Yan Capital Motors Pty Ltd (Migration)

[2022] AATA 4940

Yan Capital Motors Pty Ltd (Migration) [2022] AATA 4940 (25 November 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Yan Capital Motors Pty Ltd

CASE NUMBER:  1922483

HOME AFFAIRS REFERENCE(S):          BCC2018/1247698

MEMBER:George Hallwood

DATE:25 November 2022

PLACE OF DECISION:  Adelaide

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

Statement made on 25 November 2022 at 4:52pm

CATCHWORDS
MIGRATION – nomination – Direct Entry nomination stream – Motor Mechanic – applicant failed to provide the requested information within the prescribed period – no updated or current information before the Tribunal – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 245AR, 359, 360, 363
Migration Regulations 1994, r 5.19

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 Home Affairs on 24 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).

1. The applicant applied for approval on 15 March 2018. 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.    On 17 August 2022 the Tribunal wrote to the applicant pursuant to s359 of the Act, inviting the review applicant to provide updated and current information about the application for review by the applicant in respect of the decision to refuse their application for approval of a nominated position under r. 5.19 of the Regulations. The letter set a timeframe for updated and current information to be provided to the Tribunal together with the consequences of not providing the information on time:

If you or another person authorised by the applicant cannot provide the information by 31 August 2022, you or another person authorised by the applicant may ask us for an extension of time in which to provide the information. If an extension of time request is made, it must be received by us before 31 August 2022 and it must state the reason why the extension of time is required.

We will carefully consider any request for an extension of time and will advise whether or not the extension has been granted.

If we do not receive the information within the period allowed or as extended, we may make a decision on the review without taking any further action to obtain the information. The applicant will also lose any entitlement it might otherwise have had under the Migration Act to appear before us to give evidence and present arguments.

5.    On 31 August 2022 the review applicant’s authorised representative wrote to the Tribunal requesting an extension of the time to respond stating:

We are preparing the documents that you need.

But unfortunetally, the financial reports have not been done by the account.

However, the account did not send me the financial report until now.

May I apply for extention the extra time for document preparing.

We will request our accountant to finish all as soon as possible.

6.    On 11 October 2022 the Tribunal granted an extension of time stating inter alia:

I am writing on instruction from the Member conducting your review, in relation to the application for review made by Yan Capital Motors Pty Ltd.

On 17 August 2022 we sent you an invitation to provide information.

On 31 August 2022 we received a request for an extension of time to provide the information.

We have considered the request carefully and have agreed to grant an extension of time. The information is now to be received by 28 October 2022.

If we do not receive the information by 28 October 2022, we may make a decision on the review without taking any further action to obtain the information. Yan Capital Motors Pty Ltd will also lose any entitlement it might otherwise have had under the Migration Act 1958 to appear before us to give evidence and present arguments.

7.    The review applicant has not provided the information within the prescribed period and no extension has been requested 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. In the absence of any further response from the applicant the Tribunal has decided to proceed to decision without taking further steps to obtain the information.

8. The delegate refused the application on the basis the applicant’s nomination did not satisfy reg 5.19(4)(a)(ii) of the Regulations because they were not satisfied the application identified a need for the nominator to employ a paid employee to work in the position under their direct control.

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

CONSIDERATION OF CLAIMS AND EVIDENCE

1. 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.

The application is compliant: reg 5.19(4)(a)

1. Regulation 5.19(4)(a) requires that the application for approval must be in the approved form, must be accompanied by the prescribed fee, and, where applicable, must include the required written certification relating to conduct that contravenes s 245AR(1). The application must also identify a need for the nominator to employ an identified person as a paid employee to work in the position under their direct control.

2. Having considered the application and attachments, the Tribunal is satisfied that the application for approval:

   ·was made on the approved form for post 23 March 2013 applications, and was accompanied by the fee prescribed in reg 5.37; and

   ·includes a written certification stating whether the nominator has engaged in conduct in relation to the nomination that contravenes s 245AR(1).

3. The delegate found that the applicant had not identified a need for the nominator to employ a paid employee to work in the position under their direct control, however, the Tribunal considers the matter afresh.

4. This nomination is for a position of Motor Mechanic within the business of Yan Capital Motors Pty Ltd. The named nominee is Mr Yu Chen.

5. At the time of the delegates decision the delegate noted that the business had been established or commenced trading in Australia on 20 February 2017, employed three Australian employees within the business, and had an annual turnover in the twelve months to 24 July 2019 of $0. The applicant has provided no material that is contrary to the delegate’s finding.

6. Despite attempts by the Tribunal to obtain current and updated information including financial information, the applicant has not provided anything further.

7. Based on the information provided to the Tribunal, I am unable to be satisfied that there is a need for the nominator to employ a paid employee to work in the position under their direct control. On the information provided it is not even clear that the business is still trading.

8. Accordingly, the requirement in reg 5.19(4)(a) is not met.

CONCLUDING PARAGRAPH

1. 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

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

George Hallwood
Member

ATTACHMENT - Extracts from the Migration Regulations 1994

5.19Approval of nominated positions (employer nomination)

…

1. 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

1. 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).