Kunkat Pty Ltd (Migration)

Kunkat Pty Ltd (Migration) [2018] AATA 4883 (15 October 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Kunkat Pty Ltd
CASE NUMBER:  1701433
DIBP REFERENCE(S):  BCC2015/2232206
MEMBER:Bridget Cullen
DATE:15 October 2018
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision under review to refuse the nomination.

Statement made on 15 October 2018 at 6:33pm

CATCHWORDS
MIGRATION – Employer Nomination – approval of nomination – financial capacity to employ employee – operates franchise – franchise agreement – not paid nominated amount – part time employee – new employment contract – resume of job seekers – efforts to advertise position – no genuine consideration of job seekers – decision under review affirmed

LEGISLATION
Migration Regulation (1994), r 5.19

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 11 January 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 4 August 2015. 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 Direct Entry Nomination stream.
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 delegate found that the nominator did not demonstrate the financial capacity to employ an employee on a full-time basis for at least 2 years.
The hearing was conducted jointly with the hearing of the related visa refusal of the applicant’s proposed nominee, Mr Sanjay Kumar Kundnani. Mr Kundnani is one of three directors of the applicant company, Kunkat Pty Ltd. Mr Kundnani appeared before the Tribunal, along with Mr Vikash Katyara, also a director of Kunkat Pty Ltd, to give evidence and present arguments.
The applicants were represented in relation to the review by a registered migration agent. The applicants were assisted by a NAATI Level 2 interpreter in the Urdu (Pakistan) and English languages.
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 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.
No less favourable terms and condition of employment: r.5.19(4)(e)
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.
The applicant operates a Pizza Hut franchise, located in Jimboomba, QLD. The applicant has provided the Tribunal with a copy of its franchise agreement. The applicant submits that it has a genuine need to employ a Retail Manager (General) (ANZSCO 142111), and has provided the Tribunal with a role description.
The nominated salary for the full-time Retail Manager role was expressed to be $45,000.00 per year, as at the time of hearing. In the applicant’s representative’s submissions, filed on 3 October 2018, the applicant indicated that, “It is clear that the business has shown that the business can currently afford the Nominee in the position for at least two years, as the Nominee has been appropriately paid as an employee in this role for the last 1 year and 9 months since the refusal on 11 January 2017 and the business is showing a net profit of $45,063. The Nominee’s nominated salary is $45,000.00 of which the business can easily afford.”
During the hearing, the visa applicant, Mr Kundnani, told the Tribunal that once the Department refused the nomination and visa applications, he decided to work part-time in the business. Mr Kundnani told the Tribunal that, although he has working rights pursuant to his Bridging Visa, he went part time to “look at other options for permanent residency”. The Tribunal explained to Mr Kundnani and Mr Katyara that the objective of the business nomination program was not to facilitate migration outcomes for overseas applicants. Mr Kundnani explained that he had become depressed after the refusal, leading to Mr Katyara and the third director of the nominating company having to perform more of his duties, so that he could “look at other options to stay in Australia”.
The Tribunal noted that, at the time of hearing, Payscale indicates that a Retail Manager typically earns $1,000 weekly before tax, and noted that the salary the business is proposing to pay the nominee is significantly less. The Tribunal explained that this could suggest the pay was less than an equivalent Australian would earn undertaking the duties of a Retail Manager. It indicated that this might also suggest that the position is not, in fact, that of a Retail Manager.
When questioned by the Tribunal about what Mr Kundnani had been paid, Mr Katyara admitted that Mr Kundnani was not being paid the nominated amount, which the Tribunal pointed out was in conflict with the submissions of the migration agent that Mr Kundnani had been paid the nominated salary since the time of refusal. It is very clear that Mr Kundnani had been working part-time since the refusal of the nomination application.
Following the hearing, the applicant submitted a copy of an employment contract indicating that it had, following the hearing, reviewed the market salary for an experienced Retail Manager and looked at Payscale. The applicant says that it has now determined the appropriate salary is $52,000.00, and annexed what it purports to be an updated employment contract. The employment contract is dated 21 July 2015, and although signed by the applicant and the nominee, is not witnessed. Although the employment contract provided does reflect an updated amount of $52,000.00, the Tribunal does not accept the evidence to be evidence that the nominee would, in fact, be paid this amount if the nomination was approved.
The evidence before the Tribunal suggests that the nominee is seeking a migration outcome. Mr Katyara admits that the nominee has not been paid the previously nominated salary of $45,000 following the Department’s refusal of the nomination, and Mr Kundnani cutting back his role to that of a part time employee in order to look for other migration opportunities.
The Tribunal has taken into account all of the written evidence, including the representative's submissions, and the new employment contract reflecting a salary of $52,000.00. However, the Tribunal has had the advantage of hearing both Mr Katyara and Mr Kundnani’s oral evidence. Taking that evidence into account, along with everything else before it, the Tribunal is not satisfied the nominee will be provided the terms and conditions that would be provided to an Australian citizen or permanent resident performing equivalent work in the same workplace at the same location. It is also concerned, based on the applicant's oral evidence, that the primary objective of the nominated role is to secure permanent residency for the visa applicant, a director of the nominating company.
Overall, the Tribunal is not satisfied 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.
Accordingly the requirements of r.5.19(4)(e) are not met.
Tasks of the position genuine need for the position and training requirements r.5.19(4)(h)
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, 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.
The applicant seeks to meet r.5.19(4)(h)(ii), requiring the Tribunal to consider, amongst other matters, whether 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 Tribunal has, earlier in this decision, set out the reasons it is concerned the role has been created to facilitate a visa outcome for Mr Kundnani. The Tribunal asked the applicant what efforts it had made to advertise for the role, in the local community. The applicant provided a copy, at hearing, of the advertisement it had placed on Seek.com.au, between 15 June 2015 and 17 July 2015, along with the resumes of the job seekers who responded to the advertisement. The applicant also provided the Tribunal with a cover letter in which it claimed that all of the eight job seekers were unsuitable.
Mr Katyara gave inconsistent evidence about why the job seekers were deemed unsuitable. At first, he told the Tribunal that they did not have any retail experience. The Tribunal pointed out that “Angella’s” resume revealed extensive experience, including managing a Pizza Capers store. The applicant “Chetan” worked for McDonald’s as a Second Assistant Manager since July 2008. Mr Katyara said that he tried to call Chetan on a number of occasions, but could not reach him. There is no information other than Mr Katyara’s oral evidence corroborating this. Mr Katyara claimed the applicant “Danielle” was not suitable as her resume indicated “a number of jobs held over the last few years, and none for more than several months.” The Tribunal pointed out that Danielle’s resume indicated she had been a crew trainer for McDonald’s for more than four-years. The Tribunal is not satisfied that the applicant genuinely considered any of the applications it received.
The Tribunal does not accept that the level of advertising undertaken was adequate to establish whether there were any Australian citizen’s or permanent residents in the local area who could perform the work. The Tribunal invited the applicant to reply to these specific concerns. Despite claiming to be “desperate” for an employee to fill the role, the applicant did not interview any of the candidates who applied, despite some of the candidates objectively appearing to have relevant experience.
The overall picture that the Tribunal has formed is that the applicant was not seriously considering any of the applications it received following its advertisement, as it did not intend to employ any person other than its own director, Mr Kundnani.
Ultimately, the Tribunal has formed the view that the efforts to advertise the position were not genuine, and were undertaken for the purpose of creating an appearance of compliance with the requirement to try and fill the role by a locally resident Australian citizen or resident. Although the applicant asserts that it has recently readvertised for the role, the Tribunal has not been provided with any supporting information. The advertising that the Tribunal has been provided with was perfunctory, for a short period, and the applicant does not appear to have genuinely considered the job seekers who applied.
Accordingly the requirements of r.5.19(4)(h) are not met.
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
The Tribunal affirms the decision under review to refuse the nomination.
Bridget Cullen
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
(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).

[2018] AATA 4883

15 October 2018

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Standing