GOGLOBAL EDUCATION PTY LTD (Migration)

[2018] AATA 3478

GOGLOBAL EDUCATION PTY LTD (Migration) [2018] AATA 3478 (24 July 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  GOGLOBAL EDUCATION PTY LTD

CASE NUMBER:  1615668

DIBP REFERENCE(S):  BCC2015/3402893

MEMBER:Bridget Cullen

DATE:24 July 2018

PLACE OF DECISION:  Brisbane

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

Statement made on 24 July 2018 at 4:47pm

CATCHWORDS
Migration – Employer Nomination – Nomination of a position – Adverse information – Conflicting information – Sole employee – Length of time with no paid employee – Site inspection – Take home pay – Not commenced employment – No clarity on the work to be performed – Employs independent contractor to do all roles – Decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 245AR
Migration Regulations 1994 (Cth), rr 1.13A, 1.13, 5.19

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 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).

2. The applicant applied for approval on 18 November 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).

3. In this case, the applicant has applied for approval of a nomination, seeking to satisfy the criteria in the Direct Entry Nomination stream.

4. The delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19(4)(f) of the Regulations because the Department considered that there was adverse information known to the department about the nominator and/or a person associated with the nominator that was not reasonable to disregard.

5. Mr Jaspal Sandhu appeared as the sole director of Goglobal Education Pty Ltd (“Goglobal”) before the Tribunal on 14 February 2018 to give evidence and present arguments. The hearing was conducted jointly with the related visa application for the proposed nominee, Mr Ranvir Singh, who also appeared to give evidence and present arguments.  

6. Mr Sandhu is also a registered migration agent, and the Director of Fivewater Migration Pty Ltd.  Mr Sandhu represented the applicant, as well as Mr Singh, at the time these matters were before the Department.  Before the Tribunal, the applicant, and Mr Singh, were represented by another registered migration agent, who is the owner of Fivewater Migration Pty Ltd.  The representative did not attend the Tribunal hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. 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.

9. The Department refused the application because it considered that Regulation 5.19(4)(f) was not met. Regulation 5.19(4)(f) 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.

10. In the Department’s decision, a copy of which was provided to the Tribunal by the applicant in conjunction with the review application, it is recorded that Departmental officers conducted a site visit on 27 June 2016.  The officers met with the director of the applicant, GoGlobal Education Pty Ltd, Mr Jaspal Sandhu, and the nominee, Mr Ranvir Singh.  Mr Sandhu was also, at the time of the site visit by the Department, the migration agent acting for Mr Singh, though his company, Fivewater Migration.

11. The Department interviewed Mr Singh in relation to the duties he was to perform in the nominated role, and about the circumstances surrounding his visa application.  The Department records that Mr Singh advised that he was not able to work in the nominated role, as he did not have work rights, but that he was “spending time” at the applicant company in order to learn about the role and business operations. 

12. The Department concluded that Mr Singh was not able to provide detailed information in relation to the role.  Following the interviews with Mr Sandhu and Mr Singh, the Delegate noted in the decision record that:

    “Mr Singh was not clear on the expectations of the role, was unsure where he would be working from, had difficulties explaining who other staff were and their roles, and provided other information that was not consistent with that provided by Mr Sandhu.  Mr Sandhu was also unclear on who currently performs the role, and why the role is required.”

13. The Delegate also records that there were a number of concerns raised by officers regarding conflicting information provided at the time of interview:

    ·Mr Singh advised he was being offered a salary of $52,000 per annum whereas Mr Sandhu stated the salary was $60,000 per annum;

    ·Mr Singh stated that he utilised the Fivewater Consultants Migration Agency for his application, but dealt with Amit, one of Mr Sandhu’s agents, and not Mr Sandhu directly.  Mr Sandhu, however, advised that he represented Mr Singh in relation to the application.

    ·Mr Singh stated that he has paid $8,000 in DIBP fees plus $2,500 professional fees to Fivewater Consultants Migration Agency in relation to his application.  However, Mr Sandhu stated that Mr Singh paid no money or professional fees for his application, and that the applicant company, GoGlobal, had covered the costs.

14. During the hearing, the Tribunal invited the applicant to provide information about its application, and in response to the concerns that had been raised by the Department in relation to the nominated position.  The Tribunal invited the applicant to provide information about the nature of the role, and to provide information in response to the concerns recorded by the Delegate in relation to the conflicting information recorded at the site interview.  The Tribunal explained that, if it relied on this information, it might find that the applicant did not meet the requirements of paragraph 5.19(4)(f), and would then have no option other than to affirm the decision under review. The Tribunal also explained that, as this is a merits review, that the Tribunal was not bound by the findings of the Department, and would consider the matter afresh. 

    The application is compliant: r.5.19(4)(a)

15. Regulation 5.19(4)(a) requires that the application for approval must be in the approved form, must be accompanied by the prescribed fee, and, where applicable, must include the required written certification relating to conduct that contravenes s.245AR(1). The application must also identify a need for the nominator to employ a paid employee to work in the position under their direct control.

16. The applicant seeks to employ the nominee, Mr Singh, in the position of Program or Project Administrator (ANZSCO 511112), with a proposed base salary of $60,000.00, with a total remuneration of $65,700.00 per annum, for a period of at least two years.

17. The applicant has provided the Tribunal with a copy of the Department’s decision, in conjunction with the application for review.  The Tribunal also has the Departmental file before it, and has also considered the submissions lodged by the applicant in the Tribunal on 14 February 2018, in making its decision. 

18. Goglobal commenced operations on 17 March 2010, and is, according to the applicant, comprised of 3 different business entities – (1) Education Alliance; (2) Kingsford Training; and (3) RPL Company.  The applicant says that it provides assistance to educational institutions with “compliance” with Australian Skills Quality Authority “ASQA” course requirements. 

19. The applicant acknowledges that it has no employees. If approved, the nominee, Mr Singh, would be the sole employee of the applicant.

    The evidence of Mr Singh, the nominee

20. Mr Singh confirmed that he had not started the role at Goglobal, despite his having no work restrictions on his current visa.  Mr Singh said he was just “staying home”, and that he lives with his brother, who supports him, and his wife works.  Mr Singh said that it is in his contract that he is to commence work once the nomination is approved.  He assumes Mr Sandhu is performing the nominated role himself, at present.

21. In Mr Sandhu’s written submissions dated 13 February 2018 and filed in the Tribunal on 14 February 2018 on behalf of the applicant, Goglobal submits that, “I am helpless, I need to manage my life and can not perform duties of managing every project for GOGLOBAL EDUCATION PTY LTD. We need services of Ranvir Singh at any cost.”

22. As Mr Sandhu could have commenced work in the nominated role, and considering the length of time that has now passed with no paid employee in the role (more than 2-years from the date of application), the Tribunal has some difficulty accepting that there is a need for the applicant to employ a paid employee to work in the position under its direct control. 

23. If the nominated position was approved, Mr Singh says he would be looking after all of the “Colleges’ compliance, managing the team, exploring the contract”.  He says that Goglobal provides education support to co-partners, external compliance to ASQA, and recruits both domestic and international students through marketing, websites, and seminars.  He says that, on a day-to-day basis, he would be, “liaising with trainers and accounts department, money going in and out, assisting staff and contractors”. Mr Singh said he “will be working with trainers, the accounts team, and the admin team”. 

24. Mr Singh said he would be based in the Brisbane office, mainly working for Queensford College Training.  Mr Singh said Goglobal also has branches at Lismore, Toowoomba and Ipswich.  Mr Singh was vague about the reasons he would need to travel, and potential locations.  Mr Singh says that Queensford has subcontracted to Goglobal; they have multiple campuses.  He would be “supervising operations”; “hiring rooms and furniture for contracts”; and that “Goglobal does all for Queensford College.”

25. Mr Singh told the Tribunal that he would be “responsible for admin staff, trainers, and marketing”, despite also having told the Tribunal that all of Goglobal’s trainers were “independent contractors.”  When the Tribunal invited Mr Singh to explain this discrepancy in his own evidence, he did not explain and deflected the Tribunal’s question, suggesting that Mr Sandhu “could explain his business model”.

26. Mr Singh says he is to start with pay of $65,000 per annum, comprised of $55,000 plus superannuation.  He says that the reason he told the Departmental officers at the site inspection he was to be paid $52,000 was that the officer asked him what he would be taking home.  He says he told Mr Sandhu that he needed to have “minimum 1000 in his account”.  The Tribunal does not accept Mr Singh’s explanation that his contract was negotiated on the basis of take home pay, as opposed to annual salary, as that would be an unconventional methodology.  The Tribunal acknowledges that Mr Singh has said that during the interview, there were a “few answers “going left, right and centre” because he was nervous.  Regardless, the Tribunal does not consider that Mr Singh’s evidence on this point is credible.  Had he been genuinely concerned about what his earnings were on a weekly basis, he would have taken steps to commence employment in the role, or obtained other work, and he has not done so. 

    The evidence of Mr Sandhu, Director of Goglobal

27. The Tribunal was provided by the applicant with what purports be the 2015 Company Tax Return for “Goglobal Education Pty Ltd”.  The Tribunal asked the applicant to confirm the ABN of Goglobal, as the ABN on the return (53 139 100 413) appeared to correspond to a company called IVM Constructions Pty Ltd.  Mr Sandhu said he had never heard of IVM Constructions Pty Ltd.  The return indicates that the “Description of Main Business Activity” is “Concrete Cutting Supplies Retailing”.

28. The Tribunal asked Mr Sandhu to explain exactly what Goglobal does, and why the trading names associated with the ABN appear to be continually changing.  Mr Sandhu indicated that he gets “lot of opportunities;” and further that he is, “a media personality who appears on radio, and he gets lots of opportunities as he is credible and honest”.  Mr Sandhu explained that, “because he is a chartered accountant, he sets up new names for all of the new opportunities, business to business”.

29. Mr Sandhu was unclear about where Mr Singh would be required to work.  He acknowledged that Goglobal has no other employees, other than Mr Singh if the nomination is approved.  Mr Sandhu explained that everyone who works for Goglobal is employed on a contract basis.  According to Mr Sandhu, they all have their “own business” so they can make “more money”.  He says he is “lucky” to find Mr Singh, as everyone else wants to work for themselves.

30. If approved, Mr Singh would respond to Mr Sandhu.  Mr Sandhu said that he would work mainly for “Vibe College” and would supervise the employees of Vibe College.  According to Mr Sandhu, Goglobal assists Vibe College, Queensford College, and other educational institutions to manage all of their operations. He says he is presently doing what would become Mr Singh’s role, by himself, and it is creating personal stress for him.  He says he transferred a “Project Coordinator” from Mackay to Brisbane.  This Project Coordinator, an independent contractor, is not able to work on this project, because he is already busy working on a different project. 

31. Mr Sandhu explained that Goglobal takes “business opportunities” that others cannot identify, and “runs, coordinates, and do everything”.

32. Ultimately, the Tribunal has been left with little understanding, save for generic, vague, and inconsistent descriptions about what the nominated role entails.  There is no clarity about the day-to-day work to be performed, and there is no explanation about why the Goglobal could not engage another independent contractor to perform the role, in circumstances where it has no paid employees, and has recently transferred an independent contractor from Mackay to Brisbane.

33. On the evidence, the Tribunal cannot be satisfied that a business with no employees, which operates a business model employing independent contractors to perform all roles, has a need to employ a paid employee to work in the position of Program or Project Administrator (ANZSCO 511112) under its direct control. 

34. Accordingly, the requirement in r.5.19(4)(a) is not met. As the applicant has not satisfied the criteria in r.5.19(4)(a), the Tribunal is not required to conduct an assessment of the remaining criteria in r.5.19(4).

35. 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

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

    Bridget Cullen
    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;

    (AAA)the occupation is applicable to the person identified under subparagraph (a)(ii) in accordance with the specification of the occupation;

    (B)either:

    (I)the nominator’s business has operated for at least 12 months, and the nominator meets the requirements for the training of Australian citizens and Australian permanent residents that are specified by the Minister in an instrument in writing for this sub-sub-subparagraph; or

    (II)the nominator’s business has operated for less than 12 months, and the nominator has an auditable plan for meeting the requirements specified in the instrument mentioned in sub-sub-subparagraph (I); or

    (ii)      all of the following apply:

    (A)the position is located in regional Australia;

    (B)there is a genuine need for the nominator to employ a paid employee to work in the position under the nominator’s direct control;

    (C)the position cannot be filled by an Australian citizen or an Australian permanent resident who is living in the same local area as that place;

    (D)the tasks to be performed in the position correspond to the tasks of an occupation specified by the Minister in an instrument in writing for this sub-subparagraph;

    (DA)the occupation is applicable to the person identified under subparagraph (a)(ii) in accordance with the specification of the occupation;

    (E)the business operated by the nominator is located at that place;

    (F)a body that is:

    (I)specified by the Minister in an instrument in writing for this sub-subparagraph; and

    (II)located in the same State or Territory as the location of the position;

    has advised the Minister about the matters mentioned in paragraph (e) and sub-subparagraphs (B) and (C).