J and K Bown Pty Limited ATF The Bown Family Trust (Migration)

J and K Bown Pty Limited ATF The Bown Family Trust (Migration) [2020] AATA 6196 (21 September 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  J and K Bown Pty Limited ATF The Bown Family Trust
CASE NUMBER:  1818407
HOME AFFAIRS REFERENCE(S):          BCC2017/2308029
MEMBER:Terrence Baxter
DATE:21 September 2020
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision under review to refuse the nomination.

Statement made on 21 September 2020 at 16:03pm

CATCHWORDS
MIGRATION – nomination of a position – Temporary Residents Transition Nomination stream – position of Motor Mechanic (General) – evidence of meeting training obligations – terms and conditions no less favourable – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 359, 363
Migration Regulations 1994, r 5.19
Superannuation Guarantee (Administration) Act 1992
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 5 June 2018 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).
The applicant J and K Bown Pty Ltd as trustee for the Bown Family Trust applied for approval on 29 June 2017. The applicant nominated Mr Gurdeep Singh (the nominee) in the position of Motor Mechanic (General). 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 stream (r.5.19(3)) and a Direct Entry nomination stream (r.5.19(4)). 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).
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 the applicant’s nomination did not satisfy r.5.19(3)(f)(i) of the Regulations because the delegate found that the applicant had not fulfilled its commitments relating to meeting its training requirements during the period of its most recent approval as a standard business sponsor. The delegate also found that it was not reasonable to disregard, under r.5.19(3)(f)(ii), the non-compliance with r.5.19(3)(f)(i).
Mr Kevin Bown, a director of the applicant company, appeared before the Tribunal on 28 July 2020 to give evidence and present arguments. The Tribunal also received oral evidence from the nominee.
The Tribunal exercised its discretion to hold the hearing by audio conference. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by audio conference, having regard to the nature of this matter and the individual circumstances of the applicant. 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 audio conference.
The applicant was represented in relation to the review by its registered migration agent. The representative did not attend the Tribunal hearing. The applicant had provided to the Tribunal a Response to the hearing invitation which indicated that the representative’ Ms Pratibha Sharma, would participate in the hearing. The hearing was scheduled to commence at 1:30pm. The records of the Tribunal show that a Tribunal officer attempted to telephone the representative on her designated mobile number at 1:15pm on that day to invite her to attend the hearing, but that the representative did not answer the call. The records also show that the Tribunal officer then telephoned Mr Bown who stated that the nominee was with him at the same location. The Tribunal officer asked whether the representative was with them and they replied in the negative. The Tribunal officer enquired whether they expected or intended the representative to attend the hearing. Although their exact reply is not recorded, the Tribunal officer took the reply as an unequivocal answer that the officer did not need to attempt to contact the representative again.
The hearing commenced at 1:28pm. At the commencement of the hearing, the Tribunal noted that the applicant had been represented in this application and that it was the Tribunal’s understanding that the representative was not to attend the hearing. When asked whether that was the case, Mr Bown replied affirmatively. The Tribunal then asked Mr Bown whether he was happy to proceed without a representative assisting him at the hearing and he confirmed that this was the case.
During the hearing, the representative contacted the Tribunal by email, stating that she had not received any call from the Tribunal before the hearing and requesting that she be added “in the hearing process”. The Tribunal contacted the representative on 30 July 2020, confirming that a Tribunal officer had unsuccessfully attempted to call the representative before the hearing and the advice given by Mr Bown that the representative’s attendance at the hearing was not required by the applicant. The Tribunal advised the representative that it had notified Mr Bown at the hearing that no decision would be made in the matter before 12 August 2020 to allow further submissions to be made and also confirming that a copy of the audio recording of the hearing could be requested. The representative requested a copy of the audio recording, and a copy of the recording was forwarded to the representative on 4 August 2020. The representative made a written submission to the Tribunal on 12 August 2020.
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 requirements for approval of the nomination under the Temporary Residence Transition nomination stream set out in r.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 Immigration and Border Protection (now the Department of Home Affairs) (the Department) the following documents:
a.A Contract of Employment dated 19 June 2017.
b.A receipt from TAFE Queensland for $4,000.00 dated 16 September 2016.
c.The nominee’s PAYG payment summaries for the 2015 to 2017 financial years.
d.Activity Statements for the months July 2015 to April 2017, June 2017 to November 2017 and February 2018 to March 2018.
e.The applicant’s financial statements for the financial years ending 30 June 2016 and 30 June 2017.
f.A submission from the applicant regarding the nominee’s employment dated 13 December 2016.
g.The nominee’s tax assessment for the 2016 financial year.
h.A receipt from TAFE Queensland for $2,000.00 dated 26 June 2017.
i.The nominee’s tax return for the 2015 financial year.
j.The applicant’s Trust Deed dated 1 July 1980.
k.A screenshot image of the QLD Car Mart website.
l.A screenshot image of internet search results for QLD Car Mart.
m.Site photographs.
n.A submission from the representative regarding training benchmarks dated 29 June 2017.
o.A PAYG payment summary for Terrance Cleary for the 2017 financial year.
p.An organisational chart as at May 2018.
q.A submission from the representative dated 24 May 2018.
The applicant produced to the Tribunal the following documents:
a.Further copies of various documents produced to the Department.
b.The nominee’s passport.
c.Activity Statements for the months July 2015 to February 2016, July 2016 to April 2017, June 2017 to November 2017 and February 2018 to December 2019.
d.The nominee’s tax assessments for the 2015 to 2019 financial years.
e.The nominee’s PAYG payment summaries for the 2015 to 2019 financial years.
f.A Contract of Employment dated 15 January 2020.
g.The applicant’s salary payment documents – card transactions (accrual) and account transactions (accrual) for the period 1 July 2014 to 30 June 2015.
h.The applicant’s salary payment documents – card transactions (accrual) and general ledger (detail) for the period 1 July 2015 to 30 June 2016.
i.2015 PAYG payment summaries for Kevin Bown, Terrance Cleary, Yuvrajsinh Pradhnmansinh Sarvaiya and Gurdeep Singh.
j.2016 and 2017 PAYG payment summaries for Kevin Bown, Terrance Cleary and Gurdeep Singh.
k.The applicant’s detailed activity report for period 1 July 2016 to 30 June 2017.
l.The applicant’s PAYG withholding report for period 1 July 2016 to 30 June 2017.
m.The applicant’s 2018 and 2019 tax returns.
n.The applicant’s financial statements for the years ending 30 June 2018 and 30 June 2019.
o.The applicant’s ATO Integrated Client account statements for periods 26 November 2017 to 16 June 2018 and 1 July 2018 to 24 November 2018.
p.The applicant’s ATO Activity statement 001 results from 1 July 2017 to 31 May 2018 and 1 December 2018 to 30 June 2019.
q.An ANZSCO listing for unit group 3212 – motor mechanics.
r.A Position Description.
s.An ASIC business name extract for QLD Car Mart dated 18 April 2020.
t.ABR details for the applicant’s ABN dated 28 April 2020.
u.An organisational chart as at 1 April 2020.
v.The applicant’s notification of approval as a standard business sponsor dated 19 August 2014.
w.A submission from the applicant dated 30 April 2020.
x.A submission from the applicant regarding the nominee’s employment - undated.
y.A receipt from the Institute of Professional Development for $1,320.00 dated 20 June 2014.
z.A submission from the representative dated 7 May 2020.
Evidence presented at the hearing
Mr Bown gave evidence regarding the applicant’s business operations. He said that the applicant bought and sold used motor vehicles and that he was the licensed dealer principal of the business. He said that he had been in the motor business for approximately 33 years, working for the last 27 years from his current business premises in Nerang, Queensland. He stated that the applicant purchases vehicles from various dealers, wholesalers and from auctions and re-sells them after they have been brought to a roadworthy standard. He said that the business directly purchases each such vehicle using its own finances and does not sell vehicles on consignment. He stated that the business conducts servicing of vehicles which have been previously sold through the business.
The nominee gave evidence as to his employment with the applicant and his duties.
Evidence presented after the hearing
After the hearing, the applicant produced to the Tribunal the following documents:
a.Activity Statements for the months of December 2019 to June 2020.
b.The applicant’s bank statements for the period from 14 December 2019 to 21 August 2020.
c.A submission from the representative dated 12 August 2020.
Section 376 certificate
During the review, the Tribunal received information from a third party which could have been relevant to the review. The information was expressed to be private and confidential. In order to protect the identity of the informant, the Tribunal decided not to provide a copy of the document to the applicant.
Pursuant to the procedure specified in s.359AA of the Migration Act 1958 (the Act), the Tribunal provided the gist of the information to Mr Bown as follows:
a.That the information was provided to the Tribunal on 17 June 2020.
b.That the information alleged that the nominee has been working as a taxi driver and as an Uber driver as a 457 visa holder and never worked as a mechanic.
c.That the applicant has taken money from the nominee to enable him to obtain a permanent visa, that the business sponsorship is a sham and that the position has been created to secure a visa by the nominee and Mr Bown.
The Tribunal explained to Mr Bown why the information was relevant to the application. He was offered an adjournment to consider the information. He said that he would respond immediately. Regarding the allegation that the nominee had driven cabs or an Uber vehicle, he said that the nominee might have done this at night-time but that he had definitely worked for the applicant until August 2018 when he left following matrimonial problems being experienced by the nominee. Regarding the allegation that the nominee had never worked as a mechanic, Mr Bown stated that he certainly did. Regarding the allegation that he had taken money from the nominee to enable him to obtain a permanent visa, he said that this was not true, and he did not know why anyone would make that allegation. He said - “That’s not me anyway”. Generally, he said that he strongly denied the allegations and assured the Tribunal that they were false.
The gist of the information was also put to the nominee when he gave evidence, he not having been present when Mr Bown had given his evidence. He stated that the allegations were totally wrong. He said that he has worked as a taxi driver and an Uber driver, but only since his Subclass 457 visa had expired. He denied that he had paid any money to the applicant. He said that the allegation might have come from his ex-wife or some person associated with her.
The Department issued a certificate and notification under s.376 of the Act on 13 August 2020 (that is, after the hearing) with respect to source information received by the Border Watch Allegations and Referral Team on 22 June 2020. The source information was identical to the information received by the Tribunal on 17 June 2020. The Tribunal provided a copy of the s.376 certificate to the applicant by email on 15 September 2020. The Tribunal confirmed that details of the information referred to in the certificate were provided to Mr Bown at the hearing.
The Tribunal gives the allegations no weight due to the fact that the allegations are unsubstantiated by dates or documentary evidence, that the allegations have not been tested and their lack of direct relevance to the issue for determination in this matter.
No less favourable terms and conditions of employment: r.5.19(3)(e)
Regulation 5.19(3)(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.
At the hearing, Mr Bown stated that the applicant does not have an Australian citizen or permanent resident working in the position of Motor Mechanic at the present time. The Employment Contract dated 15 January 2020 provides that the applicant will pay the nominee a salary of $56,000 per year (equivalent to $1,076.92 per week), plus superannuation in accordance with the Superannuation Guarantee (Administration) Act 1992. The nominee is entitled to leave in accordance with the National Employment Standards.
As the applicant has no Australian citizen or Australian permanent resident performing equivalent work to that to be performed by the nominee in the position, to enable the applicant to satisfy this requirement, it must establish the terms and conditions which would be provided to an Australian citizen or permanent resident to perform such work.
There is no information before the Tribunal regarding the terms and conditions which would be provided to an Australian citizen or permanent resident to fill the position, particularly in relation to the salary which would be paid to such an employee. Mr Bown did make some references in his evidence to the issue of salary for a motor mechanic. When referring to the circumstances of his first employing the nominee in 2014, he said that it was difficult to find someone who was prepared to work for less than $2,000.00 per week.
The Tribunal noted to Mr Bown that there was very little market salary evidence before the Tribunal and asked him what such evidence had been produced. He did not reply to the question directly but said that he did not think that the applicant could afford to pay a salary of $100,000.00 per year.
The Tribunal advised Mr Bown that the applicant needed to show that it was not underpaying the nominee compared to what the applicant would have to pay to an Australian citizen to do the same work. The Tribunal advised him that this requirement was usually satisfied by producing evidence from websites such as PayScale or Seek as to the going rate for motor mechanics on the Gold Coast. The Tribunal advised him that time would be allowed after the hearing so that further material could be provided. At the conclusion of the hearing, the Tribunal advised Mr Bown that a period of 14 days would be allowed for the filing of further material. The Tribunal renewed its advice to Mr Bown that the applicant needed to provide evidence of the salary which would be payable to an Australian to fill the position.
The only evidence produced to the Tribunal since the hearing in relation to this requirement is a submission from the representative which states as follows:
Our client informs us that the salary of Gurdeep Singh was decided on the basis of his research from and also as advised by his previous migration agent.
The Tribunal has 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 further submissions to support the application. The Tribunal has taken into account the following matters:
a.That the Tribunal wrote to the applicant on 30 March 2020 in the following terms:
In order for the nomination of a position to be approved, the Tribunal must be satisfied that all of the relevant criteria in r.5.19 of the Regulations are met at the time of its decision. As the application for nomination was made under the Temporary Residence Transition nomination stream, the relevant criteria are in rr.5.19(2) and (3) of the Regulations.
The Tribunal now requires updated and current information addressing these criteria. Accordingly, and without limiting the information that may be given, you or another person authorised by the applicant are invited to give the following information in writing. We have given examples of the type of information you could provide:
Information about the terms and conditions of employment in the nominated position and whether they are more or less favourable than those provided for an Australian citizen or permanent resident performing equivalent work in the same workplace at the same location;
·A current employment contract in respect of the nominee or letter of engagement that complies with relevant awards for the nominated position (if any).
b.That, as set out in paragraph 28 above, the Tribunal clearly advised Mr Bown at the hearing of the information which was to be provided for this requirement to be satisfied.
The Tribunal notes that, in response to the Tribunal’s letter of 30 March 2020, the applicant produced a copy of the 2020 Employment Contract, but has provided no evidence of terms and conditions which would be provided to an Australian citizen or permanent resident doing the same work. On the evidence available, the Tribunal cannot be satisfied that the terms and conditions of employment applicable to the position will be no less favourable than the terms and conditions that are provided, or would be provided to an Australian citizen or an Australian permanent resident for performing equivalent work in the same workplace at the same location.

Accordingly, the requirement in r.5.19(3)(e) is not met.
For the above reasons the Tribunal is not satisfied that the applicant meets the requirements of r.5.19(3). The applicant has not sought to satisfy the criteria in the Direct Entry nomination stream, and as such has not met the requirements in r.5.19(4). Accordingly, the nomination of the position cannot be approved. Therefore, the Tribunal must affirm the decision under review.
DECISION
The Tribunal affirms the decision under review to refuse the nomination.
Terrence Baxter
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.
Temporary Residence Transition nomination
(3)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 person who holds a Subclass 457 … visa granted on the basis that the person satisfied the criterion in subclause 457.223(4) of Schedule 2; and
(iii)     identifies an occupation, in relation to the position, that:
(A)is listed in ANZSCO; and
(B)has the same 4-digit occupation unit group code as the occupation carried out by the holder of the Subclass 457 … visa; and
(b)the nominator:
(i)     is, or was, the standard business sponsor who last identified the holder of the Subclass 457 … visa in a nomination made under section 140GB of the Act or under regulation 1.20G or 1.20GA as in force immediately before 14 September 2009; and
(ii)    is actively and lawfully operating a business in Australia; and
(iii)     did not, as that standard business sponsor, meet regulation 1.20DA, or paragraph 2.59(h) or 2.68(i), in the most recent approval as a standard business sponsor; and
(c)either:
(i)     both of the following apply:
(A)in the period of 3 years immediately before the nominator made the application, the holder of the Subclass 457 …visa identified in subparagraph (a) (ii) has:
(I)held one or more Subclass 457 visas for a total period of at least 2 years; and
(II)been employed in the position in respect of which the person holds the Subclass 457 … visa for a total period of at least 2 years (not including any period of unpaid leave);
(B)the employment in the position has been full-time, and undertaken in Australia; or
(ii)    all of the following apply:
(A)the person holds the Subclass 457 … visa on the basis that the person was identified in a nomination of an occupation mentioned in sub-subparagraph 2.72(10)(d)(iii)(B) or sub-subparagraph 2.72(10)(e)(iii)(B);
(B)the nominator nominated the occupation;
(C)the person has been employed, in the occupation in respect of which the person holds the Subclass 457 … visa, for a total period of at least 2 years in the period of 3 years immediately before the nominator made the application; and
(d)for a person to whom subparagraph (c)(i) applies:
(i)     the person will be employed on a full-time basis in the position for at least 2 years; and
(ii)    the terms and conditions of the person’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)     the nominator:
(A)fulfilled any commitments the nominator made relating to meeting the nominator’s training requirements during the period of the nominator’s most recent approval as a standard business sponsor; and
(B)complied with the applicable obligations under Division 2.19 relating to the nominator’s training requirements during the period of the nominator’s most recent approval as a standard business sponsor; or
(ii)    it is reasonable to disregard subparagraph (i); and
Note Different training requirements apply depending on whether the application for approval as a standard business sponsor was made before 14 September 2009 or on or after that date.
(g)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
(h)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.

[2020] AATA 6196

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Statutory Construction

Procedural Fairness

Jurisdiction