The Trustee For The Hakbilir Family Trust (Migration)

[2022] AATA 1088

The Trustee For The Hakbilir Family Trust (Migration) [2022] AATA 1088 (22 April 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  The Trustee For The Hakbilir Family Trust

CASE NUMBER:  1902570

HOME AFFAIRS REFERENCE(S):          BCC2017/718275

MEMBER:De-Anne Kelly

DATE:22 April 2022

PLACE OF DECISION:  Brisbane

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

Statement made on 22 April 2022 at 10:37am

CATCHWORDS
MIGRATION – application for approval of nomination of position – active and lawfully operating business – no response to tribunal’s invitation to provide updated and current information – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 359(2), 359C, 360(3), 375
Migration Regulations 1994 (Cth), r 5.19(4)(b)(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 January 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).

2. The applicant applied for approval on 22 February 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).

3. In this case, the applicant has applied for approval of a nomination, seeking to satisfy the criteria in the Direct Entry nomination stream.

4. The delegate refused the application on the basis the applicant’s nomination did not satisfy reg 5.19(4)(b)(i) of the Regulations because the nominator was not actively and lawfully operating a business in Australia as the nominating entity had apparently been de-registered for GST.

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

   Section 375 certificate

6. On 6 April 2022, the Tribunal wrote to the applicant at the email address provided on the review application and invited comment on the information in a s375 certificate and on whether it was a valid certificate. The Tribunal gave the gist of the information in the certificate which was related to internal processes of the Department and not material to a decision on this matter. The applicant was invited to respond by 20 April 2022 however to date no response has been received.

7. The Tribunal considers it is reasonable to move to a decision on this matter.

   Tribunal invitation to provide information

8. On 17 February 2022 the Tribunal invited the applicant under s.359(2) of the Migration Act 1958 (the Act) to provide updated and current information that demonstrated that the nomination met all of the criteria in r.5.19 of the Regulations at the time of its decision.

9. The combined invitation also specifically stated that the Tribunal must receive the applicant’s comments / response and the requested information by 3 March 2022, or within the period allowed for this purpose, or it would lose any entitlement it might otherwise have under the Act to appear before the Tribunal.  The invitation was sent via the email address provided on the review application form.

10. However, the applicant did not provide its requested information, within the prescribed period and did not request an extension of time.

11. 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.

12. To date, the requested information has not been provided and the applicant has not contacted the Tribunal to indicate 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 decision without taking further steps to obtain the information.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

14. 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.

15. On 22 February 2017, the applicant The Trustee for the Hakbilir Family Trust trading as Sunshine Kebabs lodged a Regional Sponsored Migration Scheme 187 subclass employer nomination in the Direct Entry Stream for the position of  Retail Manager to be employed in Bundaberg Qld 4670 in favour of Mr Sharanpreet Singh.

    Nominator is actively and lawfully operating a business in Australia: reg 5.19(4)(b)

16. Regulation 5.19(4)(b) requires that the applicant is actively, lawfully and directly operating a business in Australia.

17. In the invitation to provide information the applicant was asked to provide an ASIC current and historical extract and information to demonstrate it was actively and lawfully operating a business including its financial circumstances. The Tribunal would expect recent financial statements, tax returns, bank statements or BAS statements to be submitted as evidence of active operation of a business.

18. However, no response has been received to this invitation and the Tribunal has noted that the ABN 76145461386 which was used to identify the nominator in the employer nomination application is not currently registered for GST purposes, a factor which was noted by the delegate.

19. The Tribunal cannot be satisfied on the evidence that the applicant is actively, lawfully and directly operating a business in Australia.

20. Accordingly, the requirement in reg 5.19(4)(b) is not met.

21. 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

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

    De-Anne Kelly
    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).