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

1. 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’).

2. 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.

3. 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.

4. 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.

5. 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.

6. The applicant, Mr Bradley Scott Johnson, appeared by telephone before the Tribunal on 30 March 2021 to give evidence and present arguments. Mr Johnson consented to a combined review hearing in the matters of 1820636 (nomination of Mr Kamaldeep Singh regarding a Subclass 187 visa), 1822057 (nomination of Mr Yadvinder Singh regarding a Subclass 187 visa), and 1815030 (nomination of Mr Manpreet Singh regarding a Subclass 457 visa), as these matters all pertain to nominations made by him for nominees in the occupation of Motor Mechanic (ANZSCO Code 321211). The applicant was represented in relation to the review by his registered migration agent (‘the representative’).

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

9. 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.

10. 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.

11. 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.

12. 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.

13. Mr Johnson confirmed that he understood why the information is relevant to the review. He was offered additional time before commenting on or responding to the information, however he chose to respond immediately. Mr Johnson responded by indicating that he understands this nomination will not be successful. The Tribunal has carefully considered his response.

14. The Tribunal also canvassed with Mr Johnson the recent financial performance of his business. Mr Johnson explained that he ceased trading in March 2020 due to the impacts of COVID-19. He still pays the leasing and utility costs of his business premises through his income derived from security work in the mining sector. The Tribunal raised with Mr Johnson that he submitted various financial documents, including a Profit and Loss statement for Financial Year 2019 which indicates he suffered a $31,757.32 operating loss then. Further, the Tribunal raised with Mr Johnson that the submitted Profit and Loss statement for Financial Year 2020 indicates he suffered a $36,155 operating loss then. Additionally, the Tribunal raised with Mr Johnson that the submitted Business Activity Statement (BAS) for the period July to September 2020 indicates his business made sales of $24 and paid $0 in salary. The Tribunal discussed these matters with reference to Mr Johnson’s support for the nomination of Mr Yadvinder Singh.

15. The Tribunal raised with Mr Johnson that he submitted various organisational charts to it and the Department. The Tribunal raised with Mr Johnson that the high proportion of visa holders in this small business might tend to suggest there is not a genuine need for him to employ Mr Yadvinder Singh to work in the nominated position under his direct control.

16. During the review hearing, the Tribunal conferred with Mr Johnson and the representative regarding the existence of a certificate pursuant to s.375A of the Act. The Department file BCC2016/3823571 (at TRIM reference OPD 2016/164768) contains such a certificate dated 9 March 2021, which is signed by a delegate of the Minister and the Secretary. The certificate indicates that release of the relevant material would be contrary to the public interest because it would ‘disclose lawful methods for preventing, detecting and investigating breaches or evasions of the law which would or be likely to prejudice the effectiveness of those methods (OPD2016/164768)’. The Tribunal sent a copy of this certificate, a revoked certificate and the revocation document to Mr Johnson prior to the scheduled review hearing. The representative confirmed receipt of same. The Tribunal notes that the certificate is pertinent to the present review application, matter 1820636.

17. The Tribunal invited Mr Johnson and the representative to make submissions on the validity of the s.375A certificate if they wished to do so, however neither did. The Tribunal advised it formed the view that the certificate is valid given public interest grounds are properly stated. Following careful consideration, the Tribunal decided not to release the material in full to Mr Johnson, but provided ‘the gist’ of the material to him using the procedure in s.359AA of the Act:

    a.The Department file BCC2016/3823571 (at OPD2016/164768) contains information from the Australian Border Force alleging suspicious nomination applications made by Mr Johnson in relation to Mr Harjaib Singh (who obtained a Subclass 187 visa in the occupation of Motor Mechanic, whilst the business employee salary figures were low), Mr Yadvinder Singh (who obtained an initial Subclass 457 visa in 2013 through nomination by Fast Fab and Mechanical Pty Ltd, a sponsor of concern due to allegations of a cash for visa scheme), and Mr Kamaldeep Singh. In particular, the information indicates all three visa applicants reside in Brisbane which is 75km away from the employment location, they all have been identified by Queensland Transport and Main Roads as driving taxis, and all have an immigration history of concern.

18. The Tribunal advised Mr Johnson that the above information is relevant to the review as it tends to suggest that Mr Yadvinder Singh will not be employed on a full-time basis in the nominated 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 nominated 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.

19. Mr Johnson confirmed that he understood why the information is relevant to the review. He was offered additional time before commenting on or responding to the information, however he chose to respond immediately. Mr Johnson replied that his other workers were part time, however Mr Yadvinder Singh was full time so he doesn’t understand there to be a problem. When asked by the Tribunal who is Mr Harjaib Singh, Mr Johnson indicated that ‘Harry’ was one of his first employees who wanted to do part time work. According to Mr Johnson, Mr Harjaib Singh ‘did a little bit of work then failed to turn up’. He remembers nominating him for a visa but maintained Mr Harjaib Singh only ever worked part time and then went on holiday to India and Mr Johnson never saw him again. Regarding the business ‘Fast Fab’, Mr Johnson initially advised that he didn’t know them, then later indicated he met the proprietor a couple of times before he went bust and moved back to Melbourne.

20. Mr Johnson maintained that all of his nomination applications are ‘above board’, adding that he tried to get them all part time work and didn’t initially understand the requirement for them to work full time in his business once the nominations were approved. He placed reliance in his representatives (from the firm Migration Guru). Mr Johnson contended that as Mr Yadvinder Singh held a Subclass 457 visa, he wanted to put him on as a proper employee. The Tribunal has carefully considered Mr Johnson’s evidence in response to the s.359AA invitation.

21. In the latter portion of the review hearing, the Tribunal raised with Mr Johnson that the evidence tended to suggest that his three pending nomination applications did not satisfy the legal criteria to be approved. In particular, the Tribunal raised with him that the submitted financial evidence, and his evidence that the business is not currently trading, tended to suggest the nomination of Mr Yadvinder Singh did not satisfy the legal criteria. Further, the Tribunal raised that the information raised pursuant to s.359AA of the Act tended to suggest that the nomination of Mr Yadvinder Singh lacked genuineness. The Tribunal invited Mr Johnson to comment, however he had no further information to provide.

22. The Tribunal invited the representative to make submissions and none were made, preferring to rely upon the written submissions. The representative then advised that Mr Johnson does not want to proceed with the present review application, matter 1820636 pertaining to the nomination of Mr Kamaldeep Singh. Nor does he want to proceed with matter 1815030 pertaining to the nomination of Mr Manpreet Singh. Mr Johnson advised that he agreed. The Tribunal requested that he provide written confirmation of this position and that if he did not it would proceed to decision on these matters. At the time of this decision, no written confirmation of the withdrawal of these matters has been received by the Tribunal. Accordingly, the Tribunal has determined them following careful regard to the evidence. Prior to the conclusion of the combined review hearing, Mr Johnson confirmed to the Tribunal that he had no further evidence to submit. For reference, the Tribunal records that Mr Johnson expressed support for his nomination of Mr Yadvinder Singh.

    ANALYSIS

23. For completeness, the Tribunal records its assessment regarding the information raised pursuant to s.359AA of the Act. The Tribunal has carefully considered Mr Johnson’s evidence in response to this invitation. On balance, the Tribunal affords no weight to the material under cover of the s.375A certificate, given it lacks sufficient particulars and it is also somewhat dated. Accordingly, no adverse inferences are drawn from such material. The Tribunal proceeds to make the following assessment of the criteria relevant to the present application for review in matter 1820636. 

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

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

25. It is apparent that Mr Johnson is not currently actively operating his mechanical repair business as he advised in his oral evidence. Rather, Mr Johnson works as a security officer on a FIFO basis in the mining sector and Performance Auto’s Nerang has not traded since March 2020. Whilst Mr Johnson aspires to reopen his business in around 6 months time, if he acquires sufficient funds to do so, clearly the business is not actively operating at the time of this decision. It presently derives no income from mechanical repairs, nor does it employ any employees. The Tribunal notes that it must assess the circumstances of Mr Johnson’s business at the time of this decision. 

26. On balance, the Tribunal finds that the applicant is not currently actively and lawfully operating a business in Australia as required by r.5.19(4)(b)(i). Accordingly, the requirement in r.5.19(4)(b) is not satisfied by the applicant.

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

27. Regulation 5.19(4)(d) requires the nominee, Mr Kamaldeep Singh, 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.

28. Mr Johnson confirmed in his oral evidence that he no longer employs the nominee, Mr Kamaldeep Singh. He expressed no intention to employ Mr Kamaldeep Singh in the future. Furthermore, Mr Kamaldeep Singh withdrew his own review application pertaining to the associated Subclass 187 visa application as detailed above. Additionally, it is apparent that Performance Auto’s Nerang has not traded since March 2020. Accordingly, at the time of this decision, the Tribunal is not satisfied that the nominee will be employed on a full-time basis in the position for at least 2 years as required by r.5.19(4)(d)(i). Accordingly, the Tribunal finds that the requirement in r.5.19(4)(d) is not met by the applicant.

    RSMS Direct Entry Nomination Stream requirements: r.5.19(4)(h)(ii)

29. Regulation 5.19(4)(h) contains a number of alternative requirements. The present review concerns an application for nomination in connection with the Regional Sponsored Migration Scheme (RSMS), in the Direct Entry nomination stream. Accordingly, r.5.19(4)(h)(i) is not relevant to the review.

30. Regulation 5.19(4)(h)(ii), as is relevant to this review, requires that:

    ·the position and nominator’s business is located in regional Australia, there is a genuine need for the nominee to be employed as a paid employee in the position under the nominator’s direct control, the position 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.

31. Of particular relevance in the present review is the following requirement:

    · there is a genuine need for the nominator to employ a paid employee to work in the position under the nominator’s direct control: r.5.19(4)(h)(ii)(B);

32. The Tribunal notes that the applicant has submitted Form 1404 dated 3 November 2016, from the Chamber of Commerce and Industry Queensland (CCIQ), which is a Regional Certifying Body (RCB) pursuant to instrument IMMI 16/045. The Tribunal is satisfied that a RCB located in Queensland has advised the Minister about the matters set out in r.5.19(4)(e), r.5.19(4)(h)(ii)(B) and r.5.19(4)(h)(ii)(C). The Tribunal has paid due regard to the information contained in the Form 1404. However, the Tribunal also notes the Federal Circuit Court of Australia, in the matter of Bharaj Construction Pty Ltd v MIBP (No. 3) [2019] FCCA 31 (considering an earlier version of r.5.19(4)), provided guidance suggesting that RCB certification will not be ‘sufficient or determinative’ in relation to whether the requirements outlined in r.5.19(4)(e), r.5.19(4)(h)(ii)(B) and r.5.19(4)(h)(ii)(C) are met. Rather, the Court’s guidance indicates that the Tribunal must perform its own assessment of these requirements. Accordingly, the Tribunal has done so in the present review.

1. Mr Johnson confirmed in his oral evidence that he no longer employs the nominee, Mr Kamaldeep Singh. He expressed no intention to employ Mr Kamaldeep Singh in the future. Furthermore, Mr Kamaldeep Singh withdrew his own review application pertaining to the associated Subclass 187 visa application as detailed above. Additionally, it is apparent that Performance Auto’s Nerang has not traded since March 2020. Therefore, at the time of this decision, the Tribunal finds that there is not a genuine need for the nominator to employ a paid employee to work in the position under the nominator’s direct control as required by r.5.19(4)(h)(ii)(B). Accordingly, the requirements of r.5.19(4)(h) are not satisfied by the applicant.

   CONCLUSION

2. 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

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

   K. Chapman
   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).