The Trustee For The Kakatiya Unit Trust (Migration)

[2022] AATA 4333

The Trustee For The Kakatiya Unit Trust (Migration) [2022] AATA 4333 (21 November 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  The Trustee For The Kakatiya Unit Trust

REPRESENTATIVE:  Mr Tariq Ameer (MARN: 1807556)

CASE NUMBER:  1926206

HOME AFFAIRS REFERENCE(S):          BCC2018/945502

MEMBER:Terrence Baxter

DATE:21 November 2022

PLACE OF DECISION:  Brisbane

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

Statement made on 21 November 2022 at 9:22am

CATCHWORDS
MIGRATION – nomination – Direct Entry nomination stream – Retail Manager – No response to the Tribunal’s invitation has been received – not satisfied that at the time of this decision the applicant is actively and lawfully operating a business in Australia –– decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 359, 360, 363
Migration Regulations 1994, rr 2.57, 5.19

CASES
Hasran v MIAC [2010] FCAFC 40

Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617
Manna v Minister for Immigration and Citizenship [2012] FMCA 28
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179
Vishnumolakala v Minister for Immigration [2006] FMCA 1209

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 29 August 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, The Trustee for the Kakatiya Unit Trust, applied for approval on 27 February 2018. The applicant nominated Mr Ashok Kumar Ayilam (the nominee) in the position of Retail Manager. 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 that the applicant’s nomination did not satisfy:

   a.reg 5.19(4)(h)(ii)(B) of the Regulations because the delegate found that the applicant had not demonstrated that there was a genuine need to employ the nominee as a paid employee to work in the position under the applicant’s direct control; and

   b.reg 5.19(4)(h)(ii)(C) of the Regulations because the delegate found that the applicant had not demonstrated that the position could not be filled by an Australian citizen or an Australian permanent resident living in the same local area is the nominated position.

5. The applicant lodged an application for review of the delegate’s decision with the Tribunal on 18 September 2019.

6. The applicant was represented in relation to the review by its registered migration agent Mr Tariq Ameer of Asia Pacific Group.

7. On 19 October 2022, the Tribunal wrote to the applicant pursuant to s 359(2) of the Migration Act 1958 (the Act) inviting it to provide current information addressing the relevant criteria under reg 5.19(2) and (4) of the Regulations. The invitation stated that the information should be provided to the Tribunal by 2 November 2022. The Tribunal is satisfied that this invitation was properly dispatched to the applicant’s email address. The applicant failed to provide the information within the prescribed time for responding to the invitation.

8. On 15 November 2022, the representative advised the Tribunal by email that they had tried to contact the applicant multiple times by emails, message and phone to confirm whether the applicant was willing to continue with the review application, but that they had not received a response from the applicant. No response to the Tribunal’s invitation has been received at the time of this decision, other than that notification from the representative.

9. Where a review applicant is invited to provide further information in accordance with s 359(2) of the Act, and fails to do so within the prescribed period, the Tribunal may make a decision on the review without taking any further action to obtain the information, according to s 359C(1) of the Act. In these circumstances, the review applicant is not entitled to appear before the Tribunal in accordance with s 360(3) of the Act. Of note, 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 the review applicant to appear before it, as outlined in the Full Federal Court authority in the matter of Hasran v MIAC [2010] FCAFC 40.

10. Although the applicant has not requested this, the Tribunal has also considered whether it would be appropriate to adjourn the application for review under s 363(1)(b) of the Act to allow the applicant additional time in which to provide evidence to support its application for review. In doing so, it has paid careful regard to the guidance in the decisions of Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617 and Manna v Minister for Immigration and Citizenship [2012] FMCA 28 where the Courts held that the Tribunal is not required to indefinitely defer its decision-making process.

11. The Tribunal has taken into account that the applicant has been aware since 29 August 2019 of the reasons for the nomination application being refused and also that the implications of not providing the information requested in the invitation from the Tribunal of 19 October 2022 were set out in that correspondence.

12. In these circumstances, the Tribunal considers that the applicant has had sufficient time in which to address the central issues arising in the application for review. Accordingly, the Tribunal has decided not to exercise its discretion under s 363(1)(b) of the Act to adjourn the review any further to allow the applicant more time in which to demonstrate that it meets the relevant criteria under reg 5.19(2) and (4) of the Regulations.

13. Following careful consideration, the Tribunal has decided to proceed to make a decision on this review without taking any further action to obtain the information referred to in the aforementioned invitation and having due regard to the documentary material before it.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

15. 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.

    Evidence presented to the Department

16. The applicant produced to the Department of Home Affairs (the Department) documents including:

    a.An ABN Lookup form in respect of the applicant’s ABN.

    b.A market salary submission and supporting evidence.

    c.Evidence of advertising for the position.

    d.An employment agreement and position description.

    e.The Trust Deed of the applicant trust.

    f.A business activity statement for the period from January 2017 to March 2017.

    g.A financial statement for the 2016 financial year.

    h.Taxation returns for the 2016 and 2017 financial years.

    i.A Form 1404 issued by the Regional Certifying Body dated 14 June 2018.

    j.A submission from the applicant dated 7 March 2018.

    Evidence presented to the Tribunal

17. The applicant produced to the Tribunal:

    a.A copy of the delegate’s decision.

    b.The ABN Lookup form that had been provided to the Department.

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

18. 5.19(4)(b(i)) requires that the applicant is actively and lawfully operating a business in Australia. Regulation 5.19(4)(b(ii)) requires that the applicant directly operates the business. Regulation

19. The Tribunal has considered the Department’s policy on the issue of active operation. The Tribunal is not bound by the policy but the Tribunal notes the finding of Brennan J in Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179 that the Tribunal should adopt the following practice: “When the Tribunal is reviewing the exercise of a discretionary power reposed in a Minister, and the Minister has adopted a general policy to guide him in the exercise of the power, the Tribunal will ordinarily apply that policy in reviewing the decision, unless the policy is unlawful or unless its application tends to produce an unjust decision in the circumstances of the particular case”.

20. The Tribunal notes the comments of the Court in Vishnumolakala v Minister for Immigration [2006] FMCA 1209 at [27] that the policy is no more than an advisory administrative guide to delegates in relation to their application of the legislation, and that, as a matter of law, it could have no higher status. The Tribunal finds that the same rule applies to the Tribunal’s consideration of the policy. However, the Tribunal agrees that the matters set out in the policy for consideration when assessing this requirement are appropriate and considers that it is reasonably open to the Tribunal to assess the requirement having regard to those matters.

21. The policy states that a business that has been actively operating for a period of more than 12 months should be able to provide appropriate financial documentation to support their claims of active operation. The applicant stated in its nomination application that it was established or commenced trading in Australia on 21 January 2011. The policy states that such businesses should be able to submit a balance sheet for the most recently concluded fiscal year (with comparative figures for the previous fiscal year) and a profit and loss statement (statement of performance) for the most recently concluded fiscal year, with comparative figures for the previous fiscal year or business tax returns for the most recently concluded fiscal year.

22. In the Tribunal’s invitation to provide information dated 19 October 2022, the applicant was advised as follows:           

    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 of the Regulations are met at the time of its decision. As the application for nomination was made under the Direct Entry nomination stream, the relevant criteria are in rr.5.19(2) and (4) of the Regulations.

23. The applicant produced to the Department one set of financial statements for the 2016 financial year and taxation returns for the 2016 and 2017 financial years. The only business activity statement produced by the applicant was for the quarter ending on 31 March 2017. The ABN Lookup form for the applicant’s ABN, a copy of which was provided to the Department and the Tribunal, was dated 27 February 2018. The applicant has not produced to the Tribunal any contemporary financial statements regarding its business activities, or taxation returns.

24. The nomination application states that the company Cuius Pty Ltd is the trustee of the trust. The Department’s policy states that, in assessing the requirement for lawful operation for a company, the decision maker should be satisfied that the registered name of the applicant as indicated in the nomination application is the name that is registered with ASIC. The invitation issued pursuant to s 359(2) of the Act invited the applicant to provide current and historical evidence about the company, such as an ASIC current and historical extract. No such evidence has been provided to the Tribunal.

25. Having regard to the lack of contemporary evidence before the Tribunal, bearing in mind that the applicant has failed to respond to the invitation issued pursuant to s 359(2) of the Act, the Tribunal is not satisfied that at the time of this decision the applicant is actively and lawfully operating a business in Australia. The Tribunal finds that the applicant does not satisfy the requirements of reg 5.19(4)(b)(i).

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

27. 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

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

    Terrence Baxter
    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 an identified person, as 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)       all 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;

    (AA)there is a genuine need for the nominator to employ the person identified under subparagraph (a)(ii), as a paid employee, to work in the position under the nominator’s direct control;

    (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 the person identified under subparagraph (a)(ii), as 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).