Budget Build Pty Ltd as trustee for Shabana Family Trust (Migration)

Budget Build Pty Ltd as trustee for Shabana Family Trust (Migration) [2018] AATA 815 (14 March 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Budget Build Pty Ltd as trustee for Shabana Family Trust
CASE NUMBER:  1726700
DIBP REFERENCE(S):  BCC2016/4317141
MEMBER:Sheridan Lee
DATE:14 March 2018
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision under review to refuse the nomination.

Statement made on 14 March 2018 at 11:11am
CATCHWORDS
Migration – Employer Nomination – Genuine need for paid employee – No current financial records – No signatures on financial statements – Length of employment engagement
LEGISLATION
Migration Act 1958, s 359, 359C, 363, 363A
Migration Regulations 1994, r 5.19
CASES
Harsan v Minister for Immigration and Citizenship [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 Jayshree Enterprises Pty Ltd [2017] FCA 264
Minister for Immigration and Border Protection v Singh [2014] FCAFC 1
Minister for Immigration and Citizenship v Li [2013] HCA 18
Sing v Minister for Immigration and Border Protection [2014] FCCA 1403
Yang v Minister for Immigration and Citizenship [2010] FMCA 890
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration on 10 October 2017 to reject an application for approval of the nomination of a position in Australia under r.5.19 of the Migration Regulations 1994 (the Regulations).
The applicant applied for approval of the position of ‘Management Consultant’ (ANZSCO[1] Code 224711) on 21 December 2016.
[1] ANZSCO – Australian and New Zealand Standard Classification of Occupations, Version 1.2
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 (r.5.19(3)) stream and a direct entry nomination (r.5.19(4)) stream. 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).
In this case, the applicant has applied for approval of a nomination, seeking to satisfy the criteria in the direct entry nomination stream.
The delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19(4)(a)(ii) of the Regulations because it failed to identify a need for a paid employee to work in the position under the nominator’s direct control. In particular, the delegate noted that the applicant did not provide verifiable evidence in support of the nomination, such as financial budgets covering expenditure and anticipated revenue, or business plans demonstrating the need for a Management Consultant.
The Tribunal received a review application on 31 October 2017, accompanied by a copy of the delegate’s decision. No further submissions were received.
The Tribunal has before it the Departmental file relating to the application.
The applicant was represented in relation to the review by its registered migration agent.
The Tribunal invitation to provide information
On 13 February 2018, the Tribunal wrote to the applicant via its agent, pursuant to subsection 359(2) of the Migration Act 1958 (the Act), inviting it to provide current information addressing the relevant criteria for a nomination under r.5.19 of the Regulations. A copy of r.5.19 was enclosed for reference. The invitation provided the applicant with an opportunity to provide the information by 27 February 2018.
The applicant did not provide the requested information within the prescribed period. In addition, the applicant did not request an extension of time and there has been no further communication from either the applicant or its representative at the time of the Tribunal’s decision.
The courts have confirmed that where an applicant fails to provide the requested information within the prescribed period, s.363A of the Act precludes the Tribunal from offering the applicant a hearing.[2] Accordingly, as the applicant failed to give the information requested within the prescribed period, it has lost the right to appear before the Tribunal to give evidence and present arguments relating to the review application.
[2] See Sing v Minister for Immigration and Border Protection [2014] FCCA 1403, 32-39; Yang v Minister for Immigration and Citizenship [2010] FMCA 890, 40; Harsan v Minister for Immigration and Citizenship [2010] FCAFC 40.
In these circumstances, subsection 359C(1) of the Act applies and the Tribunal has decided to proceed to decision on the review without taking any further action to obtain the information.
The Tribunal has given consideration to whether it should adjourn the review under subsection 363(1)(b) of the Act to allow the applicant additional time in which to provide further evidence to support his review application.
In doing so, the Tribunal has taken into account the decisions in Huo v Minister for Immigration and Multicultural Affairs[3] and Manna v Minister for Immigration and Citizenship[4] where the Courts have held that the Tribunal is not required to indefinitely defer its decision-making processes. It has also had regard to the decision in Minister for Immigration and Citizenship v Li[5] regarding the reasonableness of any request for an adjournment, and the Full Federal Court decision in Minister for Immigration and Border Protection v Singh[6] which considered this issue, as well as the more recent decision in Kaur v Minister for Immigration and Border Protection[7] where analogous issues were discussed.
[3] [2002] FCA 617
[4] [2012] FMCA 28
[5] [2013] HCA 18
[6] [2014] FCAFC 1
[7] [2014] FCA 915
The Tribunal considered whether, in the circumstances of this case, the information that the applicant meets the requirements in r.5.19 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.
The Tribunal has had regard to the fact that the visa application was refused by the Department on 10 October 2017 because the delegate concluded that there was no need to employ a paid employee to work in the position of Management Consultant under the nominator’s direct control. The applicant submitted a copy of the primary decision record with the review application. As a result, the Tribunal observes that the applicant has been aware for more than 5 months of the reasons for the visa application refusal.
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 and sufficient time to take steps to satisfy the regulatory criteria. The Tribunal notes that it is uncertain if and when the applicant will provide information in writing as to whether the nominating business meets the requirements of r.5.19. The Tribunal is not disposed to delaying making a decision indefinitely.
Accordingly, the Tribunal has decided not to exercise its discretion under subsection 363(1)(b) of the Act to adjourn the review to allow the applicant more time in which to demonstrate that the nominating business meets the requirements of r.5.19.
For the following reasons, the Tribunal has decided to affirm the decision under review to refuse the nomination.
CONSIDERATION OF CLAIMS AND EVIDENCE
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.
In undertaking this assessment, the Tribunal is aware that there is no formal onus of proof associated with administrative inquiries and decision-making. However, the Courts have held that it is for an applicant seeking a particular outcome to put forward material in as much detail as is necessary to enable a decision-maker to establish the relevant facts. It is not for the Tribunal to fill any gap or make out the applicant’s case.[8]
[8] Minister for Immigration and Border Protection v Jayshree Enterprises Pty Ltd [2017] FCA 264, 20-30.
The 'need for a paid employee': subparagraph 5.19(4)(a)(ii)
Subparagraph 5.19(4)(a)(ii) requires that the application must identify a need for the nominator to employ a paid employee to work in the position under its direct control.
For the purposes of subparagraph 5.19(4)(a)(ii), the Tribunal finds that the nomination application form identifies a nominee in relation to the nominated occupation of ‘Management Consultant'. The application also set out the annual base salary payable to the nominee as $180,500.
In relation to the 'direct control' element of subparagraph 5.19(4)(a)(ii), the Tribunal notes that the applicant submitted an organisational chart to the Department. The chart details the structure of the business, including the nominated position. The chart shows that the business has three employees that sit below the nominated position, which reports to the Director.
Nevertheless, subparagraph 5.19(4)(a)(ii) also requires the Tribunal to be satisfied that the application for approval identifies a need for the applicant to employ a paid employee to work in the position of a ‘Management Consultant’ under its direct control.
According to the primary decision record provided to the Tribunal, the delegate was not satisfied that subparagraph 5.19(4)(a)(ii) had been made out as the business did not supply sufficient information explaining the need for a paid employee to work in the position of Management Consultant. It was noted that no verifiable financial information for the business was supplied, the position had not been advertised, and no evidence was submitted to demonstrate that the position was required to diversify or expand the business.
The Tribunal observes that the wording of subparagraph 5.19(4)(a)(ii) does not make reference to a 'genuine need' for the applicant to employ a paid employee to work in the nominated position under its direct control.
Given the wording of subparagraph 5.19(4)(a)(ii), the Tribunal is satisfied that this provision is not directed at a qualitative assessment of the nominator's need for a paid employee to work in the nominated position. This view is supported by the context in which subparagraph 5.19(4)(a)(ii) appears, as paragraph 5.19(4)(a) refers to “the application for approval” and subparagraph 5.19(4)(a)(i) directs the decision maker's attention to whether that application complies with the administrative requirements set out in subregulation 5.19(2).
As a result, the Tribunal considers that subparagraph 5.19(4)(a)(ii) will be satisfied if the employer nomination application sets out why the applicant believes it has a need for a paid employee in its business.
By contrast, paragraph 5.19(4)(d)(i) requires the Tribunal to be satisfied that the employee will be employed on a full-time basis in the position for at least two years. Given this, the Tribunal considers that it is more appropriate to undertake the qualitative assessment of the nominated position with the applicant under subparagraph 5.19(4)(d)(i).
The Tribunal is satisfied in this case that the application for approval identifies a need for the nominated position of a Management Consultant in its nomination form. It also finds that this is sufficient to meet the requirements of subparagraph 5.19(4)(a)(ii).
Nominator is actively and lawfully operating a business in Australia: r.5.19(4)(b)
Paragraph 5.19(4)(b) requires that applicant is actively and lawfully operating a business in Australia. The applicant must also directly operate the business.
The applicant set out the details of its Australian Business Number (ABN) in its application form to confirm the registration of its business in Australia. The applicant also provided to the Department evidence of its Australian Securities and Investments Commission (ASIC) company registration.
For the purposes of its application, the applicant submitted its 2016 financial statement and profit and loss statements for December 2015 and December 2016. I note that these statements do not carry a signature of either the company director or its accountant. No audited financials or official records kept by the Australian Taxation Office were supplied in support of the application.
The applicant also provided the Department with its Commonwealth Bank account statements covering April to September 2016, and letters from its accountant in support of its growth over time and general operations, dated 9 December 2016.
In addition, the applicant provided a trust deed establishing the relationship between the Shabana Family Trust and Budget Build Pty Ltd (formerly known as Cleaning For Life Services Pty Ltd), executed in 2009.
The Tribunal accepts that this evidence may provide an indication of the applicant's business operations in the period leading up to December 2016. However, approximately 15 months have passed since that time and the applicant has not provided any further evidence that it continues to actively, lawfully and directly operate a business in Australia.
This is in circumstances where the Tribunal formally invited the applicant on 13 February 2018 to provide updated and current information that confirmed that the applicant did so at the time of decision in 2018.
As noted above, the applicant did not provide any of the information the Tribunal requested in its subsection 359(2) invitation, dated 13 February 2018. Likewise, the applicant and/or its representative have not contacted the Tribunal regarding the application until the time of decision.
Consequently, there is very little evidence before the Tribunal regarding the applicant's operations in Australia since December 2016, through 2017 and into 2018. Importantly, the Tribunal can only make a decision based on the evidence before it.
As a result, the Tribunal is not satisfied that that the applicant is actively, lawfully and directly operating a business in Australia at the time of decision in 2018. Accordingly, the Tribunal finds that the requirement in paragraph 5.19(4)(b) is not met.
Term of employment of the visa holder: r.5.19(4)(d)
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.
The applicant provided to the Department a copy of its contract of employment with the nominee, dated 15 December 2016. The contract of employment does not specify the duration of the engagement with the business. It therefore provides limited insight into the proposed length of the employment.
In addition, the applicant has not provided any information that would suggest that it continues to directly, actively and lawfully operate a business in Australia that would provide the nominee with fulltime employment for the duration specified by the Regulations at the time of the decision in 2018.
Further, the Tribunal notes that while the applicant supplied some evidence of its financial position to the Department, those documents have limited probative value for establishing if the business has the financial capacity to employ the nominee on a salary of $180,500 for a period of at least two years. The supplied documents are not current and do not usefully substantiate this claim. This is despite the subsection 359(2) invitation sent to the applicant to provide updated information, including business activity statements.
The business has not supplied sufficient evidence to demonstrate that it has offered the nominee a position for a minimum of two years or that it has the financial resources to provide such employment.
In the circumstances, the Tribunal is not satisfied that the nominated employee would be employed on a full-time basis for at least 2 years if the nomination were approved, Accordingly, the requirement in r.5.19(4)(d) is not met.
CONCLUSION
Based on its findings in respect of regulations 5.19(4)(b) and (d), the Tribunal is not satisfied that the applicant meets the requirements of r.5.19(4). Given these findings, it is not necessary for the Tribunal to consider if the applicant met the other requirements set out on regulations 5.19(4)(a),(c),(e),(f),(g) and (h).
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 Tribunal cannot approve the nomination of the position. Therefore, the Tribunal must affirm the decision under review.
DECISION
The Tribunal affirms the decision under review to refuse the nomination.
Sheridan Lee
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).

[2018] AATA 815

14 March 2018

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice