Harristown Construction Pty Ltd (Migration)
[2023] AATA 469
•8 March 2023
Harristown Construction Pty Ltd (Migration) [2023] AATA 469 (8 March 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT: Harristown Construction Pty Ltd
REPRESENTATIVE: Mrs Natasha Ferreira (MARN: 1465250)
CASE NUMBER: 2001787
HOME AFFAIRS REFERENCE(S): BCC2019/2296960
MEMBER:Karen McNamara
DATE:8 March 2023
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision under review to refuse the nomination.
Statement made on 08 March 2023 at 1:12pm
CATCHWORDS
MIGRATION – approval of a nomination – Temporary Residence Transition stream – position of Carpenter – financial capacity to employ the nominee for at least two years – actively and lawfully operating a business in Australia – owner and Director of the business now offshore – COVID travel restrictions – providing employment to Australians – no updated financial information – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 140, 245
Migration Regulations 1994, rr 1.13, 2.72, 5.19, 5.37STATEMENT 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 13 January 2020 to reject the application by Harristown Construction Pty Ltd (the applicant) for approval of the nomination of a position under reg 5.19 of the Migration Regulations 1994 (Cth) (the Regulations).
The applicant applied for approval on 28 April 2019. The requirements for the approval of the nomination of a position in Australia are found in reg 5.19 of the Regulations, which contains general requirements for approval and additional requirements for approval set out in three alternative streams: a Temporary Residence Transition stream, a Direct Entry stream and a Labour Agreement stream. If the application meets the requirements for approval then the application must be approved: reg 5.19(3)(a). If any of the requirements are not met then the application must be refused: reg 5.19(3)(b).
In this case, the applicant has applied for approval of a nomination, seeking to satisfy the criteria in the Temporary Residence Transition stream.
The delegate refused the application on the basis the applicant’s nomination did not satisfy reg 5.19(5)(n) because the delegate was not satisfied that the evidence provided demonstrated that the nominator’s business has capacity to employ the identified person for at least two years and pay the identified person at least the AMSR for the occupation each year.
The applicant applied to the Tribunal on 31 January 2020 for review of the delegate’s decision. The applicant submitted a copy of the primary decision record with the review application.
On 4 January 2023, the Tribunal invited the applicant/ nominee to appear before the Tribunal to give evidence and present arguments. The invitation noted ‘Please provide all documents you intend to rely on to support Harristown Construction Pty Ltd's case by 23 January 2023. The decision made by the department should set out the reasons for the decision, and you should have regard to these, and any changes in Harristown Construction Pty Ltd's circumstances, in providing documents and preparing for the hearing. Any documents or written arguments sent to us should be in English and if not then accompanied by a translation from a qualified translator.’
On Sunday 29 January 2023, the applicant via his representative provided to the Tribunal a copy of a letter from SEQ Enviro Services Pty Ltd undated and unsigned.
On 30 January 2023, Mr Shane McCarthy (herewith referred to as the applicant) appeared before the Tribunal via telephone from Ireland, to give evidence and present arguments. The Tribunal notes this is a self-nomination and as such Mr McCarthy appeared before the Tribunal in his capacity as the applicant and additionally as the nominee in the associated subclass 186 visa review application (AAT Case file 2004224). The related matters were heard concurrently in a combined hearing.
The Tribunal exercised its discretion to hold the hearing by telephone. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant/nominee. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone. The Tribunal is satisfied that Mr McCarthy was given a fair opportunity to give evidence and present arguments.
The applicant was represented in relation to the review. The representative attended the Tribunal hearing.
At the conclusion of the hearing, the Tribunal invited the applicant to provide further evidence to address concerns raised by the Tribunal during the hearing, including the applicant is actively operating a business in Australia and the financial capacity of the business to support payment of the annual market salary rate for at least two years.
On 16 February 2023, the applicant provided to the Tribunal the following;
·Submission by representative dated 15 February 2023
·Covering email from applicant to representative 14 February 2023 re:
o Email dated 13 February 2023 re: Letter from Streamtown Civil Pty Ltd
o Letter from Flaherty Construction Pty Ltd (undated)
o OPW Civil Pty Ltd dated 10 November 2022
o SEO Enviro Services Pty Ltd (undated)
·Covering email from applicant to representative 15 February 2023 re:
o email from Emmet Fitzharris to Shane McCarthy dated 14 February 2023
·Covering email from applicant to representative 14 February 2023 re:
o email from applicant to Gary McDonald dated 9 February 2023
o email from John Paul Spollen to applicant dated 13 February 2023 and reply from applicant
·Spreadsheet re: Financial projections 2022 to 2025
·Covering email from applicant to representative 14 February 2023 re:
o email from applicant to Paul Doyle 9 February 2023 and reply 10 February 2023
· Covering email from applicant to representative 15 February 2023 re:
o email from applicant to Thomas Hickey 14 February 2023
·ABN lookup
·Profit and Loss Statement Financial Year 2018
·Letter from Accountant dated 18 April 2019
·BAS returns January 2018 to December 2018,
The Tribunal notes the numerous evidence and submissions lodged by or on behalf of the applicant. While the Tribunal has considered all of same, only that which was considered material to its decision has been expressly referred to herein.
For the following reasons, the Tribunal has decided to affirm the decision under review to refuse the nomination.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant meets the general requirements for approval of the nomination set out in reg 5.19(4) and the stream specific requirements set out in reg 5.19(5), which are extracted in the attachment to this decision. For the nomination to be approved, all the requirements must be met.
Background
Information before the Tribunal shows the nominating business (Harristown Construction Pty Ltd) is a carpentry business located at 4 / 6 Gasie Place, South Coogee, NSW. ASIC records before the Tribunal show at the time of this decision, that the ACN and ABN registrations are current for Harristown Construction Pty Ltd (ACN: 168 186 856 and ABN: 50 168 186 856).
On 28 April 2019, the applicant lodged an application for an employer nomination approval for the position/occupation of Carpenter (ANZSCO 331212), under the Temporary Residence Transition stream. The application identified Company Director Mr Shane McCarthy in relation to the position. The nominated annual market salary rate is $59,130 per annum.
Harristown Construction Pty Ltd, sponsored Mr Shane McCarthy for his Subclass 457 Visa, which Department records show he was granted on 29 April 2015 to 28 April 2019.
Department records show that the applicant was granted approval as a Standard Business Sponsor (SBS) on 15 April 2014 to 15 April 2015 and most recently 14 April 2015 to 14 April 2018.
Evidence before the Tribunal shows that Mr McCarthy departed Australia on 23 February 2021 and is currently residing in Ireland.
Status of the nominator – reg 5.19(5)(h)
Regulation 5.19(5)(h) requires that the nominator was the standard business sponsor who last identified the identified person in a nomination approved under s 140GB of the Act and is actively and lawfully operating a business in Australia.
Department records show that the applicant was the last standard business sponsor to identify the identified person in an approved reg 2.72 nomination.
A major issue in this matter is whether Harristown Constructions is actively and lawfully operating a business in Australia as required by r.5.19(5)(h) (ii).
The Tribunal has received an ASIC current and historical company extract which indicates that Harristown Constructions Pty Ltd is currently registered as a company in Australia. The Tribunal considers that to satisfy the requirement in r.5.19(5)(h)(ii) it is not sufficient that a business is lawfully operating; it must also be actively operating. The applicant therefore must be able to demonstrate that they are actively operating a business in Australia and that they are engaging in ongoing business activity.
The evidence before the Tribunal shows that the owner and Director of the business has been offshore since 23 February 2021. At the hearing the Tribunal discussed with the applicant its concerns that since the lodgement of the application for review with the Tribunal on 31 January 2020, no evidence has been provided in support of this application. The applicant told the Tribunal that following the Department’s refusal of his application, the applicant returned to Ireland to attend his grandmother’s funeral and that due to COVID travel restrictions, he has been unable to return to Australia, hence no updates were provided to support his review application.
The applicant told the Tribunal that prior to leaving Australia, he had contracts with companies in Sydney to provide work and his business was going well. However, since leaving Australia he lost these contracts but has now established new contracts. To fulfill these contracts, he needs to return to Australia.
The Tribunal discussed with the applicant the last time the business actually operated, generated income and how many direct workers it employed. The applicant told the Tribunal that it has been almost two years since the business operated properly, a tax return was last lodged with the ATO for the 2020 financial year and the business last produced a trading income prior to the applicant leaving Australia in February 2021. The cessation of business operations was due to the applicant leaving Australia and not being able to return due to COVID restrictions. The business engaged subcontractors and the applicant was the only direct worker, however the applicant stated that he has three to four people organised to work with the business, but no contracts have been signed as he is unable to guarantee work due to the uncertainty of his visa status.
The Tribunal raised its concern with the applicant that on the evidence before it, it may not be satisfied that the applicant (nominator) is actively operating a business in Australia.
The applicant addressed the Tribunal’s concern at the hearing and told the Tribunal that he understands where the Tribunal is coming from, however there are reasons why the business ceased to operate, primarily because he had to leave Australia to return to Ireland for family reasons. The applicant now just wants to return to Australia and resume his business and get back to where he was before, in so far as the business operating and being able to employ Australians.
Post hearing the applicant provided information to the Tribunal to address the Tribunal’s concerns, including emails and letters from various companies and potential employees.
The Tribunal is required to assess the requirements for approval of the nomination on the evidence before it at the time of decision. It is the responsibility of the applicant to provide substantial and verifiable evidence to demonstrate that they meet the relevant criteria for approval of the nomination. In undertaking its assessment, the Tribunal is aware that the concept of ‘onus of proof’ is not appropriate to administrative inquiries and decision-making. On the other hand, the Courts have held that an applicant will have to supply the relevant facts of the individual case, in as much detail as necessary to enable a decision maker to establish the relevant case, and in as much detail as is necessary to enable a decision maker to establish the relevant facts. As a result, a decision maker is not required to make the applicant’s case for it. Nor is the Tribunal required to accept uncritically any and all the claims an applicant puts forward.
The Tribunal has carefully considered the information before it, including information provided by the applicant confirming working arrangements/agreements between the nominating business and principle contracting entities. Having consideration of this evidence the Tribunal notes that the evidence is in letter/email format, only one is dated and signed (OPW Civil 10 November 2022). The emails/letters are not supported by signed executed contracts/MOU’s specifying scope of works and contractual obligations including start and end dates.
Having regard to the applicant’s claims of providing employment to Australians, the Tribunal notes the applicant’s evidence at the hearing that he is unable to guarantee the employment of said persons pending granting of a visa to return to Australia. The Tribunal notes the numerous emails provided by the applicant to support future employment opportunities with the nominating business, however as per the applicant’s own evidence no contracts of employment have been executed.
Additionally, the Tribunal notes that there is no contemporary evidence including recent financial statements, Company tax returns, BAS returns, bank statements, invoices, quotes etc to support that the applicant is actively operating a business in Australia and that the nominating business continues to trade. The Tribunal notes the applicant has provided a spreadsheet containing financial projections based on current contracts for financial years 2022 to 2025. However, the Tribunal considers that there is no corroborating or persuasive evidence before it, to support that the business is generating revenue or to support current work or when work will commence, and revenue will be realised from said contracts.
The Tribunal found Mr McCarthy to be a sincere and credible witness and acknowledges the impact of COVID travel restrictions, prevented Mr McCarthy from returning to Australia to continue operating his business. However, the Tribunal is required to assess the requirements for approval of the nomination on the evidence before it at the time of decision.
The Tribunal has turned its mind to the consideration of whether the evidence before it supports that the nominator is actively and lawfully operating a business in Australia. Having overall consideration of the evidence before it, the Tribunal is of the view that there is a lack of evidence that the Tribunal considers concrete and persuasive, to support that the business has actively operated in Australia since Mr McCarthy departed Australia in February 2021. The Tribunal therefore is not satisfied that the nominator is actively and lawfully operating a business in Australia.
Accordingly, the Tribunal finds the requirement in r.5.19(5)(h) (ii) is not met.
As the criteria in r.5.19(5)(h)(ii) is not satisfied, therefore the requirements in r.5.19(5)(h) are not met. Accordingly, reg 5.19(4)(e) is not met.
As the Tribunal has found the applicant does not meet r.5.19(5)(h) and r.5.19(4)( e), it is not required to consider the rest of the requirements as set out in r.5.19(4) and r 5.19(5).
For these reasons the Tribunal is not satisfied that the applicant meets the requirements of reg 5.19. Accordingly, reg 5.19(3)(b) requires that the nomination must be refused. The decision under review must be affirmed.
DECISION
The Tribunal affirms the decision under review to refuse the nomination.
Karen McNamara
MemberAttachment – extracts from the migration regulations 1994
5.19Approval of nominated positions—Subclass 186 (Employer Nomination Scheme) visa and Subclass 187 (Regional Sponsored Migration Scheme) visa
Application
(1)A person (the nominator) (including a partnership or unincorporated association) may apply to the Minister for approval of the nomination of a position in Australia.
(2)The application must:
(a)be made in accordance with approved form 1395 (Internet); and
(b)identify the position; and
(c)identify a person (the identified person) in relation to the position; and
(d)identify an occupation in relation to the position; and
(e)identify the subclass and stream to which the nomination relates, which must be one of the following:
(i)a Subclass 186 (Employer Nomination Scheme) visa in the Temporary Residence Transition stream;
(ii)a Subclass 187 (Regional Sponsored Migration Scheme) visa in the Temporary Residence Transition stream;
(iii)a Subclass 186 (Employer Nomination Scheme) visa in the Direct Entry stream;
(iv)Subclass 187 (Regional Sponsored Migration Scheme) visa in the Direct Entry stream;
(v)a Subclass 186 (Employer Nomination Scheme) visa in the Labour Agreement stream; and
(f)be accompanied by the fee mentioned in regulation 5.37; and
(fa)be accompanied by any nomination training contribution charge the nominator is liable to pay in relation to the nomination; and
(fb)identify the annual turnover (within the meaning of the Migration (Skilling Australians Fund) Charges Regulations 2018) for the nomination; and
(g)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.
Approval of nomination
(3)The Minister must, in writing:
(a)approve the nomination if the Minister is satisfied that the requirements set out in subregulation (4) are met; or
(b)otherwise—refuse to approve the nomination.
Requirements for approval—general
(4)The requirements to be met for the nomination to be approved are as follows:
(a)the application is made in accordance with subregulation (2);
(b)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;
(c)if it is mandatory, in the State or Territory in which the position is located, for a person to:
(i)hold a licence of a particular kind; or
(ii)hold registration of a particular kind; or
(iii)be a member (or a member of a particular kind) of a particular professional body;
to perform tasks of the kind to be performed in the occupation, the identified person is, or is eligible to become, the holder of the licence, the holder of the registration, or a member of the body, at the time of application;
(d)the nominator has a satisfactory record of compliance with the laws of the Commonwealth, and of each State or Territory in which the nominator operates a business and employs employees in the business, relating to employment;
(da)any debt due by the nominator as mentioned in section 140ZO of the Act (recovery of nomination training contribution charge and late payment penalty) has been paid in full;
(e)if the nomination relates to a visa in a Temporary Residence Transition stream—the requirements set out in subregulation (5) are met;
(f)if the nomination relates to a visa in a Direct Entry stream—the requirements set out in subregulation (9) are met;
(g)if the nomination relates to a visa in a Labour Agreement stream—the requirements set out in subregulation (14) are met.
Temporary Residence Transition stream—additional requirements for approval
(5)If the nomination relates to a visa in a Temporary Residence Transition stream, the following requirements must also be met:
(a)at the time the application is made, the identified person holds:
(i)a Subclass 457 (Temporary Work (Skilled)) visa granted on the basis that the person satisfied the criterion in subclause 457.223(4) of Schedule 2 as in force before 18 March 2018; or
(ii)a Subclass 482 (Temporary Skill Shortage) visa in the Medium‑term stream; or
(iii)for a person specified in a legislative instrument made by the Minister for the purposes of this subparagraph—a Subclass 482 (Temporary Skill Shortage) visa in the Short‑term stream; or
(iv)if the last substantive visa held by the identified person was a visa mentioned in subparagraph (i), (ii) or (iii)—a bridging visa granted on the basis that the person is an applicant for a visa mentioned in subparagraph (i) or (ii); or
(v)if the last substantive visa held by the identified person was a visa mentioned in subparagraph (i), (ii) or (iii)—for a person specified in a legislative instrument made under subparagraph (iii), a bridging visa granted on the basis that the person is an applicant for a visa mentioned in subparagraph (iii); or
(vi)if the last substantive visa held by the identified person was a visa mentioned in subparagraph (i), (ii) or (iii)—a bridging visa granted on the basis that the person is an applicant for a Subclass 186 (Employer Nomination Scheme) visa or a Subclass 187 (Regional Sponsored Migration Scheme) visa;
(b)the occupation:
(i)is listed in ANZSCO; and
(ii)has the same 4‑digit ANZSCO occupation unit group code as the occupation in relation to which the identified person’s most recently held Subclass 457 (Temporary Work (Skilled)) visa or Subclass 482 (Temporary Skill Shortage) visa was granted;
(c)unless a legislative instrument made under subregulation (8) exempts the identified person from the operation of this paragraph—the occupation must:
(i)be an occupation specified in an instrument made under subregulation (8) and in force at the time the application is made; and
(ii)apply to the identified person in accordance with an instrument made under that subregulation;
(d)either:
(i)there is no information known to Immigration that indicates that the identified person is not genuinely performing the tasks of the occupation as specified in ANZSCO; or
(ii)it is reasonable to disregard any such information;
(e)during the period of 4 years immediately before the application is made, the identified person held one or more of the following for a total period of at least 3 years:
(i)a Subclass 457 (Temporary Work (Skilled)) visa granted on the basis that the person satisfied the criterion in subclause 457.223(4) of Schedule 2 as in force before 18 March 2018;
(ii)a Subclass 482 (Temporary Skill Shortage) visa in the Medium‑term stream;
(iii)for a person specified in a legislative instrument made under subparagraph (a)(iii)—a Subclass 482 (Temporary Skill Shortage) visa in the Short‑term stream;
(f)unless paragraph (g) applies—during the period of 4 years immediately before the application is made, the identified person was employed in the position in relation to which the visa, or visas, mentioned in paragraph (e) were granted:
(i)for a total period of at least 3 years (not including any periods of unpaid leave); and
(ii)on a full‑time basis, with the employment being undertaken in Australia;
(g)if the visa, or visas, mentioned in paragraph (e) were granted in relation to an occupation specified in an instrument made under subregulation 2.72(13)—during the period of 4 years immediately before the application is made, the identified person was employed in the occupation for a total period of at least 3 years (not including any periods of unpaid leave);
(h)the nominator:
(i)was the standard business sponsor who last identified the identified person in a nomination approved under section 140GB of the Act; and
(ii)is actively and lawfully operating a business in Australia;
(j)the application identifies a need for the identified person to be employed in the position, under the direct control of the nominator;
(k)there is a genuine need for the identified person to be employed in the position, under the direct control of the nominator;
(l)the identified person will be employed on a full‑time basis in the position for at least 2 years;
(m)the terms and conditions of the identified person’s employment will not include an express exclusion of the possibility of extending the period of employment;
(n)the nominator’s business has the capacity to employ the identified person for at least 2 years and to pay the person at least the annual market salary rate for the occupation each year;
(o)the requirements set out in subregulation 2.72(15) are met, applying subregulations 2.72(15) and (16) as if:
(i)paragraph 2.72(15)(a) did not apply; and
(ii)references to the nominee were references to the identified person; and
(iii)references to the person were references to the nominator;
(p)either:
(i)there is no information known to Immigration that indicates that the employment conditions (other than in relation to earnings) that will apply to the identified person are less favourable than those that apply, or would apply, to an Australian citizen or an Australian permanent resident performing equivalent work at the same location; or
(ii)it is reasonable to disregard any such information;
(q)the nominator has provided the information required by the Minister for the purposes of paragraph (k) to (n).
Minister may vary certain Temporary Residence Transition stream requirements
(6)The Minister may, by legislative instrument, determine different periods of time for the purposes of paragraphs (5)(e), (f) and (g) for persons specified in the instrument.
(7)Paragraphs (5)(j), (k) and (l) do not apply in relation to occupations specified in an instrument made under subregulation 2.72(13).
(8)The Minister may, by legislative instrument, specify:
(a)occupations for the purposes of paragraph (5)(c); and
(b)persons who are exempt from the operation of that paragraph; and
(c)for each occupation, any matters for the purposes of determining whether the occupation applies to an identified person, including matters relating to any of the following:
(i)the nominator;
(ii)the identified person;
(iii)the occupation;
(iv)the position in which the identified person is to work;
(v)the circumstances in which the occupation is undertaken;
(vi)the circumstances in which the person is to be employed in the position.
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
Legal Concepts
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Judicial Review
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Statutory Construction
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Procedural Fairness
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