TRENDVIL PTY LTD ATF JAMES D HARWOOD TRUST (Migration)

[2017] AATA 210

TRENDVIL PTY LTD ATF JAMES D HARWOOD TRUST (Migration) [2017] AATA 210 (13 February 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Trendvil Pty Ltd ATF James D. Harwood Trust

CASE NUMBER:  1512882

DIBP REFERENCE(S):  BCC2015/440661

MEMBER:Danica Buljan

DATE:13 February 2017

PLACE OF DECISION:  Melbourne

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

Statement made on 13 February 2017 at 11:39am

CATCHWORDS
Migration – Nomination – Direct Entry Nomination stream – Corporate General Manager –           Genuine position – Training benchmarks – Tribunal request for information – No response –            Information now two years old

LEGISLATION

Migration Act 1958, ss 359(2), 360, 363A, 245AR(1)
Migration Regulations 1994, r 5.19, IMMI 13/030

CASES

Alimi v Minister for Immigration & Anor [2007] FMCA 1520
Chow v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1429

Durzi v Minister for Immigration and Multicultural and Indigenous Affairs2006] FCA 1767

Hasran v Minister for Immigration and Citizenship [2010] FCAFC 40

Lobo v Minister for Immigration & Multicultural & Indigenous Affairs[2003] FCAFC 168

M v Minister for Immigration and Multicultural Affairs (2006) 155 FCR 333
MIEA v Guo & Anor (1997) 191 CLR 559
Minister for Immigration and Multicultural Affairs v Sun (2005) 146 FCR 498
Moller v Minister for Immigration and Citizenship [2007] FMCA 168
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Sakhno v Minister for Immigration and Citizenship[2007] FMCA 1492
Singh v Minister for Immigration and Border Protection [2014] FCCA 1403
Visnumolakala v Minister for Immigration [2006] FMCA 1209

Woo v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1596

Yang v Minister for Immigration and Citizenship [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 4 September 2015 to reject the applicant’s application for approval of the nomination of a position in Australia under regulation 5.19 of the Migration Regulations 1994 (‘the Regulations’).

2. The applicant applied for approval of the position of a ‘Corporate General Manager’ (ANZSCO[1] Code 111211) on 10 February 2015.

   [1]     ANZSCO: Australian and New Zealand Standard Classification of Occupations, 29 March 2016

3. The requirements for the approval of the nomination of a position in Australia are found in regulation 5.19 of the Regulations, which contains two alternative streams: a Temporary Residence Transition nomination stream[2] and a Direct Entry nomination stream.[3] If the application is made in accordance with subregulation 5.19(2), and meets the requirements of either stream, then the application must be approved. However, the application must be refused if any of the requirements are not met.[4]

   [2]     Subregulation 5.19(3)

   [3]     Subregulation 5.19(4)    

   [4]     Subregulation 5.19(5)

4. In this case, the applicant has applied for approval of a nomination, seeking to satisfy the criteria in Direct Entry Nomination stream. The applicant identified the nominee as Ms Ying Xie.

5. The delegate refused the application on the basis the applicant’s nomination did not meet the requirements of paragraphs 5.19(4)(a) and (h). In particular, the delegate was not satisfied that the application for approval identified a need for the applicant, as the nominator, to employ a paid employee in the nominated position under its direct control for the purposes of subparagraph 5.19(4)(a)(ii). In addition, the delegate was not satisfied that the applicant met the relevant training benchmarks set for the purposes of paragraph 5.19(4)(h).

6. The applicant applied to the Tribunal on 20 September 2015 for review of the delegate's decision, and provided a copy of the primary decision with the review application.

7. The Tribunal has before it the departmental file[5] relating to the applicant. It has also had regard to the material referred to in the delegate's decision, and other material available to it from a range of sources.[6] 

   [5]     D1 – Departmental file BCC2015/440661, folio numbered 1-218

   [6]     T1 – Tribunal file 1512882, folio numbered 1-49

8. This matter was constituted to the Presiding Member on 11 January 2017.

9. The Tribunal wrote to the applicant under subsection 359(2) of the Act on 24 January 2017. Specifically, after setting out the background to the application, the Tribunal invited the applicant to provide updated and current information that demonstrated that the nomination met the criteria in regulation 5.19 of the Regulations when the Tribunal made its decision in 2017. This letter included a request for information that was relevant, but not limited, to paragraphs 5.19(4)(a) and (h), the grounds on which the delegate had refused the application.[7]

   [7]     T1, f.46-24

10. To assist the applicant’s response to this letter, the Tribunal included copies of regulation 5.19, Gazette Notices IMMI 13/030, 15/091 and 16/045, and ANZSCO Code 111211 (Corporate General Manager). The letter also stated that the Tribunal must receive the applicant’s response/comments and the requested information by 7 February 2017. The Tribunal notes that it sent its invitation to the last relevant address for service provided by the applicant in connection with the application for review.[8]

    [8]     T1, f.46         

11. However, the applicant did not provide the information requested under subsection 359(2) of the Act within the prescribed period. Nor did the applicant, or its representative, request an extension of time within the prescribed period in which to do so. In addition, at the time of decision, the applicant and/or its representative have not contacted the Tribunal any further about the application for review.

    The Applicant’s Loss of the Right to a Hearing

12. As a result, subsection 359C(1) of the Act applies and the Tribunal may make a decision on the review without taking any further action to obtain the information or the applicant’s comment or response.

13. In particular, as subsection 359C(1) applies to the applicant, subsection 360(3) states that it is not entitled to appear before the Tribunal. Under section 363A, the Tribunal does not have the power to permit a person to do something it, he or she is not entitled to do, unless a provision expressly provides otherwise. Section 360 does not provide otherwise.

14. In addition, the Courts have confirmed that where an applicant fails to provide the requested information within the prescribed period, section 363A of the Act precludes the Tribunal from offering an applicant a hearing.[9]

    [9]     See Singh v Minister for Immigration and Border Protection [2014] FCCA 1403 [32]-[39]; Yang v Minister for Immigration and Citizenship [2010] FMCA 890 at [40]; Hasran v Minister for Immigration and Citizenship [2010] FCAFC 40; M v Minister for Immigration and Multicultural Affairs (2006) 155 FCR 333; Minister for Immigration and Multicultural Affairs v Sun (2005) 146 FCR 498

15. Accordingly, as the applicant failed to give the information requested within the prescribed period, it has lost its right to appear before the Tribunal to give evidence and present arguments relating to the review application.

16. For the following reasons, the Tribunal has decided to affirm the decision under review to refuse the applicant’s application for approval of the nomination.

    CONSIDERATION OF CLAIMS AND EVIDENCE

17. 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 subregulation 5.19(4), which is set out in the attachment to this decision. In order for the nomination to be approved, the Tribunal must find that all the requirements in subregulation 5.19(4) are met.

    The application is compliant: paragraph 5.19(4)(a)

18. Paragraph 5.19(4)(a) requires that the application for approval must be in the approved form, must be accompanied by the prescribed fee and, where applicable, must include the required written certification relating to conduct that contravenes subsection 245AR(1). The application must also identify a need for the nominator to employ a paid employee to work in the position under their direct control.

19. In this case, the applicant lodged an application on approved Form 1395 (Internet)[10] and the prescribed fee accompanied it. In addition, as the application was lodged on 10 February 2015, the Tribunal finds that a written certification stating whether the nominator has engaged in conduct in relation to the nomination that contravenes subsection 245AR(1) is not required.

    [10]    D1, f.211-218

20. The applicant stated in its applicant that it needed to employ a ‘Corporate General Manager’ as a paid employee to work in the nominated position under the applicant/nominator’s control. It also nominated Ms Ying Xie (the nominee) for this purpose.

21. In relation to the requirements of paragraph 5.19(4)(a), the Tribunal notes that departmental policy states that the assessment of “the need for a paid employee” involves two steps. Firstly, establishing the need for an employee, in terms of a genuine vacancy for the nominated position and, secondly, ascertaining whether the relationship between the nominator and the nominee is that of employer and employee.

22. The Tribunal notes that whilst PAM3 may provide guidance, it is not bound to follow it.[11] In particular, the Courts have held that the PAM3 guidelines constitute no more than an administrative advisory guide to decision makers in relation to the application of the Act and Regulations, and that they are incapable of being elevated into legally necessary or relevant considerations. Indeed, there is judicial authority to the effect that the policy guidelines in PAM3 cannot go beyond the wording of the legislation, even where they are favourable to an applicant.[12]

    [11]    See Brennan, J. in Re Drake (No. 2) (1978-1980) 2 ALD 634

    [12]    See Chow v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1429, Lobo v Minister for Immigration & Multicultural & Indigenous Affairs[2003] FCAFC 168; Visnumolakala v Minister for Immigration [2006] FMCA 1209 Alimi v Minister for Immigration & Anor [2007] FMCA 1520; Durzi v Minister for Immigration and Multicultural and Indigenous Affairs2006] FCA 1767 at [49]; Moller v Minister for Immigration and Citizenship [2007] FMCA 168 at [14]; and Sakhno v Minister for Immigration and Citizenship[2007] FMCA 1492 (at [55])

23. Accordingly, although paragraph 5.19(4)(a) does not expressly state that the employer must have a “genuine” need for a paid employee, the Tribunal notes that the Macquarie Dictionary Online defines the word ‘genuine’ to mean to “being truly such; real; authentic; properly so called; sincere; free from pretence or affectation”.[13]

    [13]    - Accessed 10 February 2017, T1, f.47

24. As a result, the Tribunal feels that it is a reasonable starting point to consider whether there is a genuine vacancy for the nominated position when assessing the applicant’s ‘need’ for a ‘Corporate General Manager’ for the purposes of paragraph 5.19(4)(a).

25. In undertaking this assessment, the Tribunal is aware that the concept of ‘onus of proof’ is not appropriate to administrative inquiries and decision-making. On the other hand, the Courts have held that an applicant will have to supply the relevant facts of the individual case, in as much detail as is necessary to enable a decision maker to establish the relevant facts. As a result, a decisionmaker is not required to make the applicant’s case for it. Nor is the Tribunal required to accept uncritically any and all the claims an applicant puts forward.[14]

    [14]    See MIEA v Guo & Anor (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169‑70

26. The applicant included with its application copies of the employment contract it signed with the nominee on 2 February 2015[15] to employ her in the position of a fulltime ‘General Manager’ in its business, as well as a job description[16] setting out the responsibilities and duties of the nominated position. 

    [15]    D1, f.135-138

    [16]    D1, f.131-132

27. It also provided copies of its company and business name registrations[17], its monthly business activity statements from November 2013 to June 2014[18] and its 2012/13 and 2013/14 financial statements.[19]

    [17]    D1, f.199-205

    [18]    D1, f.139-159

    [19]    D1, f.160-198

28. In addition, the applicant also submitted evidence of its organisational chart[20], a submission (dated 10 February 2015[21]) regarding the nature of its business operations, and extracts from its company website.[22] In particular, the applicant provided details of its proposed commercial development in Sunshine North[23] and a copy of an associated, completed HIA[24] commercial contract with one of its clients for this project.[25] 

    [20]    D1, f.22-23

    [21]    D1, f.118-134

    [22]    D1, f.24-42

    [23]    D1, f.43-73.

    [24]    HIA: Housing Industry Association

    [25]    D1, f.75-117

29. Accordingly, the applicant identified set out the following reasons it needed a ‘General Manager’:

    ·The applicant felt that its commercial development in Sunshine North, when combined with the fact that it had commenced its operations outside Mildura, could “reasonably translate to the creation of a senior management position to manage its operations in the west of the State”;

    ·The company believed that there was great potential in selling properties to overseas buyers, particularly those  from China;

    ·There were opportunities for the applicant to work on projects that overseas investors either invested in or controlled;

    ·The applicant sourced many of its raw materials from China and needed an experienced manager with skills to negotiate reasonable prices and large projects so that it could expand its operations beyond Mildura;

    ·Based on its 2014 profit and loss statement the applicant had sufficient financial resources to support the hire of a ‘General Manager’;

    ·The employment of a professional manager would free up the existing directors’ time and would form part of the applicant’s succession plan; and

    ·The applicant had not been able to find suitably qualified and experienced local candidates for the nominated position, whereas the nominee’s profile and background met its selection criteria for the nominated position.[26]   

    [26]    D1, f.129-130 & 133-134

30. The Tribunal notes that at the time of its decision in 2017 much of the applicant’s information is approximately 2 years old. Accordingly, the Tribunal formally invited the applicant on 24 January 2017[27] to provide updated and current information that demonstrated that it had a need to employ a paid employee to work in the position of a ‘Corporate General Manager’ under its direct control.

    [27]    T1, f.46-24

31. However, the applicant and its representative did not respond to this invitation. Nor did they put forward any updated statement or submission, as set out in the Tribunal invitation, regarding these matters. Consequently, there is little in the evidence before the Tribunal to indicate that the applicant has a genuine vacancy for a ‘Corporate General Manager’ at the time of decision.

32. As a result, and based on the evidence before it, the Tribunal is not satisfied that the application identifies a need for the applicant as the nominator to employ a paid employee to work in the position under its direct control, as required by subparagraph 5.19(4)(a)(ii).

33. Therefore, the Tribunal finds that the applicant does not meet the requirements set out in paragraph 5.19(4)(a).

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

34. Paragraph 5.19(4)(b) requires that applicant is actively and lawfully operating a business in Australia. The applicant must also directly operate the business.

35. The applicant included with its application evidence of its ASIC company registration, as well as its business name registration.[28] It also submitted its 2012/13 and 2013/14 financial statements[29] and its monthly business activity statements from November 2013 to June 2014.[30]

    [28]    D1, f.199-205

    [29]    D1, f.160-198

    [30]    D1, f.139-159

36. The Tribunal accepts that this evidence reflects the applicant’s business operations in the period leading up to June 2014. However, more than 2 ½ years have passed since June 2014, and as discussed previously, the applicant has not provided any further evidence since June 2014 to confirm that it is actively, lawfully and directly operating a business in Australia.

37. As a result, the Tribunal is not satisfied that that the applicant is actively, lawfully and directly operating a business in Australia at the time of decision in 2017. Accordingly, the Tribunal finds that the requirement in paragraph 5.19(4)(b) is also not met.

    Term of employment of the visa holder: paragraph 5.19(4)(d)

38. Paragraph 5.19(4)(d) requires the nominee to be employed in the nominated position for at least 2 years full-time, and the terms and conditions of that employment do not expressly exclude extension of the employment.

39. The Tribunal has considered the contract of employment between the applicant and the nominee, dated 2 February 2015.[31] However, it observes that this contract is now 2 years old.

    [31]    D1, f.135-138

40. In addition, the applicant did not provide any information that would suggest that in February 2017 it continues to directly, actively and lawfully operate a business in Australia that would provide the nominee with fulltime employment for the duration specified by the Regulations. This is despite the Tribunal invitation to provide updated and current information that would satisfy the requirements of paragraph 5.19(4)(d).

41. As a result, the Tribunal is not satisfied that the evidence before it indicates that the applicant is in a position to offer the nominee fulltime employment in the nominated position for at least 2 years at the time of decision in 2017.

42. Accordingly, the Tribunal also finds that the requirement in subparagraph 5.19(4)(d)(i) and paragraph 5.19(4)(d) is not met.

    Tasks of the position, genuine need for the position and training benchmarks: paragraph 5.19(4)(h)

43. Paragraph 5.19(4)(h) contains a number of alternative requirements.  These are set out in detail in the attachment to the decision, but can be briefly summarised as requiring either:

    ·The tasks to be performed in the position will be performed in Australia and correspond to those of an occupation specified by the Minister[32], and certain specified training benchmarks will be met; or

    ·The position and nominator’s business is located in regional Australia and there is a genuine need for the paid position under the nominator’s direct control, which cannot be filled by a locally resident Australian citizen or permanent resident. The tasks of the position must also correspond to those of an occupation at the ANZSCO skill level 1, 2 or 3; and a regional certifying body has advised the Minister about certain matters relating to the position.

    [32]    IMMI 13/020, ‘Specification of Occupations, a Person or Body, a Country or Countries’, 19 March 2013

    Sub-subparagraph 5.19(4)(h)(i)(B) – The relevant training benchmarks:

44. Sub-subparagraph 5.19(4)(h)(i)(B) contains alternative criteria relating to training requirements that an applicant must satisfy if the applicant is lawfully operating a business in Australia, depending on how long the applicant has been trading. Specifically:

    ·If the applicant has traded in Australia for 12 months or more, the applicant must meet the benchmarks for the training of Australian citizens and Australian permanent residents specified in a written instrument: sub-subparagraph 5.19(4)(h)(i)(B)(I). The relevant instrument is IMMI 13/030[33]; 

    ·If the applicant has traded in Australia for less than 12 months, the applicant must have an auditable plan to meet the benchmarks specified in that relevant instrument (IMMI 13/030): sub-subparagraph 5.19(4)(h)(i)(B)(II).   

    [33]    IMMI 13/030, ‘Training Benchmarks and Requirements (rr.2.59(d), 2.68(e), 2.87B(2), 2.87B(3) and 5.19(4)(h)(i)(B)(I))’, 28 June 2013

1. In its application form the applicant advised that it trades as ‘Harwood Construct’ in Mildura, Victoria. It also set out its Australian Business Number (ABN) and Australian Company Number (ACN).[34]  Publicly available records from the Australian Business Register and ASIC confirm that this is a registered Australian company that has been active in Australia since 24 June 1988.[35]    

   [34]    D1, f.211

   [35]    D1, f.199-205 & T1, f.18-19

2. Accordingly, the Tribunal finds that the applicant has traded in Australia for 12 months or more and, therefore, it must meet the training benchmarks set out in IMMI 13/030 for the purposes of sub-subparagraph 5.19(4)(h)(i)(B)(I).

3. Notably, the training benchmarks specified in IMMI 13/030 require the applicant to demonstrate ‘recent expenditure’ by the business on training. This concept is not defined in the legislation.

4. According to the Macquarie Dictionary Online the word ‘recent’ is variously defined to mean: “1. of late occurrence, or origin; lately happening, done made etc.: recent events; 2. not long past, as a period; 3. belonging to such a period; not remote or primitive”.[36] The word ‘expenditure’ is relevantly defined to mean: “1. the act of expending; disbursement; consumption; 2. that which is expended; expense.”[37]

   [36]   T1, f.48 - Accessed 13 February 2017

   [37]   T1, f.49

5. Therefore, the wording of sub-subparagraph 5.19(4)(h)(i)(B)(I) would appear to favour the view that the training expenditure incurred by the applicant should not have taken place at some distant time in the past.

6. However, the wording of this provision does not indicate at what point in time the assessment that the applicant meets the training benchmarks specified in IMMI 13/030 should be undertaken. In other words, sub-subparagraph 5.19(4)(h)(i)(B)(I) does not stipulate whether this assessment is to be made at the time the nomination application was lodged, or at the time the Tribunal is making its decision, or at both of these points in time.  

7. Accordingly, the Tribunal has considered the departmental policy guidelines in PAM3[38] to ascertain the policy intention underpinning the requirements in regulation 5.19(4), including sub-subparagraph 5.19(4)(h)(i)(B)(I).

   [38]    PAM3: Procedures Advice Manual 3 

8. Specifically, PAM3 indicates that the permanent employer nominated visas allow Australian employers to recruit workers current in Australia on a temporary visa or directly from overseas to fill skilled vacancies in their business. The nomination approval process therefore forms an integral part of assessment process for the grant of an employer-nominated permanent residence visa. Policy also states that the Direct Entry stream provides employers with the opportunity to employ workers who are untested in the Australian labour market and who may be outside Australia. It also accommodates workers within Australia who are ineligible for the Temporary Residence Transition stream.[39]

   [39] PAM3 - MIGRATION REGULATIONS - DIVISIONS > PAM - Div 5.3 - General > PAM - Div5.3/Reg5.19 - Approval of nominated positions (employer nomination)

9. In addition, and in the context of sub-subparagraph 5.19(4)(h)(i)(B)(I), policy also states that:

   … for expenditure to qualify as ‘recent’, the evidence in regard to training expenditure must demonstrate that the expenditure was incurred in the 12 month period immediately before the lodging of the nomination. This applies regardless of the benchmark (A or B) the nominator seeks to satisfy.[40]

   [40] PAM3 - MIGRATION REGULATIONS - DIVISIONS > PAM - Div 5.3 - General > PAM - Div5.3/Reg5.19 - Approval of nominated positions (employer nomination)

10. As noted previously, the Tribunal is not bound to follow policy.[41] The Tribunal notes that it is logical for departmental delegates to assess ‘recent expenditure’ by an applicant on training by reference to the 12-month period immediately before the applicant lodged the nomination application. This is because the delegate’s assessment generally takes place at a point in time that is much closer to the date that the applicant lodged the nomination application with the Department.

    [41]    See Brennan, J. in Re Drake (No. 2) (1978-1980) 2 ALD 634

11. However, the same does not necessarily apply to an application for review of a decision not to approve a nomination under regulation 5.19. In particular, in the present matter the Tribunal is assessing whether the application meets the criteria for approval in subregulation 5.19(4) in 2017, approximately 2 years after the applicant first lodged its nomination application with the Department, and 17 months after the delegate refused the application.

12. As a result, given the passage of time since the nomination application was first lodged and then refused, there are several reasons that suggest it makes less sense for the Tribunal to adopt the approach set out in policy in terms of what  constitutes “recent expenditure”.

13. Firstly, the applicant’s circumstances may well have changed since it first lodged its nomination application with the Department in February 2015. Consequently, an approach that required the Tribunal to confine itself to an assessment of the applicant’s training expenditure in the 12 months immediately before it lodged the nomination application might exclude information that is relevant to the application for review. This would be contrary to the Tribunal’s obligation under section 353 of the Act to undertake the review according to substantial justice and the merits of the case.

14. Secondly, the wording of sub-subparagraph 5.19(4)(h)(i)(B)(I) requires the Tribunal to be satisfied that the nominator “meets” the training benchmarks set in IMMI 13/030. As a result, the approach set out in PAM3 to ‘recent expenditure’ may undermine the underlying intention for the nomination approval process within the permanent employer nominated visa scheme. This is because IMMI 13/030 specifically requires the applicant’s business to show that the training has been, and continues to be[42], provided to employees who are Australian citizens and Australian permanent residents.

    [42]    Tribunal emphasis added

15. Accordingly, although the approach set out in policy to the issue of ‘recent expenditure’ provides a reasonable starting point, the Tribunal considers that there are cogent reasons for departing from that policy in terms of assessing what constitutes ‘recent expenditure’ in IMMI 13/030 for the purposes of sub-subparagraph 5.19(4)(h)(i)(B)(I).

16. Consequently, the Tribunal prefers to adopt a holistic approach to this issue and it will not confine its consideration of the evidence and issues solely to the 12-month period prior to the lodgement of the applicant’s nomination application in February 2015. As a result, the Tribunal will proceed by having regard to the whole of the evidence before it.

    (a) Training Benchmark A – Industry Training Fund

17. In order to meet Training Benchmark A, the applicant must show recent expenditure equivalent to 2% of its business payroll in the form of payments to an industry-training fund that operates in the same industry as the applicant’s business.

18. In this case, the applicant has not made any claim or submitted any evidence to this effect. This is in circumstances where the Tribunal specifically invited the applicant on 24 January 2017 to provide such information, and included a copy of regulation 5.19 and Legislative Instrument IMMI 13/030 with its invitation to facilitate the applicant’s ability to do so.

19. Accordingly, given the evidence before it, the Tribunal is not satisfied that the applicant’s business has any recent expenditure equivalent to at least 2% of the payroll of its business in payments allocated to an industry-training fund that operates in the same industry as the applicant’s business.

    As a result, the Tribunal finds that the applicant has not demonstrated that it meets Training Benchmark A in IMMI 13/030.

    
    (b)      Training Benchmark B – Training Employees

20. The applicant did not specifically address the requirements of Training Benchmark B in the submission that accompanied its nomination application to the Department. However, it did provide copies of its unaudited financial statements for 2013 and 2014.

21. The Tribunal observes that the 2013 and 2014 financial statements[43] indicate the following expenditure:

    [43]    D1, f.164-165 & 184-185

    30 June 2012          30 June 2013              30 June 2014

    Wages   $196,664                 $144,953                   $104,070

    Staff Training and Welfare    $   7,017                   $    6,350                  $  12,434

22. As a result, the Tribunal finds that 1% of the applicant’s payroll as at 30 June 2012 was $1,966.64; as at 30 June 2013 it was $1,449.53; and as at 30 June 2014 it was $1,040.70.

23. The Tribunal also does not dispute the claim in the applicant’s financial statements that it incurred $7,017, $6,350 and $12,434 on staff training and welfare in the 2012, 2013 and 2014 financial years respectively.[44] As a result, the Tribunal finds that the expenditure the applicant incurred on staff training and welfare for the 2012, 2013 and 2014 that notionally exceeded 1% of its business payroll in each of these years.

    [44]    D1, f.164 & 184

24. However, as noted earlier, Training Benchmark B requires this expenditure to be ‘recent expenditure’ in the provision of training to employees of the business who are Australian citizens and Australian permanent residents.  

25. The Tribunal notes that in its application the applicant did not include any evidence regarding the nature of its training expenditure, or who amongst its employees received this training, including their immigration status.  Nor did the applicant provide any information regarding these matters to the Tribunal. This is despite the invitation issued to the applicant on 24 January 2017 for it provide information that it meets the particular benchmarks required for the purposes of paragraph 5.19(4)(h).

26. Accordingly, the Tribunal is not satisfied that there is sufficient evidence before it to demonstrate that there has been recent expenditure by the applicant’s business equivalent to at least 1% of the payroll of its business in the provision of training to employees of the business who are Australian citizens and Australian permanent residents.

27. Therefore, the Tribunal finds that the applicant has not demonstrated that it meets Training Benchmark B in IMMI 13/030.

    Summation:

28. As a result, given its findings that the applicant does not meet the requirements of either Training Benchmarks A or B in IMMI 13/030, the Tribunal finds that the applicant does not meet the benchmarks for the training of Australian citizens and Australian permanent residents specified in an instrument in writing and made for sub-subparagraph 5.19(4)(h)(i)(B)(I).

29. The Tribunal therefore finds that the applicant does not meet the requirements of subparagraph 5.19(4)(h)(i).

    Sub-subparagraph 5.19(4)(h)(ii)(A) – The position is located in regional Australia:

30. In this case, the position is located in Mildura, Victoria (Postcode 3500) and according to the relevant and current legislative instrument (IMMI 16/045)[45] this location/postcode constitutes part of regional Australia, as defined.

    [45]    IMMI 16/045, ‘Regional certifying bodies and Regional Postcodes 2016/045’, 5 May 2016

31. Accordingly, the Tribunal finds that the requirements of sub-subparagraph 5.19(4)(h)(ii)(A) are met.

    Sub-subparagraph 5.19(4)(h)(ii)(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:

32. Subparagraph 5.19(4)(ii)(h)(B) requires the Tribunal to be satisfied that there is a genuine need for the applicant, as the nominator, to employ a paid employee to work in the position under the nominator’s direct control.

33. In considering this issue, the Tribunal has had regard to the applicant’s 2012/13 and 2013/14 financial statements[46], as well as and its monthly business activity statements from November 2013 to June 2014.[47] The Tribunal has also taken into account the applicant’s submission (dated 10 February 2015[48]) setting out its need for a ‘General Manager’. This includes the information the applicant provided regarding the nature of its business operations (as set out on its company website[49]) and its organisational chart.[50] The Tribunal has also had regard to the applicant’s proposed commercial development in Sunshine North[51], the associated contract it signed with a client in respect of that project[52], and its difficulties in recruiting an appropriately skilled local person to undertake the duties of the nominated position, given its regional location.   

    [46]    D1, f.160-198

    [47]    D1, f.139-159

    [48]    D1, f.118-134

    [49]    D1, f.24-42

    [50]    D1, f.22-23

    [51]    D1, f.43-73.

    [52]    D1, f.75-117

34. However, as discussed previously, the information regarding the applicant’s genuine need to employ a ‘Corporate General Manager’ is now approximately 2 years old and, despite the Tribunal invitation to provide updated and current information, the applicant did not do so.

35. As a result, given the evidence before it, the Tribunal does not accept that there is a genuine need for the applicant, as the nominator, to employ a paid employee to work in the nominated position under its direct control.

36. Therefore, the Tribunal finds that the requirements of sub-subparagraph 5.19(4)(h)(ii)(B) are not satisfied.

    Sub-subparagraph 5.19(4)(h)(ii)(F) – The advice from the relevant certifying body:

37. The Tribunal observes that sub-subparagraph 5.19(4)(h)(ii)(F) requires the regional certifying body to have advised the Minister about the matters mentioned in paragraph 5.19(4)(e) and sub-subparagraphs 5.19(4)(h)(ii)(B) and (C).

38. For the purposes of this application, the relevant regional certifying body is the Department of Business and Innovation (Mildura).[53] However, the applicant has not submitted any evidence that this relevant certifying body has advised the Minister about the matters mentioned in paragraph 5.19(4)(e) and sub-subparagraphs 5.19(4)(h)(ii)(B) and (C).

    [53]    IMMI 16/045, ‘Regional certifying bodies and Regional Postcodes 2016/045’, 5 May 2016

39. Accordingly, the Tribunal finds that the requirements of sub-subparagraph 5.19(4)(h)(ii)(F) are not met.

    Summation:

40. As a result, taking into account its findings in respect of sub-subparagraphs 5.19(4)(h)(i)(B) and 5.19(4)(h)(ii)(B) and (F), the Tribunal finds that the requirements in subparagraphs 5.19(4)(h)(i) and (ii) are not met.

41. Accordingly, the Tribunal is satisfied that the applicant does not meet the requirements of paragraph 5.19(4)(h).

    CONCLUSION

42. As a result, based on its the findings in respect of paragraphs 5.19(4)(a), (b), (d) and (h), and for the above reasons, the Tribunal is not satisfied that the applicant meets the requirements of subregulation 5.19(4). Given these findings, it is unnecessary for the Tribunal to consider the issue of whether the applicant also meets the requirements of paragraphs 5.19(4)(c), (e), (f) and (g).[54]

    [54]    See Woo v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1596 where the Court held that once the Tribunal has established that at least one essential criterion had not been satisfied, it was not obliged to make findings in relation to any other criteria.

43. The applicant has not sought to satisfy the criteria in Temporary Residence Transition Nomination stream, and as such has not met the requirements in subregulation 5.19(3). Accordingly, the Tribunal cannot approve the nomination of the applicant’s position.

44. Therefore, the Tribunal must affirm the decision under review.

    DECISION

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

    Danica Buljan
    Member

    
    

ATTACHMENT -  EXTRACT 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

(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;

(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 at a skill level of ANZSCO skill level 1, 2 or 3;

(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).

- Accessed 13 February 2017