JWJL Investments Pty Ltd ATF JWJL Investment Unit Trust (Migration)

JWJL Investments Pty Ltd ATF JWJL Investment Unit Trust (Migration) [2019] AATA 3693 (3 July 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  JWJL Investments Pty Ltd ATF JWJL Investment Unit Trust
CASE NUMBER:  1718314
DIBP REFERENCE(S):  BCC2016/3238488
MEMBER:Keith Kendall
DATE:3 July 2019
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision under review to refuse the nomination.

Statement made on 03 July 2019 at 10:06am

CATCHWORDS
MIGRATION – nomination refusal– Temporary Residence Transition nomination stream – standard business sponsor– nominating business had not spent the requisite amounts on staff training – Training Benchmark A has not been met – Training Benchmark B has not been met – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 359, 360, 363
Migration Regulations 1994, r 5.19
CASES
Hasran v MIAC [2010] FCAFC 40

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 Immigration on 31 July 2017 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 applied for approval on 29 September 2016. 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 (r.5.19(3)) stream and a Direct Entry nomination (r.5.19(4)) stream. 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 nominated occupation is Cook.
The delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19(3) of the Regulations because the delegate was not satisfied on the evidence provided to them that the nominating business had spent the requisite amounts on staff training under r.5.19(3)(f).
On 19 October 2017, the applicant applied to the Tribunal for a review of the delegate’s decision and with the application submitted a copy the primary decision.
On 15 April 2019, the Tribunal wrote to the authorised representative for the review applicant pursuant to s.359(2) of the Act, inviting the review applicant to provide information addressing the specific criteria set out for an employer nomination under r.5.19(3), which were explicitly specified in that letter in writing.
The invitation was sent to the address of the authorised representative for the review applicant consistent with the information available provided by the review applicant to the Tribunal at that time. The invitation advised that if the information was not provided in writing by 29 April 2019 or the applicant had not made a request for an extension of time in which to provide the information, the Tribunal may make a decision on the review without taking further steps to obtain the information and the review applicant would lose any entitlement he might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.
On 15 April 2019, the authorised representative for the review applicant wrote to the Tribunal advising that they no longer acted in this matter.
On 8 May 2019, the Tribunal wrote to the review applicant pursuant to s.359(2) of the Act, inviting the review applicant to provide information addressing the specific criteria set out for an employer nomination under r.5.19(3), which were explicitly specified in that letter in writing.
The invitation was sent to the last address provided in connection with the review by the review applicant and advised that, if the information was not provided in writing by 31 May 2019 or the applicant had not made a request for an extension of time in which to provide the information, the Tribunal may make a decision on the review without taking further steps to obtain the information and the review applicant would lose any entitlement he might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.
The review applicant has not provided the information within the prescribed period and no extension has been granted. In these circumstances, s.359C applies and pursuant to s.360(3) the review applicant is not entitled to appear before the Tribunal. The effect of s.363A of the Act is that if a review applicant has no entitlement to a hearing, the Tribunal has no power to permit him or her to appear: Hasran v MIAC [2010] FCAFC 40. The Tribunal has decided to proceed to decision without taking further steps to obtain the information.
The Tribunal has also considered whether it should adjourn the review under s.363(1)(b) of the Act to allow the applicant additional time in which to provide further evidence to support the application.
The Tribunal considered whether, in the circumstances of this case, the evidence that the applicant meets all of the requirements of r.5.19(3) is likely to be forthcoming, whether the applicant had a fair opportunity to provide the relevant information or documents already, and the significance of the information or documents to the applicant.
The Tribunal has had regard to the fact that the nomination application was refused by the delegate on 31 July 2017.
The Tribunal wrote to the applicant pursuant to s.359(2) of the Act on 8 May 2019 requesting further information in support of the application. The applicant has failed to do so.
In the circumstances, the Tribunal considers the applicant has had sufficient time in which to address the central issues arising in the application for review. Accordingly, the Tribunal has decided not to exercise its discretion under s.363(1)(b) of the Act to adjourn the review any further. The Tribunal has determined to make a decision on the review without taking any further action to obtain the information in accordance with s.359C.
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.
Training commitments and obligations: r.5.19(3)(f)
Regulation 5.19(3)(f) requires the applicant to have fulfilled any commitments made relating to meeting training requirements, and complied with applicable obligations relating to training requirements, during the period of the applicant’s most recent sponsorship approval, being 23 April 2014 until 23 April 2017. These requirements may be disregarded if it is reasonable to do so.
In accordance with Instrument number IMMI 13/030, the nominating business may meet the training expenditure requirement of r.5.19(3)(f) in one of two ways. In brief, during the period of sponsorship, Training Benchmark A requires that the nominating business contribute at least 2% of its payroll to an industry training fund, and Training Benchmark B requires that the nominating business spend at least 1% of its payroll in providing training to its employees.
No evidence has been provided in respect of Training Benchmark A, nor has the nominating business claimed such expenditure. Therefore, the Tribunal is not satisfied that Training Benchmark A has been met.
In support of its original application to have met Training Benchmark B, the nominating business provided its financial report for the year ended 30 June 2016, which included comparison figures for the year ended 30 June 2015. No other financial reports were provided.
A revised profit and loss statement was subsequently provided to the delegate in which expenditure on “Staff Training & Welfare” was revised upwards. Wages and superannuation contributions were not adjusted. This is considered below.
The financial report provided indicated that wages of $247,102 and superannuation contributions of $30,701 were paid in 2016, constituting a total payroll of $277,803 in 2016. The same report indicates that wages of $270,063 and superannuation contributions of $22,949 were paid in 2015, constituting a total payroll of $293,012 in 2015.
Business activity statements lodged on a quarterly basis were provided covering the same periods as the financial report provided (that is, the years ended 30 June 2015 and 2016).
Wages paid in the year ended 30 June 2015 as disclosed in the business activity statements provided amounted to $270,066. The Tribunal regards the small difference ($3) between the wages paid as recorded in the business activity statements and the financial report is inconsequential and these figures are accepted as accurate.
Wages paid in the year ended 30 June 2016 as disclosed in the business activity statements provided amounted to $221,534. This includes the business activity statement for the March 2016 Quarter in which nil wages are reported.
A short note from the nominating business’ accountant notes that this was due to the closure of the business due to restoration works following a flood and that wages paid during this period were included in the June 2016 business activity statement. Consequently, it is expected that any understatement of wages paid in the March 2016 Quarter had been rectified in the June 2016 Quarter business activity statement, with the outcome that the total wages paid for the year ended 30 June 2016 as disclosed in the business activity statements should align with wages as recorded in the financial report for that year.
The total wages reported in the business activity statements for the year ended 30 June 2016 ($221,534) is significantly different from that recorded in the financial report covering the same period ($247,102). In the absence of evidence explaining this discrepancy, the Tribunal gives no weight to this evidence.
The nominating business provided a number of invoices demonstrating training expenditure made during the relevant periods. As noted above, the financial report provided figures labelled “Staff Training & Welfare”.
In relation to the year ended 30 June 2015, one invoice from Sam Pinzone Consulting (invoice #296) was provided in the amount $3,200. Two invoices (invoice #4343 and #4623) were provided from Campos Coffee amounting to $890 ($570 and $320 respectively). This amounts to a total of $4,090.
The financial report initially provided indicated that an amount of $10 had been spent on Staff Training & Welfare. This figure was subsequently revised up to $2,919.
A letter from the nominating business’ accountant dated 31 July 2017 explained that the reason for the revision was that the expenditure to Campus Coffee had originally been included in Coffee purchases.
The upwards revision $2,909 is significantly higher than the amounts documented as paid to Campos Coffee ($890). Further, the revised figure in the financial report of $2,919 is significantly different from the aggregate of the invoices provided of $4,090. Allowing for the exclusion of goods and services tax (GST) from the Campos Coffee invoices, a total of $84, the total documented amount of $4,006 remains significantly different from that reported in the financial report. It is noted that no amount of GST was recorded in the invoices provided by Sam Pinzone Consulting.
In the absence of evidence explaining this discrepancy, the Tribunal gives no weight to this evidence.
In relation to the year ended 30 June 2016, one invoice from Sam Pinzone Consulting (invoice #156) was provided in the amount of $3,250. It is noted that this invoice purports to cover training provided across the year from 6 April 2015 to 8 April 2016 without any details of precise dates as to when the training was provided. It is further noted that this amount exactly aligns with the amount claimed in the nominating business’ original application lodged on 29 September 2016 as being the amount of expenditure on training in the 12 months preceding that date. Consequently, it is assumed that this amount relates to training provided some time between 30 September 2015 and 8 April 2016, being the period of overlap between the two period relevant to the invoice (6 April 2015 to 8 April 2016) and the original application (30 September 2015 and 29 September 2016). No other documents were provided dealing with training expenditure for the year ended 30 June 2016.
The original financial report provided indicated that an amount of $2,414 had been spent on Staff Training & Welfare. This was subsequently revised up to $3,231. This revision was explained by the accountant’s letter of 31 July 2017 referred to above.
From the evidence provided, it is difficult to see the basis for the revision of the training figure in the financial report for 2016. The explanation for the revision provided by the nominating business’ accountant was that the original reported figure did not include any amounts from Campos Coffee. However, no invoices have been provided from Campos Coffee relating to the year ended 30 June 2016, therefore, it is difficult to see how the explanation provided relates to the revision for the 2016 figure.
Further, while the revised figure of $3,231 is not materially different from that in the invoice provided ($3,250), given that only a single invoice has been provided, it is difficult to see how any difference could arise.
In the absence of any evidence explaining these discrepancies, the Tribunal gives no weight to this evidence.
In the absence of sufficient evidence being provided in relation to Training Benchmark B, the Tribunal is not satisfied that Training Benchmark B has been met.
The Tribunal has the discretion to disregard the training benchmark requirements where it is reasonable to do so. Given the lack of sufficient evidence provided as described above, the Tribunal does not believe that there are reasonable grounds on which to disregard the requirement to meet the training benchmarks.
Accordingly, the requirement in r.5.19(3)(f) 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 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.
Keith Kendall
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.

[2019] AATA 3693

3 July 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Statutory Construction

Procedural Fairness

Appeal