GUNFULL PTY LTD (Migration)

[2023] AATA 2358

GUNFULL PTY LTD (Migration) [2023] AATA 2358 (29 June 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  GUNFULL PTY LTD

REPRESENTATIVE:  Mr Carmine Mercorella (MARN: 0318041)

CASE NUMBER:  1914074

HOME AFFAIRS REFERENCE(S):          BCC2017/3534946

MEMBER:Jade Murphy

DATE:29 June 2023

PLACE OF DECISION:  Melbourne

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

Statement made on 29 June 2023 at 4:18pm

CATCHWORDS 
MIGRATION – nomination – Direct Entry nomination stream – applicant failed to provide the requested information within the prescribed period – nominator did not provide any updated or current information – Term of employment of the visa holder – decision under review affirmed 

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

CASES

Singh v MIBP [2017] FCAFC 67

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 28 May 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 27 September 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)(h)(ii)(D) of the Regulations because the delegate was not satisfied that the tasks to be performed by the nominee in the nominated position correspond to the tasks of an occupation specified in the relevant instrument.

5. On 14 June 2023, the Tribunal wrote to the applicants pursuant to s.359A of the Act and provided particulars of information that it considered at the time would be the reason, or part of the reason, for affirming the delegate's decision, and it invited the applicant to comment on or respond to the information.

6. The particulars of the information were set out as follows:

   ·The Member has reviewed the Employment Contract provided for the nominee and notes that it states in “Schedule 1 – Specified Variables” at ‘Item 5’ that the contract is for a ‘Fixed Term ending 2 years after Mandeep Singh’s subclass 187 visa application is approved.’

   ·The Member considers that this is an express exclusion of the possibility of extending the period of employment.

7. It was explained in the letter to the applicants that this information is relevant to their review because it is a regulatory requirement for the grant of this visa that the terms and conditions of the employee’s employment will not include an express exclusion of the possibility of extending the period of employment pursuant to r.5.19(4)(d)(ii). The applicants were informed that if the Tribunal relies on this information in making its decision, it may find that there is express exclusion of the possibility of extending the period of employment. This would mean that the applicants do not satisfy a requirement for the grant of the visa and that the Tribunal must affirm the decision that is under review.

8. The invitation also specifically stated that the Tribunal must receive the applicants’ comments / response, or any request for an extension of time in which to do so, by 28 June 2023, or they would lose any entitlement they might otherwise have under the Act to appear before the Tribunal.

9. However, the applicants did not provide any comments or response within the prescribed period. Nor did the applicants, or their representative, request an extension of time within the prescribed period in which to do so.

   The Applicant's Loss of the Right to a Hearing

10. The Tribunal notes that it sent the invitation under section 359A of the Act to the email address belonging to the applicants’ representative, Mr Carmine Mercorella, which was the last address for service provided by the applicants in connection with the application for review.

11. However, as noted above, the applicants failed to provide their comments/response to the section 359A invitation within the prescribed period. This means that subsections 359C(2) and subsection 360(3) apply to the applicants and they are not entitled to appear before the Tribunal. Under section 363A, the Tribunal does not have the power to permit a party to do something they are not entitled to do, unless a provision expressly provides otherwise. Section 360 does not provide otherwise.

12. In addition, the Courts have confirmed that where an applicant fails to respond to such a written invitation within the prescribed period, section 363A of the Act precludes the Tribunal from offering an applicant a hearing. In the case of Singh v MIBP [2017] FCAFC 67 the Court held that the operation of ss.359C(2), 360(3) and 363A has no temporal restriction and can take effect at any time before or after a hearing invitation has been issued and before a hearing takes place.

13. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

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 two years full time, and the terms and conditions of that employment do not expressly exclude the possibility of an extension. 

18. On 30 September 2022, the Tribunal wrote to the applicants via their agent and requested they provide information and documents to demonstrate they meet the regulatory criteria for the grant of this nomination. On 2 November 2022, the applicant provided several documents, amongst which was an employment contract, with a commencement date of 1 October 2022.

19. As communicated to the applicant in the Tribunal’s letter of 14 June 2023, the Tribunal reviewed the employment contract provided for the nominee and noted that it states in “Schedule 1 – Specified Variables” at ‘Item 5’ that the contract is for a ‘Fixed Term ending 2 years after Mandeep Singh’s subclass 187 visa application is approved.’ The Tribunal considers that this is an express exclusion of the possibility of extending the period of employment.

20. The applicant did not respond to the Tribunal’s concern as expressed in this regard.

21. In the absence of any submissions or information to the contrary, the Tribunal finds that the specific wording of the most recent employment contract, commencing 1 October 2022 for the nominee, amounts to any extension beyond two years of employment being expressly excluded. The contract stated that it is for a ‘Fixed Term ending 2 years after Mandeep Singh’s subclass 187 visa application is approved’ as set out at “Schedule 1 – Specified Variables” at ‘Item 5’ of the contract dated 1 October 2022.

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

23. 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

24. 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 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).