SARGUN GROUP PTY LTD (Migration)

[2020] AATA 3235

SARGUN GROUP PTY LTD (Migration) [2020] AATA 3235 (14 June 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  SARGUN GROUP PTY LTD

CASE NUMBER:  1730997

HOME AFFAIRS REFERENCE(S):          BCC2017/2268973

MEMBER:Stavros Georgiadis

DATE:14 June 2020

PLACE OF DECISION:  Adelaide

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

Statement made on 14 June 2020 at 2:07pm

CATCHWORDS
MIGRATION – nomination – Temporary Residence Transition nomination stream – business has not been active – nil activity on recent BAS statements – nominee would not be employed by the applicant on a full-time basis for at least 2 years –decision under review affirmed

LEGISLATION
Migration Regulations 1994, 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 and Border Protection on 30 November 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 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 that the applicant’s nomination did not satisfy r.5.19(3)(d)(i) of the Regulations because the delegate considered the applicant’s financial circumstances were such that the nominee would not be employed by the applicant on a full-time basis for at least 2 years.

5. The applicant’s current sole Director, Ms Jasdeep Kaur, appeared on behalf of the applicant before the Tribunal on 12 June 2020 to give evidence and present arguments. The Tribunal also received oral evidence from Ms Sandeep Kaur who is the nominee for a Subclass 186 visa that was refused by the delegate and is the applicant in review of the Subclass 186 refusal decision in the related AAT casefile 1824797, together with her husband, Mr Rahid Duggal.  The related matters were heard together by teleconference in a combined hearing.

6. The Tribunal exercised its discretion to hold the hearing by telephone. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold the combined hearing by telephone, having regard to the nature of the matters and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.    

7. The applicant was represented in relation to the review by its registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. 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.

   Status of the nominator: r.5.19(3)(b)

10. Regulation 5.19(3)(b) requires the nominator to be or have been the relevant standard business sponsor who is actively and lawfully operating a business in Australia. In addition, the nominator, as that standard business sponsor, must not have met certain criteria relating to the operation of a business overseas, in the most recent sponsorship approval.

11. At the hearing, when asked about the business’ finances and profitability, the applicant told the Tribunal that finances were ‘up and down’ and confirmed that in 2018 the business had made a loss of $2,039. In response to queries regarding the nominee’s current employment, the applicant told the Tribunal that the nominee has not worked in the business since her Subclass 457 visa was cancelled at the end of 2017.  The nominee confirmed at the hearing that her Subclass 457 visa was cancelled on 9 November 2017 and that she was notified of this in December 2017.  There is no evidence that the nominee’s Subclass 457 visa has been reinstated.  The applicant explained that as a consequence, the business ceased operating. 

12. The Tribunal raised with the applicant that one of the requirements for the nomination is that as the standard business sponsor who last identified Ms Sandeep Kaur as the holder of the Subclass 457, the applicant is actively and lawfully operating a business in Australia - for the purposes of meeting r.5.19(3)(b). The applicant explained that as the nominee’s Subclass 457 visa had been cancelled and the nominee had not been replaced for the position of Web Developer, the business has not been active for more than the past two years to date. The applicant also referred to nil activity recorded in BAS statements submitted to the Tribunal.

13. The Tribunal accepts the applicant’s oral evidence that the business has not been active noting nil activity on recent BAS statements submitted. Accordingly, the Tribunal finds that the nominator, as 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, is not actively and lawfully operating a business in Australia and therefore, does not meet r.5.19(3)(b)(ii).

14. Given the above, the requirement in r.5.19(3)(b) is not met.

15. 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

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

    Stavros Georgiadis
    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.