THE SQUEAKY CLEAN TEAM PTY LTD (Migration)

[2017] AATA 1850

THE SQUEAKY CLEAN TEAM PTY LTD (Migration) [2017] AATA 1850 (12 October 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  THE SQUEAKY CLEAN TEAM PTY LTD

CASE NUMBER:  1612634

DIBP REFERENCE(S):  BCC2015/2688913

MEMBER:Antonio Dronjic

DATE:12 October 2017

PLACE OF DECISION:  Melbourne

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

Statement made on 12 October 2017 at 4:17pm

CATCHWORDS
Migration – Approval of nominated positions (employer nomination) – Temporary Residence Transition nomination stream – No less favourable terms and conditions of employment – Nominee’s employment agreement not provided

LEGISLATION

Migration Act 1958, ss 359(2), 359C, 360(3), 363(1)(b), 363A

Migration Regulations 1994, r 5.19

CASES

Hasran v MIAC [2010] FCAFC 40

Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617

Manna v Minister for Immigration and Citizenship [2012] FMCA 28

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 22 July 2016 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 15 September 2015. 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 Temporary Residence Transition nomination stream.

4. The delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19 (3)(d) of the Regulations because the applicant has failed to provide the employment agreement with the nominee and Financial Statements that will indicate the applicant’s financial ability to pay wages to the nominated person.

5. The applicant applied to the tribunal on 12 August 2016 for review of the delegate’s decision. Its registered migration agent represented the applicant in relation to the review.

6. On 26 September 2017, the tribunal sent a letter to the applicant that contained a request to the applicant to provide information in writing demonstrating that the nomination meets all the requirements of the criteria in regulation 5.19(3) of the Migration Regulations. The request was made pursuant to section 359(2) of the Act.

7. The applicant had not provided the information within the prescribed period and no extension had been sought or granted. In these circumstances, s.359C applies and pursuant to s.360(3) the review applicant is not entitled to appear before the tribunal. The effect of s.363A of the Act is that if a review applicant has no entitlement to a hearing, the tribunal has no power to permit him or her to appear: Hasran v MIAC [2010] FCAFC 40.

8. The tribunal has also considered whether it should adjourn the review under subsection 363(1)(b) of the Act to allow the applicant additional time in which to provide further evidence to support the review application.

9. In doing so, the tribunal has taken into account the decisions in Huo v Minister for Immigration and Multicultural Affairs[1] and Manna v Minister for Immigration and Citizenship[2] where the Courts have held that the tribunal is not required to indefinitely defer its decision-making processes.

   [1] [2002] FCA 617

   [2] [2012] FMCA 28

10. The tribunal considered whether, in the circumstances of this case, the evidence that the applicant meets all of the requirements of r.5.19(3) is likely to be forthcoming, whether the applicant had a fair opportunity to provide the relevant information or documents already, and the significance of the information or documents to the applicant.

11. The tribunal has had regard to the fact that the nomination application was refused by the Department on 22 July 2016. The applicant submitted a copy of the primary decision record with the review application. As a result, the tribunal observes that the applicant has been aware for approximately 14 months of the reasons for the nomination application refusal.

12. The tribunal wrote to the applicant under subsection 359(2) of the Act inviting the applicant to provide information demonstrating that the nomination meets all the requirements of the criteria in regulation 5.19(3) of the Migration Regulations. The applicant has failed to provide requested information within the prescribed period set for this purpose.

13. The tribunal notes that the sponsoring business is not prevented from lodging a new nomination application with the Department.

14. In the circumstances, the tribunal considers the applicant has had sufficient time in which to address the central issues arising in the application for review. Accordingly, the tribunal has decided not to exercise its discretion under subsection 363(1)(b) of the Act to adjourn the review any further. The tribunal has determined to make a decision on the review without taking any further action to obtain the information in accordance with section 359C of the Act.

15. For the following reasons, the tribunal has decided to affirm the decision under review to refuse the nomination.

    CONSIDERATION OF CLAIMS AND EVIDENCE

16. 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.

    No less favourable terms and conditions of employment: r.5.19(3)(e)

17. Regulation 5.19(3)(e) requires that the terms and conditions of employment applicable to the nominated position will be no less favourable than those that are, or would be, provided to an Australian citizen or permanent resident performing equivalent work in the same workplace at the same location.

18. The applicant did not provide the employment agreement with the nominee to the department or this tribunal. Not the applicant provided Financial Statements that will indicate the applicant’s financial ability to pay wages to the nominated person.

19. The tribunal has no contemporary information before it concerning whether or not the terms and conditions of employment applicable to the nominated position will be no less favourable than those that are, or would be, provided to an Australian citizen or permanent resident performing equivalent work in the same workplace at the same location.

20. By reference to the information presently before it, the tribunal is not satisfied that the conditions of employment for the nominee will be no less favourable than the terms and conditions that are or would be provided to an Australian citizen or permanent resident performing equivalent work in the same workplace at the same location.

21. The tribunal accordingly finds that the applicant has failed to satisfy the requirements of r.5.19(3)(e).

22. 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

23. The tribunal affirms the decision under review to refuse the nomination.

    Antonio Dronjic
    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

    (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.