Karola Szecsko (Migration)

[2021] AATA 3746

Karola Szecsko (Migration) [2021] AATA 3746 (8 September 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Karola Szecsko

CASE NUMBER:  1828530

HOME AFFAIRS REFERENCE(S):          BCC2017/2300620

MEMBER:De-Anne Kelly

DATE:8 September 2021

PLACE OF DECISION:  Brisbane

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

Statement made on 08 September 2021 at 12:30pm

CATCHWORDS
MIGRATION – nomination – Direct Entry nomination stream –not satisfied that the nominee can work full time for at least the next two years – applicant did not demonstrate financial capacity to pay the nominated full-time salary for the nominated position – decision under review affirmed

LEGISLATION
Migration Act 1958, s 65
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 10 September 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).

2. The applicant applied for approval on 28 June 2017. 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).

3. 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 the applicant’s nomination did not satisfy r.5.19(4)(d)(i) of the Regulations because the applicant did not demonstrate the capacity to be able to pay the full-time salary and other employment conditions for the position for at least two years.

5. The applicant appeared before the Tribunal on 10 August 2021 to give evidence and present arguments. This was a dual hearing of both the employer nomination refusal review and the visa application refusal review.

6. The applicant Ms Karola Szecsko is self-represented being a registered migration agent.

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.

9. Ms Szecsko set up her own migration services business in 2013 and has always operated as a sole trader. In August 2015 the nominee who had been working for another Hungarian migration agency joined the business. The applicant wanted to expand the business and while the Hungarian market is small, there are other applicants from across Europe and they prefer to deal with European agents. Once the nominee joined the business, she was able to work part time until March 2019 and then commenced full-time work.

10. In 2017 they opened a Hungarian office to diversify business activities. The nominee’s student visa was about to expire and so they sponsored her for the 186 visa. The nominee has been in the industry for quite a while and has extensive work experience. The applicant has suffered some tragic personal circumstances when in 2017 her mother died, and she returned to Hungary as a result and the same time they lost their first child. The applicant was working intermittently and ceased work for six months for personal reasons. In September 2018 she had another miscarriage and was advised to take better care of herself. She worked part time and left Australia three times for a holiday and to visit her parents. She was able to spend time with her mother before she passed away. She was working very hard and full time and in December 2019 gave birth to a child and has been on maternity leave ever since. She had to rest for a good deal of time and then COVID-19 hit the business.

11. The applicant has been working limited hours perhaps two hours per day. In financial years 2019 and 2020 they lodged respectively 75 applications and 41 applications. The woman in their Hungary office became depressed and now the nominee who is presently in Hungary coordinates the business there. She advised that most migration agents have gone bankrupt because of COVID-19 but they have survived and have made a profit even though she has been on maternity leave. The nominee has played a key role in this.

12. The nominee addressed the Tribunal’s questions and advised that their everyday life is in Australia but last year her mother died and she couldn’t be in Hungary and struggled with missing a family wedding and her mother’s funeral and wanted to be in Hungary for her daughter giving birth. They wanted to be vaccinated in Hungary so they will be safe to travel back to Australia when borders open.

13. The Tribunal raised the concern that the nominee was overseas and had been from about May 2021 and if she was working for the business full-time in Hungary was there a need for the position to be located in Australia. The applicant advised that the nominee is visiting schools and promoting travel to Australia for a gap year of overseas study which is something many Hungarians can now afford for their children. The reason for the nominee’s travel to Hungary was personal but they made opportunities for her to work whilst there. She is arranging exhibitions and workshops. The full-time position is in Australia and they believe that once the borders open, they will be the first to offer these services for students to travel and study in Australia. The nominee can speak Hungarian, and this is an advantage and if the application is not approved they will have to close the business.

    Section 359AA of the Act

14. At the commencement of the hearing, the Tribunal explained that it may put information to the applicant, under s.359AA of the Act, that would be the reason, or a part of the reason, for affirming the decision that is under review and that it would explain why this information was relevant to the decision and how it may be relied upon in reaching a decision. The Tribunal also advised that the applicant would be given an opportunity to respond to this information in one of three ways: they could request an adjournment and the hearing could be stopped for 15 or 20 minutes or whatever period of time they wished and they could seek advice from the registered migration agent; the applicant could make a written submission within 14 days or an extended period of time if it requested an extension; or they could respond in the hearing. If they responded in the hearing, it would not prevent them from making a written submission within 14 days or a longer period if they requested an extension of time.

15. Section 359AA provides as follows:

    (a)   The Tribunal may orally give to the applicant clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and

    (b)   if the Tribunal does so—the Tribunal must:

    (i)ensure, as far as is reasonably practicable, that the applicant understands why the information is relevant to the review, and the consequences of the information being relied on in affirming the decision that is under review; and

    (ii) orally invite the applicant to comment on or respond to the information; and

    (iii) advise the applicant that he or she may seek additional time to comment on or respond to the information; and

    (iv) if the applicant seeks additional time to comment on or respond to the information—adjourn the review, if the Tribunal considers that the applicant reasonably needs additional time to comment on or respond to the information.

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

16. Regulation 5.19(4)(d) requires the nominee to be employed in the nominated position for at least two years full time, and the terms and conditions of that employment do not expressly exclude the possibility of an extension.

17. The Tribunal had examined the personal tax return for the applicant for FY 2019, 2020 and 2021 and summarised them below.

Tax return	2021	2020	2019
Income	35,556	43,929	45,855
Spouse income	48,113	75,000	60,000
Total Income	85,197	129,709	111,207
Superannuation	2,818	2,587
Motor vehicle	21,220
Admin support	26,959	35,873	30,616
Total expenses	49,641	85,780	65,352
Profit	35,556	43,929	45,855
Balance of nominee Wage	37,605	28,922	36,766
Profit	-2,049	15,007	9,089

1. It noted that the total income for the business respectively for FY 2019, 2020 and 2021 was $111,207, $129,709 and $85,197 with expenses again respectively of $65,352, $85,780 and $49,641. This left a profit in each of these years of $45,855, $43,929 and $35,556.

2. However, in the attached tax return worksheet, it showed for wages paid only amounts designated “admin support” which the applicant confirmed were the wages paid to the nominee. The nominee was the only person who was paid wages and superannuation from the business. The Tribunal noted that these amounts were considerably less than the salary package, including wages and superannuation for the nominee of $67,382. If the Tribunal made allowance for the wages and superannuation paid to the nominee in each of FY 2020 and 2021 and deducted the additional amount to bring the salary package up to $67,382, it was left with in FY 2020 and 2021 respectively a profit of $15,007 and a loss of $2,049.

3. The Tribunal asked the applicant bearing in mind she drew no wages from the business how she personally would have survived with such a modest profit in FY 2020 and a loss in FY 2021. It was noted that her husband had a personal income, but the Tribunal could not see it would be sustainable for an applicant to have a business that provided her so little personal income. The applicant responded that she works as a contractor, has no government support but can deduct some of the costs against income in the tax return. She could not work full time because her pregnancy had been high risk. She advised that if they could work full time again then the business would be financially viable.

4. The Tribunal put these concerns under s.359AA to the applicant that with both Ms Szecsko and the nominee being unable to work full time the business may not be financially viable enough for it to ensure the employee will be employed on a full-time basis in the position for at least two years because for the past two financial years, had the business paid the nominee a full salary package, there would have been for Ms Szecsko a very modest personal income of $15,007 in FY 2020 and a loss of $2,049 in FY 2021.

5. The applicant requested an adjournment for 15 minutes which was granted.

6. The applicant responded in the hearing that when they are both able to work full time on the business the income is quite high. She referenced the BAS statements which show quarterly income as high as $41,213 in Q2 2020 and $35,018 in Q4 2019. She stated that her son was turning one in September 2021 and she could place him in day care and then work full time.

7. The Tribunal has considered the high income generated in the past and particularly when both Ms Szecsko and the nominee are able to work full time in the business. It accepts that if the high income could be generated again over at least the next two years then the business would be financially viable and able to employ and pay the nominee on a full-time basis.

8. However, the question for the Tribunal is when Ms Szecsko and the nominee will be able to return to full-time work to generate this income. It is accepted that both had tragic personal circumstances that necessitated them prioritising family needs ahead of business needs.

9. The applicant has provided able evidence of the circumstances that led to them being unable to work full time and it is accepted. Ms Szecsko was forthright and honest. The Tribunal has much empathy for the difficult personal and business choices she has been faced with. It also acknowledges that she states the business may close without the employer nomination being approved. It is also acknowledged that the applicant has sought to make the best she can from the nominee being unable to be granted an exemption to travel back to Australia and has engaged her in various promotional activities in Hungary to benefit the business when the borders are open. The applicant believes the borders may re-open soon and that their business will be well placed to benefit from migrants from Hungary and Europe.

10. The Tribunal acknowledges that Ms Szecsko is an admirable professional trying her best to keep her business going in a pandemic and care for her family.

11. However, it is speculative that the nominee will be granted an exemption or that caps on international travel into Australia will be lifted in the near future although it is predicted the border should open on 17 December 2021 but this is speculative and dependent on a number of unknowns. It may be the end of 2021 or it could be mid-2022 or later, it is simply not possible to predict.

12. Although Ms Szecsko has stated that she could place her child in day care and work full time there is scant evidence that she has attempted to secure a place in day care for the child and even if she had and could work full time there is limited revenue to be gained from a migration agent’s business at present with caps on international travellers into Australia and the uncertainty of international borders being opened.

13. The Tribunal unfortunately cannot be satisfied that the nominee and Ms Szecsko can work full time for at least the next two years and thus generate enough revenue such that the business is financially viable and can ensure the employee (the nominee) will be employed on a full-time basis in the position for at least two years because the nominee cannot return to Australia and is only working part time in Hungary and Ms Szecsko is on maternity leave and there is little revenue for her migration business with caps on international travellers into Australia and although the government has predicted the borders opening on 17 December 2021 this is speculative and depends on a number of unknowns including the level of adult vaccination.

14. As such, the Tribunal finds the applicant does not meet r.5.19(4)(d)(i).

15. Accordingly, the requirement in r.5.19(4)(d) is not met.

16. 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 the 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

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

    De-Anne Kelly
    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).

    Schedule 1

    Documents including the following were provided with the original application:

    1)Acknowledgement of receipt of the nomination application dated 28 June 2017.

    2)Similar job advertisements.

    3)Statement from the applicant addressing the need of a paid position in the nominated role dated 28 June 2017.

    4)Letter from applicant’s accountant dated 22 June 2017.

    5)Employment agreement with the nominee dated 27 June 2017.

    6)Tax invoices relating to office leases in Sydney and Hungary.

    7)Tax return 2016, 2017, 2018.

    8)Organisational Chart.

    9)Recruitment summary dated 28 June 2017.

    10)ASIC Business Name Registration and ABN Lookup.

    11)Industry training fund receipt dated 28 June 2017.

    12)Statement from the applicant explaining the determination of the market salary rate dated 27 June 2017.

    13)PayScale salary market analysis for a Project Coordinator in Sydney.

    14)Business Activity Statements 2017, 2018.

    15)Statement by the applicant providing an update on the progress of the business dated 26 March 2018.

    16)Translated travel itinerary of the applicant dated 22 February 2018.

    17)Bank transfer statements for payment of GST.

    18)ATO Notice of Assessment 2017, 2018.

    19)Letter from applicant’s accountant correcting an error dated 27 March 2018.

    20)Notification and decision of the delegate of the Department to refuse the nomination application dated 10 September 2018.

    Documents including the following were provided with the review application:

    21)Notification and decision of the delegate of the Department to refuse the nomination application dated 10 September 2018.

    22)Invitation to provide information sent to the applicant on 18 June 2021.

    23)Statement from the applicant providing information in response to the invitation dated 2 July 2021.

    24)Tax return 2019, 2020.

    25)Business Activity Statements 2019, 2020, 2021.

    26)Updated Employment Agreement dated 29 June 2021.

    27)Work samples of the nominee.

    28)ANZSCO Classification for Project Administrator 511112.

    29)Tax return of the nominee 2021.

    Documents including the following were provided following the hearing.

    30)E-ticket for Ms Szecsko and her partner to Budapest in March 2017 and a number of other unidentified documents in a foreign language appearing to be receipts for accommodation.

    31)Return air ticket from Brisbane to Budapest for Ms Szecsko in March 2018.

    32)Bachelor of business qualification for the nominee dated 2019.

    33)E-ticket for the nominee and partner to travel outbound from Australia in September 2018.

    34)Letter from Ms Szecsko’s Obstetrician dated 20 August 2021, stating that her rest during her pregnancy in 2020 and safe delivery of a healthy baby would have contributed to the lower than expected turnover in her business.

    35)Birth certificate for Ms Szecsko’s son on 9 September 2020.