Bassi Corporation Pty Ltd (Migration)

[2021] AATA 1374

Bassi Corporation Pty Ltd (Migration) [2021] AATA 1374 (3 May 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Bassi Corporation Pty Ltd

CASE NUMBER:  1721812

DIBP REFERENCE(S):  BCC2017/775121

MEMBER:Amanda Ducrou

DATE:03 May 2021

PLACE OF DECISION:  Melbourne

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

Statement made on 03 May 2021 at 11:25am

CATCHWORDS

MIGRATION – application for approval of nomination of position – direct entry stream – need for position – actively operating business – company in liquidation – no response to tribunal’s invitations to provide information and comment – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), s 359(2), 359A, 359C, 360(3), 363(1)(b), 363A

Migration Regulations 1994 (Cth), r 5.19(4)(a)(ii)

CASE

Hasran v MIAC [2010] FCAFC 40

Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617

Kaur v Minister for Immigration and Border Protection [2014] FCA 915

Manna v Minister for Immigration and Citizenship [2012] FMCA 28

Minister for Immigration and Border Protection v Singh [2014] FCAFC 1

Minister for Immigration and Citizenship v Li [2013] HCA 18

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 28 August 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).

2. The applicant applied for approval on 27 February 2017. The requirements for the approval of the nomination of a position in Australia are found in r.5.19 of the Regulations, which contains two alternative streams: a Temporary Residence Transition nomination stream (r.5.19(3)) and a Direct Entry nomination stream (r.5.19(4)). If the application is made in accordance with r.5.19(2) and meets the requirements of either stream, then the application must be approved. If any of the requirements are not met, then the application must be refused: r.5.19(5).

3. In this case, the applicant has applied for approval of a nomination, seeking to satisfy the criteria in the Direct Entry nomination stream. The position identified in the nomination application is Cook (ANZSCO 351411). The application for approval identifies Ms Karamjit Kaur Brar as the nominee.

4. The delegate refused the application on the basis that the applicant did not satisfy r.5.19(4)(a)(ii) of the Regulations because the applicant had not demonstrated a need for it to employ a paid employee to work in the nominated position under the applicant’s direct control. The delegate concluded that as the applicant did not meet r.5.19(4)(a)(ii) of the Regulations, the applicant did not satisfy r.5.19(4)(a) of the Regulations. The delegate, therefore, concluded that the applicant did not satisfy r.5.19(4) of the Regulations.

5. On 30 January 2020 the Tribunal wrote to the applicant pursuant to s.359(2) of the Migration Act 1958 (the Act), inviting the applicant to provide information to the Tribunal in writing. The invitation was sent by email to the applicant’s representative and registered migration agent, Mr Sobaran Singh, who represented the applicant in relation to the review at the last email address provided in connection with the review. The letter invited the applicant to provide information that demonstrated that all of the relevant criteria in r.5.19(4) of the Regulations were met currently, including, but not limited to, the criteria that the delegate had found were not established. Extracts of the relevant parts of r.5.19(4) accompanied the letter for reference. The letter asked the applicant to provide the information by 13 February 2020. The letter noted that the applicant could request an extension of time provided that any such request was received before 13 February 2020. The letter explained that if the requested information was not received within the period allowed or as extended (if an extension were requested and granted), then the applicant would lose any entitlement it might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments. The Tribunal is satisfied that the letter was properly sent to the correct email address, being the last email address provided in connection with the review.

6. The Tribunal did not receive a response or request for an extension of time to respond from Mr Singh or from any other person authorised by the applicant by 13 February 2020.

7. The applicant has not provided the information within the prescribed period and no extension has been granted. In these circumstances, s.359C of the Act applies and pursuant to s.360(3) of the Act, the 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 him or her to appear: Hasran v MIAC [2010] FCAFC 40.

8. On 12 March 2020 the Tribunal wrote to the applicant pursuant to s.359A of the Act inviting the applicant to comment on or respond to information which it considers would, subject to the applicant’s comments or response, be the reason, or a part of the reason, for affirming the decision under review. The letter advised the applicant that the Tribunal had not made up its mind about the information. The letter was sent by email to the applicant via Mr Sobaran Singh as the applicant’s representative at the email address provided in connection with the review.

9. The letter set out particulars of the information, namely that information that the Tribunal obtained from the Australian Securities and Investments Commission (ASIC) indicates that as at 11 March 2020 the applicant was under external administration and that on 29 November 2018 the members of the applicant passed a resolution to wind up the applicant (creditors’ voluntary winding up) and to appoint a liquidator. The letter noted that this information indicates that the applicant is in external administration due to financial difficulties with creditors and/or due to being insolvent. A copy of a Company Summary for the applicant extracted from ASIC’s database on 12 March 2020 was attached to the Tribunal’s letter.

10. The Tribunal’s letter advised the applicant that the information in respect of which particulars were provided is relevant to the review because if the Tribunal were to accept that the information is true and the Tribunal were to rely on the information and to accept that the information is true, then the Tribunal may find that the applicant did not meet the requirement in r.5.19(4)(b), being the requirement that the applicant is actively and lawfully operating a business in Australia and/or the requirement in r.5.19(4)(d), being the requirement that the employee (in this case Ms Karamjit Kaur Brar) will be employed on a full time basis in the position for at least two years on the proposed salary. The letter explained that this would mean that the applicant does not satisfy the requirements in r.5.19(4)(b) and/or r.5.19(4)(d) of the Regulations for the approval of the application for the nomination of a position in Australia under r.5.19 of the Regulations, and that if the Tribunal found that r.5.19(4)(b) and/or r.5.19(4)(d) are not met, this would be the reason, or a part of the reason for the Tribunal to affirm the decision under review.

11. The Tribunal’s letter asked the applicant to provide its comments or response by 26 March 2020. The letter noted that the applicant could request an extension of time provided that any such request was received by 26 March 2020. The letter explained that if the comments or response to the information was not received within the period allowed, or as extended, the Tribunal may make a decision on the review without taking further action to obtain the applicant’s views on the information and that the applicant would lose any entitlement the applicant might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments. The Tribunal is satisfied that the invitation to give comments or a response was properly sent to the correct email address, being the last email address provided in connection with the review.  

12. On 16 March 2020 the Tribunal wrote by email to the applicant via Mr Singh. The email was sent to Mr Singh at the last email address provided in connection with the review. The Tribunal’s email advised that the ASIC extract for the applicant that had been attached to the Tribunal’s letter of 12 March 2020 was not the extract referred to in that letter and that the ASIC extract referred to in the letter of 12 March 2020 was now attached to this email (being the email of 16 March 2020). The extract attached to the 16 March 2020 email was a Historical Company extract for the applicant extracted from the ASIC database on 3 March 2020. The email advised the applicant that the time for the applicant to provide comments or respond to the information particularised in the Tribunal’s letter to the applicant of 12 March 2020 was extended to 30 March 2020. The Tribunal is satisfied that the email was properly sent to the correct email address, being the last email address provided in connection with the review.

13. The Tribunal did not receive a response or request for an extension of time to respond from Mr Singh or from any other person authorised by the applicant by 30 March 2020.

14. The Tribunal considered whether it should adjourn the review under s.363(1)(b) of the Act to allow the applicant additional time in which to provide further evidence to support the review application or to provide comments on or respond to the information particularised in the Tribunal’s letter of 12 March 2020.

15. In doing so the Tribunal had regard to the decisions in Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617 and Manna v Minister for Immigration and Citizenship [2012] FMCA 28 where the Courts have held that the Tribunal is not required to defer its decision-making processes indefinitely. The Tribunal also had regard to the decision in Minister for Immigration and Citizenship v Li [2013] HCA 18 (8 May 2013) regarding the reasonableness of any request for an adjournment, and the Full Federal Court decision in Minister for Immigration and Border Protection v Singh [2014] FCAFC 1 (4 February 2014) which considered this issue, as well as the decision in Kaur v Minister for Immigration and Border Protection [2014] FCA 915 (28 August 2014) where analogous issues were discussed.

16. The Tribunal considered whether, in the circumstances of this case, the information that the applicant meets the requirements in r.5.19(4) of the Regulations is likely to be forthcoming and whether the applicant has had a fair opportunity to provide the relevant information or documents already, and the significance of the information or documents to the applicant.

17. The Tribunal had regard to the fact that the application was refused by the Department on 28 August 2017 because the delegate concluded that the applicant did not satisfy r.5.19(4)(a) of the Regulations as the applicant had not demonstrated a need for it to employ a paid employee to work in the nominated position under the applicant’s direct control as required under r.5.19(4)(a)(ii) of the Regulations. The Tribunal observes that the applicant has been aware for approximately 43 months of the reasons for the nomination refusal.

18. In these circumstances, and for the reasons set out in this decision record, the Tribunal considers that the applicant has had a fair opportunity to provide the relevant information, comments and response and has been allowed sufficient time to take steps to satisfy the regulatory criteria. The Tribunal notes that it is uncertain if or when the applicant may provide information in writing as to whether the nominating business meets the requirements of r.5.19(4) and whether and when the applicant may comment or respond to the information particularised in the Tribunal’s letter of 12 March 2020. The Tribunal is not disposed to delaying making a decision indefinitely.

19. Accordingly, the Tribunal has decided not to exercise its discretion under s.363(1)(b) of the Act to adjourn the review further to allow the applicant additional time to demonstrate that the nominating business meets the requirements of r.5.19(4) or to provide comments or respond to the information particularised in the Tribunal’s letter of 12 March 2020.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

21. 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)

22. Regulation 5.19(4)(d) requires the nominee to be employed in the nominated position for at least two years full-time, and the terms and conditions of that employment do not expressly exclude the possibility of an extension.

23. According to the primary decision record that was submitted to the Tribunal with the application for review, the applicant failed to provide sufficient evidence of its financial capacity to employ the nominee in the nominated position on a full-time basis for at least two years.

24. The primary application form lists the base rate of pay per annum and guaranteed annual earnings for the nominee in the nominated position as $53,900. The total remuneration payable by the applicant to employ the nominee in the nominated position (being the base rate of pay plus superannuation at the mandated statutory rate) is $59,020.50 per annum.

25. The delegate was provided with a letter dated 7 December 2016 from the applicant’s accountant addressing the financial capacity of the applicant to meet its nomination obligations under the Regional Skilled Migration Scheme. The letter is signed by Mr Gurmit Singh, a Certified Practising Accountant, and a member of CPA Australia as the principal of Athans & Taylor, Myaree, the applicant’s accountant and tax agent. In the letter Mr Singh states that to the best of the knowledge of Athans & Taylor, Athans & Taylor are of the opinion that the applicant has the financial viability to meet its nomination obligations for the next two years under the terms and conditions of the Regional Skilled Migration Scheme, as defined in the Act. Mr Singh notes that as Athans & Taylor had not completed an audit on the financial performance and results of the applicant for the 2016 financial year, Athans & Taylor do not express any opinion on information contained in this correspondence. The delegate was also provided with the applicant’s financial statements for the 2016 financial year (the statements included 2015 financial year figures) and with the applicant’s business activity statement for the first quarter of the 2017 financial year (being the quarter commencing on 1 July 2016 and ending on 30 September 2016). The director’s report and the compilation report that were included in the 2016 financial year statements were not signed.

26. The letter dated 7 December 2016 was provided by a professionally qualified accountant. However, the most recent financial statements before the Tribunal are for the 2016 financial year, which ended more than four years ago and are not signed. The more recent business activity statement was prepared for a period that ended more than three years ago. There is no corresponding evidence to corroborate the figures that were provided.

27. The applicant also provided the delegate with a chart setting out the applicant’s organisational structure and an employment contract dated 23 February 2017 signed by the nominee and by Ms Patricia Anne Bassi (director of the applicant). The employment contract provides for the continued employment of the nominee by the applicant in the position of Cook on a full-time basis at a base salary of $53,900 per annum plus superannuation at the rate of 9.5% of the base salary. As noted by the delegate, the letterhead of the document identifies the name of the busines as Maharaja Indian Restaurant (ABN 45 088 072 968). Clause 1 of the employment contract specifies the location of the nominee’s employment in the nominated position as 40 Walcliffe Road, Margaret River, Western Australia. These details correspond with information in the application for approval of the nomination of a position that the applicant lodged on 27 February 2017. However, as also noted by the delegate, the third page of the employment contract identifies the employing entity as Jemm & Co Investments Pty Ltd. This entity is not referred to in the application for approval of the nomination of a position that the applicant lodged or in any of the other documents that the applicant provided to the Department.

28. The Tribunal has attempted to obtain the information required to satisfy the relevant legislative criteria. The applicant has not provided any recent financial information regarding its financial capacity to employ the nominee. The Tribunal wrote to the applicant pursuant to s.359(2) of the Act inviting the applicant to provide information in writing demonstrating that the nominating business meets all the requirements of the criteria in r.5.19(4) of the Regulations. The applicant has failed to do so. The Tribunal also wrote to the applicant pursuant to s.359A of the Act inviting the applicant to provide comments or respond to information which it considers would, subject to the applicant’s comments or response, be the reason, or a part of the reason, for affirming the decision under review. The applicant has failed to provide comments or a response. The Tribunal has no contemporary information before it concerning the financial capacity of the nominating business to pay the nominee’s salary.

29. The Tribunal has had regard to the documents before it on the Department’s file and the Tribunal’s file in relation to the applicant. The only new or further information before the Tribunal which was not before the Department when the delegate made the primary decision is the information extracted from the ASIC database on 3 March 2020 as particularised in the Tribunal’s letter to the applicant of 12 March 2020, in relation to which the applicant has been invited to but has not provided comments or a response.

30. Based on the evidence before it, the Tribunal is satisfied that the evidence is insufficient to demonstrate that the applicant has the financial capacity to pay the nominated salary of $53,900 per annum (with the total annual remuneration including superannuation being $59,020.50 per annum) for the nominated full-time position of Cook for at least two years. In the circumstances and also having regard to the inconsistency in the employer named in the employment contract and the information in the application for approval, the Tribunal is not satisfied that, at the time of its decision, the applicant will employ the nominee on a full-time basis in the position for at least two years. The Tribunal notes that the applicant has not provided current and contemporary information or evidence relating to the terms and conditions of employment, such as a more recent contract of employment or letter of offer or of engagement. Accordingly, the Tribunal is not satisfied that the employment does not include an express exclusion of the possibility of extending the period of employment

31. Given the above, the Tribunal finds that the requirements in r.5.19(4)(d) have not been satisfied.

32. As the Tribunal has found that the applicant does not meet r.5.19(4)(d)(i) it is not required to consider the remaining requirements set out in r.5.19(4).

33. 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 the 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

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

   Amanda Ducrou
   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).