TSE Information Technology Pty Ltd (Migration)

TSE Information Technology Pty Ltd (Migration) [2018] AATA 880 (9 March 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  TSE Information Technology Pty Ltd
CASE NUMBER:  1509087
DIBP REFERENCE(S):  BCC2015/684431
MEMBER:John Cipolla
DATE:9 March 2018
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision under review to refuse the nomination.

Statement made on 09 March 2018 at 12:12pm

CATCHWORDS
Migration – Employer Nomination – Need for paid employee – Organisational chart – Current personnel in the business
LEGISLATION
Migration Act 1958, s 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 Border Protection v Singh [2014] FCAFC 1
Minister for Immigration and Citizenship v Li [2013] HCA 18
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 Immigration on 23 June 2015 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).
The applicant applied for approval on 3 March 2015. 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).
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 the applicant’s nomination did not satisfy r.5.19(4)(a)(ii) of the Regulations because the delegate could not be satisfied that the applicant established a need to employ a paid employee to work in the nominated position under the nominator’s direct control.
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 r.5.19(4), which is extracted in the attachment to this decision. For the nomination to be approved, all the requirements must be met.
Regulation 5.19(4)(a)(ii)requires that:
·there is a genuine need to employ a paid employee to work in the position under the nominator’s direct control;
Recourse to the Departmental decision record indicates the following. The applicant wanted the nominee to work in the position of Corporate General Manager. The delegate noted that the business had been operating since 2014. The delegate had regard to the ANZSCO occupational dictionary pertaining to the tasks of a Corporate General Manager. The delegate found that given that the business had been operating since 2014 that many of the duties listed in the position description accompanying the application would have been undertaken within the pre-existing business structure. The delegate noted that the duties of a Corporate General Manager included such things as project management, sales and marketing management and human resources management along with financial management and daily administration management. The delegate noted that these duties, given pre-existing roles in the business, would have been carried out by the Sales and Marketing Manager, the Human Resources Manager, the IT Support Engineer, the Accountant and the Office Administrator. The delegate noted that no explanation had been provided to indicate why the staff who previously performed these tasks in the past could not continue to do so. On this basis the delegate concluded that the business did not currently have a genuine need for a full-time Corporate General Manager.
On 20 February 2018 the Tribunal wrote to the applicant inviting the applicant to provide information to the Tribunal in respect of the review. The Tribunal sought updated and current information addressing the relevant criteria in r.5.19 of the Migration Regulations. The Tribunal annexed a copy of the relevant regulations to the letter. A response was due by 6 March 2018. As at 8 March 2018 no response has been forthcoming and the Tribunal in these circumstances is able to proceed to decision based on the evidence before it.
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 his review application.
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)
The Tribunal considered whether, in the circumstances of this case, the information that the applicant meets the requirements in regulation 5.19 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.
The Tribunal has had regard to the fact that the nomination application was refused by the Department on 23 June 2015. 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 more than 33 months of the reasons for the nomination application refusal.
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. The Tribunal is not disposed to delaying making a decision indefinitely.
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.
There is no additional evidence that has been provided by the applicant at review. The evidence on the Departmental file includes an organisational chart which contains descriptions of each of the positions in the business. The Tribunal finds that there is no evidence which would lead it to depart from the Departmental findings. The Tribunal finds that given the current personnel in the business and their respective positions that the applicant has not provided any quantifiable evidence that establishes a genuine need for the nominator to employ a paid employee to work in the position of a Corporate General Manager in the business under the nominator’s direct control.
Accordingly the requirements of r.5.19(4)(a)(ii) are not met.
The Tribunal affirms the decision under review to refuse the nomination.
John Cipolla
Senior 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
(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 at a skill level of ANZSCO skill level 1, 2 or 3;
(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).

[2018] AATA 880

9 March 2018

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Remedies