1406625 (Migration)
[2015] AATA 3857
•14 December 2015
1406625 (Migration) [2015] AATA 3857 (14 December 2015)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT: GV Orchard Cottage Pty Ltd
CASE NUMBER: 1406625
DIBP REFERENCE(S): BCC2014/250726
MEMBER:Mary-Ann Cooper
DATE:14 December 2015
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decision under review to refuse the nomination.
Statement made on 14 December 2015 at 4:48pm
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW
This is an application for review of a decision made by a delegate of the Minister for Immigration on 1 April 2014 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).
The applicant applied for approval on 26 January 2014. 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 (r.5.19(3)) stream and a Direct Entry nomination (r.5.19(4)) stream. 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).
In this case, the applicant has applied for approval of a nomination, seeking to satisfy the criteria in the Direct Entry Nomination stream.
The delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19(4)(b)(i) and r.5.19(4)(h)(ii)(D) of the Regulations because he was not satisfied that the business was actively trading nor was he satisfied that the nominated position required a Skill level of 1,2 or 3.
The applicant, as represented by its owner and sole director, appeared before the Tribunal on 11 November 2015 to give evidence and present arguments. The Tribunal also received oral evidence from the nominee for the position.
The applicant was represented in relation to the review by its registered migration agent who also attended the hearing.
For the following reasons, the Tribunal has decided to affirm the decision under review to refuse the nomination.
CONSIDERATION OF CLAIMS AND EVIDENCE
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 r.5.19(4), which is extracted in the attachment to this decision. For the nomination to be approved, all the requirements must be met.
The application is compliant: r.5.19(4)(a)
Regulation 5.19(4)(a) requires that the application for approval must be in the approved form, must be accompanied by the prescribed fee and must identify a need for the nominator to employ a paid employee to work in the position under their direct control.
The Department’s file demonstrates that the application for approval was made on the approved form. No fee is prescribed for the application.
The nomination application identifies the need for a Hostel Manager at the applicant’s hostel in regional Victoria. At the hearing, the director told the Tribunal that his family’s orchard business frequently employs backpackers to pack its fruit. It had decided it was more convenient and more manageable for these employees to be accommodated closer to the packing shed. As there was an existing homestead on the property, the director said he decided to open it for the use of the workers and he established the applicant company to operate it. He had been unable to continue managing it himself and had needed to employ someone else to do so.
An organisation chart provided at the hearing demonstrated that the applicant operates the accommodation property, the hostel, and its director directly controls the single employee.
Accordingly, the requirements in r.5.19(4)(a) are met.
Nominator is actively and lawfully operating a business in Australia: r.5.19(4)(b)
Regulation 5.19(4)(b) requires that applicant is actively, lawfully and directly operating a business in Australia.
The delegate’s decision, a copy of which was provided with the review application, records that one of the reasons the delegate refused the application was because the business had only been trading for a few months when the nomination application was lodged. The delegate noted the Department’s policy which required that, in order to be regarded as ‘actively trading’, the business must have operated for a full period of 6 months from the time it actively commenced operations. At the time of application it had not been operating for 6 months and, consequently, the delegate found that the applicant did not satisfy r.5.19(4)(b).
Given the passage of time, the applicant was able to provide additional information demonstrating its active operation. Documents available to the Tribunal demonstrate that the applicant is a proprietary company, established in 2013, limited by shares and duly registered under the Australian corporations law. It conducts its business in a regional town in Victoria, and retains an active Australian Business Number (ABN) status and ongoing registration for Goods and Services Tax (GST). Following the hearing, financial accounts and BAS statements were provided which demonstrated its ongoing active operation.
Based on the above information, the Tribunal is satisfied that the applicant is actively, lawfully and directly operating the business in Australia.
Position is not labour-hire: r.5.19(4)(c)
Regulation 5.19(4)(c) applies to nominators’ whose business activities include those relating to labour hire to an unrelated business. In these cases, the nominated position must be within the business activities of the nominator.
There is no evidence before the Tribunal that the applicant is involved in labour hire activities and the director confirmed this at the hearing.
Accordingly, the requirement in r.5.19(4)(c) does not apply.
Term of employment of the visa holder: r.5.19(4)(d)
Regulation 5.19(4)(d) requires that the nominee will be employed in the nominated position for at least 2 years full time, and the terms and conditions of that employment will not expressly exclude the possibility of the extension of the employment.
The applicant’s director confirmed that the employment contract provided, dated 14 January 2014, was the nominee’s current contract. Due to concerns raised at the hearing, another employment contract, dated 25 November 2015, was provided. It specifically provides that it remains in force for a minimum period of two years unless terminated earlier in accordance with the contract. In this context the Tribunal notes that the contract provides that the employee/nominee is required to serve a probationary period of six (6) months (clause 4).
The oral evidence at the hearing was that the nominee had been employed in the nominated position since late October/November 2013. Given such lengthy existing service, the reason for the inclusion of a probation period is unclear. It is not addressed in the accompanying submission. In this context the Tribunal notes the Departmental guidelines which state in this respect:
Unacceptable probationary provisions
The following probationary provisions would not be able to satisfy relevant regulations:
· the nominator provides 2 or more contracts for the nominated position, with one contract relating to the probationary period and the remaining contracts relating to the rest of the 2 year employment period (there must be only one contract, covering the entire 2 year period)
· the probationary period covers the whole 2 year employment period
· Probationary periods of 6 months to 1 year, unless the employer can demonstrate this applies to all employees.
Employers who want to introduce probationary periods under any of the circumstances mentioned above are to be advised that they should use an appropriate temporary working visa to recruit a potential employee and seek to nominate them for permanent residence only when they are satisfied with the employee's work performance.
The Tribunal notes that, while it may be guided by policy, it is not bound to follow it[1] and to the extent that policy is inconsistent with the Regulations, the Tribunal is required to depart from it. The Tribunal has taken into account the individual circumstances of the applicant, and, given her relatively lengthy period of employment, sees no reason to depart from the Department’s policy guidelines in this respect. It considers that the inclusion of such a long probationary period adds a degree of uncertainty to the nominee’s employment and undermines the claim that the employee will be employed full-time for at least 2 years.
[1] See Brennan, J. in Re Drake (No. 2) (1978-1980) 2 ALD 634
In addition the employment contract contains a provision, at clause 24, which entitles to employer to suspend the employee’s employment at any time if, by reason of circumstances beyond the control of the employer, the employer “cannot usefully utilise the services of the employee.”
In combination, these factors cast doubt on the claim that the nominee/employee will be employed full-time in the nominated position for at least two years.
In addition, at the hearing, the Tribunal noted that, in the absence of any recent financial information about the company, it was unable to determine the viability of the business and whether at least 2 years employment would be available to the employee.
Following the hearing the applicant provided a Balance Sheet and Profit & Loss Statement for the period 1 July 2014 to 30 June 2015. The covering statement from the accountant notes that the statements are based upon information provided by the company and have not been audited. The statements demonstrate that the company operated at a $11,854 loss in the 2014/2015 financial year. While the comparative figures for 2013/2014[2] indicate that the company operated at a small profit, those figures reveal that no wages were paid in that period. This is inconsistent with the evidence of the applicant’s director and the nominee that she had been working in the role since late 0ctober/November 2013. It is also inconsistent with a written submission received after the hearing, which stated that the nominee has been employed in the position of Hostel Manager at GV Orchard Cottage for nearly three years. If this evidence and the submission are accepted as correct, an amount for wages should show in the 2013/2014 financial year’s comparative figures. Even if the Tribunal accepts this as an oversight, given the stated annual wage of the nominee/employee of $54,400, the small profit indicated of $243.00 would consequently also become a loss. On this basis, the Tribunal is not satisfied that the business can financially sustain the fulltime employment of the nominee for at least 2 years.
[2] The Tribunal notes that the 2013/2014 figure covers a shorter period as the business did not commence operation until September 2013.
On the basis of the nominee’s employment contract, which provides for a probationary period of 6 months and for the applicant employer to suspend her employment at any time, as well as the applicant’s Profit & Loss Statement for 2014/2015 which demonstrates it incurred a financial loss in the last financial year, the Tribunal is not satisfied that the nominee/employee will be employed fulltime in the nominated position for at least 2 years.
Accordingly, the requirements in r.5.19(4)(d) are not met.
As noted above, if any of the requirements of r.5.19(4) are not met, the application must be refused: r.5.19(5).
CONCLUSION
For the above reasons the Tribunal is not satisfied that the applicant meets the requirements of r.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 r.5.19(3). Accordingly, the nomination of the position cannot be approved. Therefore, the Tribunal must affirm the decision under review.
DECISION
The Tribunal affirms the decision under review to refuse the nomination.
Mary-Ann Cooper
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
(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) both 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;
(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 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 at a skill level of ANZSCO skill level 1, 2 or 3;
(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).
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
Legal Concepts
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Judicial Review
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Procedural Fairness
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Statutory Construction
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