Brighton Pacific Pty Ltd (Migration)

[2021] AATA 3211

Brighton Pacific Pty Ltd (Migration) [2021] AATA 3211 (27 July 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Brighton Pacific Pty Ltd

CASE NUMBER:  1828521

HOME AFFAIRS REFERENCE(S):          BCC2017/2321917

MEMBER:Terrence Baxter

DATE:27 July 2021

PLACE OF DECISION:  Brisbane

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

Statement made on 27 July 2021 at 11:33am

CATCHWORDS
MIGRATION – nomination – would not be employed on a full time basis in the position for at least 2 years – applicant failed to provide the requested information within the prescribed period– no evidence to show financial capacity to pay the nominated full-time salary for the nominated position –decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 359, 360, 363
Migration Regulations 1994, r 5.19

CASES

Hasran v MIAC [2010] FCAFC 40
Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617
Manna v Minister for Immigration and Citizenship [2012] FMCA 28
MIBP v Jayshree Enterprises Pty Ltd [2017] FCA 264

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 10 September 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).

2. The applicant, Brighton Pacific Pty Ltd, applied for approval on 29 June 2017. The applicant nominated Ms Wing Foon Mo (the nominee) in the position of Internal Auditor Manager. 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 that the applicant’s nomination did not satisfy the following:

   a.r.5.19(4)(d)(i) of the Regulations because the delegate found that the applicant had not shown the financial capacity to be able to pay the full-time salary of the nominee for at least two years and therefore had not demonstrated that the nominee will be employed on a full-time basis in the position for at least two years.

   b.r.5.19(4)(h)(i)(B)(I) of the Regulations because the delegate found that the applicant did not demonstrate expenditure amounting to at least 2% of its payroll on a monetary contribution to an Industry Training Fund to meet Training Benchmark A, or demonstrate the provision of training or associated training costs in the previous 12 months to meet Training Benchmark B.

5. The applicant lodged an application for review of the delegate’s decision with the Tribunal on 28 September 2019.

6. On 18 June 2021, the Tribunal wrote to the applicant pursuant to s.359(2) of the Migration Act 1958 (the Act) inviting it to provide current information addressing the relevant criteria under r.5.19(2) and (4) of the Regulations. The Tribunal is satisfied that this invitation was properly dispatched to the applicant’s email address. The applicant failed to provide the information within the prescribed time for responding to the invitation. No response to that invitation has been received by the Tribunal at the time of this decision.

7. Where a review applicant is invited to provide further information in accordance with s.359(2) of the Act, and fails to do so within the prescribed period, the Tribunal may make a decision on the review without taking any further action to obtain the information, according to s.359C(1) of the Act. In these circumstances, the review applicant is not entitled to appear before the Tribunal in accordance with s.360(3) of the Act. Of note, 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 the review applicant to appear before it as outlined in the Full Federal Court authority in the matter of Hasran v MIAC [2010] FCAFC 40.

8. Although the applicant has not requested this, the Tribunal has also considered whether it would be appropriate to adjourn the application for review under s.363(1)(b) of the Act to allow the applicant additional time in which to provide evidence to support its application for review. In doing so, it has paid careful regard to the guidance in the decisions of 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 held that the Tribunal is not required to indefinitely defer its decision-making process.

9. The Tribunal has taken into account that the applicant has been aware since 10 September 2018 of the reasons for the nomination application being refused and also that the implications of not providing the information requested in the invitation from the Tribunal of 18 June 2021 were set out in that correspondence.

10. In these circumstances, the Tribunal considers that the applicant has had sufficient time in which to address the central issues arising in the application for review. Accordingly, the Tribunal has decided not to exercise its discretion under s.363(1)(b) of the Act to adjourn the review any further to allow the applicant more time in which to demonstrate that it meets the relevant criteria under r.5.19(2) and (4) of the Regulations.

11. Following careful consideration, the Tribunal has decided to proceed to make a decision on this review without taking any further action to obtain the information referred to in the aforementioned invitation and having due regard to the documentary material before it.

12. The applicant was represented in relation to the review by its legal practitioner Mr Alan Ng of AE & Associates Pty Ltd.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

14. 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.

    Evidence presented to the Department

15. The applicant produced to the Department of Immigration and Border Protection (now the Department of Home Affairs) (the Department) documents including:

    a.A letter dated 9 February 2016 confirming the applicant’s registration on the Australian Business Register and its ABN.

    b.An ASIC current business name extract for the business name Australia Institute of Business and Technology.

    c.Activity statements for the 2017 financial year.

    d.A financial report for the 2016 financial year.

    e.An organisational chart.

    f.An employment contract of the nominee dated 16 May 2017, and position description.

    g.A submission from the applicant’s accountant dated 27 September 2017.

    h.Submissions from the applicant dated 8 November 2017.

    Evidence presented to the Tribunal

16. The applicant produced to the Tribunal a copy of the delegate’s decision.

    Departmental Client of Interest Notes

17. The records of the Department included notes to the effect that allegations had been received regarding the applicant and that the Australian Skills Quality Authority (ASQA) had issued non-compliance notices to the applicant. No further information in relation to the allegations or ASQA notices was provided to the Tribunal. Having regard to the paucity of information contained in the Departmental notes, the Tribunal does not regard them as being relevant to this application and has placed no weight on the allegations or references to steps taken by the ASQA.

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

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

19. The delegate found that r.5.19(4)(d)(i) had not been met.

20. It is open to the Tribunal to consider whether the applicant’s business has the financial resources to meet the wages costs for the nominee over the employment period (MIBP v Jayshree Enterprises Pty Ltd [2017] FCA 264).

21. The employment contract provides that the salary payable to the nominee is $15,416.66 per month, equivalent to $184,999.92 per annum plus superannuation in accordance with the Superannuation Guarantee (Administration) Act 1992. Based on the superannuation guarantee rate of 10% of normal wages, effective from 1 July 2021, this represents a total salary package of $203,499.91 per annum.

22. The financial statements produced to the Department revealed that the applicant sustained trading losses of $276,957 and $1,871,740 in the 2015 and 2016 financial years respectively. The balance sheets forming part of the financial statements reveal that the applicant had net assets of $73,043 at the end of the 2015 financial year and net liabilities of $1,798,697 at the end of the 2016 financial year.

23. The applicant produced to the Department activity statements for the 2017 financial year. Those activity statements do indicate a significant increase in the sales revenue of the applicant, compared to the 2016 financial year. However, activity statements do not provide a comprehensive record of the applicant’s trading expenses and the Tribunal places little weight on the activity statements when considering whether the applicant has the capacity to pay the nominee’s substantial salary package for at least two years.

24. The applicant’s submission of 8 November 2017 states that the applicant’s business was then currently expanding with a strong cash flow. The applicant has had an opportunity to provide contemporary evidence to the Tribunal of its current trading status but has failed to do so. In the absence of any supporting evidence for the applicant’s submission, the Tribunal places little weight on that submission.

25. The accountant’s submission of 27 September 2017 is limited to confirmation of the applicant’s payroll information for the 2017 financial year. The Tribunal places no weight on that submission when considering whether the applicant has the capacity to pay the nominee’s salary package for at least two years.

26. Having regard to the lack of contemporary evidence before the Tribunal, bearing in mind that the applicant has failed to respond to the invitation issued pursuant to s.359(2) of the Act, the Tribunal is not satisfied that at the time of this decision the applicant has the financial capacity to pay the nominee’s full-time salary package for at least two years and that the nominee will be employed on a full-time basis in the position for at least two years. The Tribunal finds that the applicant does not satisfy the requirements of r.5.19(4)(d)(i).

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

28. 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

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

    Terrence Baxter
    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).