Kintaro Enterprises Brickworks Pty Ltd (Migration)

[2021] AATA 4878

Kintaro Enterprises Brickworks Pty Ltd (Migration) [2021] AATA 4878 (11 November 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Kintaro Enterprises Brickworks Pty Ltd

CASE NUMBER:  1837901

HOME AFFAIRS REFERENCE(S):          BCC2017/1716986

MEMBER:Stephen Witts

DATE:11 November 2021

PLACE OF DECISION:  Melbourne

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

Statement made on 11 November 2021 at 9:06am

CATCHWORDS
MIGRATION – nomination – Retail Manager – Tribunal is not satisfied that nominee hold the overall control and level of responsibility to undertake the role– applicant has not demonstrated a genuine need to employ the nominee as a paid employee to work in the position– decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 245AR
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 12 December 2018 to reject the applicant’s application for approval of the nomination of a position in Australia under reg 5.19 of the Migration Regulations 1994 (Cth) (the Regulations).

2. The applicant applied for approval on 14 May 2017. The requirements for the approval of the nomination of a position in Australia are found in reg 5.19 of the Regulations which contains two alternative streams: a Temporary Residence Transition nomination stream (reg 5.19(3)) and a Direct Entry nomination stream (reg 5.19(4)). If the application is made in accordance with reg 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: reg 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 reg 5.19(4) of the Regulations because the delegate was not satisfied that the application could demonstrate that the nominated person, Maolong Li, could hold the overall control and level of responsibility to undertake the role of Retail Manager (General) ANZSCO Code 142111.

5. On 5 August 2021 the Tribunal invited the applicant, KINTARO ENTERPRISES Pty Ltd, pursuant to s. 359(2) of the Act to provide information regarding the operation of the business seeking to obtain standard business sponsor approval which was required to be provided by 19 August 2021.

6. The invitation letter informed the applicant that in order for the nomination to be approved the applicant must provide updated and current information addressing the necessary criteria, including whether the applicant is a company or registered business, current and historical information about the business and its ASIC status, lodged tax returns for the last two financial years, business activity statements prepared in accordance with Australian accounting standards including profit and loss statements and balance sheets for the most recent two financial years, an organisational structure chart, necessary job descriptions for the daily tasks to be performed by the nominated position, a current employment contract that complies with relevant awards for the nominated position, invoices or contracts for employee training, local job advertisements for the nominated position, and other material.

7. It was also stipulated that the applicant would lose any entitlement it might otherwise have had under the Migration Act to appear before the Tribunal to give evidence and present arguments.

8. The Tribunal notes that the applicant did not provide the appropriate information as requested within the timeframe.

9. Given the appropriate response was not received by the required date the applicant has lost the right to a hearing and accordingly, the Tribunal has proceeded to determine the matter without recourse to a hearing.

10. For the following reasons, the Tribunal has decided to affirm the decision under review to refuse 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 Direct Entry nomination stream set out in reg 5.19(4), which is extracted in the attachment to this decision. For the nomination to be approved, all the requirements must be met.

12. The Tribunal has considered all material before it and notes that on 3 and 11 November 2021 material was provided to the Tribunal including relevant ASIC company extracts, BAS lodgements from 2018 until 2020,an organisation chart, employment contract material, local job advertisements, payslips from 2019 until 2021, and other material.

13. The Tribunal notes that in the financial year ending 30 June 2020 the business made a net profit of $5834, its total income was $805,358. The Tribunal notes that its net profit at end of financial year 2019 was $120,579 on a similar total income.

    The application is compliant: reg 5.19(4)(a)

14. Regulation 5.19(4)(a) requires that the application for approval must be in the approved form, must be accompanied by the prescribed fee, and, where applicable, must include the required written certification relating to conduct that contravenes s 245AR(1). The application must also identify a need for the nominator to employ a paid employee to work in the position under their direct control.

15. The Tribunal has considered the material before it and finds that the applicable requirements have been met and that they identify the need for the nominator or to employ a paid employee to work in a position under the nominator’s direct control.

16. Accordingly, the requirement in reg 5.19(4)(a) is met.

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

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

18. The Tribunal has considered the material provided and notes that there is evidence that the nominator is actively and lawfully operating a business in Australia and directly operates the business.

19. Accordingly, the requirement in reg 5.19(4)(b) is met.

    Position is not labour-hire: reg 5.19(4)(c)

20. Regulation 5.19(4)(c) applies to nominators whose business activities include those relating to labour hire to an unrelated business. In these cases, the nominated position must be within the business activities of the nominator.

21. The Tribunal notes that evidence has been provided that the nominator is not involved in labour hire activities and notes the material provided in regard to the nominee’s employment.

22. Accordingly, the requirement in reg 5.19(4)(c) is met.

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

23. 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.

24. The Tribunal notes the financial information provided by the company, in particular it’s very modest trading profit. The Tribunal notes also that the nominee has been employed for some time by the nominator as evidenced by the material provided to the Tribunal.

25. However, taking into account the various circumstances of the ongoing viability of the business the Tribunal finds that there is insufficient evidence relating to the length and nature of the employment ongoing and whether the business can continue to provide employment for another two years.

26. Accordingly, the requirement in reg 5.19(4)(d) is not met.

    No less favourable terms and conditions of employment: reg 5.19(4)(e)

27. Regulation 5.19(4)(e) requires that the terms and conditions of employment applicable to the nominated position will be no less favourable than those that are, or would be, provided to an Australian citizen or permanent resident performing equivalent work in the same workplace at the same location.

28. The Tribunal notes that there is insufficient evidence provided to determine whether the terms and conditions applicable to the position will be no less favourable than those that would be provided to an Australian citizen or permanent resident performing equivalent work in the same workplace at the same location.

29. Accordingly the requirements of reg 5.19(4)(e) are not met.

    No adverse information known to Immigration: reg 5.19(4)(f)

30. Regulation 5.19(4)(f) requires that there is no adverse information known to Immigration about the nominator or person associated with the nominator; or it is reasonable to disregard any such information. For these purposes, ‘adverse information’ and ‘associated with’ have the meaning given in regs 1.13A and 1.13B.

31. The Tribunal has considered this matter carefully and notes that there is not sufficient evidence provided in regard to whether there is any adverse information known to the Department about the nominator or a person associated with the nominator.

32. Accordingly the requirements of reg 5.19(4)(f) are not met.

    Satisfactory compliance with workplace relations laws: reg 5.19(4)(g)

33. Regulation 5.19(4)(g) requires that the applicant 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.

34. The Tribunal notes that insufficient evidence has been provided in regard to whether the nominator has demonstrated satisfactory compliance with workplace relations laws in the locations in which it operates a business and employs staff.

35. Accordingly the requirements of reg 5.19(4)(g) are not met.

    Tasks of the position, genuine need for the position and training requirements reg 5.19(4)(h)

36. 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 either that:

    ·the tasks to be performed in the position will be performed in Australia and correspond to those of an occupation specified by the Minister (see legislative instrument relevant IMMI) and the occupation is applicable to the proposed employee in accordance with any specifications made in that instrument, and specified training requirements are met; or

    ·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.

37. The Tribunal has considered the evidence carefully and notes that there is insufficient evidence to determine whether the tasks that will be performed in this position in Australia correspond to the tasks of an occupation specified in the relevant instrument and whether any additional applicability requirements for that occupation are met and whether the nominator meets the training requirements specified in the relevant instrument, and has an auditable plan for meeting those training requirements.

38. The Tribunal also finds that there is insufficient evidence to determine whether there is a genuine need to employ a paid employee to work in this position under the nominator’s direct control and whether that position cannot be filled by an Australian citizen or permanent resident who is living in the same local area and whether the tasks to be performed in a position correspond to those of a retail manager ANZSCO Code 142111.

39. Accordingly the requirements of reg 5.19(4)(h) are not met.

40. For the above reasons the Tribunal is not satisfied that the applicant meets the requirements of reg 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 reg 5.19(3). Accordingly, the nomination of the position cannot be approved. Therefore, the Tribunal must affirm the decision under review.

    DECISION

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

    Stephen Witts
    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).