The Trustee for the Desi Family Trust (Migration)

[2020] AATA 4514

The Trustee for the Desi Family Trust (Migration) [2020] AATA 4514 (23 October 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  The Trustee for the Desi Family Trust

CASE NUMBER:  1809439

HOME AFFAIRS REFERENCE(S):          BCC2016/3357189

MEMBER:R. Skaros

DATE:23 October 2020

PLACE OF DECISION:  Sydney

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

Statement made on 23 October 2020 at 3:46pm

CATCHWORDS

MIGRATION – application for approval of nomination of position – active operation of business and financial capacity to pay full-time salary for two years – GST registration cancelled – no current information provided or response to invitation to comment – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), s 359(2), 359A, 359C, 360(3), 363A

Migration Regulations 1994 (Cth), r 5.19(3)(d)(i)

CASE

Hasran v MIAC [2010] FCAFC 40

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 Home Affairs on 21 March 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 10 October 2016, seeking to satisfy the criteria in the Temporary Residence Transition Nomination stream. The delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19(3)(d)(i) because the delegate was not satisfied that the business had the financial capacity to pay the full-time salary for the nominated position for at least 2 years. The applicant provided a copy of the delegate’s decision record to the Tribunal.

3. On 11 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 (3). 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.

4. 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 25 August 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.

5. On 23 August 2020 the applicant requested an extension of time to respond to the invitation. The applicant indicated that they had been unable to get their financial information together due to the COVID-19 pandemic and sought until 24 October 2020 to provide the information.

6. In all of the circumstances, the Tribunal considered it reasonable for the applicant to provide the information by 22 September 2020. In a letter dated 24 August 2020 the Tribunal advised the applicant that if the information was not provided by 22 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.

7. On 21 September 2020 the Tribunal received a further request for an extension of time to provide the information, which was again based on circumstances arising out of COVID-19. The applicant did not request a particular time frame in which to provide the documents.

8. On 23 September the Tribunal advised the applicant that the request had been granted and that the information was now due by 7 October 2020. The applicant was advised that if the material was not provided by the due date 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.

9. On the same day, 23 September 2020, the Tribunal wrote to the applicant pursuant to s.359A of the Act inviting the applicant to comment on or respond to certain information which would, subject to any comments or response by the applicant, be the reason, or a part of the reason, for affirming the decision under review.

10. 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 7 October 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. The

11. The review applicant has not provided the information requested in the Tribunal’s s.359(2) letter within the period as extended. Nor have they responded to the s.359A letter within the prescribed period and no extension has been requested or granted in relation to that letter.

12. 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.

13. The Tribunal is satisfied that the Tribunal’s correspondence was sent to the correct email. The s.359(2) invitation was not returned to sender as undeliverable mail and indeed the applicant’s correspondence indicates it was received. The s.359A letter was not returned to the sender as undeliverable mail.

14. To date, the requested information and comments have not been provided and the applicant has not made any contact with the Tribunal to indicate that the information or comments on the adverse information are forthcoming. The Tribunal is not required to delay indefinitely making its decision. In the circumstances, the Tribunal has decided to proceed to decision without taking further steps to obtain the information.

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.

17. Relevantly, r.5.19(3)(b) requires, in part, that the nominator is actively and lawfully operating a business in Australia, and r.519(3)(d) requires that the nominee will be employed on a full-time basis in the position for at least 2 years and that the terms and conditions of that employment will not include an express exclusion of the possibility of extending the employment.

18. In this case, the applicant nominated the occupation of Motor Mechanic (General) (ANZSCO 321211). The delegate refused the nomination on the basis that r.5.19(3)(d)(i) was not met because they were not satisfied that the nominee would be employed full time in the position for at least 2 years.

19. The Tribunal’s s.359(2) letter to the applicant of 11 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.

20. This letter invited the applicant to provide updated and current information about a range of matters, including evidence that it is directly operating an active and lawful business in Australia, information regarding the business’ financial circumstances, and evidence relating to the roles, duties and terms and conditions of employment for the nominated position.

21. 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 ASIC and business registration, tax returns, and business activity and financial statements for the most recent two financial years, a job description for the nominated position and a current employment contract or letter of engagement. As stated above, the applicant did not provide the requested information.

22. The Tribunal obtained information from the Australian Business Register that the applicant’s GST registration was cancelled on 1 July 2018. In the letter dated 23 September 2020, the Tribunal advised the applicant that this information was before the Tribunal, and indicated this was relevant to the Tribunal’s assessment of whether the applicant is actively operating a business in Australia as required by r.5.19(3)(b) and whether they had the financial capacity to employ the nominee on a full-time basis in the nominated position for at least two years and on terms that do not expressly preclude the possibility of an extension as required by r.5.19(3)(d).

23. The applicant was advised that if the Tribunal were to rely on this information they may not be satisfied that, at the time of decision, the applicant actively and lawfully operating a business in Australia or that they will employ the nominee on a full-time basis in the position for at least two years, and that if the Tribunal was not satisfied as to these requirements, the nomination could not be approved. The applicant was invited to provide a comment or response to this information but did not do so.

24. Information from the Australian Business Register indicates that the applicants GST registration was cancelled on 1 July 2018. This information suggests that the applicant may not be actively and lawfully operating a business in Australia and raises the concern that the applicant may not able to provide the nominee with two years of full-time employment, as nominated, in the terms described in r.5.19(3)(d). Moreover, the Tribunal notes that the applicant has not otherwise provided any current or updated information to support that it is in fact actively operating a business in Australia, or that it has the financial capacity to comply with the requirements to provide the nominee with two years of full-time employment.

25. On the evidence before it, the Tribunal is not satisfied at the time of its decision, that the applicant is actively and lawfully operating a business in Australia. Accordingly, the requirement in r.5.19(3)(b)(ii) is not met and therefore r.5.19(3)(b) is not met.

26. Further, the Tribunal unable to be satisfied that the applicant will employ the nominee on a full time basis in the position for at least two years or that the terms and conditions of the person’s employment will not include an express exclusion of the possibility of extending the period of employment. Accordingly, the requirement in r.5.19(3)(d) is not satisfied.

27. 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

28. 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.

    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.