Webb James Alexander (Migration)

[2020] AATA 2480

Webb James Alexander (Migration) [2020] AATA 2480 (27 March 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Webb James Alexander

CASE NUMBER:  1918765

DIBP REFERENCE(S):  BCC2017/4731576

MEMBER:Keith Kendall

DATE:27 March 2020

PLACE OF DECISION:  Melbourne

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

Statement made on 27 March 2020 at 5:05pm

CATCHWORDS
MIGRATION – nomination – Direct Entry Nomination – genuine need for the nominator to employ a paid employee – applicant failed to provide the requested information within the prescribed period – no recent financial information provided – no fee accompanied the application – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 359, 360, 363
Migration Regulations 1994, rr 5.19, 5.37

CASES
Hasran v MIAC [2010] FCAFC 40

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 21 June 2019 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).

2. The applicant applied for approval on 12 December 2017. 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).

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 r.5.19(4)(h)(ii) of the Regulations because the delegate was not satisfied that the applicant had demonstrated a genuine need to employ the nominee to work in the nominated position. Further, considering r.5.19(4)(h)(i) in the alternative, the delegate refused the nomination as the application had not been accompanied by the prescribed fee required for satisfaction of r.5.19(4)(h)(i).

5. The applicant applied to the Tribunal on 11 July 2019 for a review of the delegate’s decision and the application submitted a copy of the primary decision.

6. On 29 January 2020, the Tribunal wrote to the review applicant pursuant to s.359(2) of the Migration Act 1958 (the Act), inviting the review applicant to provide updated and current information about how the applicant met the criteria set out in r.5.19(4) in writing, where these criteria were explicitly specified in that letter.

7. The invitation was sent to the last address provided in connection with the review and advised that, if the information was not provided in writing by 12 February 2020, 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 he might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

8. The review applicant has not provided the information within the prescribed period and no extension has been 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 decided to proceed to decision without taking further steps to obtain the information.

9. The Tribunal has also considered whether it should adjourn the review under s.363(1)(b) of the Act to allow the applicant additional time in which to provide further evidence to support the review application.

10. The Tribunal considered whether, in the circumstances of this case, the evidence that the applicant meets the requirements of r.5.19(4) 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.

11. The Tribunal has had regard to the fact that the nomination application was refused by the Department on 21 June 2019. The applicant submitted a copy of the primary decision record with the review application.  

12. With its acknowledgment letter of 15 July 2019, the Tribunal invited the applicant to provide material or written arguments in support of the review application. The applicant has failed to do so.

13. The Tribunal wrote to the applicant under s.359(2) of the Act inviting the applicant to provide information demonstrating that the nomination meets all the requirements of the criteria in r.5.19(4) of the Regulations. The applicant has failed to provide the requested information within the prescribed period set for this purpose.

14. In the circumstances, the Tribunal considers that 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 s.363(1)(b) of the Act to adjourn the review any further. In the circumstances, the Tribunal has determined to make a decision on the review without taking further action to obtain the information in accordance with s.359C of the Act.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

16. 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.

    Tasks of the position genuine need for the position and training requirements r.5.19(4)(h)

17. 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, the occupation is applicable to the proposed employee in accordance with any specifications made in that instrument, and specified training requirements are met; or

    ·the position and nominator’s business is located in regional Australia, 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 correspond to those of an occupation specified in the relevant legislative instrument, the occupation is applicable to the proposed employee in accordance with the specification of the occupation and that a regional certifying body has advised the Minister about certain matters relating to the position.

18. The nominated position is that of Cook (ANZSCO 351411).

19. In support of the application, the applicant provided a financial report for the year ended 30 June 2017. This report is headed Toolleen General Store & Post Office, with no reference to the Toolleen Hotel, being the nominated business in the application and the business requiring the nominated position.

20. A check of the Australian Business Register indicates that the applicant has registered the trading name Toolleen Hotel under the Australian Business Number (ABN) listed in the application from 10 March 2018. The Tribunal notes that this registration postdates the application, despite this business name being used in the application.

21. This is also the same ABN linked with the trading name Toolleen General Store & Hotel (which has been registered since 8 July 2009).

22. Notwithstanding the misalignment of the registration and application dates, the Tribunal accepts that the financial report for the year ended 30 June 2017 represents an aggregation of the financial information for these two business names.

23. In respect of a separate application by the same applicant (for a different nominee), a financial report was submitted for the year ended 30 June 2018, which does provide disaggregated information as to the income of the two businesses (see Case Number 1917876). The Tribunal notes that the majority of the income is attributed to the Toolleen Hotel. There is no disaggregation as to expenses and, hence, profitability.

24. As part of this separate application, the applicant also provided quarterly business activity statements (BAS) extending to 31 March 2019.

25. No more recent financial information has been provided by the applicant.

26. As the most recent financial information (contained in the financial reports) available to the Tribunal regarding the applicant’s business is dated 30 June 2018, with less specific financial information (contained in the BASs) extending to 31 March 2019, there is insufficient information before the Tribunal to assess the applicant’s present financial position and that of the business in which the nominee is to be employed.

27. As a consequence of the lack of information, the Tribunal is not satisfied that there is a genuine need for the applicant to employ a person as a paid employee in the nominated position under the applicant’s direct control as required by r.5.19(4)(h)(ii)(B).

28. Therefore, the requirements of r.5.19(4)(h)(ii) are not met.

29. Considering the criteria in r.5.19(4)(h)(i) in the alternative, r.5.19(2)(b) requires that the application be accompanied by the fee prescribed in r.5.37. Regulation 5.37(3) sets the prescribed fee for applications seeking approving in accordance with r.5.19(4)(h)(i) at $540. Regulation 5.37(4) sets the prescribed fee for applications seeking approval in accordance with r.5.19(4)(h)(ii) at nil.

30. As no fee accompanied the application, the requirement in r.5.19(2)(b) has not been met and the application cannot be approved if relying on r.5.19(4)(h)(i).

31. For the above reasons the Tribunal is not satisfied that the applicant meets the requirements of r.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 r.5.19(3). Accordingly, the nomination of the position cannot be approved. Therefore, the Tribunal must affirm the decision under review.

    DECISION

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

    Keith Kendall
    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 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).