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Air Master Compressors P/L (Migration) [2020] AATA 2847 (3 June 2020)

Last Updated: 12 August 2020

Air Master Compressors P/L (Migration) [2020] AATA 2847 (3 June 2020)

DECISION RECORD

DIVISION: Migration & Refugee Division

APPLICANT: Air Master Compressors Trust

CASE NUMBER: 1813070

HOME AFFAIRS REFERENCE(S): BCC2017/4862151

MEMBER: K. Chapman

DATE: 3 June 2020

PLACE OF DECISION: Brisbane

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

Statement made on 03 June 2020 at 4:32pm

CATCHWORDS
MIGRATION – nomination – applicant failed to provide the requested information within the prescribed period– training requirements not met – applicant failed to provide information regarding financial position or training obligations – decision under review affirmed

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

CASES
Hasran v MIAC [2010] FCAFC 40
Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617
Manna v Minister for Immigration and Citizenship [2012] FMCA 28

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 April 2018 to refuse 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 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. The applicant, Air Master Compressors Trust, applied for approval on 19 December 2017. The applicant nominated Mr Silvestre Mirabel (‘the nominee’) in the occupation of Mechanical Engineering Technician (ANZSCO Code 312512). The application for nomination was made in connection with the Employer Nomination Scheme. In this case, the applicant has applied for approval 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)(f) of the Regulations, because they did not meet their training requirements during the period of their most recent approval as a standard business sponsor, and it was not reasonable to disregard this matter. On 4 May 2018, the applicant applied to the Tribunal for review of the nomination decision. The applicant submitted a copy of the delegate’s decision with their application for review.
5. On 30 March 2020, the Tribunal wrote to the applicant pursuant to subsection 359(2) of the Act inviting them to provide current information addressing the relevant criteria under r.5.19(2) and (3) of the Regulations. The Tribunal is satisfied that this invitation was properly despatched to the applicant’s email address. The applicant failed to respond to the information within the prescribed period identified in the invitation. No response to that invitation has been received by the Tribunal at the time of this decision.
6. Where an applicant is invited to provide further information in accordance with subsection 359(2) of the Act, and fails to do so within the prescribed period, the Tribunal may make a decision on the review without taking any further action to obtain the information according to subsection 359C(1) of the Act. In these circumstances, the applicant is not entitled to appear before the Tribunal in accordance with subsection 360(3) of the Act. Of note, 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 the review applicant to appear before it as outlined in the Full Federal Court matter of Hasran v MIAC [2010] FCAFC 40.
7. The Tribunal has carefully considered whether to afford additional time to the applicant to give the information requested in the s.359(2) invitation, or to provide further material in support of their application for review. In doing so, it has paid careful regard to the guidance in the decisions of Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617 and Manna v Minister for Immigration and Citizenship [2012] FMCA 28 where the Courts held that the Tribunal is not required to indefinitely defer its decision making process.
8. The Tribunal has taken into account that the applicant has been aware since around 14 April 2018 of the reasons for the nomination application being refused and also that the implications of not responding to the information requested in the invitation from the Tribunal of 30 March 2020 were set out in that correspondence.
9. In these circumstances, the Tribunal considers that the applicant has had sufficient time in which to provide the information requested in the s.359(2) invitation and address the central issues arising in the application for review. On balance, the Tribunal considers it appropriate to make its decision on the review without taking any further action to obtain the information requested in the aforementioned invitation. Accordingly, the Tribunal has made its decision on this review application having due regard to the documentary material before it.
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 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.

Future employment of the visa holder: r.5.19(3)(d)

12. Regulation 5.19(3)(d) only applies to certain nominees (those described in r.5.19(3)(c)(i)). For this class of person, the Regulations require that the nominee will be employed on a full time basis for at least 2 years on terms that do not expressly preclude the possibility of an extension. The Tribunal is satisfied that the nominee is a person to whom r.5.19(3)(c)(i) and r.5.19(3)(d) apply, given his nominated occupation.
13. There is a paucity of contemporary information before the Tribunal regarding the future employment of the nominee, particularly as the applicant failed to respond to the invitation pursuant to s.359(2) of the Act dated 30 March 2020. On balance, the Tribunal cannot be satisfied that the nominee will be employed by the applicant on a full time basis in the nominated position for at least 2 years. Accordingly, the Tribunal finds that the applicant does not satisfy r.5.19(3)(d)(i).
14. Given the above findings, the requirement in r.5.19(3)(d) is not met.

No less favourable terms and conditions of employment: r.5.19(3)(e)

15. Regulation 5.19(3)(e) requires that the terms and conditions of employment applicable to the nominated position will be no less favourable than those that are, or would be, provided to an Australian citizen or permanent resident performing equivalent work in the same workplace at the same location.
16. There is no contemporary information before the Tribunal regarding the terms and conditions of employment within the applicant’s business, particularly as it failed to respond to the invitation pursuant to s.359(2) of the Act dated 30 March 2020. On balance, the Tribunal cannot be satisfied that the terms and conditions of employment applicable to the nominated position will be no less favourable than those that are, or would be, provided to an Australian citizen or permanent resident performing equivalent work in the same workplace at the same location.
17. Accordingly, the requirement in r.5.19(3)(e) is not met.

Training commitments and obligations: r.5.19(3)(f)

18. Regulation 5.19(3)(f) requires the applicant to have fulfilled any commitments made relating to meeting training requirements, and complied with applicable obligations relating to training requirements, during the period of the applicant’s most recent sponsorship approval. These requirements may be disregarded if it is reasonable to do so.
19. As reflected in the delegate’s decision, the applicant claimed in the application for nomination that it ‘incurred payroll expenses in the 12 months prior to application of approximately $343,016 and to have incurred training expenses over that same period of approximately $1,500.’ The applicant also submitted to the Tribunal receipts for payments to the Victoria University Foundation of $1,500 on 19 December 2017 and $5,500 on 4 May 2018 (following the time of the delegate’s decision). It appears that the latter payment was made to correct the deficiency identified by the delegate.
20. The applicant must demonstrate that it has satisfied its training commitments and obligations during each year of its most recent approval as a standard business sponsor. The Tribunal has carefully considered Instrument IMMI 13/030, which sets out the Training Benchmarks for the purpose of r.5.19(3)(f)(i)(B). Training Benchmark A is satisfied if an applicant business demonstrates recent expenditure, to the equivalent of at least 2% of the payroll of the business, in payments allocated to an industry training fund that operates in the same industry as the business. Training Benchmark B is satisfied if an applicant business demonstrates recent expenditure, to the equivalent of at least 1% of the payroll of the business, in the provision of training to employees of the business. There is no persuasive evidence before the Tribunal that the applicant expended funds pertaining to Training Benchmark B.
21. Whilst the Tribunal is prepared to accept that the applicant made payments totalling $7,000 to the Victoria University Foundation, for the purpose of Training Benchmark A, they failed to submit sufficient persuasive financial records to accurately demonstrate their payroll during each year of their most recent standard business sponsorship approval. Of note, the applicant failed to provide any information to the Tribunal regarding its payroll, financial position or training obligations, despite being invited to do so pursuant to s.359(2) of the Act.
22. Following careful consideration of the evidence, on balance, the Tribunal cannot be satisfied that the applicant met the requirements of either Training Benchmark A or B during each year of its most recent approval as a standard business sponsor. Accordingly, the Tribunal finds that the applicant does not satisfy r.5.19(3)(f)(i). There is no material before the Tribunal to suggest that it is reasonable to disregard the aforementioned subparagraph pursuant to r.5.19(3)(f)(ii).
23. Therefore, the Tribunal finds that the applicant does not satisfy r.5.19(3)(f).

Genuine need to employ nominee: r.5.19(3)(i)

24. Regulation 5.19(3)(i) requires that there is a genuine need for the nominator to employ the person, as a paid employee, to work in the position under the nominator’s direct control.
25. There is a dearth of contemporary information before the Tribunal regarding the genuine need of the applicant to employ the nominee in the nominated position, particularly as the applicant failed to respond to the invitation pursuant to s.359(2) of the Act dated 30 March 2020. On balance, the Tribunal cannot be satisfied that there is a genuine need for the nominator to employ the person, as a paid employee, to work in the position under the nominator’s direct control. Therefore, the Tribunal finds that the applicant does not satisfy r.5.19(3)(i).
26. For the above reasons, 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

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

K. Chapman
Member

ATTACHMENT - EXTRACTS FROM THE MIGRATION REGULATIONS 1994

5.19 Approval 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

(iv) identifies a need for the nominator to employ the person, as a paid employee, to work in the position under the nominator’s direct control; 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; and

(i) there is a genuine need for the nominator to employ the person, as a paid employee, to work in the position under the nominator’s direct control.