DAVID ANTONY MCMAHON (Migration) [2023] AATA 3896 (24 July 2023)

Last Updated: 28 November 2023

DAVID ANTONY MCMAHON (Migration) [2023] AATA 3896 (24 July 2023)

DECISION RECORD

DIVISION: Migration & Refugee Division

APPLICANT: DAVID ANTONY MCMAHON

REPRESENTATIVE: Mrs Fernanda de Souza Farias (MARN: 1797148)

CASE NUMBER: 1932722

HOME AFFAIRS REFERENCE(S): BCC2019/4514403

MEMBER: Karen McNamara

DATE: 24 July 2023

PLACE OF DECISION: Sydney

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

Statement made on 24 July 2023 at 5:10pm

CATCHWORDS
MIGRATION – Employer Nomination – approval of nominated position – Direct Entry stream – Tennis Coach – no response to s.359(2) invitation – Tribunal declined indefinite adjournment of decision – genuine need for employment – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 359C, 360, 363A
Migration Regulations 1994 (Cth), r 5.19

CASES
Hasran v MIAC [2010] FCAFC 40
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 October 2019 to reject the application by David Antony McMahon (the applicant) for approval of the nomination of a position under reg 5.19 of the Migration Regulations 1994 (Cth) (the Regulations).
2. The applicant applied for approval on 9 September 2019. The requirements for the approval of the nomination of a position in Australia are found in reg 5.19 of the Regulations, which contains general requirements for approval and additional requirements for approval set out in three alternative streams: a Temporary Residence Transition stream, a Direct Entry stream and a Labour Agreement stream. If the application meets the requirements for approval then the application must be approved: reg 5.19(3)(a). If any of the requirements are not met then the application must be refused: reg 5.19(3)(b).
3. In this case, the applicant has applied for approval of a nomination, seeking to satisfy the criteria in the Direct Entry stream.
4. The primary decision record shows the delegate refused the application because the applicant did not meet regulation 5.19(9)(c ) which requires the application identifies a need for the identified person to be employed in the position, under the direct control of the nominator.
5. The applicant lodged an application for review with the Tribunal on 18 November 2019. The review application was accompanied by a copy of the delegate’s decision.
6. On 14 January 2020 the applicant submitted the following to the Tribunal;
   • Organisational Chart 2019
   • Current Weekly Hours (2019)
   • Simulation of current weekly hours
   • Organisation Chart 2020
   • Weekly hours with visa approval (2020)
   • Hours Distribution going into 2020
   • Summary of Domestic Recruitment Efforts
   • General Ledger (1/7/2018 to 30/6/2019)
   • Email confirmation of offer/acceptance from Dept of Education December 2019
   • Payroll summary 2017/18
   • Letter re: domestic recruitment efforts dated 22 August 2019
   • Accounting ledger extracts 2017/18
   • Letter of support from Noosa Tennis Club (undated)
   • Financial Statements 30 June 2018 & 30 June 2019
   • Individual Tax Returns 2018 & 2019
   • RCB Approval Form 1404 dated 4 September 2019
   • Profit & Loss Statement 30 June 2019
   • Submission by applicant 20 December 2019
   • Tax invoice 3 December 2018
7. The Tribunal also has before it, the Department file containing all information before the delegate at the time of their decision.
8. On 20 June 2023, the Tribunal wrote to the review applicant 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(4) and (9) of the Regulations. 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.
9. The invitation was sent to the authorised recipient at the last email address provided in connection with the review and advised that, if the information was not provided in writing by 4 July 2023, the Tribunal may make a decision on the review without taking further steps to obtain the information and the review applicant would lose any entitlement they might otherwise have had under the Act, to appear before the Tribunal to give evidence and present arguments.
10. As at the time of this decision the Tribunal has received no response from the applicant or an authorised representative of the applicant.
11. 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 (subsection 359C(1) of the Act), and pursuant to s.360(3) of the Act, the review applicant is not entitled to appear before the Tribunal. 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 him or her to appear: Hasran v MIAC [2010] FCAFC 40; (2010) 183 FCR 413 at [26]; and Yang v MIAC [2010] FMCA 890 at [40].
12. Accordingly, as the applicant failed to provide the information requested within the prescribed period, the applicant has lost the right to appear before the Tribunal to give evidence and present arguments relating to this review application.
13. Although the applicant has not requested this, the Tribunal has also considered whether it would be appropriate to adjourn the application for review under s.363(1)(b) of the Act to allow the applicant additional time in which to provide evidence to support its 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. It has also had regard to the decision in Minister for Immigration and Citizenship v Li [2013] HCA 18 regarding the reasonableness of any request for an adjournment, and the Full Federal Court decision in Minister for Immigration and Border Protection v Singh [2014] FCAFC 1 which considered this issue, as well as the decision in Kaur v Minister for Immigration and Border Protection [2014] FCA 915 where analogous issues were discussed.
14. The Tribunal considered whether, in the circumstances of this case, the information that the applicant meets the requirements in rr.5.19(4) and (9) of the 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.
15. The Tribunal has had regard to the fact that the application was refused by the Department on 29 October 2019, because the delegate concluded that the applicant had not demonstrated it met the requirements of r 5.19(4)(f) because r.5.19(9)(c) was not met. 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 almost four years of the reasons for the nomination refusal. Since lodging the review application, the applicant has not engaged with the Tribunal since submitting information on 14 January 2020, and there has been no request for an extension of time within which to respond to the Tribunal’s request for information, or reasons provided for lack of response.
16. The Tribunal has also taken into account the fact that the implications of not providing the information requested in the invitation from the Tribunal, were set out in the Tribunal’s letter of 20 June 2023.
17. The Tribunal is satisfied that the invitation to provide information was sent to the authorised recipient at the correct email address. The invitation was not returned to sender as undeliverable mail. To date, the requested information has not been provided. There is no evidence before the Tribunal to indicate that the requested information is forthcoming.
18. 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 of rr.5.19(4) and (9). The Tribunal is not disposed to delay making a decision indefinitely and, in the circumstances, the Tribunal has decided to proceed to a decision without taking further steps to obtain the information.
19. Accordingly, the Tribunal has decided not to exercise its discretion under s.359C(1) to take further steps to obtain information from the applicant, or to exercise its discretion under s.363(1)(b) 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.
20. The applicant was represented in relation to the review.
21. For the following reasons, the Tribunal has decided to affirm the decision under review to refuse the nomination.

CONSIDERATION OF CLAIMS AND EVIDENCE

22. The issue in this case is whether the applicant meets the general requirements for approval of the nomination set out in reg 5.19(4) and the stream specific requirements set out in reg 5.19(9), which are extracted in the attachment to this decision. For the nomination to be approved, all the requirements must be met.

Genuine need for employment – regs 5.19(9)(c) and (d)

23. Regulation 5.19(9)(c) requires the nomination application to identify a need for the identified person to be employed in the position, under the direct control of the nominator, and reg 5.19(9)(d) requires this need to be genuine.
24. The review applicant nominated the position/occupation of Tennis Coach (ANZSCO 452316). The Tribunal notes that the delegate, in undertaking their assessment of the evidence before them, found that the evidence did not substantiate the need for the applicant to employ the nominee in an ongoing full-time position.
25. The delegate therefore found (as recorded on the primary decision record) that the application for approval ‘has not identified a need for the nominator to employ a paid employee to work in the position under the applicant’s direct control.’ The delegate therefore found that the applicant did not meet the requirements of r.5.19(9)(c ).
26. The Tribunal notes that relevant to this matter, reg 5.19(9)( c) states ‘the application identifies a need for the identified person to be employed in the position under the direct control of the nominator.’
27. On 20 June 2023, the Tribunal invited the applicant to provide information including the need to employ the nominee in the nominated position. As noted above, no response has been received from the applicant to the Tribunal’s invitation to provide information.
28. The Tribunal notes that almost four years have lapsed since the applicant lodged its review application with the Tribunal and over three and half years since the applicant last provided submissions. As at the time of this decision the applicant has not provided current information about the need to employ the nominee to work in the nominated position. As such the Tribunal is unable to be satisfied at the time of this decision, that the application identifies a need for the identified person to be employed in the position, under the direct control of the nominator.
29. Given the above findings, the Tribunal is not satisfied that reg 5.19(9)(c) is met. Accordingly, reg 5.19(4)(f) is not met.
30. As the Tribunal has found that the applicant has not met r.5.19(4)(f), it is not required to consider the rest of the requirements as set out in rr.5.19(4) and (9).
31. For these reasons the Tribunal is not satisfied that the applicant meets the requirements of reg 5.19. Accordingly, reg 5.19(3)(b) requires that the nomination must be refused. The decision under review must be affirmed.

DECISION

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

Karen McNamara
Member

ATTACHMENT – EXTRACTS FROM THE MIGRATION REGULATIONS 1994

5.19 Approval of nominated positions—Subclass 186 (Employer Nomination Scheme) visa and Subclass 187 (Regional Sponsored Migration Scheme) visa

Application

(1) A person (the nominator) (including a partnership or unincorporated association) may apply to the Minister for approval of the nomination of a position in Australia.

(2) The application must:

(a) be made in accordance with approved form 1395 (Internet); and

(b) identify the position; and

(c) identify a person (the identified person) in relation to the position; and

(d) identify an occupation in relation to the position; and

(e) identify the subclass and stream to which the nomination relates, which must be one of the following:

(i) a Subclass 186 (Employer Nomination Scheme) visa in the Temporary Residence Transition stream;

(ii) a Subclass 187 (Regional Sponsored Migration Scheme) visa in the Temporary Residence Transition stream;

(iii) a Subclass 186 (Employer Nomination Scheme) visa in the Direct Entry stream;

(iv) Subclass 187 (Regional Sponsored Migration Scheme) visa in the Direct Entry stream;

(v) a Subclass 186 (Employer Nomination Scheme) visa in the Labour Agreement stream; and

(f) be accompanied by the fee mentioned in regulation 5.37; and

(fa) be accompanied by any nomination training contribution charge the nominator is liable to pay in relation to the nomination; and

(fb) identify the annual turnover (within the meaning of the Migration (Skilling Australians Fund) Charges Regulations 2018) for the nomination; and

(g) 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.

Approval of nomination

(3) The Minister must, in writing:

(a) approve the nomination if the Minister is satisfied that the requirements set out in subregulation (4) are met; or

(b) otherwise—refuse to approve the nomination.

Requirements for approval—general

(4) The requirements to be met for the nomination to be approved are as follows:

(a) the application is made in accordance with subregulation (2);

(b) 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;

(c) if it is mandatory, in the State or Territory in which the position is located, for a person to:

(i) hold a licence of a particular kind; or

(ii) hold registration of a particular kind; or

(iii) be a member (or a member of a particular kind) of a particular professional body;

to perform tasks of the kind to be performed in the occupation, the identified person is, or is eligible to become, the holder of the licence, the holder of the registration, or a member of the body, at the time of application;

(d) the nominator has a satisfactory record of compliance with the laws of the Commonwealth, and of each State or Territory in which the nominator operates a business and employs employees in the business, relating to employment;

(da) any debt due by the nominator as mentioned in section 140ZO of the Act (recovery of nomination training contribution charge and late payment penalty) has been paid in full;

(e) if the nomination relates to a visa in a Temporary Residence Transition stream—the requirements set out in subregulation (5) are met;

(f) if the nomination relates to a visa in a Direct Entry stream—the requirements set out in subregulation (9) are met;

(g) if the nomination relates to a visa in a Labour Agreement stream—the requirements set out in subregulation (14) are met.

...

Direct Entry stream—additional requirements for approval

(9) If the nomination relates to a visa in a Direct Entry stream, the following requirements must also be met:

(a) the nominator is actively and lawfully operating a business in Australia;

(b) if the nominator’s business activities include activities related 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;

(c) the application identifies a need for the identified person to be employed in the position, under the direct control of the nominator;

(d) there is a genuine need for the identified person to be employed in the position, under the direct control of the nominator;

(e) the identified person will be employed on a full‑time basis in the position for at least 2 years;

(f) the terms and conditions of the identified person’s employment will not include an express exclusion of the possibility of extending the period of employment;

(g) the nominator’s business has the capacity to employ the identified person for at least 2 years and to pay the person at least the annual market salary rate for the occupation each year;

(h) the requirements set out in subregulation 2.72(15) are met, applying subregulations 2.72(15) and (16) as if:

(i) paragraph 2.72(15)(a) did not apply; and

(ii) references to the nominee were references to the identified person; and

(iii) references to the person were references to the nominator;

(i) either:

(i) there is no information known to Immigration that indicates that the employment conditions (other than in relation to earnings) that will apply to the identified person are less favourable than those that apply, or would apply, to an Australian citizen or an Australian permanent resident performing equivalent work at the same location; or

(ii) it is reasonable to disregard any such information;

(j) the requirements set out in subregulation (10) or (12) are met.

Occupations for the Subclass 186 (Employer Nomination Scheme) visa in the Direct Entry stream

(10) The requirements of this subregulation are as follows:

(a) the tasks to be performed in the position will be performed in Australia and correspond to the tasks of an occupation specified in a legislative instrument:

(i) made under subregulation (11); and

(ii) in force at the time the application is made;

(b) the occupation applies to the identified person in accordance with that instrument.

(11) The Minister may, by legislative instrument, specify occupations for the purposes of subregulation (10) and, for each occupation, specify any matters for the purposes of determining whether the occupation applies to an identified person, including matters relating to any of the following:

(a) the nominator;

(b) the identified person;

(c) the occupation;

(d) the position in which the identified person is to work;

(e) the circumstances in which the occupation is undertaken;

(f) the circumstances in which the person is to be employed in the position.

Occupations for the Subclass 187 (Regional Sponsored Migration Scheme) visa in the Direct Entry stream

(12) The requirements of this subregulation are as follows:

(a) the position is located at a place in regional Australia;

(b) the business operated by the nominator is located at that place;

(c) the position cannot be filled by an Australian citizen or an Australian permanent resident who is living in, or would move to, the local area concerned;

(d) the tasks to be performed in the position correspond to the tasks of an occupation specified in a legislative instrument:

(i) made under subregulation (13); and

(ii) as in force at the time the application is made;

(e) the occupation applies to the identified person in accordance with that instrument;

(f) the Minister has been advised by a body that meets the requirements set out in paragraph (g) of this subregulation about matters relating to the following:

(i) whether the identified person would be paid at least the annual market salary rate for the occupation;

(ii) whether there is a genuine need for the identified person to be employed in the position, under the direct control of the nominator;

(iii) whether the position can be filled by an Australian citizen or an Australian permanent resident who is living in, or would move to, the local area concerned;

(g) the body must:

(i) be specified in a legislative instrument made by the Minister for the purposes of this paragraph; and

(ii) be located in the State or Territory in which the position is located; and

(iii) have responsibility for the local area in which the position is located.

(13) The Minister may, by legislative instrument, specify occupations for the purposes of subregulation (12) and, for each occupation, specify any matters for the purposes of determining whether the occupation applies to an identified person, including matters relating to any of the following:

(a) the nominator;

(b) the identified person;

(c) the occupation;

(d) the position in which the identified person is to work;

(e) the circumstances in which the occupation is undertaken;

(f) the circumstances in which the person is to be employed in the position.

...

Meaning of regional Australia

(16) In this regulation:

regional Australia means a part of Australia specified in legislative instrument made by the Minister for the purposes of this definition.