Star Cycle Pty Ltd (Migration) - [2019] AATA 4131

Star Cycle Pty Ltd (Migration) [2019] AATA 4131 (29 August 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division
APPLICANT:  Star Cycle Pty Ltd
CASE NUMBER:  1717924
DIBP REFERENCE(S):  BCC2017/2296283
MEMBER:S. Jones
DATE:29 August 2019
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.
Statement made on 29 August 2019 at 10:14am

CATCHWORDS
MIGRATION – nomination – Direct Entry Nomination stream – Motor Mechanic – standard business sponsor – nominee employed full-time in position for two years – financial capacity to employ nominee for minimum of two years – employment extension not precluded – training requirements met – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 140GB, 245AR(1)
Migration Regulations 1994 (Cth), rr 1.13, 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 8 August 2017 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 applied for approval on 28 June 2017. 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 applicant has applied for approval of a nomination, seeking to satisfy the criteria in the Direct Entry nomination stream.
4.The delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19 (3)(d) and r.5.19 (3)(f) of the Regulations because the applicant failed to provide sufficient verifiable evidence in support of the legal requirements. Specifically, the applicant failed to provide supporting documents to confirm the terms and conditions of employment of the nominee and provided no financial evidence that the business has the financial capacity to provide a permanent, full time position to the nominee for at least two years.
5.The applicant’s Director, Mr Yakov Idan appeared before the Tribunal on 19 July 2019 to give evidence and present arguments on behalf of the applicant.
6.The applicant was also represented in relation to the review by its registered migration agent, Mr Hammond of Hammond Taylor.
7.For the following reasons, the Tribunal has decided to set aside the decision under review and substitute a decision approving the nomination.

CONSIDERATION OF CLAIMS AND EVIDENCE

8.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.

The application must be…

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.

Continue reading Star Cycle Pty Ltd (Migration)

Details

AGLC: Star Cycle Pty Ltd (Migration) [2019] AATA 4131
Case: [2019] AATA 4131
Decision Date: 29 August 2019

CaseChat Overview and Summary

Star Cycle Pty Ltd sought judicial review of a decision made by the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs concerning a nomination under the Direct Entry Nomination stream for a Motor Mechanic position. The applicant, Star Cycle Pty Ltd, was a standard business sponsor.

The primary legal issue before the court was whether the Minister's decision to refuse the nomination was affected by an error of law. Specifically, the court considered whether the nominee had been employed full-time in the nominated position for at least two years, whether the sponsor had the financial capacity to employ the nominee for a minimum of two years, and whether the training requirements for the nominee had been met. The court also considered whether an extension of employment beyond the initial two-year period was precluded by the relevant legislative provisions.

The court reasoned that the evidence demonstrated the nominee had been employed full-time in the nominated position for the requisite two-year period. Furthermore, the court found that the applicant had sufficient financial capacity to employ the nominee for at least two years, and that the training requirements had been satisfied. Crucially, the court determined that the legislative framework did not preclude an extension of employment beyond the initial two-year period, and that the Minister had erred in concluding otherwise.

Consequently, the court set aside the decision under review.

Orders