Southern Cross Personnel Pty Ltd (Migration)

[2018] AATA 3484

Southern Cross Personnel Pty Ltd (Migration) [2018] AATA 3484 (23 August 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Southern Cross Personnel Pty Ltd

CASE NUMBER:  1731242

DIBP REFERENCE(S):  BCC2017/2253783

MEMBER:Stavros Georgiadis

DATE:23 August 2018

PLACE OF DECISION:  Adelaide

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

Statement made on 23 August 2018 at 5:49pm

CATCHWORDS

Migration – Nomination refusal – Direct nomination scheme – Genuine need for a full time employee – Decline in recruitment work – Nominee currently working as a part time employee on a student visa – Position not advertised – Combined hearing with nominee – Decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 245AR
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 21 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 23 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)(a)(ii) of the Regulations because the delegate found a need to employ a paid employee to work in the nominated position of Recruitment Consultant under the nominator’s direct control had not been identified by the applicant.

5. Mr Michael Racher on behalf of the applicant appeared before the Tribunal on 23 August 2018 to give evidence and present arguments. The Tribunal conducted a combined hearing with the visa applicant, Mr Yuanda Li, who also provided oral evidence in the related matter regarding the visa refusal in casefile 1801668.  The related matters were heard together in a combined hearing.  

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

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.

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

9. 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.

10. Mr Michael Racher is the applicant’s sole Director. His oral evidence is consistent with the organisational chart provided relating to the number of recruitment consultants employed by the applicant, Southern Cross Personnel Pty Ltd. A separate related entity, Southern Cross Workforce Pty Ltd, employs another four recruitment consultants. Mr Racher is also the sole Director of that company. The Tribunal accepts the evidence that the applicant employs four recruitment consultants, two full time and two part-time (including the nominee, Mr Li). One of the part-time recruitment consultants has departed employment with the applicant by what Mr Racher described as ‘mutual arrangement’.

11. At the hearing, the applicant told the Tribunal that he first interviewed Mr Li in November 2016 and has employed him as a recruitment consultant since November 2017 on a part time basis of 20 hours per week on average.  This is consistent with the payslips provided.  At the hearing, Mr Li explained that this part-time work is because of restrictions on his Student subclass 500 visa granted on 3 February 2017 and valid until 26 October 2019. 

12. The nominee explained to the Tribunal that he is enrolled in an Advanced Diploma of Leadership which he expects to complete in October 2019.  Mr Li confirmed that he has been employed by the applicant as a part-time recruitment consultant since 20 November 2017 and that he continues in that role whilst undertaking his studies.

13. The applicant submits that he has a genuine need for a full-time recruitment consultant and that this is why he offered Mr Li the role and signed a contract to that effect in June 2017.  The Tribunal put to the applicant that this contract was entered into at a time when the applicant knew Mr Li could only work part-time because of the restrictions on his Student visa, which he accepts is the case. Given the nominee’s part time work since 20 November 2017 and his ongoing student status until October 2019, the Tribunal observed and asked the applicant whether there is a genuine need for a paid employee to work full time as a recruitment consultant under the nominator’s direct control.  The applicant explained that there is such a need even though he let one other part-time recruitment consultant go by ‘mutual arrangement’ intimating performance issues. 

14. The applicant confirmed, when asked about replacing the part-time recruitment consultant, that he had not done so.  The applicant confirmed when pressed, that he had not actually undertaken any advertising for a replacement recruitment consultant. The Tribunal reflected that this was inconsistent with the stated need for a full time recruitment consultant. The applicant subsequently told the Tribunal that the lack of advertising was because specialty work engaging Japanese clients had ceased as that particular contract had ended and that only that recruiter could undertake that work.  The applicant also told the Tribunal that he had kept that recruitment consultant on for an additional month undertaking other recruitment consulting work but declined that he could be trained for further work in the business or use any of his transferrable skills as a recruitment consultant.

15. The Tribunal accepts the applicant’s oral evidence that the recruitment consulting work was in decline from the same time last year because of changes to the 457 visa arrangements and related legislation. The Tribunal places weight on this evidence and also the circumstance where the applicant has been able to continue to operate the business with Mr Li working only 20 hour per week for many months now, since November 2017 and relevantly, the limitation of 20 hours per week is to continue for the nominee until October 2019. The Tribunal also places weigh on the evidence that Mr Racher was aware of this when he signed the contract committing to Mr Li in June 2017.  All this is against a background on no action taken to replace the part-time recruitment consultant who departed in circumstances of a ‘mutual agreement’ with Mr Racher.

16. The Tribunal concludes for these reasons that the applicant has not identified a need for the nominator to employ a paid employee to work in the position of full time recruitment consultant under the nominator’s direct control.

17. Accordingly, the requirement in r.5.19(4)(a) is not met.

18. For the above reasons the Tribunal is not satisfied that the applicant meets the requirements of r.5.19(4). The applicant has not sought to satisfy the criteria in 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. Therefore, the Tribunal must affirm the decision under review.

    DECISION

19. 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.

    …

    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).