Johnson, Bradley Scott (Migration) - [2021] AATA 1716

Johnson, Bradley Scott (Migration) [2021] AATA 1716 (15 April 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Johnson, Bradley Scott
CASE NUMBER:  1820636
HOME AFFAIRS REFERENCE(S):          BCC2016/3823571
MEMBER:K. Chapman
DATE:15 April 2021
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision under review to refuse the nomination.

Statement made on 15 April 2021 at 4:16pm

CATCHWORDS
MIGRATION – Employer Nomination – approval of nominated position – Direct Entry Nomination – Motor Mechanic – term of employment – nominee no longer employed – nominee withdrew application for review – genuine need – business not actively trading – decision under review affirmed
LEGISLATION
Migration Regulations 1994 (Cth), r 5.19
CASES
Bharaj Construction Pty Ltd v MIBP [2016] FCCA 902

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 12 July 2018 to refuse 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, Mr Bradley Scott Johnson as a sole trader T/A ‘Performance Auto’s Nerang’ (also ‘the nominator’), applied for approval on 15 November 2016. The applicant nominated Mr Kamaldeep Singh (‘the nominee’) in the occupation of Motor Mechanic (ANZSCO Code 321211). The application for nomination was made in connection with the Regional Sponsored Migration Scheme (RSMS). The nominated position is located in Nerang, Queensland.
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 Direct Entry nomination stream.
The delegate refused the application on the basis that the applicant’s nomination did not satisfy r.5.19(4)(d)(i), due to a lack of satisfaction that the nominee would be employed on a full time basis in the nominated position for at least 2 years. On 16 July 2018, the applicant applied to the Tribunal for review of the nomination decision. The applicant submitted a copy of the delegate’s decision with his application for review.
On 17 November 2020, the Tribunal Registry wrote to the applicant pursuant to subsection 359(2) of the Act inviting him to provide current information addressing the relevant criteria under r.5.19(2) and (4) of the Regulations. In response, the Tribunal received material including, but not limited to, written submissions, Australian Business Register information, organisational chart, employment contract with job description, market salary information, Form 1404 Regional Certifying Body advice, Gumtree advertisement, taxation records and financial statements. All material received has been duly considered by the Tribunal.
The applicant, Mr Bradley…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2021] AATA 1716
Decision Date: 15 April 2021

CaseChat Overview and Summary

This matter concerned an appeal by Mr Bradley Scott Johnson against the refusal to approve his nomination of a position under the Direct Entry stream of the Employer Nomination scheme. The Administrative Appeals Tribunal was required to determine whether Mr Johnson, as the nominator, met the requirements of regulation 5.19(4) of the Migration Regulations 1994 for the approval of the nominated position.

The Tribunal was tasked with assessing whether the nominated position met the criteria for approval, specifically considering the applicant's business operations and the employment status of the nominee. Key issues included whether the nominator was actively and lawfully operating a business, whether there was a genuine need for a paid employee, and the implications of the nominee withdrawing their own application for review. The Tribunal also had to consider the impact of COVID-19 on the business's trading status and Mr Johnson's current employment situation.

The Tribunal affirmed the decision to refuse the nomination. It found that Mr Johnson's mechanical garage had ceased trading due to COVID-19 and remained closed, with no current active operations. Furthermore, the nominee, Mr Kamaldeep Singh, had withdrawn his application for review, which the Tribunal considered relevant to the assessment of a genuine need for full-time employment for at least two years. The Tribunal concluded that the requirements of regulation 5.19(4) were not met, leading to the affirmation of the original decision.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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 Direct Entry nomination stream set out in r.5.19(4), which is extracted in the attachment to this decision. For the nomination to be approved, all the requirements must be met.The Review Hearing – 30 March 2021 During the review hearing, the Tribunal canvassed with Mr Johnson the requirements for the nominations to be approved. His oral evidence to the Tribunal may be summarised as follows. Mr Johnson outlined that the impact of COVID-19 in March 2020 saw his mechanical garage cease trading at that time. Its doors remain closed, however Mr Johnson aspires to reopen the garage in around 6 months time when he acquires sufficient funds to do so. Mr Johnson informed the Tribunal that he is presently working in security at a mining site on a Fly-In-Fly-Out (FIFO) basis. He does not want to continue this occupation for too long and hopes to reopen his mechanical garage. The Tribunal canvassed Mr Johnson’s past history of employing staff. Mr Johnson outlined that Mr Yadvinder Singh initially commenced on a part time basis in 2016 and two other part time employees joined him. They were Mr Kamaldeep Singh (nominated for a Subclass 187 visa) and Mr Manpreet Singh (nominated for a Subclass 457 visa). All three individuals have been nominated by Mr Johnson. The Tribunal explored with Mr Johnson his current staffing arrangements. Mr Johnson confirmed that Mr Kamaldeep Singh was no longer employed in his business and had not worked for him since March 2020. Further, Mr Johnson advised that Mr Manpreet Singh no longer worked for him, having only ever worked ‘a couple of days’ part time. Additionally, Mr Johnson indicated that Mr Yadvinder Singh has not worked for him since 30 March 2020, however he aspires to re-employ him and maintains support for his nomination. Mr Johnson also noted that he had employed other individuals over his 30 years in business. Pursuant to the procedure in s.359AA of the Act, the Tribunal raised the following information with Mr Johnson during the review hearing (with respect to the present matter 1820636):·The nominee, Mr Kamaldeep Singh, recently withdrew his application for review in the Tribunal, matter number 1826048, in relation to the refusal of his Subclass 187 visa application made in association with your application for nomination. On 24 March 2021, the Tribunal accepted this withdrawal and therefore his matter has now been finally determined. The Tribunal indicated that this information is relevant to the review as it tends to suggest that Mr Kamaldeep Singh will not be employed on a full-time basis in the position for at least 2 years and there is not a genuine need for Mr Johnson to employ a paid employee to work in the position under his direct control. The Tribunal advised that if it was to rely upon this information, it would be the reason or a part of the reason to affirm the decision not to approve the nomination.

Decision

Reasons for decision

For the above reasons, the Tribunal is not satisfied that the applicant meets the requirements of r.5.19(4). The applicant has not sought to satisfy the criteria in Temporary Residence Transition Nomination stream, and as such has not met the requirements in r.5.19(3). Accordingly, the nomination of the position cannot be approved. Therefore, the Tribunal must affirm the decision under review.DECISION The Tribunal affirms the decision under review to refuse the nomination.K. ChapmanMemberATTACHMENT - EXTRACTS FROM THE MIGRATION REGULATIONS 19945.19Approval 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).

Ratio Decidendi

Legal Principle Established

The Tribunal affirms the decision under review to refuse the nomination.K. ChapmanMemberATTACHMENT - EXTRACTS FROM THE MIGRATION REGULATIONS 19945.19Approval 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).