The Trustee For Gurdeep Singh Tiwana Family Trust (Migration)

The Trustee For Gurdeep Singh Tiwana Family Trust (Migration) [2021] AATA 2787 (8 June 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  The Trustee For Gurdeep Singh Tiwana Family Trust
CASE NUMBER:  1826175
HOME AFFAIRS REFERENCE(S):          BCC2016/2723622
MEMBER:Penelope Hunter
DATE:8 June 2021
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision under review to refuse the nomination.

Statement made on 8 June 2021 at 4:23pm
CATCHWORDS
MIGRATION – Employer Nomination – approval of nominated position – requests for extension of time – loss of the right to a hearing – Direct Entry Nomination – Office Manager – term of employment – financial capacity – genuine need – no other administrative staff – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 359C, 360, 363A
Migration Regulations 1994 (Cth), r 5.19
CASES
Hasran v MIAC [2010] FCAFC 40
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 5 September 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).
The applicant applied for approval on 17 August 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).
In this case, the applicant has applied for approval of a nomination, seeking to satisfy the criteria in the Direct Entry nomination stream, and nominated the position of Office Manager to work in their business, Tiwana Logistics.
The delegate refused the application on the basis that applicant’s nomination did not satisfy r.5.19(4)(h) of the Regulations because the applicant had not demonstrated to the satisfaction of the delegate the genuine need for the applicant to engage an Office Manager in their business.
The Tribunal received an application for review from the applicant on 10 September 2018. The applicant’s were represented in relation to the application for review by a registered migration agent.
On 17 March 2021, the Tribunal wrote to the applicant via their nominated representative and requested that the applicant provide information to the Tribunal pursuant to s.359(2) of the Act, in writing demonstrating that the business currently met all relevant criteria in r.5.19(2) and (4) of the Regulations, including but not limited to, the criteria that the Department had found was not met. The Tribunal requested that the information be provided by 31 March 2021, and advised that an extension of time to respond could be requested, but that this would need to be made before 31 March 2021. 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 might proceed to make its decision on the available evidence without taking further steps to obtain the requested information.
On 30 March 2021, the Tribunal received a request from the representative of the applicant for additional time to provide information, as they had been unable to contact the applicant. The Tribunal replied in writing and granted an extension to 14 April 2021.
On 13 April 2021, the Tribunal received another request from the representative for the applicant for additional time to provide information because they had been unsuccessful in their numerous attempts to contact the applicant and obtain instructions. The Tribunal replied in writing and granted the requested extension of time to 28 April 2021.
On 27 April 2021, the Tribunal received a further request from the representative for the applicant for additional time to provide information because they remained unsuccessful in their numerous attempts to contact the applicant and obtain instructions. The Tribunal replied in writing and granted an extension of time to 5 May 2021.
On 4 May 2021, a further request was received from the representative of the applicant for an extension of time to provide information, as they remained unsuccessful in attempts to contact the applicant. On 6 May 2021, the Tribunal replied in writing and advised that no further request would be granted.
As the applicant had not provided information within the extended time requested, 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: Hasran v MIAC [2010] FCAFC 40.
The Tribunal has already provided three extensions of time applicant to provide the requested information and submissions. In each letter extending this time the applicant was also put on notice that that if they failed to provide information within the nominated time this could lead to the loss of its right to appear. The requests for extension of time arose because the representative had been unable despite repeated numerous attempts to contact the applicant over a period of more than 6 weeks. In these circumstances the Tribunal considered that it had already allowed reasonable extensions and the information presented did not demonstrate that a response would be forthcoming if it further adjourned the application to under s.363(1)(b) of the Act. The Tribunal has also considered in the circumstances of this case, whether the applicant had a fair opportunity to provide the relevant information or documents already, and the fact that the nomination was refused by the Department on 5 September 2018. The Tribunal observes that at the time the information was first requested the applicant has been aware for more than 30 months of the reason for the refusal of the nomination application. In the circumstances the Tribunal considers that the applicant has had sufficient time to address the central issues arising from the application for review.
Accordingly, the Tribunal has determined to proceed to a decision on the review without taking further action to obtain the information in accordance with s.359C of the Act.
For the following reasons, the Tribunal has decided to affirm the decision under review to refuse the nomination.
CONSIDERATION OF 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 r.5.19(4) of the Regulations, which is extracted in the attachment to this decision.
The Tribunal’s letter to the applicant dated 17 March 2021 invited them to provide all updated and current information regarding the business of the company relevant to the requirements of r.5.19(4). As the applicant did not provide the requested information, or any other information, the Tribunal has no relevant and up to date information regarding the applicant’s business operations and its ability to satisfy the requirements for approval of the nomination application. For the nomination to be approved, all the requirements of r. 5.19(4) must be met. The Tribunal is not satisfied that the applicant meets several of the requirements for the approval.
Term of employment of the visa holder: r.5.19(4)(d)
Regulation 5.19(4)(d) requires the nominee to be employed in the nominated position for at least 2 years full time, and the terms and conditions of that employment do not expressly exclude the possibility of an extension.
The applicant has not provided any of the requested current and up to date information about the financial capacity of the business and its ongoing trading operations. Without limiting the type of information, the Tribunal suggested examples of information that could be provided, including tax returns and business activity statements, financial statements for the most recent two years and current employment contract or letter of engagement for the nominee. In the circumstances, and in the absence of any current and up to date information, the Tribunal is unable to be satisfied at the time of this decision that the applicant’s business is continuing to operate, has the financial capacity and will employ the nominee in the nominated position of Office Manger on a full time basis for at least two years.
Accordingly, the requirement in r.5.19(4)(d) is not met.
Tasks of the position, genuine need for the position and training requirements r.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; 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.
The delegate in this matter refused the nomination on the basis that r.5.19(4)(h)(ii)(B) was not met as the applicant had not demonstrated that there was a genuine need for it to employ the nominee as a paid employee in the position of Office Manager, to work in the position under the applicant’s control.
In their decision the delegate raised concerns in their decision about the tasks of the position as set out in the nominee’s employment contract and as set out if proposed recruitment advertising for the position. It was noted that not until the Department had requested further information to support the application, that the tasks were updated to align more closely with the ANZSCO position description of Office Manager. The applicant provided information to the Department that the position had previously been filled by a director of the applicant and as the business workload had increased they could no longer cover multiple roles. In the absence of any up to date information about the business or its financial performance, the Tribunal, is unable to be satisfied that the applicant has demonstrated that there is a genuine need in the business for the services of a full-time Office Manager, particularly when it had no other administrative staff. The Tribunal also required further information to be satisfied that in the role the nominee undertakes managerial and not lower level administrative support task consistent in the nominated occupation. Without up to date information from the applicant, the Tribunal cannot be satisfied that that the applicant’s business has expanded or even that the business operations are ongoing. Consequently it is not demonstrated that the applicant can engage the nominee in tasks consistent with the occupation or that it has identified that there is a genuine need to engage the nominee in a full time position under the applicant’s direct control.
On the material before it, the Tribunal is also not satisfied that the applicant has met the requirement in r.5.19(4)(h)(ii)(B).
For the above reasons the Tribunal is not satisfied that the applicant meets the requirements of r.5.19(4) of the Regulations.
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
The Tribunal affirms the decision under review to refuse the nomination.
Penelope Hunter
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).

[2021] AATA 2787

8 June 2021

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Immigration

Administrative Law

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Judicial Review

Statutory Construction

Procedural Fairness

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