TIMBERBOX PTY LTD (Migration)

[2019] AATA 3570

TIMBERBOX PTY LTD (Migration) [2019] AATA 3570 (24 June 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  TIMBERBOX PTY LTD

CASE NUMBER:  1702905

DIBP REFERENCE(S):  BCC2016/1836790

MEMBER:Antonio Dronjic

DATE:24 June 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 24 June 2019 at 3:12pm

CATCHWORDS

MIGRATION – Nomination – Direct Entry Nomination stream – financial capacity – duties of carpenter – position created for immigration outcome – relationship between nominee and director – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth)
Migration Regulations 1994 (Cth), r 5.19

CASES

Bharaj Construction Pty Ltd v MIBP [2016] FCCA 902

Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634

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 31 January 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 25 May 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. The delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19(4)(d)(i) of the Regulations because the delegate was not satisfied on the evidence that the applicant has a financial capacity to provide a minimum of two years’ full-time employment to the nominee.

4. The applicant applied to the Tribunal on 20 February 2017 for review of the delegate’s decision and with the application submitted a copy of the primary decision record. Its registered migration agent represented the applicant.

5. On 26 November 2018, the applicant’s representative submitted:

   ·Submissions dated 26 November 2018;

   ·A copy of the document headed ‘Strategic Review and Business Plan’;

   ·A copy letter from Mr Alvin Ong of Catalyst Corporate Services dated 28 August 2018;

   ·A copy of the projected monthly cash flow for the period from July 2018 to December 2019;

   ·Copies of the nominee’s superannuation statements from July 2014 to June 2018;

   ·Copies of the PAYG payment summaries for the nominee from 2016 to 2018;

   ·Financial statements for Timberbox Pty Ltd for the year ending on 30 June 2018;

   ·A copy of the company tax return for the year ending on 30 June 2018;

   ·Copies of ANZ business advantage statements for the nominating business from May 2017 to June 2018;

   ·A bundle of invoices issued by the nominating business to its customers;

   ·A copy of the letter from Ms Sharene Chuah, the director of the nominating business, dated 4 September 2018, as evidence that the nominee’s hourly rate was increased to $33.00 from 1 July 2018;

   ·A copy of the letter from Ms Sharene Chuah, dated 31 January 2017, as evidence that the nominee was employed on a full time basis from 1 February 2017 at an hourly rate of $30.00;

   ·A copy of the employment agreement between the nominating business and the nominee dated 9 March 2016; and

   ·Testimonials provided by the nominating business’ customers.

6. On 15 March 2019, the Tribunal wrote to the review applicant pursuant to s.359(2) of the Migration Act 1958 (the Act). The letter invited the applicant to provide information in writing that will demonstrate the applicant meets all of the requirements of r.5.19(4).

7. On 26 November 2018, the applicant’s representative submitted:

   ·Submissions dated 21 March 2019;

   ·A copy of a Certification form – paying for visa sponsorship dated 23 March 2016;

   ·A copy of the document headed ‘Timberbox business case’;

   ·A copy of the document headed ‘Strategic review and business plan’;

   ·Copies of the nominee’s pay slips from July 2018 to March 2019;

   ·Copies of the PAYG payment summaries for the nominee for 2016, 2017 and 2018;

   ·Copies of the nominee’s superannuation statements from February 2016 to June 2018;

   ·A copy of the certificate of registration of a company;

   ·ASIC company extract for the nominating business;

   ·A copy of the pay guide – Joinery and Building Trades Award 2010;

   ·A copy of the letter from Mr Wei Cheng Ong, the director of the nominating business, dated 10 March 2016, evidencing the recruitment efforts made by the nominating business;

   ·A copy of the tax invoice from Seek dated 4 February 2016 as evidence of advertising for the position of a carpenter;

   ·A job description; and

   ·A copy of an approval letter dated 1 May 2016 from the Regional Certifying Body (RCB).

8. On 8 May 2019, the Tribunal wrote to the applicant advising that it considered material before it and was unable to make a favourable decision on this material alone and invited the authorised person to appear before the Tribunal on behalf of the nominating business at a hearing on 13 June 2019.

9. On 5 June 2019, the applicant’s representative submitted:

   ·A copy letter from Mr Alvin Ong of Catalyst Corporate Services dated 4 June 2019;

   ·A copy of the Financial Analysis Report prepared by Mr Mindy Ku, of Corporate Board Services Pty Ltd, for the financial years 2016 to 2018 dated 31 May 2019;

   ·A copy letter from Ms Sharene Chuah dated 28 May 2019 as evidence that she invested money in the nominating business by way of director’s loan ($105,880) with no interest and no repayment due date. 

10. On 11 June 2019, the applicant’s representative submitted a copy of the ASIC Company’s report.

11. Ms Sharene Chuah appeared before the Tribunal on behalf of the nominating business on 13 June 2019 to give evidence and present arguments. Its registered migration agent represented the applicant in relation to the review. The representative attended the Tribunal hearing.

12. In her evidence, Ms Chuah stated that the nominating business was incorporated in June 2015. The business has two directors and two shareholders. Ms Chuah holds 95% and Mr Wei Cheng Ong, who she described to be the managing director of the business, holds 5% shares. Neither she nor Mr Ong draw wages from the business, pay themselves directors fees, take profit or pay themselves dividends. Both directors were appointed in June 2015. Ms Chuah gave evidence that she met Mr Ong in Malaysia. She described the relationship between them as family friends. From 2016, the business is renting an office at a factory that manufactures kitchen tiles and stone tops.

13. When I enquired about Ms Chuah’s residential status in Australia, she stated that she currently holds a bridging visa “A” granted in connection with her application for a Subclass 187 visa. She explained that she is the secondary visa applicant as the person nominated by the business to work as a carpenter for the nominating business, Mr See Hin Lin, is her husband.

14. I noted that this relationship between the company director and the nominee was not disclosed to the Tribunal in the submissions and documentary evidence submitted to the Tribunal. The applicant’s representative stated that the Tribunal has a related visa application review where the nominee and Ms Chuah were listed as review applicants.

15. Ms Chuah gave evidence that, despite her being the majority shareholder and a person who invested $105,880 in the business by way of director’s loan, Mr Ong is managing the day-to-day operations of Timberbox, as she does not have the required knowledge to manage a business in Australia. Mr Ong owns and operates various businesses in Malaysia and Singapore and does not attend Timberbox premises on a daily basis. When asked to describe her role at the nominating business, Ms Chuah stated that for the past two years she has been working as a casual administrator, approximately two days per week. She also helps with development of the company’s marketing strategies.

16. In Malaysia, Ms Chuah has completed a Bachelor Degree in Marketing and Diploma in Business. For more than five years, she worked as a brand manager at a retail business. The nominee (her husband) has completed a Diploma in Computer Science. For two years, he worked as an Operations Manager for an advertising business in Malaysia. Prior to that, he worked as a producer for a business that makes TV commercials. She confirmed in her evidence that her husband, prior to arriving in Australia, did not complete any formal education relevant to the occupation of a carpenter, nor had he any relevant work experience as a carpenter.

17. Both she and her husband arrived in Australia in June 2011 holding a Student visa (Subclass 572). Her husband was the primary visa holder. By 2013, he had completed a Certificate IV in Carpentry. He was than granted a Subclass 485 visa that remained valid until June 2015. As a holder of a Subclass 485 visa, he had completed one year of work placement in Australia.

18. In her evidence, Ms Chuah stated that the only employee at the nominating business is her husband. The business also engages services of independent contractors, mainly plumbers, electricians and tilers.  I noted that, according to the submissions provided to the Tribunal, Mr Stewart Thorpe is employed by the business as a casual senior technical advisor or as a senior carpenter. Ms Chuah stated that Mr Thorpe would only work if the business has a big job and the nominee alone would not be able to finish it in time.

19. I noted that according to submissions provided to the Tribunal, the nominee’s occupation was described as a chief carpenter/project manager. Ms Chuah stated that the nominee’s duties include meeting clients, design and planning, providing quotes for kitchen renovations/installations, undertaking necessary administrative duties at the business and invoicing clients. I noted that majority of these duties are not aligned with duties ordinarily undertaken by carpenters in Australia. I raised my concerns as to whether the tasks to be performed in the position correspond to those of an occupation specified by the Minister in the relevant instrument and whether the applicant is able to meet the requirements of r.5.19(4)(h)(ii)(D) of the Regulations.

20. Ms Chuah stated that the business advertised for a position of a full time carpenter in February 2016 and that some 15-17 applicants responded to the advertisement. When I enquired why the business did not attempt to employ a full time carpenter in July 2015 when it started trading, she stated that that the reason was excessive cost for the business at the time.

21. I enquired if the reason for advertising in February 2016 was to meet one of the legislative requirements needed to be satisfied or that the business had a genuine need for a full time carpenter, considering the nomination application was lodged in May 2016. Ms Chuah stated that initially they offered a position to Mr Stewart Thorpe but he refused to take upon the offer of full time employment.

22. I enquired why she would even contemplate employing one of those 15-17 applicants who responded to the advertisement, considering that both her and her husband’s visa and stay in Australia depended on her husband being employed on a full time basis at the business. She stated that the business was registered in order to make money and not to secure a visa outcome for her and her husband.

23. I raised an additional issue with the applicant. I expressed my concerns as to whether there is a genuine need for the paid position under the nominator’s direct control that cannot be filled by a locally resident Australian citizen or permanent resident or whether the primary purpose of creating this position was to secure the migration outcome for the nominee and Ms Chuah.

24. Upon the applicant’s request, the hearing was adjourned for 10 minutes, as Ms Chuah wanted to consult her migration agent.

25. The hearing resumed and Ms Chuah stated that approximately 70% of the nominee’s duties are those of a carpenter. She further stated that there is no written director’s loan agreement specifying the repayment details but that she has undertaken not to take money from the business during the next five years.

    Oral evidence of Mr Alvin Hsiang Wen Ong

26. The witness stated that he was engaged as an external accountant by the nominating business in February 2018. He confirmed that he wrote two letters in support of the application dated 28 August 2018 and 4 June 2019 and that everything stated in those letters is true and correct.

27. I observed that, according to the evidence given by Ms Chuah, neither the managing director of the nominating business, Mr Wei Ong nor Ms Chuang is employed by the business. They are not drawing salaries from the business, charging any directors’ fees or taking profit. I enquired if the business is required to pay wages to its managing director, whether the business would be able pay those wages in addition to nominee’s wages, considering the financial position of the business. The witness stated that he is not aware as to the current market salary rate for managing directors and for that reason was unable to provide further comments.

28. I noted that it is unusual for a person to undertake duties of a managing director and not receive any monetary compensation for his or her work. The witness stated that such arrangements are common for newly established small businesses, as they want to preserve their cash flow. I observed that the business was established in June 2015.

29. The witness stated that in his professional opinion, the nominating business is financially capable of providing a minimum of two years of full time employment to the nominee.

    Oral evidence of Ms Mindy Ai Lee Ku

30. The witness stated that she is a managing director of Corporate Board Services Pty Ltd and a member of CPA Australia. She stated that Corporate Board Services Pty Ltd was retained and paid by the nominating business to prepare a financial analysis report for the financial years 2016 to 2018. She confirmed that everything stated in the report is true and correct and that she does not want to change any part of the report.

31. The witness stated that in her professional opinion, the nominating business is financially capable of providing a minimum of two years of full time employment to the nominee.

32. Upon my invitation, the applicant’s authorised representative submitted that a genuine need is not defined in the Regulations and that the nominating business was created to make profit and not to secure migration outcome for the nominee and his family.

33. On 14 June 2019, the applicant’s representative provided post-hearing submissions addressing the issues raised at the hearing. He acknowledged the Tribunal’s concerns as to whether there is a genuine need for the nominator to employ a paid employee to work in the position under the nominator’s direct control as required by r.5.19 (4)(h)(ii)(B). The representative submitted that Timberbox Pty Ltd is a legitimate kitchen renovation and installation company that is growing rapidly, with an increased amount of work that results in a genuine need to nominate a paid carpenter to work.

34. He further submitted that Skilled Migration Western Australia (RCB), pursuant to r.5.19(4)(h)(ii)(F)(II), had already ‘advised the Minister about the matters mentioned in paragraph (e) and sub-subparagraphs (B) and (C)’.

35. It was further stated that:

    ‘r.5.19(4)(h)(ii) sub-subparagraphs (B) and (C) deal with the question of genuine need and that the position cannot be filled by an Australian citizen or an Australian permanent resident who is living in the same local area – this was already addressed by the authorised local RCB in Form1404 signed by RCB representative prior to the nomination application’.

    From our notes of the hearing, your concerns on the genuine nature of the position seemed to surface when we clarified that Ms Sharene Chuah (secondary company director) who attended the tribunal hearing is the dependent of the nominee that Timberbox Pty Ltd is nominating. Following this knowledge, you raised the question as to why we had not provided this information earlier in our submissions.

    We would like to clarify why we had not included this information. Timberbox Pty Ltd requires a paid employee to work as a carpenter due to the growing demands of work and business opportunities. In preparing our submission and hearing, we were confident that the company’s documentations that reflected the actual demand for a paid carpenter would be able to speak for itself.

    Further, r.5.19(4) does not exclude or restrict nominations where visa applicants and company office holders are related parties. As such, we sincerely did not see the need to intentionally introduce a variable that is not required under legislation and even worse, may potentially bias a decision maker.

36. The representative further addressed the Tribunal’s concerns related to following questions:

    ·Why the Managing Director Mr Wei Cheng Ong would work for Timberbox Pty Ltd without getting any form of remuneration at this point in time; and

    ·Why the company would nominate anyone else other than the nominee Mr See Hin Lim given that he is the husband of Ms Sharene Chuah – the second company director of Timberbox Pty Ltd.

37. It was submitted, inter alia that:

    A proprietary limited company is free to exercise its discretion under the Constitution on how and when the director should be remunerated. The directors had an arrangement where no dividends or fee will be paid in the initial years as part of the company’s growth strategy to reinvest funds. As such, we form the opinion that it is an irrelevant consideration against the legislative requirement; and

    We point to the fact that the business entity (not the director himself/herself per se) does have a genuine need of a carpenter as demonstrated by the objective documentations of the business. Further, a CPA (Mr. Alvin Ong) accountant had examined the financial aspects of the business and an external financial consultant (Ms Mindy Ku who is also a CPA accountant) had also reviewed and issued a report on the overall business structure that corroborate with the documentations provided.

38. On 18 June 2019, the applicant’s representative submitted a copy of the statutory declaration signed by Mr Stewart Thorpe dated 18 June 2019, stating that he was a casual contractor for Timberbox from October 2015 to July 2017 and that, during his tenure he was offered full time employment as a carpenter, which he declined.

39. On 19 June 2019, the applicant’s representative submitted a copy of the statutory declaration signed by Mr Wei Cheng Ong, dated 18 June 2019, stating inter alia that he decided to defer taking directors’ fees. He further stated that that during the first year of operations, the nominating business engaged casual skilled carpenters as contractors but in order to improve turnover the nominating business needed to employ a full time carpenter. He stated that the nominating business advertised for the position on seek.com in February/ March 2016 and that Mr Stewart Thorpe was offered a position of a full time carpenter, which he declined. He further stated that 85% of tasks performed by the nominee are on carpentry related duties and that the business was set up to make profit and not to secure a migration outcome for the nominee who is a husband of a company director and shareholder Ms Chuah.

1. For the following reasons, the Tribunal has decided to affirm the decision under review to refuse the nomination.

   CONSIDERATION OF CLAIMS AND EVIDENCE

2. 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.

   Tasks of the position genuine need for the position and training requirements r.5.19(4)(h)

3. Regulation 5.19(4)(h) contains a number of alternative requirements. These are set out in detail in the attachment to the decision but can be briefly summarised as requiring either that:

   ·the tasks to be performed in the position will be performed in Australia and correspond to those of an occupation specified by the Minister  in the relevant legislative instrument, the occupation is applicable to the proposed employee in accordance with any specifications made in that instrument, and specified training requirements are met; or

   ·the position and nominator’s business is located in regional Australia, there is a genuine need for the paid position under the nominator’s direct control which cannot be filled by a locally resident Australian citizen or permanent resident, the tasks of the position correspond to those of an occupation specified in the relevant legislative instrument, the occupation is applicable to the proposed employee in accordance with the specification of the occupation and that RCB has advised the Minister about certain matters relating to the position.

4. The applicant submitted that the nominated position is located in regional Australia. Accordingly the applicant must meet all of the requirements of r.5.19(4)(h)(ii). Relevantly, the regulation inter alia prescribes that:

   · There is a genuine need for the nominator to employ a paid employee to work in the position under the nominator’s direct control: r.5.19(4)(h)(ii)(B);

   · That 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: r.5.19(4)(h)(ii)(C); and

   · That 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: r.5.19(4)(h)(ii)(D).

5. The Tribunal acknowledges that Skilled Migration Western Australia (RCB), pursuant to r.5.19(4)(h)(ii)(F)(II), had already ‘advised the Minister about the matters mentioned in r.5.19(4)(e); r.5.19(4)(h)(ii)(B) and r.5.19(4)(h)(ii)(C)’ (Tribunal folio 111). The Tribunal has considered this advice.

6. Although the advice itself will be enough to satisfy r.5.19(4)((h)(ii)(F), the Tribunal must consider and be satisfied of the matters about which the advice is provided and make separate findings on those other criteria. The advice given by RCB is relevant to that separate consideration but the advice itself is not conclusive or determinative of the question of whether those other criteria are satisfied.

7. In Bharaj, the Court considered a similar requirement in the pre-July 2012 version of r.5.19(4), and commented in obiter that the use of the word ‘advice’ undoubtedly puts beyond doubt the construction of r.5.19(4), i.e. the advice is to be considered by the Minister (or Tribunal) in determining whether those requirements are satisfied but it is not determinative.[1] That is also the position reflected in Department of Immigration policy.[2]

   [1] Bharaj Construction Pty Ltd v MIBP [2016] FCCA 902 (Judge Barnes, 28 April 2016) at [81].

   [2] PAM3: Migration Regulations – Division 5.3 - General > Approval of nominated positions (employer nomination) > 10. Part C - Criteria applicable to Direct Entry stream nominations > [10.7] Consideration of the advice provided by the RCB (reissued on 18/11/17).

8. As regards the application of these policy guidelines, the Tribunal notes that although it may be guided by policy, it is not bound to follow it: see Brennan J in Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634. Indeed, in Vishnumolakala v Minister for Immigration [2006] FMCA 1209 Smith FM held that the PAM3 guidelines constitute no more than an administrative advisory guide to decision makers in relation to the application of the Act and Regulations and therefore are incapable of being elevated into legally necessary or relevant considerations.

9. According to the Departmental policy, the delegate must independently assess the nomination against all the criteria that have been assessed by the RCB in providing their advice. Pursuant to s.349(1) of the Act, the Tribunal may, for the purposes of the review of a Part 5-reviewable decision, exercise all the powers and discretions that are conferred by this Act on the person who made the decision. In order to approve a nomination, the Tribunal must be satisfied that the nominating business meets all of the requirements set out in r.5.19(2) and r.5.19(4) having regard to the evidence before it.

10. For the above stated reasons, the Tribunal does not accept the applicant’s submissions that the Tribunal is bound to follow the advice received by RCB in assessing the requirements of r.5.19(4)(e), 5.19(4)(h)(ii)(B) and 5.19(4)(h)(ii)(C).

11. In her evidence, Ms Chuah stated that the nominating business employs only one employee who happens to be her husband. The Tribunal observes that she has a different surname from the nominee and, as noted at the hearing, this relationship was not disclosed to the Tribunal prior to the hearing.

12. The Tribunal does not accept the explanation provided in the post-hearing submissions that the reason for not disclosing the nature of relationship between the nominee and a company director and major shareholder was reluctance to ‘intentionally introduce a variable that is not required under legislation and even worse, may potentially bias a decision maker’.

13. While the Tribunal accepts that r.5.19(4) does not exclude or restrict nominations where visa applicants and company office holders are related parties, the nature of this relationship is in the Tribunal’s view relevant to the question of whether the position cannot be filled by an Australian citizen or an Australian permanent resident who is living in the same local area.

14. When questioned by the Tribunal why the business would even contemplate employing one of those 15-17 persons who responded to the February 2017 advertisement, considering that Ms Chuah and her husband’s stay in Australia depended on the nominee being granted the visa; she stated that the business was set up to make money and not to secure a visa outcome for her and her husband.

15. The applicant claims that Mr Stewart Thorpe was offered a full time position as a carpenter.  He previously worked for the nominating business from October 2015 to July 2017 as a casual carpenter. Mr Thorpe confirmed in his statutory declaration of 18 June 2019 that he was offered a full time position as a carpenter and that he refused that offer. In his declaration, Mr Thorpe stated that the offer was made ‘during his tenure’ at the nominating business (between October 2015 and July 2017). It appears from the oral evidence of Ms Chuah that Mr Thorpe was offered this position prior to advertising for the position in February 2016. In addition, there is little information before the Tribunal as to the terms and conditions of the proposed offer of employment to Mr Thorpe.

16. In his statutory declaration of 18 June 2019, Mr Wei Cheng Ong stated inter alia that he received 17 job applications after the business advertised for the position in February 2016. He further stated that five applicants were short-listed but failed to provide any explanation why none of the short listed applicants was offered a position.

17. Based on the evidence before it, the Tribunal does not accept that Ms Chuah, as the majority shareholder and director of the nominating business, would entertain employing a suitably qualified and experienced Australian citizen or an Australian permanent resident who is living in the same local area in preference to her husband considering that her stay in Australia depended (and still depends) on the nominee being granted a Subclass 187 visa.

18. Ms Chuah stated that she invested $105,880 in the business by way of director’s loan and that the main reason for setting up the business in Australia was to make money. The Tribunal observes that the Australian immigration system provides options for overseas nationals to invest money into an Australian business and on that basis apply for residency in this country. However, the amount of money required to be invested in the Australian business is considerably higher than $105,880.

19. According to the evidence before the Tribunal, the nominee has completed a Diploma in Computer Science in Malaysia. He worked as an Operations Manager and as a producer for a business that makes TV commercials. Prior to arriving in Australia, he did not complete any formal education relevant to the occupation of a carpenter, nor had he any relevant work experience as a carpenter.

20. Both Ms Chuah and her husband arrived in Australia in June 2011 holding a Student visa (Subclass 572). Her husband was the primary visa holder. By 2013, he had completed a Certificate IV in Carpentry. He was than granted a Subclass 485 visa that remained valid until June 2015. As a holder of a Subclass 485 visa, he had completed one year of work placement in Australia. Soon after, his wife set up a business in which she invested $105,880. She became majority shareholder and one of two business directors. Soon after the business nominated her husband for permanent residency and Ms Chuah was included in the application as a member of the nominee’s family unit.

21. The Tribunal has taken into account the evidence regarding the business’s turnover, the position description, the employment agreement and the financial documents submitted to the Tribunal. It considered submissions provided by the applicant as well as documentary evidence submitted in support of the application. Based on the evidence before it, the Tribunal finds that the main purpose of creating a full-time position of a carpenter within the business was to secure an immigration outcome for the nominee and Ms Chuah who is a business director and majority shareholder of the nominating business. The Tribunal finds this to be the primary objective of the application.

22. Based on the evidence before it, the Tribunal is not satisfied that the position could not be filled by an Australian citizen or an Australian permanent resident who is living in the same local area. For these reasons the requirements of r.5.19(4)(h)(ii)(C) are not met.

23. Accordingly, the applicant does not meet the requirements of r.5.19(4)(h)(ii) and decision under review must be affirmed.

    Tribunal observations

24. In her evidence, Ms Chuah stated that nominee’s duties include meeting clients, design and planning, providing quotes for kitchen renovations/installations, undertaking necessary administrative duties at the business and invoicing clients. I noted that majority of these duties are not aligned with duties ordinarily undertaken by carpenters in Australia.

25. I raised my concerns as to whether the tasks to be performed in the position correspond to those of an occupation specified by the Minister in the relevant instrument and whether the applicant is able to meet the requirements of r.5.19(4)(h)(ii)(D) of the Regulations.

26. As the Tribunal finds that the applicant does not meet r.5.19(4)(h)(ii)(C), it is not necessary to make findings whether the applicant does not meet r.5.19(4)(h)(ii)(D).

27. Similarly, as the Tribunal finds that the applicant does not meet r.5.19(4)(h)(ii)(C),it is not necessary to make findings whether the business meets r.5.19(4)(d)(i) which requires that the employee will be employed on a full-time basis in the position for at least two years.

28. 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 the 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

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

    Antonio Dronjic
    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).