THE TRUSTEE FOR PANPAL UNIT TRUST (Migration) - [2020] AATA 4050

THE TRUSTEE FOR PANPAL UNIT TRUST (Migration) [2020] AATA 4050 (28 September 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  THE TRUSTEE FOR PANPAL UNIT TRUST
CASE NUMBER:  1812064
HOME AFFAIRS REFERENCE(S):          BCC2016/2875927
MEMBER:R. Skaros
DATE:28 September 2020
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision under review to refuse the nomination.

Statement made on 28 September 2020 at 9:11am
CATCHWORDS
MIGRATION – application for approval of nomination of position – genuine need for position – scope of responsibility and level of authority – no response from applicant to tribunal’s invitation to provide current information – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 359(2), 359C, 360(3), 363A
Migration Regulations 1994 (Cth), r 5.19(4)(h)(ii)(B)
CASE
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 6 April 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 30 August 2016 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 r.5.19(4)(h)(ii)(B) of the Regulations because they were not satisfied there was a genuine need to employ the nominee in the position.
On 21 August 2020 the Tribunal wrote to the review applicant pursuant to s.359(2) of the Migration Act 1958 (the Act), inviting the review applicant to provide updated and current information about the various requirements in rr.5.19(2) and (4). The letter also advised that, in order for the nomination of a position to be approved, the Tribunal must be satisfied that all of the relevant criteria in r.5.19 are met at the time of its decision.
The invitation was sent to the last email address provided in connection with the review and advised that, if the information was not provided in writing by 4 September 2020 the Tribunal may make a decision on the review without taking further steps to obtain the information and the review applicant would lose any entitlement they might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.
On 22 September 2020, after the prescribed period to provide a response had passed, the applicant’s nominated representative advised the Tribunal that they had not been able to contact the applicant. They did not provide any of the information requested in the s.359(2) letter or otherwise indicate that any further information would be forthcoming.
The review applicant has not provided the information within the prescribed period and no extension has been requested or granted. In these circumstances, s.359C of the Act 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.
The Tribunal is satisfied that the invitation to provide information was sent to the correct email. The invitation was not returned to sender as undeliverable mail, indeed the correspondence from the applicant’s representative indicated that it was received. To date, the requested information has not been provided, the applicant’s representative advised they had not been able to contact the applicant, and nor has the applicant contacted the Tribunal or otherwise indicated that the information is forthcoming. The Tribunal is not required to delay indefinitely making its decision. In the circumstances, the Tribunal has decided to proceed to a decision without taking further steps to obtain the information.
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), which is extracted in the attachment to this decision. For the nomination to be approved, all the requirements must be met.
The Tribunal’s letter to the applicant of 21 August 2020 invited the applicant to provide updated and current information about all the relevant requirements in r.5.19. It also advised that, for the nomination to be approved, the Tribunal must be satisfied that all of the relevant criteria are met at the time of its decision. As stated above, no updated and current information about the applicant or its business has been received. As the applicant has not provided the information requested, the Tribunal is unable to be satisfied that at the time of this decision the applicant meets the requirements for approval of the nomination in the Direct Entry Nomination stream.
In this case the applicant is a restaurant trading as Pancakes at Carillon and they nominated the position of Café or Restaurant Manager (ANZSCO 141111). The delegate was not satisfied on the evidence that the nominee had the full scope of responsibility and level of authority required to control and organise all aspects in the overall management of the restaurant and was not satisfied that the applicant demonstrated a genuine need to employee a paid employee in the nominated position. As such the delegate refused the nomination on the basis that the applicant did not meet r.5.19(4)(h)(ii)(B).
The Tribunal invited the applicant to provide updated and current information about a range of matters, including the need to employ the nominee in the nominated position. Without limiting the type of information that could be provided, the Tribunal suggested examples of information that could be provided, including local job advertisements and a Regional Certifying Body’s certificate issued to the applicant in respect of the position. The applicant did not provide the requested information to the Tribunal.
In the absence of current information, the Tribunal is unable to be satisfied that, at the time of its decision, there is a genuine need to employ a paid employee in the nominated position. Accordingly, the Tribunal is not satisfied that r.5.19(4)(h)(ii)(B) is met.
The applicant was also invited to provide updated and current information about its recent or proposed training expenditure. Without limiting the type of information that could be provided, the Tribunal suggested examples of information and/or documents that the applicant could provide, including invoices or contracts for employee training, a training program that included a course outline and identified increased work competencies, or records of investment in certain industry training funds or recognised industry bodies. No response has been received to the invitation to provide information.
In the circumstances, the Tribunal is also unable to be satisfied that, at the time of its decision, the specified training requirements have been met. Accordingly, the Tribunal is not satisfied that r.5.19(4)(h)(i)(B) is met. As the alternative requirements in r.5.19(4)(h)(i) or (ii) are not met, the requirement in r.5.19(4)(h) is not met.
The applicant was also invited to provide current information about its financial capacity to employ the nominee in the nominated position for at least two years full time as required by r.5.19(4)(d). Without limiting the type of information that could be provided, the Tribunal suggested examples of information that could be provided, including tax returns and business activity statements, financial statements for the most recent two financial years and a current employment contract or letter of engagement. As stated above, the requested information was not provided.
The applicant has not provided any current information about its financial capacity to comply with the requirements to provide the nominee with two years of full time employment. In the circumstances, the Tribunal is unable to be satisfied that, at the time of its decision, the applicant will employ the nominee on a full time basis in the position for at least two years. Accordingly, the requirement in r.5.19(4)(d) is also not met.
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.
R. Skaros
Senior 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).