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

1. 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).

2. 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).

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)(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.

5. Mr Ertan Yasar, director of the applicant, appeared before the Tribunal on 23 June 2020 to give evidence and present arguments.

6. 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.

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.

9. 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.

10. 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.

11. 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.

12. 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.

13. Documents including the following were provided with the review application:

    22) notification of refusal of nomination application dated 6 February 2018 including notice of decision.

    23) Passport for the nominee.

    24) Request for access to written material under s.362A of the Act dated 18 July 2018.

    25) Letter dated 20 December 2019 from the registered migration agent to the Tribunal stating that the employer was approved as a standard business sponsor on 13 November 2019 and given the abolishment of training benchmarks, and subsequent replacement of the Skilling Australia Fund (SAF) levy on 12 August 2018, the applicant has complied with their training requirements. The agent states that it is the correct or preferable decision for the Tribunal to set aside the decision under review and grant the applicant the employer nomination. A significant number of attachments including excerpts from the procedures advice manual and IMMI 13/030, IMMI 12/062 and explanatory statements were attached.

    26) Invitation from the Tribunal to provide information dated 24 February 2020.

    27) Apprenticeship training contract dated 16 January 2020.

    28) Reference letters dated 2020 for the nominee from suppliers to SE Auto Centre.

    29) Income tax history for the applicant from 2009 to 2019 but neglecting to include any data.

    30) Payslip for the nominee for a week in 2017.

    31) Further letter dated 9 March 2020 from the registered migration agent to the Tribunal again stating that the employer has satisfied the training requirements including a statement that the nominee has worked in the nominated occupation of facilities manager (ANZSCO 149913) and performed the duties in the job description throughout his employment. A job description was included which included the same tasks as those outlined in the employment contract.

    32) Current and historical company extract from ASIC.

    33) Letter dated 9 March 2020 from the accountants.

    34) Bank cash flow forecast template.

    35) Account summary from Australian Taxation Office for the applicant but no data showing.

    36) Notice of assessment for the nominee to 30 June 2017, 2018 and 2019.

    37) Lease agreement commencing 24 June 2019 to 23 June 2024 at address in Virginia, Queensland.

    38) ABN look up for the applicant.

    39) Profit and loss statement to 30 June 2018.

    40) Bank statements for 2017 to 2019 for the nominee.

    41) Employment contract dated 29 April 2013 for four years to 2017, signed by the nominee for the position of automotive workshop manager in the occupation of facilities manager ANZSCO 149913.

    42) References for the applicant’s business from taxi company dated 8 March 2020.

    43) Flyer for Queensland approved camera in taxis.

    44) Organisation chart for the applicant showing the director as owner/mechanic, his wife as owner/Accounts Payable, nominee as facility manager, one lead mechanic, one mechanic (on student visa) and one apprentice mechanic.

    45) Employment contract dated 14 June 2017 signed by the applicant and nominee.

    46) Business activity statement Q1, Q2, Q3, Q4 2018.

    47) Selection of Tax invoices from the applicant for motor vehicle work dated 2017 to 2019.

    48) Letter from the applicant dated 3 March 2020 stating they have not been in contravention of any law.

    49) Further employment contract dated 24 June 2019 signed by applicant nominee with the same job description attached.

    50) Company tax return 2018 and 2019.

    51) Depreciation schedule for the applicant for FY 2018 showing total claim for depreciation 929.

    52) Sales orders for various mechanical items.

    53) References for the nominee as a facilities manager from various supply companies.

    54) ASIC registration dated 5 March 2020.

    55) Profit and loss to 30 June 2019.

    56) Payroll summary for the applicant 1 July 2019 to 8 March 2020 showing total wages of $50,594 and total superannuation $4806.

    57) Payslip for the nominee from 1 July 2019 to 8 March 2020 showing gross earnings of $37,800. Payslips for the same period for the other employees confirm the amounts in the payroll summary.

    58) Superannuation payment instructions from Australian Taxation Office for the applicant for Q3 2016 to Q2 2019.

14. Documents including the following were provided after the hearing:

    59) Submission dated 7 July 2020 from the registered migration agent.

    60) Pay scale average facility manager salary in Brisbane showing an average of $79,998.

    61) Business activity statement Q1 2020.

    62) Quarterly payroll report for the nominee and other employees from 1 July 2018 to 30 June 2019.

    63) Letter dated 1 July 2020 from the director to the nominee stating that the base salary will increase from $54,000 to $65,000 such that it is a market salary for the position of facilities manager and having regard to accomplishments and ongoing high-performance with the company.

    64) Lease for the property at Virginia for the applicant commencing 24 June 2019 and expiring 23 June 2024.

    65) Letter from the Tribunal dated 29 July 2020 inviting applicant to comment by 5 August 2020 on the validity of the certificate issued under s.375A of the Act.

    66) Email dated 4 August 2020 from the registered migration agent stating the certificate was raised at the hearing and the applicant denied the allegations and that a statutory declaration to that effect was forwarded to the Tribunal.

    67) Statutory declaration dated 31 July 2020 signed by the applicant denying the allegations in the certificate.

    Adjournments and extensions of time

15. During the hearing the applicant requested a brief adjournment which was granted.

    Section 375A Certificate

16. The Department provided a s.375A certificate and the Tribunal gave the applicant the gist of the material in the certificate, being an allegation from an anonymous source that the applicant engaged in payment for visa sponsorship. Mr Yasar advised that he never received any cash payments for such matters. The Tribunal advised that it gives no weight to anonymous allegations in reaching a decision, however, the applicant was invited to make a further submission if they wished within 14 days. No further submission on this matter was received. The applicant was invited on 29 July 2020 to comment on the validity of the certificate by 5 August 2020 and submissions and a statutory declaration were received refuting the allegations but did not address the validity of the certificate.

    Section 359AA of the Act

17. At the commencement of the hearing, the Tribunal explained that it may put information to the applicant, under s.359AA of the Act, that would be the reason, or a part of the reason, for affirming the decision that is under review and that it would explain why this information was relevant to the decision and how it may be relied upon in reaching a decision. The Tribunal also advised that the applicant would be given an opportunity to respond to this information in one of three ways: Mr Yasar could request an adjournment and the hearing could be stopped for 15 or 20 minutes or whatever period of time he wished and he could seek advice from his registered migration agent; the applicant could make a written submission within 14 days or an extended period of time if it requested an extension; or Mr Yasar could respond in the hearing. If he responded in the hearing, it would not prevent him from making a written submission within 14 days or a longer period if he requested an extension of time.

18. 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

19. 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.

20. 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.

21. 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.

22. 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.

23. 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".

1. The agent refers to other cases, namely, Singh (Migration) [2020] AATA 1178 (16 April 2020); 172799 (Migration) [2019] AATA 3875 (22 March 2019); Vu (Migration) [2017] AATA 2608 (12 September 2017) and Zafari (Migration) [2018] AATA 4822 (16 October 2020). The Tribunal prefers to rely upon the High Court and identify any issues in relation to the decision and clearly identify those to the applicant and give it the opportunity to respond.

2. This is in keeping with the President’s direction, which was not intended to supplant s.349(4) of the Act which provides:

   to avoid doubt, the Tribunal must not, by varying the decision or setting a decision aside and substituting a new decision, purport to make a decision that is not authorised by the act or the regulations.

3. It is for this reason the Tribunal is required before setting a decision aside to satisfy itself that all regulations are met, otherwise it would be acting in a manner that is not authorised by the Act or the Regulations.

4. The Tribunal does not accept the agent’s arguments for the reasons given above and will be carefully evaluating the evidence to ensure that each clause and subclause of r.5.19(3) is met or not met.

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

5. 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 two years on terms that do not expressly preclude the possibility of an extension.

6. The tax returns and financial statements confirm the following figures for the FY’s 2018 and 2019. It is noted that the applicant had a loss of $54,305 for FY 2019 and that the business had accumulated tax losses for the 2018–2019 year of $421,669.

Tax return	2018	2019
Income	1,089,974	1,049,339
Wages	98,108	79,657
Total Expenses	1,055,272	1,103,644
Profit/(Loss)	34,702	-    (54,305)

1. The Tribunal raised the analysis of the financial records and the concern over the loss in 2019 with the applicant under s.359AA.  The applicant responded that they have moved twice and while waiting to move into their new building they had expected a delay of six to seven months, however this was extended to two years. They had to cancel their plans to start a panel beating business and did not have a car park for customers during this downsized period. The taxi business had to subsidise the business during this difficult time, however it would not happen again. They are building a spray booth, car washing plant, tyres, expanding into car detailing and Mr Yasar has completed a course for second-hand car sales as another option for expansion.

2. The registered migration agent had addressed the applicant’s financial viability in a letter dated 9 March 2020 by referring to the letter from the accountant which states as follows:

   The employer produced approximately $1 million annual gross income, as the company was also leasing a Taxi Business from the related company of Yasar Management Pty Ltd (ABN 54 128 569 326).

   The employer produced an increase in its assets from $35,979.00 (FYE 2018) to $89,362.00 (FYE 2019) due to inventory, bank account and the shareholders fund injected into the company. The employer produced an increase of non-current assets from $216,902.00 (FYE 2018) to $306,483.00 (FYE 2019) due to purchasing new equipment and workshop fit out.

   The company incurred large expenses and liabilities over the last two (2) financial years due to the running of a Taxi leasing business (ie, paying radio fees to Black & White).

   The company also incurred large expenses due to moving their business. Prior to the company’s move to their current location (in Virginia, QLD), the company had to move from 31 Wolverhampton Street, Stafford QLD, to a smaller location on the same street (18 Wolverhampton Street, Stafford QLD) due to the owners selling the building. In this regard there were significant moving fees and disposal expenses from initially renting the original premises for a long-time, and effectively down-sizing in the interim, prior to moving to Virginia QLD. There was also a delay in the completion of the Virginia QLD premises, which meant that the anticipated savings in rent were not realised until financial year 2019,­2020.

   Another part of the contribution towards the expenditures, was the inability to service as many private cars as desired, due to the restricted space, and the taxis taking priority.

3. The Tribunal accepts that the employer produced $1 million gross income in FY2019, increased its assets from FY 2018 to 2019 and increased its non-current assets, however, it cannot accept that the applicant, namely S.E. & Sons Pty Ltd, was involved or suffered detriment due to the taxi leasing business which is owned and operated by another legal entity, Yasar Management Pty Ltd. In fact, during the hearing Mr Yasar stated that the taxi business had been assisting to subsidise the mechanical workshop. These factors do not change the loss of $54,305 for the FY 2019 nor the accumulated tax losses of $421,669.

4. The Tribunal accepts that the downsizing of the business prior to the move to Virginia and the moving expenses would have contributed to the unexpected costs, however, the business has now been located at Virginia since June 2019 or more than 12 months. The business has been established for 12 years so it is reasonable to expect that they have an established customer base and this was alluded to in the hearing by Mr Yasar.

5. There has been some reference to depreciation schedules. For completeness the Tribunal considers depreciation schedules refer to major assets to a business and will have to be replaced when their effective life is over. As such, the business is allowed a depreciation deduction each year to ensure funds are set aside so the business assets can be replaced when their effective life is concluded. The Tribunal does not accept an argument that depreciation can be included as expenditure and used by the business to lawfully minimise their tax, but depreciation is then excluded as expenditure and used by the business to seek a migration outcome. The Tribunal considers if a business is not profitable and is using the depreciation reserves to cover this loss, then it will not have those reserves to replace essential business assets when their effective life ends. Without essential assets, a business cannot continue to operate so it is reasonable that the Tribunal consider the profit with depreciation taken as expenditure, and as such depreciation cannot be used as an adjustment to produce a net profit.

6. The Tribunal noted the Australian Taxation Office advice regarding depreciation calculations based on the effective life of an asset:

   Methods of working out decline in value - You generally have the choice of two methods to work out the decline in value of a depreciating asset. These are: the prime cost method or the diminishing value method. Both these methods are based on a depreciating asset’s effective life.

7. Both the applicant and the accountant have emphasised the expansion plans such as panel beating and spray-painting; commencing Uber rental; buying and selling second-hand vehicles for profit; installation and servicing of taxi/limousine cameras and wheelchair accessible taxi conversions. The accountant states that the business is successfully operating with its established customer base and undertaking mechanical, panel shop and spray-painting services to over 60 taxis as well Uber drivers and private regular customers:

   S.E. & Sons running its business with its current and permanent customer base. Its providing regular mechanical, panel shop and spray painting services to the related company Yasar Management Pty Ltd (up to 30 taxi on the road) and Durmaz Family Pty Ltd (up to 30 taxi on the road and regular uber taxi drivers & private regular customers.

8. To support the expected revenue from the expansion plans the accountant states that he has provided a cash flow projection for the 12-month period 1 January 2020 to 31 December 2020 with the expenses being the same as those from 1 July 2019 to 31 December 2019.

9. The Tribunal notes that the projection actually covers the 12-month period 1 March 2020 to 28 February 2021. The projections show total revenue of $530,000, less cost of sales $159,477 and total expenses of $271,921 for a projected profit before tax of $98,602. Projections and future plans are aspirational, and the Tribunal cannot base a decision on them.

10. The applicant has provided a business activity statement (BAS) for Q1 2020 or 1 January 2020 to 31 March 2020 which shows sales of $89,874 with wages of $20,486. If these figures are annualised, we arrive at a turnover for the FY 2020 of $359,496 and total wages bill of $81,944. The Tribunal acknowledges that annualising a result from one quarter of turnover is just a projection, but it has little else to use to compare to the projection by the accountant. The wages bill is in keeping with the total wages of $79,657 for FY 2019 but the revenue has declined by 66%. This is a concerning result because the business had been operational in the new Virginia premises for more than six months and according to the accountant and applicant had a strong customer base. It is also significant that COVID-19 had not yet impacted businesses, since closures of businesses occurred from 22 March 2020 onwards.

11. Using the same cost of sales as the accountant, namely 30%, and the same total expenses of $271,921, a loss of $20,274 is projected for FY 2020.

BAS	Sales	Wages
Q1 2020	89,874	20,486
Annualised	359,496	81,944
Cost of sales 30%	107,849
Expenses	271,921
Loss before tax	-     20,274

1. The Tribunal does not consider projections as anything more than aspirational however it was necessary to consider the projections made by the accountant.

2. The registered migration agent’s letter directs the Tribunal to consider the following cases, which it contends have similar circumstances to the applicant’s case and in which the Tribunal set aside the refusal of the employer nomination: Zachiz Pty Ltd the Tom Stojanovski Family Trust (Migration) [2018] AATA 1924 (29 March 2019); Star Cycle Pty Ltd (Migration) [2019] AATA 4131 (29 August 2019) and Batty Enterprises Pty Ltd (Migration) [2018] AATA 1923 (22 March 2018) are cases in question.

3. The Tribunal has reached this decision with a careful evaluation of all evidence including testimony at hearing and after an analysis of that evidence.

4. The Tribunal also has cognisance of Judge Egan’s statement there is no jurisdictional error in a later decision of an Authority being factually different from a prior decision where the material is the same.  In DUN16 v Minister for Immigration & Anor [2020] FCCA 601 (19 March 2020) at [16] his Honor stated:

   Further, the fact that an earlier decision of the Authority was factually different from a later decision of the Authority does not render the later decision as one affected by jurisdictional error. It has long been accepted that different minds might reasonably reach different conclusions on similar or identical material.

5. For these reasons the Tribunal declines to follow the analysis and decisions in the cases cited by the registered migration agent.

6. The Tribunal has considered the statements made by the applicant and the accountant regarding the expansion of the business and the projected increase in revenue for FY 2020, but finds these are not supported by the figures in the BAS for Q1 which show a concerning decline in revenue of 66% for the quarter compared to the revenue results for FY 2019. Taking this into account with the loss of $54,305 for FY 2019 and the accumulated tax losses of $421,669, the Tribunal finds for a person to whom subparagraph (c)(i) applies, namely the nominee, the nominee will not be employed on a full time basis in the position for at least two years as the applicant is not financially viable.

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

8. 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 the 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

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

   De-Anne Kelly
   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.