Dreamland (Australia) Pty Ltd ATF The Peters Family Trust (Migration)

Dreamland (Australia) Pty Ltd ATF The Peters Family Trust (Migration) [2018] AATA 789 (13 March 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Dreamland (Australia) Pty Ltd ATF The Peters Family Trust
CASE NUMBER:  1605045
DIBP REFERENCE(S):  BCC2015/2600205
MEMBER:Antonio Dronjic
DATE:13 March 2018
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision under review to refuse the nomination.
Statement made on 13 March 2018 at 9:57am

CATCHWORDS
Migration – Employer Nomination – Labour market testing – Financial capacity of business – Historical financial records – Funds in client and personal accounts – Agreed wages not paid – Loan from bank – Personal wages drawn from profits
LEGISLATION
Migration Regulations 1994, r 5.19
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 Immigration on 5 April 2016 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).
The applicant applied for approval on 7 September 2015. 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) 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).
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 r.5.19(4)(d)(i) of the Regulations because the delegate was not satisfied that on the evidence that the applicant has a financial capacity to provide a minimum of two years full time employment to the nominee.
The applicant applied to the tribunal on 12 April 2016 for review of the delegate’s decision and with the application submitted a copy of the primary decision.
On 10 March 2017, the Tribunal (differently constituted) received a written submission from registered migration agent, Derrick Peters (Mr Peters) who is also a director of the nominating business. The submission includes a number of attachments, including:
·A statement titled ‘Need for Paid Position’;
·A revised organisational chart;
·Evidence of Mr Peters registration with the Office of the Migration Agents Registration Authority (OMARA);
·An Administrative Services Facility Agreement between the review applicant and Nextterm Education and Visa Services;
·Copies of several invoices issued by Dreamland Business Services;
·A copy of the Code of Conduct for registered migration agents (current 1 from July 2012) published by OMARA;
·ASIC company extract for Dreamland (Australia) Pty Ltd;
·A statutory declaration sworn by Mr Peters in which he declares to have undertaken labour market testing. Mr Peters declares, amongst other things, that a total of 41 valid applications were received and a total of three candidates were listed for interview;
·A copy of an advertisement for a Personal Assistant – Professional Services and advertised in An invoice for this advertisement is also included;
·A copy of an approval letter dated 11 November 2015 from the Regional Certifying Body;
·An offer of employment between the review applicant and Sandipkumar Kantibhai Patel dated 3 September 2015;
·A letter dated 7 March 2017 from Future Focus Accounting Pty Ltd. This states they act as accountants for the review applicant and that the business ‘appears to be a going concern’, has ‘generated fair revenue to cover its expenses and wages cost, and has returned a positive bottom line’. It was further stated that: ‘The business has access to adequate funds via draw-down bank accounts available to the Director and has new equity of around $90,000’. The letter expresses the view that the business will continue and will be able to support the nominated position for at least the next two years. The letter concludes with a broad disclaimer which reads:
This letter is supplied solely for the use of the above-named client. The letter has been compiled from information provided by the above-named client. No warranty or assurance is expressed in respect of this information. No third party should rely upon this information without undertaking their own audit or investigation
·Several business activity statements (BAS);
·A balance sheet ‘As at December 2016’;
·Westpac bank statements for a home loan account (September to December 2016), and for an investment loan account (03 February 2017 to 03 March 2017);
·A copy of IMMI 15/083 ‘Specification of Class of Persons 2015’ and a copy of IMMI 13/049 is; and
·A copy of a job description – Personal Assistant (ANZSCO 521111) – signed by Mr Peters.
Mr Peters for the applicant appeared before the Tribunal (differently constituted) on 29 March 2017 to give evidence and present arguments. This is the summary of Mr Peters evidence given at the first hearing:
Mr Peters stated that when he lodged the nomination application his business was in its infancy. He said he came across the nominee, Mr Patel when Mr Patel and his wife came from India and were looking for work. Mr Patel initially started work but as time progressed he became indispensable. Mr Peters said that Mr Patel commenced working with him on 1 July 2015. He submitted that Mr Patel has an MBA from the US and a Master of Information Technology from Australia.
Mr Peters stated that he needs a person of high calibre to understand his business at a conceptual level. Mr Peters submitted he understands that he has an obligation to the local labour market. He said he had advertised but could not find anyone locally and then he offered the position to Mr Patel.
Mr Peters told the Tribunal that most people who applied for the position were studying migration law and wanted to learn the trade, unlike Mr Patel, who has a long-term intention and desire to establish himself in Australia. Mr Peters said that Mr Patel and his family are very close to him and he has observed no indication that Mr Peters has any other plans but to continue work in the nominated position.
The tribunal asked Mr Peters how he met Mr Patel. He replied that he met him through Mr Patel’s wife who was employed as a house cleaner by Mr Peters.
The tribunal asked Mr Peters to comment on whether the salary offered is congruent with the stated qualifications. Mr Peters said in his view it is. He said that he has been in Australia for 31 years and he has grown and that the applicant’s role will grow as well. Mr Peters submitted that he had worked in HR in the police department and in the health department. He submitted he does not believe that Mr Patel is ready for a $150,000 salary at the present time.
In relation to the financial aspects of the business, Mr Peters claimed that he submitted financial reports to the Tribunal. The Tribunal pointed out to Mr Peters that the most recent profit and loss statements and balance sheets had not in fact been submitted to the Tribunal and invited him to submit such documents. Mr Peters submitted that the financial records are only historical and submitted that the Tribunal should look to the future.
Mr Peters said he has two essential staff members and one of them announced that he is soon leaving to return to India for family reasons. He said that employees name is Vinod Kashib. He said he gave notice on the day before the hearing that he will finish work on 31 May 2018.
Mr Peters told the tribunal he operates his business on the basis that he is available for work and for his clients seven days a week. He described himself as a workaholic and he wears many hats, including as a migration agent and as a JP.
The tribunals referred Mr Peters to the question of the need for the position. Mr Peters told the tribunal that he consults with six to 10 clients per day, although not all contact results in revenue. He said his monthly turnover varies. He told the Tribunal that Mr Patel has been employed for almost 2 years.
The Tribunal asked Mr Peters to provide evidence of payment of salary to Mr Patel.
In relation to his financial resources, Mr Peters said he has access to reserves and is capable of managing the cycles of ups and downs and revenue variants. He said he is not running a negative bottom line business and has plenty of liquidity.
The tribunal asked Mr Peters why he had included a copy of the code of conduct for migration agents with other documents he has submitted to the Tribunal. He replied that this was done to show that his occupation is tightly regulated and shows that there is a lot of administration and paperwork to keep file notes and the like. He said this supports his submission that he requires a personal assistant. The Tribunal asked Mr Peters if he is aware that other migration agents have personal assistants. He was not aware of whether they do or do not.
In relation to testing the local labour market, Mr Peters submitted that applicants who had expressed interest in the position did not address the selection criteria and therefore were not shortlisted.
The tribunal asked Mr Peters to explain the ‘Call Centre’ entity which is shown in his organisation chart. He replied that the administrative assistant answers the telephone calls. He described this as being the call centre.
Mr Peters told the tribunal that he has an agent who is located in China. In relation to r.5.19(4)(e), Mr Peters told the tribunal that the conditions of the nominated position are aligned to the Fair Work Act 2009 and that no conditions can be less than prescribed in that legislation. Mr Peters told the tribunal he is aware of complaints that migrants may be paid less than Australian workers. He said, ‘it is very prevalent’. He declared that he would pay the nominated employee in accordance with the relevant award and conditions. He added that he does not have a history of complaints by the Fair Work Commission.
In relation to r.5.19(4)(f), Mr Peters told the tribunal that there has been one complaint made against him to the Migration Agents Registration Authority (MARA) but he was exonerated and he was reregistered as a migration agent. He said that MARA told him that they dismissed the complaint without imposing any sanctions against him.
In relation to r.5.19(4)(g), Mr Peters told the tribunal he has a satisfactory record and he complies with all the laws of Australia.
Mr Peters concluded his evidence by saying that he operates a business that has supported three or four people and that he has employed the nominee for two years. He said this is a long-term proposal and that they know each other. He submitted the nominee is key to his plans and has a superior work ethic. He heavily relies on the nominee. He submitted that without the nominee he does not feel he would be able to maintain his current level of revenue.
The tribunal invited Mr Peters to provide updated financial information by 7 April 2017.
On 7 April 2017, the applicant submitted:
·Financial statements for Peters Family Trust trading as Dreamland Migration Services for the year ending 30 June 2015;
·Financial statements for Peters Family Trust trading as Dreamland Migration Services for the year ending 30 June 2016;
·Pay slips for the nominee from February to April 2017;
·PAYG payment summary for the nominee for the year ending 30 June 2016;
·MYOB extract – Balance Sheet as of January 2017; and
·MYOB extract – Profit and Loss Statement from July 2016 to January 2017;
The matter was constituted to the current Tribunal on 25 October 2017.
On 14 November 2017, the Tribunal wrote to the review applicant pursuant to s.359(2) of the Act. The tribunal letter advised that the applicant was required to meet the criteria in r.5.19(4) of the Regulations. The letter invited the applicant to provide information in writing that will demonstrate the applicant meets all of the requirements of r.5.19(4).
On 15 November 2017, the applicant submitted;
·Dreamland Migration Services Statement from Client account;
·Dreamland Migration Services Statement from Operating account
·MYOB extract – Profit and Loss Statement from July 2016 to March 2017;
·BAS for the period April – June 2017;
·Organisational chart;
·Statement of need for paid position;
On 27 November 2017, the applicant submitted:
·Submissions stating that all current staff apart from the nominee are independent contractors; that there are ample funds available to the business such as a Rocket Investment loan, investment interest only loan and home loan with offset; and
·The nominee’s job description.
On 30 November 2017, the Tribunal wrote to the applicant advising that it considered material before it and was unable to make a favourable decision on this material alone and invited the authorised person to appear before the Tribunal on behalf of the nominating business at a hearing on 9 January 2018.
On 22 December 2017, the applicant submitted:
·Organisational Chart;
·Submissions;
·MYOB extract – Profit and Loss Statement from July 2017 to November 2017;
·Dreamland Migration Services Statement from Operating and Client accounts; and
·BAS from July 2016 to September 2016; October 2016 to December 2016; and January to March 2017
Mr Peters, the director of Dreamland Migration, appeared on behalf of the nominating business before the Tribunal on 9 January 2018 to give evidence and present arguments. He is also a registered migration agent. He gave evidence that the nominating business was registered in February 2013 and is located in North Perth.
Mr Peters stated that at the time of lodgement of the nomination application, he did not pay any fees to the Department of Immigration (the Department) and confirmed that the position was located in regional Australia when the nomination application was lodged.
I raised an additional issue with the applicant. I explained that, according to the legislative instrument IMMI 17/059, metropolitan Perth is no longer specified by the Minister as ‘egional Australia’. It follows that the business will not be able to meet the requirements of r.5.19(4)(h)(ii)(A) which requires that the position is located in ‘regional Australia’.
I offered Mr Peters to adjourn the hearing if he need more time to respond to this new issue. He stated that he does not need adjournment. He stated that on 17 November 2017, the legislative instrument removed metropolitan Perth from ‘regional Australia’ list and this matter was raised with the Assistant Minister and the Department. He stated that advice received from the Department was that RSMS applications lodged before 13 March 2017 with RCB certification will proceed to assessment. He further stated that the Department will shortly send an e-newsletter (through Migration Institute of Australia (MIA)) to inform migration agents that the instrument will only apply to nomination applications lodged on or after 17 November 2017. Mr Peters undertook to provide a copy of this letter to the Tribunal after the hearing.
I observed that there are no transitional provisions in IMMI17/059 and that I am bound to apply the legislative instrument and not the Departmental policy, particularly if the policy goes beyond the instrument as it appears to be the case.
Mr Peters stated that the nomination application was lodged in September 2015 and it has taken too long for the Tribunal to process this application. I explained to Mr Peters that I was unable to make a ‘decision on papers’ as he requested me to do on 15 November 2017 as I still have concerns about other aspects of the nomination application. In particular, I have concerns about the financial capacity of the nominating business to provide a minimum of two years full time employment to the nominee and whether there is a there is a genuine need for the paid position under the nominator’s direct control which cannot be filled by a locally resident Australian citizen or permanent resident.
I observed that the applicant was asked on number of occasions to provide audited financial records for the past two years as well as pay slips related to payment of wages to the nominated person and statement from bank account evidencing corresponding payments of wages to the nominee.
Mr Peters acknowledged and agreed that IMMI17/059 was introduced on 17 November 2017 and that the Tribunal is required to apply the legislative instrument in preference to Departmental policies. As a migration agent, he was aware that the instrument changed. However, through MIA communication with the Department, he believed that some sort of notification was sent to the Tribunal. He had undertaken to provide further information and submissions concerning the change of legislative instrument.
I indicated that I am prepared to grant him additional time to submit submissions on this issue. I also requested financial statements for the past three years. Mr Peters stated that the business does not make turnover of a size that would require preparation of audited financial statements. I clarified that I require the same financial statements as those submitted to the Australian Taxation Office (ATO). I further explained that I request profit and loss and balance sheet for the past two years as that will indicate the business turnover, profitability and its ability to meet the business expenses including the wages paid to the nominee.
I further explained that MYOB extracts provided do not necessarily correspond to the end of year financial statements as they can be amended during the year. I requested that the applicant provide payslips for the nominee and business bank account statements evidencing corresponding payment of wages to the nominee.
I noted that in his submissions he stated that the business is able to obtain a loan or pay the business expenses out of Mr Peters’ personal account. I indicated that I do not consider this to be evidence of the financial capacity of the nominating business to pay the wages. Similarly, I expressed my view that the business cannot use the money that is kept in the ‘clients’ account’ as evidence of its financial capacity to provide minimum of two years of fulltime employment to the nominee.
In his evidence, Mr Peters confirmed that all of his employees, apart from the nominee, are independent contractors. I inquired why the personal assistant (the nominated position) is the only person employed by the business on a full-time basis and not as a contractor. He stated that he needs the continuity with this position. He stated that he needs somebody who will be a long-term employee and who understands the business operations and clients’ needs.
He stated that he already provided financial statements for 2015/2016 financial year after the first Tribunal hearing held in March 2017. He explained that the financials for 2016/17 financial year are not yet lodged with the ATO and are due in May 2018. He gave evidence that he can only provide BAS for the past financial year.
I asked Mr Peters what the turnover of the business was for 2015/16 and 2016/17 financial years. He stated that he does not have that information before him. I asked if he knew whether the business traded with profit or loss during those two years. He gave evidence that to the best of his recollection, the business traded with a small profit of $10,000 to $15,000 during the last financial year.

Mr Peters stated that he does not draw wages from the business and instead takes part of the profit. During the past financial year, he paid himself between $70,000 and $80,000 by way of taking profit from the business. I noted that according to the MYOB Profit and Loss Statements from July to December 2017, the total amount for wages paid during this period was $16,720 (for 5 months). He confirmed that this payment relates to the nominee’s wages only.
I asked Mr Peters to explain where in the profit and loss statements are payments made to him recorded. He gave evidence that he does not believe that money that he takes out of the business is recorded in the profit and loss statement and should be in the balance sheet.
He confirmed that the nominee has been working as a full time employee at his business since July 2015. Initially the nominee was paid approximately $40,000. He is currently earning approximately $60,000. His wages are paid in cash and sometimes through the bank.
I noted that he provided evidence of advertising for this position that date back to July 2015 and his statutory declaration dated 5 September 2015. He stated that everything declared in his statutory declaration is true and correct and that he does not want to change any part of this declaration.
I noted that in the advertisement placed on Gumtree and Seek, one of the requirements for the nominated position was that the applicant must be an Australian citizen or permanent resident or eligible New Zealand citizen (described as an essential criterion). Despite of this requirement, the business employed a person who is not Australian citizen or permanent resident or eligible New Zealand citizen and who does not meet the essential job requirements that the business placed in the ads. Mr Peters stated that when the business is doing labour market testing, the business is testing labour market in Australia.
Mr Peters stated that the business advertised for the same position again in October 2016. I inquired why did he re-post the advertisement considering that the nominee had already commenced his employment in July 2015. He stated that the visa application process has taken a very long time and that the Department refused the visa application in May 2016. He gave evidence that he was open to employ an alternative person who would meet the selection criteria.
Mr Peters stated that the nominee is been employed by the business for almost three years and that he would prefer to have the nominee continuing his employment. However, if the review application is unsuccessful, he would have no other choice but to try to find an alternate employee. He attested to the nominee’s skills and ability to speak several languages. He stated that the nominee comes from the same culture where most of his clients are from.
He stated that he could find an Australian citizen who will be good at administrative work, but when it comes to understanding different cultures and an ability to speak different dialects, it will be hard to find a replacement for the nominee. He further stated that he tested the labour market at the time of application and that there is no requirement to test the market again.
He gave evidence that the Rocket Investment Loan account and investment interest only loan account held at Westpac are also business accounts. Both accounts are available for business use and he can draw the money from these two accounts or deposit money back into these accounts.
I reiterated my view that funds held in his mortgage offset account and his clients’ account cannot be used as evidence of the business’s financial capacity to pay wages to its employees. Similarly, borrowing money from the bank to pay employee’s wages is hardly evidence of financial capacity of the business to do so.
I granted the applicant additional time until 12 January 2018 to provide further documentary evidence and submissions in support of the application. In particular, I requested profit and loss statements and balance sheet for 2016/17 financial year and copy payslips evidencing wages paid to the nominee. Mr Peters confirmed that the nominee’s wages were paid out of the business’s operating account. I indicated that he should provide documentary evidence showing corresponding payments of wages from the operating account.
He stated that he is unable to provide financials for 2016/17 as they have not been finalised for lodgement with ATO. I requested MYOB statements from 1 July 2016 to 30 June 2017 that will contain profit and loss statements and a balance sheet.
On 15 January 2018, the applicant wrote the following e-mail to the Tribunal:
I have approached the Department regarding clarification about the “no retrospectivity” of the Legislative Instrument IMMI 17/059. To this end, the Department has escalated the matter so that a formal response can be obtained and provided to you (see email communication attached).
Financial Information for the entity - I have requested this from my Bookkeeper/Accountant. However, he has indicated that due to family issues, he is unable to provide these until end of next week.
Based on the above, I submit that a decision in this matter be delayed until I have clarification from the Department/Minister about the “no retrospectivity” matter. I intend to provide a submission on receiving this and along with the submission, I will also provide the up-to-date financial documents from 2016 to present in support of my case.
Unfortunately, whilst I have control in obtaining the financial documents, I do not have control on the timeframe for receiving a response from the Department/Minister’s office. Notwithstanding this, they are aware about the urgency of this information in the decision-making process of the matter at hand. As such, I am hoping for an early response.
Attached to this letter was:
·A copy of the MIA Bulletin of 16 November 2017, stating inter alia ‘Update on processing of Perth RSMS applications lodged prior to 17 November 2017 when Legislative Instrument IMMI 17/059 (which removes Perth as a ‘regional’ area) comes into effect: NO RETROSPECTIVITY’; and
·Correspondence dated 12 January 2018 between the Department, Mr Peters and Mr Duval of MIA. In her response to the applicant’s inquiry, Ms McNamara stated in her email that:
I have referred this matter on seeking urgent advice, as it is not the department’s intention to apply the Instrument retrospectively. I cannot give you any assurance that I will have a response today as required by Mr Peters.
On 11 January 2018, I requested clarification from the Department as to what is the legislative basis for not applying IMMI 17/059 retrospectively considering that the legislative instrument does not contain any transitional provisions. The IMMI 17/059 simply states that it repeals IMMI 2016/045.
On 30 January 2018, Mr Peters wrote another email to the Tribunal attaching the following advice received from the Department:
The department’s Tribunal liaison section is communicating with the AAT regarding the department’s legal interpretation of the Instrument which is that they will not apply retrospectively
On 20 February 2018, the Tribunal sent the following letter to the applicant:
I am writing in relation to an application for review by the Migration and Refugee Division of the AAT and your recent correspondence received by us on 30 January 2018.
Following the hearing, the Tribunal granted additional time until 12 January 2018, to provide additional documentary evidence and submissions. Upon applicant's request, the Tribunal postponed making its decision until 20 February 2018.
The Member will proceed to his decision on or after 26 February 2018 based on the evidence that is before him.
On 23 February 2018, the applicant submitted:
·Submissions (Tribunal folios 452-454) stating inter alia that the issue of retrospective application of IMMI17/059 has not been resolved with the Department and that the internal delay of the Tribunal in finalising the matter disadvantaged the applicant;
·A copy correspondence between MIA and the Department concerning the issue of retrospective application of IMMI17/059;
·A copy of trust tax return for 2016 financial year;
·A copy of BAS for 2016 financial year;
·MYOB extract – Profit and Loss Statement from July 2016 to June 2017;
·MYOB extract – Profit and Loss Statement from July 017 to December 2017;
·MYOB extract – Balance Sheet as of December 2017;
·MYOB extract – Statements of Cash flow from July 2015 to December 2017;
·Reconciliation reports for the business’s operating account;
·Westpac Live – undated screenshot of balances held on various accounts;
·Westpac Business One bank account statements from 30 June 2017 to 31 January 2018, as evidence of payment of nominee’s wages;
·A copy of the nominee’s pay slips from June to December 2017;
·A copy of the employment agreement signed by Mr Peters and the nominee on 14 June 2017 stating the nominee’s annual salary to be $60,000;
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 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)
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.
The Tribunal notes the employment agreement between the nominating business and the nominee, dated 3 September 2015 provides that the employment is a fulltime employment commencing on the day the Subclass 187 visa is granted. The Tribunal accepts that an extension beyond two years’ employment is not expressly excluded.
The Tribunal has also considered whether the applicant has the financial capacity to provide the stated employment. The Tribunal has taken into account the applicant's financial position as set out in the financial information it provided to the Tribunal in support of its application.
According to profit and loss statements for 2015, the business traded with loss of some $3,262. The turnover for this financial year was $144,106. The total amount paid for wages was $61,415.
According to profit and loss statements for 2016, the business traded with a profit of $28,715. The turnover for this financial year was $218,231. The total amount paid for wages was $89,657.
According to MYOB extract – Profit and Loss Statements for 2017, the business traded with a loss of some $14,348 (not including profit on disposal of assets of $8,606). The turnover for this financial year was $211,909. Total expenses were $233,525. The total amount paid for wages was $93,404.
In his evidence, Mr Peters stated that he does not draw wages from the business and instead takes part of the profit. He gave evidence that, during the past financial year, he paid himself between $70,000 and $80,000 from the business profit. There is no entry in the MYOB extract - Profit and Loss Statements for 2017 of payment of any directors’ fees or money taken out from the business profit.
According to the MYOB profit and loss statements from July to December 2017, the total amount for wages paid during this period was $16,720 (for six months). Mr Peters confirmed that this payment relates to the nominee’s wages only. Yet, according to MYOB extract – Profit and Loss Statements for 2017, the total amount paid for wages was $93,404.
According to the pay slips provided, the nominee was paid $1,520 per fortnight during the period from 1 July 2016 to 30 June 2017. This amounts to annual income of $39,520 (including superannuation payments). This amount is considerably less than $60,000 as stated in the employment agreement. I observe that the initial offer of employment signed on 3 September 2015 states that the nominee’s annual salary is $60,000.
During the second hearing, Mr Peters confirmed in his evidence that the nominee’s salary is $60,000. Based on the evidence before me I find that the nominee was not paid $60,000 during the past financial year, which is indication that the business is not financially capable of paying the agreed wages for a minimum period of two years.
During the course of the second hearing, Mr Peters stated that the nominee’s wages ‘are paid in cash and sometimes through the bank’. I have compared Westpac Business One account statements with the nominee’s pay slips. There is a hand written note on the payslip related to the period from 19 November 2017 to 2 December 2017 stating that the nominee received additional salary of $2,500 in cash (signed by the nominee). However, there is no corresponding payment recorded at the Westpac Business One statements. Mr Peters claims that this cash payment is reflected in the BAS for the period from October 2017 to December 2017. I examined this statement and was unable to find any corresponding entry of payment of $2,500 in cash to the nominee for his wages. According to this statement, the total salary, wages and other payments were $19,120. This amount is similar to the BAS for the period of October to December 2016, where the total amount for salary wages and other payments was $22,734.
Mr Peters submitted that funds available on his personal mortgage offset account, home loan with offset account and investment account should be taken into consideration in assessing the financial ability of the nominating business to pay its employee agreed wages. He stated that, as the sole shareholder of a company he has a liberty of injecting cash into his business as ‘capital’ and when required. He further stated that his ‘personal financial position is central for the company remaining solvent and to sustain any periods of cash flow issues’.
I do not accept this argument. I am not assessing Mr Peters’ ability to pay wages to the nominating person but the ability of the nominating business to do so. If anything, reliance on personal funds held by Mr Peters or ability to obtaining a loan from the bank if there is a ‘cash flow issue’ is indication that the business is not financially capable of paying the promised wages for a minimum period of two years.
Similarly, I do not accept that the applicant can rely on the funds held in Dreamland Migration Services’ clients’ account in order to establish its financial capacity to pay wages to its employee. The clients’ account operates in the similar way to a solicitor’s trust account. Money deposited by clients in this account remains their money until the invoice is issued for the services provided.
Based on the evidence before me I am not satisfied that the business is financially capable of employing a full time employee who will be paid $60,000 per year. As a result, the Tribunal is not satisfied that the applicant will be able to employ the nominee in the nominated position from the time of visa grant for at least two years fulltime. Accordingly, the requirement in r.5.19(4)(d) is not met.
As the Tribunal find that the applicant does not meet r.5.19(4)(d) it is not necessary to make findings whether the business meets r.5.19(4)(h)(ii)(A) which requires that the position is located in ‘regional Australia’.
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 the 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
The Tribunal affirms the decision under review to refuse the nomination.
Antonio Dronjic
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
(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).

[2018] AATA 789

13 March 2018

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Statutory Construction

Procedural Fairness