Tyre Crumb (Vic) Pty Ltd (Migration)

[2023] AATA 4221

Tyre Crumb (Vic) Pty Ltd (Migration) [2023] AATA 4221 (3 October 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Tyre Crumb (Vic) Pty Ltd

REPRESENTATIVE:  Mr Steve Hou (MARN: 0743817)

CASE NUMBER:  1921560

HOME AFFAIRS REFERENCE(S):          BCC2017/4214290

MEMBER:P. Maishman

DATE:3 October 2023

PLACE OF DECISION:  Perth

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

Statement made on 03 October 2023 at 11:04am

CATCHWORDS
MIGRATION – Employer Nomination – approval of nominated position – Direct Entry nomination stream – ICT Business Analyst – genuine need – failure to appear at scheduled hearing – organisation chart – profit and loss statement – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 362B, 379A
Migration Regulations 1994 (Cth), r 5.19

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 Home Affairs on 16 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).

2. The applicant applied for approval on 10 November 2017. 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).

3. In this case, the applicant has applied for approval of a nomination, seeking to satisfy the criteria in the Direct Entry nomination stream.

4. The delegate refused the application on the basis the applicant’s nomination did not satisfy reg 5.19(4)(h)(i)(AA) because the delegate was not satisfied that there was a genuine need for the nominated position.

5. On 18 May 2023 the Tribunal wrote to the review applicant advising that it had considered all the material it had about the application but could not make a favourable decision on that information alone. The Tribunal invited the review applicant to give evidence and present arguments at a video hearing on 16 June 2023. On 30 May 2023 the applicant’s representative sought an adjournment as the employer was unavailable until July or later.

6. On 16 August 2023 the Tribunal wrote to the review applicant again advising that it had considered all the material it had about the application but could not make a favourable decision on that information alone. The Tribunal invited the review applicant to give evidence and present arguments at a video hearing on 3 October 2023. The invitation stated that if they did not attend the hearing and an adjournment was not granted, the Tribunal may make a decision on the case without further notice.

7. Despite the Tribunal’s multiple requests to do so, the applicant’s registered migration agent did not disclose the applicant’s telephone contact details or email addresses. The applicant’s registered migration agent provided his own email address and landline phone number as the only contact details for this application.

8. The Tribunal called the registered migration agents telephone number at 9.45; 10.00; and 10.15AM on the day of the hearing. The registered migration agent did not answer the calls.

9. No response to the hearing invitation was received and the review applicant did not appear before the Tribunal on the day and at the scheduled time and place. Having reviewed the Tribunal file, the Tribunal is satisfied that the review applicant was properly invited to a hearing in accordance with s 379A(5), the invitation has not been returned to sender. The Tribunal is satisfied it has endeavoured to make contact with the applicant through its authorised representative. In these circumstances, and pursuant to s 362B of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear before it.

10. The applicant was represented in relation to the review who did not attend the hearing.

11. For the following reasons, the Tribunal has decided to affirm the decision under review to refuse the nomination.

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. 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.

    Tasks of the position, genuine need for the position and training requirements reg 5.19(4)(h)

13. Regulation 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 that:

    ·the tasks to be performed in the position will be performed in Australia and correspond to those of an occupation specified by the Minister (see legislative instrument IMMI 17/080), the occupation is applicable to the proposed employee in accordance with any specifications made in that instrument, there is a genuine need for the nominee to be employed as a paid employee in the position, and certain specified training requirements are met.

14. The application for employer nomination for a permanent appointment contained on the Department’s file shows the applicant identified Wanyu LI to be employed in the position of ICT Business Analyst (ANZSCO 261111).

15. The applicant’s managing director, Mr Steven Matousi provided a letter dated 1 November 2017 claiming the nominated position was established in 2015. Mr Matousi acted as the ICT Business Analyst for two years but did not have the relevant experience and skills to fulfil the position. The company is a tire recycling and manufacturing business and claims to have developed a special ICT hardware and system to manage and control the manufacturing operations. The applicant claims to have developed several IT businesses relevant to its industry and its 2017 financial year income from IT hardware and software sales was $912,266.

16. On 17 August 2022 the Tribunal wrote to the applicant pursuant to s 359(2) explaining that for the nomination of a position to be approved, the Tribunal must be satisfied that all of the relevant reg 5.19 criteria are met at the time of its decision. The Tribunal invited the applicant to provide updated and current information addressing the criteria. The invitation included examples of the type of information the applicant could provide, relevantly information about the need to employ a nominee in the nominated position.

17. On 26 September 2022 the applicant provided some training invoices; BAS statements for the 2014 to 2016 financial years; a 2015 profit and loss statement; and an organisation chart dated 28 November 2013.

18. The Tribunal had regard to the applicant’s organisation chart. The organisation chart indicates it has an operations manager; engineering Department; copper recycling management; tire collection manager; and accounts/bookkeeping reporting to the managing director. The position of ICT Business Analyst is not recorded on the applicant’s organisation chart.

19. The Tribunal considered the applicant’s 2015 profit and loss statement. The applicant records no income from IT hardware or software sales. The applicant claims an expense for website design of $3615.45.

20. There is no information before the Tribunal about the applicant’s current genuine need to employ Wanyu LI in the nominated position of ICT Business Analyst. There is no information before the Tribunal that supports the applicant’s claim there is a position of ICT Business Analyst under the applicant’s direct control.

21. The Tribunal finds the applicant does not have a genuine need to employ Wanyu LI, as a paid employee, to work in the position under the nominator’s direct control as required by reg 5.19(4)(h)(i)(AA).

22. Accordingly the requirements of reg 5.19(4)(h) are not met.

23. 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

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

    P. Maishman
    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 an identified person, as  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)       all 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;

    (AA)there is a genuine need for the nominator to employ the person identified under subparagraph (a)(ii), as a paid employee, to work in the position under the nominator’s direct control;

    (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 the person identified under subparagraph (a)(ii), as 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).