Specialised Chicken Services Pty Ltd (Migration)

[2020] AATA 3104

Specialised Chicken Services Pty Ltd (Migration) [2020] AATA 3104 (8 June 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Specialised Chicken Services Pty Ltd

CASE NUMBER:  1817939

HOME AFFAIRS REFERENCE(S):          BCC2016/1936215

MEMBER:Alison Mercer

DATE:8 June 2020

PLACE OF DECISION:  Melbourne

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

Statement made on 08 June 2020 at 1:56pm

CATCHWORDS
MIGRATION – Employer Nomination – approval of nominated position – Direct Entry nomination stream – Sales and Marketing Manager – genuine need – no response to s 359(2) invitation – not entitled to appear before the Tribunal – active and lawful operation – financial capacity to maintain future employment – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 359C, 360
Migration Regulations 1994 (Cth), r 5.19

CASES
Yang v MIAC [2010] FMCA 890

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 30 May 2018 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).

2. The applicant, Specialised Chicken Services Pty Ltd, applied for approval on 3 June 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 (TRT) nomination stream (r.5.19(3)) and a Direct Entry (DE) nomination stream (r.5.19(4)). 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 applicant has applied for approval of a nomination, seeking to satisfy the criteria in the Direct Entry nomination stream for the nominated position of Sales and Marketing Manager.

4. The delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19(4)(a) of the Regulations because she was not satisfied that the applicant had established a genuine need to employ a paid employee in the nominated position. The delegate noted that the applicant had asserted that the nominated position was necessary for it to expand into the overseas market (in particular, China) and that the nominee was to be paid a salary of $185,000 per year. However, she further noted that no evidence had been provided – such as business plans and/or contracts with Chinese businesses – to substantiate these claims. The delegate therefore found that r.5.19(4) was not met as a whole. She found that the applicant had not provided claims against the Temporary Residence Transitional stream in 5.19(3).

5. The Tribunal received a review application on 19 June 2018. It was signed on behalf of the applicant by its director, Mr David Davenport, and was accompanied by a copy of the delegate’s decision and an authority by which Mr Davenport appointed a registered migration agent, Mr Gang Ren, as the applicant’s representative and authorised recipient for correspondence.

6. On 30 March 2020, the Tribunal wrote to Mr Davenport, via the agent, pursuant to s.359(2) of the Act to invite him to provide current and updated information demonstrating how the applicant met the r.5.19(4) criteria. The Tribunal noted that all of the criteria in r.5.19(4) had to be met (not just the criterion that was found not to be satisfied by the delegate). The Tribunal provided examples of the kinds of information that would assist it to assess whether the applicant met the r.5.19(4) criteria. Mr Davenport was requested to provide the information by 14 April 2020 and was advised that he could seek an extension of time to do so but should do so before 14 April 2020. He was further advised that if the information was not received by the due date (or the extended due date, if an extension of time was granted) then the applicant would lose its right to have an authorised person attend a Tribunal hearing on its behalf, and the Tribunal might then proceed to make its decision on the available evidence, without taking further steps to obtain the requested information.

7. The Tribunal did not receive any information or any request for an extension of time to respond from Mr Davenport or the agent by 14 April 2020, and has received nothing further from him, or any other authorised officer of the applicant, or the agent, to date.

8. The Tribunal is satisfied that its s.359(2) letter of 30 March 2020 were sent to the nominated email address of the applicant’s authorised recipient for correspondence. There is no indication from the Tribunal’s records that the email was undelivered or undeliverable. 

9. On behalf of the applicant, Mr Davenport 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.

10. Accordingly, the Tribunal has proceeded to make its decision on the available evidence. In doing so, the Tribunal notes that Mr Davenport 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. Mr Davenport 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.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. 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.

    The application is compliant: r.5.19(4)(a)

13. Regulation 5.19(4)(a) requires that the application for approval must be in the approved form, must be accompanied by the prescribed fee, and, where applicable, must include the required written certification relating to conduct that contravenes s.245AR(1). The application must also identify a need for the nominator to employ a paid employee to work in the position under their direct control.

14. The Tribunal notes that the delegate found that this criterion was not met as she did not accept that the applicant had established a genuine need for the nominated position of Sales and Marketing Manager based on the evidence provided.

15. In the Tribunal’s view, this criterion is directed more to whether the nomination application technically complied with the necessary requirements, including the need to identify (that is, list) a need for the nominated position. Whether the position is genuine, or genuinely needed, or not is more appropriately assessed under r.5.19(4)(h) in the Tribunal’s view. Having reviewed the nomination application, the Tribunal is satisfied that the applicant did identify a need for a Sales and Marketing Manager in it, that the correct form was used and fee paid, and that the nomination also contained the s.245AR(1) certification referred to above.

16. Accordingly, the Tribunal is satisfied that the requirement in r.5.19(4)(a) is met.

    Nominator is actively and lawfully operating a business in Australia: r.5.19(4)(b)

17. Regulation 5.19(4)(b) requires that the applicant is actively, lawfully and directly operating a business in Australia.

18. As noted above, the applicant did not provide any current or updated information to the Tribunal. The most recent financial statements provided to the Department were for the 2016/17 financial year, and are thus approximately 3 years old. The Tribunal has no current evidence before it on which to be satisfied that the applicant continues to actively, lawfully and directly operate a business in Australia.

19. Accordingly, the Tribunal finds that the requirement in r.5.19(4)(b) is not met.

    Term of employment of the visa holder: r.5.19(4)(d)

20. 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.  As noted above, the proposed salary for the nominee was stated to be $185,000 per year at the time that the nomination application was made in June 2016, some 4 years ago. As further noted, the Tribunal has not received any current information from the applicant to demonstrate that it has the financial capacity to pay this salary for at least 2 years. As stated above, the most recent financial statements from the applicant provided to the Department are from 2016/17. The Tribunal notes that the applicant also provided a letter from its accountant, in which the latter states that the applicant has the financial capacity to pay the proposed salary to the nominee for at least 2 years. However, this letter was dated 22 August 2017, nearly 3 years ago.

21. Given the lack of current evidence of the applicant’s financial capacity, the Tribunal is unable to be satisfied that the applicant meets r.5.19(4)(d).

22. As the Tribunal has found that the applicant does not meet r.5.19(4)(b) and (d), it follows that it is unnecessary for it to consider the remaining r.5.19(4) criteria, as each of them must be met in order for the Tribunal to substitute a decision to approved the nomination.

23. 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

24. 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 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).