Country Cauldron Pty Ltd (Migration) - [2021] AATA 3761

Country Cauldron Pty Ltd (Migration) [2021] AATA 3761 (15 September 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Country Cauldron Pty Ltd
CASE NUMBER:  1837292
HOME AFFAIRS REFERENCE(S):          BCC2017/3810998
MEMBER:Terrence Baxter
DATE:15 September 2021
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision under review to refuse the nomination.

Statement made on 15 September 2021 at 1:39pm
CATCHWORDS
MIGRATION – nomination –Direct Entry nomination stream – applicant has failed to provide any contemporary evidence regarding its current trading status – position associated with the occupation is not genuine –financial capacity to pay the nominated full-time salary for the nominated position– decision under review affirmed
LEGISLATION
Migration Act 1958, ss 65, 140GB, 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

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 29 November 2018 to reject the applicant’s application for approval of the nomination of a position in Australia under reg 5.19 of the Migration Regulations 1994 (Cth) (the Regulations).
The applicant, Country Cauldron Pty Ltd, applied for approval on 17 October 2017. The applicant nominated Mr Kulwinder Singh (the nominee) in the position of Retail Manager. The requirements for the approval of the nomination of a position in Australia are found in reg 5.19 of the Regulations which contains two alternative streams: a Temporary Residence Transition nomination stream (reg 5.19(3)) and a Direct Entry nomination stream (reg 5.19(4)). If the application is made in accordance with reg 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: reg 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 that the applicant’s nomination did not satisfy reg 5.19(4)(h)(ii)(D) of the Regulations because the delegate found that the tasks to be performed by the nominee in the position do not correspond with the tasks of an occupation specified by the Minister in an instrument in writing.
The applicant lodged an application for review of the delegate’s decision with the Tribunal on 19 December 2018.
On 5 August 2021, the Tribunal wrote to the applicant pursuant to s 359(2) of the Migration Act 1958 (Cth) (the Act) inviting it to provide current information addressing the relevant criteria under reg 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 invitation notified the applicant that the requested information should be received by the Tribunal by 19 August 2021. The invitation also notified the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2021] AATA 3761
Decision Date: 15 September 2021

CaseChat Overview and Summary

Country Cauldron Pty Ltd (the applicant) sought review of a decision to refuse its nomination under the Direct Entry stream of the Subclass 187 visa. The dispute concerned whether the applicant met the requirements for approval of the nomination, specifically regarding the genuineness of the nominated position and the applicant's financial capacity to employ the nominee. The matter was heard by Terrence Baxter.

The legal issues before the court were whether the nominated position was genuine and whether the applicant possessed the financial capacity to pay the nominated full-time salary for the duration of the employment period. Regulation 5.19(4) of the Migration Regulations 1994 was central to the determination, requiring the nominee to be employed in the nominated position for at least two years full-time, with terms and conditions that do not exclude the possibility of an extension. The court also considered the principle established in *MIBP v Jayshree Enterprises Pty Ltd* [2017] FCA 264, which allows for consideration of the applicant's financial resources to meet wage costs.

The court found that the applicant failed to provide contemporary evidence of its current trading status, and the nominated position was not genuine. While the employment agreement stipulated a two-year term, renewable, the financial statements for the 2017 and 2018 financial years revealed significant trading losses totalling $227,824.44 over the two-year period, despite substantial sales increases. The applicant also had a surplus of liabilities over assets in both financial years. Consequently, the court had serious concerns about the applicant's capacity to employ the nominee at the nominated salary of $56,500 per annum plus superannuation for the required period.

The decision under review to refuse the nomination was affirmed.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The applicant produced to the Department of Immigration and Border Protection (now the Department of Home Affairs) (the Department) the following documents: a.Undated employment contracts of the nominee. b.An ASIC company extract of the applicant. c.Activity statements for the period from January to June 2017. d.A profit and loss statement of June 2017. e.Activity statement payment slips issued by the Australian Taxation Office (ATO).f.An undated 12-month projection of profits of Shell Service Station – Aratula. g.Correspondence dated 28 December 2017 and a Form 1404 issued by the Regional Certifying Body (RCB), Chamber of Commerce and Industry Queensland, Toowoomba dated 8 February 2018.h.An extract from the General Retail Industry Award 2010. i.An extract from the Fair Work Ombudsman Retail Employee Level 8 pay rate summary. j.A position description. k.Job advertisements for the position. l.Market salary evidence. m.A submission addressed to the RCB regarding recruitment efforts, dated 19 October 2017.n.Evidence of an audit undertaken by the owner of the business on 12 April 2016. o.An organisational chart. p.Profit and loss statements for the 2017 and 2018 financial years. q.A balance sheet for the 2018 financial year with 2017 comparative figures. Evidence presented to the Tribunal The applicant produced to the Tribunal a copy of the delegate’s decision record. Term of employment of the visa holder: reg 5.19(4)(d) 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. According to the Employment Agreement submitted by the applicant to the Department, the applicant is to employ the nominee in the full-time position of Retail Manager for two years (renewable) from the grant of the nominee’s Subclass 187 visa. However, it is also 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). The salary payable to the nominee is to be $56,500 per annum plus superannuation. Based on the current superannuation guarantee contribution of 10% of ordinary earnings, this represents a total salary package of $62,150 per annum. The applicant provided to the Department profit and loss statements and balance sheets for the 2017 and 2018 financial years. The profit and loss statements provide the following information regarding the applicant’s trading history: The applicant’s assets, according to the balance sheets, were as follows: The applicant’s liabilities, according to the balance sheets, were as follows: The applicant had a surplus of liabilities over assets of $131,638 at the conclusion of the 2017 financial year and $227,524 at the conclusion of the 2018 financial year. The financial statements reveal that, although the applicant recorded significant sales in the periods referred to in those statements and that in fact the applicant’s sales increased substantially in the 2018 financial year, the applicant recorded trading losses totalling $227,824.44 over the two-year period. Based on the financial documents provided by the applicant, the Tribunal has serious concerns regarding the applicant’s capacity to employ the nominee in the nominated position for at least two years at the time covered by the financial statements.

Decision

Reasons for decision

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 reg 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 The applicant produced to the Department of Immigration and Border Protection (now the Department of Home Affairs) (the Department) the following documents: a.Undated employment contracts of the nominee. b.An ASIC company extract of the applicant. c.Activity statements for the period from January to June 2017. d.A profit and loss statement of June 2017. e.Activity statement payment slips issued by the Australian Taxation Office (ATO).f.An undated 12-month projection of profits of Shell Service Station – Aratula. g.Correspondence dated 28 December 2017 and a Form 1404 issued by the Regional Certifying Body (RCB), Chamber of Commerce and Industry Queensland, Toowoomba dated 8 February 2018.h.An extract from the General Retail Industry Award 2010. i.An extract from the Fair Work Ombudsman Retail Employee Level 8 pay rate summary. j.A position description. k.Job advertisements for the position. l.Market salary evidence. m.A submission addressed to the RCB regarding recruitment efforts, dated 19 October 2017.n.Evidence of an audit undertaken by the owner of the business on 12 April 2016. o.An organisational chart. p.Profit and loss statements for the 2017 and 2018 financial years. q.A balance sheet for the 2018 financial year with 2017 comparative figures. Evidence presented to the Tribunal The applicant produced to the Tribunal a copy of the delegate’s decision record. Term of employment of the visa holder: reg 5.19(4)(d) 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. According to the Employment Agreement submitted by the applicant to the Department, the applicant is to employ the nominee in the full-time position of Retail Manager for two years (renewable) from the grant of the nominee’s Subclass 187 visa. However, it is also 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). The salary payable to the nominee is to be $56,500 per annum plus superannuation. Based on the current superannuation guarantee contribution of 10% of ordinary earnings, this represents a total salary package of $62,150 per annum. The applicant provided to the Department profit and loss statements and balance sheets for the 2017 and 2018 financial years. The profit and loss statements provide the following information regarding the applicant’s trading history:

Ratio Decidendi

Legal Principle Established

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