Boyd, Jonathon Phillip (Migration)

[2021] AATA 1726

Boyd, Jonathon Phillip (Migration) [2021] AATA 1726 (7 April 2021)

DECISION RECORD

DIVISION:  Migration & Refugee Division

APPLICANT:  Jonathon Phillip Boyd

CASE NUMBER:  1819671

HOME AFFAIRS REFERENCE(S):          BCC2016/1988426

MEMBER:  Glenn O’Brien

DATE:  7 April 2021

PLACE OF DECISION:  Brisbane

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

Statement made on 07 April 2021 at 12:17pm

CATCHWORDS

MIGRATION – Employer Nomination – approval of nominated position – Direct Entry Nomination – nominator is actively and lawfully operating a business in Australia – legal ownership of business transferred by way of sale – vendor finance – decision under review affirmed

LEGISLATION

Migration Regulations 1994 (Cth), 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 28 June 2018 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).

1. The applicant applied for approval on 8 June 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).

1. In this case, the applicant has applied for approval of a nomination, seeking to satisfy the criteria in the Direct Entry nomination stream.

1. The applicant provided the Tribunal a copy of the delegate’s decision record with the application for review. The delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19(4)(b) of the Regulations because the delegate was not satisfied the applicant demonstrated that the nominator is actively and lawfully operating a business in Australia; and directly operates that business.

1. Mr Jonathon Boyd appeared before the Tribunal on 14 January 2021 to give evidence and present arguments. The Tribunal also received evidence from Scott Anthony Levy and the nominee was also listed as a witness.

1. The applicant was represented in relation to the review by its registered migration agent. The representative attended the Tribunal hearing.

1. At the completion of the hearing the Tribunal provided the applicant further time in which to make written submissions. On 28 and 29 January 2021 further documents were provided including a further statement from Mr Boyd and a contract in relation to the sale of the business. All documents provided to the Tribunal have been reviewed and considered in the application for review.

1. 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 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.

Nominator is actively and lawfully operating a business in Australia: r.5.19(4)(b)

1. Regulation 5.19(4)(b) requires that the applicant is actively, lawfully and directly operating a business in Australia.

2. At the time of the nomination application which was made on 8 June 2016 Mr Boyd owned and operated Legend Pizza in Byron Bay utilising ABN 46 986 007 913.

1. The Tribunal has reviewed the statutory declarations of Mr Boyd dated 4 December 2020. Prior to the hearing of the review, Mr Boyd sold the business to a personal friend, Mr Scott Levy (through a corporate entity) due to family commitments and his relocation to Victoria to assist with another family business. Mr Boyd has provided a copy of the contract of sale dated 20 December 2018. The completion date for the sale is recorded as 1 July 2019 and it was effected.

1. Since this time the business has continued to trade under the business name Legend Pizza however legal ownership transferred by way of sale to Byron Pizza Pty Ltd ABN 30 630 421 653 of which Mr Levy is a director and shareholder.

1. Mr Boyd told the Tribunal that the sale was through vendor finance and the purchaser is due to complete those payments by 30 June 2021. Mr Boyd also told the Tribunal that he remains heavily invested in the business and that the refusal of the nomination application would potentially affect the survival of the business and his financial position in the event the purchaser was unable to repay the vendor finance. While there may be consequences for a breach of a terms of any separate agreement between the applicant and the purchaser those are separate legal obligations between the parties.

1. In the letter of support filed by Mr Boyd after the hearing, Mr Boyd indicated that:

It's very hard to understand why life should stop for years to allow for delays caused by changes in regulations and legislations and an extremely long wait for the nomination to be processed by Immigration, then being denied clarification of the doubts expressed by the processing officer and now years later having to demonstrate that all remains just the same as originally presented.

1. While the Tribunal understands Mr Boyd’s frustration, the requirement in r.5.19(4)(b)(ii) is a time of decision requirement. To determine the review on a state of affairs that no longer exist would give rise to improper outcomes, for example if a business were no longer trading at the time of review. Similarly, the Tribunal notes that the nominee continues to work in the same occupation and undertakes the same tasks in the same business and the sale and transfer of legal ownership of the business has had an unintended effect upon both the purchaser (in particular those set out in the letter of Scott Levy dated 2 December 2020) and the nominee in terms of the nomination application.

1. The submissions filed by the applicant’s registered migration agent referred the Tribunal to r.5.19(5)(f)(i). Those provisions relate to the Temporary Residence nomination stream and do not have any application in relation to the present application.

1. The fact however is that the business is no longer owned by the applicant. The nominator, Mr Boyd is not therefore actively and lawfully operating a business in Australia and does not directly operate the business the subject of the nomination application.

1. Accordingly, the requirement in r.5.19(4)(b) is not met.

1. 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.

Glenn O’Brien Member

ATTACHMENT - EXTRACTS FROM THE MIGRATION REGULATIONS 1994

5.19 Approval 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).