Muray Pty Ltd (Migration)

[2023] AATA 2174

Muray Pty Ltd (Migration) [2023] AATA 2174 (12 June 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Muray Pty Ltd

REPRESENTATIVE:  Mrs Athina Stephanou (MARN: 0103875)

CASE NUMBER:  1924170

HOME AFFAIRS REFERENCE(S):          BCC2017/3864276

MEMBER:Terrence Baxter

DATE:12 June 2023

PLACE OF DECISION:  Brisbane

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

CATCHWORDS 
MIGRATION – nomination – Direct Entry stream – applicant failed to demonstrate that the position could not be filled by an Australian citizen or an Australian permanent resident – engagement of the recruitment agency was not a genuine attempt by the applicant–decision under review affirmed 

LEGISLATION
Migration Act 1958, ss 65, 359
Migration Regulations 1994, r 5.19

CASES

Bharaj Construction Pty Ltd v MIBP [2016] FCCA 902

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 August 2019 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, Muray Pty Ltd, applied for approval on 20 October 2017. The applicant nominated Ms Aylin Ozgun (the nominee) in the position of Office Manager. 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 that the applicant’s nomination did not satisfy reg 5.19(4)(h)(ii)(C) of the Regulations because the delegate found that the applicant failed to demonstrate that the position could not be filled by an Australian citizen or an Australian permanent resident who is living in the area where the position was to be filled.

5. The applicant lodged an application for review of the delegate’s decision with the Tribunal on 28 August 2019.

6. The director of the applicant, Ms Listyawati Sahinel, appeared before the Tribunal by video conference on 18 January 2023 to give evidence and present arguments. The hearing was a joint hearing with the application for review of a decision to refuse the visa application of the nominee. The Tribunal also received oral evidence from the nominee by video conference. The Tribunal hearing was conducted with the assistance of an interpreter in the Turkish and English languages.

7. The Tribunal exercised its discretion to hold the hearing by video conference. The Tribunal determined it was reasonable to hold a hearing by video conference, having regard to the nature of this matter and the individual circumstances of the applicant. 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 video conference.

8. The applicant was represented in relation to the review by its registered migration agent. Madalina Philips of No Borders Migration represented the applicant from the lodgement of the nomination application until 12 July 2021. Ms Athina Stephanou of MIS Immigration Solutions represented the applicant from 13 July 2021. Ms Stephanou attended the Tribunal hearing by video conference.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. 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.

    Evidence presented prior to the hearing

11. The applicant produced to the Department of Immigration and Border Protection (now the Department of Home Affairs) (the Department) the following documents:

    a.Correspondence and a Form 1404 advice from the Regional Certifying Body (RCB), the Queensland Chamber of Commerce and Industry, Toowoomba, dated 2 November 2017.

    b.Submissions of the applicant’s accountant dated 16 October 2017 and 20 October 2017.

    c.Screenshots taken of the website of the business.

    d.An employment contract of the nominee accompanied by an offer of employment later dated 10 June 2017.

    e.A licence agreement in favour of the applicant in respect of office space dated 27 September 2017.

    f.An agreement for the provision of services by the applicant dated 24 October 2017.

    g.Business activity statements of the applicant for the period from April 2016 to December 2018.

    h.Financial reports of the applicant for the 2016, 2017 and 2018 financial years.

    i.Market salary evidence.

    j.An organisational chart.

    k.A position statement.  

    l.Job advertisements for the position accompanied by a recruitment report of unsuccessful applicants.

    m.An ASIC company extract of the applicant.

    n.Current ABN information of the applicant.

    o.A submission from the then representative of the applicant to the RCB dated 27 October 2017.

    p.A submission from the then representative of the applicant dated 20 October 2017.

    q.A business card of the nominee.

    r.Invoices issued by the applicant.

    s.An updated organisational chart.

12. The applicant produced to the Tribunal the following documents:

    a.A copy of the delegate’s decision.

    b.Various documents previously provided to the Department.

    c.Business activity statements of the applicant for the period from January 2020 to March 2022.

    d.Financial statements of the applicant for the 2017, 2018, 2019, 2020 and 2021 financial years.

    e.Correspondence regarding the applicant's tenancy of the business premises.

    f.ASIC company statements of the applicant dated 4 October 2021 and 4 October 2022.

    g.Certificates of currency of the public liability and WorkCover insurance of the applicant.

    h.A further ASIC company extract of the applicant dated 24 June 2021.

    i.A profit and loss statement for the 2022 financial year.

    j.Submissions from the representative dated 4 October 2022 and 9 January 2023.

    k.A submission from the applicant’s accountant dated 18 May 2020.

    l.A current organisational chart.

    m.An updated business card of the nominee.

    n.A tax return of the nominee for the 2022 financial year.

    o.Taxation notices of assessment of the nominee for the 2019, 2020 and 2021 financial years.

    p.Payroll summaries of the applicant for the 2022 financial year and for the period from 1 July 2022 to 25 September 2022.

    q.An employment contract of the nominee dated 10 June 2019.

    r.A position description.

    s.Tax returns of the applicant for the 2017, 2018, 2019, 2020 and 2021 financial years.

    t.An ASIC current and historical company extract of the applicant.

    u.Further market salary evidence.

    Evidence presented after the hearing

13. After the hearing, the applicant produced to the Tribunal the following documents:

    a.A submission from the representative dated 20 February 2023.

    b.Employment contracts of the nominee dated 10 June 2019 and 10 June 2021.

    c.Payroll employee summaries of the applicant for the 2019, 2020, 2021, 2022 and 2023 financial years.

    d.An occupational health and safety policy of the applicant.

    e.Job advertisements of the position, a recruitment report, a summary of the domestic recruitment efforts undertaken by the applicant and an invoice for the costs of advertising the position.

    f.Further market salary evidence.

    g.An ASIC business name extract of IST Cleaning, held by the applicant.

    h.An ATO income tax 001 statement of the applicant for the period from 7 February 2021 to 7 February 2023.

    i.An ATO activity statement 002 of the applicant for the period from 7 February 2021 to 7 February 2023.

    j.A business activity statement of the applicant for the period from July 2022 to September 2022.

    k.A financial report of the applicant for the 2022 financial year.

    The invitation to a second hearing

14. After the hearing on 18 January 2023, the Tribunal ascertained that audio malfunctions had occurred during the recording of that hearing. Parts of the audio recordings were indistinct, and other parts were missing. The malfunctions were apparently caused by a global problem experienced by Microsoft on that day.

15. On 15 May 2023, the Tribunal issued an invitation to the applicant to attend a second hearing by video conference to give evidence and present arguments relating to the issues arising in this matter. The Tribunal’s intentions in issuing the invitation to a further hearing were to allow the applicant to clarify any sections of the audio recording that were indistinct or missing. The second hearing was scheduled to take place on 30 May 2023, commencing at 10 AM. In the hearing invitation, the applicant was advised that a Response to Hearing Invitation form should be completed and returned to the Tribunal within seven days of receipt of the invitation. The hearing invitation was forwarded to the applicant by email and accordingly the hearing response was due to be received by the Tribunal by 22 May 2023.

16. On 25 May 2023, the Tribunal contacted the representative by email and requested that the hearing response be returned as soon as possible.

17. On 29 May 2023, the representative contacted the Tribunal by email advising that Ms Sahinel had resigned as director of the applicant and provided a copy of her written resignation from that position. The resignation was dated 24 February 2023. The representative advised that Ms Canan Allez, the sole shareholder of the applicant, would not attend the hearing scheduled for 30 May 2023 and requested that the Tribunal make a decision based on the information provided by Ms Sahinel at the hearing on 18 January 2023 and written evidence available to the Tribunal. The representative also advised that Ms Allez requested that the Tribunal give consideration to allowing the applicant to provide a written response to additional concerns that may have arisen since the hearing.

18. The same day, 29 May 2023, the Tribunal advised the representative by email that, if Ms Allez did not intend to attend the hearing scheduled for 30 May 2023 on behalf of the applicant, the applicant should provide, as a matter of urgency, a completed Response to Hearing Invitation consenting to the Tribunal making a decision on the papers without taking further steps to allow the applicant to appear.

19. Later on the same day, 29 May 2023, the applicant provided a completed Response to Hearing Invitation confirming that Ms Sahinel, who was still the authorised contact person of the applicant at that time, would not participate in the rescheduled hearing and that the applicant consented to the Tribunal making a decision on the papers without taking further steps to allow the applicant to appear. Although it appeared that Ms Sahinel was no longer a director of the company, the Response to Hearing Invitation was consistent with the earlier advice to the Tribunal that Ms Allez would not attend the hearing and consented to a decision being made on the basis of the evidence provided at the first hearing and the written information previously provided.

20. The Tribunal is satisfied that the applicant has consented to the Tribunal making a decision without taking further steps to allow the applicant to appear for a second time. The Tribunal is also satisfied that, despite the audio malfunctions in the recording of hearing on 18 January 2023, the audio recording is of sufficient quality, taken with the notes made by the Tribunal during the hearing, to enable an assessment of the evidence provided at the hearing relevant to the Tribunal’s decision in this matter.

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

21. 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 legislative 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 (see legislative Instrument IMMI 17/058), the occupation is applicable to the proposed employee in accordance with the specification of the occupation, and an RCB has advised the Minister about certain matters relating to the position.

22. The applicant indicated in the nomination application that it was applying under the Regional Sponsored Migration Scheme (RSMS) in the Direct Entry nomination stream. The applicant indicated that the postcode where the position was to be filled was 4211 (Nerang, Queensland). Based on the evidence, the Tribunal is satisfied that the position and the applicant’s business are located at Nerang, Queensland 4211. As this postcode is specified in the relevant Instrument as being in regional Australia, the requirements of reg 5.19(4)(h)(ii) must be met by the applicant.

    Regulation 5.19(4)(h)(ii)(C) – the position cannot be filled by an Australian citizen or an Australian permanent resident who was living in the same local area

    The documentary evidence provided by the applicant prior to the hearing

23. The applicant was registered on 26 March 2015. The ASIC current and historical company extract in respect of the applicant discloses that Ms Sahinel (described in that document as Listyawati Pranata (her maiden name) was the sole director and secretary of the applicant at the time of the issue of the extract, 1 October 2022.

24. The ASIC extract also discloses that Ms Canan Allez was then the sole shareholder of the applicant and that she had been a director of the company from the date of the company registration on 26 March 2015 until 11 June 2021. The extract also discloses that the nominee had been a director and secretary of the company from 26 March 2015 until 30 September 2017 and that the nominee had previously held 50% of the shares in the applicant company.

25. The applicant’s 2021 financial statement records that, as at 30 June 2020, the nominee and her husband were indebted to the applicant to the extent of $194,085, and that by 30 June 2021, the debt had increased to $291,470. The applicant made a profit of $110,767 in that year.

26. The applicant entered into a licence agreement in respect of office space in premises described as Unit 10, 1 Nerang Street, Nerang on 11 July 2018. The document states that the obligations of the applicant were to be guaranteed by the nominee, Ms Ozgun. The nominee executed the acceptance of the licence on behalf of the applicant. The agreement states that it was executed as guarantor by Mr Sedat Murat Ozgun, the nominee’s husband.

27. The employment contract dated 10 June 2019 records that the salary to be paid to the nominee from that date was to be $64,500 per annum plus superannuation.

28. The payroll employee summary for the 2022 financial year records that the applicant paid the nominee a salary of $85,696 in that year. The applicant also paid to the nominee’s husband a salary of $45,265.88.

29. The recruitment report dated 16 June 2017 provided by Job2Go states that the position of Office Manager was advertised for a period of more than two weeks on Career One and on the recruitment company’s website. Evidence of the advertisements was provided with the report. The report states that there were three applicants for the position and that they were regarded as unsuitable for the following reasons:

    a.One applicant did not have the relevant experience for the job position.

    b.The second applicant was located overseas and required a valid visa to work in Australia.

    c.The third applicant did not have relevant qualifications for the job position.

30. The Form 1404 provided by the Queensland Chamber of Commerce and Industry, Toowoomba states that the RCB has assessed the nomination against the requirement that the nominated position cannot be filled by an Australian citizen or an Australian permanent resident who is living in the same local area as the nominated position and that the nomination satisfies the requirement.

31. In her submission of 9 January 2023, the representative submitted as follows in relation to this requirement:

    • Our client took additional measures to recruit locally through the engagement of independent recruitment specialists as supported by the payment receipt for said services attached herein.

    • As part of the engagement for services, these specialists ensured that all viable recruitment channels would be utilised to fulfil the vacant position of office manager, which included the position being advertised on 'Job2Go' and also on the online search engine 'careerone' which has bespoke functionality that allows easy accessibility to suitable advertised positions by job seekers and deep audience reach, and as such, is a preferred platform for both recruiters, employers and job seekers alike.

    • As a specialist service provider engaged to deliver this service, our client relied on the service and expertise of this independent recruitment specialist to undertake the appropriate market search and assess the suitability of applicants against the advertised criteria. As captured in the attached report, in undertaking this assessment for which their services were engaged, the specialist deemed three (3) applicants unsuitable for the position and included the assessment outcome in said report. Unsuitability was determined by lack of experience and required qualifications.

    • The nominee was working in the business at time of recruitment for the nominated position. Accordingly, her application was presented directly to our client on foot of the position being advertised (sic). Based on her skills, experience within the business and her qualifications, and on the back of reviewing the other applicant's suitability/ consultation with the recruitment specialist regarding the progress of the recruitment campaign, the nominee was chosen as the most suitable candidate and offered the position accordingly.

    • The nominee has been in the nominated position from 2017 to date. It is respectfully submitted that the nominee should not be prejudiced from having applied for and being appointed to the nominated position on the basis of her pre-existing employment. (In support of this submission, the representative submitted that prior employment with the applicant has been recognised as acceptable for eligibility in applying for the nominated position and referred to a prior decision of the Tribunal (as presently constituted)).

    • The attached RCB certification is further evidence of the above position in that it found that there was a need for a paid employee within the nominated position which cannot be filled by an Australian citizen or permanent resident living locally.

    Evidence and submissions at the hearing regarding this requirement

1. Ms Sahinel stated that she and her husband had moved to reside in Brisbane during 2020. She met Ms Allez, the sole shareholder of the applicant company. She became aware of tenders which had opened for certain cleaning contracts, and she submitted tenders on behalf of her own company. Her company was successful in tendering for those contracts, and she arranged with Ms Allez that the applicant’s employees could be utilised to perform the contracts under a subcontract arrangement with her own company. She also agreed to become a director of the applicant. She stated that the applicant presently has no direct contracts for cleaning services but operates solely as a subcontractor of Ms Sahinel’s own company.

2. Ms Sahinel stated that she has never been a shareholder in the applicant. She said that she received no remuneration for acting as director of the company.

3. The Tribunal noted that, according to the applicant’s 2021 balance sheet, the applicant had a liability to the Australian Taxation Office for GST, PAYG withholding, income tax, PAYG instalment and its Integrated Client Account of $68,359. Ms Sahinel was asked about the size of that liability. She replied that she was not sure and would have to ask the accountant.

4. The Tribunal further noted that, according to the 2021 balance sheet, the nominee and her husband owed the company an amount of $291,470 and that neither the nominee nor her husband were directors or shareholders of the applicant. Ms Sahinel was then asked how the nominee and her husband came to owe the company that sum of $291,470. She said that she did not know why their names were in the balance sheet and that she would speak to the accountant. When asked if she was aware whether the nominee and her husband had the capacity to repay the loan if the applicant needed to call on them to meet its obligations, she said that in her opinion the report was incorrect.

5. When asked about the increase in the amount of the loan to the nominee and her husband from 2020 to 2021 (an increase of $97,385), Ms Sahinel said that she thought the loan may have been payable by the owner (Ms Allez) but that she would have to check.

6. Ms Sahinel stated that the salary to be paid to the nominee if the nomination was approved would be $64,500 per annum, in accordance with the employment contract. The Tribunal requested Ms Sahinel to reconcile that evidence with the 2022 payroll summary that indicated that the nominee had been paid a salary of $85,696 in that year. After perusing the payroll summary, she stated that the figure of $85,696 was a gross salary and that the net salary was $65,623. She said that the figure of $64,500 in the employment contract should refer to a net-of-tax figure. The Tribunal noted that the employment contract provided for payment of a salary of $64,500 without any reference to that being a net-of-tax figure.

7. Ms Sahinel later stated that the figure of $64,500 applied when the employment contract was signed in 2019 and that the owner may have increased the salary to $85,000 currently. She stated that the salary to be paid to the nominee in the future was $85,696 per annum.

8. The Tribunal expressed its concern that Ms Sahinel’s responses regarding the nominee’s salary appeared to be inconsistent. She explained the inconsistency by saying that she was nervous.

9. The Tribunal spoke with Ms Sahinel regarding her understanding of the nominee’s relationship with the applicant company. She said that the nominee was hired in 2015 when the company was established, that Ms Allez had limited English, and that the nominee was a big help to her in communicating with clients. She agreed that the ASIC company extract disclosed that the nominee had been a director of the company from 26 March 2015 until 30 September 2017 and that the nominee had previously been a 50% shareholder in the applicant.

10. Pursuant to the provisions of s 359AA of the Migration Act 1958 (Cth) (the Act), the Tribunal produced to Ms Sahinel by way of a shared screen through MS Teams a Form 484 under the Corporations Act 2001 (Cth) lodged by the applicant with ASIC on 20 October 2017. That document recorded that on 30 September 2017 the nominee disposed of 50% of the issued shares in the company and that those shares were acquired by Ms Allez. The Tribunal explained that, if this document was relied upon, it could cause the Tribunal to find that the nomination was not a genuine nomination for the position of Office Manager but was merely a device to secure a migration outcome for the nominee. Ms Sahinel was offered an adjournment to respond to the information.

11. Ms Sahinel initially responded by stating that she would need to speak with Ms Allez before responding fully. She said that she did not have the full history of the company. The Tribunal advised Ms Sahinel that it would allow time for the applicant to provide further documents after the hearing. It also advised her that it would allow her an adjournment to consider her response to the information and to consult with the representative in confidence if she wished to do so. Ms Sahinel then stated that she did not require an adjournment and that her response was that she had no personal knowledge of this information.

12. The Tribunal spoke with Ms Sahinel regarding the licence agreement for the office space at Unit 10, 1 Nerang Street, Nerang dated 11 July 2018 and the correspondence from the landlord’s agent dated 30 September 2022. She agreed that the tenancy was for an initial period of one year from 1 August 2018 and that the tenancy had continued thereafter as a monthly periodic tenancy. Ms Sahinel also agreed that the tenancy had commenced almost one year after the nominee had retired as a director of the applicant and had disposed of her shares in the company.

13. The Tribunal noted that the agreement provided that it was to be accepted on behalf of the applicant by a director or director and secretary of the company and that it had in fact been accepted by the nominee. The Tribunal also noted that the agreement provided that the obligations of the applicant were to be guaranteed by the nominee and that the agreement appeared to have been executed by the nominee’s husband as guarantor. The Tribunal enquired why a person who was not a shareholder or director of a company would guarantee the obligations of the company. Ms Sahinel was not able to provide any explanation. She said that the agreement was signed before she became a director of the company and that she would have to speak with Ms Allez.

14. The Tribunal also spoke with the nominee regarding her involvement with the applicant. The nominee was not present in the hearing while Ms Sahinel gave her evidence.

15. The nominee stated that she met Ms Allez through their church community and that Ms Allez was aware that the nominee had some experience with cleaning. She said that Ms Allez offered her the opportunity to go into business together. She said that initially she did not wish to be a director or shareholder but that it was a good opportunity. She said that, as the business grew, the responsibilities became too much for her and she had resigned. She said that Ms Allez did not want to lose her and had offered her the position of Office Manager and had offered to sponsor her for a visa. She accepted the offer as she had already spent two years working in the business.

16. When asked regarding her role in the business prior to the date of the nomination, the nominee stated that Ms Allez had limited English and that she, the nominee, helped to operate the business by communicating with clients. She also referred to her qualifications in management.

17. The Tribunal directed the nominee’s attention to the ASIC current and historical company extract that had been provided by the applicant. She agreed that she had resigned as director on 30 September 2017. The nominee said that when she decided to resign as director, the company needed an Office Manager. She said that Ms Allez had not told her that she was hiring an Office Manager and that Ms Allez later offered her the position. She said that she had not been involved in the advertising for the position.

18. The Tribunal then discussed with the nominee her visa situation at the time that the advertising was undertaken. Pursuant to the provisions of s 359AA of the Act, the Tribunal produced to the nominee by way of a shared screen through MS Teams a copy of the records of the Department relating to the visa history of the nominee’s husband, Mr Sedat Murat Ozgun. Those records indicate that Mr Ozgun was the holder of a Subclass 572 Student visa granted on 28 September 2015 and having effect until 23 June 2017, and that the nominee was a secondary visa holder under that visa.

19. The Tribunal, as it had done when speaking with Ms Sahinel, explained that, if this document was relied upon, it could cause the Tribunal to find that the nomination was not a genuine nomination for the position of Office Manager but was merely a device to secure a migration outcome for the nominee and her husband. The nominee was offered an adjournment to respond to the information.

20. The nominee requested a short adjournment to consider her response to the information. An adjournment of eight minutes was allowed. Upon resumption of the hearing, the nominee agreed that her student visa was to expire on 23 June 2017. She said that she had told Ms Allez that the date of expiry of her visa was “getting close”. She said that she was under pressure because she would have had to leave the country “soon” when her visa expired. She said that Ms Allez had advertised the Office Manager position and that the position was then offered to her together with the offer of sponsorship.

21. The Tribunal spoke with Ms Sahinel again after the nominee had finished her evidence. The Tribunal invited Ms Sahinel to comment on the visa history of the nominee and her husband which were still displayed to Ms Sahinel by way of a shared screen. Before Ms Sahinel responded to this invitation, the Tribunal again followed the provisions of s 359AA of the Act and explained to her the potential relevance of this information. Ms Sahinel was offered an adjournment to respond to the information. She stated that she did not seek an adjournment before responding. She said that the events had occurred “before her time” and that she had no personal knowledge of the circumstances referred to in the visa history.

    Submissions and evidence received after the hearing regarding this requirement

22. After the hearing, the applicant provided further copies of the recruitment report from Job2Go, the summary of job applications received and copies of the job advertisements with Career One and on the Job2Go website (that had been provided to the Department), together with an invoice from Job2Go for the advertising and report.

23. According to the applicant’s payroll employee summary for the 2021 financial year, the applicant paid to the nominee a salary of $84,048 and to her husband a salary of $35,328.81 in that year.

    Consideration of the evidence and submissions

24. When advising the Tribunal on 29 May 2023 that Ms Allez would not attend the hearing scheduled for 30 May 2023 and that she requested that a decision be made in this matter based on the information provided by Ms Sahinel at the hearing on 18 January 2023 and the documents on hand, the representative advised that Ms Allez had requested that the Tribunal give consideration to allow the applicant to provide a written response to additional concerns that may have arisen since the hearing. This decision does not rely on issues that have arisen since the hearing and accordingly the Tribunal has not provided further information to the applicant in response to that request.

25. In order to meet this requirement, the applicant must show that the position cannot be filled by an Australian citizen or an Australian permanent resident who is living in the same local area as the position to be filled. This was the reason relied on by the delegate to refuse the nomination application. At the hearing, the Tribunal expressed to Ms Sahinel its concern about whether this requirement had been satisfied.

26. The recruitment report states that the position was advertised between 31 May 2017 and 16 June 2017. The report also states that there were three applicants for the position, including one applicant who was resident in India. As the regulation requires the applicant to demonstrate that the position cannot be filled by an Australian citizen on Australian permanent resident, the Tribunal does not consider that job application to be relevant for the purposes of this nomination application. The report does not disclose whether the other two job applicants resided in the same area as the position to be filled. However, the report does state that neither job applicant had the relevant experience for the position and that one of those applicants did not possess the relevant qualifications.

27. On the face of it, that report may have been accepted to demonstrate that the applicant met this requirement. However, the Tribunal has considered other factors pertaining to the applicant at the time of the advertising campaign in determining whether this requirement has in fact been met.

28. The nominee was the holder of a student visa, which was to expire on 23 June 2017. She stated in evidence that she had spoken with Ms Allez regarding her circumstances, that the date of expiry of her visa was getting close and that she was under pressure because she would have to leave Australia soon when her visa expired.

29. The recruitment report states that Job 2Go were engaged on 31 May 2017. That date is slightly over three weeks before the expiry of the nominee’s student visa. The nominee was a director and 50% shareholder of the applicant at that time; she resigned as director and disposed of her shareholding four months later, on 30 September 2017. At the hearing, the nominee said that when she decided to resign as director, the company needed an Office Manager and that the position was offered to her. That evidence is inconsistent with the evidence that the position had been advertised and offered to the nominee over three months previously, in June 2017.

30. The position was advertised from 31 May 2017 until 16 June 2017. The position was offered to the nominee and accepted by her on 10 June 2017, that is, before the job advertisements had closed and before the recruitment report had been provided to the applicant.

31. Ms Allez remained as sole director of the company from that date until 1 February 2021, when Ms Sahinel was appointed. Ms Allez later resigned as director on 11 June 2021. Although the nominee resigned as director and disposed of her shareholding in the applicant in September 2017, she clearly retained a financial interest in the company. In the 2021 financial year, the applicant paid the nominee and her husband salaries totalling $119,376.81. The applicant also paid Ms Allez a salary of $36,800. In that year, the applicant made a net profit of $110,767 and the loan account of the nominee and her husband increased by $97,385. That sum represents almost the entire profit of the company for the year. (Ms Allez apparently made no drawings from the company in that year as she has no loan account recorded in the balance sheet.) Effectively, Ms Allez, the sole shareholder of the applicant, received $36,800 from the company in that year while the nominee and her husband received $216,761.81.

32. The nomination application was lodged on 20 October 2017. Shortly prior to that date, the nominee resigned as director and disposed of her shares to Ms Allez. The Tribunal finds that these steps were an attempt to distance the nominee from the corporate structure of the applicant prior to the nomination application being lodged.

33. When the applicant entered into a licence agreement for its office in Nerang on 11 July 2018, the nominee executed the licence agreement on behalf of the applicant. While it may be said that the nominee had performed this task as Office Manager of the applicant, the document states that, if the licensee is a company, the agreement is to be accepted on behalf of the licensee by either a director or director and secretary. Further, the nominee was named in the document as guarantor of the applicant’s obligations under the agreement. Notwithstanding that the nominee was named as guarantor, the agreement was actually executed as guarantor by the nominee’s husband. Neither the nominee nor her husband were officers or shareholders of the applicant at that time.

34. Ms Sahinel’s knowledge of the company’s operations was questionable. While the Tribunal acknowledges that she did not become a director until 1 February 2021, Ms Sahinel was the sole director from 11 June 2021 to the date of the hearing. Her lack of knowledge of events that had occurred before 2021 may well be understandable. However, at the hearing, she displayed a distinct lack of knowledge of more recent events. When first asked about the salary to be paid to the nominee in the future, she said that the salary was to be $64,500 per annum. When asked to reconcile that figure with the salary of $85,696 paid to the nominee in the 2022 financial year, Ms Sahinel stated that the figure of $64,500 was a net-of- tax salary. She later claimed that the salary to be paid to the nominee would be $85,696. Her explanation that the discrepancy in her evidence was a result of her being nervous was not convincing.

35. When asked regarding the large loan balance payable by the nominee and her husband to the company, she first stated that she would need to speak to the applicant’s accountant. She then said that she believed that the balance sheet was incorrect and later said that she thought that the loan may have been payable to the company by Ms Allez. No evidence has been provided to the Tribunal to indicate that the balance sheet was incorrect. When asked regarding the extent of the applicant’s obligations to the Australian Taxation Office at the conclusion of the 2021 financial year, Ms Sahinel could offer no explanation other than to state that she would need to check with the applicant’s accountant.

36. Ms Sahinel confirmed at the hearing that she has never been a shareholder in the company and has received no remuneration for having acted as director of the company. The Tribunal notes that she resigned as director on 24 February 2023. Having regard to the above factors, the Tribunal considers that the nominee has in fact been actively involved in the applicant’s corporate activities since her resignation as director in 2017.

37. The submissions from the representative substantially rely on the recruitment report from Job2Go in relation to this requirement.

38. The representative submitted that the nominee should not be prejudiced from having applied for and being appointed to the position on the basis of her pre-existing employment. The representative referred to another decision of the Tribunal (as presently constituted) where a nomination was approved in respect of a previously employed nominee. Each matter must be decided on its own merits and the Tribunal makes its decision in this matter based on the evidence available to the Tribunal.

39. The Tribunal acknowledges that a certificate of the RCB, the Queensland Chamber of Commerce and Industry, Toowoomba, dated 2 November 2017, has been produced. The certificate is required under reg 5.19(4)(h)(ii)(F) which requires that the relevant body has advised the Minister about certain matters, including that the position cannot be filled by an Australian citizen or an Australian permanent resident living locally.

40. This certificate may satisfy the requirement under reg 5.19(4)(h)(ii)(F), but the Tribunal must consider and be satisfied on the matters about which the advice is provided. The advice is relevant to the Tribunal’s considerations but is not conclusive. In Bharaj Construction Pty Ltd v MIBP [2016] FCCA 902, the Court considered a similar requirement in a pre-July 2012 version of reg 5.19(4), and commented obiter that the use of the word ‘advice’ undoubtedly puts beyond doubt the construction of reg 5.19(4), i.e. the advice is to be considered by the Minister (or Tribunal) in determining whether those requirements are satisfied but it is not determinative.

1. In this case, the Tribunal considers that the advice of the RCB is outweighed by the other evidence presented to the Tribunal. Although the Tribunal accepts that the position was advertised by Job2Go and that the recruitment agency provided a report to the applicant, the Tribunal finds that the engagement of the recruitment agency was not a genuine attempt by the applicant to establish whether the position could be filled by an Australian citizen or Australian permanent resident living locally but was merely an attempt to satisfy this requirement. This finding is based on factors including the timing of the recruitment process relative to the imminent expiry of the nominee’s student visa, the offer of the position to the nominee prior to conclusion of the recruitment process, the nominee’s position as director and shareholder of the applicant at the time of the recruitment campaign and the nominee’s apparent continued involvement in the corporate administration of the applicant after her resignation as director.

2. As the Tribunal has found that the recruitment report does not disclose a genuine attempt by the applicant to establish whether there was a suitably qualified local applicant for the position, the Tribunal places no weight on that report in considering this requirement. No other evidence has been provided to the Tribunal to establish that this requirement has been met.

3. Having regard to all the evidence, the Tribunal finds that the applicant has not established that the position cannot be filled by an Australian citizen or an Australian permanent resident who was living in the same local area as the position to be filled. Accordingly, the requirement in reg 5.19(4)(h)(ii)(C) is not met.

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

5. 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 the 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

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

   Terrence Baxter
   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 an identified person, as  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).