Go Australia Group Pty Ltd (Migration) - [2022] AATA 4022

Go Australia Group Pty Ltd (Migration) [2022] AATA 4022 (10 November 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Go Australia Group Pty Ltd
REPRESENTATIVE:  Mr Michael Thomson
CASE NUMBER:  1907020
HOME AFFAIRS REFERENCE(S):          BCC2018/915428
MEMBER:Terrence Baxter
DATE:10 November 2022
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Statement made on 10 November 2022 at 8:50am
CATCHWORDS
MIGRATION – application for approval of nomination of position – temporary residence transition stream – marketing specialist – financial capacity to provide full-time employment in position for two years – nominee was stood down during COVID pandemic but will be re-employed – nominating company provides administration and consulting services to related entity – service fee paid by entity sufficient to pay nominee’s salary – decision under review set aside
LEGISLATION
Migration Act 1958 (Cth), s 140GB
Migration Regulations 1994 (Cth), r 5.19(3)(d)(i)
CASES
JP Restaurants and Catering Pty Ltd (Migration) [2021] AATA 4694
MIBP v Jayshree Enterprises Pty Ltd [2017] FCA 264
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 Home Affairs on 15 March 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).
The applicant, Go Australia Pty Ltd, applied for approval on 26 February 2018. The applicant nominated Mrs Yuri Ida (the nominee) in the position of Marketing Specialist. From about May 2013, the applicant operated immigration consultancy, education consultancy and settlement advisory service businesses. The applicant also acquired a 50% interest in the company Referlegal Pty Ltd (Referlegal) which conducts a legal practice under the business name Phoenix Law & Associates. From March 2021, following amendments to migration legislation, the applicant transferred its migration advisory business to Referlegal and continued to conduct its other business activities.
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 nomination stream (reg 5.19(3)) and a Direct Entry 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).
In this case, the applicant has applied for approval of a nomination, seeking to satisfy the criteria in the Temporary Residence Transition nomination stream.
The delegate refused the application on the basis that the applicant’s nomination did not satisfy reg 5.19(3)(d)(i) of the Regulations because the delegate found that the applicant did not demonstrate that the nominee will be employed on a full-time basis in the position for at least two years.
The applicant lodged an application for review of the delegate’s decision with the Tribunal on 25 March 2019.
A director of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2022] AATA 4022
Decision Date: 10 November 2022

CaseChat Overview and Summary

The Administrative Appeals Tribunal (AAT) considered a dispute between Go Australia Group Pty Ltd (the applicant) and the Department of Home Affairs concerning the approval of a nomination for a Marketing Specialist position under the Temporary Residence Transition stream. The applicant sought to nominate a skilled worker for this position, but the delegate of the Minister refused to approve the nomination. The applicant subsequently sought review of this decision by the Tribunal.

The primary legal issue before the Tribunal was whether the applicant had met the requirements for approving the nomination under regulation 5.19(3) of the Migration Regulations 1994 (Cth), specifically concerning the financial capacity to employ the nominee, the genuine need for the position, and satisfactory compliance with workplace relations laws. The applicant initially also pursued an alternative ground under the Direct Entry nomination stream (regulation 5.19(4)), but this was later abandoned.

The Tribunal reasoned that the applicant had demonstrated a genuine need to employ the nominee as a Marketing Specialist, despite the transfer of its immigration consultancy business to a related entity, Referlegal. Evidence indicated that the applicant continued to provide administration and consulting services to Referlegal, and the nominee's role was essential for these services. The Tribunal was satisfied that the service fees paid by Referlegal were sufficient to cover the nominee's salary. Furthermore, the Tribunal found no evidence of unsatisfactory compliance with workplace relations laws or adverse information known to the Department. The Tribunal noted that the nominee had been stood down during the COVID-19 pandemic but was to be re-employed, and had indeed been re-employed shortly after the hearing.

Consequently, the Tribunal decided to set aside the delegate's decision and substitute a decision approving the nomination.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

The applicant produced to the Tribunal the following documents: a.A copy of the delegate’s decision. b.Submissions from the former representative dated 5 April 2022.c.An updated ASIC company summary of the applicant.d.An ASIC record of business name registration of Go Australia Concierge. e.An ASIC record of business name registration of Go Australia Visa Consultant. f.An updated ASIC current and historical company extract of the applicant. g.Financial reports of the applicant for the 2017 to 2021 financial years. h.Company tax returns of the applicant for the 2020 and 2021 financial years. i.Copies of various documents provided to the Department.j.The pre-filing report of the nominee for the 2019 and 2020 financial years. k.Notice of taxation assessment of the nominee for the 2016 to 2020 financial years. l.PAYG payment summaries of the nominee for the 2016 to 2017 financial years. m.An undated employment contract of the nominee prepared by Shimizu Kokusai Law Office. n.Notification of the applicant’s approval as a standard business sponsor for the period from 12 December 2014 to 12 December 2017. o.Copies of the receipts and confirmation of Training Benchmark A contributions dated 3 October 2014 and 16 May 2016 provided to the Department. p.An updated organisational chart. q.A statutory declaration of Mr Shimizu declared on 29 June 2022. r.An updated ASIC record of business name registration of Conveyancing Home QLD.s.ASIC record of business name registrations of Phoenix Law and Associates and Injury and Accident Lawyers. t.An acknowledgement of application from the Department dated 15 October 2014. u.Notification of the grant of the nominee’s 457 visa dated 20 April 2015. v.A financial report of Referlegal for the 2021 financial year. w.Submissions from the representative dated 6 July 2022 and 27 July 2022. x.A copy of the decision in JP Restaurants and Catering Pty Ltd (Migration) [2021] AATA 4694 (25 October 2021). Evidence presented prior to and at the hearing regarding the applicant’s operations Mr Shimizu provided comprehensive statutory declarations to the Tribunal prior to the hearing and gave evidence at the hearing regarding the applicant’s operations. He stated that the applicant had acquired a business which traded under the name ALC Visa Consultant and that it had thereafter operated various businesses including immigration consultancy. The applicant originally operated from premises in Surfers Paradise and relocated to Brisbane in 2018. As a result of changes to migration legislation which came into force in March 2021, the applicant was no longer able to operate as an independent migration consultancy business and transferred that business to a legal practice conducted by the company Referlegal which is jointly owned by the applicant and Mr Shimizu. The company now provides an administration and consultancy service to Referlegal. The applicant sponsored the nominee as a subclass 457 visa applicant in 2014. The applicant employed the nominee on a full-time basis from about July 2015. There was a significant decline in migration work following the closure of international borders early in 2020 as a result of the COVID 19 pandemic. The applicant was forced to stand the nominee down from her employment in about June 2020. Mr Shimizu stated that the applicant intended to re-employ the nominee in the immediate future after the hearing.

Decision

Reasons for decision

For the following reasons, the Tribunal has decided to set aside the decision under review and substitute a decision approving the nomination.CONSIDERATION OF CLAIMS AND EVIDENCE In the nomination application, the applicant indicated that it was applying in the Temporary Residence Transition stream. However, in a submission to the Tribunal dated 27 July 2022, the representative submitted that, in the alternative, the applicant was able to comply with reg 5.19(4)(d) and that therefore the requirements under reg 5.19(4) (the Direct Entry nomination stream) had been met. The Tribunal discussed the requirements of reg 5.19(4) with Mr Shimizu at the hearing, particularly the requirement in reg 5.19(4)(h)(i)(AAA) that the occupation is applicable to the nominee in accordance with the specification of the occupation by the Minister in the relevant instrument. The occupation of Marketing Specialist is specified in the relevant instrument, being IMMI 18/005. The occupation is subject to an inapplicability condition as follows:The position is in a business that has an annual turnover of less than $1,000,000.Mr Shimizu conceded at the hearing that the applicant’s business has an annual turnover of less than $1,000,000 and that the applicant could not meet the requirement in reg 5.19(4)(h)(i)(AAA). In his submission to the Tribunal dated 9 August 2022, the representative advised that the applicant no longer pressed its ground for review under reg 5.19 (4). Accordingly, 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 reg 5.19(3), which is extracted in the attachment to this decision. For the nomination to be approved, all the requirements must be met.Evidence presented prior to the hearing The applicant produced to the Department of Home Affairs (the Department) the following documents: a.An organisational chart from 2018. b.An undated employment contract of the nominee prepared by Phoenix Law Office. c.Market salary research. d.Correspondence and receipts for training expenditure made on 3 October 2014, 16 May 2016, 2 February 2017 and 16 February 2018.e.A job description for the position. f.An Australian and New Zealand Standard Classification of Occupations (ANZSCO) extract for the occupation of Marketing Specialist.g.PAYG payment summaries of the nominee for the 2016 to 2017 financial years. h.A submission from the applicant’s accountant dated 14 February 2018. i.Activity statements for the period from July 2017 to September 2018. j.An ASIC company summary extract of the applicant. k.A financial report of the applicant for the 2017 financial year.l.A profit and loss statement of the applicant for the 2018 financial year. m.A submission from Mr Shimizu regarding genuine need for the position dated 18 February 2019. n.A submission from the applicant in response to a request for information dated 22 February 2019. o.Bank statements of the nominee for the period from 12 January 2019 to 21 February 2019. p.Various website screenshots, Facebook pages and a newspaper ad of the applicant for Conveyancing Home, Phoenix Law, Injury and Accident Lawyers and Go Australia Visa Consultant.q.An annual superannuation statement of the nominee for the 2018 financial year. r.A bank statement extract confirming payment of a training contribution. s.Examples of promotional emails of Phoenix Law. t.An untranslated article. u.Photographs of the business premises and employees. v.An ASIC current and historical company extract of Conveyancing Home Australia Pty Ltd.w.An ASIC business name extract of Conveyancing Home QLD.x.An ASIC current and historical company extract of Referlegal. y.An ASIC business name extract of Shimizu Kokusai Law Office.z.An ASIC record of business name registration of Go Australia Visa Consultant. aa.An ASIC company statement and company summary of the applicant. bb.A current ABN Lookup form of the applicant. cc.An ASIC business name extract of Go Australia Visa Consultant and Go Australia Concierge.

Ratio Decidendi

Legal Principle Established

Accordingly, the requirement in reg 5.19(3)(f) is met.No adverse information known to Immigration: reg 5.19(3)(g) 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 regs 1.13A and 1.13B. There is no evidence before the Tribunal that there is any adverse information of the type described in the relevant definitions known to the Department about the applicant or any associated person. Accordingly, the requirement in reg 5.19(3)(g) is met.Satisfactory compliance with workplace relations laws: reg 5.19(3)(h) Regulation 5.19(3)(h) requires the applicant to have 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. There is no evidence before the Tribunal to suggest that the applicant has an unsatisfactory record of compliance with workplace relations laws of the Commonwealth or any State or Territory in which the applicant operates a business. The Tribunal is satisfied that the applicant does have a satisfactory record of compliance. Accordingly, the requirement in reg 5.19(3)(h) is met.Genuine need to employ nominee: reg 5.19(3)(i) Regulation 5.19(3)(i) requires that there is a genuine need for the nominator to employ the person, as a paid employee, to work in the position under the nominator’s direct control. The applicant initially operated immigration consultancy, education consultancy and settlement advisory service businesses. The applicant also acquired a 50% interest in the legal practice conducted by Referlegal. Following amendments to migration law in 2021, the applicant was no longer able to conduct its immigration consultancy business which was transferred to Referlegal. The applicant has continued to conduct its other businesses. Mr Shimizu was asked at the hearing why the applicant needed to employee the nominee as a Marketing Specialist having regard to the transfer of its immigration consultancy business. The Tribunal also noted that the nominee had not been employed between June 2020 and the date of the hearing. The applicant has provided evidence that nominee’s employment was terminated in June 2020 because of the decline in migration work as a result of border closures related to the COVID-19 pandemic. Mr Shimizu has stated that there has been an increase in needs for immigration advisory assistance since the reopening of national borders. He described the services being provided by the applicant to Referlegal and the duties to be performed by the nominee as Marketing Specialist to allow the applicant to provide those services. The nominee was employed full-time in the position from July 2015 until June 2020. She has been re-employed since 1 August 2022. Having regard to the terms of the General Service Agreement between the applicant and Referlegal and the services to be provided by the applicant pursuant to that agreement, the Tribunal is satisfied that there is a genuine need for the applicant to employ the nominee to work in the position of Marketing Specialist under the nominator’s direct control.