Layser Green Mountain Pty Ltd (Migration)

[2021] AATA 1495

Layser Green Mountain Pty Ltd (Migration) [2021] AATA 1495 (18 March 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Layser Green Mountain Pty Ltd

CASE NUMBER:  1812883

HOME AFFAIRS REFERENCE(S):          BCC2017/2657409

MEMBER:Warren Stooke AM

DATE:18 March 2021

PLACE OF DECISION:  Melbourne

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

Statement made on 18 March 2021 at 8:58am

CATCHWORDS
MIGRATION – nomination – Temporary Residence Transition nomination stream – financial status of the business – financial capacity to meet all employment obligations –decision under review affirmed

LEGISLATION
Migration Act 1958, s 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 17 April 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 26 July 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. The nominator, Layser Green Mountain Pty Ltd lodged a nomination application online on 26 July 2017 in relation to an occupation of ‘Marketing Specialist’ (ANZSCO 225113).In that application the nomination type is listed as ‘Temporary Residence Transition’ stream and the application includes the nominee, Mohamad Rohmat, who was identified in DIBP systems as the holder of a Subclass 457 (Business (Long Stay)) visa at the time of application.

4. The delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19(3)(d)(i) of the Regulations because of a serious concerns in regard to the financial status of the business and its capacity to meet all employment obligations in respect of employing the nominee for a period of at least the next two years.

5. The applicant appeared before the Tribunal on 7 January 2021 to give evidence and present arguments. The Tribunal received oral evidence from Mohamad Rohmat, who is both a shareholder and the nominee of the business.  

6. The applicant stated that the nomination was refused by the delegate because the company does not have a solid capability to support the nominee based on the financials.

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

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. 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.

10. The applicant (who is also the nominee) stated that he assisted the set-up of the business in 2011 when he was engaged on a 457 business visa, which has expired. In this regard, the business is registered with ASIC and has ABN: 86 153 768 186 and was registered on 17 October 2011.

11. The applicant provided documentation that identified the applicant/nominee has a holding of 25 of 1000 shares.

12. The applicant stated that he was currently on a Bridging Visa B and had travelled to Perth from Springvale Victoria and was in quarantine, in Perth, at the time of the hearing.

13. The applicant gave evidence that the company had tried to gain local partners and that his name was used for the purposes of ASIC registration.

14. The applicant stated that the business had 8 employees originally (predominantly non Australian citizens or permanent residents) and now has 4 to 5 employees, who were engaged in selling lubricants imported from Indonesia. He stated that the business is now involved with the import of merbau timber from Indonesia.

15. The applicant stated that his role in the business was one of multi-tasking with responsibility for sales, ordering and inventory control. The initial business imported brand lubricants into Australia and is now engaged in sales into Australian markets.

16. The applicant stated that he was paid a salary of $850 net per week, after tax and received a salary of $55,000 to $56,000 per annum under his contract.

17. The applicant stated that he has a Bachelor of Transportation Management, which he completed in Los Angeles in the United States of America in 1998-99 and that he has experience as a distributor.  

18. The applicant stated that he has qualifications to sell and experience in distribution.

19. The applicant provided evidence before the hearing that included a contract of employment for the nominee as a Marketing Specialist that commenced on 1 July 2015 and included a salary of $54,599.84 and a superannuation contribution of $5,186.98.

20. The applicant also provided an organisation chart that included 9 employees and one director. It was stated in evidence that most of the employees resided overseas.

21. The applicant provided the most recent financial accounts for 2018 and 2019, which included the following information:

2019	2018
Gross Trading Profit	$222,389	$63,787.53
Expenditure	$326,786	$500,412.41
Loss before Tax	($104,397)	($436,624.88)
Wages	$111,180	$221,335.10
Total Assets	$208,286	$282,233.35
Total Liabilities	$2,969,046	$2,938,596.67

1. The applicant provided information concerning the English language test results for the nominee that identified that the nominee undertook an IELTS test on 16 August 2014 and gained an overall score of 5.5.

   Representative Submission

2. The Representative submitted that the nominee has a Bridging B visa and that his position, as a Marketing Specialist, was identified on the organisation chart that was submitted.

3. The Representative stated that the nomination was refused because the company had no capability because of the financial loss, however, he submitted that the company was getting better and will be in profit soon.

   Future employment of the visa holder: r.5.19(3)(d)

4. Regulation 5.19(3)(d) only applies to certain nominees (those described in r.5.19(3)(c)(i)). For this class of person, the Regulations require that the nominee will be employed on a full time basis for at least 2 years on terms that do not expressly preclude the possibility of an extension.

5. The Tribunal considers the applicant is not financially viable because it has sustained significant losses in the financial years ending 30 June 2018 and 2019, respectively. In this regard, the loss before tax in 2018, on the basis of the accounts submitted by the applicant, was $436,624.88 and in 2019, the loss was $104,397.

6. Further, in the most recently submitted accounts for the year ending 30 June 2019, the business had total assets of $208,286 and total liabilities of $2,969,046, which compares with 30 June 2018 financial data of total assets of $282,233.35 and total liabilities of $2,938,596.67. As such, the financial status of the business over the two consecutive years demonstrates a lack of profitability and significant indebtedness.

7. The Tribunal notes that the applicant has not furnished to the Tribunal financial data for the taxation period ending 30 June 2020 though the submitted tax return to the ATO, as at the time of decision.

8. Overall, the Tribunal finds the applicant’s business is not financially viable based upon the financial information provided to the Tribunal and on this basis, the Tribunal finds that the business is not in a sound financial position to provide the nominee with full-time employment in the nominated position for at least 2 years. Therefore, r.5.19(3)(d)(i) is not met.

9. Given the above findings, the requirement in r.5.19(3)(d) is not met.

10. 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

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

    Warren Stooke AM
    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.