G & G GROUP PTY LTD (Migration)

G & G GROUP PTY LTD (Migration) [2017] AATA 748 (9 May 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  G & G GROUP PTY LTD
CASE NUMBER:  1607796
DIBP REFERENCE(S):  BCC2015/2942395 bcc2015/3194679
MEMBER:Tony Caravella
DATE:9 May 2017
PLACE OF DECISION:  Perth
DECISION:The Tribunal affirms the decision under review to refuse the nomination.

Statement made on 09 May 2017 at 8:48am

CATCHWORDS
Migration – Approval of nominated positions (employer nomination) – 2 years full time – Financial viability of business – Credibility issues with financial statements

LEGISLATION
Migration Regulations 1994, Schedule 2, 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 11 May 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 8 October 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 Direct Entry Nomination stream.
The delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19(4)(d) of the Regulations because the delegate found the applicant has not provided evidence that the nominee will be employed on a full time basis in the position for at least 2 years.
The applicant applied to this Tribunal for a review of the delegate’s refusal on 30 May 2016. A copy of the delegate’s decision record accompanied the application for review. Written submissions with various attachments were lodged with the Tribunal on 7 and 9 March 2017.
Mr Vishal Chopra, Director and Marketing Executive for G&G Group Pty Ltd (the applicant) appeared before the Tribunal on 21 April 2017 to give evidence and present arguments. The Tribunal also received oral evidence from the nominated employee in this case, Bijalben Chandrakant Kapatel. The Tribunal hearing was conducted with the assistance of an interpreter in the Hindi and English languages.
The applicant was represented in relation to the review by its registered migration agent.
At the hearing, the Tribunal invited Mr Chopra to give evidence relevant to the review of the nomination refusal. He began by introducing himself as the sole director for G&G Group Pty. Ltd. He told the Tribunal that he understood that the reason why the nomination was refused was related to the delegate’s finding as to the financial aspects of the nomination.
Mr Chopra told the Tribunal the company has been operating since 24 July 2015, and the nominated employee, Mrs Kapatel has been working since then. Mr Chopra said he took over the business in 2014.
Mr Chopra referred to the organisational structure of the business operated by G&G Group Pty Ltd. He confirmed that it operates Mother’s Kitchen Curry House and Shop Local North, however Shop Local South is now closed. He said they are focusing on Shop Local North.
Mr Chopra told the Tribunal that he first started the restaurant business, followed by Shop Local North. He said his family and the nominee operates the business successfully.
The Tribunal referred Mr Chopra to the evidence provided in the prehearing submission which indicates that three of the positions in the organisation structure are not paid, and that Mr Chopra himself had given a statutory declaration dated 4 February 2016 indicating that he draws no director’s wages from the company. In the circumstances, the Tribunal might conclude that the business is not necessarily a viable one. Mr Chopra told the Tribunal that his wife and his brother have their own business but they also work for the G&G Group Pty Ltd. He told the Tribunal that he does not have parents and he is the oldest and he did a lot for his brother. He said his brother works as a courier, and his wife operates a pest control business, and as a family they all help out each other.
The Tribunal explained to Mr Chopra that it must consider all the objective evidence in determining whether the nomination should be approved. Mr Chopra submitted that he has financial evidence to prove that he has been paying the nominee salary since 2015.
In relation to not drawing any income from G&G Group Pty Ltd, Mr Chopra said that he draws wages from his wife’s pest control business. When asked how much he draws from the business, he said he thinks it is about $3000 per month. The Tribunal put it to Mr Chopra that he has not provided any evidence of the financial records of the pest control business and that as such it could not be satisfied with his claims in this regard. He told the Tribunal that he had not provided financial records for the pest control business because he did not think that they were relevant. He said that his wife operates the pest control business and that it does not pay the nominee, Mrs Kapatel’s wages. The Tribunal again explained to Mr Chopra that it might consider the financial records of the pest control business are in fact relevant to assessing the nomination if it is the case as he seems to be suggesting that he is deriving income from it and none from the nominating entity. The Tribunal invited Mr Chopra to submit financial reports for the pest control business which he told the Tribunal trades as Eco-Friendly Pest Control.
When the Tribunal referred Mr Chopra to the evidence that there appeared to be three workers in the organisation who are paid nothing for their efforts, Mr Chopra responded by saying that he pays three casual staff as well. He said that this is a family business and there will be a time when it will grow and they will all benefit.
Mr Chopra told the Tribunal that Mother’s Kitchen Curry House operates from premises in Canning Highway and Shop Local North operates from premises in Malaga. He told the Tribunal that Mother’s Kitchen Curry House has two casual cooks on the payroll and one casual kitchen hand on the payroll. The rest of the people who work there are family members. In relation to Shop Local North, the nominated employee Mrs Kapetal and Saurabh Gupta are employed by that entity and both are on the payroll.
The Tribunal asked Mr Chopra to describe the activities of the nominated employee. He said she performs the duties of a customer service manager. He said that as a manager she works with his brother who coordinates the shop. He said if his brother has any questions he asked the nominee. She deals with customer complaints and does market research. He said she also prepares procedures and policies. The Tribunal asked him how extensive procedures and policies would have to be for the business operating at is particular level of operation at the present time. Mr Chopra said that at the moment they are also doing catering and there is a lot of competition.
The Tribunal asked Mr Chopra how he recruited the nominee. He said that she applied for the job when they advertised the position. The Tribunal asked him whether he knew the nominee before she applied for the position. He said she worked for his brother in a similar position, and then also did work experience with Mr Chopra. He said when he advertised for the position she was among those who applied. The Tribunal explained to Mr Chopra that it was having some difficulty in following his evidence and reminded him that it needs to be satisfied with his evidence and its credibility in making its findings.
The Tribunal asked Mr Chopra to explain what his particular role and activities are in the business in comparison to the position he described for the nominee. He said his job is to oversee the business. He said he also helped in his brother’s courier business, and that he also helped his wife’s pest control business. The Tribunal referred Mr Chopra to evidence he had given earlier in the hearing which suggested he did not have a significant role in the pest control business and that this appeared to be inconsistent with what he was now saying. He then said he does the marketing for the pest control business.
The Tribunal invited Mr Chopra to comment on any aspect of the delegate’s decision record which he considered relevant. He responded that this is his family business and for the last two years they have paid the nominees salary. He said if the nominee does not continue the business will collapse. When asked why the business would collapse in those circumstances, Mr Chopra said that she has been working for two years and she knows all the clients and all the procedures. He said that if she leaves he would have to start from scratch and that he would be scared to start again.
The Tribunal again asked Mr Chopra if there was any comment he wanted to make in relation to the delegate’s decision record. He repeated that he has been paying the nominee for the past two years. The Tribunal pointed out to Mr Chopra that it must consider whether employment would be provided in the coming two years, not only the fact of whether employment had been provided in the previous two years. Mr Chopra replied by saying that if he could do it in the past he can do it in the future.
The Tribunal referred the applicant to the financial statements which indicates on the one hand total sales of $408,196, and in another place total sales for the same period was $371,087. It asked him whether he could explain this variance. He said he was unable to explain and requested time to provide information from his accountant.
After a short adjournment, the Tribunal asked Mr Chopra whether he kept separate accounts for the different components of the business, that is separate financial accounts for Mothers Curry Kitchen House and for Shop Local North. The Tribunal also asked Mr Chopra if he could explain the entry in the balance sheet for the year ended 30 June 2016 showing “Other loans” of $174,594. Mr Chopra said that he took a loan to operate the business. The Tribunal put it to him that in the balance sheet this appears to be shown as an asset rather than a liability. Mr Chopra then said that he borrowed some money but he did not think it was that much. He asked for time to have his accountant explain this entry. Having observed Mr Chopra’s apparent surprise at the magnitude of the loan, the Tribunal put it to him that if he is surprised when it is his business, then the Tribunal might have some concerns as to the credibility of these accounts.
In submissions provided to the Tribunal, and in particular in a Statutory Declaration sworn by Mr Chopra on 4 February 2016, Mr Chopra had claimed that he is also involved in a “lead generation business” and appeared to infer that this was part of the assets of G&G Group Pty Ltd. It asked him to explain what this business is. In response, Mr Chopra said this is his wife’s business and it is online and it is doing very well. He said they are thinking to include it in their business. The Tribunal invited him to provide further information about this in post hearing submissions.
The Tribunal referred Mr Chopra to his prehearing written submission dated 3 March 2017 where it states that on 2 December 2015 a natural justice letter was sent to him by the Department. According to the submission, that letter stated that on 28 October 2015 an allegation was received by Immigration that Mr Chopra offered to provide a false employment reference to a third party for cash and that Mr Chopra may have been working with a migration agent in order to facilitate this. The Tribunal invited Mr Chopra to comment on this. He responded by saying this allegation came up before he was a director of G&G Group Pty Ltd. The Tribunal then drew his attention to the fact that the prehearing submission appears to indicate that the allegation was made against him personally rather than in his role as a director. He then said that all the information he has, has been given to the Department in an explanation that was provided in writing. The Tribunal invited him to provide a copy of his response to this matter which he claims to have sent to the Department on 15 January 2016. A copy of the response was not attached to the prehearing submission, despite the submission stating that a copy of it was attached. The Tribunal again invited Mr Chopra to comment on this allegation. He said his brother had a partnership with a man and they were not doing well and the partner then made an allegation. He then said his partner made an allegation. He then said the allegation was made against his brother by a partner and that it was a false allegation.
The Tribunal referred Mr Chopra to a letter from his accountants, Universal Taxation Services, where they refer to discrepancies and corrections in the entities’ accounts. It invited Mr Chopra to clarify these. He said there were some mistakes but they have now been corrected. When asked whether he knows who made the mistakes, he said his accountant made the errors. The applicant’s representative at this point submitted that Mr Chopra had changed accountants with the previous accountant being B.G Gupta (Canning Vale) and his current accountants are Universal Taxation Services. Mr Chopra said he had changed accountants because he found his previous accountants to be very busy and which prevented him from being able to see them when he needed to.
Mr Chopra told the Tribunal that he is actively and lawfully operating the business and that he pays his taxes and wages.
Mr Chopra told the Tribunal that his business does not include activities relating to the hiring of labour to other unrelated businesses and that the nominee would not be employed by any unrelated business.
Mr Chopra told the Tribunal that he wants the position to be permanent and wants the nominee to continue working for his business for a long time.
He told the Tribunal that the nominee would not be paid less favourably than any Australian citizen or an Australian permanent resident. He said they would be paid the same if they do the same job. When asked whether he employs any Australian citizens or Australian permanent residents, Mr Chopra said that his business will grow and he will employ Australian citizens. He said at this stage only family members work for the business, and the two nominees, that is Mrs Kapetal and Mrs Gupta.
The Tribunal invited Mr Chopra to make further comment on the criteria in r.5.19(4)(f) which requires the Tribunal to be satisfied that there is no adverse information known to immigration about the nominator or a person associated with the nominator, or that it is reasonable to disregard such information. It invited him to make further comment on this particularly in light of the claim discussed earlier in the hearing that there had been allegations made about Mr Chopra offering to provide a false letter of reference for cash. Mr Chopra said that further submissions would be made in writing after the hearing.
The Tribunal invited Mr Chopra to address the criteria in r.5.19(4)(g) which requires the Tribunal to be satisfied that 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. Mr Chopra replied by saying they live in accordance with the laws and he has no record of any breaches of any workplace relations laws.
The Tribunal invited Mr Chopra provide further evidence or comment on the criteria in r.5.19(4)(h)(ii)(B) which requires the Tribunal to be satisfied that there is a genuine need for the nominator to employ a paid employee to work in the position. Mr Chopra said the nominee has been managing the two businesses and she handles it well.
The Tribunal asked Mr Chopra give detail on why the position cannot be filled by an Australian citizen or an Australian permanent resident who is living in the same local area. He said when he advertised the position 22 persons applied. He said he shortlisted seven people of whom three were residents. He said one was not qualified, another wanted more money, and the other did not have the qualifications. He said the necessary qualifications are a diploma or one years work experience. He told the Tribunal that the nominee has a Diploma in Business Management and a Diploma in Digital Media and a Certificate III in Printing and Graphics.
In concluding, Mr Chopra submitted that this is a family business and they work very hard and that they will pay wages to the nominee for the next two years.
The applicant’s representative submitted that the structure of the business is such that there is significant subsidisation by the family to advance the business of G&G Group Pty Ltd. In particular, through the contributions of Mr Chopra himself, his brother Robin, and Mr Chopra’s wife. She submitted the applicant operates a variety of businesses including restaurant, media, and pest control and they want to advance the business. She submitted the others are supporting themselves from other sources. She confirmed that another nomination refusal for the same business for a nominee, Saurabh Gupta, has recently been affirmed by the AAT (differently constituted).
The Tribunal invited the nominee, Mrs Kapatel to provide detail of the work she does with the applicant. She said she handles customer feedback and complaints. She said she develops and implements procedures and policies. She said she researches competition and gets feedback from customers. She said she discusses with the owner and his brother Robin how to improve services and how to change to advance the business. She said she has been employed with the business for two years and it has been positive. She also confirmed that an earlier nomination in which she was nominated by Avenewz Pty Ltd had been refused by the Department.
The Tribunal agreed to allow 14 days (until 5 May 2017) for further written submissions addressing the concerns put to Mr Chopra at the hearing.
On 28 April 2017, the Tribunal received from the applicant’s migration agent various documents, including:
a)A copy of an ASIC Record of Registration for Business Name for Ecofriendly Pest Control Perth;
b)Printed pages from what appears to be an internet entry for Ecofriendly Pest Control Perth, including testimonials;
c)Financial statements for Neetu Chopra for year ending 30 June 2016. The profit and loss statement for this for this person for this period shows revenue from sales of $135,650 and a net profit of $11,482.47 after deducting expenses of $124,198.44. The balance sheet as at 30 June 2016 shows the total assets to be $5,791.45 and total liabilities to be $13,452.98 leaving Net Assets (Liabilities) to be ($7661.53);
d)A copy of a natural justice letter issued on 2 December 2015 to G & G Group Pty Ltd from the Department of Immigration & Border Protection. This invites the applicant to comment on adverse information which had been identified by the Department and which suggested that Vishal Chopra offered to provide a false employment reference to a third party for cash. A reply dated 14 January 2016 to this natural justice letter is included. The reply denies that Vishal Chopra provided false employment reference to a third party for cash;
e)A letter dated 26 April 2017 from Universal Taxation (Tax Agent and Public Accountant) is included and states the loan of $174,594 in the financial statements is “Directors Loan Account”. The letter states “It is not an external loan but Director’s loan. This is commonly used in SME (Small to Medium Enterprises). Any cash income received during the year which is not deposited in the bank account is generally processed through this account and summarily any expenses are paid in cash can be processed through this account.” The letter concludes by providing a summary for the 2016 financial year as:
Net income: $371,087.10
GST Amount: $37,108
Gross Income: $408,196.00
f)Financial statements for the year ended 30 June 2016 for G & G Group Pty Ltd. These include profit and loss statements for each of the entities comprising the applicant, shown under “Restaurant” and “Shop Local”. These show a total net profit of $38,472.95 for the year ended 30 June 2016 for G & G Group Pty Ltd. The balance sheet for the year ended 30 June 2016 shows, amongst other things, cash at bank of $4,523.79 and a director’s loan of $174,594.85 as a current receivables. Total current assets are shown as $184,270.64 and total liabilities are shown as $118,737.45;
g)Payslips for a Needu Chopra, who is shown to be a Childcare Trainer with Health Careers, are also included;
h)Several pages printed from the internet showing basic information on Zero Cost Leads. An ASIC Record of Registration for Business Name for Zero Cost Leads is included, this shows the business name holder is Neetu Chopra;
i)Projected financial statements for coming three years are provided. The first shows projected profit before income tax to be $25,543, the second shows it to be $32,708, and the third year is shown to be $45,288.

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.
As a preliminary matter, the Tribunal found Mr Chopra’s evidence was characterised by his inability to answer a number of crucial questions that were put to him, and an inability to explain aspects of his business which the Tribunal considered he would have known in detail. For example, he was unable to explain a significant amount of $174,594 which appeared in the accounts for the business as a director’s loan. It also found his evidence in respect of how he recruited the nominee appeared evasive. In particular, when the Tribunal asked Mr Chopra how he recruited the nominee, he responded by saying that she applied for the job when they advertised the position. However, when pressed on this point, it eventually was revealed that the nominee had worked for his brother and then also did work experience with the applicant business.
Term of employment of the visa holder: r.5.19(4)(d)
As indicated above (at 41), all the requirements of r.5.19(4) must be met for the nomination to be approved. The Tribunal therefore first considered the issue in dispute, that is, the criterion that the delegate found was not satisfied. In this case, the delegate found the Regulation 5.19(4)(d) was not satisfied. 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 Tribunal notes from a copy of an Employment Agreement between the nominating employer and the nominee Bjalben Chandrakat Kapatel submitted to the Department and held on the Department’s file (at folios 225 to 231) that it states “This offer is for a minimum of 2 years and continuous until such time as either party provide a termination notice”. Notwithstanding this clause appears next to the title “Date of Termination”, and refers to the “offer” being for a minimum of 2 years continuous, it would appear that this is in fact referring to the term of the employment agreement rather than to an offer. Based on this interpretation, and a review of the cited Employment Agreement, the Tribunal finds that the terms and conditions of employment provide for the agreement and for the employment to continue for at least two years, and the terms do not expressly exclude the possibility of an extension.
The Tribunal then considered whether, in accordance with Regulation 5.19(4)(d), the nominee will employed in the nominated position for at least 2 years full time. The Tribunal must be satisfied, based on all the evidence before it, that the nominator has sufficient financial capacity to comply with the requirement to provide the nominee with at least 2 years of full-time employment. A simple statement that they can provide the 2 years of full-time employment is not sufficient evidence of the employer's ability to comply with this requirement. In assessing the nominating entity’s capacity to comply with this requirement, the Tribunal considers the financial capacity should relate to the entity lodging the nomination only, and not to financial information relating to other entities that may be related to or associated with the nominator. In this case, Mr Chopra gave evidence that he does not draw wages or a salary from G & G Group Pty Ltd but derives his income from the pest control business operated by his wife. His evidence also was that other members of his family, namely his wife and his brother, work for G & G Group Pty Ltd but do not receive payment for doing so. The Tribunal accepts this evidence, and Mr Chopra’s evidence that this is a family business. The Tribunal considered this evidence and finds that this amounts to a significant subsidization of G & G Group Pty Ltd. It also finds that this leads to an under-reporting or understating of the true costs of its operations, and by extension an over-reporting of profits. Based on these circumstances, the Tribunal does not have confidence that the financial statements that have been submitted accurately reflect the true position of the financial capacity of the nominator, G & G Group Pty Ltd.
The Tribunal considered the post hearing information submitted by the applicant. This includes submissions made by the accountants, Universal Taxation (Tax Agent and Public Accountant). Amongst other matters, the applicant’s accountants provided projected financial statements for three years. These projections show projected profit before income tax to be $25,543, $32,708, and $45,288 for the coming three years. However, the Tribunal notes that while these projections are prepared by the applicant’s accountants, and are in the format of a projected profit and loss statements and a projected balance sheet statements, there is no explanation of the basis of these projections, or the assumptions made in arriving at the estimates. The absence of satisfactory explanation, coupled with the evidence of the non-payment or subsidization of family members as discussed in the previous paragraphs, leads the Tribunal to conclude it cannot place reliance on the financial statements, that is, the historical financial records and the projections. Further, the Tribunal notes the financial statements for Neetu Chopru are stated as being unaudited, and the notes to those financial statements provides an “assurance disclaimer” where the accountants writes “We accept no responsibility for the contents of the special purpose financial statements.”
The Tribunal also considered the financial reports (profit and loss statement and balance sheet) for Neetu Chopra for the year ended 30 June 2016. Mr Chopra claimed at the hearing that he was drawing around $3,000 per month from his wife’s business. However, the Tribunal notes there is no entry for salary or wages expenses in these accounts, and the total drawings for the reported period is only $19,144. The Tribunal finds this raises further doubt as to the reliability of the claims and evidence presented to the Tribunal in this case.
In relation to the matter which was discussed at some length with Mr Chopra at the hearing, that is the accounting treatment of a loan for $174,594, the applicant’s accountants have submitted that this refers to “Directors Loan Account”. The accountants have submitted that it is not an external loan but a Director’s loan. It is further submitted that this is commonly used in SME (Small to Medium Enterprises) and that cash income received during the year which is not deposited in the bank account is generally processed through this account and summarily any expenses are paid in cash can be processed through this account. The Tribunal notes this explanation. However, based on all the evidence before it, and having regard to the under reporting of costs in the financial statements, as discussed above, and in light of the absence of a clearly described basis for the financial projections, the Tribunal is not satisfied that the existence of this Director’s Loan Account in the accounts makes any significant difference to the overall financial viability of the nominating entity in the context of r.5.19(4)(d).
The Tribunal considered Mr Chopra’s verbal assurances that the nominee would continue to be employed and continue to be paid for at least two years and into the foreseeable future. It also considered his submission that as he has already employed the nominee for two years, he is able to continue employing her. It also considered his submissions that she is valuable to the operations of the business. It also had regard to Mr Chopra’s evidence that the other nomination for Surabh Gupta has recently been refused by the Department and on review by the AAT (differently constituted). The Tribunal accepts that the refusal of both nominations may give rise to practical difficulties in the business operations, however, it considers that these are not likely to be long term and could be addressed by temporary recruitment in the short term. The Tribunal notes the expression of intention and expression of preference by Mr Chopra to continue employing the nominee, and while this is relevant, the Tribunal must also place weight on the objective evidence, including the evidence contained in the form of the financial statements, which in this case the Tribunal is not satisfied are reliable.
Having considered the relevant evidence in this case, for the reasons set out in the preceding paragraphs, the Tribunal is not satisfied that it can rely on the evidence submitted to it is sufficient to indicate the nominee will be employed in the nominated position for at least 2 years full time.
Accordingly, the requirement in r.5.19(4)(d) is not met. As all the criteria in r.5.19(4) must be satisfied for the approval of the nomination, and as the Tribunal finds that s.5.19(4)(d) is not satisfied, the nomination must be refused. It is therefore not necessary for the Tribunal to consider or make findings in relation to the other criteria in r.5.19(4).
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 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.
Tony Caravella
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;
(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;
(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).

[2017] AATA 748

9 May 2017

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction