Falcon Financial Services Pty Ltd (Migration)

[2022] AATA 253

Falcon Financial Services Pty Ltd (Migration) [2022] AATA 253 (1 February 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Falcon Financial Services Pty Ltd

REPRESENTATIVE:  Mr Adam Khaze (MARN: 0960138)

CASE NUMBER:  1910789

HOME AFFAIRS REFERENCE(S):          BCC2018/636840

MEMBER:Alison Mercer

DATE:1 February 2022

PLACE OF DECISION:  Melbourne

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

Statement made on 1 February 2022 at 5:37pm

CATCHWORDS

MIGRATION – application for approval of nomination of position – direct entry stream – need for position in small business – no response to tribunal’s invitation to provide updated and current information – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 359(2), 359C, 360(3), 363A

Migration Regulations 1994 (Cth), r 5.19(4)(a)(ii)

CASE

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 23 April 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).

2. The applicant, Falcon Financial Services Pty Ltd, applied for approval of its nominated position of Accountant (General) (ANZSCO code 221111) on 7 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 (TRT) nomination stream (reg 5.19(3)) and a Direct Entry (DE) 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 (DE) 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, which required that the nomination identified a need for the applicant to employ an identified person, as a paid employee, to work in the position under the applicant’s direct control. The delegate noted that the applicant operated a small accounting firm, with existing Accountants, and had not provided any substantial basis to justify its claimed need for another Accountant. The delegate further noted that the Business Activity Statements (BAS) provided by the applicant were over 12 months old, and the lease for its Bathurst office (in which the nominated position was located) had expired. Accordingly, the delegate was not satisfied that the applicant had identified a need to employ the nominee to work in the nominated position under the applicant’s direct control. The delegate therefore found the applicant did not meet r.5.19(4)(a)(ii), and thus did not meet r.5.19(4)(a) as a whole. This meant that the applicant did not meet the criteria in the DE stream for approval of its nomination. As it had not made any claims to meet the TRT stream, its nomination could not be approved under r.5.19(3).

5. The Tribunal received a review application on 30 April 2019. It was lodged on behalf of the applicant by its director, Mr Dimuth Samarasinghe, and was accompanied by a copy of the delegate’s decision and an authority by which Mr Samarasinghe appointed a registered migration agent, Mr Adam Khaze, as the applicant’s representative and authorised recipient for correspondence.

6. On 12 January 2022, the Tribunal wrote to Mr Samarasinghe via the agent to invite him, pursuant to s.359(2) of the Act, to provide updated and current information demonstrating that the applicant met all of the applicable r.5.19(4) criteria (not just the criterion that the delegate found was not met). The Tribunal provided a copy of r.5.19(4) for reference and also provided examples of the kind of information that would assist it to assess the applicant against the criteria in r.5.19(4). The Tribunal advised Mr Samarasinghe that if he did not provide the requested information, or a request for an extension of time to provide it, by 27 January 2022, the applicant would lose its entitlement to have a person appear at a Tribunal hearing on its behalf, and the Tribunal might proceed to make its decision without taking further steps to obtain the requested information.

7. The Tribunal did not receive the requested information, or a request for an extension of time to provide it, by 27 January 2022. It has received no further communication from Mr Samarasinghe (or any other person authorised to represent the applicant) or the agent to date. The Tribunal is satisfied that its s.359(2) letter was sent to the nominated email address for the applicant’s agent, who is the applicant’s authorised recipient for correspondence. There is no evidence in the Tribunal’s electronic record that its email of 12 January 2022 was not delivered or was undeliverable.

8. The applicant has not provided the information within the prescribed period and no extension has been granted. In these circumstances, s.359C applies and pursuant to s.360(3), the applicant is not entitled to have anyone appear before the Tribunal to represent it. The effect of s.363A of the Act is that if an applicant has no entitlement to a hearing, the Tribunal has no power to permit him, her or it to appear: Hasran v MIAC [2010] FCAFC 40. Under the circumstances – where the applicant was given the opportunity to provide the information and has had the benefit of the assistance of a registered migration agent - the Tribunal has decided to proceed to decision without taking further steps to obtain the information.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. 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)

11. 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 an identified person as a paid employee to work in the position under their direct control.

12. The Tribunal is satisfied that the application for approval was in the approved form, that no prescribed fee was payable as it was a regional nomination application, and included the required written certification relating to conduct that contravenes s 245AR(1). Therefore, the Tribunal finds that r.5.19(4)(a)(i) is met.

13. In relation to r.5.19(4)(a)(ii), the Tribunal notes that the delegate found that this was not met, as she was not satisfied that the applicant had identified that it did in fact have a need for (another) Accountant (General) in its Bathurst office. The delegate noted that the applicant operated a small financial business and had not provided updated financial evidence, such as current BAS and lease for the Bathurst office.

14. The Tribunal has reviewed what was provided to the Department in 2018 with the nomination application, which relevantly includes:

    ·nomination form, which indicates that the applicant’s head office and the nominated position (Accountant (General)) are located in Bathurst in regional NSW;

    ·lease agreement for the Bathurst office premises effective from 10 March 2017 to 11 March 2018;

    ·letter from accountant dated 6 February 2018 stating that the business is in a healthy financial position and needs the nominated position as it is essential to the business; and

    ·letter dated 5 February 2018 from Mr Samarasinghe, in which he states ‘…

    Falcon Financial Services Pty Ltd commenced operations in July 2009 at Liverpool and later expanded to Parramatta, Bathurst and Southern Highlands. Falcon Financial Services is a registered entity with Australian Securities & Investment Commission (ASIC), and currently holds the Australian Credit License. We are also an approved and accredited by the Mortgage & Finance Association of Australia (MFAA). We specialize in mortgage advising and providing home loans to individuals, couples, family, and small to large business owners. We offer free services for most home and investment loans. We only charge a brokerage fee for certain types of short term loans, small loans and some types of commercial or trust finance. The Lenders pay us for assisting you which would otherwise be done by the Bank Manager, so our Client s pay the same rate as they would to the Lender directly. The advantage of our services is that we assist Clients in choosing a Lender that best suits their needs and requirements… The Bathurst Office has been operating for nearly 1 year and previously consisted of an Accountant who worked for the business casually or on contractual bases. Now with increased work load this is not favourable for the company as we require a full time Accountant in the office who will be able to meet with clients daily…’

15. The Tribunal notes that no evidence – beyond the lease - was provided to substantiate the above assertions, such as evidence of clients and/or business transactions related to the Bathurst office, a business plan for expansion, financial projections, and/or a letter from the applicant’s accountants addressing this issue (while a letter from the applicant’s accountant was provided to the Department with the nomination, it simply asserts that the applicant has the capacity to employ another Accountant, which is stated to be essential, but does not provide the basis for this opinion, or any details concerning the applicant’s business activities in relation the Bathurst office).

16. However, the Tribunal does not have any more recent information on the financial position of the applicant’s business, and its activities (including whether the lease for the Bathurst office was renewed beyond March 2018), than from early 2018, some 4 years ago. The Tribunal notes that (as set out above) the applicant was invited to provide updated information addressing this (and other) issues in January 2022 but failed to respond to the Tribunal’s request.

17. Without more current information as to the applicant’s business activities and financial position, including whether it is still operating its Bathurst office, the Tribunal is not satisfied that the applicant has identified a need to employ an identified person as a paid employee to work in the position of Accountant (General) under its direct control . The Tribunal finds that the applicant therefore does not meet r.5.19(4)(a)(ii), and in turn cannot satisfy r.5.19(4)(a) as a whole.

    Nominator is actively and lawfully operating a business in Australia: reg 5.19(4)(b)

18. Regulation 5.19(4)(b) requires that the applicant is actively, lawfully and directly operating a business in Australia.

19. As noted above, the most recent financial information provided by the applicant was to the Department in February to April 2018. This included BAS for the period 1 July 2016 to 31 March 2017, a Profit & Loss statement for the same period, a letter from the accountant dated 5 February 2018, and a lease for the Bathurst office expiring on 11 March 2018.

20. Despite the Tribunal’s request in January 2022 for current financial and other information as to its current activities and financial position, nothing has been provided.

21. Given the financial information provided is now 4 years old, and there is no indication of the applicant’s current trading and financial position, including whether it renewed the lease on its Bathurst office, the Tribunal is unable to be satisfied that it is still actively, lawfully and directly operating a business in Australia.

22. Accordingly, the Tribunal finds that the requirement in reg 5.19(4)(b) is not met.

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

23. 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 the relevant written instrument, the occupation is applicable to the proposed employee in accordance with any specifications made in that instrument, and specified training requirements are met (r.5.19(4)(h)(i)); or

    ·the position and nominator’s business is located in regional Australia, 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, 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 (r.5.19(4)(h)(ii)).

24. The nomination application indicates that the nominated position is located in Bathurst, NSW, postcode 2795. The relevant written instrument, IMMI 17/059, specifies that this postcode is considered to be in ‘regional Australia.’ Accordingly, the requirements of the second dot point above apply to the applicant.

25. The Tribunal notes that r.5.19(4)(h)(ii)(B) requires that the applicant has a genuine need for the nominator to employ a paid employee to work in the position under its direct control. At the time of the Department’s decision in April 2019, the delegate noted that the applicant had not provided any objective, documentary evidence (beyond assertions) that it had identified a genuine need for the nominated position in the Bathurst office. As noted above, although a lease was provided for the Bathurst office, which indicated that it ran until 11 March 2018, there is no evidence before the Tribunal to indicate whether that lease was extended beyond that date.

26. While Mr Samarasinghe wrote in support of the applicant’s genuine need for an Accountant in the Bathurst office, the Tribunal notes that no evidence – beyond the lease - was provided to substantiate the above assertion, such as evidence of clients and/or business transactions related to the Bathurst office, a business plan and/or financial projections, and/or a letter from the applicant’s accountant addressing this issue (while a letter from the applicant’s accountant was provided to the Department with the nomination, it simply asserts that the applicant has the capacity to employ another Accountant, which is stated to be essential to the business, but does not provide the basis for this opinion, or any details concerning the activities of the applicant’s business vis a vis the Bathurst office).

27. The Tribunal does not have any more recent information on the financial position of the applicant’s business, and its activities (including whether the lease for the Bathurst office ceased in March 2018), than from early 2018, some 4 years ago. The Tribunal notes that (as set out above) the applicant was invited to provide updated information addressing this (and other) issues in January 2022 but failed to respond to the Tribunal’s request.

28. Without more current information as to the applicant’s business activities and financial position, including whether it is still operating its Bathurst office, the Tribunal is not satisfied that the applicant has a genuine need to employ a paid employee to work in the nominated position under its direct control. The Tribunal finds that the applicant therefore does not meet r.5.19(4)(h)(ii)(B).

29. Moreover, the Tribunal notes that in the nomination form, it is stated that the applicant has not obtained certification of various matters (including whether there is a genuine need for the nominated position within the business) by the relevant Regional Certifying Body (RCB), and no RCB certification was provided to the Department or Tribunal. The Tribunal finds that the applicant therefore does not satisfy r.5.19(4)(h)(ii)(F).

30. As the applicant does not meet r.5.19(4)(h)(ii)(B) and (F), it cannot satisfy r.5.19(4)(h)(ii) as a whole. This means that the applicant does not meet r.5.19(4)(h) as a whole.

31. Accordingly, the Tribunal must find that the applicant’s nomination cannot be approved as it does not satisfy several of the criteria in the DE stream. It is unnecessary for the Tribunal to consider the remainder of the r.5.19(4) criteria.

32. 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 (TRT) 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

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

    Alison Mercer
    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).