S.E. & Sons Pty Ltd (Migration) - [2020] AATA 6161

S.E. & Sons Pty Ltd (Migration) [2020] AATA 6161 (12 August 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  S.E. & Sons Pty Ltd
CASE NUMBER:  1804683
HOME AFFAIRS REFERENCE(S):          BCC2017/2274987
MEMBER:De-Anne Kelly
DATE:12 August 2020
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision under review to refuse the nomination.

Statement made on 12 August 2020 at 10:31am
CATCHWORDS
MIGRATION – nomination – Temporary Residence Transition nomination stream – nominee will not be employed on a full time basis in the position for at least two years – applicant is not financially viable – financial status of the business – training requirements – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 65, 140, 360, 425, 362, 375
Migration Regulations 1994, rr 2.87B, 5.19
CASES
Batty Enterprises Pty Ltd (Migration) [2018] AATA 1923
DUN16 v Minister for Immigration & Anor [2020] FCCA 601
Star Cycle Pty Ltd (Migration) [2019] AATA 4131
Singh (Migration) [2020] AATA 1178
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs & Anor (2006) 228 CLR 152
Vu (Migration) [2017] AATA 2608
Zafari (Migration) [2018] AATA 4822
Zachiz Pty Ltd the Tom Stojanovski Family Trust (Migration) [2018] AATA 1924
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 6 February 2018 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).
The applicant applied for approval on 27 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 stream (r.5.19(3)) and a Direct Entry nomination stream (r.5.19(4)). 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).
In this case, the applicant has applied for approval of a nomination, seeking to satisfy the criteria in the Temporary Residence Transition nomination stream.
The delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19(3)(f) of the Regulations because the nominator failed to maintain their commitment to the ongoing training of Australian citizens and permanent residents in their industry, as specified within the training benchmarks.
Mr Ertan Yasar, director of the applicant, appeared before the Tribunal on 23 June 2020 to give evidence and present arguments.
The applicant was represented in relation to the review by its registered migration agent, Ravinderjit Singh Toor MARN: 1170356 of Woolloongabba Qld 4102 but prior to the hearing the applicant appointed Ms Kelli Schatkowski MARN: 1683627 and Ms Suzanne Weel LLB MARN: 0316130 of Surfers Paradise Qld 4217.
For the following reasons, the Tribunal has decided to affirm the decision under review to refuse the nomination.
CONSIDERATION OF CLAIMS AND EVIDENCE

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading S.E. & Sons Pty Ltd (Migration)

Details

AGLC: S.E. & Sons Pty Ltd (Migration) [2020] AATA 6161
Case: [2020] AATA 6161
Decision Date: 12 August 2020

CaseChat Overview and Summary

The Administrative Appeals Tribunal (AAT) considered a decision to refuse the nomination of Mr Karamjit Singh Nijjer by S.E. & Sons Pty Ltd under the Temporary Residence Transition stream of the employer nomination scheme. The applicant, S.E. & Sons Pty Ltd, operates a mechanical repair business and had nominated Mr Nijjer for the position of facilities manager.

The primary legal issue before the Tribunal was whether the applicant met all the requirements for approval of the nomination under regulation 5.19(3) of the Migration Regulations. This included assessing the applicant's financial viability, the nominee's employment status, and the employer's compliance with training benchmarks.

The Tribunal affirmed the decision to refuse the nomination. It found that the applicant had not demonstrated financial viability, noting that the director was heavily involved in a separate taxi business and his wife handled administrative duties for that enterprise. Furthermore, the Tribunal considered that the nominee would not be employed on a full-time basis for at least two years in the nominated position. While the applicant argued that recent legislative changes exempted them from certain training obligations, the Tribunal clarified that its review was not confined to the specific issues considered by the original delegate. The Tribunal also noted that the applicant had not provided sufficient evidence to satisfy the Tribunal that the nominee would be employed full-time in the nominated position for at least two years.

The Tribunal affirmed the decision under review to refuse the nomination.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

For the following reasons, the Tribunal has decided to affirm the decision under review to refuse the nomination.CONSIDERATION OF CLAIMS AND EVIDENCE 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. The applicant, S.E. & Sons Pty Ltd, ABN: 31 132 503 783 commenced trading on 31 July 2008 from an address in Stafford QLD 4053. The director, Mr Ertan Yasar, owns the business in equal shareholding with his wife, and advised they operate a mechanical repair business, SE Auto Centre, engaged in fixing light vehicles and particularly work with the taxi industry and inspections. He has another company which runs some 30 taxis. They recently built a new shed of some 3600 m². The applicant company leases the property from the directors of the business. There are six employees including the nominee. The director Mr Yasar is very busy with his taxi business and has little time to spare to work in the applicant business. His wife undertakes the administrative duties for the taxi business such as reconciling the Charge dockets, collecting the envelopes and figures from the drivers and recording all of the bookkeeping details. Yasar Management Pty Ltd is a taxi company, and ESOS (Australia) Pty Ltd is a trust company (Mr Ertan Yasar and his wife, Mrs Stephanie Cash, have a shared interest/ownership of this company with two other persons), which currently own and leases the premises at Telford Street, Virginia QLD to S.E. & Sons Pty Ltd. The lease on the new premises commenced on 24 June 2019. On 27 June 2017 the applicant lodged an employer nomination scheme-visa Subclass 186 application in the temporary residence transition (TRT) stream for the nominated position of facilities manager ANZSCO 149913, on a salary of $55,000 per year in favour of Mr Karamjit Singh Nijjer. Documents including the following were provided with the original application:1) Acknowledgement of nomination application received from Department of Immigration and Border Protection dated 27 June 2017.2) Online application for employer nomination dated 27 June 2017.3) Employment contract dated 14 June 2017 signed by both the applicant and nominee including a job description as follows:Role:Your role is to organise, control, and coordinate the strategic and operational management of SE Auto Centre. You will also be responsible for leading and motivating the workshop and service reception staff. Your will ensure an efficient flow of authorised work through the workshop, quality workmanship, and the building and development of quality customer relationships through the provision of excellent customer service.Your Duties and Responsibilities·Leading, motivating and managing workshop team to deliver customer outcomes and experiences to a high level·Leading our management staff for sales targets, labour budgets, quality control and stock takes·Manage all services and processes of company that support the core business·Focus on best business practice to improve efficiency, by reducing business operating costs while increasing productivity·Ensuring an efficient flow of authorised work through the workshop·Recruiting, developing, and training staff to meet the needs of the business·Overseeing all Health and Safety regulations within the Workshop and Service Reception ensuring safe work practices and a high level of cleanliness and organisation.·Provision of technical support to direct reports and external customers·Management and analysis of the P&L including running costs and budget·Developing services to meet the future needs of the customer·Perform building maintenance of company·Supervise and coordinate the work of contractors when they are on site·Plan best allocation and utilisation of space and resources·Respond appropriately to emergencies and urgent issues as they arise·Coordinate and lead all staff to cover areas of their responsibility·Use performance management techniques to monitor and demonstrate achievement of agreed service levels and to lead an improvement·Help the management to get as much as they can out of their business by assisting them·Assist the director in budgeting for a single facility·Maintain usage records and invoice clients accordingly.4) A variety of receipts and letters of thanks for payments to TAFE Queensland to meet training benchmark A.5) Deed of assignment of lease to the applicant dated 7 March 2017 for the property in Stafford.6) Deed of consent to assignment of lease dated 1 March 2017.7) Letter dated 21 June 2017 from accountants confirming payroll in financial year 2017.8) Letter dated 8 August 2017 from accountants confirming payroll from 1 March 2002 to 31 March 2015.9) Business activity statements for Q1, Q2, Q3, Q4 2017.10) Notice of assessment for the nominee for year ended 30 June 2010.11) PAYG payment summary from the applicant for the nominee for FY’s 2011, 2012, 2013, 2014, 2015, 2016.12) Batch summary of payroll for FY 2016; FY 2014; FY 2015.13) Tax invoice from accountants dated 12 November 2015 for professional services training for $2530.14) Transaction bank history dated 2014.15) Letter from Queensland government dated 15 May 2014 concerning training contract for apprentice to complete on 21 March 2018.16) Letter dated 21 May 2014 from Institute of Technology advising they are a Registered Training Organisation for the apprentice.17) Letter dated 3 December 2013 regarding apprenticeship for a further employee.18) Apprenticeship training contract for the further employee.19) Tax invoice/receipt dated 1 October 2013 from Institute of Technology for cost of training course.20) Letter dated 12 February 2014 from Queensland government advising training contract for the further employee is no longer active as it was withdrawn within the probationary period.21) Certificate under s.375A of the Migration Act 1958 (the Act) dated 9 March 2018.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Section 359AA provides as follows:(a) The Tribunal may orally give to the applicant clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and(b) if the Tribunal does so—the Tribunal must:(i)ensure, as far as is reasonably practicable, that the applicant understands why the information is relevant to the review, and the consequences of the information being relied on in affirming the decision that is under review; and(ii)orally invite the applicant to comment on or respond to the information; and(iii)advise the applicant that he or she may seek additional time to comment on or respond to the information; and(iv)if the applicant seeks additional time to comment on or respond to the information—adjourn the review, if the Tribunal considers that the applicant reasonably needs additional time to comment on or respond to the information.Registered migration agent’s submission The registered migration agent’s submission of 7 July 2020 states that the applicant seeks a review of the Department’s decision dated 6 February 2018 on the basis that the delegate was not satisfied that the employer had met training benchmark requirements in the then most recently approved sponsorship. The agent submits that the Tribunal should confine its review to a determination of whether the employer met training benchmark requirements on the basis of clause 8.2 of the Presidents Direction “Conducting Migration and Refugee Reviews” which provides as follows:As a general rule, where the Minister for Immigration (Minister) or delegate has made an adverse decision on particular criteria or issues, the AAT should restrict its review to those matters. It was submitted that the latest standard business sponsorship approval for the applicant was 13 November 2019. The relevant sponsorship period is therefore 13 November 2019 to 13 November 2022. The Tribunal notes that there is a transitional provision exempting a sponsor from complying with the training obligations under r.2.87B of the Regulations in relation to a period of 12 months ending on or after 12 August 2018. The obligation only applies in relation to full periods of 12 months that end before that date. This is cl.7602(5) as inserted by item 42 of Schedule 1 to the amending regulations. This was part of the Migration (Skilling Australians Fund) Charges Regulations 2018 that from the 12 August 2018 repealed training requirements and implemented a fee that is paid by nominators at the time of application. Since the requirement for training was exempted for the latest standard sponsorship period, the applicant has fulfilled the training commitments. The Tribunal will now consider the agent’s request that it confine its review to the training commitments. The agent relies on several decisions of the courts in requesting the Tribunal to confine its review to the training requirement on which the delegate made its adverse decision. The first case was the High Court in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs & Anor (2006) 228 CLR 152. The Tribunal notes that the High Court did not state that the Tribunal was to confine its review to the delegate’s issues; in fact, it stated the opposite at [35] with the rider that the Tribunal must identify the other issues and tell the applicant what the issues are and give them an opportunity to respond to them such that s.425(1) of the Act is met. These comments apply equally to s.360(1) of the Act which is identically worded and is the relevant section in this case:[35] The Tribunal is not confined to whatever may have been the issues that the delegate considered. The issues that arise in relation to the decision are to be identified by the Tribunal. But if the Tribunal takes no step to identify some issue other than those that the delegate considered dispositive, and does not tell the applicant what that other issue is, the applicant is entitled to assume that the issues the delegate considered dispositive are "the issues arising in relation to the decision under review".