The Trustee for Chhena Family Trust (Migration)

[2019] AATA 513

The Trustee for Chhena Family Trust (Migration) [2019] AATA 513 (20 February 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  The Trustee for Chheena Family Trust

CASE NUMBER:  1705698

DIBP REFERENCE(S):  BCC2016/875789

MEMBER:Stavros Georgiadis

DATE:20 February 2019

PLACE OF DECISION:  Adelaide

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

Statement made on 20 February 2019 at 5:10pm

CATCHWORDS
MIGRATION – Employer Nomination – approval of nominated position – Direct Entry Nomination – Retail Manager - General – financial capacity to pay the nominee – substantial decline in the sales turnover – lack of documentary evidence – decision under review affirmed

LEGISLATION
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 14 March 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 3 March 2016. 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) of the Regulations because, having reviewed the applicant’s financial circumstances, the delegate was not satisfied that the nominated employee will be employed on a full time basis for at least 2 years and therefore, the applicant did not meet r.5.19(4)(d)(i).

5. Mr Abdur Chheena (sole Director) appeared on behalf of the applicant before the Tribunal on 20 February 2019 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant, Mr Ayaz Qaiser, in the related casefile number 1711252.   

6. The Tribunal was assisted by and interpreter of the Urdu and English languages.

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.

   Term of employment of the visa holder: r.5.19(4)(d)

9. Regulation 5.19(4)(d) requires the nominee to be employed in the nominated position for at least 2 years full time, and the terms and conditions of that employment do not expressly exclude the possibility of an extension. 

10. The Tribunal places weight on the oral evidence provided by Mr Abdur Chheena noting that he gave spontaneous and fulsome responses to questions put to him without any apparent attempt to deflect or evade questions. He told the Tribunal that he is sole Director of the company, A R Chheena Pty Ltd as Trustee for the Chheena Family Trust.  He provided written submissions about the background of the business, which up until December 2018 had been trading as IGA X-press.  Subsequent to that, the business has traded as Wyalkatchem General Store and is no longer in a franchise arrangement with the IGA.

11. The ABN of the business is 41180326518. The business was first established on 24 July 2014 in Wyalkatchem, regional Western Australia, 6485. The applicant explained that this is the only retail shop available in Wyalkatchem, a small town population of more than 2,000 noting that the local roadhouse has recently closed because of what the applicant described as “conflict with town people”. Wyalkatchem is a town in a wheat belt region with many people making daily transactions coming from nearby farms and further afield.

12. When asked why the business is no longer in a franchise arrangement with the IGA, the applicant explained at the hearing that he was “not getting enough support from the IGA” and that the cost of groceries supplied by the IGA was too expensive.  He told the tribunal he “can’t make a good margin”. He explained that “the region is not growing” so in order to sustain the business he decided to source his own grocery supplies rather than through the IGA.

13. The Tribunal accepts the evidence that in total, the business had engaged, apart from the Director, five other personnel on a casual or part-time basis.  Including the applicant’s Director, this makes a total of 6 persons including: one Retail Manager (Ayaz Qaiser) working 20 hours per week part time; two part-time day and night Filler positions occupied by Fazal Elahi Chheena (the applicant’s brother) and Huma Mallhi Chheena (the brother’s spouse); one Retail Assistant named Azhar Abdul Majid Chheena working part time; and one part-time Packer / Stock-taker named Salina Chheena.  The Tribunal notes the “family” business employed several relatives of the applicant with the exception of Mr Ayaz Qaiser who is the visa applicant for the Subclass 187 visa in the related casefile 1711252.

14. The Tribunal accepts the applicant’s oral evidence that all the above personnel only ever worked part-time.  The Tribunal also accepts that there was no full-time Retail Manager engaged by the business at any stage.  Mr Ayaz Qaiser’s evidence is consistent with the applicant’s Director in that Mr Ayaz Qaiser’s had ceased all work in the business from July 2017 due to his perception of no having work rights attached to his Bridging visa pending the outcome of this review.

15. The applicant submits that in the past the business was doing well, making enough money to pay employees’ salaries and cover all expenses. The applicant emphasises that the business premises are owned by his company so there is no need to pay any rent. The applicant submits that during 2015-2016, the business grew and it was at this time he hired Mr Ayaz Qaiser for the position of Retail Manager. He submits that in 2017-18, sales have declined in the absence of Mr Ayaz Qaiser.  However, the Tribunal accepts that the applicant’s brother was fulfilling the role of Retail Manager on a part-time basis until February 2018.  This was also a time when the applicant has severed its franchise arrangements with the IGA.

16. The applicant’s oral evidence, which the Tribunal accepts is that in the past 2 years, there has been a substantial decline in the sales turnover of the business in the order of 30%.  In light of this revenue decrease, the Tribunal raised concerns at the hearing over the viability of the business to sustain a full time Retail Manager for at least 2 (or more) years at the nominated salary rate of $55,120 per year +9.5% superannuation contributions (Total $60,356) - particularly given the high franchise cost of IGA supplied groceries and the applicant’s admission he could not “make a good margin” in those circumstances.

17. In response, the applicant reiterated, “the business has potential” and stated that he thought he could remain profitable by continuing to supply his own groceries and re-engaging Mr Ayaz Qaiser for the position of Retail Manager.  The Tribunal clarified in the affirmative that the applicant does not intend to re-engage as part of the IGA franchise.  There is no documentary evidence before the Tribunal to substantiate any recent profitability or the viability of the business in the near future. The Tribunal considers it is not onerous on the applicant to provide such evidence.  There are no Profit and Loss Statements or Balance Sheets provided for any of the past 2 years to ascertain the financial health of the applicant in a way that demonstrates that it can employ the nominee in the nominated position of Retail Manager - General (ANZSCO 1421111) for at least 2 years full time.

18. At the hearing, the Tribunal noted to the applicant that the BAS statements previously provided were now quite dated and that for the March 2015 quarter the BAS shows wages paid of $3,316 and for the June 2016 quarter wages paid of $3,100.  The remaining quarterly BAS show nil wages paid. Given the dated financial information available, the applicant was invited at the hearing to provide financial reports or particulars regarding the current or recent financial standing of the business.  The Tribunal sought such information relating to the past 2 years but the applicant responded that he did not have the 2016/17 financial statements and that the 2017/18 financial statements had not yet been completed.

19. Having considered the evidence before it discussed, the Tribunal considers, on balance, that the applicant’s has not demonstrated to the Tribunal’s satisfaction that the employee will be employed on a full-time basis in the nominated position for at least 2 years.

20. Accordingly, the requirement in r.5.19(4)(d) is not met.

21. 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

22. 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).