Premium Repair Services Pty Ltd (Migration)

[2018] AATA 2047

Premium Repair Services Pty Ltd (Migration) [2018] AATA 2047 (14 May 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Premium Repair Services Pty Ltd

CASE NUMBER:  1717838

DIBP REFERENCE(S):  BCC2017/2238595

MEMBER:Sheridan Lee

DATE:14 May 2018

PLACE OF DECISION:  Melbourne

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

Statement made on 14 May 2018 at 9:26am

CATCHWORDS
Migration – Nomination refusal – Direct Entry nomination stream – Management Consultant – The position available to the nominee on a full time basis for at least 2 years – No employment contract provided – Financial capacity to pay the nominee's salary –Decision under review affirmed

LEGISLATION
Migration Act 1958, s 245
Migration Regulations 1994, r 5.19

CASES
Minister for Immigration and Border Protection v Jayshree Enterprises Pty Ltd [2017] FCA 264

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 9 August 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 June 2017. 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) of the Regulations because there was insufficient evidence to substantiate that the position would be available to the nominee on a full time basis for at least 2 years.

5. The applicant appeared before the Tribunal on 10 April 2018 to give evidence and present arguments. The Tribunal received oral evidence from Ms Ning Pei on behalf of Premium Repair Services Pty Ltd.

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 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. In undertaking this assessment, the Tribunal is aware that there is no formal onus of proof associated with administrative inquiries and decision-making. However, the Courts have held that it is for an applicant seeking a particular outcome to put forward material in as much detail as is necessary to enable a decision-maker to establish the relevant facts. It is not for the Tribunal to fill any gap or make out the applicant’s case.[1]

   [1] Minister for Immigration and Border Protection v Jayshree Enterprises Pty Ltd [2017] FCA 264, 20-30.

   The application is compliant: r.5.19(4)(a)

10. Regulation 5.19(4)(a) requires that the application for approval must be in the approved form, must be accompanied by the prescribed fee, and, where applicable, must include the required written certification relating to conduct that contravenes s.245AR(1). The application must also identify a need for the nominator to employ a paid employee to work in the position under their direct control.

11. From the information on the Department’s file, the Tribunal is satisfied that the application for approval was made on the prescribed form and that the prescribed fee was paid. Written certification stating the nominator has not engaged in conduct that contravenes s.245AR(1) was provided.

12. For the purposes of subparagraph 5.19(4)(a)(ii), the Tribunal finds that the application for nomination form outlines that the position to be filled is a Management Consultant. The applicant has further provided a receipt for an advertisement posted on CareerOne on 8 May 2017 for a Management Consultant.

13. In relation to the 'direct control' element of subparagraph 5.19(4)(a)(ii), the Tribunal notes that along with other documentation, the applicant submitted an organisational chart and a proposed contract of employment (currently not signed). The organisational chart shows the nominated position sitting parallel to the General Manager, and reporting to the Managing Director.

14. The Tribunal observes that the wording of subparagraph 5.19(4)(a)(ii) does not make reference to a 'genuine need' for the applicant to employ a paid employee to work in the nominated position under its direct control.

15. Given the wording of subparagraph 5.19(4)(a)(ii), the Tribunal is satisfied that this provision is not directed at a qualitative assessment of the nominator's need for a paid employee to work in the nominated position. This view is supported by the context in which subparagraph 5.19(4)(a)(ii) appears, as r.5.19(4)(a) refers to “the application for approval” and subparagraph 5.19(4)(a)(i) directs the decision maker's attention to whether that application complies with the administrative requirements set out in r.5.19(2).

16. The Tribunal finds that the application is sufficient to meet the requirements of subparagraph 5.19(4)(a)(ii).

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

17. Regulation 5.19(4)(d) requires the nominee to be employed in the nominated position for at least 2 years full time, and the terms and conditions of that employment do not expressly exclude the possibility of an extension. 

18. Recourse to the Departmental decision shows that the delegate refused the nomination application on the basis that there was insufficient evidence to substantiate that the position would be available to the nominee on a full time basis for at least 2 years. In particular, the delegate highlighted that no employment contract had been provided for consideration.

19. On 28 February 2018, the applicant supplied the Tribunal with a proposed employment contract. The contract has not been signed by either party, however it offers a fixed employment period of 2 years full-time, with a further fixed period subject to review of the employee’s performance.

20. The applicant has also supplied the Tribunal with company financials for the years ending 30 June 2016 and 2017. The financials show that the company ran at a loss of $325,598 in 2016 and $260,596 in 2017.

21. In response to these figures at the hearing, Ms Pei outlined that the financials for the year ending 30 June 2016 only cover a 4-month period during which the business was operating, with large establishment outlays. In 2017, there were significant costs associated with setting up new premises. She estimated that the business would achieve a net profit of more than $255,000 in the 2017 – 2018 financial year.

22. The applicant submitted a number of BAS to the Tribunal for consideration. However, all but one statement for November 2017 was lacking a receipt number to verify that they were lodged with the Australian Taxation Office (ATO). At the hearing, the applicant was requested to submit verifiable evidence to support the sales figures put forward in the company financials and BAS extracts. On 4 May 2018, the applicant provided an ATO tax agent portal account summary covering the period 1 January 2015 to 3 May 2018.

23. Following the hearing, the applicant also supplied the Tribunal with a profit and loss statement for the current financial year (from July 2017 to March 2018). The statement shows a net profit of $191,646 over that period. Further, in his letter of support dated 15 March 2018, the applicant’s external accountant provides an endorsement that the company ‘has sufficient financial capacity to sponsor one employee for a 186 visa, and to meet its obligations for this visa for a minimum of 2 years’.

24. The Tribunal accepts that there are significant costs associated with establishing a business of this size. However, the base salary offered for the nominated position is $190,000, plus a car and relocation allowance. Even if the business were to meet the estimated net profit of $255,000, the Tribunal is not satisfied that this would be sufficient to support the position taking into consideration the necessary superannuation payments, work cover insurance premiums, and allowances that have been offered in the proposed contract of employment supplied by the applicant.

25. At the hearing, the applicant confirmed that the nominated position is a new position, and as such the salary represents an additional expense, not reflected in the current company costs. The Tribunal cannot be satisfied at the time of making the decision that the company can support a Management Consultant on the remuneration package offered for a minimum of 2 years.

26. Accordingly, the requirement in r.5.19(4)(d) is not met. As the Tribunal has found that the applicant does not meet r.5.19(4)(d) it is not required to consider the rest of the requirements set out in r.5.19(4).

27. 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 r.5.19(3). Accordingly, the nomination of the position cannot be approved and the Tribunal must affirm the decision under review.

    DECISION

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

    Sheridan Lee
    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).