Aggarwal's and Brothers Pty Ltd (Migration)

Aggarwal's and Brothers Pty Ltd (Migration) [2018] AATA 3308 (13 July 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Aggarwal's and Brothers Pty Ltd
CASE NUMBER:  1701559
DIBP REFERENCE(S):  BCC2015/2484454
MEMBER:Alan McMurran
DATE:13 July 2018
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision under review to refuse the nomination.

Statement made on 13 July 2018 at 1:50pm
CATCHWORDS
Migration – Employer Nomination – approval of nomination – ability to employ nominee – taxation records – tenancy agreement – same business and residential address – no specific work location – organisational hierarchy – limited evidence of work engaged by applicant – evidence of tasks performed by nominee – no comparable salary – type of work to be performed – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 245AR, 360
Migration Regulations 1994 (Cth), rr 1.13A, 1.13B, 5.19
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 11 January 2017 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 27 August 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 the Direct Entry Nomination stream.
The delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19 (4)(d) of the Regulations. The delegate was not satisfied on the financial information provided, and taking into account the nature and scale and size of the business, that the applicant had demonstrated an ability to employ the nominee on a full-time basis in the position nominated for at least 2 years.
Background
The Tribunal received the application on 30 January 2017, constituted to a member for determination on 8 February 2018.
The Tribunal wrote to the applicant on 13 February 2018 requesting updated and current information. The applicant was invited to provide the requested information in writing by 27 February 2018.
The Tribunal informed the applicant that if it failed to provide the information within the period allowed (or extended), it would lose any entitlement to appear at a hearing to give evidence and present arguments.
The applicant did not reply to the correspondence or provide any information as requested. The respondent is not entitled to appear before the Tribunal, as the respondent did not give the information requested within the time period allowed. The applicant did not seek an extension of time to provide the requested information.[1]
[1] S. 360(3) of the Act
The Tribunal has therefore determined this application on the information before it and contained on the Tribunal’s file and the Department’s file BCC 2015/2484454[2].
[2] Contained in 2 folders ff 1-500 and ff 501-1015.
Its registered migration agent, VisaLinkz, represented the applicant in relation to the review.
Nomination
The applicant has nominated Syed Huzaifa Saijad as the nominee.[3]
[3] See also Tribunal file 1707397
The position nominated is Marketing Specialist, ANZSCO 225113. The occupation is listed by the Minister in an instrument IMMI 16/060 for nominations made under regulation 5.19 on or after 1 July 2015 but before 1 July 2016, this application having been made on 27 August 2015.
ANZSCO[4] classifies the occupation according to a unit group described generically as Advertising and Marketing Professionals. Professionals in this group develop and coordinate advertising strategies and campaigns, determine the market for new goods and services, and identify and develop market opportunities for new and existing goods and services.
[4] Australian and New Zealand Standard Classification of Occupations
The level of skill for the occupation is described as commensurate with a bachelor degree or higher qualification, or at least 5 years of relevant experience, which may substitute for the formal qualification. Tasks include:
·planning, developing and organising advertising policies and campaigns to support sales objectives
·advising executives and clients on advertising strategies and campaigns to reach target markets, creating consumer awareness and effectively promoting the attributes of goods and services
·coordinating production of advertising campaigns involving specialised activities, such as artwork, copywriting, media scripting, television and film production and media placement, within time and budget constraints
·analysing data regarding consumer patterns and preferences
·interpreting and predicting current and future consumer trends
·researching potential demand and market characteristics for new goods and services and collecting and analysing data and other statistical information
·supporting business growth and development through the preparation and execution of marketing objectives, policies and programs
·commissioning and undertaking market research to identify market opportunities for new and existing goods and services
·advising on all elements of marketing such as product mix, pricing, advertising and sales promotion, selling, and distribution channels
The Tribunal regards the ANZSCO classification as a useful guide for interpreting the nominated occupation and a description of the occupation and the tasks involved. In this instance, the role is a relatively senior position according to the ANZSCO description, requiring qualifications at a bachelor degree level or higher, or at least 5 years of experience in substitution for that qualification.
In this review, the Tribunal has taken into account the information provided with the application as set out below, and noting the concerns expressed by the Department’s delegate in the decision, as to the size and scale of the enterprise and its financial performance.
The application provided no written submissions, but it appears from the information available that the applicant carries on business in regional NSW under a trading name, Natural Energy Engineers, which is a registered business name with a principal place of business at 38 Discovery Dr Orange, NSW 2800. The business is described in the applicant’s information[5] as an Australian family owned business, located at Condobolin New South Wales and committed to making solar electricity and energy efficiency measures affordable, using solar systems. The applicant supplies solar systems in both a residential and commercial environment.
[5] DOHA folder 2 of 2, f 817
In order to complete its task, the Tribunal undertakes a qualitative assessment of the applicant’s nominated position, taking into account the facts, circumstances and context of the business activities, the reason for the occupational requirement and the ability of the applicant to meet the requirement to engage the nominee for a minimum period of 2 years.
The enquiry is broad ranging and takes into account such things as the size and scale of the business, where located, its workforce, and the growth and development of the business. The applicant’s employment history, its financial commitments, aims and objectives and the suitability of the nominee (having regard to the ANZSCO guidelines), together with any experience and background and relationship with the applicant are also important considerations.
The Tribunal has paid careful regard to the information on the Department’s file and the Tribunal’s file, without consideration of any additional information or formal submissions which have not been provided, despite the applicant having had the opportunity to do so.
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 approval of the nomination, the applicant must meet all the requirements.
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, where applicable, must include the required written certification relating to conduct that contravenes s.245AR(1). The application must also identify a need for the nominator to employ a paid employee to work in the position under their direct control.
Based on the information in the Tribunal’s file and the Department’s file referred to above, the tribunal is satisfied that the application was made on the relevant form and was accompanied by the prescribed fee. The relevant section 245 AR (1) certification was also provided in the application form.
Accordingly, the requirement in r.5.19(4)(a) is 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 applicant has provided a large amount of documentation in support of the application. That documentation includes:
·the application[6]
[6] DOHA folder 2, ff 1008-1015
·financial records, including;
o business transaction accounts with the Commonwealth Bank[7]
[7] DOHA folder 1, ff 181-494; folder 2, ff 874-907; ff 825-836;
o company tax returns[8]
[8] DOHA folder 1, ff 29-65; DOHA folder 2, ff 955-995; ff 837-849;
o financial statements[9]
[9] DOHA folder 2, ff 917-945 ; ff 861-866;
·several employment agreements[10]
·organisational chart[11]
·ASIC record and ABN reference[12]
·Product information[13]
·BAS statements 2014-16[14]
·Residential Tenancy Agreement for period 81/5/2016-18/01/2017;[15]
·2014/2016 rent receipts[16]
·Payment advices including PAYG record;[17]
·Invoices and commercial lease agreement for premises at 301 Summer Street orange, for the period 2015-2017;[18]
·Contractor agreement and invoices to Natural Energy Engineers[19]
[10] DOHA folder 1, ff 68-177
[11] DOHA folder 1, ff 66-67
[12] DOHA folder2, ff 871-873
[13] DOHA folder 2, ff 817-823
[14] DOHA folder 2, ff 786-816
[15] DOHA folder2, ff 754- 764
[16] DOHA folder 2, ff 710-753
[17] DOHA folder 2, ff 644-699
[18] DOHA folder 2, ff 615-643
[19] DOHA folder 2, ff 509- 608
The Tribunal will refer to that documentation and information below but notes for the purposes of these findings that it is satisfied the applicant operates a business lawfully in Australia, with a registered Australian Business Number and taxation records as evidence of its current activity, at least for the period included in the documentation provided with the application.
Accordingly, the requirement in r.5.19 (4)(b) is met.
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 or hires out its labour to other employers.
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 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 Tribunal notes the application and information provided in support, which is voluminous and set out above, but which does not include any written submissions from the applicant or the applicant’s representative explaining the importance of the documentation, or the connection to the regulatory requirements. The Tribunal is left to determine for itself how the information otherwise supports or meets the requirements of Reg 5.19(4).
What is contained in the application, referred to above, is that the nominee is a citizen of Pakistan who will work in the applicant’s business at the given postcode, 2877, which is the postcode for Condobolin in western New South Wales. The business address for the applicant states 3/42 Bathurst Street, Condobolin.
The residential address for the nominee states an address at Young in western New South Wales (postcode 2594). The distance from Condobolin to Young is approximately 215 km. The distance from Orange to Young, being the address for the registered business name referred to above, is approximately the same at 200km.
The Tribunal is unable to conclude from the information provided as to the location where the nominee will perform duties, whether at Condobolin, or at the Orange address. It seems unlikely the nominee would travel on a daily basis to either of those business addresses, which would mean a round-trip in excess of 400 km.
The information in support of the application indicates that the applicant utilises rented accommodation. The applicant’s information includes a copy of a Residential Tenancy Agreement (see paragraph 24 above) for premises at Canning Vale in Western Australia which address is not relevant to the location of the nominee. It indicates however that the applicant enters into residential tenancy agreements.
The information includes copies of invoices for rental of premises at 117 Bathurst Street Condobolin, as referred to in paragraph 24 above. There is no information however to show that those are premises rented for the benefit of the nominee. The applicant’s organisational hierarchy[20] records the names of 11 persons, including the two directors and the nominee. All or some of them may reside at the tenanted address.
[20] DOHA folder 1, ff 66-67
The applicant has provided a copy of a tenant’s agreement[21] for rented premises comprising unit 2 and 3 at 42 Bathurst Street Condobolin, commencing 24 July 2014, for an unspecified period. The agreement names the applicant by its business name, Natural Energy Engineers, as the “tenant”. The intended occupants however remain unidentified in that agreement. There is no indication how many occupants can reside in the 2 units. The Tribunal notes also that the same address (3/42 Bathurst Street) is provided as the business address of the applicant. It is therefore unclear whether the premises are used by the applicant as either business premises, and residential premises, or both.
[21] DOHA folder 2, f 709
The Tribunal is therefore unable to determine or be satisfied on the current information that the nominee lives otherwise than as stated at Young in New South Wales. The Tribunal is unable to determine that the applicant provides accommodation specifically for the nominee in Condobolin, or how it is that the nominee travels to his workplace whether at Orange or at Condobolin or at both locations in order to perform his duties.
The Tribunal is satisfied that the application for the position of a Marketing Specialist intends that the work is performed in regional Australia, as the area around the towns of Condobolin and Orange are within regional Australia.
The Tribunal however is unable to determine where the occupation will be carried out, and how it is the applicant intends the nominee will perform his duties, who will manage the nominee, to whom he will report (other than Mr Walia) and whether or not he will be under the direct control or supervision of an employee of the applicant.
The applicant has provided a copy of an employment contract[22] between the applicant and the nominee made on 29 April 2015. The contract says the applicant is to report to and be accountable to a director, Mr Walia, at an address at 3/42 Bathurst Street Condobolin. It provides for a salary of $55,000 per annum plus superannuation and regular working hours between 8:30 AM and 5:30 PM. The contract says nothing about the applicant providing accommodation for the nominee as part of the employment agreement.
[22] DOHA folder 2, ff 850 - 858
The contract purports to expire on 28 April 2019, and which is “renewable”. The contract does not include an exclusion of the possibility of it extending beyond the employment period.[23] There is no probation period.
[23] Reg 5.19(4)(2)(d)(ii)
The Tribunal finds however that the applicant has not identified a specific location where the nominee will work on a full-time basis for a minimum period of 2 years. From the Tribunal’s perspective, it is important for it to be satisfied in order to meet the criterion that the location of the nominee and the work performed at that location are identified.
The Tribunal finds that there is no information provided as to what the nominee has been doing for the applicant or for how long or where. The applicant merely states that the nominee works as a “marketing specialist”.
The delegate raised concerns about the current staffing, size and scale of the business. The Tribunal has had to rely upon the same information as that made available to the Department with the application.
The Tribunal notes that the organisational hierarchy referred to above places the nominee in a significant role reporting to both directors who are Australian citizens. There are 8 other named contractors or subcontractors in the “hierarchy”[24]. It appears there are no other permanent employees other than the 2 directors and the nominee.
[24] DOHA folder 2 , ff 66-67
The Tribunal finds that the size and scale of the business does not reflect an organisation which has embarked on extensive marketing campaigns or which has an advertising strategy requiring the services of a marketing specialist. There is a paucity of information provided concerning any advertising undertaken. The only reference appears to be two single page advertisements.[25] There is no indication who prepared those advertisements and whether the nominee was involved or how they relate to the applicant’s marketing strategy.
[25] DOHA folder 2, at ff 817 and 822.
The Tribunal further finds there is no information concerning what marketing campaigns or strategies the applicant anticipates or requires for its business. The Tribunal finds that there is no information that might assist in determining that the services of a marketing specialist are necessary or might be required for the business, and how those services are to be utilised.
The applicant seeks to rely primarily upon a large amount of financial information. The applicant has not drawn attention to any particular aspect of that financial information which covers some hundreds of pages. The Tribunal finds it is unable to place much weight on that information, in particular the bank statement references, as to whether the applicant is a viable operation and in a position to afford the salary on offer to the nominee.
It would have been a relatively simple matter to summarise the wages of each of the employees and contractors, and set those against the net revenue and income of the business. The profit and loss statement for the financial year ended 30 June 2016 indicates a net profit after tax and expenses of $7,765. Wages are $205,000 for that financial year, the largest expense being for materials and supplies of $910,526. A further expense stated as “electrician” is $372,200.

These are the most recent figures available (2016) and the Tribunal finds it is not satisfied on those figures that a salary for a marketing specialist anticipated at the rate of $55,000 per annum plus superannuation is sustainable. The Tribunal finds there is no information provided as to how it is anticipated the applicant will fund its operations moving forward, including for additional staff and wages.
The Tribunal is unaware why it is that the applicant has not taken the opportunity when requested to update the financial information and meet the concerns already stated in the delegate’s decision and which largely are repeated in this review.
The Tribunal finds it is not satisfied on the available information the applicant is able to offer full-time employment to the nominee in the position stated of marketing specialist for a period of at least 2 years. The Tribunal finds that the terms and conditions of the nominee’s employment do not refer to the offer of any accommodation or assistance and leaves unexplained how the nominee will travel to and from his workplace. The Tribunal finds that there is no evidence of the environment where the business is located, or what the applicant expects of the nominee at the location, and what resources are available enabling the nominee to perform his duties and responsibilities for a minimum period of two years.
Accordingly, the requirement in r.5.19 (4)(d) is not met.
No less favourable terms and condition of employment: r.5.19(4)(e)
Regulation 5.19(4)(e) requires that the terms and conditions of employment applicable to the nominated position will be no less favourable than those that are, or would be, provided to an Australian citizen or permanent resident performing equivalent work in the same workplace at the same location.
The Tribunal finds there is no evidence upon which it might rely or consider as to the terms and conditions of employment applicable to an Australian citizen or permanent resident performing equivalent work in the same workplace at the same location. The application does not contain information of any advertising upon which the applicant relies to illustrate the salary or comparable salary on offer to the nominee.
The Tribunal finds it is not satisfied that the applicant has provided information from which the Tribunal can conclude that the requirement is met.
Accordingly the requirements of r.5.19 (4)(e) are not met.
No adverse information known to Immigration: r.5.19(4)(f)
Regulation 5.19(4)(f) requires that there is no adverse information known to Immigration about the nominator or person associated with the nominator; or it is reasonable to disregard any such information. For these purposes, ‘adverse information’ and ‘associated with’ have the meaning given in rr.1.13A and 1.13B.
The Tribunal finds it has no information before it of any adverse information known to the Department of Home Affairs (formerly Immigration) about the nominator or person associated with the nominator or the nominee.
Accordingly the requirements of r.5.19 (4)(f) are met.
Satisfactory compliance with workplace relations laws: r.5.19(4)(g)
Regulation 5.19(4)(g) requires that the applicant 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.
The Tribunal finds it has no information before it of any record of any non-compliance by the applicant with workplace relations laws in the locations in which it operates a business and employs staff.
Accordingly the requirements of r.5.19 (4)(g) are met.
Tasks of the position genuine need for the position and training requirements r.5.19(4)(h)
Regulation 5.19(4)(h) contains a number of alternative requirements. These are set out in detail in the attachment to the decision but can be briefly summarised as requiring at B (ii) that:
§the position and nominator’s business is located in regional Australia;
§there is a genuine need for the paid position under the nominator’s direct control which cannot be filled by a locally resident Australian citizen or permanent resident;
§the tasks of the position correspond to those of an occupation specified in the relevant legislative instrument;
§the occupation is applicable to the proposed employee in accordance with the specification of the occupation;
§and that a regional certifying body has advised the Minister about certain matters relating to the position.
The Tribunal finds that the information provided with the application does not set out the tasks performed by the nominee. The Tribunal places little weight upon the description contained in the employment contract referred to above. The Tribunal finds that the applicant has not provided details of the tasks or work carried out either presently or in the future by the nominee.
The Tribunal finds on the information available that the nominator’s business is located in regional Australia and that the position nominated is located in regional Australia. The Tribunal is satisfied that the nominator’s business has operated for at least 12 months.
The Tribunal finds that it is not satisfied on the information available that there is a genuine need for the paid position under the nominator’s direct control. There is no evidence of any advertising carried out by the applicant to find and fill the position from an Australian citizen or permanent resident available in the location of the business. The Tribunal also finds that it is not satisfied there is a genuine need for the paid position, given that there is no information whatsoever about any advertising strategies or campaigns engaged in by the applicant or proposed by the nominee or how the applicant anticipates the position is necessary for the business..
The Tribunal finds that there is no evidence of the tasks performed by the nominee, which correlate with the expectations set out above in the ANZSCO guide for the occupation. The Tribunal finds it cannot make any comparison between the nominated occupation and the tasks performed.
The Tribunal finds there is a certification from the regional certifying body, RDA Central West[26], made 28 July 2015. The certifier makes a declaration of satisfaction as to the need for the paid employee, that an Australian citizen or permanent resident cannot fill the position, and that the terms and conditions are applicable to the nominated position.
[26] DOHA folder 2, ff 953-954
The information upon which the certifier has relied however is not available to the Tribunal and is not tested. The Tribunal is an independent body and irrespective of the certification is required to make an independent assessment on review of all the criteria in the Regulation.
The Tribunal finds it is not satisfied the requirements of r.5.19 (4)(h) are 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.
Alan McMurran
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;
(AAA)the occupation is applicable to the person identified under subparagraph (a)(ii) in accordance with the specification of the occupation;
(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 specified by the Minister in an instrument in writing for this sub-subparagraph;
(DA)the occupation is applicable to the person identified under subparagraph (a)(ii) in accordance with the specification of the occupation;
(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).

[2018] AATA 3308

13 July 2018

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Natural Justice