Craneford Nominees Pty Ltd ATF Cranford Nominees Unit Trust (Migration)

[2021] AATA 405

Craneford Nominees Pty Ltd ATF Cranford Nominees Unit Trust (Migration) [2021] AATA 405 (18 February 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Craneford Nominees Pty Ltd ATF Cranford Nominees Unit Trust

CASE NUMBER:  1818423

HOME AFFAIRS REFERENCE(S):          BCC2017/1086586

MEMBER:Andrew George

DATE:18 February 2021

PLACE OF DECISION:  Darwin

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

Statement made on 18 February 2021 at 8:16pm

CATCHWORDS
MIGRATION – Employer Nomination – sponsorship approval – Direct Entry nomination – Marketing Specialist – identification of need – no response to s.359(2) invitation – term of employment of the visa holder – financial capacity – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 359C, 360, 363A
Migration Regulations 1994 (Cth), r 5.19

CASES

Hasran v MIAC [2010] FCAFC 40

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 18 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).

2. The applicant applied for approval on 20 March 2017. 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. The nominated person in Ms Jia Liu. The proposed occupation is Marketing Specialist – 225113.

4. The delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19(4)(a)(ii) of the Regulations. Materially, the delegate found:[1]

   I have considered all the information currently before me including the nature of the business, the current staffing, size and scale of the business, as well as the RCB [Regional Certifying Body] advice. Based on the evidence presented and assessment above, I find the application for approval has not identified a need for the nominator to employ a paid employee to work in the position under the nominator’s control. Therefore, the nomination does not meet Regulations 5.19(4)(a)(ii).

   [1] Decision Record (CN: 1818423)/7.

5. The applicant was represented in relation to the review by its registered migration agent, Mr Chen of No Worries Visa and Education Services.

6. On 2 December 2020, the Tribunal wrote to the review applicant pursuant to s.359(2) of the Act, inviting the review applicant to provide updated and current information in writing addressing the relevant criteria in rr.5.19(2) and (4) of the Regulations.

7. The invitation was sent to the last address provided in connection with the review and advised that, if the information was not provided in writing by 16 December 2020, the Tribunal may make a decision on the review without taking further steps to obtain the information. The review applicant would also lose any entitlement it might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

8. The review applicant did not provide the information within the prescribed period and no extension was sought or granted. In these circumstances, s.359C applies and pursuant to s.360(3) the review applicant 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 it to appear: Hasran v MIAC [2010] FCAFC 40. The Tribunal does note, however, that the applicant submitted various documents between 28 December 2020 and 13 January 2021. The Tribunal has taken these documents into consideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. 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.

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

10. 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.

11. The Tribunal has before it a copy of the application, which was generated on 20 March 2017 at 18:12:37 EST. The Tribunal observes that the nominated position is a ‘Business Development Officer’, which the applicant claims is a ‘Marketing Specialist’ for the purposes of ANSZCO.[2] This is consistent with the nominated person’s letter of appointment, signed by her on 22 February 2017. This letter of appointment contains the following clause:[3]

    The Employee is to be employed in the position of Business Development Officer with duties as attached. The Employer may direct the Employee to perform such other duties and undertake such other responsibilities as it considers fit from time to time. The agreement will commence upon approval of subclass 187 visa and the position will be available for at least 2 years and may be renewable after this period. [emphasis added]

    [2] ibid/4.

    [3] Letter of Appointment/2.

12. Remuneration is stated as $54,000 per annum plus superannuation.[4]

    [4] ibid.

13. Given that the nominated person’s application for a Regional Sponsored Migration Scheme (subclass 187) visa was refused on 18 June 2018,[5] her employment as a Business Development Officer under the letter of appointment has not yet commenced. This is consistent with correspondence of 22 February 2017 from a director of the applicant, which states: “We have offered the full time position to the Nominee at the base salary of $54,000 per annum plus superannuation”.[6] Materially, this letter omits a commencement date. It is also consistent with an organisation chart submitted contemporaneously with the application, which states that the position of Business Development Officer is “Currently vacant, to be occupied by Nominee on full time basis upon grant of subclass 187 visa”.[7]

    [5] Decision Record (CN: 1822200)/2.

    [6] Letter from Mr Davies dated 22 February 2017.

    [7] Craneford Nominees Pty Ltd ATF Craneford Nominees Unit Trust Organisation Chart, undated, submitted on 21 March 2017.

14. An indication of the nominated person’s commencement date is given in her tax documents as being 22 May 2017.[8] However, the Tribunal notes that the nominated person’s tax documents are silent on the nature of her employment.

    [8] PAYG payment summary for Ms Liu for the year ending 30 June 2017.

15. The Tribunal has before it numerous of the nominated persons payslips.[9] None of these documents describe the nature of the nominated person’s employment.

    [9] Cheque numbers 2620, 2651, 2609, 2639, 2599, 2630, 2595, 3083, 3097, 3103, 3111,  3140, 3147, 3156, 3159, 3164, 3168, 3174, 3180, 3194, 3199, 3203, 3207, 3211, 3215, 3219, 3222, 3227, 3231, 3234.

16. The best evidence before the Tribunal are recent organisation charts that indicate that the nominated person is a Business Development Officer.[10] However, these recent charts are scant of information beyond mere job titles. They are not a substitute for an employment contract. What the recent organisation charts do reveal, however, is that the applicant has reduced its workforce.

    [10] Craneford Nominees Pty Ltd ATF Craneford Nominees Unit Trust Organisation Chart, submitted on 13 January 2021; Craneford Nominees Pty Ltd ATF Craneford Nominees Unit Trust Organisation Chart, submitted on 11 June 2019.

17. In the absence of a current employment contract for the nominated person, the Tribunal is unable to satisfactorily ascertain the tasks, duration, terms, and conditions of the nominated person’s current employment with the applicant.

18. The Tribunal turns to the financial position of the applicant. No tax was payable by the trustee in Financial Year 2018/2019.[11] The applicant made losses of $10,830 in 2018/2019, $26,505 in 2017/2018, and $1,371 in 2016/2017.[12] There is no clear evidence before the Tribunal that the applicant’s financial position improved in the Financial Year 2019/2020, or will improve in the foreseeable future.

    [11] Tax Return for a Trust 2019, declared by Mr Ian Jeffery.

    [12] ibid/5.

19. The applicant’s sustained losses are of further concern to the Tribunal when combined with the reductions in workforce indicated in the organisation charts. Indeed, the Tribunal is not satisfied that the applicant can sustain its present workforce whilst making losses.

20. On the evidence before it, and given the findings made, the Tribunal is not satisfied that the employee will be employed on a full-time basis in the position of a Marketing Specialist – 225113 for at least two years. Accordingly, the requirements of r.5.19(4)(d)(i) are not met. Given these findings, it is unnecessary for the Tribunal to consider r.5.19(4)(a)(ii).

21. 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 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

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

    Andrew George
    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).