MULTIWORKS PTY LTD (Migration)

MULTIWORKS PTY LTD (Migration) [2021] AATA 4689 (22 October 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  MULTIWORKS PTY LTD
CASE NUMBER:  1829447
HOME AFFAIRS REFERENCE(S):          BCC2018/262776
MEMBER:Karen McNamara
DATE:22 October 2021
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision under review to refuse the nomination.

Statement made on 22 October 2021 at 2:50pm
CATCHWORDS
MIGRATION – nomination –Direct Entry nomination stream – Dog Handler or Trainer – the position and the nominator’s business are located at metropolitan Sydney – 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 245AR, 359
Migration Regulations 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 Home Affairs on 26 September 2018 to reject the application by Multiworks Pty Ltd (the applicant) for approval of the nomination of a position in Australia under reg 5.19 of the Migration Regulations 1994 (Cth) (the Regulations).
The applicant applied for approval on 16 January 2018. 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).
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)(h)(i)(AA) of the Regulations because the delegate formed the view that the application failed to demonstrate that there is a genuine need for the nominator to employ the identified person as a paid employee to work in the position of Dog Handler or Trainer (ANZSCO: 361111) under the nominator’s direct control.
The applicant applied to the Tribunal on 8 October 2018 for review of the delegate’s decision.
Information provided to the Tribunal
On the 18 June 2021, the Tribunal wrote to the applicant pursuant to section 359(2) of the Act (dispatched by email to the authorised recipient), requesting the applicant to provide by 2 July 2021, updated and current information that would assist to determine whether the criteria in rr. 5.19(2) & (4) of the Regulations were met.
On the 2 July 2021, the applicant via their authorised representative requested an extension to provide information. The Tribunal granted an extension to 23 July 2021.
On 23 July 2021, the applicant submitted the following to the Tribunal.
·      Director’s statement dated 20 July 2021
·      ASAIL Certificate of membership
·      ASIC current and historical company extract
·      Financial statements 2019/20 & 2020/21 financial years
·      Company tax returns 2019/20 & 2020/21 Financial years
·      Business Activity Statements April 2019 to June 2021
·      Letter from Prime Security Australia dated 3 June 2021
·      Organisation Chart
·      Job description dog handlers
·      Employment Agreement signed and dated 27 December 2017
·      Training invoice McKkr’s Training dated 5 January 2018
·      Training receipt dated 9 January 2018
·      Training plan dated 5 January 2018
·      Job advertisement Gumtree listed 8 November 2017
·      Tax lodgement history
·      Market salary dog handlers - Payscale
·      Passport Bio data page and payslip of Mr Ahmed Dildar
·      Security Services Industry Award
On 18 August 2021, the Tribunal invited the applicant and nominee to appear before the Tribunal to give evidence and present arguments. The invitation requested the applicant and nominee to provide the following information at least seven days prior to the hearing scheduled for 21 September 2021.
·Evidence of Mr Ray Arnaout’s employment with the nominator, his citizenship/permanent residency and attendance at training provided by McKkr’s Training.
If the nominee is currently employed by the nominator:
- PAYG summaries issued to nominee covering each financial year for the duration of his employment with the nominator.
- Business bank statements showing payment of salary to the nominee for the last two years of employment e.g. August 2019 to August 2021.
On the 20 September 2021, the applicant provided the following information to the Tribunal;
·Evidence of Mr Ray Arnaout’s employment, citizenship status and attendance at training provided by McKkr’s Training.
On 21 September 2021, the applicant represented by Mr Mick Elchaar (referred to below as the applicant) appeared before the Tribunal via telephone, to give evidence and present arguments. The Tribunal also received oral evidence from Mr Adnan Zahid (the nominee) in the related matter for the subclass 186 visa (AAT Case file 1833203). The related matters were heard concurrently in a combined hearing. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages. The interpreter’s assistance was utilised as required by the applicant.
The applicant and nominee were represented in relation to the review. The representative attended the Tribunal hearing.
The Tribunal exercised its discretion to hold the hearing by telephone. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant and nominee. 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 telephone. The Tribunal is satisfied that the applicant and nominee were given a fair opportunity to give evidence and present arguments.
Post hearing on 6 and 13 October 2021, the applicant provided to the Tribunal
·Submission from the applicant dated 5 October 2021,
·Letter from company's external accountant undated
·Financial statements as at 30 June 2021
·Job advertisement indicating accessed online/printed on 4 August 2020
·Security Services Agreement (Manpower) Prime Security Australia (executed on 28 September 2021 by Prime Security Australia)
·Job description and tasks – dog handlers
·Photographs, security licence and Rail Worker cards
The Tribunal notes that numerous evidence and submissions were lodged by or on behalf of the applicant. While the Tribunal has considered all of same, only that which was considered material to its decision has been expressly referred to herein.
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 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.
Background
The applicant operates a security business providing security labour services to a range of clients and sites throughout Sydney. The head office is located at Merrylands NSW. Information before the Tribunal including ASIC records, show that the nominating entity was registered on 9 June 2010. The current Director, Mr Elchaar purchased the business in April 2017.
On 16 January 2018, the applicant lodged an application for an employer nomination approval for the position of Dog Handler or Trainer (ANZSCO 361111) under the Direct Entry stream. The nomination was lodged in favour of Mr Adnan Zahid. The nominated base rate and guaranteed earnings is $56,000 per annum.
Tasks of the position, genuine need for the position and training requirements reg 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 in the relevant instrument, the occupation is applicable to the proposed employee in accordance with any specifications made in that instrument, there is a genuine need for the nominee to be employed as a paid employee in the position, and certain specified training requirements are met; or
·the position and nominator’s business is located in regional Australia, there is a genuine need for the nominee to be employed as a paid employee in the position under the nominator’s direct control, the position 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 specified in the nomination application, that the position and the nominator’s business are located at Merrylands (metropolitan Sydney), which is not classified as ‘regional Australia’ for the purposes of r.5.19(4)(h). Accordingly, the Tribunal accepts that the relevant criteria to be satisfied in the present matter, are those set out in the first limb, that is under r.5.19 (4)(h)(i) where all subclauses must be met.
The applicant told the Tribunal that he purchased the business in April 2017. The Tribunal noted that the company business address is the same as the nominee’s former employer Apex Protection Group and asked the applicant if he was involved in Apex Protection Group. The applicant told the Tribunal that he wasn’t and did not know that the address was the same. The nominee told the Tribunal that the office building is the same and that the former HR manager with Apex Protection Group had moved to Multiworks.
In evidence provided at the hearing, the applicant told the Tribunal that he advertised the position in November 2017 and interviewed four applicants, including the nominee. The nominee worked for a couple of months in the position before leaving because he could not work full time. The nominee told the Tribunal that following the cancellation of his 457 visa he reverted to a student visa and that his 457 visa was cancelled after his sponsor at the time, Apex Protection Group ceased operating. Department records show that the nominee’s 457 visa was cancelled by the Department on 15 October 2018.
Both the applicant and nominee told the Tribunal that they first met when the nominee was interviewed for the position and the nominee worked for a short period for the applicant. However, there is no corroborating evidence before the Tribunal to support that the nominee has worked for the applicant. Evidence before the Tribunal specifically the nominee’s application lodged with the Department, states that the nominee worked for Apex Protection Group from 19 August 2013 to 2 February 2015 on a part time basis then full time for the period 3 February 2015 to 3 December 2017. Prehearing the Tribunal invited the applicant to provide PAYG summaries issued to nominee covering each financial year for the duration of his employment with the nominator. This information has not been forthcoming. The nominee told the Tribunal that he is currently working as a part time dog handler with a security business called Effective Protective.
In providing evidence before the Tribunal, the applicant told the Tribunal that the business does not have dogs and that the guards supply their own dogs. The applicant wanted to employ the nominee because he has good experience in security, looks after his dog and is able to travel. The reason he nominated the nominee for a subclass 186 visa is so the nominee can work on a fulltime basis for the next 2 years.
At the hearing, the Tribunal invited the applicant to comment on the delegate’s decision in so far as the delegate formed the view that the application did not identify a genuine need to employ the nominee to work in the position under the nominators direct control.
The applicant told the Tribunal that the position of dog handler was created in April 2017 when the applicant purchased the business. At the time the applicant identified that there was a “good profit margin” in providing dog handling services to clients. The high demand for dog handlers willing to work full time, meant that it was hard for the applicant to find local people as he requires committed full time employees. The applicant also stated that clients require dog handlers who are either Australian citizens or permanent residents.
The Tribunal asked the applicant if anyone had been doing the job on a full time basis since the position was advertised in 2017.The applicant told the Tribunal that he currently employed a part time dog handler but had not been able to source a full time dog handler. The applicant told the Tribunal that he had advertised the position at the end of 2017 and last year but had not received any responses. Apart from advertising on Gumtree the applicant told the Tribunal that he recruits on a word of mouth basis amongst people he knows.
Evidence before the Tribunal shows the applicant advertised the position twice on Gumtree on 8 November 2017 and whilst not conclusive appears to be 8 August 2020. However, the applicant has not provided any supporting evidence to show details of an interview process, details of other candidates' qualifications or work experience or of any other attempts to source a suitable person for the position.
The Tribunal discussed with the applicant its concern that there is no evidence to show that the position had been filled on a fulltime basis since the application was lodged with the Department in January 2018. Therefore, the Tribunal may be concerned that the applicant has not demonstrated a genuine need to employ the nominee as a paid employee to work in the position.
The Tribunal advised the applicant at the hearing, it may form the view that because the position has been vacant for almost four years (3 years and 9 months) and in the absence of evidence before the Tribunal, to support that the applicant has taken steps to fill the role, may suggest that the applicant does not have a genuine need to employ the nominee to work in the position. The applicant addressed the Tribunal’s concerns at the hearing with the assistance of the interpreter.
The applicant told the Tribunal that the problem is that he was not able to find someone to fill the position. There is a high demand for dog handlers and it is difficult to find committed and reliable handlers willing to work full time. Additionally, clients require Australian citizens or permanent residents.
When asked by the Tribunal as to what the impact of not having a fulltime dog handler has been on the business, the applicant told the Tribunal that he hasn’t been able to accept dog handling work. The Tribunal notes evidence before it that the applicant employs a part time dog handler which suggests to the Tribunal that that the applicant has been able to provide dog handling work on a part time basis.
Prehearing the applicant provided a letter from Prime Security Australia dated 3 June 2021, which states as follows:
“ As discussed, we have ongoing work available for licensed dog handlers for security operations in Sydney metro area. You may fill 04 positions for dog handlers, 38 hours per week shifts, to cover our shifts for 2-3 years.
We shall be paying you $35 per hour for each dog handler. Details of the contract will be provided once you confirm the availability of guards to cover the shifts. We expect that your dog handlers have relevant security license, full working rights, and preferably Australian citizens/permanent residents.” [emphasis added]
Post hearing the applicant submitted to the Tribunal (intra alia) the following submission dated 5 October 2021.
‘…..As discussed in the hearing, dog handling operations are normally carried out on sensitive premises and it is normal for the end clients to demand that dog handlers employed for the work are Australian citizens or Permanent residents.
According to Australian Government's website job outlook dog-handlers-and-trainers?occupationCode=361111), Dog Handlers teach dogs to obey commands and undertake specific tasks. This is a very small occupation and the number of Dog Handlers and Trainers grew very strongly over 5 years. According to NSW Government's website Life Launcher, dog handlers work with specially trained dogs to help detect and prevent crime, find lost or missing people and protect property. There are only 1,082 workers employed in this field in Australia and future employment growth in this career is strong ( Across the industry, we see increasing demand in this field and finding suitable dog handlers for security operations is extremely difficult.
As per our previous efforts to fill the positions for new dog handler contracts, most of the dog handlers are not ready to commit for long term work and we can't afford to have bad impact on our company's reputation if they leave us during the company's contractual obligations.
Dog handlers are in high demand and if we don't have a permanent and experienced guard in this field, we will keep losing the security work contracts because the clients with demand of dog handlers will not accept normal static guards. Adnan and Faisal have previous experience of full-time dog handling and comply with all requirements of the licensing and qualifications. They have also shown their hard-working attitude to us when they previously worked on part time basis. If we get these two persons as full time then we confidently can sign up the new work contracts, as they both are well trained and can train more dog handlers to build up a dog handlers' team for us in future. A fully trained dog handlers' team will attract more work to further increase our profitability.
The positions of dog handlers with security license perfectly fits within nature and size of our business. We already employ one dog handler and have evidenced demand for more. The nominated positions are indeed genuine and crucial for engaging experienced and qualified dog handlers on sensitive locations to ensure public safety. Developing a team of dog handlers will also help maintain and increase profitability of our business that generates jobs for 79 Australians.
The draft agreement received for dog handlers' work from Prime Security Australia Pty Ltd (ABN 74 609 905 820) is attached. We shall only be able to furnish the demand once we have Australian citizens or PR visa holders with dog handler licence. We are keeping this agreement in hold with anticipation that you will allow the nominations to be approved and our nominees will be engaged on this contract as PR visa (Subclass 186) holders. A new letter from our company's independent accountant discussing our capacity to pay two dog handlers for next two years is being attached. This letter discusses relevant financial data in support of our commitment and capacity to meet relevant financial obligations.
We ask that you consider the current and previously submitted material along with information provided in nomination application in totality in order to arrive at a justified decision. We would not have sponsored Adnan and Faisal for dog handlers' positions and committed for two years' employment if it was not thought necessary for our business' sustainability and future direction. We commit to employment of these dog handlers according to NES work place standards and their job descriptions complying to the relevant ANZSO code 361111…..’[1]
[1] Transcribed as prepared and submitted by the applicant.

Whilst the Tribunal acknowledges the evidence before it in regard to the reason why the nominee did not take up in the position, that being inability to work full time and said requirements of Australian citizenship/residency status, the Tribunal considers that the personal circumstances of the nominee are not germane to the question of whether there is a genuine need for the nominator to employ the nominee as a paid employee to work in the position under the nominator’s direct control. The issue under consideration by the Tribunal is whether the evidence before it, supports there is a genuine need for the nominator to employ the nominee as a paid employee, to work in the position of dog handler.
In undertaking this assessment, the Tribunal has considered the term “genuine need”. The Tribunal notes that the Macquarie Dictionary Online defines the word “Genuine” to mean – ‘being truly such; real; authentic; properly so called; sincere; free from pretence or affection’. It also variously defines “Need” to mean ‘some necessity or want exists; a condition marked by the lack of something requisite; to be in need or want.’ [2]
[2] Macquarie Dictionary online (accessed 22 October 2021).
The Tribunal has considered the evidence provided by the applicant as to the steps undertaken during the period of time the position has remained vacant, to provide the tasks of the nominated position and to recruit a suitably qualified person for the role. Accordingly, given the evidence before it, the Tribunal observes the following factors detract from the applicant’s claims that he has a ‘genuine need’ to employ a paid employee to work in the position of dog handler.
The Tribunal is of the view that almost four years (three years nine months) is a substantial period of time for the position to be vacant, particularly a position that the Tribunal was told is in high demand and will increase the company’s profitability. The Tribunal acknowledges the evidence provided by the applicant that prospective clients require the dog handlers to be Australian citizens or permanent residents. The Tribunal notes the Services Agreement Prime Security Australia (executed by Prime Security Australia on 28 September 2021 but unsigned and unexecuted by the applicant) and also notes, the letter from Prime Security Australia dated 3 June 2021. In this letter the Tribunal notes the client makes reference to citizenship and residency status to be ‘preferably’, implying ideally if possible, not necessity.
In his submission dated 5 October 2021 the applicant states in reference to the Prime Security Australia Manpower agreement “We shall only be able to furnish the demand once we have Australian citizens or PR visa holders with dog handler licence. We are keeping this agreement in hold with anticipation that you will allow the nominations to be approved and our nominees will be engaged on this contract as PR visa (Subclass 186) holders.” The Tribunal has afforded consideration to the applicant’s claims however notes that approval of a nomination application does not necessarily guarantee permanent residency or citizenship to a nominee.
In consideration of the evidence before it, the Tribunal is not satisfied that the applicant has provided persuasive and corroborative evidence to substantiate that the applicant undertook genuine attempts to recruit suitably experienced and qualified people to the position.
If the applicant’s plans to provide dog handling services and enter into new contracts are thwarted by not having full time dog handlers who are Australian citizens or permanent residents, the Tribunal is of the view that the applicant would have taken constructive steps to regularly test the labour market to find a suitable person for the position. Evidence before the Tribunal indicates that the applicant advertised the position twice within a four-year period on Gumtree. This suggests to the Tribunal that the applicant has made no serious attempt to test the labour market and find someone suitable to fill the position. Instead the applicant has chosen to leave the position open for almost four years for the nominee to commence once he obtains a subclass 186 visa. As such, this suggests to the Tribunal that there is not a demonstrated necessity by the applicant (the nominator) to fill the position and as such the applicant has not demonstrated there is a genuine need to employ the nominee as a paid employee, to work in the position under the nominator’s direct control.
Additionally, there is no persuasive and corroborating evidence to suggest that the business has suffered adversely due to the absence of a dog handler in so far the applicant’s financial evidence suggests an increase in profitability. As advised by the applicant’s accountant on 10 October 2021, ‘Multiworks Pty Ltd had revenue of $3,236,515.33, Gross Profit of $108,244.84 and Net Profit of $82,701.40 in financial year 2020-21. The company's revenue increased by 59.76% and Net profit increased by 72.34% compared to previous financial year.’
The Tribunal has considered the evidence before it, and on balance does not consider the evidence before it sufficient to support a finding that the applicant has demonstrated that there is a genuine need for the nominator to employ a paid employee to work in the position under the nominator’s direct control, particularly given that the applicant has made no constructive attempts to fill the position in the almost four year period since he lodged the application with the Department. Instead the applicant chose to rely upon the nominee obtaining a subclass 186 visa and in the absence of corroborating evidence to suggest that the applicant’s business suffered as a result, the Tribunal therefore finds the applicant does not satisfy the requirements of r.5.19(4)(h)(i) (AA).
Accordingly, the requirements of reg 5.19(4)(h) are not met.
As the Tribunal has found the applicant does not meet r.5.19(4)(h) it is not required to consider the rest of the requirements as set out in r.5.19(4).
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
The Tribunal affirms the decision under review to refuse the nomination.
Karen McNamara
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)       all 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;
(AA)there is a genuine need for the nominator to employ the person identified under subparagraph (a)(ii), as a paid employee, to work in the position under the nominator’s direct control;
(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 the person identified under subparagraph (a)(ii), as 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).

[2021] AATA 4689

22 October 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Statutory Construction

Procedural Fairness