1507466 (Migration)

1507466 (Migration) [2016] AATA 3045 (14 January 2016)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Sambo Stripping & Cleaning Pty Ltd
CASE NUMBER:  1507466
DIBP REFERENCE(S):  BCC2014/3456879
MEMBER:Lesley Hunt
DATE:14 January 2016
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision not to approve the nomination.

Statement made on 14 January 2016 at 4:38pm

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 13 May 2015 to refuse to approve the applicant’s nomination under s.140GB of the Migration Act 1958 (the Act) and r.2.72 of the Migration Regulations 1994 (the Regulations).
The applicant applied for approval on 16 December 2014. A nomination of an occupation for a Subclass 457 visa is made under s.140GB of the Act and r.2.73 of the Regulations. Regulations 2.72(3) to (12) prescribe the criteria that must be satisfied for the Minister to approve a nomination by a person. These criteria are extracted in the attachment to this decision. For visa applications made from 23 November 2013, additional criteria are specified in s.140GBA.
The delegate decided not to approve the nomination on the basis that the applicant did not satisfy sub cl. 2.72(10)(f) because the delegate found that the nominated position was not genuine.
The applicant appeared before the Tribunal on 6 January 2016 to give evidence and present arguments.
The applicant was represented in relation to the review by its registered migration agent. The representative attended the Tribunal 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 the present case is whether the applicant meets the criteria for approval of the nomination. The Tribunal must approve the nomination if the applicable requirements in r.2.72 and, for nomination applications made from 23 November 2013, s.140GBA have been met: s.140GB(2).
Position must be genuine
Regulation 2.72(10)(f) requires that the position associated with the nominated occupation is genuine.
At the hearing Mr Samarakoon Basnayaka appeared on behalf of Sambo Stripping and Cleaning Pty Ltd to provide evidence and arguments in support of the review application.
Mr Basnayaka clarified that the company, Sambo Stripping and Cleaning Pty Ltd has been operating as a company since 2011. Prior to that he ran the business as a sole trader for four to five years. He stated that he is the company director and office manager and he employs a contract administrator, an accountant and has approximately 30 subcontractors who do the actual cleaning and stripping work. He clarified that he used to pay the cleaners as employees however they are all now engaged as sub-contractors.
Mr Basnayaka clarified that the company was approved as a standard business sponsor in 2013 and that approval remains current.
Mr Basnayaka clarified that he was introduced to the nominee through a friend in Sri Lanka. He believes she has the qualifications, computer skills and experience necessary for the nominated position of Sales and Marketing Manager. He stated that she currently works as a marketing manager for a computer institute in Kandy, Sri Lanka. She has a Masters in Business and Marketing, an Information Technology degree and another degree.
Mr Basnayaka clarified that the position of Sales and Marketing Manager is new to the organisation – it has not been filled previously. The Tribunal referred to the application for approval of the nomination in which he indicated that it was necessary to fill the position quickly as he was too busy in the role of both director and office manager to be able to market and develop the business successfully. The Tribunal stated that as this was the situation in December 2014 and it was now January 2016, it is reasonable to assume he would have made additional attempts to fill the position from within the Australian labour market.
Mr Basnayaka responded that he had not made any additional effort to employ someone in the position since December 2014. He clarified that he does not have a personal relationship with the nominee; however he has interviewed her twice over the telephone and he travelled to Sri Lanka and interviewed her once in person. He is satisfied that she has directly relevant experience and it would be good to employ someone he knows and trusts and with whom he can communicate well. This is why he wants her for the job. He clarified that she is married and her husband would be included in her visa application.
Mr Basnayaka stated that he is currently doing the tasks involved in the sales and marketing of the business. He stated that he has other businesses and this means he cannot devote the necessary time to sales and marketing for Sambo Stripping and Cleaning. He clarified that he finds it difficult to write tenders which are required for national contracts. Last month he missed a good opportunity to tender for Myers and Target for this reason.
He stated that his other businesses include a hotel and restaurant in Melbourne and he has obtained cleaning contracts for Hoyts Cinemas in Sydney, Canberra and Melbourne. He is always very busy. He clarified that the contract manager works full time and is like an area manager. This position deals with store managers and cleaners and maintains the day to day operations of the business.
The Tribunal referred the applicant to his statement in his application that he was not able to fill the position in 2014 and asked him why he was not able to fill it. The Tribunal stated that it found it hard to accept that he was not able to fill the position from within the Australian labour force, particularly as there were many new graduates and it is reasonable to assume there would others looking for sales and marketing work that paid $54,000 per year. He responded that he received around 10 applications and interviewed five or six applicants. He stated that he wanted someone with experience and good contacts within the industry; however the experienced applicants were asking for higher salaries, some as much as $100,000 a year, and he could not afford this.
The Tribunal asked the applicant why, if he had an accountant, his financial statements were prepared by EsPee Accountants in Notting Hill. He stated that he has four businesses and this accounting firm does all his financial reports. They advised him that he needed a Sales and Marketing person to be able to grow the business.
The Tribunal noted that he had submitted financial reports for 2012 and 2013 however he had not submitted updated financial reports for 2014 and 2015. He responded that he would submit the financial report for 2014; however he had not yet completed the one for 2015.
The Tribunal referred the applicant to the financial report for 2012 and noted that after all expenses had been deducted the profit for that financial year was listed as $6,793.09. Also the financial report for 2013 indicated that the profit after all expenses had been deducted was $14,126.23. The Tribunal put to the applicant that these figures indicated that the business could not afford to pay an additional salary of $54,000 per year to a Sales and Marketing Manager.
The applicant responded that in the last couple of years the business has picked up. Some contracts had recently finished however he had picked up other contracts. He reiterated his statement that he needs someone to grow the business as he is too busy, including with his hotel and restaurant in Melbourne and the Hoyts Cinema cleaning contracts. He clarified that the contract administrator came on board six months ago and before that he was doing that work as well. He stated that he wants the company to go to the next level and for that he needs the right people in the job. He stated that the business is growing little by little.
The representative clarified that the company accountant told him that the turnover is now about $1 million per year, just with Mr Basnayaka running things by himself. He stated that it is expected that with the nominated position filled, with the right marketing strategies in place, the company could venture into other sectors, such as child care centres.
Mr Basnayaka stated that he had enough capital investments to develop the business.
The Tribunal clarified that it needed evidence of this. The Tribunal asked the applicant to provide its most recent financial reports, as on the information available to it, the company could not afford to pay $54,000 per year for a Sales and Marketing Manager. This indicated that it was not a genuine position.
The applicant undertook to provide the Tribunal with its financial report for 2014 and evidence that there was provision to pay the salary of $54,000 per year for a Sales and Marketing Manager. The applicant undertook to provide this information to the Tribunal by 13 January 2016.
On the day of the hearing the applicant’s representative submitted by email additional documents from EsPee Accountants. The documents were dated 5 June 2015. Submitted was a letter from the Director of EsPee Accountants which states that the they act as accountant and tax agents for the applicant company; the Business Activity Statements they lodged for the company state that $600,000 in sales has been recorded for the last 3 quarters. They also state that a cash flow projection and forecasted financials of the business indicate that the company would be able to sponsor an employee to work as Sales and Marketing Manager and Contract Administrator to look after the overall operations of the company.
An additional letter dated 5 January 2016 from the accountants states that Mr Basnayaka Samarkook is also the director of BWS Hospitality / Sandown Regency-Melbourne; Walawwa Restaurant – Melbourne; and JJS Family Trust – Brisbane / Tamworth. The letter states:
“While he is managing all of the above businesses including Sambo Stripping and Cleaning Pty Ltd., he is involved in a lot of travelling through Brisbane to Sydney, Canberra and Melbourne for frequent inspections in the work sites. Because of the capacity of the businesses and work load, according to our knowledge, he is in need of Sales and Marketing Manager for his business – Sambo Stripping and Cleaning Pty Ltd. By recruiting a Sales and Marketing Manager, he can expand his business capacity and services.”
No additional information was provided to the Tribunal by the due date of 13 January 2016.
The Tribunal requested that the applicant provide its financial reports for the financial year ending in 2014. The Tribunal was clear that based on the information already provided it is apparent that the company did not have the financial capacity to pay an annual salary of $54,000 for the position of Sales and Marketing Manager.
The information provided to the Tribunal on the day of the hearing, from the accountants, does not indicate that the company has the finances to pay $54,000 per year for a Sales and Marketing Manager. Whilst the accountants state that the company has recorded $600,000 in sales for the last 3 quarters, no information has been provided regarding expenses, and profits remaining after the expenses have been deducted. On the evidence provided, the Tribunal remains unsatisfied that the company has provision to pay the annual salary of $54,000 for the position of Sales and Marketing Manager. Therefore the Tribunal is not satisfied that the nominated position of Sales and Marketing Manager is genuine.
For these reasons the requirements of r.2.72(10)(f) are not met.
For the reasons given above, the Tribunal is not satisfied that the applicant meets all the applicable criteria for the nomination to be approved. Accordingly, the decision under review must be affirmed.
DECISION
The Tribunal affirms the decision not to approve the nomination.
Lesley Hunt
Member

ATTACHMENT - EXTRACTS FROM THE MIGRATION REGULATIONS 1994
2.72 Criteria for approval of nomination — Subclass 457…
(1)This regulation applies to a person who is:
(a)a standard business sponsor; or
(b)a party to a work agreement (other than a Minister);
who, under paragraph 140GB (1) (b) of the Act, has nominated an occupation in relation to a holder of, or an applicant or a proposed applicant for, a [Subclass 457 visa].
(2)For subsection 140GB (2) of the Act, the criteria that must be satisfied for the Minister to approve a nomination by a person are set out in subregulations (3) to (12).
(3)The Minister is satisfied that the person has made the nomination in accordance with the process set out in regulation 2.73.
(4)The Minister is satisfied that the person is:
(a)a standard business sponsor; or
(b)a party to a work agreement (other than a Minister).
(5)The Minister is satisfied that the person has identified in the nomination the visa holder, or the applicant or proposed applicant for the visa, who will work in the nominated occupation.
(6)If the person identifies a holder of a [Subclass 457 visa] (the visa holder) for subregulation (5), the Minister is satisfied that the person:
(a)has listed on the nomination each other holder of a visa of that kind who was granted the visa on the basis of having the necessary relationship with the visa holder as mentioned in clause 457.321 of Schedule 2; and
(b)if the Minister requires the visa holder to demonstrate that he or she has the skills necessary to perform the occupation — the visa holder demonstrates that he or she has those skills in the manner specified by the Minister.
(7)For paragraph (6) (a), the Minister may disregard the fact that 1 or more persons required to be listed on the nomination are not listed, if the Minister is satisfied it is reasonable in the circumstances to do so.
(7A)In addition to subregulation (6):
(a)if:
(i)       the person identifies a holder of a [Subclass 457 visa] (the visa holder) for subregulation (5); and
(ii)      the [Subclass 457 visa] was granted after the Minister had waived the requirements of paragraph 4006A (1) (c) of Schedule 4 on the basis of a written undertaking made by the current sponsor of the visa holder (as set out in subclause 4006A (2) of that Schedule);
the Minister is satisfied that the person has provided, in writing, an undertaking that is equivalent to the undertaking made by the current sponsor of the visa holder; and
(b)if:
(i)       the person identifies a holder of a [Subclass 457 visa] (the visa holder) for subregulation (5); and
(ii)      the person has listed on the nomination a person described in paragraph (6) (a); and
(iii)     the [Subclass 457 visa] was granted to the person described in paragraph (6) (a) after the Minister had waived the requirements of paragraph 4006A (1) (c) of Schedule 4 on the basis of a written undertaking made by the current sponsor of the visa holder (as set out in subclause 4006A (2) of that Schedule);
the Minister is satisfied that the person has provided, in writing, an undertaking that is equivalent to the undertaking made by the current sponsor of the visa holder.
(8)If the nomination was made before 1 July 2010 — the Minister is satisfied that the person has provided the following information as part of the nomination:
(a)if there is a 6‑digit ASCO code for the nominated occupation — the 6-digit ASCO code;
(b)if there is no 6-digit ASCO code for the occupation, and the person is a standard business sponsor — the name of the occupation as it appears in the instrument in writing made for the purposes of paragraph (10) (a);
(c)if there is no 6-digit ASCO code for the occupation and the person is a party to a work agreement — the name of the occupation as it appears in the work agreement;
(d)the location or locations at which the nominated occupation is to be carried out.
(8A)If the nomination is made on or after 1 July 2010 – the Minister is satisfied that the person has provided the following information as part of the nomination:
(a)if there is a 6-digit ANZSCO code for the nominated occupation - the name of the occupation and the corresponding 6-digit ANZSCO code;
(b)if:
(i)       there is no 6-digit ANZSCO code for the nominated occupation; and
(ii)      the person is a standard business sponsor;
the name of the occupation and the corresponding 6-digit code as they are specified in the instrument in writing made for paragraph (10)(aa);
(c)if:
(i)       there is no 6-digit ANZSCO code for the nominated occupation; and
(ii)      the person is a party to a work agreement;
the name of the occupation and the corresponding 6-digit code (if any) as they are specified in the work agreement;
(d)the location or locations at which the nominated occupation is to be carried out.
(9)The Minister is satisfied that either:
(a)there is no adverse information known to Immigration about the person or a person associated with the person; or
(b)it is reasonable to disregard any adverse information known to Immigration about the person or a person associated with the person.
Note   The meanings of adverse information and associated with are explained in subregulations 2.57 (2) and (3).
(10)If the person is a standard business sponsor — the Minister is satisfied that:
(a)if the nomination was made before 1 July 2010 - the nominated occupation corresponds to an occupation specified by the Minister in an instrument in writing for this paragraph; and
(aa)if the nomination is made on or after 1 July 2010 – the nominated occupation and its corresponding 6-digit code correspond to an occupation and its corresponding 6-digit code specified by the Minister in an instrument in writing for this paragraph; and
(b)if required by the instrument mentioned in paragraph (a) or (aa) — the nomination of an occupation mentioned in the instrument is supported, in writing to the Minister, by an organisation specified by the Minister in an instrument in writing for this paragraph; and
(c)the terms and conditions of employment of the person identified in the nomination 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 at the same location; and
(cc)the base rate of pay, under the terms and conditions of employment mentioned in paragraph (c), that:
(i)       are provided; or
(ii)      would be provided;
to an Australian citizen or an Australian permanent resident, will be greater than the temporary skilled migration income threshold specified by the Minister in an instrument in writing for this paragraph; and
(d)if the nomination was made before 1 July 2010 - the person has certified as part of the nomination, in writing, that:
(i)       the tasks of the position include a significant majority of the tasks of:
(A)the nominated occupation listed in the ASCO; or
(B)the nominated occupation specified in an instrument in writing for paragraph (a); and
(ii)      if the person is lawfully operating a business outside Australia but does not lawfully operate a business in Australia:
(A)the nominated occupation is a position in the business of the standard business sponsor; or
(B)the nominated occupation is an occupation specified by the Minister in an instrument in writing for this sub-paragraph; and
(iii)     if the person lawfully operates a business in Australia:
(A)the nominated occupation is a position with a business, or an associated entity, of the person; or
(B)the nominated occupation is an occupation specified by the Minister in an instrument in writing for this sub-paragraph; and
(iv)     the qualifications and experience of the visa holder, or the applicant or proposed applicant for the visa, identified in relation to the nominated occupation are commensurate with the qualifications and experience specified:
(A)for the occupation in the ASCO; or
(B)if there is no ASCO code for the nominated occupation — for the occupation in the instrument in writing made for the purpose of paragraph (a); and
(e)if the nomination is made on or after 1 July 2010 – the person has certified as part of the nomination, in writing, that:
(i)       the tasks of the position include a significant majority of the tasks of:
(A)the nominated occupation listed in the ANZSCO; or
(B)the nominated occupation specified in an instrument in writing for paragraph (aa); and
(ii)      if the person is lawfully operating a business outside Australia but does not lawfully operate a business in Australia:
(A)the nominated occupation is a position in the business of the standard business sponsor; or
(B)the nominated occupation is an occupation specified by the Minister in an instrument in writing for this sub-subparagraph; and
(iii)     if the person lawfully operates a business in Australia:
(A)the nominated occupation is a position with a business, or an associated entity, of the person; or
(B)the nominated occupation is an occupation specified by the Minister in an instrument in writing for this sub-subparagraph; and
(iv)     the qualifications and experience of the visa holder, or the applicant or proposed applicant for the visa, identified in relation to the nominated occupation are commensurate with the qualifications and experience specified:
(A)for the occupation in the ANZSCO; or
(B)if there is no ANZSCO code for the nominated occupation - for the occupation in the instrument in writing made for paragraph (aa).
(f)the position associated with the nominated occupation is genuine; and
(g)if the person has identified in the nomination the holder of a Subclass 457 (Temporary Work (Skilled)) visa in relation to whom the requirements in subclause 457.223(6) of Schedule 2 were met—one of the following applies:
(i)       the requirements in subclause 457.223(6) of Schedule 2 continue to be met;
(ii)      if:
(A)the holder would be required to hold a licence, registration or membership that is mandatory to perform the occupation nominated in relation to the holder; and
(B)in order to obtain the licence, registration or membership, the holder would need to demonstrate that the holder has undertaken a language test specified by the Minister under subparagraph 457.223(4)(eb)(iv) of Schedule 2 and achieved a score that is better than the score specified for the test by the Minister under subparagraph 457.223(4)(eb)(v) of Schedule 2;
the holder demonstrates that he or she has proficiency in English of at least the standard required for the grant (however described) of the licence, registration or membership;
(iii)     the holder is an exempt applicant within the meaning of subclause 457.223(4) of Schedule 2;
(iv)     unless subparagraph (ii) applies—the holder:
(A)has undertaken a language test specified by the Minister under subparagraph 457.223(4)(eb)(iv) of Schedule 2; and
(B)achieved within the period specified by the Minister in a legislative instrument for this subparagraph, in a single attempt at the test, the score specified by the Minister under subparagraph 457.223(4)(eb)(v) of Schedule 2; and
(h)either:
(i)       the person will:
(A)engage the visa holder, the applicant for a visa or the proposed applicant for a Subclass 457(Temporary Work (Skilled)) visa only as an employee under a written contract of employment; and
(B)give a copy of that contract to the Minister; or
(ii)      the nominated occupation is an occupation specified by the Minister in an instrument in writing for sub-subparagraph (e)(iii)(B).
(10AA)For paragraphs (10) (c) and (cc), if no Australian citizen or Australian permanent resident performs equivalent work in the person’s workplace at the same location, the person must determine, using the method specified by the Minister in an instrument in writing for this subregulation:
(a)the terms and conditions of employment; and
(b)the base rate of pay, under the terms and conditions of employment;
that would be provided to an Australian citizen or an Australian permanent resident to perform equivalent work in the person’s workplace at the same location.
(10AB)Paragraphs (10) (c) and (cc) do not apply if the annual earnings of the person identified in the nomination are equal to or greater than the amount specified by the Minister in an instrument in writing for this subregulation.
(10A)The Minister may disregard the criterion in paragraph (10) (cc) for the purpose of subregulation (2) if:
(a)the base rate of pay will not be greater than the temporary skilled migration income threshold specified for that paragraph; and
(b)the annual earnings are equal to or greater than the temporary skilled migration income threshold; and
(c)the Minister considers it reasonable to do so.
(11)If the person is a party to a work agreement (other than a Minister) — the Minister is satisfied that:
(a)the nominated occupation is specified in the work agreement as an occupation that the person may nominate; and
(b)if the nomination was made before 1 July 2010 - the person has certified as part of the nomination, in writing, that:
(i)       the tasks of the position include a significant majority of the tasks of:
(A)if the nomination is made using an ASCO code - the nominated occupation listed in the ASCO; or
(B)if the nomination is not made using an ASCO code -the nominated occupation specified in the work agreement; and
(ii)      the qualifications and experience of the visa holder, or the applicant or proposed applicant for the visa, identified in relation to the nominated occupation are commensurate with the qualifications and experience specified for the occupation in the work agreement; and
(c)if the nomination is made on or after 1 July 2010 - the person has certified as part of the nomination, in writing, that:
(i)       the tasks of the position include a significant majority of the tasks of:
(A)if the nomination is made using an ANZSCO code - the nominated occupation listed in the ANZSCO; or
(B)if the nomination is not made using an ANZSCO code -the nominated occupation specified in the work agreement; and
(ii)      the qualifications and experience of the visa holder, or the applicant or proposed applicant for the visa, identified in relation to the nominated occupation are commensurate with the qualifications and experience specified for the occupation in the work agreement.
(12)If the person is a party to a work agreement and the work agreement specifies requirements that must be met by the party to the work agreement — the Minister is satisfied that the requirements of the work agreement have been met.

[2016] AATA 3045

14 January 2016

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Immigration

Administrative Law

Legal Concepts

Judicial Review

Jurisdiction

Statutory Construction

Procedural Fairness