Yung Chen Pty Ltd (Migration)

[2020] AATA 3968

Yung Chen Pty Ltd (Migration) [2020] AATA 3968 (15 September 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Yung Chen Pty Ltd

CASE NUMBER:  1806637

HOME AFFAIRS REFERENCE(S):          BCC2017/1127123

MEMBER:Sheridan Lee

DATE:15 September 2020

PLACE OF DECISION:  Melbourne

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

Statement made on 15 September 2020 at 10:05 am

CATCHWORDS
MIGRATION – Employer Nomination – approval of nominated position – Temporary Residence Transition stream – Program or Project Administrator – financial capacity to maintain term of employment – active and lawful operation – no response to s.359(2) invitation – current information not submitted – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 359C, 360, 363A
Migration Regulations 1994 (Cth), 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 22 February 2018 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 to nominate the occupation of Program or Project Administrator on 23 March 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 stream (r.5.19(3)) and a Direct Entry nomination stream (r.5.19(4)). 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 Temporary Residence Transition nomination stream.

4. The delegate refused the application on the basis that the applicant’s nomination did not satisfy r.5.19(3)(d)(i) of the Regulations because they were not satisfied that the company could financially support the position for at least two years.

5. When the application for review was made, he applicant supplied the Tribunal with a copy of the notification and decision record of the Department of Home Affairs (the Department) and Pay As You Go (PAYG) statements for the nominee, Yih Keng Choon, from 2013 to 2016. The Tribunal has before it the Departmental file relating to the application, including the application for nomination form.

6. On 10 August 2020, the Tribunal invited the applicant to provide current information addressing the relevant criteria under r.5.19 of the Regulations. The invitation requested that the information be provided by 24 August 2020, noting that an extension of time to respond could be requested prior to that date. Finally, the Tribunal advised the applicant that if the information, or a request for an extension, was not received by the due date then the entitlement to appear before the Tribunal would be lost and the Tribunal might proceed to make its decision on the available evidence without taking any further steps to obtain the requested information.

7. On 24 August 2020, the Tribunal received a withdrawal of application form, completed by Yih Keng Choon. The form incorrectly listed the case number for the nomination application, rather than the visa application. The applicant did not provide the requested information within the prescribed period. In addition, the applicant did not request an extension of time and there has been no further communication from the applicant at the time of the Tribunal’s decision.

8. The Courts have confirmed that where an applicant fails to give information within the prescribed period in response to an invitation issued under s.359(2) of the Act, ss.360(3) and 363A of the Act preclude the Tribunal from offering the applicant a hearing.[1] Accordingly, as the applicant failed to give the information requested within the prescribed period, it has lost the right to appear before the Tribunal to give evidence and present arguments relating to the review application.

   [1] Hasran v Minister for Immigration and Citizenship [2010] FCAFC 40.

9. The Tribunal considered whether, in the circumstances of this case, the information that the applicant meets the requirements in the Regulations and the Act is likely to be forthcoming and whether the applicant has had a fair opportunity to provide the relevant information already, and the significance of the information to the applicant.

10. The Tribunal has had regard to the fact that the nomination application was refused by the Department on 22 February 2018. 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 of the reasons for the nomination application refusal for more than two years. Further, as noted above, the applicant has provided limited information to the Tribunal despite being invited to do so.

11. In these circumstances, and for the reasons set out in this decision record, the Tribunal considers that the applicant has had a fair opportunity to provide the relevant information and sufficient time to take steps to satisfy the regulatory criteria. The Tribunal notes that it is uncertain if and when the applicant will provide information in writing as to whether the nominating business meets the requirements in r.5.19. The Tribunal is not disposed to delay making a decision indefinitely.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

13. The issue in this case is whether the applicant meets the requirements for approval of the nomination under the Temporary Residence Transition nomination stream set out in r.5.19(3), which is extracted in the attachment to this decision. For the nomination to be approved, all the requirements must be met.

    Status of the nominator: r.5.19(3)(b)

14. Regulation 5.19(3)(b) requires the nominator to be or have been the relevant standard business sponsor who is actively and lawfully operating a business in Australia. In addition, the nominator, as that standard business sponsor, must not have met certain criteria relating to the operation of a business overseas, in the most recent sponsorship approval.

15. As outlined above, the applicant has not submitted evidence to the Tribunal since lodging the application for review in 2018. In addition, the applicant has failed to respond to correspondence from the Tribunal. In the absence of any contemporary evidence, the Tribunal cannot be satisfied that the applicant is actively and lawfully operating a business in Australia.

16. Given the above, the requirement in r.5.19(3)(b) is not met.

17. The Tribunal is not satisfied that the applicant meets the requirements of r.5.19(3). The applicant has not sought to satisfy the criteria in Direct Entry nomination stream, and as such has not met the requirements in r.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.

    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.