Gold Coast Holiday Services Pty. Ltd. ATF The Terry Koorockin Family Trust (Migration)

[2019] AATA 4846

Gold Coast Holiday Services Pty. Ltd. ATF The Terry Koorockin Family Trust (Migration) [2019] AATA 4846 (5 November 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Gold Coast Holiday Services Pty. Ltd. ATF The Terry Koorockin Family Trust

CASE NUMBER:  1727842

DIBP REFERENCE(S):  BCC2016/2254463

MEMBER:Susan Trotter

DATE:5 November 2019

PLACE OF DECISION:  Brisbane

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

Statement made on 05 November 2019 at 2:41pm

CATCHWORDS
MIGRATION – Temporary Business Entry (Class UC) visa – Direct Entry Nomination stream – employer’s nomination of position – financial capacity to pay salary – no response to Tribunal’s s 359 letter – financial documents – decision under review affirmed

LEGISLATION

Migration Act 1959 (Cth), ss 359(2), 359C(1), 360(3), 363(1)(b), 363A
Migration Regulations 1994 (Cth), r 5.19(4)(d)(i)

CASES

Hasran v MIAC [2010] FCAFC 40

Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617

Kaur v Minister for Immigration and Border Protection [2014] FCA 915

Manna v Minister for Immigration and Citizenship [2012] FMCA 28

Minister for Immigration and Border Protection v Singh [2014] FCAFC 1

Minister for Immigration and Citizenship v Li [2013] HCA 18

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 24 October 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 4 July 2016 nominating the occupation of Finance Manager (ANZSCO 132211) to be undertaken by Ms Jie Shao.

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

5. The delegate refused the application on the basis that the applicant’s nomination did not satisfy r.5.19(4)(d)(i) of the Regulations because they were not satisfied that the evidence demonstrated that the nominator had the financial capacity to pay Ms Shao’s salary and, therefore, had not demonstrated that Ms Shao would be employed on a full-time basis in the nominated position for at least two years as required.

6. The applicant lodged an application for review of the delegate’s decision with the Tribunal on 10 November 2017 and provided the Tribunal with a copy of the delegate’s decision.

7. The applicant was represented in relation to the review.

8. On 18 October 2019, the Tribunal wrote to the applicant at the email address provided at the time of the application for review, being the representative’s email address as advised to the Tribunal. The letter was issued pursuant to s.359(2) of the Migration Act 1958 (the Act), inviting the applicant to provide current information addressing the relevant criteria under rr.5.19(2) and (4) of the Regulations.

9. The Tribunal did not receive any response to its letter of 18 October 2019, nor the information invited to be provided, within the prescribed time for responding to the statutory invitation, nor was an extension of time sought. As the applicant failed to provide the information invited to be provided within the prescribed time, s.359C(1) of the Act applies and the Tribunal may make a decision on the review without taking any further action to obtain the information invited to be provided.

10. The Courts have confirmed that where an applicant fails to give information within the prescribed period in response to an invitation issued under s.359(2) of the Act, ss.360(3) and 363A of the Act preclude the Tribunal from offering an applicant a hearing: Hasran v Minister for Immigration and Citizenship [2010] FCAFC 40. Accordingly, as the applicant failed to give the information requested within the prescribed period, it has lost the right to appear before the Tribunal to give evidence and present arguments relating to the review application.

11. Although neither the applicant nor its representative has requested this, the Tribunal has also considered whether it would be appropriate to adjourn the application for review under s.363(1)(b) of the Act to allow the applicant additional time in which to provide evidence to support its application for review.

12. In doing so, the Tribunal has taken into account the decisions in Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617 and Manna v Minister for Immigration and Citizenship [2012] FMCA 28, where the courts have held that the Tribunal is not required to indefinitely defer its decision-making processes. It has also had regard to the decision in Minister for Immigration and Citizenship v Li [2013] HCA 18, regarding the reasonableness of any request for an adjournment, and the Full Federal Court decision in Minister for Immigration and Border Protection v Singh [2014] FCAFC 1 which considered this issue, as well as the decision in Kaur v Minister for Immigration and Border Protection [2014] FCA 915 where analogous issues were discussed.

13. The Tribunal has taken into account the fact that the applicant has been aware since 24 October 2017 of the reasons for the nomination application being refused (over two years ago) and has had the benefit of representation from a registered migration agent in order to assist it with this application. The Tribunal considers it reasonable to expect that the applicant’s representative, as a registered migration agent, has an understanding of the requirements of the legislation and the consequences of not providing the information requested in the invitation the Tribunal sent to the applicant on 18 October 2019, which consequences were also set out in that letter.

14. In these circumstances, the Tribunal considers that the applicant has had sufficient time in which to address the central issues arising in the application for review. Accordingly, the Tribunal has decided not to exercise its discretion under s.363(1)(b) of the Act to adjourn the review any further to allow the applicant more time in which to demonstrate that it meets the relevant criteria under r.5.19 of the Regulations.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

16. 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.

    Term of employment of the visa holder: r.5.19(4)(d)(i)

17. Regulation 5.19(4)(d)(i) requires the nominee to be employed in the nominated position for at least two years full-time.

18. The nomination application included the statement that the nominee would be employed on a full-time basis in the nominated position for at least two years on a base salary of $185,000 per annum.

19. The following documentation was lodged in support of the visa application:

    (a)  Undated and unsigned Trust Deed for the Terry Koorockin Family Trust.

    (b)  Letter from cordnertaylor accountants dated 22 March 2016 stating, among other things, that given the current growth and further growth forecast for the applicant, it was warranted that the nominated positon offer a remuneration package of approximately $185,000 per annum. Further the letter refers to the change in shareholding of the applicant and the increased number of properties under its management with its aim to continue to gain greater market share of the Asian tourist market.

    (c)  Organisational chart for Gold Coast Holiday Services Pty Ltd ATF The Terry Koorockin Family Trust.

    (d)  Australian Business Register Certificate of Registration of Gold Coast Holiday Services Pty Ltd showing registration commencing 25 January 2008.

    (e)  Financial statements for The Terry Koorockin Family Trust / Gold Coast Holiday Services Pty Ltd for the year ended 30 June 2015.

    (f)    People’s Republic of China Certificate of Accounting Profession in the name of Ms Shao issued 14 May 2004.

    (g)  A Certificate from the Bank of Shanghai dated 30 October 2015 stating that Ms Shao had worked at the bank since December 1995 and setting out her income from 2012 (translated and untranslated).

20. Notably, the letter from the applicant’s accountant, while addressing the growth of the applicant’s business and their view that the nominated position warranted a remuneration package of approximately $185,000 per annum, is silent as to whether the applicant has financial capacity to pay that salary. Further, as noted in the delegate’s decision, the financial statements provided do not support that the applicant has the financial capacity to pay that salary. Notably, the statements show a net profit before tax of $130,704 and limited current assets ($83,234) with significant current liabilities ($190,725) not consistent with the applicant having a capacity to pay the salary for the nominated position at all, or for two years as required.

21. Further, the applicant has not provided, as invited by the Tribunal, any other information showing that it meets r.5.19(4)(d)(i) (or the other requirements of r.5.19).

22. It follows that having regard to the evidence before it, the Tribunal is unable to be satisfied that the applicant has demonstrated that the nominee will be employed on a full-time basis for at least two years.

23. Accordingly, the requirement in r.5.19(4)(d)(i) and therefore r.5.19(4)(d) overall is not met.

24. 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 the 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

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

    Susan Trotter
    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.

    …

    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).