Swanstar Nominees Pty Ltd (Migration)

[2021] AATA 1493

Swanstar Nominees Pty Ltd (Migration) [2021] AATA 1493 (17 March 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Swanstar Nominees Pty Ltd

CASE NUMBER:  1801358

HOME AFFAIRS REFERENCE(S):          BCC2017/1148347

MEMBER:Nicola Findson

DATE:17 March 2021

PLACE OF DECISION:  Perth

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

Statement made on 17 March 2021 at 10:12am

CATCHWORDS
MIGRATION – nomination – Direct Entry nomination stream – requirement for regional certifying body advice in respect of the nominated position – unable to obtain a regional certifying body advice –decision under review affirmed

LEGISLATION
Migration Act 1958, s 245AR
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 Home Affairs on 16 January 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 applied for approval on 24 March 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 stream (r.5.19(3)) and a Direct Entry 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.

4. The delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19(4)(h) of the Regulations because the Minister had not been advised by a regional certifying body (RCB) about certain matters pertaining to the nominated position, as required by r.5.19(4)(h)(ii)(F).

5. Mr Terrence Creasey, Director of the applicant, appeared before the Tribunal on 23 October 2020, to give evidence and present arguments. The Tribunal exercised its discretion to hold the hearing by telephone. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone.  Mr Creasey did not raise any concerns in relation to holding a telephone hearing.  The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.  

6. The applicant was represented in relation to the review by its registered migration agent. The applicant’s migration agent also attended the hearing.

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

   Regional Certification - r.5.19(4)(h)

9. Regulation 5.19(4)(h) contains a number of alternative requirements.  These are set out in detail in the attachment to the decision and those relevant to this matter are as follows:

   ·the position and nominator’s business is located in regional Australia, there is a genuine need for the paid position under the nominator’s direct control which cannot be filled by a locally resident Australian citizen or permanent resident, the tasks of the position correspond to those of an occupation specified in the relevant legislative instrument, the occupation is applicable to the proposed employee in accordance with the specification of the occupation and that a regional certifying body has advised the Minister about certain matters relating to the position.

10. On 30 January 2020, Swanstar Nominees Pty Ltd was invited by the Tribunal to provide updated and current information demonstrating that it satisfied the relevant criteria in rr.5.19(2) and (4) of the Regulations. The applicant responded and provided to the Tribunal extensive additional and updated evidence in support of its application. However, no information about whether a specified regional certifying body located in the same State or Territory as the nominated position had provided advice about certain matters pertaining to the nominated position, as sought by the Tribunal in its invitation, was included in this additional material.

11. On 27 August 2020, the Tribunal wrote and informed the applicant that it was unable to make a favourable decision on the material that had been submitted to date and invited the applicant to attend a hearing.  At the hearing, the Tribunal discussed the requirement for regional certifying body advice in respect of the nominated position.  Mr Creasey indicated to the Tribunal that since lodging its application Swanstar Nominees Pty Ltd had made attempts, but had been unable, to obtain the relevant regional certifying body certification.  He said that this was because in March 2017, the Western Australian government had suspended processing these applications in anticipation of changes to the Regional Sponsored Migration Scheme postcodes. 

12. When the regional certifying body advice requirement was identified as being an issue in the review, the Tribunal allowed the applicant time following the hearing to make further enquiries about obtaining the required advice.

13. On 22 January 2021, the applicant provided the Tribunal with information it had received from the relevant regional certifying body - the Department of Training and Workforce Development in Western Australia – in response to a request from the applicant to clarify whether it would be possible for RCB advice to be obtained in this case.  By email correspondence, dated 15 January 2021, the Department of Training and Workforce Development confirmed that it had not provided regional certifying body advice on any RSMS applications for Perth based positions lodged after 13 March 2017, and accordingly, that it would not provide regional certifying body advice in respect of the position nominated by Swanstar Nominees Pty Ltd.

14. The Tribunal notes that from 16 November 2019, Subclass 187 visa applications and nominations in the Direct Entry stream were closed by the Migration Amendment (New Skilled Regional Visas) Regulations 2019.  In its place, the amending regulations introduced the Subclass 494 (provisional) visa.  While Subclass 494 is intended to supersede Subclass 187, the amending regulations and its Explanatory Statement do not mention anything in relation to regional certifying bodies ceasing to issue advices for Subclass 187 nominations.  Nevertheless, the Tribunal understands that some regional certifying bodies have ceased to do so.

15. On 3 February 2021, the Tribunal set out the above information in a letter to the applicant, and invited the applicant, pursuant to s.359(1), to provide any additional information in relation to the requirement of r.5.19(4)(h)(ii)(F), before it proceeded to make its decision.

16. On 19 February 2021, the applicant, via its representative, replied as follows:

    “As you are aware, regional certifications are issued by the Migration Services Team at the WA Department of Training and Workforce Development.

    While we have made several enquiries and requests to the Department of Training and Workforce Development, they have refused to provide any regional certification advice / comment for the subclass 187 Direct Entry application lodged on behalf of Swanstar Nominees Pty Ltd.

    In this regard, we regret to inform you that we are not able to provide any additional information in relation to r.5.19(4)(h)(ii)(F).”

17. Having reviewed the relevant regulations and instruments, the Tribunal considers that whether a regional certifying body has advised the Minister about the specific matters prescribed in the above subparagraphs is a question of fact, and the provisions do not provide any discretion as to whether it may be reasonable to disregard this requirement. As such, without certification from a regional certifying body, Swanstar Nominees Pty Ltd in this case, cannot meet the requirements for the approval of the nomination.

18. The Tribunal observes that the timing of this nomination application was very unfortunate. The application was lodged only days after the relevant regional certifying body suspended issuing advices on RSMS applications in anticipation of changes to the definition of ‘regional Australia’.  In addition, despite its best efforts, and in circumstances where the Perth metropolitan area once again is included within the definition of ‘regional Australia’, the applicant has been unable to obtain a regional certifying body advice because the relevant body has simply ceased to issue them. 

19. As the applicant has not met 5.19(4)(h)(ii)(F), it is not necessary for the Tribunal to consider the remaining requirements of r.5.19(4). However, the Tribunal notes that it is of the view that had the applicant obtained the relevant regional certifying body advice, and on the basis of the evidence before the Tribunal going to the remaining requirements, the outcome of this review application would likely have been a very different one.

20. 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

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

    Nicola Findson
    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).