TMA Solutions Australia Pty Ltd (Migration)

[2018] AATA 5099

TMA Solutions Australia Pty Ltd (Migration) [2018] AATA 5099 (31 December 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  TMA Solutions Australia Pty Ltd

CASE NUMBER:  1708311

DIBP REFERENCE(S):  BCC2016/2275625

MEMBER:Cathrine Burnett-Wake

DATE:31 December 2018

PLACE OF DECISION:  Melbourne

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

Statement made on 31 July 2018 at 9:30am

CATCHWORDS
Migration – Nomination refusal – Temporary Residence Transition nomination stream – Café or Restaurant Manager – Financial capacity to employ the nominee on a full time basis in the position for at least two years – Applicant failed to respond to Tribunal request within the prescribed period – Decision under review affirmed

LEGISLATION
Migration Act 1958, ss 140GB, 245AR, 359, 363
Migration Regulations 1994, r 5.19

CASES
Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617
Kaur v Minister for Immigration and Border Protection [2014] FCA 915
Manna v Minister for Immigration and Citizenship [2012] FMCA 28
Minister for Immigration and Citizenship v Li [2013] HCA 18
Minister for Immigration and Border Protection v Singh [2014] FCAFC 1
Yang v MIAC [2010] FMCA 890

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 28 March 2017 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 6 July 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 has applied for approval of a nomination, seeking to satisfy the criteria in the Temporary Residence Transition nomination stream.

4. The delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19(3)(d)(i) of the Regulations. The delegate stated in their decision:

   ‘On the basis of the evidence currently before me, the business has not demonstrated the financial capacity to be able to pay the full-time salary for the nomination position for at least 2 years. Therefore, I find that the appointment will not provide the employee with full-time employment for at least 2 years.’

5. On 26 June 2018, the Tribunal wrote to the applicant through their representative. The letter invited the applicant to provide information to the Tribunal pursuant to s.359(2) of the Act. Specifically, the Tribunal invited information to be provided demonstrating that the business currently met all relevant criteria in r.5.19(3), including but not limited to, the particular criteria that the Department had found were not met. The Tribunal provided a copy of r.5.19(3) for reference. The Tribunal requested that the information be provided by 10 July 2018, noting that an extension of time to respond could be requested but that this would need to be made by 10 July 2018. Finally, the Tribunal advised the applicant that if the requested information was not received by the due date (or by the extended due date, if an extension of time was requested and granted), then the entitlement to appear at the Tribunal hearing would be lost and the Tribunal might proceed to make its decision on the available evidence without taking further steps to obtain the requested information.

6. The applicant did not respond to the request to provide information.

7. As the applicant failed to respond within the prescribed period, s.359C(1) applies and pursuant to s.360(3), the applicant is not entitled to appear before the Tribunal. The Tribunal has no power to permit them to appear: see Yang v MIAC [2010] FMCA 890.

8. The Tribunal has given consideration to whether it should adjourn the review under subsection 363(1)(b) of the Act to allow the applicant additional time in which to provide further evidence to support the review application.

9. In doing so, the Tribunal has taken into account the decisions in Huo v Minister for Immigration and Multicultural Affairs[1] and Manna v Minister for Immigration and Citizenship[2] where the Courts have held that the Tribunal is not required to indefinitely defer its decision-making processes. It has also had regard to the decision in Minister for Immigration and Citizenship v Li[3] regarding the reasonableness of any request for an adjournment, and the Full Federal Court decision in Minister for Immigration and Border Protection v Singh[4] which considered this issue, as well as the more recent decision in Kaur v Minister for Immigration and Border Protection[5] where analogous issues were discussed.

   [1] [2002] FCA 617

   [2] [2012] FMCA 28

   [3] [2013] HCA 18 (8 May 2013)

   [4] [2014] FCAFC 1 (4 February 2014)

   [5] [2014] FCA 915 (28 August 2014)

10. The Tribunal considered whether, in the circumstances of this case, the information that the applicant meets the requirements in regulation 5.19(3) of the Migration Regulations is likely to be forthcoming and whether the applicant has 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 had regard to the fact that the application was refused by the Department on 28 March 2017 because the delegate concluded that the applicant had not demonstrated it had financial capacity to offer full time employment for at least 2 years to the nominated position therefore did not meet the requirements of sub-regulation 5.19(3)(d)(i).  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 approximately 16 months of the reasons for the nomination refusal.

12. In these circumstances, and for the reasons set out in this decision record, the Tribunal considers that 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 nominating business meets the requirements of regulation 5.19(3).  The Tribunal is not disposed to delaying making a decision indefinitely.

13. Accordingly, the Tribunal has decided not to exercise its discretion under subsection 363(1)(b) of the Act to adjourn the review any further to allow the applicant more time in which to demonstrate that the nominating business meets the requirements of Regulation 5.19(3).

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) only applies to certain nominees (those described in r.5.19(3)(c)(i)). For this class of person, the regulations require that the nominee will be employed on a full time basis for at least 2 years on terms that do not expressly preclude the possibility of an extension.

17. According to the primary decision record submitted to the Tribunal with the review application, the applicant failed to provide sufficient evidence of its financial capacity to employ the nominated person on a full time basis for at least two years.

18. The primary application form states the proposed base salary as $88,000. The application form also states that there are two employees.

19. At the time of review application the applicant provided a statement which outlines that TMA Solutions Australia Pty Ltd has the financial capacity to pay the fulltime salary for the nominated position for at least 2 years on the basis that is a wholly owned subsidiary of TMA Vietnam who will support the Australian subsidiary financially as its role in Australia is as a ‘Cost Centre’ not a ‘Revenue Centre’ within its global structure. What appears to be Vietnamese company tax returns have been provided for the 2013, 2014 and 2015 financial years for Tuong Minh Service Private Enterprise. The Tribunal attributes little weight to these documents, as it is unable to establish the ownership link between TMA Solutions Australia Pty Ltd and this Vietnamese company. Further, there is no verifiable evidence before the Tribunal that these documents have been submitted to the Vietnamese authorities. In addition, there is no evidence that there is a formal arrangement between the parent company and the nominator regarding the claimed financial support. Finally, these documents are three years old, and do not provide a current overview of the financial capacity of the claimed parent company to support the nominator.

20. The applicant has not provided sufficient evidence of its financial capacity to employ the nominated person on a full time basis for at least two years. The applicant, at the time of primary application, provided Australian financial statements for the 2014 and 2015 financial years, which show losses without any satisfactory explanation of why they have occurred or how the company is in a financial position to counteract the losses and pay the proposed nominee’s salary.

21. The Tribunal wrote to the applicant under subsection 359(2) of the Act inviting the applicant to provide information in writing demonstrating that the nominating business meets all the requirements of the criteria in regulation 5.19(3) of the Migration Regulations. The applicant has failed to do so. The Tribunal has no contemporary information before it concerning the financial capacity of the nominating business to pay the nominee's salary.

22. Based on the evidence before me, I am not satisfied that the nominating business has demonstrated its financial capacity to pay the nominated full time salary for the nominated position of a Software Engineer (ANZSCO 261313) for at least 2 years. As such, the applicant does not meet the requirements of regulation 5.19(3)(d)(i).

23. As the Tribunal has found the applicant does not meet r.5.19(3)(d)(i) it is not required to consider the rest of the requirements as set out in r.5.19(3).

24. 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.

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

    Cathrine Burnett-Wake
    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.