The Trustee for the T and E Wang Family Trust (Migration)

[2019] AATA 2979

The Trustee for the T and E Wang Family Trust (Migration) [2019] AATA 2979 (3 June 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  The Trustee for the T and E Wang Family Trust

CASE NUMBER:  1706785

DIBP REFERENCE(S):  BCC2016/3169706

MEMBER:Karen McNamara

DATE:3 June 2019

PLACE OF DECISION:  Sydney

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

Statement made on 03 June 2019 at 9:43am

CATCHWORDS
MIGRATION – nomination – Temporary Residence Transition stream – Program or Project Administrator – evidence of financial capacity to employ nominee full-time for two years not provided – evidence training requirements met not provided – Tribunal attempted to contact applicant – no response – fair opportunity to respond – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 359, 360, 363,
Migration Regulations 1994 (Cth), r 5.19

CASES
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 Immigration on 14 March 2017 to reject the application by The Trustee for the T&E Wang Family Trust (the applicant) 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 23 September 2016. The requirements for the approval of the nomination of a position in Australia are found in r.5.19 of the Regulations which contains two alternative streams: a Temporary Residence Transition nomination (r.5.19(3)) stream and a Direct Entry nomination (r.5.19(4)) stream. If the application is made in accordance with r.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: r.5.19(5).

3. In this case, the applicant applied for approval of a nomination, seeking to satisfy the criteria in the Temporary Residence Transition nomination stream.

4. In the application form, the applicant identified that the nominee, Hongfei Wang would be employed in the occupation of Program or Project Administrator (ANZSCO 511112). The proposed salary is $54,000 per annum.

5. The delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19(3)(d)(i) of the Regulations because the applicant did not provide evidence to demonstrate the applicant’s financial capacity to employ the nominee on a full-time basis in the position for at least two years.

6. The delegate further found that the applicant did not satisfy r.5.19(3)(f) of the Regulations because the applicant had not provided evidence to demonstrate they had fulfilled commitments made related to meeting their training requirements during the period of their most recent approval as a standard business sponsor.

7. The applicant applied to the Tribunal on 1 April 2017 for review of the delegate’s decision.

8. On the 15 May 2019, the Tribunal wrote to the applicant pursuant to section 359(2) of the Act (dispatched by email to the authorised recipient), requesting the applicant to provide updated and current information that would assist to determine whether the criteria in          r. 5.19(2) & (3) of the Regulations were met. The applicant was advised if the information was not provided in writing by 29 May 2019, or if the applicant has not made a request for an extension of time in which to provide the information, the Tribunal may make a decision on the review without taking further steps to obtain the information, and further, the applicant would lose any entitlement it might otherwise have had under the Act, to appear before the Tribunal to give evidence and present arguments.

9. The Tribunal did not receive any response from or on behalf of the applicant at the date and time of this decision. In these circumstances, s.359C applies and pursuant to s.360(3), the applicant is not entitled to appear before the Tribunal. The effect of s.363A of the Act is, if a review applicant has no entitlement to a hearing, the Tribunal has no power to permit the applicant to appear: Hasran v MIAC [2010] FCAFC 40.

10. The Tribunal has considered whether this is an appropriate case for it to adjourn the review under s363(1)(b) of the Act, to allow the applicant additional time in which to provide evidence to support the review application. In this regard the Tribunal considered whether, in the circumstances of this case, evidence that the applicant meets all of the requirements of r.5.19(3) of the Regulations is likely to be forthcoming, whether the applicant had a fair opportunity to provide the relevant information or documents already and the significance of the information or documents to the applicant.

11. The Tribunal has regard to the fact that the nomination application was refused by the Department on 14 March 2017. The applicant submitted a copy of the primary decision record with the review application. As a result, the Tribunal observes that the applicant has been aware for over two years of the reasons for the nomination application refusal.

12. The Tribunal wrote to the applicant under s.359 (2) of the Act on 15 May 2019 inviting them to provide information in writing to demonstrate that the applicant meets the requirements of the criteria in r.19(3), including r.5.19(3)(d) and r.5.19(3)(f) of the Regulations. The applicant has failed to provide requested information within the prescribed period set for this purpose and nor has any request been received to extend the time to provide requested documentation.

13. In these circumstances, the Tribunal considers the applicant has had a fair opportunity to provide the relevant information and sufficient time to take steps to satisfy the regulatory criteria. The Tribunal notes that it is uncertain if and when the applicant will provide information in writing as to whether the applicant meets the requirements of r. 5.19(2) & (3).  The Tribunal has decided not to delay its decision any further. Accordingly, the Tribunal has decided not to exercise its discretion under subsection 363(1)(b) of the Act to adjourn the review any further. The Tribunal has determined to make a decision on the review without taking any further action to obtain the information in accordance with section 359C of the Act. In passing, the Tribunal notes that the applicant is not prevented from lodging a new nomination application with the Department.

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 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.

    Future employment of the visa holder: r.5.19(3)(d)

16. Regulation 5.19(3)(d) requires the nominee to be employed in the nominated position for at least 2 years full time, on terms that do not expressly exclude the possibility of an extension. 

17. The delegate noted on the decision (a copy which was provide to the Tribunal by the applicant) that “ The application form indicates the nominator employs 15 Australian citizen/permanent residents and 4 foreign nationals. The employer has not provided any evidence to indicate that they have the financial capacity to continue to meet all employment obligations in regards to employing the nominee on a full time basis for a period of at least 2 years.”

18. Based on the evidence before them, the delegate was not satisfied the applicant met r.5.19(3(d)(i), therefore the applicant did not meet regulation 5.19(3)(d).

19. The Tribunal has had regard to the information presently before it. The applicant has not provided financial statements or any form of evidence that will indicate the applicant’s financial capacity to provide for the person nominated, to be employed by the applicant on a fulltime basis in the position for two years.  

20. Given the above findings, the applicant does not meet the requirements of r.5.19 (3) (d) (i) of the Regulations.

21. Accordingly, the requirements in r.5.19(3)(d) of the Regulations are not met.

    Training commitments and obligations: r.5.19(3)(f)

22. Regulation 5.19(3)(f) requires the applicant to have fulfilled any commitments made relating to meeting training requirements, and complied with applicable obligations relating to training  requirements, during the period of the applicant’s most recent sponsorship approval. These requirements may be disregarded if it is reasonable to do so.

23. Based on the evidence before them the delegate found that the applicant failed to demonstrate that they had 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.

24. The delegate was not satisfied the applicant met r.5.19(3)(f)(i)(B). Since the applicant did not meet r.5.19(3)(f)(i)(B), the delegate found that the applicant did not meet r.5.19(3) (f) (i). In addition the delegate found that there was no reason identified to disregard r.5.19(3)(f)(i). Accordingly, the applicant did not meet regulation 5.19(3)(f).

25. The Tribunal finds that the period of the applicant’s most recent sponsorship approval was 12 April 2012 and that the nominator indicated a commitment to training benchmark “B”.  Based on the evidence before it, the Tribunal finds the applicant has not provided any evidence to support they have complied with their obligation to meet training benchmark ‘B’ during the sponsorship period.

26. The Tribunal therefore finds that the applicant does not meet r.5.19(3)(f)(i)(B), therefore not satisfying the requirements of r.5.19(3) (f) (i). In addition the Tribunal finds there is no reason identified to disregard r. 5.19(3)(f)(i).

27. Accordingly as the applicant has not satisfied r.5.19(3)(f)(i), the requirements of regulation 5.19(3)(f) are not met.

28. 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

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

    Karen McNamara
    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.