The Trustee for Alan Homes Family Trust (Migration)

[2019] AATA 4040

The Trustee for Alan Homes Family Trust (Migration) [2019] AATA 4040 (26 August 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  The Trustee for Alan Homes Family Trust

CASE NUMBER:  1820775

DIBP REFERENCE(S):  BCC2017/4279942

MEMBER:Phoebe Dunn

DATE:26 August 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 26 August 2019 at 8:55am

CATCHWORDS
MIGRATION – Employer Nomination – approval of nominated position – Temporary Residence Transition nomination stream – no response to invitation to provide information – not entitled to appear before the Tribunal – Tribunal declined indefinite adjournment of decision – financial capacity to maintain nominee’s term of employment – employment contract – unverified or financial documentation – genuine need – no submissions or substantive documentation – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 359C, 360, 363, 363A
Migration Regulations 1994 (Cth), r 5.19

CASES
Hasran v MIAC [2010] FCAFC 40
Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617
Kaur v Immigration and Border Protection (2014) 236 FCR 393
Manna v Minister for Immigration and Citizenship [2012] FMCA 28
Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437
Minister for Immigration and Citizenship v Li (2013) 239 CLR 332
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 Immigration on 28 June 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 15 November 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 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)(i) of the Regulations because the applicant failed to demonstrate there was a genuine need for the applicant to employ the visa applicant as a paid employee to work in a position under the nominator’s direct control. The delegate also refused the application on the basis that the applicant failed to provide sufficient evidence under r.5.19(3)(d)(i) to demonstrate it could meet its financial undertakings, specifically that it could employ the visa applicant and meet all its employment obligations full-time for at least two years.

5. The Tribunal received an application for review of the delegate’s decision on 17 July 2018.  When the application for review was made the only document provided to the Tribunal was a copy of the notification and decision record of the Department of Home Affairs (the Department).

6. The applicant was represented in relation to the review by its registered migration agent, Mr Harmeet Singh.

7. On 30 July 2019, the Tribunal wrote to the applicant. The letter invited the applicant to provide information to the Tribunal pursuant to s.359(2) of the Migration Act 1958 (the Act). Specifically the Tribunal invited information to be provided demonstrating that the business currently met all relevant criteria in r.5.19(3), including but not limited to, the particular criteria that the Department had found were not met. The Tribunal provided a copy of r.5.19(3) for reference. The Tribunal requested that the information be provided by 13 August 2019, noting that an extension of time to respond could be requested but that this would need to be made by 13 August 2019. Finally, the Tribunal advised the applicant that if the requested information was not received by the due date (or by the extended due date, if an extension of time was requested and granted), then the entitlement to appear at the Tribunal hearing would be lost, and the Tribunal may proceed to make its decision on the available evidence without taking further steps to obtain the requested information.

8. The applicant did not respond to the request to provide information.

9. As the applicant failed to respond within the prescribed period, s.359C(1) of the Act applies and pursuant to s.360(3) of the Act, the 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 them to appear: see Hasran v MIAC [2010] FCAFC 40; (2010) 183 FCR 413 at [26]; and Yang v MIAC [2010] FMCA 890 at [40].

10. The Tribunal has given consideration as to whether it should exercise its discretion under s.359C(1) to make a decision on the review without taking further steps to obtain information from the applicant. The Tribunal considered whether, in the circumstances of this case, the information that the applicant meets the requirements in r.5.19(3) of the Regulations is likely to be forthcoming and whether the applicant has 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 application was refused by the Department on 28 June 2018 because the delegate concluded that the applicant had not demonstrated it had met the requirements of r.5.19(3)(i) or r.5.19(3)(d)(ii).

12. 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 over 12 months of the reasons for the nomination refusal, and there has been no request for an extension of time within which to respond, or reasons provided for lack for response. 

13. In these circumstances, and for the reasons set out in this decision record, the Tribunal considers that the applicant has had a fair opportunity to provide the relevant information and sufficient time to take steps to satisfy the regulatory criteria. The Tribunal notes that it is uncertain if and when the applicant will provide information in writing as to whether the nominating business meets the requirements of r.5.19(3). The Tribunal is not disposed to delay making a decision indefinitely.

14. Accordingly, the Tribunal has decided to exercise its discretion under s.359C(1) to make a decision on the review without taking further steps to obtain information from the applicant in which to demonstrate that the nominating business meets the requirements of r.5.19(3).

15. The Tribunal has also given consideration to whether it should adjourn the review under s.363(1)(b) of the Act to allow the applicant additional time in which to provide further evidence to support the review application.

16. 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. It has also had regard to the decision in Minister for Immigration and Citizenship v Li[3] regarding the reasonableness of any request for an adjournment, and the Full Federal Court decision in Minister for Immigration and Border Protection v Singh[4] which considered this issue, as well as the more recent decision in Kaur v Minister for Immigration and Border Protection[5] where analogous issues were discussed.

    [1] [2002] FCA 617

    [2] [2012] FMCA 28

    [3] [2013] HCA 18 (8 May 2013)

    [4] [2014] FCAFC 1 (4 February 2014)

    [5] [2014] FCA 915 (28 August 2014)

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

18. The Tribunal has had regard to the matters set out in paragraphs 11 and 12 of this decision, noting that the applicant has been aware for over 12 months of the reasons for the nomination refusal, and there has been no request for an extension of time within which to respond, or reasons provided for the lack for response.

19. In these circumstances, and for the reasons set out in this decision record, the Tribunal considers that the applicant has had a fair opportunity to provide the relevant information and sufficient time to take steps to satisfy the regulatory criteria. The Tribunal notes that it is uncertain if and when the applicant will provide information in writing as to whether the nominating business meets the requirements of r.5.19(3). The Tribunal is not disposed to delay making a decision indefinitely.

20. Accordingly, the Tribunal has decided not to exercise its discretion under s.363(1)(b) of the Act to adjourn the review any further to allow the applicant more time in which to demonstrate that the nominating business meets the requirements of r.5.19(3).

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

22. 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.

    Future employment of the visa holder: r.5.19(3)(d)

23. Regulation 5.19(3)(d) only applies to certain nominees (those described in r.5.19(3)(c)(i)). For this class of person, the Regulations require that the nominee will be employed on a full time basis for at least two years on terms that do not expressly preclude the possibility of an extension.

24. The Tribunal notes that part of the reason for the delegate refusing the nomination application was that the applicant had failed to provide evidence to show that it had the financial capacity to meet its employment responsibilities to pay the visa applicant the full-time salary of $54,000 plus 9.5% superannuation for a period of at least two years.  The Tribunal notes further that the applicant has not provided any new information at the review stage to support a positive finding that the applicant has the financial capacity to employ the nominee full-time for at least two years.

25. The Tribunal has considered whether a positive finding as to financial capacity under r.5.19(3)(d)(i) is available to it based on the information contained on the Department’s file. The Tribunal notes that the applicant has not provided any auditable financial documentation to demonstrate its financial capacity either at first instance or on review. In particular, the Tribunal notes that the applicant has not provided any balance sheets, profit and loss statements, business activity statements or business tax returns for the relevant years of the business’ standard business sponsorship, or for the financial years 2017, 2018 and 2019, as requested on review.

26. The Tribunal notes that the only documentation before it on which to assess the applicant’s financial resources is:

    a.a copy of the nomination application dated 15 November 2017, noting that the business employed (at that time) 20 Australian citizens or permanent residents and three foreign employees;

    b.an unverified payroll summary for the period from 8 August 2014 to 7 August 2015, detailing a gross payroll of $134,113.73.  The Tribunal notes that this is a typed document that does not appear to have been generated from the applicant’s payroll system, and there is no supporting documentation to substantiate these figures;

    c.an unverified payroll summary for the period from 30 June  2016 to 30 June 2017, noting a gross payroll of $342,066.93. The Tribunal notes that this is a typed document that does not appear to have been generated from the applicant’s payroll system, and there is no supporting documentation to substantiate these figures;

    d.PAYG summary for the nominee for FY 2016; and

    e.payroll advice sheets for the nominee for the period from 3 July 2017 to 3 December 2017.

27. The Tribunal has considered the signed employment contract provided with the nomination application (signed 15 November 2017) [DIPB file, document 4662278]. This contract states that it commences within two days of the Subclass 186 visa approval, and continues for two years from the date of the grant of a visa.  The Tribunal notes that the contract is silent on the possibility of an extension, and does not expressly preclude an extension. The contract provides for full-time employment at $54,000 plus superannuation at the statutory rate.  Accordingly, the employment contract submitted with the nomination application could support a finding that the nominee will be employed on a full-time basis for at least two years on terms that do not expressly preclude the possibility of an extension.

28. Notwithstanding this, the Tribunal does not consider the employment contract alone to be sufficient to reach a positive finding that the applicant meets the requirements of r.5.19(3)(d)(i). The Tribunal notes that the applicant has not provided audited financial documentation either at first instance or on review, and the only financial documentation before it is either unverified or insufficient. The Tribunal also notes that it does not have any updated or contemporary information as to the applicant’s intentions regarding the nominee.

29. The Tribunal does not consider the documentation before it sufficient to support a finding that the applicant has the financial position to provide the nominee with the requisite full-time employment for at least two years and to meet its employment obligations for two years of full-time employment under r.5.19(3)(d)(i).

30. As such, the Tribunal finds that it does not have sufficient evidence of the applicant’s financial ability to meet its obligations or undertakings under r.5.19(3)(d)(i), or any relevant or contemporary documentation before it on which to support a positive finding that the nominee will be employed on a full time basis in the nominated position for at least two years under r.5.19(3)(d)(i).

31. Given the above findings, the requirement in r.5.19(3)(d) is not met.

    Genuine need to employ nominee: r.5.19(3)(i)

32. Regulation 5.19(3)(i) requires that there is a genuine need for the nominator to employ the person, as a paid employee, to work in the position under the nominator’s direct control.

33. The Tribunal notes that part of the delegate’s reason for refusing the nomination application was that the applicant had “…failed to demonstrate that the nominee’s occupation continues to be genuinely needed in the regular, ongoing business activity of the nominator as a paid employee, to work in the position under the nominator’s direct control, therefore, the nominator failed to demonstrate that it has met regulation 5.19(3)(i).”

34. The Tribunal notes that on the basis of its findings in relation to r.5.19(3)(d), an assessment of r.5.19(3)(i) is not required. Notwithstanding, the Tribunal has considered whether a positive finding on r.5.19(3)(i) is available to it on the information contained on the Department’s file, noting that no new information has been provided to the Tribunal on review.

35. The Tribunal notes the only documentation available to it on which to consider genuine need under r.5.19(3)(i) is the nomination application and the nominee’s employment contract and position description (signed 15 November 2017) [DIPB file, document 4662278]. The Tribunal has no submissions before it to establish that the applicant has a genuine need to employ the nominee to work in the position under the nominator’s direct control. Accordingly, the Tribunal finds that the applicant has not provided any submissions or substantive documentation either in the first instance or on review to support a positive finding of compliance with r.5.19(3)(i).

36. Accordingly, the requirement in r.5.19(3)(i) is not met.

37. 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 the 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

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

    Phoebe Dunn
    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.

    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

    (iv)    identifies a need for the nominator to employ the person, as a paid employee, to work in the position under the nominator’s direct control; 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; and

    (i)there is a genuine need for the nominator to employ the person, as a paid employee, to work in the position under the nominator’s direct control.