KAYROUZ CONSTRUCTIONS PTY. LIMITED (Migration)

[2021] AATA 710

KAYROUZ CONSTRUCTIONS PTY. LIMITED (Migration) [2021] AATA 710 (8 February 2021)

Corrigendum

DIVISION:Migration & Refugee Division

APPLICANT:  KAYROUZ CONSTRUCTIONS PTY. LIMITED

CASE NUMBER:  1806412

DIBP REFERENCE(S):  BCC2017/4124311

MEMBER:Sheridan Lee

DATE OF DECISION:  8 February 2021

DATE CORRIGENDUM

SIGNED:30 March 2021

PLACE OF DECISION:  Melbourne

AMENDMENT:  The following corrections are made to the decision:

1.Where it reads ‘DATE OF DECISION: 8 February 2020’ it should read ‘DATE OF DECISION: 8 February 2021’.

Sheridan Lee
Member

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  KAYROUZ CONSTRUCTIONS PTY. LIMITED

CASE NUMBER:  1806412

HOME AFFAIRS REFERENCE(S):          BCC2017/4124311

MEMBER:Sheridan Lee

DATE:8 February 2020

PLACE OF DECISION:  Melbourne

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

Statement made on 8 February 2021 at 3:17 pm

CATCHWORDS

MIGRATION – nomination of a position – Temporary Residence Transition nomination stream – occupation of Wall and Floor Tiler – training commitments – genuine need for the employee – updated financial information – nominee employed by applicant’s related business only – decision under review affirmed  

LEGISLATION

Migration Act 1958, ss 245
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 20 February 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 to nominate the occupation of Wall and Floor Tiler on 6 November 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 Temporary Residence Transition nomination stream.

4. The delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19(3)(f)(i) of the Regulations because the applicant did not demonstrate that it had fulfilled the training commitments during the period of its most recent approval as a standard business sponsor.

5. On 10 August 2020, the Tribunal invited that applicant to provide updated and current information in support of the application by 24 August 2020. The applicant requested an extension of 28 days to allow for the preparation of financial documents and the Tribunal provided until 21 September 2020.

6. On 18 September 2020, the applicant supplied company tax returns for 2018 and 2019 and company financials 2019 for Kaymet Constructions Pty Ltd. The applicant also supplied a PAYG statement issued to the nominee, Esau Taquiri, by Kaymet Constructions for the 2019 financial year.

7. After considering the evidence before it, the Tribunal was unable to make a favourable decision on the information alone. As such, Ms Natalie Kayrouz, Project Manager, and Mr Terry Kayrouz, Director, appeared before the Tribunal via Microsoft Teams to give evidence and present arguments on behalf of the applicant.

8. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by video conference, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by video conference. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

9. The applicant was represented in relation to the review by its registered migration agent.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. 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.

    Genuine need to employ nominee: r.5.19(3)(i)

12. Regulation 5.19(3)(i) requires that there is a genuine need for the nominator to employ the person, as a paid employee, to work in the position under the nominator’s direct control.

13. At the hearing, Ms Kayrouz gave evidence that Kayrouz Constructions is a construction and development company that constructs multi-dwelling projects to lease out on completion. She outlined that the nominee works on projects as a tiler during construction. When the properties are completed and leased out he undertakes some maintenance work.

14. The Tribunal questioned why documentation was submitted as evidence in respect of two separate companies: Kayrouz Constructions Pty Ltd and Kayment Constructions Pty Ltd. In response, Ms Kayrouz gave evidence that at the time the nomination application was made, the nominee was employed by Kayrouz, however he is now working on a project run by Kaymet and is therefore paid by Kaymet. Kayrouz Constructions Pty Ltd and Kaymet Constructions Pty Ltd are separate legal entities that work in partnership. The applicant was provided additional time to make submissions in relation to this issue.

15. In post-hearing submissions dated 22 January 2021, the applicant’s representative outlined that the nominee has worked for both Kayrouz Constructions (abbreviated as KAYC) and Kaymet Constructions (abbreviated as KAYM) as a Wall and Floor Tiler:

    “Mr Toufic Karyouz [sic] is a director of both KAYM and KAYC and has directly employed the nominee, therefore we submit that the nominee is employed with the same employer and performing the same work for both entities.”

16. In support, the applicant supplied Australian Securities and Investments Commission extracts, a PAYG statement issued to the nominee for gross payments totalling $86,410 by Kaymet Constructions for the 2019 financial year (as previously provided to the Tribunal) and 12 pay slips issued to the nominee by Kayrouz constructions for various pay periods between July 2018 and October 2020 and an organisational chart reporting the relationship between the partner companies.

17. The applicant supplied the Tribunal with an ASIC EDGE Company Profile for Kaymet Constructions. The extract reports that company shareholdings are held by Dan Juan Kayrouz, BWAMJ Pty Ltd, JMFS Pty Ltd and Toufic Bechara Kayrouz.  As such, Kaymet Constructions is not a wholly owned subsidiary of Kayrouz Constructions, which might indicate that it operates under the nominator’s direct control. This is reflected in the organisational chart provided by the applicant, which shows the partner companies sitting side by side.

18. While the Tribunal accepts that the nominee has performed work for companies controlled by Mr Kayrouz as an individual, he has been engaged by Kaymet Constructions and not Kayrouz Constructions for the majority of his work since at least 2019. As discussed with the applicant at the Tribunal hearing, Kayrouz Constructions was selected as the nominating employer. The applicant made no submissions to indicate that the nominee would work in the position under the Kayrouz Construction’s direct control going forward.

19. Given that the nominee was not employed to work in the position under Kayrouz Construction’s direct control at the time of the Tribunal hearing or for much of the previous two years, the Tribunal is not satisfied that the applicant has demonstrated a genuine need for the company to employ the person, as a paid employee, to work in the position under the nominator’s direct control.

20. Accordingly, the requirement in r.5.19(3)(i) is not met.

21. 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

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

    Sheridan Lee
    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

    (iv)    identifies a need for the nominator to employ the person, as a paid employee, to work in the position under the nominator’s direct control; 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; and

    (i)there is a genuine need for the nominator to employ the person, as a paid employee, to work in the position under the nominator’s direct control.