Colser Investments Pty Ltd (Migration)

[2022] AATA 4166

Colser Investments Pty Ltd (Migration) [2022] AATA 4166 (12 September 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Colser Investments Pty Ltd

REPRESENTATIVE:  Mr Amber Gupta (MARN: 0533773)

CASE NUMBER:  1922897

HOME AFFAIRS REFERENCE(S):          BCC2018/872941

MEMBER:Jade Murphy

DATE:12 September 2022

PLACE OF DECISION:  Melbourne

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

Statement made on 12 September 2022 at 4:21pm

CATCHWORDS
MIGRATION – Employer Nomination – approval of nominated position – Direct Entry nomination stream – Café or Restaurant Manager – tasks to be performed – no response to section 359(2) invitation – term of employment – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 140GB, 140GBA, 359C, 360, 363A

Migration Regulations 1994 (Cth), rr 2.72, 2.73

CASES
Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617
Kaur v Minister for Immigration and Border Protection [2014] FCA 915
Manna v Minister for Immigration and Citizenship [2012] FMCA 28
Minister for Immigration and Border Protection v Singh [2014] FCAFC 1
Minister for Immigration and Citizenship v Li [2013] HCA 18
Yang v MIAC [2010] FMCA 890

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 29 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).

2. The applicant applied for approval on 23 February 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. The delegate refused the application on the basis the applicant’s nomination did not satisfy reg 5.19(4)(h)(ii)(D) of the Regulations because the delegate was not satisfied that the applicant had demonstrated that the tasks to be performed by the nominee correspond to the tasks of an occupation specified in the relevant instrument.

5. On 17 August 2022, the Tribunal wrote to the applicant and invited it to provide information to the Tribunal pursuant to s.359(2) of the Act. Specifically, the Tribunal invited information to be provided demonstrating that the business currently met all relevant criteria in r.5.19(4), including but not limited to, the criteria that the Department had found was not met. The Tribunal provided a copy of r.5.19(4) for reference. The Tribunal requested that the information be provided by 31 August 2022, noting that an extension of time to respond could be requested but that this would need to be made by 31 August 2022. Finally, the Tribunal advised the applicant that if the requested information was not received by the due date (or by the extended due date, if an extension of time was requested and granted), then the entitlement to appear at the Tribunal hearing would be lost and the Tribunal might proceed to make its decision on the available evidence without taking further steps to obtain the requested information.

6. The applicant did not respond to the request to provide information within the timeframe, nor did it request an extension of time in which to do so.

7. As the applicant failed to respond within the prescribed period, s.359C(1) applies and pursuant to s.360(3), the applicant is not entitled to appear before the Tribunal. The Tribunal has no power to permit them to appear, see Yang v MIAC [2010] FMCA 890.

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

9. In doing so, the Tribunal has considered the decisions in Huo v Minister for Immigration and Multicultural Affairs[1] and Manna v Minister for Immigration and Citizenship[2] where the Courts have held that the Tribunal is not required to indefinitely defer its decision-making processes. It has also had regard to the decision in Minister for Immigration and Citizenship v Li[3] regarding the reasonableness of any request for an adjournment, and the Full Federal Court decision in Minister for Immigration and Border Protection v Singh[4] which considered this issue, as well as the more recent decision in Kaur v Minister for Immigration and Border Protection[5] where analogous issues were discussed.

   [1] [2002] FCA 617.

   [2] [2012] FMCA 28.

   [3] [2013] HCA 18 (8 May 2013).

   [4] [2014] FCAFC 1 (4 February 2014).

   [5] [2014] FCA 915 (28 August 2014).

10. The Tribunal considered whether, in the circumstances of this case, the information that the applicant meets the requirements in regulation 5.19(4) of the Migration Regulations is likely to be forthcoming and whether the applicant has 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 application was refused by the Department on 29 July 2019 because the delegate was not satisfied that the applicant had demonstrated that the tasks to be performed by the nominee correspond to the tasks of an occupation specified in the relevant instrument and as a result was not satisfied the applicant met r.5.19(4)(h)(ii)(D). 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 for over three years of the reasons for the nomination refusal.

12. 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, or when the applicant will provide information in writing as to whether the nominating business meets the requirements of r.5.19(4). The Tribunal is not disposed to delaying making a decision indefinitely.

13. Accordingly, the Tribunal has decided not to exercise its discretion under subsection 363(1)(b) of the Act to adjourn the review any further to allow the applicant more time in which to demonstrate that the nominating business meets the requirements of r.5.19(4).

14. The applicant was represented in relation to the review.

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 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.

    Term of employment of the visa holder: reg 5.19(4)(d)

17. Regulation 5.19(4)(d) requires the nominee to be employed in the nominated position for at least 2 years full time, and the terms and conditions of that employment do not expressly exclude the possibility of an extension. 

18. At the time of review application, the applicant did not provide any new supporting financial information. The only supporting information the Tribunal has reference to is contained on the Department file and is what the delegate had before them when they made their decision. This information is now at least three years old, so the Tribunal is unable to give it any weight.

19. The Tribunal wrote to the applicant under subsection 359(2) of the Act inviting the applicant to provide information in writing demonstrating that the nominating business meets all the requirements of the criteria in regulation 5.19(4) of the Migration Regulations. The applicant has failed to respond. The Tribunal has no contemporary information before it concerning the financial capacity of the nominating business to pay the nominee's salary for at least two years.

20. The applicant has not provided sufficient evidence of its financial capacity to employ the nominated person on a full-time basis for at least two years.

21. Based on the evidence before it, the Tribunal is not satisfied that the nominating business has demonstrated its financial capacity to pay the nominated full-time salary for the nominated position of Café or Restaurant Manager (ANZSCO 141111) for at least two years.

22. Accordingly, the requirement in reg 5.19(4)(d) is not met.

23. As the Tribunal has found the applicant does not meet r.5.19(4)(d) it is not required to consider the rest of the requirements as set out in r.5.19(4).

24. 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

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

    Jade Murphy
    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).