Arun Kumar (Migration)

[2019] AATA 287

Arun Kumar (Migration) [2019] AATA 287 (7 February 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Arun Kumar

CASE NUMBER:  1710954

HOME AFFAIRS REFERENCE(S):           BCC2016/34422251 BCC2016/3442251

MEMBER:Sheridan Lee

DATE:7 February 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 07 February 2019 at 3:52pm

CATCHWORDS

MIGRATION – approval of a nomination – genuine position – qualitatively assessing the position – occupation of Gardener (General) – size of the business may not sustain a full-time gardener – decision under review affirmed          

LEGISLATION

Migration Act 1958, s 140GB,
Migration Regulations 1994, rr 2.72, 2.73

CASES

Cargo First Pty Ltd v MIBP [2016] FCA 30

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 Immigration and Border Protection on 4 May 2017 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 to nominate the position of Gardener (General) on 17 October 2016. 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 r.2.72(10)(f) because the position was not genuine. In particular, she was not satisfied that the business could support a gardener to perform tasks at the requisite level.

4. The applicant appeared before the Tribunal on 16 November 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the nominee for the position, Mr Hiren Jashbhai Patel.  

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

6. 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. ANZSCO outlines that the tasks of occupations within the unit group of Gardeners include:

   ·preparing and maintaining seedbeds and growing sites

   ·propagating and planting trees, bushes, hedges, flowers and bulbs

   ·preparing lawn areas by spreading top soil and planting grass, and by laying instant turf

   ·maintaining planted and grassed areas by weeding, trimming, fertilising, watering and mowing

   ·pruning trees and hedges, and installing plant support and protection devices

   ·preparing plans and drawings, selecting materials and plants, and scheduling landscape construction

   ·setting out and installing hardscape and softscape structures

   ·constructing gravel and paved areas, walls, fences, pergolas, ponds, barbecues and garden furniture

   ·examining trees to assess their condition and determine treatment

   ·lopping limbs off trees and shaping branches using chain and handsaws

   ·spraying and dusting plants and trees to control insects and disease, and felling diseased trees.

3. Mr Kumar is a sole trader, operating a franchise of Jim’s Mowing in Toorak Central. On the publicly available website, it outlines that ‘Jim’s Toorak Central offers a same-day gardening and lawn mowing service, including yard clean ups, rubbish removal, gutter cleans and more.’ It goes on to list the services as including:

   ·garden maintenance

   ·lawns mowed

   ·hedging & pruning

   ·turf installation

   ·landscape design

   ·rubbish removal

   ·gutter cleans

   ·soil management

   ·garden watering & irrigation solutions.

4. When asked about the nominated position, Mr Kumar gave evidence that the position involves landscaping, decking, gutter cleaning, cutting hedges, pulling trees, blowing and mowing. The nominee gave evidence that he currently undertakes work for Mr Kumar and also undertakes edging with a whipper snipper, soil levelling, laying new grass and soil testing. He explained that he does not currently work on a full time basis.

5. The applicant supplied the Tribunal with some sample invoices showing that his business had completed general garden maintenance, mowing, rubbish removal, pruning, edging, spraying weeds, hedging and mulching. Photographs were supplied, which appear to show staff trimming a hedge, mowing a lawn, inspecting a sprinkling system and testing some soil. The applicant further made written submissions as to the tasks of the role that aligned with the verbal evidence and the description in ANZSCO.

6. The Tribunal accepts that the nominated position would undertake a limited range of tasks that fall within the scope of a Gardener as outlined in ANZSCO. However, it was not convinced that the size of the business could support a full-time gardener to perform the range of tasks anticipated within the occupational dictionary. In particular, the Tribunal notes that the focus of the business on lawn maintenance and while services such as landscaping and decking were described and even advertised by the applicant, there was no evidence presented to support that work is being undertaken by the business. In particular, no evidence was submitted to substantiate that the business would:

   ·propagate and plant trees, bushes, hedges, flowers and bulbs

   ·prepare plans and drawings, selecting materials and plants, and scheduling landscape construction

   ·set out and install hardscape and softscape structures

   ·construct gravel and paved areas, walls, fences, pergolas, ponds, barbecues and garden furniture

   ·examine trees to assess their condition and determine treatment.

7. In submissions dated 18 October 2018, the applicant outlined that there are currently two ‘employees’, being Mr Kumar as Director and full-time gardener and Mr Patel, ‘who is a casual/part-time gardener’. At the hearing, Mr Kumar explained that his business has been very busy and he is working almost every day from 7 am until 7 pm. Mr Kumar gave evidence that his casual employee works between 25 to 35 hours per week. He outlined that he is hoping to reduce his hours of work as he had a stent put in his heart and also experiences back pain.

8. The applicant supplied the Tribunal with notices of assessment, issued by the Australian Taxation Office for the financial years ending 30 June 2016, 2017 and 2018. The assessments show that the applicant had the following taxable income for each year respectively:

   ·$37,468

   ·$22,522

   ·$30,376.

9. Business Activity Statements from August 2016 to March 2017 were also submitted to the Tribunal. However, the statements were not signed or dated and there was no reference number to indicate that they had been lodged with the Australian Taxation Office. The Tribunal does not consider the statements to be good evidence of the business’ financial position.

10. The Tribunal raised concern with the applicant in respect to how he could afford to reduce his own hours while increasing the hours of a paid employee with such a low taxable income over the previous years. In response, the applicant gave evidence that he expects that work would increase once he has a full time employee and explained that he currently turns back work because he is too busy. Without any evidence to support the contention, the Tribunal does not accept that increasing the work hours of the nominee, who receives a wage, while reducing the hours of the business owner would increase business profits. As such, the Tribunal has concerns as to whether the business could financially support the position.

11. Given the lack of evidence to substantiate the tasks of the position or that the business could afford to support such a position on a full-time basis, the Tribunal cannot be satisfied that the position is genuine. For these reasons the requirements of r.2.72(10)(f) are not met.

12. Accordingly, the decision under review must be affirmed.

DECISION

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

Sheridan Lee
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.