DR GUZZO PTY LTD (Migration) - [2022] AATA 235

DR GUZZO PTY LTD (Migration) [2022] AATA 235 (22 January 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  DR GUZZO PTY LTD
REPRESENTATIVE:  Mr John Young (MARN: 9251554)
CASE NUMBER:  1901625
HOME AFFAIRS REFERENCE(S):          BCC2017/1151606
MEMBER:Susan Reece Jones
DATE:22 January 2022
PLACE OF DECISION:  Melbourne

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

Statement made on 22 January 2022 at 1.18pm

CATCHWORDS
MIGRATION – application for approval of nomination of position – direct entry nomination stream – financial capacity to provide nominee with two years of full-time employment – nominee is director of applicant – limited current information provided out of time – latest tax return shows financial loss – substantial difference between documents – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 359(2), 359C(1), 360(3), 363A, 424C(1), 425(3)
Migration Regulations 1994 (Cth), r 5.19(4)(d)
CASE
Hasran v MIAC (2010) 183 FCR 413
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 3 January 2019 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 applied for approval on 24 March 2017. The requirements for the approval of the nomination of a position of Customer Service Manager (ANSZCO 149212) 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 the applicant’s nomination did not satisfy reg 5.19 (4)(d) of the Regulations because the applicant did not provide adequate evidence to demonstrate that it had sufficient financial capacity to comply with the requirement to provide the nominee with at least two years of full-time employment.
The Tribunal received a review application on 23 January 2019. It was lodged on behalf of the applicant by its director, Mr Daniel Guzzo (who is also the nominee in this case). It was accompanied by a copy of the delegate’s decision and an authority by which the applicant appointed a registered migration agent, representative Mr John Young of Immigration Agency to be the applicant’s representative and authorised recipient for correspondence.
On 8 November 2021, the Tribunal wrote via email to the agent pursuant to s.359(2) of the Act to invite Mr Guzzo to provide up to date and current information demonstrating that the applicant met all of the applicable r.5.19(4) criteria (not merely the subparagraph that the delegate…

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

AGLC: DR GUZZO PTY LTD (Migration) [2022] AATA 235
Case: [2022] AATA 235
Decision Date: 22 January 2022

CaseChat Overview and Summary

This matter concerned an application by DR GUZZO PTY LTD for approval of a nomination of a position under the Direct Entry nomination stream. The applicant sought to nominate a position for a visa holder, who was also a director of the applicant company. The core of the dispute revolved around the applicant's financial capacity to provide the nominee with two years of full-time employment, as required by the Migration Regulations 1994. The decision was made by Susan Reece Jones, a Member of the Tribunal.

The legal issues before the Tribunal were whether the applicant met all the requirements for approval of the nomination under regulation 5.19(4) of the Migration Regulations 1994. Specifically, the Tribunal was required to determine if the applicant had demonstrated sufficient financial capacity to employ the nominee full-time for at least two years, as stipulated by regulation 5.19(4)(d)(i). The Tribunal also considered whether the application was compliant with regulation 5.19(4)(a), whether the nominator was actively and lawfully operating a business in Australia under regulation 5.19(4)(b), and whether the nominated position was not a labour-hire arrangement under regulation 5.19(4)(c).

The Tribunal affirmed the decision to refuse the nomination, finding that the applicant had failed to satisfy the requirements of regulation 5.19(4)(d). While the Tribunal was satisfied that the application met the requirements of regulations 5.19(4)(a), (b), and (c), it found that the applicant had not provided sufficient evidence of its financial capacity to provide the nominee with two years of full-time employment. The latest tax return showed a financial loss, and there was a substantial difference between the documents provided. As failure to meet any one of the subparagraphs of regulation 5.19(4) is sufficient for the criteria not to be met as a whole, the Tribunal concluded that the nomination could not be approved.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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.The application is compliant: reg 5.19(4)(a) Regulation 5.19(4)(a) requires that the application for approval must be in the approved form, must be accompanied by the prescribed fee, and, where applicable, must include the required written certification relating to conduct that contravenes s 245AR(1). The application must also identify a need for the nominator to employ a paid employee to work in the position under their direct control. From the material on the Department file, the Tribunal is satisfied that the applicant complied with the above requirements, and that the requirement in r.5.19(3)(a) is met. Accordingly, the requirement in reg 5.19(4)(a) is met.Nominator is actively and lawfully operating a business in Australia: reg 5.19(4)(b) Regulation 5.19(4)(b) requires that the applicant is actively, lawfully and directly operating a business in Australia. The Tribunal was provided with the ASIC Connect, Business details for the applicant dated 1 December 2021. The Tribunal was not provided with any other recent Financial Statements for the applicant; however, the Tribunal was provided with one Company Tax Return for the 2021 financial year. Accordingly, the requirement in reg 5.19(4)(b) is met. Position is not labour-hire: reg 5.19(4)(c) Regulation 5.19(4)(c) applies to nominators whose business activities include those relating to labour hire to an unrelated business. In these cases, the nominated position must be within the business activities of the nominator. The Tribunal has no evidence to suggest that the applicant’s business operations includes labour hire activities. Accordingly, the requirement in reg 5.19(4)(c) is met.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 2 years full time, and the terms and conditions of that employment do not expressly exclude the possibility of an extension. The Department in its decision noted that regulation 5.19(4)(d) requires the nominator to demonstrate that it is able to provide the nominee with full-time employment for at least two years. It further noted that Departmental policy provides the following advice in relation to meeting the above requirement:Delegates need to be satisfied that the nominator has sufficient financial capacity to complywith the requirement to provide the nominee with at least two years of full-time employment.A simple statement that they can provide the two years of full-time employment is notsufficient evidence of the employer’s ability to comply with this requirement.

Decision

Reasons for decision

For the above reasons, the Tribunal is not satisfied that the applicant meets the requirements of r.5.19(4), as failure to meet any 1 of the subparagraphs is sufficient for the criteria in r.5.19(4) not to be met as a whole. The Tribunal has found that r.5.19(4)(d) is not met, and therefore it is unnecessary for it to consider the remaining r.5.19(4) criteria. The applicant has not sought to satisfy the criteria in Temporary Residence Transition Nomination, 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 The Tribunal affirms the decision under review to refuse the nomination.Susan Reece JonesMemberATTACHMENT - EXTRACTS FROM THE MIGRATION REGULATIONS 19945.19Approval 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).

Ratio Decidendi

Legal Principle Established

The Tribunal affirms the decision under review to refuse the nomination.Susan Reece JonesMemberATTACHMENT - EXTRACTS FROM THE MIGRATION REGULATIONS 19945.19Approval 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).