Tourneur Holdings Pty Ltd (Migration)

[2021] AATA 1373

Tourneur Holdings Pty Ltd (Migration) [2021] AATA 1373 (30 April 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Tourneur Holdings Pty Ltd

CASE NUMBER:  1815825

HOME AFFAIRS REFERENCE(S):          BCC2017/2071940

MEMBER:Nicola Findson

DATE:30 April 2021

PLACE OF DECISION:  Perth

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

Statement made on 30 April 2021 at 10:44am

CATCHWORDS
MIGRATION – application for approval of nomination of position – temporary residence transition stream – full-time employment for at least 2 years – nominee ceased work to care for seriously ill husband – nominator winding down business, partly because of COVID-19 pandemic – unreliable advice and assistance by agent – decision under review affirmed

LEGISLATION
Migration Regulations 1994 (Cth), r 5.19(3)(d)(i)

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 Home Affairs on 14 May 2018 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 12 June 2017. The requirements for the approval of the nomination of a position in Australia are found in r.5.19 of the Regulations which contains two alternative streams: a Temporary Residence Transition nomination stream (r.5.19(3)) and a Direct Entry nomination stream (r.5.19(4)). If the application is made in accordance with r.5.19(2) and meets the requirements of either stream, then the application must be approved. If any of the requirements are not met then the application must be refused: r.5.19(5).

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. The nominated occupation is Customer Services Manager (ANZSCO 149212).  The nominator sponsored Ms Devina Bhagoban for a Subclass 457 visa for the same position and occupation, and has sought to continue to employ her for the position.  Ms Bhagoban lodged a Subclass 186 visa in respect of this nomination.

4. The delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19(3)(f) of the Regulations, because it did not provide sufficient evidence to demonstrate that it had complied with the training requirements during the period of its most recent approval as a standard business sponsor.

5. On 20 December 2020, the Tribunal wrote to the applicant, inviting it to provide further information to demonstrate all the relevant requirements of r.5.19(2) and (3). The applicant responded by the (extended) due date and provided to the Tribunal additional and updated evidence in support of the application, as follows: ASIC and ABN records; an organisational structure chart; and a Position Description in respect of the nominated position.

6. Mr Gilbert Tourneur, Director of the applicant, appeared before the Tribunal on 28 April 2021, to give evidence and present arguments.  

7. The hearing was held during the COVID-19 pandemic.  A day before the hearing, on 27 April 2021, Mr Tourneur sought to appear before the Tribunal by telephone (rather than in-person), given his age and the restrictions imposed by the Western Australian Government in response to a recent Covid-19 outbreak in the Perth region.  The Tribunal determined it was reasonable to hold the hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant.  The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone.  The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. 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.

   Future employment of the visa holder: r.5.19(3)(d)

10. Regulation 5.19(3)(d) only applies to certain nominees (those described in r.5.19(3)(c)(i)). For this class of person, the Regulations require that the nominee will be employed on a full time basis for at least 2 years on terms that do not expressly preclude the possibility of an extension.

11. At the hearing, Mr Tourneur told the Tribunal that the nominee commenced working for the applicant business – ‘Tour Cleaning Services’ – in 2013, as the holder of a Subclass 457 visa.  He indicated that at the time the applicant applied for nomination approval, the turnover of the business was significant; there were about 65 employees of the business; and he was very happy with the nominee’s work in the position.  He indicated that, unfortunately, the migration agent engaged to assist with the nomination and related visa application did not do her job properly.  He told the Tribunal that the migration agent had provided questionable advice in relation to the application, and, that relevant information collated and sent to her by the applicant in support of the application was never provided to the Department to consider.  He said, as a consequence, the nomination application was unsuccessful. 

12. The Tribunal queried the very limited information, and in particular no recent financial information, provided by the applicant to demonstrate all the relevant requirements of r.5.19(2) and (3), in response to the Tribunal’s invitation of 20 December 2020. Mr Tourneur told the Tribunal that the nominee ceased working for the applicant business in mid-2019, to care for her seriously ill husband. He indicated that also around this time he made the decision to relinquish cleaning contracts and to wind down the applicant business. He indicated that this winding down process was aided by the Covid-19 pandemic. Mr Tourneur told the Tribunal that the nominee has not returned to work for the applicant and ‘Tour Cleaning Services’ no longer operates. Mr Tourneur indicated, that in these circumstances, he did not consider it necessary to provide the financial information requested by the Tribunal.

13. The Tribunal explained to Mr Tourneur the requirement of r.5.19(3)(d)(i). It explained that to meet this requirement, for the approval of the nomination, the Tribunal had to be satisfied the nominee would be employed by the applicant on a full-time basis for at least 2 years. By way of response, Mr Tourneur told the Tribunal that, but for the unreliable migration assistance provided to the applicant and the length of time the nomination application and subsequent review process had taken, this requirement would have been met. He indicated that he understood that because the applicant business was no longer operating this meant the applicant company did not meet a legal requirement for the approval of the nomination. He said he was very sorry that things had turned out the way they had for the nominee. He said that if he were to establish another business, the nominee would be the first person he would employ. He urged the Tribunal to make “the right” decision in this matter. The Tribunal acknowledged that it seemed the applicant and nominee had endured a long, frustrating and stressful nomination and visa application process. The Tribunal explained, however, that it had to be satisfied of all of the relevant criteria at the time of its decision for the nomination to be approved. It also explained that it does not have any discretion to waive this requirement, or any of the other requirements of r.5.19.

14. On the basis of the evidence before it, that the applicant business is no longer operating, the Tribunal is not satisfied that the nominee will be employed on a full time basis for at least 2 years on terms that do not expressly preclude the possibility of an extension.

15. Given the above findings, the requirement in r.5.19(3)(d) is not met.

16. As the applicant has not met 5.19(3)(d), it is not necessary for the Tribunal to consider the remaining requirements of r.5.19(3).

17. For the above reasons the Tribunal is not satisfied that the applicant meets the requirements of r.5.19(3). 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). Accordingly, the nomination of the position cannot be approved. Therefore, the Tribunal must affirm the decision under review.

    DECISION

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

    Nicola Findson
    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.