1508104 (Migration)

1508104 (Migration) [2016] AATA 3187 (9 February 2016)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Falasteen Pty Ltd
CASE NUMBER:  1508104
DIBP REFERENCE(S):  BCC2015/112905
MEMBER:Lesley Hunt
DATE:9 February 2016
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision under review to refuse the nomination.

Statement made on 09 February 2016 at 2:41pm

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 28 May 2015 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 12 January 2015. 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 Direct Entry Nomination stream.
The delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19(4)(a), 5.19(4)(d) and 5.19(4)(h) of the Regulations because the delegate found that the nominated position was not genuine; the company was not able to provide the nominee with a full-time position for at least 2 years; and the company did not meet the requirements for training Australian citizens and permanent residents employed in the business.
The applicant was represented in relation to the review by its registered migration agent.
The Tribunal invited the applicant to attend a hearing on 9 February 2016 to give evidence and present arguments. On 2 February 2016 the applicant responded indicating that he and his representative would attend the hearing. On 8 February 2016 the applicant’s authorised representative advised the Tribunal in writing that the review applicant was unable to attend the hearing and that the review applicant is willing to have the Tribunal make a decision on the application for review based on the documents and information provided thus far and consequently waives his right to a hearing with the Tribunal.
The Tribunal is satisfied that the applicant has effectively authorised the representative to consent to the Tribunal deciding the review without him appearing before it, and that the Tribunal is authorised to proceed to decide the review application without a hearing in accordance with ss.360(2)(b) of the Act.
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 review applicant is Falasteen Pty Ltd., and the nominated position is that of Customer Service Manager.
In the application form lodged with the Immigration Department on 12 January 2015, the company, Falasteen Pty Ltd, provided several documents including an organisation chart, financial statements, evidence of the registration of the business, evidence of market rate salaries relevant to the nominated position, a signed employment agreement and position description.
On 2 February 2016 the applicant’s representative provided a submission and several supporting documents to the Tribunal. Included with the supporting documents is Certification from the Chamber of Commerce and Industry Toowoomba, Queensland that: there is a need for a paid employee in the nominated position; the position cannot be filled by an Australian citizen or permanent resident living in the same local area; and the terms and conditions of employment applicable to the nominated position will be no less favourable than the terms and conditions that would be provided to an Australian citizen or permanent resident performing equivalent work in the same workplace at the same location.
The information before the Tribunal indicates that Falasteen pty Ltd has two Directors, operates four restaurants serving Middle Eastern cuisine and Ace 1 Shop Fitting based in Margaret Street, Toowoomba.
Falasteen Pty Ltd registered with the Australian Securities Investment Commission (ASIC) on 9 April 2010 and Ace 1 Shop Fitting is registered as a business with ASIC until 14 October 2018. A lease agreement was provided in relation to a shop lease in Margaret Street, Toowoomba. The agreement was signed by the tenant however it was not signed by the lessor.
The organisational chart indicates that Ace 1 Shop Fitting has a position for a Customer Service Manager and a number of positions for store assistants and sub-contractors.. The chart shows that the store assistants and sub-contractors report to the customer service manager and the customer service manager reports to the company directors. All positions are vacant.
In the submission dated 2 February 2016 it is stated that the review applicant, Falasteen Pty Ltd., is an actively and lawfully operating business in Australia and has been since 2010. It is stated that the review applicant primarily operates restaurants but diversified into the shop-fitting business in October 2014 after identifying a need for a one-stop shop for shop fittings, where the customer would only have to deal with one contractor when fitting out a premises for a restaurant or cafe.
The submission states in part:
The Business requires a Customer Service Manager to oversee the operations of the Business due to the extensive requirements of the job and the skills needed to perform the required tasks. At present, the Business is non-operational due to the inability of the Nominator to recruit a suitably skilled and qualified person to undertake the role in the specified location. Once the role of Customer Service Manager is filled by a suitable fulltime employee and the Business starts operating, the Nominator intends to hire more staff to assist the Customer Service Manager in the future. Consequently, we submit that the Nominator has a genuine vacancy in its organisation for a Customer Service Manager and that the requirements of Regulation 5.19(4)(a)(ii) are met.
Term of employment of the visa holder: r.5.19(4)(d)
Regulation 5.19(4)(d) requires the nominee to be employed in the nominated position for at least 2 years full time, and the terms and conditions of that employment do not expressly exclude the possibility of an extension.
The employment contract indicates that the salary for the nominated position is $47,000 per annum. It is submitted that the salary offered is commensurate with the qualifications, experience and relevant skills of the nominee and with the market salary rate in the relevant geographical area. The employment contract indicates that the position is offered on a full-time basis for a period of no less than two years.
It is submitted that the nominator’s financials have increased steadily since 2013 from a turnover of $594,823 in the 2013 financial year to $1,145,995 in the 2015 financial year. The submission states: The nominator’s overall turnover, coupled with the projected income potentially generated by the Business, will enable the Nominator to sufficiently maintain the Position within its Business for a period of two (2) years. Consequently, we submit that the Nominator has sufficient financial ability to provide the Nominee with a fulltime position for at least two (2) years and that the requirement of Regulation 5.19(4)(d)(i) is met.
However the financial statements submitted to the Tribunal for the financial year ending 30 June 2015 show that whilst the total income is $1,145,995, the gross profit is $784,708, the total expenditure is $779,085, and the nett income is $5,623. For the previous financial year the nett income was $6,524.
Furthermore, the Notes to the Financial Statements for the year ended 30 June 2015 show Current Payables including Goods and Services Tax totalling $142,880, Superannuation Payable of $54,044 and Provision for Income Tax ($575). The Current Payables total $200,287.
The information provided by the applicant indicates that the applicant owes a significant amount of money in GST and superannuation and has a net income $5,623. On the basis of the evidence, the Tribunal is not satisfied that the applicant has the financial capacity to pay the salary of $47,000 per annum for the nominated position
The Tribunal would like to have discussed its concerns regarding the applicant’s financial position with the applicant at the hearing. The Tribunal would also have liked to discuss with the applicant its concern regarding the appropriateness of the nominated position given that the business is a start-up company and currently has no other employees and the position description in the ANZSCO Dictionary refers to “providing direction and feedback to team members; managing, motivating and developing staff providing customer services; liaising with other organisational units, service agents and customers”. On the evidence it appears that the scope, scale and nature of the business does not warrant a customer service manager at this point in time.
After assessing the evidence, the Tribunal is not satisfied that the applicant has the financial capacity to provide the nominee with full-time employment for at least two years.
Accordingly, the requirement in r.5.19(4)(d) is not met.
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.
Lesley Hunt
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).

[2016] AATA 3187

9 February 2016

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Statutory Construction

Jurisdiction

Procedural Fairness