G MOUSSA & M MOUSSA (Migration)

[2019] AATA 5210

G MOUSSA & M MOUSSA (Migration) [2019] AATA 5210 (15 November 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  G MOUSSA & M MOUSSA

CASE NUMBER:  1723136

HOME AFFAIRS REFERENCE:                BCC2016/438100

MEMBER:Lilly Mojsin

DATE:15 November 2019

PLACE OF DECISION:  Sydney

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

Statement made on 15 November 2019 at 4:05pm

CATCHWORDS
MIGRATION – application for approval of nomination of position – Temporary Residence Transition stream – no attendance by applicant, nominee or agent at hearing – adverse information – nominee not performing specified job tasks – nominee paid by different legal entity – no explanation and no further information available – decision under review affirmed

LEGISLATION

Migration Act 1959 (Cth), s 360, 362B

Migration Regulations 1994 (Cth), r 5.19(1B), 5.19(3)(g)(i)

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 8 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 29 January 2016.

3. 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).

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

5. The delegate refused the application on the basis the applicant’s nomination did not satisfy s.5.19(3)(g)(ii) of the Regulations because the delegate was satisfied that there was adverse information known to the Department about the nominator and the delegate was not satisfied that it was reasonable to disregard any adverse information.

6. The applicant was represented, in relation to the review, by its registered migration agent.

7. The Tribunal wrote to the applicant on 22 October 2019 and advised the applicant that the Tribunal had considered the material before it and was unable to make a favourable decision on the information alone. The applicant was invited under s.360 of the Migration Act 1958 to appear before the Tribunal on 14 November 2019 at 2.00pm. The applicant was advised that if the applicant did not attend the hearing, the Tribunal may dismiss the application for review without any further consideration of the application or the information before it.

8. The applicant responded (through its representative). The applicant provided a number of documents for the Tribunal, detailed below. Additionally the applicant also provided a Response to hearing invitation and indicated that the applicant and the migration agent would not be attending the scheduled hearing.

9. On 7 November 2019 and 13 November 2019 the Tribunal sent an SMS reminder to the applicant regarding the hearing. On 13 November 2019 an officer of the Tribunal contacted the migration agent’s office, and was advised that the agent was currently overseas. The officer enquired whether the applicant in this review will be attending the scheduled hearing as the applicants have ticked "no" on the hearing response form. The agent’s colleague confirmed that the nomination, nominee and migration agent will not be attending as they have business commitments.

10. The Tribunal officer confirmed with the agent’s colleague that no one will be attending the scheduled hearing and no hearing postponement request was made.

11. The applicant did not attend the scheduled Tribunal hearing on 14 November 2019 at 2.00pm.

12. The Tribunal finds that the applicant is aware of the issues before the Tribunal, as the issues were set out in the delegate's decision provided by the applicant to the Tribunal, and the applicant has failed to take advantage of the opportunity to attend the hearing and present evidence and arguments in support of the application for review.

13. In these circumstances, pursuant to s.362B of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear before it.

    CONSIDERATION OF CLAIMS AND EVIDENCE

14. The applicant, applied for approval of a nominated position pursuant to r.5.19(1B). The title of the position offered is Contract Administrator and the occupation is Contract Administrator. The ANZSCO Code is 511111 and the location of the employment is in NSW. The nominee is Khushbu Kantilal Patel [nominee].

15. The applicant is a small construction company, G Moussa & M Moussa [ABN 22111989729] trading as Southern Cross Property Maintenance and Constructions. The applicant is a partnership. The business involves construction mainly granny flats, duplex homes, residential houses, some commercial and extensions.

16. The delegate stated in the decision, attached to the application for review, that on 21/07/2017, information became available to the Department regarding the applicant with regard to the nominee not performing the duties as of a Contact Administrator.

17. The Department conducted site visits to the applicant’s place of business and interviewed the nominee to verify the nominated position’s main tasks and duties as per the approved nomination under subclass UC 457 Temporary Work (Skilled) visa subclass.

18. The nominee stated her duties are:

    • Checking client online requests and enquiries from the company website.
    • Checking Housing Industry Association (HIA) contracts and referring them to the Directors. (The nominee showed four NSW HIA contacts. These were on her desk work tray. When asked to show the soft copies the nominee said she does not have access to it. The Directors login and have passwords then she inputs the data).
    • When clients arrive at the premises she takes them to the showroom which is located on the first floor and shows them the building materials such as tiles, colours, taps, sinks, bench tops, and bathroom supplies for selection. Upstairs there is a two bedroom granny flat on display along with the other building materials.
    • Progressive payments made by clients are notified by the Directors and the nominee then marks it off on contracts and then files the invoices. The nominee does not have access to check if the payments are made. Invoices are printed and placed on clients’ files.
    • Responding to enquiries on the company’s email account.

19. The Department site visit conducted on 18/07/2017 revealed adverse information regarding the applicant with regard to tasks performed by nominee, Khushbu Kantilal Patel were not consistent with her nominated role of Contract Administrator. The Department considered information gathered at the business site against duties of the ANZSCO and found that the nominee is not performing the duties of a Contact administrator. The Department found that the tasks and duties performed by the nominee are more related to administrative tasks.

20. The delegate concluded that although the nominator provided a statutory declaration that the nominee has been working with the applicant as a contract administrator, evidence gathered by the Department outweighed the applicant’s statement. The delegate was satisfied that there is adverse information known to the Department about the nominator and the delegate found that the nominator does not meet regulation 5.19(3)(g)(i).

21. The applicant provided the following documents to the Tribunal:

    ·Written submission by applicant

    ·ASIC search

    ·ABN Look up for G & M Moussa

    ·Payment Summaries for the nominee made by Moussa Enterprises Pty Ltd

22. The written submission, by Miled Moussa as company director of G MOUSSA & M MOUSSA Pty Ltd lodged in relation to the subclass 186 temporary residence transition stream application made by G MOUSSA & M MOUSSA to the Tribunal stated that as a Contract Administrator, the nominee has been delivering the following duties in line with Position Description.

    a. Solely responsible for all contractual negotiations and correspondence with relevant parties
    b. Managing paperwork, inquiries and complaints associated with contracts, projects and service
    c. Liaising directly with the Director and advising management on various diverse projects, ensuring complex, high-number and project-critical contracts are successfully managed
    d. Developing and negotiating variations to contracts and projects based on negotiations with subcontractors and suppliers of company.
    e. Organising and reporting on site meetings with subcontractors, consultants and other relevant parties to ensure expectations are negotiated and catered to.
    f. Overseeing and monitoring work done by subcontractors and writing reports on

    performance.

    g. Managing and communicating policies and strategy dealing with contracts to key

    internal and external stakeholders

    h. Providing improvement ideas and recommendations for inter-agency relations between contractors and consultants
    i. Oversee the management of rosters with the goal of maximizing sales and meeting and improving on staffing budgets
    j. Individual performance analysis of service level agreements with clients, suppliers and contractors.
    k. Set OH&S policies and procedures, monitor safe work practices.
    l. Arranged the move to the current Wetherill Park Office from pervious office.

23. The applicant also provide quote by M Squared Constructions for a property at Croydon NSW. 

    REASONS AND FINDINGS

24. The issue in this application, as identified by the delegate, is whether the applicant meets the requirements for approval of the nomination under the Temporary Residence Transition nomination stream in r.5.19(3), extracted in the attachment to this decision. For the nomination to be approved, all the requirements must be met.

25. Regulation 5.19(3)(g) requires that there is no adverse information known to Immigration about the nominator or person associated with the nominator; or it is reasonable to disregard any such information. For these purposes, ‘adverse information’ and ‘associated with’ have the meaning given in rr.1.13A and 1.13B. 

26. Regulation 5.19(3)(g) states:  

    (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;

27. According to ANZSCO - Australian and New Zealand Standard Classification of Occupations, CONTRACT, PROGRAM AND PROJECT ADMINISTRATORS plan and undertake administration of contracts, organisational programs, special projects and support services.

    Tasks Include:

    ·developing, reviewing and negotiating variations to contracts, programs, projects and services

    ·responding to inquiries and resolving problems concerning contracts, programs, projects, services provided, and persons affected

    ·managing paperwork associated with contracts, programs, projects and services provided

    ·working with Project Managers, Architects, Engineering Professionals, owners and others to ensure that goals are met

    ·advising senior management on matters requiring attention and implementing their decisions

    ·overseeing work by contractors and reporting on variations to work orders

    ·preparing and reviewing submissions and reports concerning the organisation's activities

    ·collecting and analysing data associated with projects undertaken, and reporting on project outcomes

    ·reviewing and arranging new office accommodation

28. The applicant, did not attend the Tribunal hearing. The Tribunal has been unable to discuss with the applicant and/or nominee the duties of the position. Nor has the Tribunal been able to explore with the applicant if there was any adverse information known the Department regarding the applicant or a person associated with the applicant.

29. The applicant provided to the Tribunal details of salary payments made by Moussa Enterprises Pty Ltd [ABN 22111989729] to the nominee. There was no explanation provided by the applicant as to why a different legal entity to the applicant, with a different ABN, pays the nominee’s salary. Without further information from the applicant, the Tribunal is not satisfied that the applicant is the employer of the nominee and that the nominee provides tasks for the applicant.

30. Therefore, without further information from the applicant, the Tribunal is not satisfied that the nominee undertakes the duties of Contract Administrator for the applicant, as claimed.

31. The Tribunal is not satisfied there is no adverse information known to Immigration about the nominator or a person associated with the nominator.

32. The Tribunal has also considered Departmental policy, regarding factors which may be taken into account in deciding whether it is reasonable to disregard the adverse information include but are not limited to:

    ·the nature of the adverse information

    ·how the adverse information arose, including the credibility of the source of the adverse information

    ·in the case of an alleged contravention of a law, whether the allegations have been substantiated or not

    ·whether the adverse information arose recently or a long time ago

    ·whether the applicant has taken any steps to ensure the circumstances which led to the adverse information did not recur

    ·information about relevant findings made by a competent authority in relation to the adverse information, and the significance attached by the competent authority to the adverse information.

33. As the applicant and/or the nominee did not attend the hearing, the Tribunal is unable to explore whether it is reasonable to disregard any adverse information known to the Department about the nominator or a person associated with the nominator.

34. The Tribunal finds r.5.19(3)(g) is not met.

35. Further, as the applicant has provided salary payments made to the nominee by a different legal entity to the applicant and as the applicant has not explained these payments, without further information from the applicant, the Tribunal is not satisfied that the nominee as a 457 visa holder, has been employed full time in Australia in the position for which she holds a Subclass 457 visa for at least two out of the three years immediately before the nomination application. 

36. Having regard to the evidence before it, the Tribunal finds that the requirements of r.5.19(3)(c)(i) have not been met.

37. Therefore, the Tribunal must affirm the decision under review.

    DECISION

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

    Lilly Mojsin
    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.