Thomas and Associates Pty Ltd Atf Shang Enterprises Trust (Migration) - [2024] AATA 228

Thomas and Associates Pty Ltd Atf Shang Enterprises Trust (Migration) [2024] AATA 228 (7 February 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Thomas and Associates Pty Ltd Atf Shang Enterprises Trust
CASE NUMBER:  2011318
HOME AFFAIRS REFERENCE(S):          BCC2019/388656
MEMBER:De-Anne Kelly
DATE:7 February 2024
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision under review to refuse the nomination.

Statement made on 07 February 2024 at 11:06am
CATCHWORDS
MIGRATION – approval of a nomination – Temporary Residence Transition nomination stream – occupation of Sales and Marketing Manager – false or misleading information – new franchise owner does not employ the nominee – actively and lawfully operating a business in Australia – genuine need – financial viability – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 140, 245, 359, 362, 368
Migration Regulations 1994, rr 1.03, 2.72, 5.19, 5.37
CASES
Pexbury Pty Ltd v Minister for Immigration & Anor [2020] FCCA3074
Pexbury Pty Ltd v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 660
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 2 July 2020 to reject the applicant’s application for approval of the nomination of a position under reg 5.19 of the Migration Regulations 1994 (Cth) (the Regulations).
The applicant applied for approval on 8 February 2019. The requirements for the approval of the nomination of a position in Australia are found in reg 5.19 of the Regulations, which contains general requirements for approval and additional requirements for approval set out in three alternative streams: a Temporary Residence Transition stream, a Direct Entry stream and a Labour Agreement stream. If the application meets the requirements for approval then the application must be approved: reg 5.19(3)(a). If any of the requirements are not met then the application must be refused: reg 5.19(3)(b).
In this case, the applicant has applied for approval of a nomination, seeking to satisfy the criteria in the Temporary Residence Transition stream.
The delegate refused the application on the basis the applicant’s nomination did not satisfy reg 5.19(4)(b) of the Regulations because there was adverse information about the applicant as follows from the decision because the applicant Mr Shang provided on 29 July 2019 false or misleading information in a material particular. It was found that it was not reasonable to disregard the adverse information.
“On 29 July 2019 the department contacted Mr Hong Shang the claimed business owner via telephone. During the telephone conversation, Mr Shang confirmed he was the Director of Thomas and Associates PTY LTD trading as Mortgage Choice Southport. Mr Shang also confirmed the employment of the nominee Ms Wan Zhou.
On 10 February 2020 the Department contacted the Franchisee of Mortgage Choice
Southport located at Suite 1, 55 Nerang Street Southport Queensland 4215. The owner of the franchise has confirmed they purchased the business in April 2019 and confirmed they do not employ a person in the occupation of Sales and Marketing Manager and do not have an employee by the name of Ms Wan Zhou.”
The applicant was invited to a hearing at 1.00pm Queensland time on 6 February 2024 to be conducted over one and a half hours. The invitations were emailed to the email addresses appearing on the review application for the, then, legal representative. This was a combined hearing with the nominee invited to the hearing. There was no response to the hearing invitation, but the applicant did send on 23 January 2024 a change of address and contact details to the Tribunal and advised that the engagement of their legal representative was withdrawn, and they were self-represented. SMS messages alerting the applicants to the hearing date were sent one and five days prior to the hearing, to the mobile numbers appearing on the review applications which was the same number appearing as the contact number on the 23 January 2024 email from the applicant.
At the appointed time the applicants had not joined the video hearing and the hearing attendant telephoned the applicant Mr Hong Shang, but the call went to voicemail. A telephone call to the nominee Ms Wan Zhou resulted in an automated message stating, “the person you have dialled is unavailable”.
The applicant did not appear by video at the appointed time to attend the hearing and no postponements or extensions of time were requested. As such sections 362B (1) and (1A) of the Migration Act (Cwth) 1958 applies and the Tribunal may by written statement under s368 make a decision on the review without taking any further action to allow or enable the applicant to appear before it. It is reasonable to proceed to a decision on this matter.
The applicant was represented in relation to the review but prior to the hearing the legal representative’s services were withdrawn and the applicant became self-represented.
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 general requirements for approval of the nomination set out in reg 5.19(4) and the stream specific requirements set out in TRT reg 5.19(5) which are extracted in the attachment to this decision. For the nomination to be approved, all the requirements must be met.
On 8 February 2019 the applicant trading as Mortgage Choice lodged an Employer Nomination Scheme – visa subclass 186 application in the Temporary Residence Transition stream for the position of Sales & Marketing Manager to be employed at Nerang Qld 4215 on $65,000 per annum in favour of Ms Wan ZHOU.
Mr Hong Shang and Ms Elaine Mo are listed as the directors in the nomination application.
The agent requested a number of extensions of time to a s359(2) request for updated information dated 11 August 2023 on the basis that Mr Shang was confirmed by his treating clinical haematologist to be undergoing immunochemotherapy with the last cycle on 14 September 2023. The agents last request was for an extension to 7 December 2023 although the Tribunal had notified them earlier that no extension was required as they had replied to the original invitation. There was no further evidence from the applicant. There was no response or request for a postponement to either hearing invitation other than to advise that the legal representative’s engagement was withdrawn as they were now self-represented and advice of a change of address.
It is noted from open-source information that Mortgage Choice for Southport, Labrador, Ashmore, Surfers Paradise and surrounds is owned by a Ms Catriona Hanneman.
Status of the nominator – reg 5.19(5)(h)
Regulation 5.19(5)(h) requires that the nominator was the standard business sponsor who last identified the identified person in a nomination approved under s 140GB of the Act and is actively and lawfully operating a business in Australia.
The Tribunal would have welcomed the opportunity to invite the applicant to demonstrate that they are actively and lawfully operating a business in Australia however they did not attend the hearing and as such it must make a decision on the evidence to hand which is scant. It appears from open-source information that the nominated business Mortgage Choice Southport is under new ownership. There is also the phone call made from a Departmental officer on 10 February 2020 to the franchise owner of Mortgage Choice Southport in which they advised that the business had been purchased from Mr Shang in April 2019. There is scant evidence that the applicant Thomas and Associates Pty Ltd Atf Shang Enterprises Trust is actively and lawfully operating Mortgage Choice Southport or any other business.
Given the above findings, the Tribunal is not satisfied that reg 5.19(5)(h) is met. Accordingly, reg 5.19(4)(e) is not met.
Genuine need for employment – regs 5.19(5)(j) and (k)
Regulation 5.19(5)(j) requires the nomination application to identify a need for the identified person to be employed in the position, under the direct control of the nominator, and reg 5.19(5)(k) requires this need to be genuine. These requirements do not apply in relation to occupations specified in an instrument made under reg 2.72(13) (see legislative instrument IMMI 18/035: reg 5.19(7).
The nominator, Thomas and Associates Pty Ltd Atf Shang Enterprises Trust has not provided information they are actively and lawfully operating the business Mortgage Choice Southport or any other business and as such there is scant evidence that there is a need for the identified person Ms Wan Zhou to be employed in the position of Sales and Marketing Manager under the direct control of the nominator. There is also scant evidence that the need is genuine.
Given the above findings, the Tribunal is not satisfied that reg 5.19(5)(j) and reg 5.19(5)(k) are met. Accordingly, reg 5.19(4)(e) is not met.
Future employment – regs 5.19(5)(l), (m), (n)
Regulations 5.19(5)(l), (m) and (n) contain requirements relating to the future employment of the identified person.
Firstly, reg 5.19(5)(l) requires that the identified person will be employed on a full-time basis in the position for at least 2 years. This requirement does not apply in relation to occupations specified in an instrument made under reg 2.72(13) being IMMI18/035: reg 5.19(7).
Secondly, reg 5.19(5)(m) requires that the terms and conditions of the identified person’s employment will not include an express exclusion of the possibility of extending the period of employment.
Finally, reg 5.19(5)(n) requires that the nominator’s business has the capacity to employ the identified person for at least 2 years and to pay the person at least the annual market salary rate for the occupation each year. The ‘annual market salary rate’ is the earnings an Australian citizen or permanent resident earns or would earn for performing equivalent work on a full-time basis for a year in the same workplace at the same location: reg 1.03.
It is noted that IMMI18/035 refers to exempt occupations being Chief Executive or Managing Director and Corporate General Manager with the balance being medical occupations. Sales and Marketing Manager is not listed and therefore is not exempt from the need to meet reg 5.19(5)(l).
The Tribunal notes the judgment of Judge Egan in Pexbury Pty Ltd v Minister for Immigration & Anor [2020] FCCA3074 at [5] where his Honour stated that the Tribunal was entitled to consider the financial viability of the applicants business in considering r.5.19(3)(d)(i) which is equally applicable to r.5.19(5)(l) since the wording of the legislation is similar with r.5.19(3)(d) stating “the person will be employed on a full-time basis in the position for at least 2 years’ while r.5.19(5)(l) states “the identified person will be employed on a full‑time basis in the position for at least 2 years”.
Contrary to the applicant’s submissions, the Tribunal was entitled to consider the financial viability of the applicant’s business when considering whether the company was able to meet the requirement that it employ Ms Kaur on a full-time basis, for a period of at least two years, as provided for in r. 5.19(3)(d)(i) of the Migration Regulations 1994 (Cth) (“the Regulations”). In assessing the evidence the Tribunal has taken into account of the remarks of his Honour In Minister for Immigration and Border Protection v Jayshree Enterprises Pty Ltd [2017] FCA 264 at [22], and [28] – [30], Logan J accepted that a company’s financial viability was a matter to be taken into account when assessing whether or not a business was financially able to support the employment of a person for at least a two (2) year period and that it is not illogical, on the material which the Tribunal had, for the Tribunal not to be satisfied that the position could be supported on business performance for a further two years.
Judge Greenwood supported this view in the subsequent case Pexbury Pty Ltd v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs[2022] FCA 660.
The Tribunal would have expected financial statements, BAS statements or tax returns for the previous two trading years to demonstrate financial capacity however the financial documents relate to FY 2018 and are several years out of date. As such there is no contemporaneous evidence that the applicant has the financial capacity such that the identified person will be employed on a full‑time basis in the position for at least 2 years.
Given the above findings, the Tribunal is not satisfied that reg 5.19(5)(l) is met. Accordingly, reg 5.19(4)(e) is not met.
For these reasons the Tribunal is not satisfied that the applicant meets the requirements of reg 5.19. Accordingly, reg 5.19(3)(b) requires that the nomination must be refused. The decision under review must be affirmed.
DECISION
The Tribunal affirms the decision under review to refuse the nomination.
De-Anne Kelly
Member

ATTACHMENT – EXTRACTS FROM THE MIGRATION REGULATIONS 1994
5.19Approval of nominated positions—Subclass 186 (Employer Nomination Scheme) visa and Subclass 187 (Regional Sponsored Migration Scheme) visa
Application
(1)A person (the nominator) (including a partnership or unincorporated association) may apply to the Minister for approval of the nomination of a position in Australia.
(2)The application must:
(a)be made in accordance with approved form 1395 (Internet); and
(b)identify the position; and
(c)identify a person (the identified person) in relation to the position; and
(d)identify an occupation in relation to the position; and
(e)identify the subclass and stream to which the nomination relates, which must be one of the following:
(i)a Subclass 186 (Employer Nomination Scheme) visa in the Temporary Residence Transition stream;
(ii)a Subclass 187 (Regional Sponsored Migration Scheme) visa in the Temporary Residence Transition stream;
(iii)a Subclass 186 (Employer Nomination Scheme) visa in the Direct Entry stream;
(iv)Subclass 187 (Regional Sponsored Migration Scheme) visa in the Direct Entry stream;
(v)a Subclass 186 (Employer Nomination Scheme) visa in the Labour Agreement stream; and
(f)be accompanied by the fee mentioned in regulation 5.37; and
(fa)be accompanied by any nomination training contribution charge the nominator is liable to pay in relation to the nomination; and
(fb)identify the annual turnover (within the meaning of the Migration (Skilling Australians Fund) Charges Regulations 2018) for the nomination; and
(g)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.
Approval of nomination
(3)The Minister must, in writing:
(a)approve the nomination if the Minister is satisfied that the requirements set out in subregulation (4) are met; or
(b)otherwise—refuse to approve the nomination.
Requirements for approval—general
(4)The requirements to be met for the nomination to be approved are as follows:
(a)the application is made in accordance with subregulation (2);
(b)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;
(c)if it is mandatory, in the State or Territory in which the position is located, for a person to:
(i)hold a licence of a particular kind; or
(ii)hold registration of a particular kind; or
(iii)be a member (or a member of a particular kind) of a particular professional body;
to perform tasks of the kind to be performed in the occupation, the identified person is, or is eligible to become, the holder of the licence, the holder of the registration, or a member of the body, at the time of application;
(d)the nominator has a satisfactory record of compliance with the laws of the Commonwealth, and of each State or Territory in which the nominator operates a business and employs employees in the business, relating to employment;
(da)any debt due by the nominator as mentioned in section 140ZO of the Act (recovery of nomination training contribution charge and late payment penalty) has been paid in full;
(e)if the nomination relates to a visa in a Temporary Residence Transition stream—the requirements set out in subregulation (5) are met;
(f)if the nomination relates to a visa in a Direct Entry stream—the requirements set out in subregulation (9) are met;
(g)if the nomination relates to a visa in a Labour Agreement stream—the requirements set out in subregulation (14) are met.
Temporary Residence Transition stream—additional requirements for approval
(5)If the nomination relates to a visa in a Temporary Residence Transition stream, the following requirements must also be met:
(a)at the time the application is made, the identified person holds:
(i)a Subclass 457 (Temporary Work (Skilled)) visa granted on the basis that the person satisfied the criterion in subclause 457.223(4) of Schedule 2 as in force before 18 March 2018; or
(ii)a Subclass 482 (Temporary Skill Shortage) visa in the Medium‑term stream; or
(iii)for a person specified in a legislative instrument made by the Minister for the purposes of this subparagraph—a Subclass 482 (Temporary Skill Shortage) visa in the Short‑term stream; or
(iv)if the last substantive visa held by the identified person was a visa mentioned in subparagraph (i), (ii) or (iii)—a bridging visa granted on the basis that the person is an applicant for a visa mentioned in subparagraph (i) or (ii); or
(v)if the last substantive visa held by the identified person was a visa mentioned in subparagraph (i), (ii) or (iii)—for a person specified in a legislative instrument made under subparagraph (iii), a bridging visa granted on the basis that the person is an applicant for a visa mentioned in subparagraph (iii); or
(vi)if the last substantive visa held by the identified person was a visa mentioned in subparagraph (i), (ii) or (iii)—a bridging visa granted on the basis that the person is an applicant for a Subclass 186 (Employer Nomination Scheme) visa or a Subclass 187 (Regional Sponsored Migration Scheme) visa;
(b)the occupation:
(i)is listed in ANZSCO; and
(ii)has the same 4‑digit ANZSCO occupation unit group code as the occupation in relation to which the identified person’s most recently held Subclass 457 (Temporary Work (Skilled)) visa or Subclass 482 (Temporary Skill Shortage) visa was granted;
(c)unless a legislative instrument made under subregulation (8) exempts the identified person from the operation of this paragraph—the occupation must:
(i)be an occupation specified in an instrument made under subregulation (8) and in force at the time the application is made; and
(ii)apply to the identified person in accordance with an instrument made under that subregulation;
(d)either:
(i)there is no information known to Immigration that indicates that the identified person is not genuinely performing the tasks of the occupation as specified in ANZSCO; or
(ii)it is reasonable to disregard any such information;
(e)during the period of 4 years immediately before the application is made, the identified person held one or more of the following for a total period of at least 3 years:
(i)a Subclass 457 (Temporary Work (Skilled)) visa granted on the basis that the person satisfied the criterion in subclause 457.223(4) of Schedule 2 as in force before 18 March 2018;
(ii)a Subclass 482 (Temporary Skill Shortage) visa in the Medium‑term stream;
(iii)for a person specified in a legislative instrument made under subparagraph (a)(iii)—a Subclass 482 (Temporary Skill Shortage) visa in the Short‑term stream;
(f)unless paragraph (g) applies—during the period of 4 years immediately before the application is made, the identified person was employed in the position in relation to which the visa, or visas, mentioned in paragraph (e) were granted:
(i)for a total period of at least 3 years (not including any periods of unpaid leave); and
(ii)on a full‑time basis, with the employment being undertaken in Australia;
(g)if the visa, or visas, mentioned in paragraph (e) were granted in relation to an occupation specified in an instrument made under subregulation 2.72(13)—during the period of 4 years immediately before the application is made, the identified person was employed in the occupation for a total period of at least 3 years (not including any periods of unpaid leave);
(h)the nominator:
(i)was the standard business sponsor who last identified the identified person in a nomination approved under section 140GB of the Act; and
(ii)is actively and lawfully operating a business in Australia;
(j)the application identifies a need for the identified person to be employed in the position, under the direct control of the nominator;
(k)there is a genuine need for the identified person to be employed in the position, under the direct control of the nominator;
(l)the identified person will be employed on a full‑time basis in the position for at least 2 years;
(m)the terms and conditions of the identified person’s employment will not include an express exclusion of the possibility of extending the period of employment;
(n)the nominator’s business has the capacity to employ the identified person for at least 2 years and to pay the person at least the annual market salary rate for the occupation each year;
(o)the requirements set out in subregulation 2.72(15) are met, applying subregulations 2.72(15) and (16) as if:
(i)paragraph 2.72(15)(a) did not apply; and
(ii)references to the nominee were references to the identified person; and
(iii)references to the person were references to the nominator;
(p)either:
(i)there is no information known to Immigration that indicates that the employment conditions (other than in relation to earnings) that will apply to the identified person are less favourable than those that apply, or would apply, to an Australian citizen or an Australian permanent resident performing equivalent work at the same location; or
(ii)it is reasonable to disregard any such information;
(q)the nominator has provided the information required by the Minister for the purposes of paragraph (k) to (n).
Minister may vary certain Temporary Residence Transition stream requirements
(6)The Minister may, by legislative instrument, determine different periods of time for the purposes of paragraphs (5)(e), (f) and (g) for persons specified in the instrument.
(7)Paragraphs (5)(j), (k) and (l) do not apply in relation to occupations specified in an instrument made under subregulation 2.72(13).
(8)The Minister may, by legislative instrument, specify:
(a)occupations for the purposes of paragraph (5)(c); and
(b)persons who are exempt from the operation of that paragraph; and
(c)for each occupation, any matters for the purposes of determining whether the occupation applies to an identified person, including matters relating to any of the following:
(i)the nominator;
(ii)the identified person;
(iii)the occupation;
(iv)the position in which the identified person is to work;
(v)the circumstances in which the occupation is undertaken;
(vi)the circumstances in which the person is to be employed in the position.