KHAN BROTHERS GROUP PTY LTD (Migration)

[2019] AATA 5611

KHAN BROTHERS GROUP PTY LTD (Migration) [2019] AATA 5611 (26 November 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  KHAN BROTHERS GROUP PTY LTD

CASE NUMBER:  1716740

DIBP REFERENCE(S):  BCC2017/1027419

MEMBER:Mr S Norman

DATE:26 November 2019

PLACE OF DECISION:  Sydney

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

Statement made on 26 November 2019 at 12:58pm

CATCHWORDS
MIGRATION – nomination – Direct Entry stream – Transport Company Manager – evidence of financial capacity to provide full-time employment in nominated position for two years not provided – position not genuine – employee currently working in nominated position – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 245AR(1)
Migration Regulations 1994 (Cth), 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 Immigration on 25 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 Department delegate’s decision was lodged with the Tribunal.

2. The applicant applied for approval on 15 March 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 (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).

3. 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 the applicant’s nomination did not satisfy r.5.19(4)(d) & (h) of the Regulations.

4. The applicant did not appear at the Tribunal hearing at the time and place it was scheduled (12.30pm on 21 November 2019). The visa applicant and his family did appear (by video link from the Australian Capital Territory). After discussing same with the visa applicant, and approximately forty minutes after the hearing commencement time, the Tribunal was able to telephone the applicant (Mr Sharyar KHAN) and proceed with the hearing. The Tribunal also received oral evidence from the primary visa applicant and his wife.

5. At hearing, the visa applicant (who presented for the hearing) said the applicant (who did not initially present for the hearing) was ‘happy’ to attend the hearing. Later, the applicant said he had assumed the Tribunal would telephone him (though he made no request for the Tribunal to do so). The Tribunal had issued the applicant a hearing invitation letter (inter alia requiring him to present himself 15 minutes prior to the scheduled start time), and issued him three messages (2 x SMS plus 1x email) within one week of the scheduled hearing. Given the applicant was also assisted by a migration agent and had engaged with the Department on a prior occasion to sponsor a visa applicant to work in Australia, the Tribunal does not accept this explanation (that he assumed the Tribunal would telephone him) is plausible.

6. The applicant was represented in relation to the review by its 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. On 15 March 2017, a Regional Sponsored Migration Scheme Nomination (RN 187N) application was electronically lodged by the applicant/nominator (Khan Brothers Group P/L), under the Direct Entry Stream. The applicant was seeking approval for the position of a Transport Company Manager (ANZSCO: 149413). The base salary was $62,000 per annum. The visa applicant/nominee was Mr Aitsham UL Hassan.

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

10. Regulation 5.19(4)(d) requires the nominee 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.

11. On 25 July 2017, a Form 1221 – Notification of Change of Circumstances, was electronically lodged by the applicant. This advised the business address initially noted was no longer current and the new business address was Unit 7, 22 Geelong St, Fyshwick ACT 2609. In their decision, the delegate noted that no other supporting documents or additional information had been lodged.

12. The delegate then noted the applicant’s business was registered on 18 August 2016 as an Australian private company (ABN: 31614324533); and the business had been registered for approximately seven months at the time of the nomination application.

13. However, the delegate continued that the applicant had not provided documentary evidence to demonstrate the business had the financial capacity or viability to provide full-time employment in the nominated position, for two years. In the circumstances, the delegate was not satisfied the applicant met r.5.19(4)(d)(i); or r.5.19(4)(d).

14. By letter of 27 September 2019 (lodged with the Tribunal), the applicant said the job market information[1] reflected that the salary offered to the nominee, was no less favourable than an Australian citizen or permanent resident would receive working in a similar role and environment in the marketplace.

    [1] Tribunal – from folio 27.

15. Also lodged with the Tribunal was a Detailed Profit and Loss Statement for the Year ended 30 June 2019. Amongst other things that stated:[2]

    ·     2019 - Profit from Ordinary Activities before Income Tax  -  $10,825.99 for 2019 

    ·     2018 - Profit from Ordinary Activities before Income Tax  -  ($14,265.04) for 2018

    ·     2019         - Wages         - $0

    ·     2018         – Wages         - $32,631

    ·     2019         -Total expenses         - $710,174.01

    ·     2018         - Total expenses        - $898,032.31

    [2] Tribunal – folio 36.

16. Also lodged was:

    ·     Company Tax Return for 2018[3] - main business Taxi Service Operation – total loss ($14,265) 

    ·     Company Tax Return for 2019[4] - main business Taxi Service Operation – total loss $10,826

    [3] Tribunal  - folio 54 (reverse side).

    [4] Tribunal  - folio 47 (reverse side).

17. In the aforementioned letter of 27 September 2019,[5] the applicant also said the business commenced in February 2007; initially the business operated around 10 taxis (at hearing he said he now had 12 taxis); and there is now a staff of more than 20 people and that the business is ‘hectic’.

    [5] Tribunal – folio 28.

18. At hearing, the Tribunal referred to the small profit in 2019, and the loss in 2018. Further, the Tribunal referred to the fact of no wages being paid in 2019 and only $32,631 being paid in 2018. The applicant said this was because all ‘staff’ were ‘self-employed’ and had their own ‘ABNs’. This was claimed to be the reason for the $0 wages claimed for 2019. However, the Tribunal noted there did not appear to be any other salary/wage payment identified in the financial documents, and later in the hearing, the applicant said the visa applicant (whose base salary per year was $62,000), had in fact been employed with the applicant since around 2017. Therefore, the Tribunal is not satisfied the salary/wage of the visa applicant had been taken into account in the calculations for the ‘Profit from Ordinary Activities before Income Tax’ for the 2018 or 2019 financial years.

19. At hearing, the applicant said his accountant ‘looks after’ his financial affairs, though he was aware of the financial information lodged on his behalf.

20. That said, and based on the information accepted by the Tribunal, I am not satisfied the   applicant has the capacity to employ the visa applicant in the nominated position for at least 2 years full time.

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

    Tasks of the position genuine need for the position and training requirements r.5.19(4)(h)

22. Regulation 5.19(4)(h) contains a number of alternative requirements. These are set out in detail in the attachment to the decision but can be briefly summarised as requiring:

    ·the position and nominator’s business is located in regional Australia, there is a genuine need for the paid position under the nominator’s direct control which 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.

23. In their decision, the delegate noted the Department had received a copy of advice from a Regional Certifying Body (RCB), Australian Capital Territory (ACT). This had been emailed to the applicant by the RCB on 4 May 2017. The RCB email was sent to the registered migration agent authorised to receive correspondence on behalf of the applicant in relation to the nomination application. The delegate also noted the content of the correspondence identified the nominating employer and was Mr Sharyar Khan.

24. The RCB advice (dated 4 May 2017) was that the RCB did not support the employer nomination under the Regional Sponsored Migration Scheme. In particular:

    The RCB officer stated the assessment was based on the following reasons: “I’m not satisfied that there is a genuine need for the nominated occupation of Transport Company Manager ANZSCO 149413. The employer Mr Sharyar Khan, is running a transport business and providing taxi services located in Nichols ACT.

    In March 2016, the RCB supported a RSMS nomination of a Transport Company Manager to manage Mr Khan’s business. The associated nominee was successfully granted the employer nominated RSMS 187 visa in December 2016. Under the RSMS subclass 187 visa criteria, this RSMS nominee is required to work in the nominated position, as manager, for two years from visa grant until December 2018. Therefore, I am satisfied that the nominated position is not genuine as there is already an employee working in the nominated position of Transport Company Manager.

25. The delegate noted it was further stated “a copy of this advice had been forwarded directly to the Department of Immigration and Border protection for attachment to the Employer Nomination under the Original Sponsored Migration Scheme – EGOE5DX3XJ”.[6]

    [6] Department – folio 15.

26. After acknowledging this information had been provided to the Department by a third party, the delegate believed it was reasonable to conclude the information was also made available to the applicant. Further, that the applicant would have been advised that such information would be lodged with the Department and attached to the relevant Employer Nomination. The delegate noted the advice was sent on 4 May 2017 and that ‘more than eight weeks had passed at the time of their decision’.

27. The delegate concluded it was information that was therefore known to the employer and a reasonable period of time had elapsed for the employer to provide comments about same. After then noting r.5.19(4)(e), and policy advice in PAM 3, the delegate exercised their discretion and accepted the RCB advice. The delegate also noted the applicant had not provided documentary evidence to verify the nature, size and financial position of the business. Further, that no material evidence had been provided to demonstrate that the nominator had a genuine need to employ a paid employee to work in a position under the nominator’s direct control. Therefore, this was further reason the delegate was not satisfied the applicant met r.5.19(h)(ii)(B).

28. When discussed at hearing, the applicant said his aforementioned prior employee had departed his employ in 2016 or 2017 (shortly after his visa was granted). He had not told anyone in the Department, and perhaps more surprisingly, he did not tell the RCB. This was though his prior employee and the present visa applicant were to be engaged in the same position. After accepting the applicant would have understood that he was attempting to sponsor a person in the same position, and given the applicant was assisted by a migration agent, the Tribunal does not accept this is plausible.

29. The Tribunal notes the applicant said the prior employee departed his employ in 2016 or 2017, and the RCB advice said that the prior employee was granted a Subclass 187 visa in December 2016, and as a consequence the two year period had now expired at the time of the Tribunal decision. The Tribunal also notes the RCB had approved the nominated occupation on the prior occasion – though no subsequent request was made to the RCB to reconsider the nominated occupation for the purposes of the present nomination approval application.

30. When then asked, the applicant explained that he owned/operated two businesses. One was the taxi company and one was a mechanical workshop. Both businesses operated in the same premises in Fyshwick ACT. It was said the visa applicant was to manage the taxi business and the applicant was one of three employed mechanics who worked in the workshop. The applicant said he had three hoists in the workshop and he needed three mechanics. When the Tribunal put to him that it may consider whether there was a genuine need for him to employ the visa applicant given he could presumably engage a third mechanic and then personally manage both businesses, the applicant agreed that he could engage another mechanic but he may have trouble keeping the mechanics; though he made no mention of having trouble keeping the two other mechanics who worked in the workshop.

31. That being said, and given the Tribunal was not ultimately satisfied the applicant was reliable, the Tribunal has decided to find there is not a genuine need for the paid position under the nominator’s direct control which cannot be filled by a locally resident Australian citizen or permanent resident.

32. Accordingly the requirements of r.5.19(4)(h) are not met.

33. 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

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

    Mr S Norman
    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).