CONNECT COAST PTY LTD (Migration)

[2019] AATA 3792

CONNECT COAST PTY LTD (Migration) [2019] AATA 3792 (2 August 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Connect Coast Pty Ltd

CASE NUMBER:  1711985

DIBP REFERENCE(S):  BCC2016/3944205

MEMBER:Katie Malyon

DATE:2 August 2019

PLACE OF DECISION:  Sydney

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

Statement made on 02 August 2019 at 12:50 pm

CATCHWORDS
MIGRATION – nomination refusal– Direct Entry nomination stream – standard business sponsor– company has failed to provide requested information – 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 359, 360, 363
Migration Regulations 1994, r 5.19

CASES
Hasran v MIAC [2010] FCAFC 40
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 Citizenship v Li [2013] HCA 18
Minister for Immigration and Border Protection v Singh [2014] FCAFC 1

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 on 18 May 2017 to refuse the application made by Connect Coast Pty Ltd (the Company) for approval of the nomination of a position in Australia under r.5.19 of the Migration Regulations 1994 (the Regulations).

2. The Company applied for approval on 23 November 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 (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) of the Regulations and meets all 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) of the Regulations.

3. In this case, the Company 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 Company’s nomination did not satisfy r.5.19(4)(d)(i) of the Regulations because, having regard to evidence provided, the delegate was not satisfied that the business had the financial capacity to pay the full-time salary for the nominated position for at least 2 years. A copy of the delegate’s decision was provided to the Tribunal.

5. No documentation was lodged with the Tribunal in support of the review application, other than a copy of the delegate’s decision. On 16 July 2019, the Tribunal wrote to the Company pursuant to s.359(2) of the Migration Act 1958 (the Act) and invited it to provide documentation to enable the Tribunal to assess whether the Company meets all the requirements for approval of its nomination.  Relevantly, the Tribunal requested:

   ·financial statements prepared by an Accountant signed by the Accountant and a Director for the financial years ending 30 June 2016, 30 June 2017 and 30 June 2018;

   ·Business Activity Statements (BAS) as lodged with the Australian Taxation Office (ATO) using either the Tax Agent Portal or the Business Portal for financial years ending 30 June 2016, 30 June 2017 and 30 June 2018 as well as the first 3 quarters of the year ended 30 June 2019 and which have been issued with a receipt number by the ATO;

   ·the Company’s tax returns as lodged with the ATO for years ending 30 June 2016, 30 June 2017 and 30 June 2018;

   ·Income Tax Lodgement Status Report from the ATO confirming lodgement history of the Company’s tax returns to date; and,

   ·PAYG Payment Summaries provided to each person employed by the Company for years ended 30 June 2016, 30 June 2017, 30 June 2018 and 30 June 2019.

6. The Tribunal’s invitation letter indicated that if the information was not provided by 30 July 2019, or a request for extension of time stating the reasons why an extension of time is required, is not received by 30 July 2019 the Tribunal may make a decision on the review without taking any further steps to obtain the information and, further, the Company would lose any entitlement it might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

7. On 30 July 2019, the Tribunal received a request to provide the Company with more time.  The Company stated it needed more time so that it could follow up with all the things requested. 

8. The Tribunal considered the Company’s request for an extension of time. Having regard to the fact that all of the information outlined in para [5] above should have already been prepared by the Company (the Company’s annual financial reports), or already lodged with the ATO (BAS and Company’s tax returns) or already provided to employees (PAYG Payment Summaries), the Tribunal afforded the Company a further 2 days to lodge requested documentation with the Tribunal. In its letter confirming that an extension of time had been provided, the Tribunal noted that if documentation is not received by 1 August 2019, it may make a decision on the review without taking any further action to obtain the information. The Tribunal’s letter noted that, in these circumstances, the Company will lose any entitlement it might otherwise have under the Act to appear before it to give evidence and present arguments.

9. The Company did not seek a second extension of time or explain why the Tribunal’s extension of time for an additional 2 days (only) was insufficient. The Company has not provided any information within the extended timeframe permitted. In the circumstances, s.359C of the Act applies and, pursuant to s.360(3) of the Act, the Company 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 the applicant to appear: Hasran v MIAC [2010] FCAFC 40.

10. The Tribunal has considered whether this is an appropriate case for it to adjourn the review under s.363(1)(b) of the Act to allow the Company additional time in which to provide evidence to support the review application. In doing so, the Tribunal has taken into account the decisions in Huo v Minister for Immigration and Multicultural Affairs[1] and Manna v Minister for Immigration and Citizenship[2] where the Courts have held that the Tribunal is not required to indefinitely defer its decision-making processes.  It has also considered the decision in Minister for Immigration and Citizenship v Li[3] regarding the reasonableness of any request for an adjournment, and the Full Federal Court decision in Minister for Immigration and Border Protection v Singh[4] which considered this issue, as well as the more recent decision in Kaur v Minister for Immigration and Border Protection[5] where analogous issues were discussed.

    [1] [2002] FCA 617

    [2] [2012] FMCA 28

    [3] [2013] HCA 18

    [4] [2014] FCAFC 1

    [5] [2014] FCA 915

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

12. As noted above, on 18 May 2017, the delegate refused the nomination made by the Company on the basis the business had not demonstrated it had the financial capacity to be able to pay the full-time salary of $60,000.00 for the nominated position for at least 2 years.  Although the Company had lodged with the Department its financial statement for the year ended 30 June 2016 which reported income of $117,225.56 (down from $147,617.80 in the year to 30 June 2015) it reported a net profit (before income tax) of only $180.88.  The financial report had not been signed by a Director or the Accountant.  Further, although the Company provided the Department with a tax return, the document was a DRAFT only. 

13. The Tribunal wrote to the Company pursuant to s.359(2) of the Act inviting it to provide information to demonstrate that the nomination meets all the requirements of the criteria in r.5.19(4) of the Regulations. Although an extension of time was requested and granted - albeit a short period of time - the Company has failed to provide requested information within the time period permitted which would have assisted the Tribunal in its review of the delegate’s reasons for refusing the Company’s nomination.

14. In the circumstances, the Company has had more than 2 years since the time of the delegate’s decision to address the issues that it knew would arise on review. The Tribunal is of the opinion that the Company has had sufficient time in which to address these issues. In the circumstances of this case, the Tribunal has decided not to exercise its discretion under s.363(1)(b) of the Act to adjourn the review any further. The Tribunal has determined to make a decision on the review without taking any further action to obtain the information in accordance with s.359C of the Act.

15. In passing, the Tribunal notes that the business is not prevented from lodging a new nomination application with the Department, fully documented and decision-ready, if it so desires. 

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

17. 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) of the Regulations, which is extracted in the Attachment to this decision.  For the nomination to be approved, all the requirements must be met.  If any of the requirements are not met then the application must be refused: r.5.19(5) of the Regulations.

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

18. 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 must not expressly exclude the possibility of an extension.  This provision requires the Tribunal, amongst other things, to assess the financial capacity of the nominee to provide the nominee with at least 2 years full-time employment.

19. As noted above, no information was provided with the review application when it was lodged with the Tribunal to address the issue identified by the delegate that, based on evidence provided to the Department, the business had not shown it had the financial capacity to pay the full-time salary of $60,000 for the nominated position of Systems Administrator at its Toowoomba office for at least 2 years. The Tribunal wrote to the Company pursuant to s.359(2) of the Act on 16 July 2019 inviting it to provide information in writing to demonstrate that the Company meets the requirements of the criteria in r.5.19(4) of the Regulations, including r.5.19(4)(d) of the Regulations.

20. The Company requested additional time to provide the information and, having regard to the fact that all of the documentation requested to demonstrate the financial capacity of the Company to pay the nominee for at least 2 years should already have either been lodged with the ATO or provided to the Company employees, a further 2 day period to provide documentation was approved.  However, the Company has failed to provide requested information.  In the circumstances, the Tribunal has no current information before it concerning the financial capacity of the Company to pay the nominee’s full-time salary for at least 2 years. 

21. Based on evidence before it, the Tribunal is not satisfied that the Company has demonstrated its financial capacity to pay the nominated full-time salary for the nominated position of Systems Administrator for nominee Akber Hussain Khan for at least 2 years. In the circumstances, the Company does not meet the requirements of r.5.19(4)(d)(i) of the Regulations.

22. Accordingly, the requirement in r.5.19(4)(d) of the Regulations is not met.

23. For the above reasons the Tribunal is not satisfied that the Company meets the requirements of r.5.19(4) of the Regulations. The Company 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) of the Regulations. Accordingly, the Company’s nomination of the position cannot be approved. Therefore, the Tribunal must affirm the decision under review.

    DECISION

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

    Katie Malyon

    
    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).

    oOOo