AGC SERVICES PTY LTD (Migration)

[2021] AATA 400

AGC SERVICES PTY LTD (Migration) [2021] AATA 400 (16 February 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  AGC SERVICES PTY LTD

CASE NUMBER:  1816410

HOME AFFAIRS REFERENCE(S):          BCC2017/2254024

MEMBER:Jane Bell

DATE:16 February 2021

PLACE OF DECISION:  Melbourne

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

Statement made on 16 February 2021 at 2:18pm

CATCHWORDS
MIGRATION – Employer Nomination – sponsorship approval – Temporary Residence Transition nomination – status as a standard business sponsor – business restructure – partnership incorporated as a company – different ABN and ACN numbers – impact of changing the nominating entity – decision under review affirmed

LEGISLATION
Migration Regulations 1994 (Cth), r 5.19

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 22 May 2018 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).

2. The applicant applied for approval on 26 June 2017. 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. In this case, the applicant has applied for approval of a nomination, seeking to satisfy the criteria in the Temporary Residence Transition nomination stream.

4. The delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19(3)(b)(i) of the Regulations because the delegate found that the evidence failed to demonstrate that the nominator for the Subclass 186 visa was the standard business sponsor who last nominated the Subclass 457 visa holder in a nomination.

5. The applicant was represented by Mr Raymon Reynoso who appeared before the Tribunal by telephone on 10 February 2021 to give evidence and present arguments.  

6. The applicant was represented in relation to the review by its registered migration agent, Mr Justine Wilson who attended the Tribunal hearing by telephone.

7. The Tribunal exercised its discretion to hold the hearing by telephone. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of the matter. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not conducted by telephone. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments. 

8. For the following reasons, the Tribunal has decided to affirm the decision under review to refuse the nomination.

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. 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.

10. The question in this case is whether the applicant, the nominating entity for the Subclass 186 visa, is or was the standard business sponsor who last identified the holder of the Subclass 457 visa, the nominee, in a nomination made under s.140GB of the Act or under r.1.20G or r.1.20GA as in force immediately before 14 September 2009.

11. Based on the information before the Tribunal, and oral evidence given at the hearing, the background to this case is as follows:

    ·The partnership of Raymon and Maria Reynoso trading as AGC Cleaning was established in 2000. It ran a business for building and other industrial cleaning services at 4/20 - 22 Thornycroft Street, Campbellfield, VIC 3061;

    ·The partners in Raymon and Maria Reynoso are Mr Raymon Reynoso and his wife Mrs Maria Reynoso;

    ·The partnership was an approved standard business sponsor and sponsored the nominee for a Subclass 457 visa in the nominated position of Customer Service Manager;

    ·The nominee was a holder of a 457 visa which was granted on 23 July 2014 to 23 July 2018 for period of 4 years;

    ·As the cleaning business grew, Raymon and Maria Reynoso incorporated a company, AGC Services Pty Ltd in order to win more lucrative cleaning contracts which was more difficult to achieve under the partnership model;

    ·In oral evidence, Mr Reynoso stated that the restructure of the business was done on the advice of his lawyers and no problems were ever raised by his lawyers with respect to sponsoring the nominee;

    ·Mr Reynoso stated that after incorporating the company, all the cleaning contracts were transferred from the partnership to AGC Services Pty Ltd and that the nature of the work was the same but with larger contracts. Furthermore, Mr Reynoso and Mrs Reynoso were the only company directors of AGC Services Pty Ltd and in practical terms the business was the same following the restructure;

    ·On 26 June 2017, AGC Services Pty Ltd lodged a Subclass 186 nomination application for the nominee;

    ·On 22 May 2018, the Department refused the nomination on the grounds that the applicant did not satisfy r.5.19(3)(b)(i) as the nominating entity was not the standard business sponsor who last identified the nominee (a holder of the Subclass 457 visa) in a relevant nomination.

12. At the hearing, Mr Reynoso stated that at the time of the business restructure, that he was not aware of the impact on the nomination of changing the nominating entity, as in practical terms the business was the same. He stated that the need for the new entity to apply for a Subclass 457 visa nomination was overlooked, and this was not raised by his lawyers.  Mr Reynoso stated that the nominee has been working for the business since 2014 and is a valued member of the team. Mr Reynoso stated that the business had made an error in this case and that it was not the fault of the nominee and that he felt badly for the nominee.

    Status of the nominator: r.5.19(3)(b)

13. Regulation 5.19(3)(b) requires the nominator to be or have been the relevant standard business sponsor who is actively and lawfully operating a business in Australia. In addition, the nominator, as that standard business sponsor, must not have met certain criteria relating to the operation of a business overseas, in the most recent sponsorship approval.

14. The Tribunal notes that the Department was not satisfied that this criterion was met, because the nominator had not demonstrated that it was the standard business sponsor who last identified the holder of the Subclass 457 visa in a nomination made under s.140GB of the Act or under r.1.20G or r.1.20GA (pre 14 September 2009).

15. The Tribunal is of the view that r.5.19(3)(b)(i) is unambiguous. It gives rise to a question of fact, that is, is the nominating entity for the Subclass 186 visa the standard business sponsor who last identified the holder of the Subclass 186 nominee, in a nomination under s.140GB of the Act?

16. The applicant, the nominating entity for the Subclass 186 visa is AGC Services Pty Ltd while the standard business sponsor who last identified the holder of the Subclass 457  visa, the nominee, in a nomination made under s.140GB of the Act or under r.1.20G or r.1.20GA (pre 14 September 2009) was the partnership of Raymon and Maria Reynoso.

17. The Tribunal notes that the nominating entities for the Subclass 457 visa and the Subclass 186 visa are similar in that the 2 directors of AGC Services Pty Ltd are the same 2 partners in Raymon and Maria Reynoso trading as AGC Cleaning.

18. The Tribunal accepts that the business operations have continued and remain the same following the restructure and continue to operate at the same location. Mr Reynoso continues to run the business with his wife Maria and the nominee continues to work in the nominated occupation of Customer Services Manager.

19. However, the Tribunal notes that the 2 entities are different, one being a partnership and one a company and have different ABN and ACN numbers, and as such cannot be classified as the same entity for the purposes of r.5.19(3)(b)(i), notwithstanding the continuity of the business operations.

20. The Tribunal acknowledges that from the perspective of the nominee, his employer, the business and the business premises have remained the same. The Tribunal understands and accepts that the business restructure was beyond the control of the nominee and this outcome was not intended or foreseen by the applicant. 

21. Notwithstanding this, for the reasons outlined above the nominating entity for the Subclass s186 visa was not the standard business sponsor who last identified the holder of the Subclass 457 visa in a nomination made under s.140GB of the Act and accordingly, r.5.19(3)(b)(i) is not met.

22. Given the above, the requirement in r.5.19(3)(b) is not met.

23. As the Tribunal has found that the applicant has not met r.5.19(3)(b) it is not required to consider the rest of the requirements as set out in r.5.19(3).

24. 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

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

    Jane Bell
    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

    (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

    (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.