Futurz Pty Ltd (Migration)

[2019] AATA 5613

Futurz Pty Ltd (Migration) [2019] AATA 5613 (25 November 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Futurz Pty Ltd

CASE NUMBER:  1723772

DIBP REFERENCE(S):  BCC2016/695225

MEMBER:Alison Mercer

DATE:25 November 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 25 November 2019 at 11:17am

CATCHWORDS
MIGRATION – nomination – Temporary Residence Transition stream – Marketing Specialist – actively and lawfully operating business in Australia – strike-off action in progress – voluntary application to deregister company – nominee had not worked in position for 2 out of 3 years immediately before nomination application – no response to Tribunal’s invitation to provide further information – decision under review affirmed

LEGISLATION
Corporations Act 2001 (Cth), s 601AD(1)
Migration Act 1958 (Cth), ss 245AR(1), 359, 360(3)
Migration Regulations 1994 (Cth), r 5.19

CASES
Yang v MIAC [2010] FMCA 890

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 Immigration on 13 September 2017 to reject the applicant’s application for approval of the nomination of a position in Australia under r.5.19 of the Migration Regulations 1994 (the Regulations).

2. The applicant applied for approval on 18 February 2016. 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).

3. In this case, the applicant has applied for approval of a nomination, seeking to satisfy the criteria in the Temporary Residence Transition nomination stream.

4. The delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19(3)(c) of the Regulations, which requires that the nominated employee (the nominee) had been employed in the position in relation to which he or she held a subclass 457 visa for a total period of at least 2 years in the period of 3 years immediately before the applicant made the nomination application. The delegate noted that the nominated position was Marketing Specialist (ANZSCO code 225113) but found that the evidence provided did not demonstrate the nominee had worked in this position for 2 out of the 3 years immediately before the nomination application was made. The delegate stated that the applicant had provided the nominee’s bank statements for the period 22 March 2016 to 22 May 2017, but that deposits in the period 31 March 2016 to 12 September 2016 were not identified as salary payments by the applicant, though there were some that appeared to have been made by TTK Admin Pty Ltd. The delegate found that there were no salary deposits recorded beyond 3 November 2016. The delegate further found the applicant’s bank statements did not appear to confirm that the claimed salary payments to the nominee. The delegate gave this information more weight than the nominee’s PAYG statement summaries for 2014 and 2015. The delegate found it was reasonable to conclude that the nominee had not been employed in the nominated position for which he held a subclass 457 visa for a total period of the 2 years out of the 3 years before the nomination application was made. The delegate therefore found that r.5.19(3)(c)(A)(II) was not met, and thus r.5.19(3)(c) was not met as a whole.

5. The Tribunal received a review application from 3 October 2017.  It was signed on behalf of the applicant by Mr Harish Bisam, a director, and was accompanied by a copy of the delegate’s decision, and an authority by which Mr Bisam appointed a registered migration agent, Mr Srinivasan Thotta, as the applicant’s representative and authorised recipient for correspondence.

6. The case was constituted to a Tribunal Member on 18 September 2019. 

7. On 9 October 2019, the Tribunal wrote to Mr Bisam, via his agent, pursuant to s.359(2) of the Act, to invite him to provide updated and current information demonstrating that the applicant met all of the relevant criteria in r.5.19(3), a copy of which was provided for reference. Examples of the kinds of the information that would assist the Tribunal were also provided. The Tribunal requested that the information be provided by 23 October 2019.

8. On 23 October 2019, the Tribunal received the following documents from the applicant:

   ·ASIC Company Summary for the applicant dated 1 February 2013;

   ·ABN current details for the applicant dated 1 February 2013;

   ·financial statements for the applicant for years 2012/2013, 2014/2015 and 2015/2016;

   ·payroll activity summaries for years 2013/2014 and 2014/2015;

   ·signed employment contract between the applicant and the nominee, Mr Mahender Vontela, dated 15 February 2016;

   ·testimonial letter about the nominee from Melbourne Telangana Forum Inc to the applicant dated 3 July 2017; and

   ·copies of nominee’s ANZ bank statements for Access Advantage Cheque Statement with Overdraft Facility account from 22 January 2014 to 23 June 2017 as evidence of transfer of wages from the applicant to the nominee’s account.

9. On 7 November 2019, the Tribunal wrote again to Mr Bisam, via his agent, to invite him to comment on or respond to information on behalf of the applicant, pursuant to s.359A of the Act. The Tribunal advised that the information in question was that the records of the Australian Securities and Investments Commission (ASIC) indicated that strike-off action was in progress in relation to the applicant due to a voluntary application for the company to be deregistered. The Tribunal advised that this information was relevant to the review, because, subject to Mr Bisam’s comments or response, it indicated that the applicant would shortly be deregistered, and if there was no evidence before the Tribunal that the company’s registration had been reinstated with ASIC, then generally speaking, a company that was deregistered ceased to exist as a legal entity: s.601AD(1) of the Corporations Act 2001. As an application for review of a nomination refusal decision could only be made by the relevant sponsor or nominator, the effect of deregistration was that there was no longer any person who had standing to apply for, or continue with, an application for review. The Tribunal further advised that it might form the view that the applicant was unable to demonstrate that it was actively and lawfully operating, or that it would have the financial capacity to be able to employ the nominee on a full time basis for at least 2 years, as required by rr. 5.19(3)(b) and (d). The Tribunal noted that if it found that the applicant did not meet either rr.5.19(3)(b) or (d), that would be – subject to Mr Bisam’s comments or response – the reason (or part of the reason) for affirming the decision under review.

10. Mr Bisam was invited to provide comments or a response to this information by 21 November 2019.  He was further advised that he could request an extension of time to do so (but should do so before 21 November 2019) and that if he did not respond or seek an extension of time to respond by the due date (or by an extended date, if approved by the Tribunal), then he would lose his right to attend a hearing on behalf of the applicant, and the Tribunal might proceed to make its decision on the available evidence without taking any further action to obtain his comments or response to the information set out above.

11. The Tribunal did not receive any response or comments, nor any request for an extension of time to do so, by 21 November 2019 from the applicant or his agent.

12. The Tribunal is satisfied that its s.359A letter was sent to the applicant’s agent, who is its authorised recipient for correspondence, to the email address nominated by the agent for correspondence. There is no evidence in the Tribunal’s electronic records that its email was not delivered or was unable to be delivered.

13. On behalf of the applicant, Mr Bisam has not responded to the Tribunal’s s.359A letter (and nor has any other authorised officer of the applicant). In the circumstances, s.359C applies and pursuant to s.360(3), no one is permitted to appear on behalf of the applicant before the Tribunal. The Tribunal has no power to permit them to appear: see Yang v MIAC [2010] FMCA 890. In the circumstances set out above – where the applicant has had the assistance of a registered migration agent but did not respond to the s.359A letter - the Tribunal has decided to proceed to a decision without taking further steps to obtain Mr Bisam’s comments on or response to the information set out in the Tribunal’s letter of 7 November 2019.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

15. The issue in this case is whether the applicant meets the requirements for approval of the nomination under the Temporary Residence Transition nomination stream set out in r.5.19(3), which is extracted in the attachment to this decision. For the nomination to be approved, all the requirements must be met.

    The application must be compliant: r.5.19(3)(a)

16. Regulation 5.19(3)(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 relevant person and occupation.

17. From the material on the Department’s and the Tribunal’s files, the Tribunal is satisfied that the nomination application was made on the approved form and was accompanied by the prescribed fee.  The Tribunal is further satisfied that the nomination application identified a need for the applicant to employ a paid employee (Mr Mahender Vontela) to work in the nominated occupation of Marketing Specialist in the business, under its direct control.

18. As the nomination application was made after 14 December 2015, it is required to include a written certification stating whether the nominator has engaged in conduct in relation to the nomination that contravenes s. 245AR(1).  The Tribunal is satisfied that this written certification was included in the nomination application.

19. Accordingly, the Tribunal finds that the requirement in r.5.19(3)(a) is met.

    Status of the nominator: r.5.19(3)(b)

20. Regulation 5.19(3)(b) requires the nominator to be or have been the relevant standard business sponsor who is actively and lawfully operating a business in Australia. In addition, the nominator, as that standard business sponsor, must not have met certain criteria relating to the operation of a business overseas, in the most recent sponsorship approval.

21. The Department’s records indicate that Futurz Pty Ltd (trading as Bisam Consulting) was first approved as a standard business sponsor between 6 February 2013 and 6 February 2016. They further indicate that a second nomination was made on 4 February 2016, and that this was refused on 6 September 2017.  The Tribunal is satisfied that the company was the standard business sponsor who last identified the nominee, Mr Mahender Vontela, and nominated him for a subclass 457 visa. The Tribunal is further satisfied that the company did not meet certain criteria relating to the operation of a business overseas in its most recent sponsorship approval.

22. In relation to whether the applicant is actively and lawfully operating a business in Australia, the Tribunal is satisfied from ASIC’s records that ASIC received an application for Voluntary Deregistration of a Company on 25 October 2019 from the applicant, and that strike off action is in progress.  There is no evidence before the Tribunal as at the time of this decision (25 November 2019) that the applicant has withdrawn its application to be deregistered.

23. Under the circumstances, the Tribunal is unable to be satisfied that the applicant is lawfully and actively operating a business in Australia, given it has applied to ASIC to be deregistered and strike off action is in progress.

24. Given the above, the Tribunal finds that the requirement in r.5.19(3)(b) is not met.

    Future employment of the visa holder: r.5.19(3)(d)

25. Regulation 5.19(3)(d) only applies to certain nominees (those described in r.5.19(3)(c)(i)). For this class of person, the regulations require that the nominee will be employed on a full time basis for at least 2 years on terms that do not expressly preclude the possibility of an extension.

26. The Tribunal is satisfied that r.5.19(3)(d) applies in this case as the applicant falls within r.5.19(3)(c)(i).

27. As noted above, the Tribunal is satisfied that the applicant applied to ASIC to be deregistered on 25 October 2019, and that strike off action is in progress as at the time of the Tribunal’s decision on 25 November 2019.

28. Given this clear indication that the applicant company is no longer active and is to be deregistered at its own request imminently, the Tribunal is not satisfied that it will employ the nominee a full time basis for at least 2 years on terms that do not expressly preclude the possibility of an extension.

    Conclusion

29. Given that the Tribunal has found that the applicant does not satisfy r.5.19(3)(b) or (d), it is unnecessary for it to go on to consider the remaining criteria in r.5.19(3).

30. The Tribunal is not satisfied that the applicant meets the requirements of r.5.19(3). The applicant has not sought to satisfy the criteria in Direct Entry nomination stream, and as such has not met the requirements in r.5.19(4). Accordingly, the nomination of the position cannot be approved. Therefore, the Tribunal must affirm the decision under review.

    DECISION

31. 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.

    Temporary Residence Transition nomination

    (3)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 person who holds a Subclass 457 … visa granted on the basis that the person satisfied the criterion in subclause 457.223(4) of Schedule 2; and

    (iii)     identifies an occupation, in relation to the position, that:

    (A)is listed in ANZSCO; and

    (B)has the same 4-digit occupation unit group code as the occupation carried  out by the holder of the Subclass 457 … visa; and

    (b)the nominator:

    (i)       is, or was, the standard business sponsor who last identified the holder of the Subclass 457 … visa in a nomination made under section 140GB of the Act or under regulation 1.20G or 1.20GA as in force immediately before 14 September 2009; and

    (ii)      is actively and lawfully operating a business in Australia; and

    (iii)     did not, as that standard business sponsor, meet regulation 1.20DA, or paragraph 2.59(h) or 2.68(i), in the most recent approval as a standard business sponsor; and

    (c)either:

    (i)       both of the following apply:

    (A)in the period of 3 years immediately before the nominator made the application, the holder of the Subclass 457 …visa identified in subparagraph (a) (ii) has:    

    (I)held one or more Subclass 457 visas for a total period of at least 2 years; and

    (II)been employed in the position in respect of which the person holds the Subclass 457 … visa for a total period of at least 2 years (not including any period of unpaid leave);

    (B)the employment in the position has been full-time, and undertaken in Australia; or

    (ii)      all of the following apply:

    (A)the person holds the Subclass 457 … visa on the basis that the person was identified in a nomination of an occupation mentioned in sub-subparagraph 2.72(10)(d)(iii)(B) or sub-subparagraph 2.72(10)(e)(iii)(B);

    (B)the nominator nominated the occupation;

    (C)the person has been employed, in the occupation in respect of which the person holds the Subclass 457 … visa, for a total period of at least 2 years in the period of 3 years immediately before the nominator made the application; and

    (d)for a person to whom subparagraph (c)(i) applies:

    (i)       the person will be employed on a full-time basis in the position for at least 2 years; and

    (ii)      the terms and conditions of the person’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)       the nominator:

    (A)fulfilled any commitments the nominator made relating to meeting the nominator’s training requirements during the period of the nominator’s most recent approval as a standard business sponsor; and

    (B)complied with the applicable obligations under Division 2.19 relating to the nominator’s training requirements during the period of the nominator’s most recent approval as a standard business sponsor; or

    (ii)      it is reasonable to disregard subparagraph (i); and

    Note Different training requirements apply depending on whether the application for approval as a standard business sponsor was made before 14 September 2009 or on or after that date.

    (g)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

    (h)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.