The Trustee for MCCOURT GROUP PTY LTD (Migration)

[2019] AATA 295

The Trustee for MCCOURT GROUP PTY LTD (Migration) [2019] AATA 295 (4 February 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  The Trustee for MCCOURT GROUP PTY LTD

CASE NUMBER:  1720202

DIBP REFERENCE(S):  BCC2017/1307114

MEMBER:Peter Emmerton

DATE:4 February 2019

PLACE OF DECISION:  Adelaide

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

Statement made on 04 February 2019 at 10:46am

CATCHWORDS

MIGRATION – approval of a nomination – Temporary Residence Transition nomination stream – sponsor lawfully operating a business in Australia – sponsor meeting the training requirements – new company operating the business – employee working in the direct control of the nominator – decision under review affirmed          

LEGISLATION

Migration Act 1958, ss 140GB, 347, 348
Migration Regulations 1994, rr 4.02, 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 August 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 7 April 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 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)(i) of the Regulations because they were not satisfied that the nominator had demonstrated that they had met the training requirements stipulated in r.5.19(3)(f)(i).

5. The applicant represented by Mr Luke Mc Gee, for The Trustee for McCourt Group Pty Ltd, appeared before the Tribunal on 30 January 2019, in a joint hearing with MRT file ref 1724392, to give evidence and present arguments. The Tribunal also received oral evidence from Mr Zhixi Chen, the nominee. The Tribunal found all those presenting evidence to be credible and appeared to answer questions in an open and honest manner without obfuscation.

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 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) and r.5.19(3)(d)

9. 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.

10. Regulation 5.19(3)(d) requires the nominee will be employed on a full-time basis in the position for at least 2 years on terms that do not expressly preclude the possibility of an extension. The position referred to in r.5.19(3)(d)(i) must be for employment in the nominator’s own business.

11. The following information was put to the applicant at the hearing pursuant to s.359AA.

    Adverse Information:

12. I am now going to put to you formally under the law information that I have. This is information that would be the reason or part of the reason for affirming the decision under review.

13. I will also explain to you why the information is relevant to the review, and the consequence of me relying upon such information. Please tell me if you don’t understand the information, why it is relevant or the consequence of me relying on it.

14. I will then ask you to comment on or respond to that information. You don’t have to respond now, you can ask for more time to comment or respond to the information.

    The information is……

15. The information is that WACE Group Pty Ltd, not McCourt Group Pty Ltd, is now actively and lawfully operating the business Paul’s Service Centre. Wace Group Pty Ltd has a different ABN to McCourt Group Pty Ltd.

16. If the Tribunal determines that the nominator for the purpose of r.5.19 was and remains McCourt Group Pty Ltd, the Tribunal must consider whether McCourt Group Pty Ltd meets the requirements of r.5.19.  

17. The information that WACE Group Pty Ltd is now actively and lawfully operating the business Paul’s Service Centre is relevant to review as it begs the question whether McCourt Group Pty Ltd is actively and lawfully operating a business in Australia as required by r.5.19(3)(b)(ii). It also calls into question whether the person will be employed on a full-time basis in the position for at least 2 years as required by r.5.19(3)(d)(i). With respect to r.5.19(3)(d)(i), the position must be for employment in the nominator’s own business.

18. The information is also relevant to the review as r.5.19(4)(a)(ii) requires that the nominator identify a need to employ a paid employee to work in the position under their direct control, and r.5.19(4)(b)(ii) requires the nominator to directly operate the business.

19. The consequence of the Tribunal relying on this information is that the Tribunal may find, subject to your comments or response, that:

20. McCourt Group Pty Ltd is not actively and lawfully operating a business in Australia; and/or

21. The nominee will not be employed on a full-time basis in the position for at least 2 years, as the position is not for employment in a business owned by McCourt Group Pty Ltd; and/or

22. McCourt Group Pty Ltd has not identified a need to employ a paid employee to work in the position under their direct control; and/or

23. McCourt Group Pty Ltd does not directly operate Paul’s Service Centre.

24. If the Tribunal were to so find, McCourt Group Pty Ltd would not meet the requirements of r.5.19(3)(b)(ii), r.5.19(3)(d)(i), r.5.19(4)(a)(ii) and/or r.5.19(4)(b)(ii). Accordingly the requirements of r.5.19 would not be met and the decision under review would be affirmed.

25. Do you understand why this information is relevant to the review and the consequence of the information being relied on in affirming the decision that is under review?

26. I invite you to comment or respond to this information I have placed before you. Do you want to comment or respond to that information now, or do you need more time to do so?

    Dispositive Issue:

27. In addition to the adverse information I have outlined today, I further clarify for you that the issue for the delegate was whether the training requirements in r.5.19(3)(f)(i) were met. However, a dispositive or determinative issue on review is the change of ownership of Paul’s Service Centre and whether in light of that change of ownership the nominator satisfies the requirements in r.5.19(3)(b)(ii), r.5.19(3)(d)(i), r.5.19(4)(a)(ii) and/or r.5.19(4)(b)(ii) which I have explained today.

28. If the Tribunal finds the nominator doesn’t meet the requirements in 5.19(3)(b)(ii), 5.19(3)(d)(i), 5.19(4)(a)(ii) and/or 5.19(4)(b)(ii), it is not possible for the nomination to succeed nor consequently the visa applicant.

29. You now have an opportunity to give evidence and present arguments relating to the issues arising in relation to the decision under review.

30. The parties stated that they were happy to respond or comment. Mr Mc Gee and Mr Chen stated that they understood what was being said and the reason why it was relevant to their circumstances. Mr Mc Gee asked if the outcome may have been different had the Tribunal reviewed the Delegate’s decision prior to the change of ownership on 1 July 2018. The Tribunal responded that it may have made a difference as Mc Court Group Pty Ltd would have still been operating the business as well as being the entity who had originally applied for review of the Delegate’s decision.

31. The Tribunal also notes the fact that Mr Mc Gee acknowledged his failure to provide the necessary documentation, demonstrating that they met the requirements of r.5.19(3)(f)(i) to the department at time of application and understood it was his mistake. The Tribunal acknowledges the subsequent provision of evidence to it, showing that the fore-mentioned requirements were met.

32. McCourt Group Pty Ltd (trading as Paul’s Service Centre) (ABN 86 005 102 110) applied for approval of an employer nomination under the Temporary Residence Stream on 7 April 2017. That was refused by the delegate on 21 August 2017 as the delegate wasn’t satisfied the training requirements in r.5.19(3)(f)(i) were met.

33. On 1 September 2017, McCourt Group Pty Ltd applied for review of the delegate’s decision to refuse to approve their nomination.

34. The Tribunal has subsequently been informed by the applicant, that from 1 July 2018, WACE Group Pty Ltd (ABN (81 625 964 981) became the owners of Paul’s Service Station. They continue to trade as Paul’s Service Station. The Tribunal is satisfied that McCourt Group Pty Ltd and WACE Group Pty Ltd are separate legal entities, given the evidence presented at the hearing by Mc Court Group Pty Ltd and the 2 different ABN’s which were verified by the Tribunal, on the ASIC web site.

35. The Tribunal is satisfied that the entity with standing to apply for review is the McCourt Group Pty Ltd, as it is the legal entity who applied for the nomination and it is the entity that the decision to refuse the nomination relates to (s.347(2)(d) and r.4.02(5)(d)).

36. There is no provision in the Act to allow review rights to be transferred from one nominator to another nominator. As such, WACE Group Pty Ltd can’t step into the shoes of McCourt Group Pty Ltd and carry on the review as the review applicant. For this reason the Tribunal is of the view that as the application for review has not been withdrawn by McCourt Group Pty Ltd, the Tribunal continues to have jurisdiction, and under s.348 of the Act must review the decision and exercise its powers to either affirm the refusal decision or set it aside and substitute a new decision that the nomination is approved.

37. As previously stated the Tribunal is satisfied that the review applicant remains McCourt Group Pty Ltd, not WACE Group Pty Ltd. WACE Group Pty Ltd has no role in the current review application, despite the nominee continuing to work for the business using the same trading name under its control.

38. As the Tribunal is satisfied that the nominator for the purpose of r.5.19(3) is McCourt Group Pty Ltd, the Tribunal must consider whether McCourt Group Pty Ltd meets the requirements of r.5.19(3).

39. Given the evidence provided that demonstrates that WACE Group Pty Ltd is now actively and lawfully operating the business Paul’s Service Centre, it begs the question whether Mc Court Group Pty Ltd is actively and lawfully operating a business in Australia as required by r.5.19(3)(b)(ii). The Tribunal is satisfied that it is not, as it no longer owns the business trading as Pauls Service Centre, which it sold on 1 July 2018. Accordingly, the Tribunal finds the requirement in r.5.19(3)(b)(ii) is not met.

40. It also calls into question whether the person will be employed on a full-time basis in the position for at least 2 years as required by r.5.19(3)(d)(i). The position referred to in r.5.19(3)(d)(i) must be for employment in the nominator’s own business.

41. With respect to r.5.19(3)(d), the provision only applies to certain nominees (those described in r.5.19(3)(c)(i)). The Tribunal is satisfied the nominee has been employed full time in Australia in the position for which he or she holds a Subclass 457 visa for at least 2 of the 3 years immediately preceding the application. Accordingly the requirement in r.5.19(3)(c)(i) is met and r.5.19(3)(d) applies.

42. In order to meet the requirements in sub-regulation 5.19(3), the nomination must identify an occupation that relates to the position that is the same occupation as that carried out by the Subclass 457 visa holder on a full-time basis for at least two years in the period of three years immediately before the nominator made the application, and the position must be for employment in the nominator’s own business, unless the Subclass 457 visa was granted under special provisions that allowed the Subclass 457 visa holder to work as an independent contractor in a specified occupation. The 457 visa was not granted under special conditions allowing the visa holder to work as an independent contractor in this instance.

43. The Tribunal accepts that WACE Group Pty Ltd has operated the business operating as Pauls Service Centre, from 1 July 2018, following the sale of the business by McCourt Group Pty Ltd.

44. It must therefore follow, that the person or nominee will not be employed on a full-time basis, in the position for at least 2 years, as required by r.5.19(3)(d)(i), as McCourt Group Pty Ltd remains the nominator and the position is not for employment within the nominator’s own business now that the business has been sold to WACE Group Pty Ltd.

45. Given the above, the requirements in r.5.19(3)(b) and 5.19(3)(d) are not met.

46. For the above reasons the Tribunal is not satisfied that the applicant meets the requirements of r.5.19(3).

47. 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).

48. Not with-standing this fact, r.5.19(4)(a)(ii) requires that the nominator identify a need to employ a paid employee to work in the position under their direct control, and r.5.19(4)(b)(ii) requires the nominator to directly operate the business which for the reasons previously given, the Tribunal is satisfied it can-not do.

49. Accordingly, the nomination of the position cannot be approved. Therefore, the Tribunal must affirm the decision under review.

    DECISION

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

    Peter Emmerton
    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.