Preet Brothers Pty. Ltd. (Migration)

[2019] AATA 5072

Preet Brothers Pty. Ltd. (Migration) [2019] AATA 5072 (12 August 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Preet Brothers Pty. Ltd.

CASE NUMBER:  1708837

DIBP REFERENCE(S):  BCC2016/3026413

MEMBER:Mary Sheargold

DATE:12 August 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 12 August 2019 at 10:31am

CATCHWORDS
MIGRATION – Employer Nomination – approval of nominated position – Temporary Residence Transition nomination stream – adverse information – allegations not supported – future employment of nominee – financial capacity of nominating business – 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 3 April 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 12 September 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 the applicant’s nomination did not satisfy r.5.19.3(c)(i)(A)(II) of the Regulations because it did not provide any evidence to demonstrate that the nominee had been employed in his position in respect of which he held his Subclass 457 visa for a total period of at least 2 years.

5. By letter dated 14 July 2019, Mr Dilpreet Sidhu was appointed by Ms Anmolmeet Kaur, the director of the applicant, to appear before the Tribunal to give evidence and present arguments on the applicant’s behalf, and he did so at the hearing held on 18 July 2019.  The Tribunal notes that Mr Sidhu is Ms Kaur’s husband and is a previous director of the applicant.

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

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 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.

   Information to comment on or respond to information pursuant to s.359A of the Act

9. On 3 May 2019, the Tribunal wrote to the applicant and invited the applicant to comment on or respond to certain information that the Tribunal considered would, subject to the applicant’s comment or response, be the reason, or a part of the reason, for affirming the decision under review.  The particulars of the information were set out as follows:

   ·     that there is information before the Department, from an undisclosed source, indicating that Poornima Sharma, who was nominated by Preet Bros Pty Ltd for sponsorship for a Subclass 457 visa, paid Preet Bros for her visa nomination; and

   ·     that there is information contained in records of interviews with Sarita Karki, as well as an investigation report completed by the Department, to indicate that Sarita Karki does not work for the applicant at Clayton Salon (one of the applicant’s businesses) in the capacity claimed (if at all).

10. The letter told the applicant that the information set out above was relevant to the review because it may indicate that the applicant had acted in contravention of the Act and the Regulations by providing false and misleading information that it is genuinely sponsoring that staff member for a visa, and that the applicant employs that staff member at Clayton Salon in a full time capacity, and stated that in order for the Tribunal to be satisfied that r.5.19(3)(g) can be met, it must be satisfied that there is no adverse information known to Immigration about the applicant or a person associated with the applicant, or that it is reasonable to disregard any such information.

11. The letter told the applicant that if the Tribunal relied on the information obtained by the Tribunal, being that the applicant had accepted payment from a staff member for a visa and that the staff member does not work at Clayton Salon in a full time capacity, it may form the view that this information is adverse as per r.5.19(3)(g). If so, unless the Tribunal considers it would be reasonable to disregard it, this would be the reason, or part of the reason, for affirming the decision under review.

12. The applicant was invited to give comments on or respond to the information in writing by 17 May 2019.  The letter stated that if the Tribunal did not receive the applicant’s comments or response within the period allowed, the Tribunal may make a decision on the review without taking any further action to obtain its views on the information.  The letter also noted that 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.

13. On 15 April 2019, Ms Anmolmeet Kaur, director of the applicant, responded to the invitation by providing submissions dated 14 May 2019 accompanied by a number of documents including a letter of support from the State Member for Clarinda, Meng Heang Tak MP, detailed financial statements for the applicant’s business, business activity statements (BAS), a statutory declaration from Sarita Karki, bank statements and superannuation statements for Sarita Karki, payslips and PAYG statements for Sarita Karki, copies of lodged tax returns for Sarita Karki, evidence of the applicant having provided training to its staff, and a letter from its accountant attesting to the applicant’s financial viability.

14. The Tribunal considered the applicant’s response to the information put to the applicant under s.359A.  In particular, the Tribunal notes the applicant’s submissions that Sarita Karki worked full time at Clayton Salon, and the accompanying evidence (being bank statements, superannuation statements, PAYG statements, payslips and copies of lodged tax returns) to demonstrate that she was working for the applicant in a full time capacity.  The Tribunal notes that Ms Karki provided the applicant with a NSW Statutory Declaration stating that she worked for the applicant in a full time capacity from 1 March 2013 to 30 September 2017.  The Tribunal accepts the applicant’s submissions and the evidence before it in relation to Ms Karki’s employment.  The Tribunal also considered the comments from the applicant in relation to the conduct of Ms Poornima Sharma, and finds there is no quantifiable evidence before the Tribunal to support the allegation (from an anonymous source) in the Departmental file that Ms Sharma paid the applicant for a visa.

15. The Tribunal notes the applicant provided many other documents in support of this application as part of its response to the Tribunal’s letter dated 3 May 2019, but that there was not enough evidence available for the Tribunal to make a decision, and so the matter was set for hearing on 3 June 2019.  At the request of the applicant’s representative on 3 May 2019, the hearing was postponed and relisted for hearing on 24 June 2019.  On 24 June 2019, the applicant requested a further postponement.  The Tribunal granted that postponement and listed the matter for hearing on 18 July 2019.  As set out above, the applicant was represented by Mr Dilpreet Sidhu at the hearing on 18 July 2019.

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

16. 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. As the nominee meets the requirement in r.5.19(3)(c)(i), r.5.19(3)(d) applies.

17. In the applicant’s submissions made on 14 May 2019, the applicant states that it is a family owned company that operates 3 businesses: it trades as Clayton Salon, as Dandenong Auto and Panel Guru, and as Haveli Restaurant.  The nominee works for Clayton Salon.

18. At the hearing, the Tribunal referred to the applicant’s trading, profit and loss statement for the financial year ending on 30 June 2018 and noted the applicant’s total wage expenditure that year was $280,018.00.  The Tribunal confirmed with Mr Sidhu that this expenditure covered the wages of staff across the 3 businesses listed in paragraph 17 above.  The Tribunal asked Mr Sidhu how many full time staff were employed across the 3 businesses.  He advised the Tribunal that to his knowledge, there were 6 full time staff.  The Tribunal queried whether the full time staff were all paid commensurately to the nominee, Mr Kumar, and Mr Sidhu indicated that he believed they were. 

19. The Tribunal noted its concern that if, by Mr Sidhu’s admission, each of its full time staff were paid salaries of approximately $50,000 per annum, the wage expenditure listed in the trading, profit and loss statement would not be adequate to cover the full time staff, let alone any part time and casual staff.  Mr Sidhu told the Tribunal that the businesses had each been affected by the level crossing removal project works in the Clayton area and that it had been a difficult year, and assured the Tribunal that business had improved in the financial year ending on 30 June 2019.  The Tribunal granted the applicant additional time to provide documents, including making a request for detailed financial statements for the previous 2 financial years, copies of lodged company tax returns for the previous 2 financial years, evidence of payment of superannuation, payroll summaries, and PAYG statements for all staff, to demonstrate that it does have the financial capacity to employee the nominee in a full time capacity for at least 2 years on terms that do not expressly exclude the possibility of an extension.

20. After the hearing, the applicant provided a number of those documents to the Tribunal, including draft company tax returns for the financial years ending on 30 June 2017 and 30 June 2018, an organisational chart, a trading, profit and loss statement for the financial years ending on 30 June 2018, payroll activity summaries for the financial years ending on 30 June 2018 and 30 June 2019, samples of payslips for the nominee, PAYG statements for the nominee for the financial years ending on 30 June 2014 to 2019 inclusive, a letter from Signage Accountants Pty Ltd confirming the applicant’s turnover for each quarter ending from 30 September 2017 to 30 June 2019 and stating it believes the applicant has the financial ability to meet its employment obligations.

21. The Tribunal has considered the additional documents provided by the applicant.  The Tribunal notes that it has not been provided with detailed financial statements for the applicant’s business, nor has it been provided with lodged company tax returns, as requested at the hearing.  The Tribunal notes that in the draft company tax returns provided in respect of the financial years ending on 30 June 2017 and 30 June 2018, the company records a net profit of $999 and $1,881 respectively.  There is no evidence before the Tribunal regarding the profitability (or otherwise) of the applicant’s business in the 2018-19 financial year.

22. The Tribunal notes the letter from the applicant’s accountant, which sets out the applicant’s quarterly turnover for each quarter of the 2017-18 and 2018-19 financial years.  The Tribunal notes that the quarterly turnover, year on year, is markedly improved in each quarter of the 2018-19 financial year and accepts the accountant’s statement that the 2017-18 turnover was adversely affected by the level crossing removal project.  The Tribunal also accepts the statement that turnover improved recently due to increased parking facilities in the local area.  However, in the absence of detailed information regarding the applicant’s businesses (including as to costs incurred aside from wages), the Tribunal gives little weight to this letter and the accountant’s assertions that the applicant has the financial ability to meet its employment obligations.

23. The Tribunal has considered the payroll activity summary for the applicant’s business for the period 1 July 2018 to 30 June 2019, and notes the total wage expenditure in the 2018-19 financial year was $365,481.47.  The Tribunal notes this is a significant increase from the total wage expenditure recorded in the 2017-18 financial year set out in paragraph 18 above.  The Tribunal notes that the payroll activity summary indicates the applicant employees 12 staff across its 3 businesses, 4 of whom were paid a total of $54,499.92 and 1 who was paid a total of $54,999.84 in the 2018-19 financial year.  The applicant submits that 1 of those employees is a mechanic, 2 are hairdressers, and 2 are chefs.

24. The Tribunal has considered the organisational chart for the applicant’s business provided by the applicant after the hearing.  The Tribunal notes there are inconsistencies between the organisational chart and the payroll activity summary provided by the applicant.  For example, 1 of the employees listed as a chef on the payroll activity summary is listed as the Hairdressing Manager in the organisational chart.  The organisational chart only lists 9 employees, including casual and part time staff.  Given the inconsistencies between the documents and in the absence of an explanation regarding those inconsistencies, the Tribunal gives little weight to the organisational chart and the payroll activity summary.

25. Based on the evidence provided by the applicant both at the hearing and after the hearing, the Tribunal is not persuaded that the applicant has the financial capacity to employ the nominee in a full time capacity for at least 2 years on terms and conditions that do not expressly exclude the possibility of an extension.

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

27. For completeness, the Tribunal notes the applicant’s representative made submissions accompanying the additional documentation and requested the Tribunal to make findings that:

    ·     “The person who will employ the applicant is the person who made the nomination. The position to which the application relates is the position nominated in an application for approval that sought to meet the requirements of r.5.19(4)(h)(ii) and in relation to which relevant declarations were made in the application for the visa;

    ·     Preet Bros Pty Ltd is the nominating employer and will employ the applicant;

    ·     The nomination, DESPITE NOT BEING APPROVED (emphasis in original), at this juncture, has not been 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 r.1.13A and r.1.13B); or it is reasonable to disregard any such information;

    ·     The position remains available to the applicant, and indeed he is occupying the position now; and

    ·     The visa application was made prior to the approval of the nomination.”

28. The Tribunal notes that it is not required to make any of the findings requested by the applicant’s representative in respect of this nomination application, and declines to do so.  The Tribunal also notes the body of previous Tribunal decisions provided by the applicant’s representative in support of this application.  The Tribunal notes that each of those decisions relates to the Tribunal exercising its power to remit applications for Subclass 186 visas to the Department on the basis that those visa applications now have valid nominations allowing the visa applicants to satisfy cl.186.223 of Schedule 2 to the Regulations.  The Tribunal notes that these previous decisions bear no relevance to the application currently under consideration.

29. 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

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

    Mary Sheargold
    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.