The Trustee for the Perkin Family Trust and the Trustee for the SHS Family Trust (Migration)

The Trustee for the Perkin Family Trust and the Trustee for the SHS Family Trust (Migration) [2022] AATA 3302 (23 September 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  The Trustee for the Perkin Family Trust and the Trustee for The SHS Family Trust and the
REPRESENTATIVE:  Mr Jeremy Arne Wei NG (MARN: 1682920)
CASE NUMBER:  1920327
HOME AFFAIRS REFERENCE(S):          BCC2017/1147832
MEMBER:Terrence Baxter
DATE:23 September 2022
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision under review to refuse the nomination.

Statement made on 23 September 2022 at 10:10am
CATCHWORDS
MIGRATION – application for approval of nomination of position – direct entry stream – resort manager – tasks of position and training requirements – no response to tribunal’s invitation to provide current information – no evidence that business actively and lawfully operating – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 359(2), 359C(1), 360(3), 363(1)(b), 363A
Migration Regulations 1994 (Cth), r 5.19(4)(b)(i), (h)(ii)(B), (D)
CASES
Hasran v MIAC [2010] FCAFC 40
Huo v MIMA [2002] FCA 617
Manna v MIAC [2012] FMCA 28
Re Drake and MIEA (No 2) [1979] AATA 179
Vishnumolakala v Minister for Immigration [2006] FMCA 1209
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 9 July 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).
The applicant applied for approval on 24 March 2017. The applicant nominated Ms Ying Yang (the nominee) in the position of Resort 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).
In this case, the applicant has applied for approval of a nomination, seeking to satisfy the criteria in the Direct Entry nomination stream.
The delegate refused the application on the basis that the applicant’s nomination did not satisfy:
a.reg 5.19(4)(h)(ii)(D) of the Regulations because the delegate found that the tasks to be performed by the nominee in the position did not correspond to the tasks of an occupation specified by the Minister in the relevant instrument, and
b.reg 5.19(4)(h)(i)(B) of the Regulations because the delegate found that the applicant had not established that it had met the requirements for the training of Australian citizens and Australian permanent residents specified in the relevant instrument or that it had an auditable plan for meeting those requirements.
The applicant lodged an application for review of the delegate’s decision with the Tribunal on 25 July 2019.
The applicant was represented in relation to the review by its registered migration agent Mr Jeremy Arne Wei Ng.
During the course of the review, the Tribunal received information that the agent’s Migration Agents Registration Authority (MARA) registration lapsed on 28 June 2022. The Tribunal contacted the agent by email on 27 July 2022 requiring that he provide information about any arrangements that may have been made for the applicant, having regard to the lapse of his registration. On the same day, the Tribunal contacted the applicant at its email address notified in the review application confirming the lapse of the agents MARA registration and advising that the applicant should contact the agent to discuss whether he was able to continue to provide assistance with the review application. In that correspondence, the Tribunal notified the applicant that while the agent continued to be the applicant’s authorised recipient for the review application, the Tribunal was required to continue to send all correspondence to the agent unless the applicant advised otherwise in writing.
On 17 August 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 Tribunal is satisfied that this invitation was properly dispatched to the applicant’s email address, which continued to be the email address of the agent. On 18 August 2022, the Tribunal forwarded a copy of that invitation to the applicant by post at its postal address notified in the review application. On 19 September 2022, that correspondence was returned to the Tribunal undelivered. The returned envelope was endorsed “Not at this address”.
The applicant failed to provide the information within the prescribed time for responding to the invitation. No response to that invitation has been received by the Tribunal at the time of this decision.
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.
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.
The Tribunal has taken into account that the applicant has been aware since 9 July 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 17 August 2022 were set out in that correspondence. In this case, the Tribunal has also taken into account that the postal correspondence to the applicant with the invitation has been returned. However, the Tribunal is satisfied that all reasonable attempts have been made to advise the applicant of the issue of that invitation.
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.
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.
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 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.
This matter is complicated by the fact that, in the nomination application, the applicant is named as “The Trustee for the Perkin Family Trust and the Trustee for the SHS Family Trust and the Trustee for the”. It appears that there was insufficient space in the application form for the full names of the applicants to be recorded. The registration identifier for the business is stated as ABN 13080068815.
Business activity statements provided to the Department for that ABN record that the entity trading with that ABN is the Trustee for the Perkin Family Trust and the Trustee for the SHS Family Trust and the Trustee for the Valentine Trust. The Tribunal finds that it was that partnership of trusts which applied for approval of the nomination.
Evidence presented to the Department
The applicant produced to the Department of Home Affairs (the Department) documents including:
a.An ABN Lookup form for the applicant’s ABN dated 7 March 2017.
b.Business activity statements for the 2016 calendar year and for the period from July 2017 to September 2017.
c.Internally generated profit and loss accounts for the 2016 and 2017 financial years.
d.An internally generated balance sheet and operation statement for the 2017 financial year.
e.An employment contract dated 1 March 2017.
f.A submission from the applicant regarding genuine need for the position dated 24 March 2017.
g.An advice from the Regional Certifying Body, Chamber of Commerce and Industry Queensland, Toowoomba dated 5 May 2017.
h.Evidence of payment of training expenses.
i.A Regional Sponsored Migration Scheme Decision Ready Checklist dated 13 April 2018.
Evidence presented to the Tribunal
The applicant produced to the Tribunal a copy of the delegate’s decision.
Nominator is actively and lawfully operating a business in Australia: reg 5.19(4)(b)
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
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”.
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.
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 1 October 2006. 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.
In the Tribunal’s invitation to provide information dated 17 August 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.
The applicant has produced to the Department only internally generated financial statements for the 2016 and 2017 financial years together with activity statements for the 2016 calendar year and the period from July 2017 to September 2017. The applicant has not produced to the Tribunal any contemporary financial statements regarding its business activities, or taxation returns.
The Tribunal has found that the nomination application was lodged by a partnership of three trusts. No evidence of the establishment of those trusts has been provided to either the Department or the Tribunal.
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).
Accordingly, the requirement in reg 5.19(4)(b) is not met.
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
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 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).

[2022] AATA 3302

23 September 2022

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