Vijaykumar R Patel For Zeneten Trust (Migration)

Vijaykumar R Patel For Zeneten Trust (Migration) [2023] AATA 3949 (13 September 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Vijaykumar R Patel For Zeneten Trust
CASE NUMBER:  2100075
HOME AFFAIRS REFERENCE(S):          BCC2020/1512868
MEMBER:Antonio Dronjic
DATE:13 September 2023
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision under review to refuse the nomination.

Statement made on 13 September 2023 at 11:07am
CATCHWORDS
MIGRATION – Employer Nomination – approval of nominated position – Direct Entry stream – Software Engineer – genuine need for employment – no response to s.359(2) invitation – Tribunal declined indefinite adjournment of decision – no information to indicate less favourable employment conditions – decision under review affirmed

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

CASES
Hasran v MIAC [2010] FCAFC 40
Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617
Manna v Minister for Immigration and Citizenship [2012] FMCA 28
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 Home Affairs on 15 December 2020 to reject the applicant’s application for approval of the nomination of a position under reg 5.19 of the Migration Regulations 1994 (Cth) (the Regulations).
The applicant applied for approval on 8 May 2020. The requirements for the approval of the nomination of a position in Australia are found in reg 5.19 of the Regulations, which contains general requirements for approval and additional requirements for approval set out in three alternative streams: a Temporary Residence Transition stream, a Direct Entry stream and a Labour Agreement stream. If the application meets the requirements for approval then the application must be approved: reg 5.19(3)(a). If any of the requirements are not met then the application must be refused: reg 5.19(3)(b).
In this case, the applicant has applied for approval of a nomination, seeking to satisfy the criteria in the Direct Entry stream. The nominating business is the Vijaykumar R Patel For Zeneten Trust, and the nominated occupation is Software Engineer - 261313.
The delegate refused the application on the basis the applicant’s nomination did not satisfy reg 5.19(9)(d) of the Regulations because the delegate was not satisfied on the evidence presented that there is a genuine need for the identified person to be employed in the position, under the direct control of the nominator.
The applicant applied to the Tribunal on 4 January 2021 and with the application submitted a copy of the primary decision.
On 11 August 2023, the Tribunal wrote to the applicant pursuant to s.359(2) of the Migration Act 1958 (the Act). The letter invited the applicant to provide information in writing that will demonstrate the applicant meets all the requirements of r.5.19(4) and (9) of the Regulations.
The invitation was sent to the review applicant’s address provided in connection with the review. The applicant was advised that, if the information was not provided in writing by 25 August 2023, or the applicant had not made a request for an extension of time in which to provide information, the Tribunal may make a decision on the review without taking further steps to obtain the information and the review applicant would lose any entitlement it might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.
The applicant had not provided the information within the prescribed period and no extension had been sought or granted. In these circumstances, s.359C applies and pursuant to s.360(3) the review applicant is not entitled to appear before the Tribunal. The effect of s.363A of the Act is that if a review applicant has no entitlement to a hearing, the Tribunal has no power to permit him or her to appear: Hasran v MIAC [2010] FCAFC 40.
The Tribunal has also considered 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.
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.
[1] [2002] FCA 617
[2] [2012] FMCA 28
The Tribunal considered whether, in the circumstances of this case, the evidence that the applicant meets all of the requirements of r.5.19(4) and (9) 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.
The Tribunal has had regard to the fact that the nomination application was refused by the Department on 15 December 2020. 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 30 months of the reasons for the nomination application refusal.
The Tribunal wrote to the applicant under subsection 359(2) of the Act inviting the applicant to provide information demonstrating that the nomination meets all the requirements of the criteria in regulation 5.19(4)and (9) of the Migration Regulations. The applicant has failed to provide requested information.
The Tribunal notes that the business is not prevented from lodging a new nomination application with the Department.
In the circumstances, the Tribunal considers the applicant has had sufficient time in which to address the central issues arising in the application for review. 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.
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 general requirements for approval of the nomination set out in reg 5.19(4) and the stream specific requirements set out in reg 5.19(9), which are extracted in the attachment to this decision. For the nomination to be approved, all the requirements must be met.
Genuine need for employment – regs 5.19(9)(c) and (d)
Regulation 5.19(9)(c) requires the nomination application to identify a need for the identified person to be employed in the position, under the direct control of the nominator, and reg 5.19(9)(d) requires this need to be genuine.
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 reg 5.19(4) and the stream specific requirements set out in reg 5.19(9) of the Migration Regulations. The applicant has failed to do so.
The Tribunal has no contemporary information before it concerning whether there is a genuine need for the identified person to be employed in the position, under the direct control of the nominator.
By reference to the information presently before it, the Tribunal is not satisfied that there is a genuine need for the identified person to be employed in the position, under the direct control of the nominator.
Given the above findings, the Tribunal is not satisfied that reg 5.19(9)(d) is met. Accordingly, reg 5.19(4)(f) is not met.
No information to indicate less favourable employment conditions – reg 5.19(9)(i)
Regulation 5.19(9)(i) requires that there is either no information known to Immigration that indicates the employment conditions (other than in relation to earnings) that will apply to the identified person are less favourable to those that apply, or would apply, to an Australian citizen or permanent resident performing equivalent work at the same location, or that it is reasonable to disregard any such information.
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 reg 5.19(4) and the stream specific requirements set out in reg 5.19(9) of the Migration Regulations. The applicant has failed to do so.
The Tribunal has no contemporary information before it concerning whether or not the terms and conditions of employment applicable to the nominated position will be no less favourable than those that are, or would be, provided to an Australian citizen or permanent resident performing equivalent work in the same workplace at the same location.
By reference to the information presently before it, the Tribunal is not satisfied that the conditions of employment for the nominee will be no less favourable than the terms and conditions that are or would be provided to an Australian citizen or permanent resident performing equivalent work in the same workplace at the same location.
Given the above findings, the Tribunal is not satisfied that reg 5.19(9)(i) is met. Accordingly, reg 5.19(4)(f) is not met.
For these reasons the Tribunal is not satisfied that the applicant meets the requirements of reg 5.19. Accordingly, reg 5.19(3)(b) requires that the nomination must be refused. The decision under review must be affirmed.
DECISION
The Tribunal affirms the decision under review to refuse the nomination.
Antonio Dronjic
Member

ATTACHMENT – EXTRACTS FROM THE MIGRATION REGULATIONS 1994
5.19Approval of nominated positions—Subclass 186 (Employer Nomination Scheme) visa and Subclass 187 (Regional Sponsored Migration Scheme) visa
Application
(1)A person (the nominator) (including a partnership or unincorporated association) may apply to the Minister for approval of the nomination of a position in Australia.
(2)The application must:
(aa) if the application identifies a Subclass 187 (Regional Sponsored Migration Scheme) visa–be made before 16 November 2019 (subject to subclause (2A)); and
(a)be made in accordance with approved form 1395 (Internet); and
(b)identify the position; and
(c)identify a person (the identified person) in relation to the position; and
(d)identify an occupation in relation to the position; and
(e)identify the subclass and stream to which the nomination relates, which must be one of the following:
(i)a Subclass 186 (Employer Nomination Scheme) visa in the Temporary Residence Transition stream;
(ii)a Subclass 187 (Regional Sponsored Migration Scheme) visa in the Temporary Residence Transition stream;
(iii)a Subclass 186 (Employer Nomination Scheme) visa in the Direct Entry stream;
(iv)Subclass 187 (Regional Sponsored Migration Scheme) visa in the Direct Entry stream;
(v)a Subclass 186 (Employer Nomination Scheme) visa in the Labour Agreement stream; and
(f)be accompanied by the fee mentioned in regulation 5.37; and
(fa)be accompanied by any nomination training contribution charge the nominator is liable to pay in relation to the nomination; and
(fb)identify the annual turnover (within the meaning of the Migration (Skilling Australians Fund) Charges Regulations 2018) for the nomination; and
(g)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.
(2A) Paragraph (2)(aa) does not apply if:
(a) the application identifies a Subclass 187 (Regional Sponsored Migration Scheme) visa in the Temporary Residence Transition stream; and
(b) the identified person is a transitional 457 worker or transitional 482 worker at the time the application is made.
Approval of nomination
(3)The Minister must, in writing:
(a)approve the nomination if the Minister is satisfied that the requirements set out in subregulation (4) are met; or
(b)otherwise—refuse to approve the nomination.
Requirements for approval—general
(4)The requirements to be met for the nomination to be approved are as follows:
(a)the application is made in accordance with subregulation (2);
(b)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;
(c)if it is mandatory, in the State or Territory in which the position is located, for a person to:
(i)hold a licence of a particular kind; or
(ii)hold registration of a particular kind; or
(iii)be a member (or a member of a particular kind) of a particular professional body;
to perform tasks of the kind to be performed in the occupation, the identified person is, or is eligible to become, the holder of the licence, the holder of the registration, or a member of the body, at the time of application;
(d)the nominator has a satisfactory record of compliance with the laws of the Commonwealth, and of each State or Territory in which the nominator operates a business and employs employees in the business, relating to employment;
(da)any debt due by the nominator as mentioned in section 140ZO of the Act (recovery of nomination training contribution charge and late payment penalty) has been paid in full;
(e)if the nomination relates to a visa in a Temporary Residence Transition stream—the requirements set out in subregulation (5) are met;
(f)if the nomination relates to a visa in a Direct Entry stream—the requirements set out in subregulation (9) are met;
(g)if the nomination relates to a visa in a Labour Agreement stream—the requirements set out in subregulation (14) are met.
…
Direct Entry stream—additional requirements for approval
(9)If the nomination relates to a visa in a Direct Entry stream, the following requirements must also be met:
(a)the nominator is actively and lawfully operating a business in Australia;
(b)if the nominator’s business activities include activities related 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;
(c)the application identifies a need for the identified person to be employed in the position, under the direct control of the nominator;
(d)there is a genuine need for the identified person to be employed in the position, under the direct control of the nominator;
(e)the identified person will be employed on a full‑time basis in the position for at least 2 years;
(f)the terms and conditions of the identified person’s employment will not include an express exclusion of the possibility of extending the period of employment;
(g)the nominator’s business has the capacity to employ the identified person for at least 2 years and to pay the person at least the annual market salary rate for the occupation each year;
(h)the requirements set out in subregulation 2.72(15) are met, applying subregulations 2.72(15) and (16) as if:
(i)paragraph 2.72(15)(a) did not apply; and
(ii)references to the nominee were references to the identified person; and
(iii)references to the person were references to the nominator;
(i)either:
(i)there is no information known to Immigration that indicates that the employment conditions (other than in relation to earnings) that will apply to the identified person are less favourable than those that apply, or would apply, to an Australian citizen or an Australian permanent resident performing equivalent work at the same location; or
(ii)it is reasonable to disregard any such information;
(j)the requirements set out in subregulation (10) or (12) are met.
Occupations for the Subclass 186 (Employer Nomination Scheme) visa in the Direct Entry stream
(10)The requirements of this subregulation are as follows:
(a)the tasks to be performed in the position will be performed in Australia and correspond to the tasks of an occupation specified in a legislative instrument:
(i)made under subregulation (11); and
(ii)in force at the time the application is made;
(b)the occupation applies to the identified person in accordance with that instrument.
(11)The Minister may, by legislative instrument, specify occupations for the purposes of subregulation (10) and, for each occupation, specify any matters for the purposes of determining whether the occupation applies to an identified person, including matters relating to any of the following:
(a)the nominator;
(b)the identified person;
(c)the occupation;
(d)the position in which the identified person is to work;
(e)the circumstances in which the occupation is undertaken;
(f)the circumstances in which the person is to be employed in the position.
Occupations for the Subclass 187 (Regional Sponsored Migration Scheme) visa in the Direct Entry stream
(12)The requirements of this subregulation are as follows:
(a)the position is located at a place in regional Australia;
(b)the business operated by the nominator is located at that place;
(c)the position cannot be filled by an Australian citizen or an Australian permanent resident who is living in, or would move to, the local area concerned;
(d)the tasks to be performed in the position correspond to the tasks of an occupation specified in a legislative instrument:
(i)made under subregulation (13); and
(ii)as in force at the time the application is made;
(e)the occupation applies to the identified person in accordance with that instrument;
(f)the Minister has been advised by a body that meets the requirements set out in paragraph (g) of this subregulation about matters relating to the following:
(i)whether the identified person would be paid at least the annual market salary rate for the occupation;
(ii)whether there is a genuine need for the identified person to be employed in the position, under the direct control of the nominator;
(iii)whether the position can be filled by an Australian citizen or an Australian permanent resident who is living in, or would move to, the local area concerned;
(g)the body must:
(i)be specified in a legislative instrument made by the Minister for the purposes of this paragraph; and
(ii)be located in the State or Territory in which the position is located; and
(iii)have responsibility for the local area in which the position is located.
(13)The Minister may, by legislative instrument, specify occupations for the purposes of subregulation (12) and, for each occupation, specify any matters for the purposes of determining whether the occupation applies to an identified person, including matters relating to any of the following:
(a)the nominator;
(b)the identified person;
(c)the occupation;
(d)the position in which the identified person is to work;
(e)the circumstances in which the occupation is undertaken;
(f)the circumstances in which the person is to be employed in the position.
…
Meaning of regional Australia
(16)In this regulation:
regional Australia means a part of Australia specified in legislative instrument made by the Minister for the purposes of this definition.

[2023] AATA 3949

13 September 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Standing

Statutory Construction