Yellow Trading Pty Ltd (Migration)

[2021] AATA 3483

Yellow Trading Pty Ltd (Migration) [2021] AATA 3483 (9 September 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Yellow Trading Pty Ltd

CASE NUMBER:  1838081

HOME AFFAIRS REFERENCE(S):          BCC2017/986264

MEMBER:Nicola Findson

DATE:9 September 2021

PLACE OF DECISION:  Perth

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

Statement made on 09 September 2021 at 2:43pm

CATCHWORDS
MIGRATION – application for approval of nomination of position – direct entry nomination stream – need for position – no response to tribunal’s invitation to provide current information – advice from regional certifying body not supported by any other material – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 359(2), 359C, 360(3), 363A
Migration Regulations 1994 (Cth), r 5.19(2), (4)(a)(ii), (b)(i), (h)(ii)(B)

CASE
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 14 December 2018 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 13 March 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)(a)(ii) of the Regulations, because the delegate was not satisfied the application identifies a need for the nominator to employ a paid employee to work in the position under the nominator’s direct control.

5. The applicant applied to the Tribunal for review of the delegate’s decision on 28 December 2018, and provided a copy of the decision record with the application.

6. On 5 August 2021 the Tribunal wrote to the review applicant, via its registered migration agent, pursuant to s.359(2) of the Migration Act 1958 (the Act), inviting the review applicant to provide updated and current information about the various requirements in rr.5.19(2) and (4). The letter also advised that, in order for the nomination of a position to be approved, the Tribunal must be satisfied that all of the relevant criteria in r.5.19 are met at the time of its decision.

7. The invitation was sent to the last email address provided in connection with the review and advised that, if the information was not provided in writing by 19 August 2021, the Tribunal may make a decision on the review without taking further steps to obtain the information and the applicant would lose any entitlement it might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments. 

8. The 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 applicant is not entitled to appear before the Tribunal. The effect of s.363A of the Act is that if an 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.

9. The Tribunal is satisfied that the invitation to provide information was sent to the correct email address. The invitation was not returned to sender as undeliverable mail. To date, the requested information has not been provided and the applicant has not made any contact with the Tribunal to indicate that the information is forthcoming. The Tribunal is not required to delay indefinitely making its decision. In the circumstances, the Tribunal has decided to proceed to a decision without taking further steps to obtain the information.

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 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.

12. The Tribunal’s letter to the applicant of 5 August 2021 invited the applicant to provide updated and current information about all the requirements in r.5.19. It also advised that, for the nomination to be approved, the Tribunal must be satisfied that all of the relevant criteria are met at the time of its decision. As stated above, the applicant did not respond to the invitation and no updated and current information about the applicant or its business has been received by the Tribunal. As the applicant has not provided the information requested, the Tribunal is unable to be satisfied that at the time of this decision the applicant meets the requirements for approval of the nomination in the Direct Entry Nomination stream.

13. The delegate refused the nomination on the basis that 5.19(4)(a)(ii) was not met. A regional certifying body advice which was provided to the Department in support of the application indicates, among other things, that there is a need for a paid employee in the nominated position.  However, in the absence of any other material whatsoever in support of its application, the delegate was not satisfied that the application for approval identifies a need for the nominator to employ a paid employee to work in the position under the nominator’s direct control.

14. The Tribunal invited the applicant to provide updated and current information about a range of matters, including information about its financial circumstances and information about the need to employ the nominee in the nominated position. Without limiting the type of information that could be provided, the Tribunal suggested examples of information and/or documents that the applicant could provide, such as an ASIC current and historical extract, the applicant’s lodged tax returns for the last two full financial years, business activity statements for the last 24 months, recent financial statements prepared in accordance with Australian accounting standards, and local job advertisements for the nominated position that were not successfully filled.  No response has been received to the invitation to provide information.

15. There is no current evidence before the Tribunal about whether the nominator is lawfully and actively operating a business in Australia, or whether it still wishes to employ the nominee. 

16. In the absence of current information, the Tribunal is unable to be satisfied that, at the time of its decision, the nominator is actively and lawfully operating a business in Australia. Accordingly, the Tribunal is not satisfied that the requirement in r.5.19(4)(b)(i) is met. In addition, there is no new or further information to support a finding that there is a genuine need for the nominator to employ a paid employee to work in the position under the nominator’s direct control, as required by r.5.19(4)(h)(ii)(B).

17. 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

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

    Nicola Findson
    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)       both 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;

    (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 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).