Dhir Pty Ltd Atf Dhir Family Trust (Migration)

[2023] AATA 1675

Dhir Pty Ltd Atf Dhir Family Trust (Migration) [2023] AATA 1675 (6 June 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Dhir Pty Ltd Atf Dhir Family Trust

REPRESENTATIVE:  Mr Jasminkumar Dipaklal Shah (MARN: 1808222)

CASE NUMBER:  2012293

HOME AFFAIRS REFERENCE(S):          BCC2018/935681

MEMBER:De-Anne Kelly

DATE:6 June 2023

PLACE OF DECISION:  Brisbane

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

Statement made on 06 June 2023 at 11.50am

CATCHWORDS
MIGRATION – application for approval of nomination of position – direct entry stream – taxation accountant – need to employ nominee in position – no appearance at hearing – financial capacity to employ nominee for two years – small profit and loss in last two financial years – little evidence of nominee currently working in position – location of position – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 362B(1), (1A), 368, 375
Migration Regulations 1994 (Cth), r 5.19(4)(a)(ii), (d), (h)(ii)

CASES
Bharaj Construction Pty Ltd v MIBP [2016] FCCA 902
Pexbury Pty Ltd v Minister for Immigration [2020] FCCA 3074

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 13 July 2020 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).

2. The applicant applied for approval on 27 February 2018. 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).

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 the applicant’s nomination did not satisfy reg 5.19(4)(a)(ii) of the Regulations because the application for approval had not identified a need for the nominator to employ a paid employee to work in the position under the nominator’s control. This was based on the lack of an organisational chart to show the day-to-day activity of the business and its staffing as well as evidence that the nominee may have been residing in another state and working for another employer during the time the applicant claimed he was employed and needed. There was insufficient evidence the nominee had been working for the applicant from late March 2018 as the only evidence was a PAYG payment summary for FY 2019 showing his earnings as $25,568 which is less than 50% of the nominated salary.

5. The applicant was invited to appear before the Tribunal on 5 June 2023 at 1.00PM (QLD time) for a hearing set down for two hours to give evidence and present arguments. Another review application case number 2012171 for the same applicant who was appealing the refusal of a 187 nomination for an Office Manager to be employed in Darwin was to be heard on the same day at 10.00AM (QLD time) however the applicant withdrew this second application.

6. The applicant did not appear at the appointed time to attend the hearing and no postponements or extensions of time were requested. The Registry attempted to contact the applicant numerous times during the two hours set aside for the hearing without success. The Registry did contact the agent who advised that he would not be attending the hearing despite requesting that the hearing be postponed to accommodate his overseas travel. No further Request for a postponement or adjournment of the hearing was made in writing by the applicant or their agent. The hearing was cancelled at 3.00PM on 5 June 2023.

7. The Tribunal is satisfied the applicant was correctly notified by the email address given for the new agent appointed and SMS messages were sent one and five days prior to the hearing, to the applicant’s mobile number as provided in the review application. As such sections 362B (1) and (1A) of the Migration Act (Cth) 1958 applies and the Tribunal may by written statement under s368 make a decision on the review without taking any further action to allow or enable the applicant to appear before it. It is reasonable to proceed to a decision on this matter.

8. The applicant was represented in relation to the review.

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

   Procedural Matters

   Section 375 Certificate

10. A certificate was provided with the gist of the information being the report of a site visit 23 October 2019 made by Border Force officers to the premises in Toowoomba and Nerang and a lease showing that the former had a lease which had an option to extend to 16 April 2020. The site visit was prompted by the number of business locations and Regional Sponsored Migration Scheme nominations the applicant had lodged. The nominee was assessed as working at the premises in Toowoomba as a Taxation Accountant at the time of the site visit.

11. On 18 May 2023 the Tribunal wrote to the applicant enclosing a copy of the certificate and inviting them to comment on whether it was valid by 25 May 2023. There was no response to this invitation. In the hearing the Tribunal would have given the applicant the gist of the information covered by the certificate but since this related to a site visit undertaken some four years previously the Tribunal places no weight on the certificate in making a decision on this matter and will instead rely upon the material to hand.

12. Postponement

13. The hearing was originally scheduled for 26 May 2023 however the agent advised that they were overseas and in an area of low internet connectivity and asked for the hearing to be postponed and set down after 3 June 2023 which was granted to 5 June 2023.

    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 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.

15. On 27 February 2018 the applicant trading as an accounting and financial services business lodged a Regional Sponsored Migration Scheme employer nomination visa subclass 187 in the Direct Entry Stream for the position of Taxation Accountant to be employed in Toowoomba QLD 4350 on $60,000 in favour of Mr Tarun Kumar.

16. Mr Abhay Dhir is the director of the company.

17. The Tribunal has considered the documents in Schedule 1 attached.

    Term of employment of the visa holder: reg 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 do not expressly exclude the possibility of an extension. 

19. The Tribunal notes the judgment of Judge Egan in Pexbury Pty Ltd v Minister for Immigration & Anor [2020] FCCA3074 at [5] where his Honour stated that the Tribunal was entitled to consider the financial viability of the applicants business in considering r.5.19(3)(d)(i) which is equally applicable to r.5.19(4)(d)(i) since the wording of the legislation is similar with r.5.19(3)(d) stating “the person will be employed on a full-time basis in the position for at least 2 years’ while r.5.19(4)(d)(i) states “the employee will be employed on a full-time basis in the position for at least 2 years”.

    Contrary to the applicant’s submissions, the Tribunal was entitled to consider the financial viability of the applicant’s business when considering whether the company was able to meet the requirement that it employ Ms Kaur on a full-time basis, for a period of at least two years, as provided for in r. 5.19(3)(d)(i) of the Migration Regulations 1994 (Cth) (“the Regulations”). In assessing the evidence the Tribunal has taken into account of the remarks of his Honour In Minister for Immigration and Border Protection v Jayshree Enterprises Pty Ltd [2017] FCA 264 at [22], and [28] – [30], Logan J accepted that a company’s financial viability was a matter to be taken into account when assessing whether or not a business was financially able to support the employment of a person for at least a two (2) year period and that it is not illogical, on the material which the Tribunal had, for the Tribunal not to be satisfied that the position could be supported on business performance for a further two years.

20. Judge Greenwood supported this view in the subsequent case Pexbury Pty Ltd v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs[2022] FCA 660.

21. The BAS statements and financial statements are summarised as below.

Year		2021		2020
Sales		348,241		468,376
Rent		26,182		31,050
Wages		246,621		309,783
Expenses		391,490		475,048
Profit/loss		-    9,163		16,605
BAS		Sales		Wages
Jul - Sep 2021		Q1 2022		19,547		31,838
Oct - Dec 2021		Q2 2022		18,746		44,303
Jan - Mar 2022		Q3 2022		65,120		63,458
Apr - Jun 2022		Q4 2022		77,250		63,548
FY 2022		180,663		203,147

1. It is noted that the business made a modest profit in FY 2020 and a loss of $9,163 in FY 2021 however the business like many around Australia may have been affected by the COVID pandemic. It was also noted that in FY 2020 under liabilities there is a debt listed as “taxation $158,348” which had grown in FY 2021 to $166,533 for which there is no explanation given although it would suggest that this is monies owing to the Australian Taxation Office. It is also noted that the equity in the business in FY 2020 and FY 2021 was low at respectively $30,489 and $21,326.

2. The figures for FY 2022 taken from the BAS statements show revenue at $180,663 almost halved from FY 2021 while wages are some $203,147. The revenue for FY 2022 does not even cover the wages and would certainly have incurred an even greater loss if rent, insurance, utilities and other such expenses are taken into account.

3. There was no explanation for the substantial drop in revenue in FY 2022 or how the business could afford to pay the nominee and others as well as meet their other financial obligations.  As such the Tribunal finds that the nominee will not be employed in the nominated position for at least 2 years full time.

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

   Tasks of the position, genuine need for the position and training requirements reg 5.19(4)(h)

5. Regulation 5.19(4)(h) contains a number of alternative requirements. These are set out in detail in the attachment to the decision but can be briefly summarised as requiring either that:

   ·the tasks to be performed in the position will be performed in Australia and correspond to those of an occupation specified by the Minister in a legislative instrument, the occupation is applicable to the proposed employee in accordance with any specifications made in that instrument, there is a genuine need for the nominee to be employed as a paid employee in the position, and certain specified training requirements are met; or

   ·the position and nominator’s business is located in regional Australia, there is a genuine need for the nominee to be employed as a paid employee in the position under the nominator’s direct control, the position cannot be filled by a locally resident Australian citizen or permanent resident, the tasks of the position correspond to those of an occupation specified in the relevant legislative instrument, the occupation is applicable to the proposed employee in accordance with the specification of the occupation, and that a regional certifying body has advised the Minister about certain matters relating to the position.

   Genuine need to employ the person – reg 5.19(4)(h)(ii)(B)

6. The Oxford Online Dictionary offers the following definitions.

   Genuine - a person or thing considered to be an authentic and excellent

   Need - requirement or necessity. In the context of health care and medical ethics, a distinction is often made between needs and wants

7. The Tribunal considers that a genuine need would be one that is an authentic requirement or necessity rather than just a want.

8. It is noted that the agent’s submission 30 November 2022 states that due to skilled labour shortages there is a need for the position and that there is evidence, such as PAYG payment summary for the nominee in FY 2019 and a Payslip for the nominee in FY 2020 showing an address in Nundah QLD 4102, that the nominee may have worked for the applicant in the past.

9. However, the Employment agreement 30 November 2022 which is only some seven months ago states “Your start date will be AFTER APPOVAL OF The 187 VISA GRANT”. Letterhead shows business addresses as Browns Plains QLD 4118 and Gatton QLD 4343. A probation period of 6 months would apply with the statement “During this time, we will assess your progress and performance in the position”. The Organisation chart shows the nominee’s position as “waiting visa” and “Position open”. All this suggests that the nominee is not required to commence work until after the visa is granted and that his progress and performance will then be assessed which is not consistent with his having worked there in the past and having his performance assessed at that time. The organisation chart re-enforces this view with the nominee shown as “awaiting visa” and “position open” which again suggests that the position of tax accountant is vacant.

10. The Tribunal while giving some consideration to the RCB advice, can place little weight on the regional certifying body approval and advice because it is clear from the construct of r.5.19(4)(h)(ii)(C) that the decision-maker must make a finding on this matter independent of the regional certifying body advice.

11. The Courts have found that to be the case in Bharaj Construction Pty Ltd v MIBP [2016] FCCA 902 at [81] where it considered a similar requirement in the pre-July 2012 version of r.5.19(4), and commented in obiter that the use of the word ‘advice’ undoubtedly puts beyond doubt the construction of r.5.19(4), i.e. the advice is to be considered by the Minister (or Tribunal) in determining whether those requirements are satisfied but it is not determinative.[1] In Bharaj (No 3). the Court confirmed that the judgment in Bharaj 2016 was correct in holding that there was nothing in the language, text or structure of r.5.19(4) to support the view that the advice given by a regional certifying body is conclusive evidence that the requirements in subparagraphs (a) to (c) have been met.

    [1] Bharaj Construction Pty Ltd v MIBP [2016] FCCA 902 at [81].

12. The Tribunal considers that a genuine need would be one that is an authentic requirement or necessity rather than just a want and that with scant evidence of the nominee filling the position at present it may indicate that there is not a necessity or genuine need.

13. It is open to the Tribunal to find that it cannot be satisfied that there is a genuine need for the nominator to employ the person identified under subparagraph (a)(ii), as a paid employee, to work in the position of Tax Accountant under the nominator’s direct control and as such r.5.19(4)(h)(ii)(D) is not met. However, the Tribunal is not making a decision based on this regulation and places no weight on the observations in regard to this regulation.

    Business located at that place – reg 5.19(4)(H)(II)(E)

14. It is not clear that the business is located in Toowoomba in the location designated in the application as being in regional Australia.

15. The Employment agreement 1 February 2018 on letterhead shows business addresses as Logan Road, Holland Park West   and Station Street, Nerang however the location of the employment is listed as being in Russell Street, Toowoomba

16. The Employment agreement 30 November 2022 states “Your start date will be AFTER APPOVAL OF The 187 VISA GRANT”. (Upper case was in the agreement). Letterhead shows business addresses as Browns Plains QLD 4118 and Gatton QLD 4343. A probation period of 6 months would apply with the statement “During this time, we will assess your progress and performance in the position”. No address for the employment of the nominee was listed but was at the discretion of the employer.

17. Lease agreement for the Toowoomba premises from 17 April 2018 to 16 April 2020 has an option for renewal of 2 x 1 years with a final date for exercise of the option as 29 February 2020 at $1,450 + GST per month. There is scant evidence that the option was exercised, and that the business operates from Toowoomba and the lack of a business address in Toowoomba on the letterhead for the applicant in February 2018 and November 2022 further adds to this uncertainty.

18. It is open to the Tribunal on the evidence to hand to find that the business operated by the nominator is not located at that place being Toowoomba and that reg 5.19(4)(h)(ii)(E) is not satisfied however the Tribunal is not making a decision on this regulation and places no weight on the observations in regard to this regulation.

19. For the above reasons the Tribunal is not satisfied that the applicant meets the requirements of reg 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 reg 5.19(3). Accordingly, the nomination of the position cannot be approved. Therefore, the Tribunal must affirm the decision under review.

    DECISION

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

    De-Anne Kelly
    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 an identified person, as  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)       all 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;

    (AA)there is a genuine need for the nominator to employ the person identified under subparagraph (a)(ii), as a paid employee, to work in the position under the nominator’s direct control;

    (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 the person identified under subparagraph (a)(ii), as 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).

    Schedule 1 – Case number 2012293

    Documents including the following were provided with the original application.

    1)    Email 6 July 2020 from the Department declining extension of time in response to request from the applicant.

    2)    Acknowledgement of application received 27 February 2018.

    3)    Online application 27 February 2018.

    4)    ASIC registration and business name registration.

    5)    BAS statement FY 2016, FY 2017, FY 2018, FY 2019

    6)    Organisation chart.

    7)    Financial flow sheet for Toowoomba and Darwin office for FY 2018.

    8)    Employment contract undated.

    9)    Lease agreement for Toowoomba premises from 17 April 2017 to 16 April 2018 with option for further two (2) years at $750 + GST per month.

    10) Bank statement 2017 for the applicant.

    11) Financial statement FY 2017, FY 2019

    12) Trust tax return FY 2019.

    13) Regional Certifying Body (RCB) approval 25 May 2018 stating “Need proven ?? See attached letter >>ACCEPT.”

    14) Letter on the need for the position including

    a.    Advertisement online posted on 13 February 2018.

    b.    Recruitment summary showing 4 candidates who were unsuitable.

    c.     Job description.

    15) Market salary analysis.

    16) Dhir Family Trust Deed.

    17) Request from the Department for further information 17 December 2019.

    18) Lease agreement for the Toowoomba premises from 17 April 2018 to 16 April 2020 with a option for renewal of 2 x 1 years with a final date for exercise of the option as 29 February 2020 at $1,450 + GST per month.

    19) PAYG payment summary nominee for FY 2019.

    20) Payslip for the nominee FY 2020 showing address in Nundah QLD 4102.

    21) Letter from Nominee’s bank.

    22) Drivers licence nominee issued 29 August 2019 showing address in Nundah QLD 4102.

    23) Letter from the Department inviting the applicant to comment on adverse information being the contrary to the advice of the director that the nominee commenced employment in March 2018 they had evidence from a state law enforcement agency and passenger records that he was residing in another Australian state during his employment with the business and he was employed with another organisation.

    24) Email request 30 June 2020 from the agent for extension of time.

    25) Email form the Department 6 July 2020 declining the extension request.

    26) Leave request from the nominee to the applicant February 2019.

    27) Statutory declaration 7 July 2020 from an apparent flat mate of the nominee stating that he lives in shared accommodation in Nundah QLD and that the nominee travels frequently between Brisbane and Sydney.

    28) The nominee responded to the invitation to comment on the adverse information by stating that he frequently travelled to Sydney to visit his brother and the passenger information related to a trip oversea they had taken together from Sydney and where he had recorded his brothers address as the address because that was where he had resided in Sydney before departure.

    29) Interview Plan for a Department Site visit to the applicant.

    Documents including the following were provided after the review application.

    30) Notice of Decision Nomination Refusal notice 13 July 2020.

    31) Invitation to provide updated information to the Tribunal 19 October 2022.

    32) Request 2 November 2022 from the applicant for extension of time of 28 days.

    33) Extension granted by Tribunal to 30 November 2022.

    34) Submission 30 November 2022 from the agent including

    35) ASIC registration.

    36) Organisation chart showing the nominee’s position as “waiting visa” and “Position open”.

    37) Financial statement FY 2021

    38) BAS statements FY 2020, FY 2021 and FY 2022.

    39) Employment agreement 1 February 2018.

    40) Employment agreement 30 November 2022 including “Your start date will be AFTER APPOVAL OF The 187 VISA GRANT”. Letterhead shows business addresses as Browns Plains QLD 4118 and Gatton QLD 4343. A probation period of 6 months would apply with the statement “During this time, we will assess your progress and performance in the position”.

    41) Request 13 May 2023from the agent for a postponement until 3 June 2023.

    42) Hearing notice advising hearing postponed to 5 June 2023.

    43) Invitation 18 May 2023 from the Tribunal inviting comment on the validity of the s375 certificate by 25 May 2023.