SUNTREE SOLAR & ELECTRICAL PTY LTD (Migration)

SUNTREE SOLAR & ELECTRICAL PTY LTD (Migration) [2020] AATA 2605 (22 June 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  SUNTREE SOLAR & ELECTRICAL PTY LTD
CASE NUMBER:  1913236
HOME AFFAIRS REFERENCE(S):          BCC2017/2298273
MEMBER:Bridget Cullen
DATE:22 June 2020
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision under review to refuse the nomination.
Statement made on 22 June 2020 at 1:07pm

CATCHWORDS
MIGRATION – application for approval of nominated position – direct entry nomination stream – demonstrated need for position – two concurrent nomination applications for different positions – size and scope of business – company in liquidation – application under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 359A, 359AA
Migration Regulations 1994 (Cth), r 5.19

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 20 May 2019 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 28 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 Direct Entry nomination stream. The nominee was identified as Mr Chiragkumar Bhikhabhai Patel, in the position of Sales and Marketing Manager (ANZSCO - 131112).
The delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19(a)(ii) of the Regulations because the delegate was not satisfied that the applicant had demonstrated a need for a Sales and Marketing Manager to be employed to work in the position under the applicant’s direct control.
Mr Mohammad Tohidul Hasan purported to appear for the applicant before the Tribunal on 1 June 2020, to give evidence and present arguments. The hearing was held concurrently with the RN-187 visa application review lodged by Mr Chiragkumar Bhikhabhai Patel.
The applicant was represented in relation to the review by its registered migration agent, Ms Adele Hay-Tone Wan, a Senior Associate at Agape Henry Crux (MARN 1802784). Ms Wan is also a solicitor, admitted in New South Wales. Ms Wan did not attend the hearing.
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 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)
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.
The application was made on an approved form 1395 (Internet); was accompanied by the fee prescribed in r.5.37, and contained a written certification stating whether the nominator has engaged in conduct in relation to the nomination which would contravene s.245AR(1) of the Act.
What is before the Tribunal, is the same issue before the department delegate; whether the applicant has a need to employ the nominee, Mr Chiragkumar Patel, in the position of Sales and Marketing Manager.
Whilst making their decision, the delegate noted several concerns. Firstly, the delegate was concerned that this was a newly created position, with no evidence that the tasks had been undertaken previously. Secondly, the delegate had concerns that there was no need for the position as the turnover for the business had been increasing without anyone employed in the position. Thirdly, the delegate could not identify in the documents provided to the Department, that the position of Sales and Marketing Manager was needed, given the size and scope of the business.
On 15 May 2020, the Tribunal wrote to the applicant pursuant to s.359A of the Act. The reason for the s.359A letter was that the nominee, Mr Patel, had two concurrent nominations for two different positions at the same company (Technical Sales Representative, pursuant to a r.2.72 nomination), and the current Sales and Marketing Manager nomination. The Tribunal had concerns that the reason for the nomination for Mr Patel was not based on actual need for a Sales and Marketing Manager in the business; but that rather, a migration outcome was being sought.
On 29 May 2020, under the letterhead of Agape Henry Crux, the Tribunal received a response from the applicant. Mr Hasan, who calls himself the “General Manager” asserts that the two positions are not incompatable, in his letter dated the 28 May 2020. Noticeably absent from Mr Hasan’s letter is any mention that the applicant had been placed into external liquidation a month earlier.
The Tribunal obtained an ASIC Company Extract, in advance of the hearing. The ASIC record reflects that the applicant is in liquidation. On 29 April 2020, the Federal Court (NSW) appointed Mr Domenico Alessandro Calabretta of Mackay Goodwin, Suite 1, Level 2, 10 Bridge Street, Sydney NSW 2000, as administrator.
It should be obvious that, once the external administrator was appointed, it was only Mr Calabretta who could properly instruct Ms Wan. The Tribunal is not in a position to know whether Ms Wan had obtained the external liquidator’s instructions to act when she filed the applicant’s s.359A response in the Tribunal on 29 May 2020.
Surely, the external administration of the applicant is an important factor that the Tribunal should have been apprised of, particularly where the applicant is represented by a legally qualified registered migration agent. Had Ms Wan had been instructed to press on with the application by the administrator following its appointment, the Tribunal should have been provided with information about the change of contact details for the applicant. No change of contact details have been filed in the Tribunal.
The Tribunal recognises that it is possible that the applicant withheld information about its administration from Ms Wan. However, given that the information is publically available, the Tribunal considers it prudent that representatives continue to check important details, such as the lawful status of the applicant company with ASIC, and correspondingly, the continuing ability of the representative to receive instructions to act from the applicant.
At the hearing, the Tribunal put the circumstances surrounding the appointment of the administrators to the applicant in accordance with its obligations under s.359AA of the Act. Mr Hasan requested time to respond, on the applicant’s behalf.
The Tribunal provided seven days following the hearing to seek instructions, and make submissions in relation to the issues raised at the hearing. As of the date of the decision, the Tribunal is yet to receive any further submissions in this regard.
In circumstances where the applicant is in administration, and there is no information before the Tribunal that the external administrator seeks to pursue the nomination, the Tribunal is not able to conclude that there is a need for the applicant to pay a paid employee to work in the position under its direct control. There is no information before the Tribunal indicated that the applicant’s business will continue following administration.
Accordingly, the requirement in r.5.19(4)(a) is not met.
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
The Tribunal affirms the decision under review to refuse the nomination.
Bridget Cullen
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).

[2020] AATA 2605

22 June 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Statutory Construction