Gold to Metro Enterprises PTY LTD (Migration)

[2023] AATA 304

Gold to Metro Enterprises PTY LTD (Migration) [2023] AATA 304 (13 February 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Gold to Metro Enterprises PTY LTD

REPRESENTATIVE:  Mr Rex Howard (MARN: 9251016)

CASE NUMBER:  1916112

HOME AFFAIRS REFERENCE(S):          BCC2017/1347346

MEMBER:De-Anne Kelly

DATE:13 February 2023

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Statement made on 13 February 2023 at 9:30am

CATCHWORDS
MIGRATION – application for approval of nomination of position – program and project administrator – financial capacity to employ nominee for 2 years – financial statements show very low payments of wages – applicant transitioning staff from contractors to employees on wages – nominee manages all operations and contracts – decision under review set aside

LEGISLATION
Migration Regulations 1994 (Cth), r 5.19(4)(d)(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 Home Affairs on 3 June 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).

2. The applicant applied for approval on 11 April 2017. 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).

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 reg 5.19 (4)(d)(i) of the Regulations because the applicant did not demonstrate the financial capacity to employ the nominee for at least two years.

5.     The applicant appeared before the Tribunal on 31 January 2023 to give evidence and present arguments. Witnesses were the nominee Ms Gurminder Kaur Dhaliwal and her spouse Mr Bhaubinder Singh.

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

7.     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

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 reg 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.     On 11 April 2017, the applicant lodged a Regional Sponsored Migration Scheme employer nomination visa subclass 187 in the Direct Entry Stream for the position of Program and Project Administrator on $62,400 per annum to be employed in Nerang QLD 4211 in favour of Ms Gurminder Kaur Dhaliwal. The application indicates that there are no other employees.

10.      Mr Jason Butenshaw who was forthright and transparent with the Tribunal, started the business in 2009 and initially had  small cleaning contracts with Coles. There employees are actually contractors and in some cases shareholders, but these contractors are being transitioned to wages as employees. Mr Jason Butenshaw was present in Mandurah Western Australia during the hearing with other business meetings.

The application is compliant: reg 5.19(4)(a)

11.      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.

12. Applications must be in the approved form and must be accompanied by the prescribed fee to be valid and acknowledged by the Department of Home Affairs. An acknowledgement dated 11 April 2017 was sent by the Department to the nominator as evidence of a valid application. The Department accepted a declaration made on the online form that the nominator had responded yes in the online form to the following: ‘the applicant certifies that they have not engaged in conduct in relation to this nomination that constitutes a contravention of subsection 245AR (1) of the Migration Act 1958’.

13.      The Tribunal is satisfied that the application was made on the approved form 1395 (Internet) for post 23 March 2013 applications, accompanied by the prescribed fee and the nominator has included a written certification stating the nominator has not engaged in conduct in relation to the nomination that contravenes s.245AR(1) of the Act.

14.      Regulation 5.19(4)(a)(ii) requires the nominator to identify a need for the nominator to employ a paid employee to work in the position under the nominator’s control. The assessment of the need for a paid employee comprises two parts: establishing the need for an employee (i.e. there exists a vacancy for the nominated position) and ascertaining that the relationship between the nominator and nominee is that of employer and employee.

15.      The nomination does not have to specify the nominee but needs to identify a nominee before, or at the time, the associated visa application is made. Ms Gurminder Kaur Dhaliwal was identified in the nomination application, and this indicates there is a need for the position.

16. Accordingly, the requirement in r.5.19(4)(a) is met.

Nominator is actively and lawfully operating a business in Australia: reg 5.19(4)(b)

17.      Regulation 5.19(4)(b) requires that the applicant is actively, lawfully and directly operating a business in Australia.

18.      It is noted that financial statements from FY 2021 to FY 2022 and BAS statements up to September 2022 were provided indicating that the applicant is actively, lawfully and directly operating a business in Australia.

19. Accordingly, the requirement in reg 5.19(4)(b) is met.

Position is not labour-hire: reg 5.19(4)(c)

20.      Regulation 5.19(4)(c) applies to nominators whose business activities include those relating to labour hire to an unrelated business. In these cases, the nominated position must be within the business activities of the nominator. 

21.      There is no evidence that the business labour hires.

22. Accordingly, the requirement in reg 5.19(4)(c) is met.

Term of employment of the visa holder: reg 5.19(4)(d)

23.      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. 

24.      The letter 24 January 2023 from the agent states the business provides cleaning services for corporate clients and has a contract with Woolworths Ltd to clean supermarkets at Elanora, Burleigh West, Pacific fair, Upper Coomera, Oxenford, Pimpama and Beenleigh. It states that the business employs the director, the nominee and some eighteen cleaners. The letter details the duties of the position; the fact it was advertised, and no suitable candidates were found and that the regional certifying body supported the nomination and found the business had the financial capacity to employ the nominee for the proposed period of two years. It is noted that the regional certifying body is not charged to assess reg. 5.19 (4)(d).

25.      The agent states the nominee has been employed since June 2019 and the business has continued to trade and operate successfully since that time. The agent maintains that the applicant will be able to employ the nominee for at least two years from the time of approval and be able to pay her salary.

26.      The financial statements and company tax return provide the following information.

Year	2022	2021
Income	708,124	825,005
Management Fees	136,364	150,000
Subcontractors	450,644	596,040
Wages	11,830	-
Expenses	666,527	800,474
Profit	41,597	24,531

27.It is clear that despite strong turnover the wages in FY 2021 were nil and in FY 2022 were $11,830. Even taking into account the COVID-19 lockdown which extended from approximately 22 March 2020 to 28 October 2020 or some 3 months of FY 2020 and 4 months of FY 2021 there was still a significant period of trading for this business as evidenced by the strong turnover. Also, the contracts are apparently with Woolworths Ltd which would be an essential service during COVID and would require regular cleaning services.

28.The BAS statements show the following figures.

BAS	Period	Sales	Wages
Jan - Mar 2022	Q3 2022	165,645	248
Apr - Jun 2022	Q4 2022	206,978	11,334
Jul - Sep 2022	Q1 2023	189,802	12,589
Annualise	FY 2023	759,208	50,356

29.      The only BAS Statement for FY 2023 is Jul – Sep 2022 or Q1 2023 which shows sales of $189,802 and wages of $12,589. If these figures are annualised, it shows overall sales of $759,208 and wages of $50,356.

30.      It was put to the applicant that the business was unable to pay the nominees wage of $62,400 in FY 2021 and FY 2022 and it appears again from the annualised BAS that the business is unable to pay the full-time wage of $62,400 in FY 2023.

31.      The Tribunal has noted that the agent states the Regional Certifying body found that the applicant had the financial capacity to employ the nominee for the proposed period of two years although this is not a matter that the RCB is required to assess.    

32.      The applicant advised that the employees were engaged as contractors based on advice, they had received however they were now because of requests from their corporate customers transitioning to all staff as employees on wages. As evidence of this the applicant submitted an employment contract signed 6 February 2023 for the nominee on an annual salary of $62,400. It was evident from the financial statements that the firm employed large numbers of contractors.

33.      The nominee to be employed in the nominated position for at least 2 years full time because the business has the profitability and financial capacity to meet all its obligations for at least two years and beyond and the terms and conditions of that employment do not expressly exclude the possibility of an extension.

34. Accordingly, the requirement in reg 5.19(4)(d) is met.

No less favourable terms and conditions of employment: reg 5.19(4)(e)

35.      Regulation 5.19(4)(e) requires that the terms and conditions of employment applicable to the nominated position will be no less favourable than those that are, or would be, provided to an Australian citizen or permanent resident performing equivalent work in the same workplace at the same location.

36.      The nominee is paid $62,400 per annum while Payscale has a range from $50,000 to $104,000 for such a position which indicates the position is no less favourable than the conditions that would be provided to an Australian citizen or Australian permanent resident

37. Accordingly, the requirements of reg 5.19(4)(e) are met.

No adverse information known to Immigration: reg 5.19(4)(f)

38.      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 regs 1.13A and 1.13B.

39.      The Tribunal has no information before it from the Department that would constitute adverse information and a search of the ASIC website finds no adverse information about the nominator or a person associated with the nominator.

40. Accordingly, the requirements of r.5.19(4)(f) are met.

Satisfactory compliance with workplace relations laws: reg 5.19(4)(g)

41.Regulation 5.19(4)(g) requires that the applicant 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.

42.The Tribunal can find no unsatisfactory record of compliance for the applicant with the laws of the Commonwealth relating to workplace relations. This was confirmed by the owner at the hearing.

43.Accordingly, the requirements of r.5.19(4)(g) are met.

Tasks of the position, genuine need for the position and training requirements reg 5.19(4)(h)

1. Regulation 5.19(4)(h) contains a number of alternative requirements. These are set out in detail in the attachment to the decision but can be briefly summarised as requiring either that:

   ·the tasks to be performed in the position will be performed in Australia and correspond to those of an occupation specified by the Minister in a legislative instrument, the occupation is applicable to the proposed employee in accordance with any specifications made in that instrument, and specified training requirements are met; or

   ·the position and nominator’s business is located in regional Australia, there is a genuine need for the paid position under the nominator’s direct control which cannot be filled by a locally resident Australian citizen or permanent resident, the tasks of the position correspond to those of an occupation specified in the relevant legislative instrument, the occupation is applicable to the proposed employee in accordance with the specification of the occupation and that a regional certifying body has advised the Minister about certain matters relating to the position.

   Position in regional area – r.5.19(4)(h)(ii)(A)

2. The Tribunal needs to determine if the position is in regional Australia. The business is located in Nerang QLD 4211 and now also has a unit in Tweed Heads with a granny flat attached for their operations in NSW. The definition of ‘Regional Australia’ is found in IMMI 16/045. This postcode is included in the list of postcodes for designated regional areas (IMMI 16/045) therefore the position and business are located in regional Australia. The applicant can choose therefore to meet either r.5.19(4)(h)(i) or r.5.19(4)(h)(ii). The applicant has chosen to meet r.5.19(4)(h)(ii) which provides for the second dot point above.

3. Accordingly, r.5.19(4)(h)(ii)(A) is met.

   Genuine need for the position r.5.19(4)(h)(ii)(B).

4. The Tribunal needs to consider if there is a genuine need for the applicant to employ a paid employee to work in the position under the nominator’s control. It is noted that the applicant states the nominee has been working in the position since June 2019.

5. Mr Butenshaw works as a builder and has just completed a house. He has very limited time to give to the cleaning business because the nominee manages all the operational and contractual requirements in the business and deals with the staff and the customers. His wife uses the Zero accounting program, and she does the payroll and wages and acts as the bookkeeper and accountant.

6. The Tribunal finds for the reasons above that there is a genuine need for the nominator to employ a person, identified under r.5.19(4)(a)(ii) as a paid employee to work in the position under the nominator’s direct control.

7. Accordingly, r.5.19(4)(h)(ii)(B) is met.

   Cannot be filled. r.5.19(4)(h)(ii)(C)

8. The Tribunal needs to consider if the position cannot be filled by an Australian citizen or permanent resident who is living in the same local area.

9. The position was advertised on 29 March 2017 with two candidates however none had the necessary qualifications and experience to fill the role and were in their mid-thirties and would not have been able to liaise with the corporate clients.

10. The Tribunal accepted the director’s evidence that the position could not be filled by an Australian citizen or Australian permanent resident.

11. Accordingly, r.5.19(4)(h)(ii)(C) is met.

    Tasks of the position correspond to ANZSCO. r.5.19(4)(h)(ii)(D)

12. The Tribunal has carefully considered the evidence and the Position Description provided and finally determined that the tasks of the position generally correspond to the tasks of a position specified by the Minister in an instrument being the position of Program and Project Administrator.

13. Accordingly, r.5.19(4)(h)(ii)(D) is met.

    Occupation applicable to nominee. r.5.19(4)(h)(ii)(DA)

14. The nominee provided evidence that she has a Bachelor of Arts and Advanced Diploma of Business and several years’ experience as a Program and Project Administrator.

15. The Tribunal finds that the occupation is applicable to the person, identified under subparagraph (a)(ii) in accordance with the specification of the occupation.

16. Accordingly, r.5.19(4)(h)(ii)(DA) is met.

    Business operated at that place. r.5.19(4)(h)(ii)(E)

17. The business of the nominator is located at Nerang QLD 4211 and now also has a unit in Tweed Heads with a granny flat attached for their operations in NSW and is in ‘that place’ that was specified in the employer nomination.

18. Accordingly, r.5.19(4)(h)(ii)(E) is met.

    Regional certifying body r.5.19(4)(h)(ii)(F)

19. The Chamber of Commerce and Industry Queensland (CCIQ) as the regional certifying body RCB specified in the Ministerial instrument on 11 April 2017 certified the application as meeting r.5.19(4)(e) and r.5.19(4)(h)(ii)(B) & (C) and has therefore advised the Minister about the matters mentioned in paragraph (e) and sub-subparagraph (B) and (C).

20. Accordingly, r.5.19(4)(h)(ii)(F) is met.

21. Accordingly, the requirements of r.5.19(4)(h) and r.5.19(4) are met.

22. Based on the findings above, the Tribunal is satisfied that the applicant meets the requirements of reg 5.19 for approval of the nomination of the position in Australia.

    DECISION

23. The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

    De-Anne Kelly
    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).

    Schedule 1 – 1916112 – Gold to Metro Enterprises Pty Ltd

    Documents including the following were provided with the original application.

    1)Acknowledgment of nomination application 11 April 2017.

    2)Online application for employer nomination 11 April 2017.

    3)Regional certifying body assessment 11 April 2017.

    4)ABN and ASIC registration.

    5)Market salary analysis.

    6)Organisation chart showing owner /director, the nominee and seven subcontractors.

    7)BAS statement FY 2017.

    8)Statement 9 April 2017 by the director regarding the need for the position.

    9)Advertisement Gold Coast bulletin for the vacancy 1 April 2017 and 29 March 201

    10)Email correspondence from the accountant 11 April 2017.

    11)Letter of support for April 2017 from the accountant stating the business is financially stable and able to meet its liabilities as and when they are due.

    12)Employment Program and Project 9 April 2017 for remuneration of $62,400 per annum.

    13)Lease agreements for the premises.

    14)Job description.

    Documents including the following were provided after the review application was lodged.

    15)Notification of refusal of employer nomination 3 June 2019 including notice of decision.

    16)Email from the agent 16 June 2022 advising that the nominee will appear as a witness.

    17)Submission 24 January 2023 from the agent.

    18)BAS statements Jan – Mar 2022, Apr – Jun 2022, Jul – Sep 2022,

    19)job advertisement.

    20)Financial statement for FY 2022.

    21)Company tax return for FY 2022.

    22)Employment Program and Project 23 January 2023 for salary 62,400 per annum.

    23) Current ASIC and ABN registration.