Australian Multicultural Education Centre (AMEC) Pty Ltd (Migration)

[2020] AATA 6076

Australian Multicultural Education Centre (AMEC) Pty Ltd (Migration) [2020] AATA 6076 (23 December 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Australian Multicultural Education Centre (AMEC) Pty Ltd

CASE NUMBER:  1805957

HOME AFFAIRS REFERENCE(S):          BCC2016/4131559

MEMBER:Andrew McLean Williams

DATE:23 December 2020

PLACE OF DECISION:  Brisbane

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

Statement made on 23 December 2020 at 2:48pm

CATCHWORDS
MIGRATION – nomination – Direct Entry nomination stream – nominated position was not located in Regional Australia – would not be employed on a full time basis in the position for at least 2 years –decision under review affirmed

LEGISLATION
Migration Regulations 1994, 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 20 February 2018, rejecting 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 7 December 2016. 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 Direct Entry nomination stream.

4. The delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19(4)9h)(ii)(A) of the Regulations, because the delegate was not satisfied that the applicant was conducting its business from a regional location, such that the nominated position was one also located in Regional Australia. Site inspections conducted by departmental officers on 2 August 2017 revealed that the address for the nominated position specified by the applicant at Unit 1A, 40 Loganlea Road at Waterford West (a regional location for purposes of r.5.19(4)) was non-operational.

5. The applicant represented by its sole director and company secretary Ms Fan-Chi Chu appeared before the Tribunal on 1 September 2020 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Karl Young, who is the husband of Ms Chu and who styles himself as the General Manager of the applicant company.  

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in this case is whether the applicant meets the requirements for approval of the nomination under the Direct Entry nomination stream set out in r.5.19(4), which is extracted in the attachment to this decision. For the nomination to be approved, all the requirements must be met.

   Term of employment of the visa holder: r.5.19(4)(d)

8. 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. 

9. The nominated position that the applicant seeks to have approved is for a Policy and Planning Manager.  The nominee that it is proposed will fill this position is a Mr Chih-Chieh Chen.  The applicant proposes that Mr Chen will be paid $78,000 per annum, plus superannuation, and statutory employment entitlements.

10. The most recent financial information made available by the applicant relates to the 2019 financial year.  According to the tax return and financial statements for 2019, Australian Multicultural Education Centre (AMEC) Pty Ltd made a loss of $55,994 and in consequence paid no tax in 2019.  The total assets of the applicant company are expressed to be $818,527 whereas total liabilities are $1,595,401.  In other words, liabilities now far exceed total assets and the applicant is insolvent.  In light of same, the Tribunal cannot be satisfied that that the nominee will be able to be employed in the nominated position at the contractually agreed salary for at least a further two years.

11. Accordingly, the requirement in r.5.19(4)(d) is not met.

12. 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

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

    Andrew McLean Williams
    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.

    …

    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).