TRAINING GLOBAL AUSTRALASIA PTY LTD (Migration)

[2018] AATA 5173

TRAINING GLOBAL AUSTRALASIA PTY LTD (Migration) [2018] AATA 5173 (29 November 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Training Global Australasia Pty Ltd

CASE NUMBER:  1614970

DIBP REFERENCE(S):  BCC2015/2766116

MEMBER:Katie Malyon

DATE:29 November 2018

PLACE OF DECISION:  Sydney

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

Statement made on 29 November 2018 at 6:12 pm

CATCHWORDS
MIGRATION – Employer Nomination – approval of nominated position – Direct Entry Nomination – Research & Development Manager – actively, lawfully and directly operating a business in Australia – evidence of ongoing operations – terms and conditions of employment – financial capacity – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 359, 360, 363A
Migration Regulations 1994 (Cth), r 5.19

CASES
Gohil v MIBP [2016] FCCA 2825
Hasran v MIAC [2010] FCAFC 40
Jayshree Enterprises Pty Ltd v MIBP {2017] FCA 264

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 8 September 2016 to refuse the application made by Training Global Australasia Pty Ltd (the Company) for approval of the nomination of a position under r.5.19 of the Migration Regulations 1994 (the Regulations).

2. The Company applied for approval on 22 September 2015. The requirements for approval of the nomination of a position in Australia to facilitate the permanent residence of a nominee 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) of the Regulations and meets all of 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) of the Regulations.

3. In this case, the Company has applied for approval of a nomination, seeking to satisfy the criteria in the Direct Entry Nomination stream.  The Company nominated Dr Ahmed Mohamed Haidar for the position of its Research & Development Manager.

4. The delegate refused the application on the basis the Company’s nomination did not satisfy r.5.19(4)(h)(i)(B)(I) of the Regulations because it did not provide sufficient evidence to demonstrate that the Company has met either Training Benchmark A or B during the period of the Company’s most recent approval as a standard business sponsor. The delegate notes that, whilst some documentation had been lodged with the Department, enquiries had established that one tax invoice dated 22 May 2015 from All Australian Training Pty Ltd may be bogus or misleading. A natural justice letter was send to the Company on 17 June 2016. Although the Company responded and provided a statement from the CEO of All Australian Training Pty Ltd, the delegate was not satisfied with the explanation provided and concluded that training evidence had not been adequately verified: therefore, it could not be counted towards meeting Training Benchmark B. No other evidence had been provided and, accordingly, the Company did not demonstrate that it had spent at least 1% of payroll in meeting Training Benchmarks B, and nor had it provided evidence to demonstrate that it had paid at least 2% of its payroll to an Industry Training Fund and, as a result, did not meet Training Benchmark A. A copy of the delegate’s decision was provided to the Tribunal.

5. At the time of lodgement of the review application on 16 September 2016, some documentation was provided to the Tribunal.  When the matter was constituted to the Member on 10 October 2018, the Tribunal wrote to the Company pursuant to s.359(2) of the Act and invited it to provide updated documentation to enable the Tribunal to assess whether the Company meets all the criteria for approval of the nomination.  This is particularly relevant given the significant passage of time since the review application was lodged more than 2 years ago.  Without limiting the information that may be provided, the Company was requested to provide:

   ·a current and historical ASIC extract for the Company;

   ·the Company’s tax returns and Business Activity Statements (BAS) lodged with the Australian Taxation Office (ATO) as well as financial statements prepared by an Accountant for the financial years ended 30 June 2017 and 30 June 2018;

   ·a current Organisational Chart with details of all employees, their position title and residence status in Australia;

   ·information about the role and duties of the nominated position and how it corresponds to the nominated ANZSCO occupation of Research & Development Manager;

   ·an employment contract with the nominee; and,

   ·evidence of the Company’s compliance with its training obligations including invoices for training offered to employees, course outlines for any training programs and attendance records.

6. The Tribunal’s s.359(2) letter advised the Company that, if the information was not provided in writing by 16 November 2018 or if the Company has not made a request for an extension of time in which to provide the information, the Tribunal may make a decision on the review without taking further steps to obtain the information.  Furthermore, the Tribunal noted that the Company would lose any entitlement it might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

7. The Company has not provided any information or documentation within the prescribed period and no extension had been sought, or granted.  In these circumstances, s.359C of the Act applies and, pursuant to s.360(3) of the Act, the Company is not entitled to appear before the Tribunal.  The effect of s.363A of the Act is that, if a review applicant has no entitlement to a hearing, the Tribunal has no power to permit the applicant to appear: Hasran v MIAC [2010] FCAFC 40.

8. The Tribunal has considered whether this is an appropriate case for it to adjourn the review under s.363(1)(b) of the Act to allow the Company additional time in which to provide evidence to support the review application.  In this regard, the Tribunal has considered whether, in the circumstances of this case, evidence that the Company meets all of the requirements of r.5.19(4) of the Regulations is likely to be forthcoming, whether the Company has already had a fair opportunity to provide the relevant information or documentation, and the significance of the information or documents to the Company.

9. In the circumstances of this case, the Tribunal considers the Company has had sufficient time in which to address the issues arising on review, that is, whether it meet all the criteria for approval of the nomination.  The Tribunal observes that adjourning the review any further is only likely to unnecessarily further delay conduct of the review, contrary to the legislative objects of the Tribunal as set out in s.353 of the Act and s.2A of the Administrative Appeals Tribunal Act 1975.  Accordingly, the Tribunal has decided not to exercise its discretion under s.363(1)(b) of the Act to adjourn the review any further.  The Tribunal has determined to make a decision on the review without taking any further action to obtain the information in accordance with s.359C of the Act.  In passing, the Tribunal notes that the Company is not prevented from lodging a new, fully documented decision-ready nomination application with the Department, if it so desires.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. The issue in this case is whether the Company meets the requirements for approval of the nomination under the Direct Entry nomination stream set out in r.5.19(4) of the Regulations, which is extracted in the Attachment to this decision.  For the nomination to be approved, all the requirements must be met.  If any of the requirements are not met, then the application must be refused: r.5.19(5) of the Regulations. For the purposes of this decision, the Tribunal has considered just 2 of the criteria which must be met by an applicant for approval of a nomination.

12. The Tribunal notes at the outset that a Certificate has been issued by the Department pursuant to s.376 of the Act in relation to certain documents/information in the Department’s file.  The effect of a s.376 Certificate is that the Tribunal has a discretion to disclose certain information to an applicant in circumstances where the Department has certified that disclosure would be contrary to the public interest for the reasons specified in the Certificate. 

13. Having considered the information the subject of the s.376 Certificate and details regarding the delegate who signed the Certificate, the Tribunal is satisfied that it is a valid Certificate. The Certificate explains why disclosure of the information would not be in the public interest. Relevantly, information in the Certificate is relevant to this review only in so far as it provides the basis for the delegate’s findings (as set out in the delegate’s decision) in relation to shortcomings in evidence provided to the Department regarding the Company’s failure to demonstrate that it had met either Training Benchmark A or Training Benchmark B as required by r.5.19(4)(h)(i)(B)(I) of the Regulations. However, for the reason set out below, the Tribunal has not considered whether the Company has satisfied r.5.19(4)(h)(i)(B)(I) because the Tribunal has made its decision by reference to 2 other criteria in r.5.19(4) of the Regulations. Accordingly, it has had no regard whatsoever to the material the subject of the s.376 Certificate.

    Nominator is actively and lawfully operating a business in Australia: r.5.19(4)(b)

14. Regulation 5.19(4)(b) requires that applicant is actively, lawfully and directly operating a business in Australia.

15. Accompanying the application for review lodged with the Tribunal is the Company’s Financial Statements for the year ended 30 June 2015 signed by director, Mr Roude.  The Company reported a profit of $20,584.  Also provided to the Department was a copy of a signed Tax Return for the year ended 30 June 2015: however, no evidence was provided of submission of the Tax Return to the ATO. 

16. The Tribunal identified a number concerns in the documentation lodged to date, both with the Department and the Tribunal, in relation to evidence of its ongoing operations.  The nomination application lodged with the Department on 22 September 2015 states the Company employs 4 Australian citizens and permanent residents.  Further, it states that payroll in the previous 12 months was $117,720.  However, the signed Financial Statements for the 12 months to 30 June 2015 indicate that salaries paid were $57,644 and yet the signed Tax Return for the year ended 30June 2015 indicates total salary and wages expenses of $0.  

17. As noted above, given the passage of time since lodgement of the review application more than 2 years ago and the need to demonstrate the Company meets all criteria for approval of the nomination at the time of this decision, the Tribunal requested various documents in its s.359(2) letter.  For example, it requested the Company provide an ASIC extract together with evidence of Tax Returns and BAS lodged with the ATO for financial years ending 30 June 2017 and 30 June 2018 as well as Financial Statements prepared by an accountant including a detailed profit and loss statement as well as balance sheet.  No evidence was provided by the Company.  In the circumstances, the Company has failed to demonstrate that it is currently actively and lawfully operating a business in Australia. 

18. Accordingly, the requirement in r.5.19(4)(b) of the Regulations is not met.

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

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

20. The Company provided the Tribunal at the time of lodgement of its review application with a copy of its employment contract with nominee, Dr Haidar, dated 19 April 2016.  The contract provides for Dr Haidar’s permanent ongoing employment in the role of Research and Development Manager at a salary of $96,000 per annum including superannuation at 9.5%. 

21. The nomination application lodged with the Department on 22 September 2015 states the Company employs 4 Australian citizens and permanent residents. However, this statement is inconsistent with the financial documentation provided to the Department referred to in para [16]. As noted above, no evidence was provided to the Tribunal in response to its s.359(2) letter. The Company has not provided requested Financial Statements including profit and loss statements as well as balance sheets, recent Tax Returns or BAS lodged with the ATO for financial years ended 30 June 2017 and 30 June 2018.

22. In deciding whether a nominee will be employed on a full-time basis in the nominated position for at least 2 years, it is open to the Tribunal to consider whether the Company has the financial resources to meet the wages costs for the proposed employment over the relevant period: Jayshree Enterprises Pty Ltd v MIBP {2017] FCA 264 and Gohil v MIBP [2016] FCCA 2825. No evidence has been provided to enable the Tribunal to consider whether the Company has the financial resources to meet the cost of employing the nominee for at least 2 years at the rate of $96,000 per annum including superannuation as indicated in the contract of employment provided to Tribunal.

23. In the circumstances, the Tribunal finds there is insufficient evidence to assess whether the Company has the financial capacity to employ the nominee on a full-time basis in the nominated position for at least 2 years. Accordingly, the Company’s nomination does not meet r.5.19(4)(d)(i) of the Regulations.

24. Given the above findings, the requirement in r.5.19(4)(d) of the Regulations is not met.

    Conclusion

25. For the above reasons, the Tribunal is not satisfied that the Company meets the requirements of the Direct Entry stream in r.5.19(4) of the Regulations. It has not been necessary, in the circumstances of this case, to consider the delegate’s reasons for refusing the Company’s nomination: in passing, the Tribunal notes that no evidence was provided in response to its s.359(2) letter which, in part, requested the Company provide evidence to address the delegate’s findings.

26. The Company has not sought to satisfy the criteria in Temporary Residence Transition Nomination stream and, as such, has not met the requirements in r.5.19(3) of the Regulations.

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

    DECISION

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

    Katie Malyon

    
    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

    (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).

    oOOo