SOLAR4ALL PTY LTD (Migration)

[2019] AATA 6449

SOLAR4ALL PTY LTD (Migration) [2019] AATA 6449 (10 December 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  SOLAR4ALL PTY LTD

CASE NUMBER:  1716260

DIBP REFERENCE(S):  BCC2016/4182333

MEMBER:Wan Shum

DATE:10 December 2019

PLACE OF DECISION:  Sydney

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

Statement made on 10 December 2019 at 2:14pm

CATCHWORDS
MIGRATION – nomination refusal– Temporary Residence Transition nomination – Importer or Exporter – nominator did not demonstrate that it fulfilled the training requirements – nominator did not provide any updated or current information –decision under review affirmed

LEGISLATION
Migration Act 1958, s 245
Migration Regulations 1994, r 5.19

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 7 July 2017 to reject an application for approval of the nomination of a position in Australia under r.5.19 of the Migration Regulations 1994 (the Regulations).

2. Solar4All Pty Ltd (the nominator) applied for approval on 11 December 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).

3. In this case, the application for approval of a nomination was sought for the position of Importer or Exporter, under the Temporary Residence Transition nomination stream. The nominator had earlier sponsored Mr Asad Ali Khan for a Subclass 457 visa for the same position and occupation, and wished to continue to employ him for the position.  Mr Khan lodged a Subclass 186 visa in respect of this nomination.

4. The delegate refused the application on the basis the nomination did not satisfy r.5.19(3)(f) of the Regulations because the nominator did not demonstrate that it fulfilled the training requirements. Mr Khan’s Subclass 186 visa was refused as a consequence of the nomination being refused.

5. The nominator sought review of that decision and the related visa applicant sought review in relation to the visa refusal decision. The same registered migration agent represented both the nominator and nominee in relation to the review.  

6. The nominator was invited to attend a hearing to give evidence and present arguments on 13 November 2019 and was requested to provide documents in support of this application. On 6 November 2019, the Tribunal received a request that the hearing be postponed on the basis that the nominee was overseas and uncontactable.  The Tribunal was advised the nominee was scheduled to return on 20 November 2019. A copy of his travel itinerary and Bridging visa B summary was provided. The Tribunal agreed to postpone the hearing.

7. On 2 December 2019, the Tribunal invited the nominator to give oral evidence and present arguments for a new hearing date of 9 December 2019. The Tribunal again requested documents in support of this application. 

8. On 6 December 2019, the representative emailed indicating the nominator will not be attending the hearing and requested a decision be made on the papers.  The hearing response form was attached indicating that the hearing offer had been declined.

9. Given this, the matter has therefore been determined on the evidence available to the Tribunal. 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 Temporary Residence Transition nomination stream set out in r.5.19(3), which is extracted in the attachment to this decision. For the nomination to be approved, all the requirements must be met.

11. The Tribunal has had regard to documents on the Department’s file including, the employment contract and financial documents. The employment contract dated 20 October 2016 states that the contract is for a period of four (2) years starting within six months from the time the nominee receives a permanent Australian visa allowing full-time work. It states that if the employment continues after that date, then continuation will be for an indefinite period. The contract allows for a salary of $60,000 and superannuation.

12. The nominator provided draft BAS for the periods between 1 July 2015 and 30 June 2016 and a profit and loss statement for the year ended 30 June 2016. Despite requests for more recent financial records, none have been provided to the Tribunal.

13. There is no current evidence as to whether the nominator is lawfully and actively operating a business in Australia, or whether it still wishes to employ the nominee.

14. The Tribunal has taken into account all the information provided to the Department in support of the application. The nominator did not provide any updated or current information to the Tribunal as to its current operations and the Tribunal cannot find that the requirements in r.5.19(3)(b)(ii) is met. In addition, there is no recent information to support a finding that the nominator is able to provide full-time employment to the nominee for at least 2 years. Nor is there evidence that the terms and conditions of employment applicable to the position will be no less favourable than that which would be provided to an Australian for performing equivalent work in the same workplace at the same location.

15. For the above reasons the Tribunal is not satisfied that the applicant meets the requirements of r.5.19(3). The applicant has not sought to satisfy the criteria in Direct Entry nomination stream, and as such has not met the requirements in r.5.19(4). Accordingly, the nomination of the position cannot be approved. Therefore, the Tribunal must affirm the decision under review.

    DECISION

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

    Wan Shum
    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.

    Temporary Residence Transition nomination

    (3)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 person who holds a Subclass 457 … visa granted on the basis that the person satisfied the criterion in subclause 457.223(4) of Schedule 2; and

    (iii)     identifies an occupation, in relation to the position, that:

    (A)is listed in ANZSCO; and

    (B)has the same 4-digit occupation unit group code as the occupation carried  out by the holder of the Subclass 457 … visa; and

    (b)the nominator:

    (i)       is, or was, the standard business sponsor who last identified the holder of the Subclass 457 … visa in a nomination made under section 140GB of the Act or under regulation 1.20G or 1.20GA as in force immediately before 14 September 2009; and

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

    (iii)     did not, as that standard business sponsor, meet regulation 1.20DA, or paragraph 2.59(h) or 2.68(i), in the most recent approval as a standard business sponsor; and

    (c)either:

    (i)       both of the following apply:

    (A)in the period of 3 years immediately before the nominator made the application, the holder of the Subclass 457 …visa identified in subparagraph (a) (ii) has:    

    (I)held one or more Subclass 457 visas for a total period of at least 2 years; and

    (II)been employed in the position in respect of which the person holds the Subclass 457 … visa for a total period of at least 2 years (not including any period of unpaid leave);

    (B)the employment in the position has been full-time, and undertaken in Australia; or

    (ii)      all of the following apply:

    (A)the person holds the Subclass 457 … visa on the basis that the person was identified in a nomination of an occupation mentioned in sub-subparagraph 2.72(10)(d)(iii)(B) or sub-subparagraph 2.72(10)(e)(iii)(B);

    (B)the nominator nominated the occupation;

    (C)the person has been employed, in the occupation in respect of which the person holds the Subclass 457 … visa, for a total period of at least 2 years in the period of 3 years immediately before the nominator made the application; and

    (d)for a person to whom subparagraph (c)(i) applies:

    (i)       the person will be employed on a full-time basis in the position for at least 2 years; and

    (ii)      the terms and conditions of the person’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)       the nominator:

    (A)fulfilled any commitments the nominator made relating to meeting the nominator’s training requirements during the period of the nominator’s most recent approval as a standard business sponsor; and

    (B)complied with the applicable obligations under Division 2.19 relating to the nominator’s training requirements during the period of the nominator’s most recent approval as a standard business sponsor; or

    (ii)      it is reasonable to disregard subparagraph (i); and

    Note Different training requirements apply depending on whether the application for approval as a standard business sponsor was made before 14 September 2009 or on or after that date.

    (g)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

    (h)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.