The Good People Pty Ltd (Migration)

[2020] AATA 2898

The Good People Pty Ltd (Migration) [2020] AATA 2898 (7 July 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  The Good People Pty Ltd

CASE NUMBER:  1810368

HOME AFFAIRS REFERENCE(S):          BCC2016/1517476

MEMBER:Andrew McLean Williams

DATE:7 July 2020

PLACE OF DECISION:  Brisbane

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

Statement made on 07 July 2020 at 5:00pm

CATCHWORDS
MIGRATION – application for approval of nomination of position – direct entry nomination stream – application not accompanied by prescribed fee – no response to tribunal’s request for up-to-date information – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 359(2)
Migration Regulations 1994 (Cth), r 5.19(2)(b), (4)(a)

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review filed in the Tribunal on 13 April 2018 seeking review of a decision made by a delegate of the Minister for Home Affairs on 27 March 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 of the nominated position on 21 April 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 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 three grounds: the applicant’s nomination did not satisfy r.5.19(2)(b), r.5.19(4)(h)(ii)(B), or r.5.19(4)(h)(ii)(D) of the Regulations, because the application was (i) not accompanied by the prescribed fee as required in r.5.19(2)(b); (ii) the tasks of the nominated position of office manager did not comply with those listed for an office manager in ANZSCO Category 512111 (r.5.19(4)(b)(ii)(D); and (iii) the applicant had failed to demonstrate a genuine need for a person in the nominated position (r.5.19 (4)(b)(ii)(B)). Any one of these by itself would have afforded sufficient grounds to refuse the application.

5. The applicant was represented in relation to the review by its registered migration agent, Mr Karl Young of AMEC Pty Ltd (MARN 1171642).  The Tribunal became aware that Mr Young’s registration as a migration agent ceased on 16 January 2020.  On 6 July 2020 the Tribunal wrote to the applicant in relation to that, and invited the applicant to consider appointing a new representative. No response was received by the Tribunal from the applicant to that correspondence.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. 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.

8. On 30 March 2020 the Tribunal wrote to the applicant pursuant to s.359(2) of the Act, requesting up-to-date information in relation to the matters specified in r.5.19(4), indicating that a response was required by 14 April 2020. No response was received by the Tribunal, and no other information, evidence, or submissions had been filed by the applicant with the Tribunal prior to 14 April 2020 in relation to r.5.19(4). In the result the information before the Tribunal at the time of this decision is the same as that which was before the delegate at the time of the delegate making the original refusal decision, as now under review before the Tribunal.

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

9. 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 also 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.

10. In this case, the application was made using the approved form. The form itself includes the necessary written certification relating to conduct that contravenes s.245AR(1) of the Act. However, the application was not accompanied by the fee prescribed in r. 5.37 when it was lodged on 21 April 2016. There is no evidence discernible to the Tribunal that the applicant paid the prescribed fee at the time of the making of the application for approval of a nominated position and the applicant has not subsequently filed any evidence before the Tribunal in an effort to show that they did in fact pay the prescribed fee at the time of making the original application. In the result the Tribunal concludes that the original application was never accompanied by the application fee and the applicant has failed to meet the requirement in r.5.19(2)(b). This has flow-on consequences, in terms of precluding the applicant from being able to show that they have complied with r.5.19(4)(a).

11. Accordingly, the Tribunal determines that the requirement in r.5.19(4)(a) is not met. As the application is required to meet all of the requirements of r.5.19(4), the failure to comply with r.5.19(4)(a) becomes determinative in an overall sense of this application for review, and it becomes unnecessary for the Tribunal to consider any of the other requirements in r.5.19(4).

12. 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

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

    Andrew McLean Williams
    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).