John P & Kamaljit Singh (Migration)

[2022] AATA 2564

John P & Kamaljit Singh (Migration) [2022] AATA 2564 (14 June 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  John P & Kamaljit Singh

CASE NUMBER:  1829474

HOME AFFAIRS REFERENCE(S):          BCC2017/415762

MEMBER:Ian Berry

DATE:14 June 2022

PLACE OF DECISION:  Brisbane

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

Statement made on 14 June 2022 at 4:06pm

CATCHWORDS

MIGRATION – approval of a nomination – Direct Entry nomination stream – position of Office Manager – genuine position – farm and butchery business – effects of a prolonged drought – updated financial information – tasks of the position corresponding to nominated occupation – decision under review affirmed           

LEGISLATION

Migration Act 1958
Migration Regulations 1994, r 5.19

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 26 September 2018 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 1 February 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. Mr John P and Kamaljit Singh who are husband and wife, (the applicant) have 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)(h)(ii)(B) of the Regulations because the applicant has not explained as to why to office positions are required. The applicant has applied for an Office Manager ANZSCO code 512111 to be employed under this nomination application.

5. The applicant Mr John Singh appeared before the Tribunal on 1 October 2021. However, Mr Sonny Singh (the son of the applicant) was the witness and spokesperson for the applicant Mr John Singh,  who did not give evidence. Mrs Kamaljit Singh neither appeared nor gave evidence.

6. The Tribunal exercised its discretion to hold the hearing by video. During the COVID-19 pandemic, special circumstances exist for the video hearing. The Tribunal also considered the Tribunal’s objective of providing a review that is fair, just, economical and expedient. A hearing by video achieved this end.

7. The applicant was represented in relation to the review by Ms J. Galbraith MARN 1687069. The representative attended the Tribunal hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. 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.

   Background and relevant facts

10. The applicant (husband / wife partnership) as joint partners conduct two businesses: the first of which is rearing pigs and sheep, combined with a dairy business at a property Coorabell located in the Byron Bay hinterland trading as Punjab Stud & Byron Bay Pork, the other a butchery business located in and around Byron Bay NSW.  Coorabell is owned by and is in the joint names of the male applicant Mr John Singh and his brother Mr Neville Singh. The brothers are not in partnership arrangement but share that property Coorabell.  Mr Neville Singh operates a dairy business.

11. The costs of environmental conditions because the applicant to relocate the leased property at Bangalow was to Tenterfield. The applicant purchased the 1,200 acre property near Tenterfield also used for rearing pigs and sheep with the cattle. The applicant explains:

    ‘At the beginning of 2014 financial year we scaled down our piggery operation at Bangalow and began to relocate the entire production hub to Tenterfield. We could not grow our business at Bangalow due to increasing population density and the odour that comes from such a large scale piggery operation. Subsequently Council approvals for expansion and new sheds were not forthcoming. This property was leased, and the rent was also an expense that could be avoided by making a transition. It was a costly move as production was interrupted and growth was stalled until the shift was complete. It took eight months to complete this move at the expense of sales and production.

    Whilst the land at Tenterfield was already owned by the company, the piggery on it required further work to handle the increased production, the office was also refurbished. The property at Tenterfield is 978 ha, in comparison to the property at Bangalow which is 50 ha.

    By moving to Tenterfield, we have grown in size and we have much more production capacity which we are slowly filling. This is not a quick process as pigs have to be born, then grow up and become pregnant again and have more pigs and again before we fill our new facility (a full 3 lifecycles). However, when we get to full production, we expect that our sales will likely go up 35% on 2016 turnover. We are expecting strong profit growth in 2017 and 2018. ‘

12. The applicant’s’ son Mr Sonny Singh, who gave evidence on the applicant’s behalf,  says his father and mother use the  Tenterfield property for fattening pigs, sheep and cattle before being sent to the abattoir. Coorabell is 100 to 1,100 pigs housed in three pens; 90 dairy cows with 60 – 70 dairy cows in rotation meaning that they are not milking but to in the process of calving.

13. In or about July 2019, Mr Sonny Singh has formed a company Johal Holdings Pty Ltd (Johal) which has entered into a partnership with another company to carry on the rearing business at Tenterfield.  Johal’s accountant (CM Partners) in letter dated 1 July 2021 explains the relationship of the parties:

    ‘We act as accountants for the partnership Green Agribusiness Pty Ltd & Johal Holdings Pty Ltd.  Attached ASIC certificate for Johal Holdings Pty Ltd evidencing directors and shareholders.

    Whilst we do not act for the partnership JP Singh & K Singh, we draw your attention to the common director/secretary and beneficial owners and partners within both businesses being Mr John Palmer jet Singh and Mrs Kamaljit Singh.

    We have been requested to provide this letter in support of the immigration visa application, moreover to provide an explanation as to the change in business structure.

    From August 2019 there was an amalgamation of businesses.  The partnership JP Singh & K Singh is now consolidated with thin the partnership known as Green Agribusiness Pty Ltd & Johal Holdings Pty Ltd.  The reason for this restructure came out of the recent droughts and on flow of economic factors that made the amalgamation of both business and advantage.  Both businesses were operating from the same geographical area and the synergies and market strength & growth meant that the businesses can be more profitable and agile in changing markets due to Covid, drought, staff retention/employment and efficiency.

    Please note that the partnership JP Singh & K Singh still continues to trade in the same industry and existing location.  We provide BAS and financials to support this.  The VISA candidate will be required to work in the Tenterfield Shire where the much larger farming enterprises is situated.

    We also provide financial data for the new partnership Green Agribusiness Pty Ltd and Johal Holdings Pty Ltd, this supports the revenue model and significance and scale of the business.

    We understand that the department’s focus on organisations that sponsor migrants and enter into VISA arrangements is that there is a profitable business and one that is not decreasing in revenue.  We draw your attention that in the past few years regional NSW has seen the effects of a prolonged drought and this has meant that revenues and business models have been tested, in some cases business has either declined or stayed stagnant.  With the business of animal husbandry we have had to be agile and responsible with our stock and in some cases not operating the business at full capacity has enabled us to see out the drought.  We reiterate that the restructure has meant that our combined businesses are more efficient/greater turnover and we definitely require the assistance of all our staff to continue on the growth trajectory.

    Due to the original VISA application/applicant being in the name of JP SINGH & K SINGH the applicant will be retained and employ the entity as per VISA requirements.…

14. The Tribunal was not provided with the ASIC details concerning either of the partnership companies.  It does not consider that to be relevant to the nomination now under consideration.

15. The accountant for the applicant provided this information to the Tribunal in letter dated 1 July 2021:

    ‘I confirm that we act as accountant, tax agent and business advisors to John P and Kamaljit Singh (ABN 56 830 293 589)

    In addition to the letter of support provided by CM Partners regarding the re-structure of the business we offer the following information.

    Although there has been a re-structure of the business, John P and Kamaljit Singh has continued to trade independently and will continue to trade in its own right moving forward.

    We have provided tax returns, business financials and business activity statements evidencing recent activity.  Please also note we have been provided an extension to prepare the 2020 financials and tax returns due to the re-structure that has occurred and the subsequent need for stock figures.  As such, we have provided the last 2 tax returns on file.

    We also anticipate greater levels of income generated in the newly formed entity to flow into John P and K Singh increasing profitability of the sponsoring entity.

    It remains our firm opinion that John P and Kamaljit Singh is financially capable of employing a person in the position of Personal Assistant for at least the next two years as per the visa requirements outlined in our original letter of support.…’

16. The applicant made to a submission through its migration representative dated 30 September 2021.  Provided to the Tribunal was an executed partnership agreement between Johal Holdings Pty Ltd and Green Agribusiness Pty Ltd dated 16 July 2019.  It is noted that to the applicant is not involved in that partnership agreement.  The Tribunal has not received, if there is one, an agreement between Johal Holdings Pty Ltd and the applicant which may have involved a transfer of assets with a without livestock.

17. By email dated 22 October 2021, the applicant submitted the following documents for consideration by the Tribunal:

    ·Profit and loss 2021 (draft).

    ·Financial statements 2020

    ·Statement Sonny Singh.

    ·statutory declaration of the nominee.

    ·APIQ plan – Broken Head.

    ·APIQ plan – Tenterfield.

18. The draft profit and loss statement 2021 has the applicant earning a net profit of $136,597 with expenses of $410,451.  The notable expenses include wages of $142,427, superannuation of $14,278 and feeder $159,478.  Comparing the applicant’s financial data for 2021 and for the year ended 30 June 2016, there is a significant difference in financial operations.  For example, the gross profit of the applicant was $1,391,897, other extra income of $73,201 with total operating expenses of $1,391,994 resulting in a net profit of $73,104.  Significantly, expenses relating to feeding grain totalled $527,601, freight and courier total $113,786 and wages/salaries of $135,802.  The Tribunal considers there is a reduction in financial activities from 2016 to 2021 and one which would lead the Tribunal to conclude that an office manager is not required.

19. Mr Sonny Singh’s letter dated 2 October 2021, draws attention to the Tribunal of the nominee’s  statutory declaration where daily tasks as the office manager are detailed as to his daily and other tasks.  In considering the nominee’s tasks and comparing them to the tasks in ANZSCO, they appear to be more  simplistic and more of an assisting role than managing the more complex tasks described in the ANZSCO tasks which are set out as follows:

    ·Contributing to the planning and review of office services and setting priorities and office service standards.

    ·Allocating human resources, space and equipment.

    ·Assigning work to and monitoring work performance of staff.

    ·Managing records and accounts of the office.

    ·Liaising with Professionals to coordinate office business and to facilitate resolution of problems.

    ·Ensuring office equipment and supplies are maintained.

    ·Ensuring compliance with occupational health and safety regulations.

    ·Ensuring work complies with relevant government legislation, policies and procedures.

    ·Coordinating personnel activities such as hiring, promotions, performance management, payroll, training and supervision

    The occupation of office manager ANZSCO 512111 ‘organises and controls the functions and resources of an office such as administrative systems and office personnel.  Skill Level: 2.

20. The Tribunal is not satisfied that the position of office manager is genuine. An office manager is required to take the level of management much higher than that which the nominee is now undertaking. Therefore, the applicant does not meet r.5.19(4)(h)(ii)(B).

21. For the above reasons the Tribunal is not satisfied that the applicant meets the requirements of reg 5.19(4). The applicant has not sought to satisfy the criteria in Temporary Residence Transition Nomination stream, and as such has not met the requirements in reg 5.19(3). Accordingly, the nomination of the position cannot be approved. Therefore, the Tribunal must affirm the decision under review.

    DECISION

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

    Ian Berry
    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).