PLANET TEL NETWORK PTY LTD (Migration)

[2018] AATA 5637

PLANET TEL NETWORK PTY LTD (Migration) [2018] AATA 5637 (18 December 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  PLANET TEL NETWORK PTY LTD

CASE NUMBER:  1705334

DIBP REFERENCE(S):  BCC2016/2461154

MEMBER:Karen McNamara

DATE:18 December 2018

PLACE OF DECISION:  Sydney

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

Statement made on 18 December 2018 at 12:21pm

CATCHWORDS

MIGRATION – nomination of an occupation (employer nomination) – Temporary Resident Transition nomination stream – occupation of Corporate General Manager – demonstrated business financial capacity – possibility of extending the period of employment – unaudited financial statements reflecting heavy losses – signed contracts of employment – decision under review affirmed          

LEGISLATION

Migration Act 1958, ss 140GB, 359, 360, 363
Migration Regulations 1994, Schedule 2, cl 457.223; r 5.19

CASES

Hasran v MIAC [2010] FCAFC 40

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 28 February 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 25 July 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 Temporary Residence Transition nomination stream.

4. The delegate refused the application on the basis that the applicant’s nomination did not satisfy r.5.19(3)(d) of the Regulations. The delegate found that the applicant did not provide evidence to demonstrate that the business had the financial capacity to be able to pay the full time salary for the nominated position for at least two years and therefore did not meet r. 5.19(3)(d)(i). The delegate further found that the applicant did not meet r.5.19(3)(d)(ii) as the applicant did not provide evidence of a new employment contract in which the terms and conditions of the person’s employment will not include an express exclusion of the possibility of extending the period of employment.

5. The applicant applied to the Tribunal on 20 March 2017 for review of the delegate’s decision.

6. On the 19 November 2018, 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 updated and current information that would assist to determine whether the criteria in          r. 5.19(2) & (4) of the Regulations were met. The applicant was advised if the information was not provided in writing by 3 December 2018, or if the applicant has not made a request for an extension of time in which to provide the information, the Tribunal may make a decision on the review without taking further steps to obtain the information, and further, the applicant would lose any entitlement it might otherwise have had under the Act, to appear before the Tribunal to give evidence and present arguments.

7. The Tribunal did not receive any response from or on behalf of the applicant at the date and time of this decision. In these circumstances, s.359C applies and pursuant to s.360(3), the applicant is not entitled to appear before the Tribunal. The effect of s.363A of the Act is, if a review applicant has no entitlement to a hearing, the Tribunal has no power to permit the applicant to appear: Hasran v MIAC [2010] FCAFC 40.

8. The Tribunal has considered whether this is an appropriate case for it to adjourn the review under s.363(1)(b) of the Act, to allow the applicant additional time in which to provide evidence to support the review application. In this regard the Tribunal considered whether, in the circumstances of this case, evidence that the applicant meets all of the requirements of r.5.19(4) of the Regulations is likely to be forthcoming, whether the applicant had a fair opportunity to provide the relevant information or documents already and the significance of the information or documents to the applicant.

9. The Tribunal has regard to the fact that the nomination application was refused by the Department on 28 February 2017. The applicant submitted a copy of the primary decision record with the review application. As a result, the Tribunal observes that the applicant has been aware for approximately 22 months of the reasons for the nomination application refusal. The Tribunal wrote to the applicant under subsection 359(2) of the Act inviting the applicant to provide information demonstrating that the nomination meets all the requirements of the criteria in regulation 5.19(4) of the Regulations. The applicant has failed to provide requested information within the prescribed period set for this purpose and nor has any request been received to extend the time to provide requested documentation.

10. In these circumstances, the Tribunal considers the applicant has had a fair opportunity to provide the relevant information and sufficient time to take steps to satisfy the regulatory criteria. The Tribunal notes that it is uncertain if and when the applicant will provide information in writing as to whether the applicant meets the requirements of reg. 5.19(3) & (4).  The Tribunal has decided not to delay its decision any further. Accordingly, the Tribunal has decided not to exercise its discretion under subsection 363(1)(b) of the Act to adjourn the review any further. The Tribunal has determined to make a decision on the review without taking any further action to obtain the information in accordance with section 359C of the Act. In passing, the Tribunal notes that the applicant is not prevented from lodging a new nomination application with the Department.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. The issue in this case is whether the applicant meets the requirements for approval of the nomination under the Temporary Residence Transition nomination stream set out in r.5.19(3), which is extracted in the attachment to this decision. For the nomination to be approved, all the requirements must be met.

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

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

    Background

14. On 25 July 2016, the applicant lodged a nomination application under the Temporary Residence Transition scheme.

15. In the application form, the applicant identified that the nominee, Ms Shuying Zhao would be employed in the occupation of Corporate General Manager – ANZSCO 111211 in the position of Corporate General Manager with Planet Tel Network Pty Ltd. The proposed salary at time of application was $180,001 per annum plus superannuation. The applicant notified the Department on 10 February 2017 that the correct salary amount was $185,000 p.a. plus superannuation.

16. When considering the application, the delegate took into account the financial statements provided by the applicant for the 2014 financial year. The delegate noted that the applicant had not provided financial statements for the years 2015 and 2016.  The delegate noted that the nominee had been working with the applicant since 2013 on a 457 visa and received a salary of $95,000 p.a, however the applicant did not provide any explanation as to why there was an increase of the salary from $95,000 to $185,000.  The delegate also noted that the applicant had not provided a new contract of employment that will not include an express exclusion of the possibility of extending the period of the nominee’s employment.

17. In the absence of financial evidence, to support  the applicant’s financial circumstances and capacity to meet the increase in salary and in the absence of a new contract of employment, the delegate was not satisfied the applicant had demonstrated that the nominee will be employed on a full time basis in the position for at least two years; and the terms and conditions of the person’s employment will not include an express exclusion of the possibility of extending the period of employment.

18. The Tribunal wrote to the applicant under s.359 (2) of the Act on 19 November 2018 inviting them to provide information in writing to demonstrate that the applicant meets the requirements of the criteria in r.19(2) and (3) of the Regulations, including r.5.19(3)(e) of the Regulations. The applicant has failed to provide requested documentation or seek an extension of time to provide the documentation.

19. The Tribunal notes the applicant supplied to the Tribunal with their application for review, a copy of the delegate’s decision dated 28 February 2017. The applicant has provided no further evidence or supporting documentation to the Tribunal.

20. The Tribunal has had regard to the information presently before it and notes that the applicant provided with their application to the Department, unaudited financial statements for the 2014 financial year. The profit and loss statement for 2014 shows a loss of $1,249,824 and a loss of $1,561,765 in the 2013 financial year.  Gross profit for 2014 was $276,719, which was in loss of $42,763 the previous 2013 financial year. The 2014 balance sheet showed the accumulated losses of the business to be $3,547,428.

21. In the absence of up to date verifiable financial evidence, including audited financial statements, the business’ tax returns as submitted via the ATO portal, the nominee’s PAYG’s and Notice of Assessments and bank records to demonstrate payment of salary, there is no  evidence before the Tribunal to demonstrate the financial capacity of the applicant to pay the nominated salary amount of $185,000 p.a. for two years.

22. The Tribunal also notes the contract of employment provided to the Department is signed and dated 2 November 2012 and the applicant has not provided a new employment contract that will not include an express exclusion of the possibility of extending the period of employment. 

23. Given the above findings, the applicant does not meet the requirements of r.5.19(3)(d)(i) and of r.5.19(3)(d)(ii) of the Regulations.

24. Accordingly, the requirement in r.5.19(3)(d) of the regulations is not met.

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

    DECISION

26. 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.

    Temporary Residence Transition nomination

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

    (a)the application for approval:

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

    (ii)      identifies a person who holds a Subclass 457 … visa granted on the basis that the person satisfied the criterion in subclause 457.223(4) of Schedule 2; and

    (iii)     identifies an occupation, in relation to the position, that:

    (A)is listed in ANZSCO; and

    (B)has the same 4-digit occupation unit group code as the occupation carried  out by the holder of the Subclass 457 … visa; and

    (b)the nominator:

    (i)       is, or was, the standard business sponsor who last identified the holder of the Subclass 457 … visa in a nomination made under section 140GB of the Act or under regulation 1.20G or 1.20GA as in force immediately before 14 September 2009; and

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

    (iii)     did not, as that standard business sponsor, meet regulation 1.20DA, or paragraph 2.59(h) or 2.68(i), in the most recent approval as a standard business sponsor; and

    (c)either:

    (i)       both of the following apply:

    (A)in the period of 3 years immediately before the nominator made the application, the holder of the Subclass 457 …visa identified in subparagraph (a) (ii) has:         

    (I)held one or more Subclass 457 visas for a total period of at least 2 years; and

    (II)been employed in the position in respect of which the person holds the Subclass 457 … visa for a total period of at least 2 years (not including any period of unpaid leave);

    (B)the employment in the position has been full-time, and undertaken in Australia; or

    (ii)      all of the following apply:

    (A)the person holds the Subclass 457 … visa on the basis that the person was identified in a nomination of an occupation mentioned in sub-subparagraph 2.72(10)(d)(iii)(B) or sub-subparagraph 2.72(10)(e)(iii)(B);

    (B)the nominator nominated the occupation;

    (C)the person has been employed, in the occupation in respect of which the person holds the Subclass 457 … visa, for a total period of at least 2 years in the period of 3 years immediately before the nominator made the application; and

    (d)for a person to whom subparagraph (c)(i) applies:

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

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

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

    (i)are provided; or

    (ii)would be provided;

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

    (f)either:

    (i)       the nominator:

    (A)fulfilled any commitments the nominator made relating to meeting the nominator’s training requirements during the period of the nominator’s most recent approval as a standard business sponsor; and

    (B)complied with the applicable obligations under Division 2.19 relating to the nominator’s training requirements during the period of the nominator’s most recent approval as a standard business sponsor; or

    (ii)      it is reasonable to disregard subparagraph (i); and

    Note Different training requirements apply depending on whether the application for approval as a standard business sponsor was made before 14 September 2009 or on or after that date.

    (g)either:

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

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

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