VISA POINT PTY LTD (Migration)

[2021] AATA 4898

VISA POINT PTY LTD (Migration) [2021] AATA 4898 (14 December 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Visa Point Pty Ltd

CASE NUMBER:  1817818

HOME AFFAIRS REFERENCE(S):          BCC2017/2253064

MEMBER:Angela Julian-Armitage

DATE:14 December 2021

PLACE OF DECISION:  Brisbane

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

Statement made on 14 December 2021 at 3:43pm

CATCHWORDS
MIGRATION – nomination – Temporary Residence Transition nomination stream – applicant failed to provide the information within the prescribed period – applicant did not demonstrate financial capacity to two years full-time employment – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 359, 360, 363
Migration Regulations 1994, 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 1 June 2018 to reject the applicant’s application for approval of the nomination of a position in Australia on a permanent residence basis pursuant to reg 5.19 of the Migration Regulations 1994 (Cth) (the Regulations).

2. The applicant applied for approval on 26 June 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 Temporary Residence Transition nomination stream

4. .

5. The delegate refused the application on the basis that the applicant’s nomination did not satisfy reg 5.19(3)(d) of the Regulations due to the applicant’s failure to demonstrate its financial capacity to provide two years full-time employment to a Customer Service Manager with a salary of $54,000 per annum.

6. On 9 December 2020, the Tribunal wrote to the review applicant pursuant to s 359 of the Migration Act 1958 (Cth) (Act), inviting the review applicant to provide information in order to demonstrate that it met the applicable criterion. The invitation was sent to the last address provided in connection with the review. The invitation advised that if the information was not provided, in writing, by 23 December 2020, the Tribunal may make a decision on the review without taking further steps. Further, it advised that the applicant would lose any entitlement it might otherwise have had pursuant to the Act to appear before the Tribunal to give evidence and present arguments.

7. On 18 December 2020, the applicant requested an extension of time to provide further evidence, which was granted until 20 January 2021.

8. Despite the extension granted, the review applicant did not provide the information within the prescribed period and no further extension has been sought or granted. In these circumstances, s 359C of the Act applies. Therefore, and pursuant to s 360(3) of the Act, 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 lost its entitlement to a hearing, the Tribunal has no power to permit a hearing: Hasran v MIAC [2010] FCAFC 40. Thus, the Tribunal will proceed to decision without taking further steps to obtain the information sought.

9. The applicant was represented in relation to the review

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. The pivotal issue in this case is whether the applicant meets the requirements for approval of the nomination under the Temporary Residence Transition nomination stream as set out in reg 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: reg 5.19(3)(d)

12. Regulation 5.19(3)(d) only applies to certain nominees (those described in reg 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 two years on terms that do not expressly preclude the possibility of an extension.

13. The Tribunal has had regard to all of the material provided including the nominee’s employment contract, the size of the business, number of staff and the financial records provided. The Tribunal has also taken into consideration the written submissions provided by Mr Joel McComber of Sentry Law, the applicant’s legal representative.

14. The Tribunal also notes that the principal of the applicant has had his registration as a Registered Migration Agent cancelled by the Office of the Migration Agents Registration Authority on 23 June 2021 on the basis, amongst other things, that he facilitated a complainant’s permanent residence visa through bogus employment.

15. Whilst there is no direct evidence of similar conduct in relation to the nominee here, it is difficult for the Tribunal to be persuaded that the applicant can, without its principal migration agent’s ability to work in the business, generate sufficient income so as to financially meet its obligations pursuant to reg 5.19(3)(d).

16. Given the above findings, the requirement in reg 5.19(3)(d) is not met.

17. For the above reasons the Tribunal is not satisfied that the applicant meets the requirements of reg 5.19(3). The applicant has not sought to satisfy the criteria in the Direct Entry nomination stream, and as such has not met the requirements in reg 5.19(4). Accordingly, the nomination of the position cannot be approved. Therefore, the Tribunal must affirm the decision under review.

    DECISION

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

    Angela Julian-Armitage
    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.