (16) as if:

    (i)paragraph 2.72(15)(a) did not apply; and

    (ii)references to the nominee were references to the identified person; and

    (iii)references to the person were references to the nominator;

    (i)either:

    (i)there is no information known to Immigration that indicates that the employment conditions (other than in relation to earnings) that will apply to the identified person are less favourable than those that apply, or would apply, to an Australian citizen or an Australian permanent resident performing equivalent work at the same location; or

    (ii)it is reasonable to disregard any such information;

    (j)the requirements set out in subregulation (10) or (12) are met.

    Occupations for the Subclass 186 (Employer Nomination Scheme) visa in the Direct Entry stream

    (10)The requirements of this subregulation are as follows:

    (a)the tasks to be performed in the position will be performed in Australia and correspond to the tasks of an occupation specified in a legislative instrument:

    (i)made under subregulation (11); and

    (ii)in force at the time the application is made;

    (b)the occupation applies to the identified person in accordance with that instrument.

    (11)The Minister may, by legislative instrument, specify occupations for the purposes of subregulation (10) and, for each occupation, specify any matters for the purposes of determining whether the occupation applies to an identified person, including matters relating to any of the following:

    (a)the nominator;

    (b)the identified person;

    (c)the occupation;

    (d)the position in which the identified person is to work;

    (e)the circumstances in which the occupation is undertaken;

    (f)the circumstances in which the person is to be employed in the position.

    Occupations for the Subclass 187 (Regional Sponsored Migration Scheme) visa in the Direct Entry stream

    (12)The requirements of this subregulation are as follows:

    (a)the position is located at a place in regional Australia;

    (b)the business operated by the nominator is located at that place;

    (c)the position cannot be filled by an Australian citizen or an Australian permanent resident who is living in, or would move to, the local area concerned;

    (d)the tasks to be performed in the position correspond to the tasks of an occupation specified in a legislative instrument:

    (i)made under subregulation (13); and

    (ii)as in force at the time the application is made;

    (e)the occupation applies to the identified person in accordance with that instrument;

    (f)the Minister has been advised by a body that meets the requirements set out in paragraph (g) of this subregulation about matters relating to the following:

    (i)whether the identified person would be paid at least the annual market salary rate for the occupation;

    (ii)whether there is a genuine need for the identified person to be employed in the position, under the direct control of the nominator;

    (iii)whether the position can be filled by an Australian citizen or an Australian permanent resident who is living in, or would move to, the local area concerned;

    (g)the body must:

    (i)be specified in a legislative instrument made by the Minister for the purposes of this paragraph; and

    (ii)be located in the State or Territory in which the position is located; and

    (iii)have responsibility for the local area in which the position is located.

    (13)The Minister may, by legislative instrument, specify occupations for the purposes of subregulation (12) and, for each occupation, specify any matters for the purposes of determining whether the occupation applies to an identified person, including matters relating to any of the following:

    (a)the nominator;

    (b)the identified person;

    (c)the occupation;

    (d)the position in which the identified person is to work;

    (e)the circumstances in which the occupation is undertaken;

    (f)the circumstances in which the person is to be employed in the position.

    …

    Meaning of regional Australia

    (16)In this regulation:

    regional Australia means a part of Australia specified in legislative instrument made by the Minister for the purposes of this definition.

    oOOo