The Trustee for Goldmine Enterprise Unit Trust (Migration)

The Trustee for Goldmine Enterprise Unit Trust (Migration) [2022] AATA 2972 (26 August 2022)
ECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  The Trustee for Goldmine Enterprise Unit Trust
REPRESENTATIVE:  Mr Tonio Thomas (MARN: 1174825)
CASE NUMBER:  1918255
HOME AFFAIRS REFERENCE(S):          BCC2017/386704
MEMBER:Alison Mercer
DATE:26 August 2022
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision under review to refuse the nomination.

Statement made on 26 August 2022 at 10:07am

CATCHWORDS
MIGRATION – application for approval of nomination of position – direct entry stream – motor mechanic – genuine need for position and financial capacity to employ nominee for 2 years – no response to tribunal’s invitation to provide current information – no evidence of operating business, need for position and tasks of position – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 359(2), 359C, 360(3)
Migration Regulations 1994 (Cth), r 5.19(3), (4)(a)(ii), (b), (h)(ii)(B)
CASE
Yang v MIAC [2010] FMCA 890

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 20 June 2019 to reject the applicant’s application for approval of the nomination of a position in Australia under reg 5.19 of the Migration Regulations 1994 (Cth) (the Regulations).
The applicant applied for approval on 30 January 2017. The requirements for the approval of the nomination of a position in Australia are found in reg 5.19 of the Regulations which contains two alternative streams: a Temporary Residence Transition nomination stream (reg 5.19(3)) and a Direct Entry nomination stream (reg 5.19(4)). If the application is made in accordance with reg 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: reg 5.19(5).
In this case, the applicant has applied for approval of a nomination of the position of Motor Mechanic (General), seeking to satisfy the criteria in the Direct Entry nomination stream.
The delegate refused the application on the basis the applicant’s nomination did not satisfy reg 5.19(4)(a)(ii) of the Regulations because the delegate was not satisfied that the applicant had demonstrated that it had a genuine need for the nominated position within its business, or that it had the financial capacity to employ him on a full time basis for at least 2 years on a salary of $54,000 per year.
The Tribunal received a review application on 8 July 2019. It was lodged on behalf of the applicant by its manager Mr Dilip Patel, and was accompanied by a copy of the delegate’s decision and an authority by which Mr Patel appointed a registered migration lawyer, Mr Tonio Thomas, as the applicant’s representative and authorised recipient for correspondence.
On 26 July 2022, the Tribunal wrote to Mr Patel via the agent to invite him, pursuant to s.359(2) of the Migration Act 1958 (the Act), to provide updated and current information demonstrating how the applicant met all of the relevant criteria in r.5.19(4) (not just the criterion that the delegate found was not met). The Tribunal provided examples of the kind of information that would assist it. It requested that the information be provided by 9 August 2022, noting that if the information was not provided (or an extension of time requested to do so) by 9 August 2022, then the applicant would lose its entitlement to have a person appear on its behalf at a hearing, and the Tribunal might proceed to make a decision on the available evidence, without taking any further steps to obtain the requested information.
The Tribunal did not receive the requested information, or a request for an extension of time to do so, by 9 August 2022. It has received no communication from Mr Patel, or the agent, to date.
The Tribunal is satisfied that its s.359(2) letter was sent to the email address nominated by Mr Patel in the review application (being the agent, who is also the applicant’s authorised recipient for correspondence). There is no evidence that the Tribunal’s email was not delivered or was undeliverable.
On behalf of the applicant, neither its agent nor Mr Patel has responded to the Tribunal’s s.359(2) letter. In the circumstances, s.359C applies and pursuant to s.360(3), a person representing the applicant is not entitled to appear before the Tribunal. The Tribunal has no power to permit them to appear: see Yang v MIAC [2010] FMCA 890.
Accordingly, the Tribunal has proceeded to make its decision on the available evidence. In doing so, the Tribunal notes that Mr Patel had the benefit of the assistance of a migration agent for the review process, and was provided with a 14 day period in which to provide the information requested by the Tribunal (and the opportunity to request an extension of time to do so if he was unable to do so within 14 days). In the circumstances, the Tribunal does not consider it unreasonable to proceed to a decision without any further deferral.
For the following reasons, the Tribunal has decided to affirm the decision under review to refuse the nomination.
CONSIDERATION OF LAW, CLAIMS AND EVIDENCE
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 reg 5.19(4), which is extracted in the attachment to this decision. For the nomination to be approved, all the requirements must be met.
The application is compliant: reg 5.19(4)(a)
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 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.
The Tribunal is satisfied that the application for approval was made using the approved form, that there was no prescribed fee payable as the nomination was a regional one, and that the required written certification was contained in the application.
As noted above, the delegate was not satisfied that the applicant had identified a need to employ a paid employee to work in the nominated position within its business, and so found that r.5.19(4)(a)(ii) was not met. The delegate noted that there were already several mechanics employed by the applicant in 2 workshops, and no evidence had been provided to indicate in which workshop the nominated position would be located, nor was there any evidence to substantiate an assertion that the business was expanding.
The Tribunal notes that the nomination identifies a need to employ a named nominee, Mr Harmanbir Singh, in the nominated position of Motor Mechanic (General). The Tribunal has considered the issue of whether that need is genuine or not in its consideration of r.5.19(4)(h) below. Given the applicant identified a need, and named a nominee, the Tribunal finds that r.5.19(4)(a) is met.
Nominator is actively and lawfully operating a business in Australia: reg 5.19(4)(b)
Regulation 5.19(4)(b) requires that the applicant is actively, lawfully and directly operating a business in Australia.
The Tribunal notes that the nomination application was lodged on 30 January 2017, some 5.5 years ago. The refusal decision was made on 20 June 2019, some 3 years ago.
At the time the nomination application was lodged, evidence was provided indicating that the applicant company, trading as Ozi Auto Group, operated 2 Motor Mechanic workshops in Caloundra and Towoomba in regional Queensland. However, the most recent financial evidence about its operations provided to the Department is from November 2018 (being BAS for the period to October 2018). This information is nearly 4 years old.
No information was provided to the Tribunal with the review application in July 2019 about the applicant’s operations and financial status, and none has been provided in response to the Tribunal’s s.359(2) letter of 26 July 2022.
Given the dearth of any current information about the applicant’s operations, structure and financial situation, the Tribunal is not satisfied that the applicant is still actively, lawfully and directly operating a business in Australia
Accordingly, the Tribunal is not satisfied that the requirement in reg 5.19(4)(b) is met.
Tasks of the position, genuine need for the position and training requirements reg 5.19(4)(h)
Regulation 5.19(4)(h) contains a number of alternative requirements. These are set out in detail in the attachment to the decision but can be briefly summarised as requiring either that:
·the tasks to be performed in the position will be performed in Australia and correspond to those of an occupation specified by the Minister in the relevant instrument, the occupation is applicable to the proposed employee in accordance with any specifications made in that instrument, and specified training requirements are met (r.5.19(4)(h)(i)); or
·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 (r.5.19(4)(h)(ii)).
The material on the Department file indicates that the position and nominator’s business are located in regional Australia; namely, Towoomba, Queensland, postcode 4350 (stated to be the location where the nominated position is situated, although the head office of the applicant’s business is stated to be in Caloundra). The relevant instrument, IMMI 18/037, specifies that this postcode is ‘regional Australia’ for these purposes. Accordingly, the requirements of the second dot point above apply in this case.
Regulation 5.19(4)(h)(ii)(B) requires that there is a genuine need for the nominator to employ a paid employee to work in the position under the nominator’s direct control. As noted above, the delegate was not satisfied in mid-2019 that the applicant had established that it had a genuine need to employ another Motor Mechanic within its business, as the organisational chart provided to the Department indicated that there were at least 4 full time and 2 part time Mechanics employed in the business already.
The Tribunal has not been provided with any updated information as to the nature of the applicant’s business operations in 2022, and in particular, whether the applicant has a genuine need for the nominated position within the business some 3 years after the delegate’s decision. As noted above, no evidence has been provided to indicate that the business is still operating in 2022, and if so, what the current nature and scope of its operations are. Indeed, the most recent material concerning the business was provided to the Department in mid-2019, approximately 3 years ago.
Given the dearth of any current information about the applicant’s employees, structure, operations and financial situation, the Tribunal is not satisfied that the applicant currently has a genuine need for a paid employee to work in the nominated position.
Accordingly, the Tribunal is not satisfied that r.5.19(4)(h)(ii)(B) is met, and thus finds that the applicant cannot meet r.5.19(4)(h) as a whole.
As this is one of the mandatory criteria that must be met, it is unnecessary for the Tribunal to assess the remaining criteria in r.5.19(4).
For the above reasons the Tribunal is not satisfied that the applicant meets the requirements of reg 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 reg 5.19(3). Accordingly, the nomination of the position cannot be approved. Therefore, the Tribunal must affirm the decision under review.
DECISION
The Tribunal affirms the decision under review to refuse the nomination.
Alison Mercer
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).

[2022] AATA 2972

26 August 2022

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Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Statutory Construction

Procedural Fairness