PANDEY (Migration)

[2022] AATA 3283

PANDEY (Migration) [2022] AATA 3283 (19 July 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Hari Prasad PANDEY
Mrs Samjhana PANTA PANDEY

REPRESENTATIVE:  Mr prasad Pahalawela

CASE NUMBER:  1910434

HOME AFFAIRS REFERENCE(S):          bcc2017/1119106

MEMBER:Stephen Witts

DATE:19 July 2022

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decisions not to grant the applicants Employer Nomination (Permanent) (Class EN) visas.

Statement made on 19 July 2022 at 12:26pm

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Temporary Residence Transition stream – Accountant (General) – financial capacity to pay the nominee – subject of an approved nomination – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 186.223

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 11 April 2019 to refuse to grant the applicants Employer Nomination (Permanent) (Class EN) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants applied for the visas on 22 March 2017. At the time of application, Class EN contained one subclass: Subclass 186 (Employer Nomination Scheme).

3. The criteria for the grant of a Subclass 186 visa are set out in Part 186 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). The primary criteria must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria. Applicants seeking to satisfy the primary criteria must meet the ‘Common criteria’, as well as the criteria of one of three alternative visa streams: the Temporary Residence Transition stream, the Direct Entry stream, or the Labour Agreement stream.

4. In the present case, the first named applicant (the applicant) is seeking the visa in the Temporary Residence Transition stream, to work in the nominated position of Accountant (General) ANZSCO code 221111.

5. The delegate refused to grant the visas because the applicant did not meet cl 186.223 of Schedule 2 to the Regulations because the delegate was not satisfied that the applicant met the criteria for the grant of an employer nomination scheme visa.

6. The applicants appeared before the Tribunal on 5 May 2022 to give evidence and present arguments.

7. The Tribunal also received oral evidence from the nominator, PKM Tax Professionals.

8. The applicants were represented in relation to the review.

9. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The issue in the present case is whether the applicant meets the criteria for the grant of an employer nomination scheme subclass 186 visa.

    Nomination of a position

11. Clause 186.223 as applicable in this case is set out in full in the attachment to this decision. Essentially, it requires that the position to which the application relates is the subject of an application for approval of a nomination in the Temporary Residence Transition stream that identifies the visa applicant. The position must be the one that was the subject of the declaration that was required to be made as part of the current visa application.

12. In addition, this criterion also requires that:

    ·the nomination has been approved and has not been subsequently withdrawn

    ·there is no ‘adverse information’ known to Immigration about the person who made the nomination or a person ‘associated with’ that person (within the meaning of reg 1.13A and reg 1.13B); or it is reasonable to disregard any such information

    ·the position is still available to the applicant, and

    ·the visa application was made no more than six months after the nomination of the position was approved.

13. The Tribunal has considered all the material before it including evidence provided prior to the hearing and evidence given at the hearing.

14. The Tribunal notes that it has been provided with a copy of the delegate’s decision record for the nominator dated 6 March 2019 provided to it by the applicants. In this decision it was contended by the delegate that the nominator has not demonstrated that it has adequate financial capability to pay the full-time salary for the nominated position for at least the next two years. According to the delegate it noted that the nominator has stated that it will provide the nominee with an annual base salary of $54,000 per annum, that it commenced trading in Australia on 17 July 2016, and that it employs 3 Australian citizen employees and 2 foreign employees. It was stated that on the evidence submitted that the delegate did not accept that there was sufficient money available to pay all the nominator’s employees noting that the total salary costs for the 2017 and 2018 financial years was approximately $130,000 and that the nominee receives a base salary of $54,000 and that there is another 457-visa holder also receiving a base salary of the same amount.

15. The Tribunal notes that on 4 February 2022 it has been provided with the following material from the applicant’s representative: ASIC search material, company tax returns and BAS statements, an organisation chart, details of the nominated position, employment contract material (dated 10 March 2017 and 3 January 2022) and payslips, training levy receipts, company lease material and financial reports, comparable job advertisements, and other material.

16. The Tribunal notes that the nominator is registered as of 17 July 2006 and has an ABN no 15652293265 and that the director is Mr Pravin Manaktala, and that the organisation chart indicates that the company has a principal, as noted, and the nominee, and three contractors.

17. The Tribunal notes that in the financial material provided that the business had a total income in 2021 financial year of approximately $400,000 and in 2020 financial year it had a total income of approximately $300,000, and that it’s total operating expenses in those years were approximately $170,000 and $200,000 and a net profit from ordinary activities of approximately $200,000 and $130,000, also noted was a total wages bill of approximately $50,000 and $70,000 respectively.

18. The Tribunal notes that a letter was provided by the nominator dated 4 February 2022 stating that the nominee suits the business needs of the nominator and it has taken a long time to train him, that the business has been under pressure due to the pandemic, that “work has suffered and there is a backlog to catch up”, that the nominator  is now 65 years old and would not like to train any other staff, and that it would suffer hardship if the nominee is denied a visa.

19. The Tribunal notes that in the updated contract material dated 3 January 2022 the salary now paid to the nominee is $70,000 per annum plus superannuation and that salary research material provided indicated that the appropriate salary for a tax accountant was within the range of $60,000 to $74,999+ bonus plus superannuation.

20. The Tribunal also notes that an employment statement was provided by the nominator dated 27 April 2022 confirming that the nominee has been working on a full-time basis with the nominator since 16 December 2014 while on a 457 visa.

21. The Tribunal also notes that updated material was provided by the applicant’s representative on 28 April 2022 including financial statements, current organisation structures and other material.

22. At the hearing the Tribunal had discussion with the nominator and the nominee regarding the applications.

23. The nominator stated that he has been in business as an accountant since 1997 and that he has employed the nominee on a full-time basis since 2014 on a current salary of $70,000 per annum plus superannuation except for a period of approximately a year in 2020 during the pandemic when he employed him for approximately 20 hours per week on approximately 50% of that income. He stated that he has sponsored up to 3 other visa holders over the last few years and that he has found it very difficult to employ accountants and that it is a difficult position to fill. He stated that presently he has only one employee, that is the nominee, but that he also uses contractors overseas in India on a full-time basis and pays them via invoice. He stated that the business did go through a downturn for a period of time but that over the last two years in particular it has been a relatively profitable business as reflected in the figures noted above.

24. The Tribunal had a detailed discussion with the nominator regarding the financial circumstances leading up to the delegate’s decision in March 2019. In particular the Tribunal noted that the Department was concerned about a seeming discrepancy between the relevant BAS material indicating a total salary of approximately $120,000 for the 2018 financial year and the designated total gross payroll expenditure nominated by the nominator in the preceding 12 months from the decision, of approximately $160,000 noting that at that time 2 visa holders were employed, including the nominee, on salaries of $54,000 each. The department noted that these figures did not reconcile.

25. The nominator stated that he was unaware of the detail as his then migration agent did not explain the detailed circumstances of the original visa refusal but noted that the discrepancy may be as a result of the figures not referring to the same time periods, as the BAS statements were quarterly and therefore may not have been added up correctly referring to the same calendar period. The nominator reiterated that the business is now a profitable one and that he can continue to employ the nominee who has worked for him since 2014 for at least another two years.

26. The nominee stated that he first came to Australia in 2007 on a student visa and then was given a subsequent student visa and that during this time he studied for and completed a Master level qualification in professional accounting, and an advanced diploma level qualification in business and that he also studied for but did not complete an advanced diploma level qualification in marketing. He stated that he worked part-time in a family business during this time and that he completed his study in 2013 and began working full-time in the nominator’s business in 2014. He stated that prior to this he completed a business studies qualification and accounting qualification back in his home country and worked in an accounting business for a period of time prior to coming to Australia.

27. The Tribunal has considered the evidence carefully noting that the nominator acknowledged that the business had been going through a difficult financial period of recent times and had to drop the hours of the nominee to 50% of his normal weekly employment arrangement. The Tribunal also notes that although the nominator attempted to provide a rationale as to the discrepancies in the material provided prior to the delegate’s decision that being, that there may be a disconnect in the timing between the relevant BAS material and the nominated total salary expenditure at that time, the Tribunal, after careful consideration, did not find the nominator’s evidence particularly credible given that he did not exhibit any knowledge of the issue at that time indicating that he had not read the department’s decision but that it was his then migration agent’s fault that had occurred, nor was he able at hearing to provide credible evidence regarding this matter.

28. The Tribunal also notes that it was stated that the business of recent times, specifically over the last two years, has picked up and was making some profit. The Tribunal notes this and notes that the profit referred to, in the financial years 2020 and 2021 were in the range of $100,000 to $200,000. The Tribunal notes that it has been stated that the nominee, on a salary of $70,000, is now the only employee in the business but that it also uses the full-time services of 3 contractors overseas. The Tribunal though is concerned about the overall profitability of the business and is also concerned as to whether the nominator is in a position to genuinely guarantee the full-time employment, and full-time salary cost, of the nominee for the next two years.

29. The Tribunal has considered specifically the evidence of the nominator as to the business model via the use of overseas contractors, also noting that for periods of time since 2019 that the nominee in any case has had to drop to part-time hours on 50% of his normal salary to maintain his position there. Taken as a whole, the Tribunal does not accept that the applicant has demonstrated that it has the financial capacity to pay the nominee the appropriate salary and on costs in the nominated occupation of accountant in accordance with ANZSCO code 221111.

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

30. Regulation 5.19(3)(d) only applies to certain nominees (those described in reg 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.

31. The Tribunal has considered all the evidence provided and finds, as above, that the applicant has not met the requirements that the nominee will be employed on a full-time basis for at least two years notwithstanding that the contract terms of employment do not expressly preclude the possibility of extending the period of employment.

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

33. The Tribunal finds that therefore the nominee is not the subject of an approved nomination.

34. The Tribunal notes that it made a finding in case number 1906757 subsequent to the hearing on 5 May 2022 as detailed above that the nominator did not meet the requirements as outlined by the regulations. On that basis the Tribunal contacted the applicant in accordance with the obligations outlined in s.359A of the Act on 4 July 2022 noting that the application made by the nominator was refused by a delegate of the Minister and that the nominator sought a review of that decision but that it had been recently affirmed by the Tribunal.

35. On that basis, the applicant was informed that the application for the nominated position has not been approved. It was also stated that this information is relevant to the review because it is a requirement for the grant of the visa that that position specified in the visa application is the subject of an approved nomination. It was also stated that this means that the applicant did not satisfy the requirement for the grant of the visa and that therefore the Tribunal must affirm the decision that is under review. The applicant was invited to give comments or respond to the above information in writing and that this should be received by  19 July 2022.

36. The Tribunal notes that a response was received by the Tribunal on 18 July 2022 from the applicant’s representative.

37. In this response it was stated that it had received instructions from the nominator in this matter to consider grounds to lodge a judicial review application and that the decision to affirm and refuse the employer nomination would cause significant detriment to the nominee.

38. The Tribunal has considered this matter and notes that it had already made a decision in regard to the nominator in this matter and that no further evidence was provided via the opportunity presented to the applicant despite those assertions made by the applicant’s representative.

39. The Tribunal therefore finds that the applicant is not the subject of an approved nomination.

40. Therefore, cl 186.223 is not met.

41. The applicant has only sought to satisfy the criteria for a Subclass 186 visa in the Temporary Residence Transition stream. No claims have been made in respect of the other visa streams. As the requirements that must be met by a person seeking the visa in the Temporary Residence Transition stream have not been met, the decision under review must be affirmed.

42. The Tribunal also finds that as the primary applicant did not meet the criteria for the grant of the visa that the secondary applicant also did not meet the criteria for the grant of the visa.

    DECISION

43. The Tribunal affirms the decision not to grant the applicants Employer Nomination (Permanent) (Class EN) visas.

    Stephen Witts
    Member

    
    
    

    ATTACHMENT A

    186.223(1)     The position to which the application relates is the position:

    (a)nominated in an application for approval that seeks to meet the requirements of subregulation 5.19(3); and

    (b)in relation to which the applicant is identified as the holder of a Subclass 457 … visa; and

    (c)in relation to which the declaration mentioned in paragraph 1114B(3)(d) of Schedule 1 was made in the application for the grant of the visa.

    (2)     The Minister has approved the nomination.

    (3)     The nomination has not subsequently been withdrawn.

    (3A)    Either:

    (a)there is no adverse information known to Immigration about the person who made the nomination or a person associated with that person; or

    (b)it is reasonable to disregard any adverse information known to Immigration about the person who made the nomination or a person associated with that person.

    (4)     The position is still available to the applicant.

    (5)     The application for the visa is made no more than 6 months after the Minister approved the nomination.