Nu Harry Pty Ltd (Migration)

[2019] AATA 4010

Nu Harry Pty Ltd (Migration) [2019] AATA 4010 (26 August 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Nu Harry Pty Ltd

CASE NUMBER:  1712266

DIBP REFERENCE(S):  BCC2016/2804048

MEMBER:De-Anne Kelly

DATE:26 August 2019

PLACE OF DECISION:  Brisbane

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

Statement made on 26 August 2019 at 2:20pm

CATCHWORDS
MIGRATION – Employer Nomination – approval of nominated position – Direct Entry Nomination stream – Transport Company Manager – financial capacity to maintain nominee’s term of employment – net profit – incapable of supporting an additional full-time employee – decision under review affirmed

LEGISLATION
Migration Regulations 1994 (Cth), 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 Immigration on 19 May 2017 to reject the applicant’s application for approval of the nomination of a position in Australia under r.5.19 of the Migration Regulations 1994 (the Regulations).

2. The applicant applied for approval on 24 August 2016. The requirements for the approval of the nomination of a position in Australia are found in r.5.19 of the Regulations which contains two alternative streams: a Temporary Residence Transition nomination (r.5.19(3)) stream and a Direct Entry nomination (r.5.19(4)) stream. If the application is made in accordance with r.5.19(2) and meets the requirements of either stream, then the application must be approved. If any of the requirements are not met then the application must be refused: r.5.19(5).

3. In this case, the applicant has applied for approval of a nomination, seeking to satisfy the criteria in the Direct Entry Nomination stream.

4. The delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19(4)(d)(i) and therefore r.5.19(4) of the Regulations because the applicant could not demonstrate that the business has sufficient sales to support an extra staff member and pay the additional wage of $56,000 plus superannuation for at least the next two years. Therefore, the applicant failed to demonstrate that they had the financial capacity to offer full time employment for at least two years to the nominated position.

5. The applicant did not appear before the Tribunal on 5 August 2019 to give evidence and present arguments. The migration agent for the applicant advised that he was representing the applicant. The Tribunal also received oral evidence from the nominee, Mr Ranjit Singh.

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

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in this case is whether the applicant meets the requirements for approval of the nomination under the Direct Entry nomination stream set out in r.5.19(4), which is extracted in the attachment to this decision. For the nomination to be approved, all the requirements must be met.

9. Nu Harry Pty Ltd ABN 45161949391 on 24 August 2016, lodged a Regional Sponsored Migration Scheme RSMS nomination under the Direct Entry stream for the position of Transport Company Manager – ANZSCO 149413 on a pay level of $56,000 per annum plus superannuation. The nomination was lodged in favour of Mr Ranjit Singh.

10. The nomination application form indicates that the business was established or commenced trading in Australia on 16 January 2013. According to the application form, there are four Australian employees and three foreign employees. According to the information provided, the business operates as a restaurant and a transport company.

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

11. Regulation 5.19(4)(d) requires the nominee to be employed in the nominated position for at least two years full time, and the terms and conditions of that employment do not expressly exclude the possibility of an extension. The applicant’s representative, Mrs Ramesh Kaur did not attend the hearing but advised through their migration agent that the migration agent would represent her at the hearing. The migration agent was not able to provide any financial information regarding the business at the hearing.

12. The delegate of the Minister stated that the applicant had provided with their employer nomination application a profit and loss for 2015 and 2016. These figures show total sales of $174,095 and $451,914 for 2015 and 2016 respectively and expenses of $217,613 and $468,354 respectively for 2015 and 2016 for a final Net Profit (Loss) of $43,518 and $16,440 respectively for 2015 and 2016.

13. On the 19 August 2019 the applicant provided the 2018 Company Tax Return for Nu Harry Pty Ltd which shows gross income or sales of $157,950, and total expenses of $181,374 for a loss of $23,424 and a final loss after depreciation and other deductible expenses are deducted is $112,586. There were no other documents provided by the applicant.

14. At the hearing, the nominee confirmed that he was working on a part time basis for the business and part time for another business in the area. He advised that there were only two transport vehicles operating for the delivery business and another vehicle was off the road for several months awaiting repairs.

15. It is evident that the businesses sales have declined significantly since 2016 and the company has made a loss for the financial years 2015, 2016 and 2018. No information was provided for the financial years 2017 and 2019.

16. The Tribunal finds that the applicant has made a loss for the financial years 2015, 2016 and 2018. The loss in the 2018 Tax Return after expenses is $112,586 and this is considerable even allowing for  items such as depreciation in the calculation. The Tribunal finds the applicant is not operating the business at a profitable level and the applicant  and is unable to offer full time employment to the employee for at least two years.

17. Accordingly, the requirement in r.5.19(4)(d) is not met.

18. There was no information provided to make a finding on the other regulations in r.5.19(4).

19. For the above reasons the Tribunal is not satisfied that the applicant meets the requirements of r.5.19(4). The applicant has not sought to satisfy the criteria in Temporary Residence Transition Nomination stream, and as such has not met the requirements in r.5.19(3). Accordingly, the nomination of the position cannot be approved. Therefore, the Tribunal must affirm the decision under review.

    DECISION

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

    De-Anne Kelly
    Member

    
    

    ATTACHMENT  -  EXTRACTS FROM THE MIGRATION REGULATIONS 1994

    5.19Approval of nominated positions (employer nomination)

    …

    (2)The application must:

    (a)be made in accordance with approved form 1395…; and

    (aa) include a written certification by the nominator stating whether or not the nominator has engaged in conduct, in relation to the nomination, that constitutes a contravention of subsection 245AR(1) of the Act; and

    (b)be accompanied by the fee mentioned in regulation 5.37.

    …

    Direct Entry nomination

    (4)The Minister must, in writing, approve a nomination if:

    (a)the application for approval:

    (i)     is made in accordance with subregulation (2); and

    (ii)    identifies a need for the nominator to employ a paid employee to work in the position under the nominator’s direct control; and

    (b)the nominator:

    (i)     is actively and lawfully operating a business in Australia; and

    (ii)    directly operates the business; and

    (c)for a nominator whose business activities include activities relating to the hiring of labour to other unrelated businesses — the position is within the business activities of the nominator and not for hire to other unrelated businesses; and

    (d)both of the following apply:

    (i)     the employee will be employed on a full-time basis in the position for at least 2 years;

    (ii)    the terms and conditions of the employee’s employment will not include an express exclusion of the possibility of extending the period of employment; and

    (e)the terms and conditions of employment applicable to the position will be no less favourable than the terms and conditions that:

    (i)     are provided; or

    (ii)    would be provided;

    to an Australian citizen or an Australian permanent resident for performing equivalent work in the same workplace at the same location; and

    (f)either:

    (i)     there is no adverse information known to Immigration about the nominator or a person associated with the nominator; or

    (ii)    it is reasonable to disregard any adverse information known to Immigration about the nominator or a person associated with the nominator; and

    (g)the nominator has a satisfactory record of compliance with the laws of the Commonwealth, and of each State or Territory in which the applicant operates a business and employs employees in the business, relating to workplace relations; and

    (h)either:

    (i)     both of the following apply:

    (A)the tasks to be performed in the position will be performed in Australia and correspond to the tasks of an occupation specified by the Minister in an instrument in writing for this sub-subparagraph;

    (AAA)the occupation is applicable to the person identified under subparagraph (a)(ii) in accordance with the specification of the occupation;

    (B)either:

    (I)the nominator’s business has operated for at least 12 months, and the nominator meets the requirements for the training of Australian citizens and Australian permanent residents that are specified by the Minister in an instrument in writing for this sub-sub-subparagraph; or

    (II)the nominator’s business has operated for less than 12 months, and the nominator has an auditable plan for meeting the requirements specified in the instrument mentioned in sub-sub-subparagraph (I); or

    (ii)    all of the following apply:

    (A)the position is located in regional Australia;

    (B)there is a genuine need for the nominator to employ a paid employee to work in the position under the nominator’s direct control;

    (C)the position cannot be filled by an Australian citizen or an Australian permanent resident who is living in the same local area as that place;

    (D)the tasks to be performed in the position correspond to the tasks of an occupation specified by the Minister in an instrument in writing for this sub-subparagraph;

    (DA)the occupation is applicable to the person identified under subparagraph (a)(ii) in accordance with the specification of the occupation;

    (E)the business operated by the nominator is located at that place;

    (F)a body that is:

    (I)specified by the Minister in an instrument in writing for this sub-subparagraph; and

    (II)located in the same State or Territory as the location of the position;

    has advised the Minister about the matters mentioned in paragraph (e) and sub-subparagraphs (B) and (C).