All Building Trades Pty Ltd (Migration)

[2019] AATA 5620

All Building Trades Pty Ltd (Migration) [2019] AATA 5620 (6 December 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  All Building Trades Pty Ltd

CASE NUMBER:  1801850

HOME AFFAIRS REFERENCE(S):          BCC2017/3451308

MEMBER:George Hallwood

DATE:6 December 2019

PLACE OF DECISION:  Adelaide

DECISION:The Tribunal affirms the decision not to approve the nomination.

Statement made on 06 December 2019 at 11:19am

CATCHWORDS
MIGRATION – Employer Nomination – approval of nominated position – genuine position – Building Associate – scale of the applicant’s business – financial capacity to maintain position – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 140GB, 140GBA, 359C, 360, 363A
Migration Regulations 1994 (Cth), rr 2.72, 2.73

CASES
Cargo First Pty Ltd v MIBP [2016] FCA 30
Hasran v MIAC [2010] FCAFC 40

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 5 January 2018 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).

2. The applicant applied for approval on 21 September 2017. 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 nomination applications made from 23 November 2013, additional criteria are specified in s.140GBA.

3. The delegate decided not to approve the nomination on the basis that the applicant did not satisfy 2.72(10(f) because they did not consider the position associated with the nominated occupation to be genuine.

4. The applicant was represented in relation to the review by its registered migration agent.

5. On 17 October 2019 the Tribunal wrote to the applicant via their agent pursuant to s.359(2) of the Act, inviting the applicant to provide updated and current information addressing the requirements in regulation 2.72 of the Regulation and section 140GB of the Act in writing. The invitation was sent to the applicant’s email address and advised that, if the information was not provided in writing by the end of the prescribed period, being 31 October 2019, or within any extended time as requested and granted, the Tribunal may make a decision on the review without taking further steps to obtain the information and the applicant would lose any entitlement they might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

6. On 29 October 2019 a request was received from the applicant’s agent for an extension of time to provide the requested information. That day the Tribunal granted an extension of time until 8 November 2019.

7. A response was received on 8 November 2019 from the applicant’s agent offering:

   “In lieu of the requested information our client wishes to present the following current facts and circumstances:

   Around 2018, the Applicant-company has experienced a business turnaround due mainly to cutthroat competition in the building industry. During those times, the company has streamlined its operations. Lately, however, the company has been able to regain some of its previous clientele and had been able to resume its business activities. The company is recovering from recent business turnarounds and will thus genuinely need the services of a Building Associate.”

8. On 19 November 2019 the Tribunal invited the applicant to a hearing on 3 December 2019.

9. On 2 December 2019 a letter was received from the applicant’s agent stating:

   “Kindly be informed that our clients no longer wish to attend the hearing set on 03 December 2019.

   We have been advised by our client that they are not able to provide the information you requested on 17 October 2019 and because of this, our clients – the Sponsor and the Visa Applicants – have no more reasons to be present in the hearing.”

10. No further information was provided to the Tribunal and no extension of time was sought. In these circumstances, s.359C applies and pursuant to s.360(3) the review applicant is not entitled to appear before the Tribunal. The effect of s.363A of the Act is that if a review applicant has no entitlement to a hearing, the Tribunal has no power to permit them to appear: Hasran v MIAC [2010] FCAFC 40.

11. The section 359(2) letter, inviting the applicant to provide updated and current information, contained a number of specific requests and included examples.

12. While the correspondence received from the agent on 2 December 2019 was clear about the applicant’s intent not to attend the hearing, it was not clear what the applicant intended in relation to the application.

13. On 3 December 2019 the Tribunal wrote to the agent requesting clarification whether the applicant wished to withdraw or whether they expected the Tribunal to review the decision on the papers. The agent responded on 3 December 2019 “we kindly request the Honourable [sic] Member to make a decision based on the information at hand.  Please inform us if you need anything else from us regarding this matter”.

14. As none of the requested information was forthcoming and the applicant did not accept the invitation to attend the review, the Tribunal has decided to proceed to a decision without taking further steps to obtain the information.

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

CONSIDERATION OF CLAIMS AND EVIDENCE

1. 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 applicant is an approved sponsor and meets the requirements in r.2.72: s.140GB(2). The applicant must also have paid any nomination training contribution charge in relation to the nomination for which they are liable, but this liability only arises for nominations made from 12 August 2018. In addition, for nominations made from 23 November 2013, s.140GBA must be met.

Position must be genuine

1. Regulation 2.72(10)(f) requires that the position associated with the nominated occupation is genuine. This was considered in Cargo First Pty Ltd v MIBP [2016] FCA 30, where the Court (at [34]) upheld the Tribunal’s approach of qualitatively assessing the position and comparing this with the occupation nominated in order to determine whether it was genuine.

2. In considering whether the position is genuine the Tribunal must be satisfied that position genuinely exists, and also be satisfied the position is what it purports to be.

3. The Tribunal considered the information provided in the documents and more recent correspondence in order to determine whether the position is genuine. The Tribunal found the following information to be important in considering whether the position is genuine:

   ·     The nomination application generated 21 September 2017 identified that the applicant’s then turnover for the most recent full financial year was $700,000.

   ·     Copies of three contracts for four dwellings (including house plans) totalling $918,350 all from the 2015 / 2016 financial year:

   o   A contract between ABD Homes and a customer for a home build dated 12 April 2016 with a total contract sum of $250,000.

   o   A contract between ABD Homes and a customer for two villas on one allotment dated 18 April 2016 with a total contract sum of $518,350.

   o   A contract between ABD Homes and a customer for a home build dated 25 November 2015 with a total contract sum of $150,000.

   ·     An organisation chart indicating there are two directors of the business, a manager, a marketing officer, an electrician, an architect, and a building associate / clerk of works (the position associated with the nominated position). The organisation chart also indicates there are 12 contractors.

   ·     A job description that reflects the relevant ANZSCO occupation description.

   ·     A statutory declaration dated 8 August 2017 signed by Mr Hossain:

   o   confirming the business’s need for the need for a full-time building associate (clerk of works)

   o   confirming he had provided bank statements to evidence the ongoing business activity

   o   stating that he was in the process of obtaining business activity statements which he said would be furnished shortly (the Tribunal notes that two years later no business activity statements have been provided)

   o   stating that All Building Trades had secured multiple contracts.

   ·     The bank statements detailing eight Bank West accounts and one Commonwealth Bank account showing that between 1 July 2016 and 30 June 2017 there were deposits of $764,390.51 and withdrawals of $864,627.71

   Note that in relation to the bank statements the Tribunal has not attempted to identify transfers across accounts or loans that were provided to the business and repaid. These figures generally reflect both the turnover stated in the nomination application and also the amounts involved in the contracts that were provided to the Tribunal, particularly the two contracts for three dwellings signed in April 2016.

4. All Building Trades provided evidence in 2017 that they had built three dwellings in about a year. The Tribunal also notes that All Building Trades, in their response to the Tribunal’s request for further information, alludes to a business downturn around 2018.

5. The occupation of Building Associate – 312112 according to ANZSCO assists in the planning and organisation of material and human resources used in the construction and maintenance of buildings. It is a high skill level job usually associated with coordinating many work programs at a time.

6. As it is outlined in the position description provided with the application there is a close correlation between the All Building Trades description of the position and the ANZSCO associated nominated occupation.

7. As a full-time position, neither the ANZSCO description of the occupation nor the All Building Trades description of the position align well with a role overseeing the building of only three dwellings a year. While the statutory declaration describes multiple new contracts there is no evidence that they eventuated. There is no evidence to suggest the scale of the business has increased to a scale which would support a full-time role as described. There has only been an allusion to a business downturn in about 2018 and some subsequent recovery. I am not satisfied that the scale of the work at All Building Trades supports the position being genuine.

8. The turnover of the business and the deposits versus withdrawals also indicate All Building Trades was not in a financial position to afford the position of building associate (clerk of works) in 2016/2017 before the downturn alluded to. There is no evidence before the Tribunal that suggests this situation has improved and I am not satisfied All Building Trades’ financial position supports the position being genuine.

9. In the absence of any corroborating evidence the Tribunal is unable to link the position description with any existing position.

10. There is no current evidence before the Tribunal to satisfy me that the position of building associate (clerk of works) associated with the nominated occupation genuinely exists. There is also no evidence that the position could be what it purports to be based on the scale of All Building Trades business. 

11. The Tribunal has no copies of current contracts and no copies of financial statements or any other information that demonstrates All Building Trades has a genuine full-time position as a building associate (clerk of works).

12. I am not satisfied the position associated with the nominated occupation is genuine.

13. For these reasons the requirements of r.2.72(10)(f) are not met.

Concluding paragraphs

1. For the reasons given above, the Tribunal is not satisfied that the applicant meets the applicable criteria for the nomination to be approved. Accordingly, the decision under review must be affirmed.

DECISION

1. The Tribunal affirms the decision not to approve the nomination.

George Hallwood
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)is any of the following:

(i) a standard business sponsor;

(ii) a person who has applied to be a standard business sponsor;

(iii) a party to a work agreement (other than a Minister);

(iv) a party to negotiations to a work agreement (other than a Minister); and

(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.

(8B)The Minister is satisfied that the person has, in writing, certified as part of the nomination whether or not the person has engaged in conduct, in relation to the nomination, that constitutes a contravention of subsection 245AR(1) of the Act.;

(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.

(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 the occupation is applicable to the person identified in the nomination in accordance with the specification of the occupation; 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 (including, if applicable, the terms and conditions provided by an enterprise agreement under the Fair Work Act 2009) that are provided or 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.