TRIANGLE AUSTRALIA PTY LTD (Migration)

[2020] AATA 2846

TRIANGLE AUSTRALIA PTY LTD (Migration) [2020] AATA 2846 (2 June 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Triangle Australia Pty Ltd

CASE NUMBER:  1801443

DIBP REFERENCE(S):  BCC2017/1598297

MEMBER:Amanda Ducrou

DATE:02 June 2020

PLACE OF DECISION:  Melbourne

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

Statement made on 02 June 2020 at 11:38am

CATCHWORDS
MIGRATION – nomination – Temporary Residence Transition stream – applicant failed to provide the requested information within the prescribed period – insufficient evidence to show financial capacity to pay the nominated full-time salary for the nominated position–decision under review affirmed

LEGISLATION
Migration Act 1958, ss 140GB, 359, 360, 363
Migration Regulations 1994, r 5.19

CASES
Hasran v MIAC [2010] FCAFC 40
Kaur v Minister for Immigration and Border Protection [2014] FCA 915
Manna v Minister for Immigration and Citizenship [2012] FMCA 28
Minister for Immigration and Citizenship v Li [2013] HCA 18
Minister for Immigration and Border Protection v Singh [2014] FCAFC 1

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

3. In this case, the applicant has applied for approval of a nomination, seeking to satisfy the criteria in the Temporary Residence Transition nomination stream.

4. The delegate refused the application on the basis that the applicant did not satisfy r.5.19(3)(d)(i) of the Regulations because the applicant had not demonstrated that it had the financial capacity to provide the nominee with full-time employment on an annual salary of $54,000 per annum plus superannuation for at least two years.

5. On 26 November 2019, the Tribunal wrote to the applicant pursuant to s.359(2) of the Migration Act 1958 (the Act), inviting the applicant to provide information to the Tribunal in writing. The invitation was sent by email to the applicant’s representative and registered migration agent, Mr Min Hu, at the last email address provided in connection with the review. The letter invited the applicant to provide information that demonstrated that all of the relevant criteria in r.5.19(3) of the Regulations were met currently, including, but not limited to, the criteria that the delegate had found were not established. Extracts of the relevant parts of r.5.19(3) accompanied the letter for reference. The letter asked the applicant to provide the information by 10 December 2019. The letter noted that the applicant could request an extension of time provided that any such request was received before 10 December 2019. The letter explained that if the requested information was not received within the period allowed or as extended (if an extension were requested and granted), then the applicant would lose any entitlement it might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

6. On 10 December 2019, the Tribunal received an email from the applicant’s representative requesting an extension of time to provide the information requested in the Tribunal’s letter dated 26 November 2019 to the applicant. The applicant’s representative did not specify the date to which or the period for which the extension was requested. On 10 December 2019, the Tribunal wrote to the applicant and advised that an extension of time to provide the information was granted until 21 January 2020. The letter advised the applicant that if the information was not received by 21 January 2020, the applicant would lose any entitlement it might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

7. On 21 January 2020, the Tribunal received an email from the applicant’s representative requesting an extension of time to provide the information. The applicant’s representative did not specify the date to which or period for which the extension was requested. On 23 January 2023, the Tribunal wrote to the applicant and advised that an extension of time to provide the information was granted until 6 February 2020. The letter advised the applicant that if the information was not received by 6 February 2020, the applicant would lose any entitlement it might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments

8. The applicant did not make further contact with the Tribunal until after 6 February 2020. The Tribunal did not receive information from the applicant in response to the Tribunal’s invitation to provide information.

9. The applicant did not provide the information it was invited to provide within the prescribed period as extended to 6 February 2020. No further extension was granted. In these circumstances, s.359C of the Act applies and pursuant to s.360(3) of the Act, the applicant 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 him or her to appear: Hasran v MIAC [2010] FCAFC 40.

10. On 25 February 2020, the Tribunal received an email from the applicant’s representative to which passport details for the nominee and members of his family unit were attached. On 27 February 2020, the Tribunal wrote to the applicant. The letter noted that as the Tribunal had not received a response to the Tribunal’s invitation to provide information by the due date of 6 February 2020, the applicant had lost it entitlement under the Act to appear before the Tribunal and to give evidence and present arguments. The Tribunal advised the applicant that it would not be making a decision on the review until 12 March 2020 at the earliest. The Tribunal invited the applicant to provide, by 12 March 2020, any documents that the applicant felt would support its application and the information it was invited to provide by the extended date of 6 February 2020.

11. The applicant did not respond to the Tribunal’s letter of 27 February 2020 and the Tribunal did not receive any documents or information from the applicant.

12. The Tribunal considered whether it should adjourn the review under s.363(1)(b) of the Act to allow the applicant additional time in which to provide further evidence to support the review application.

13. In doing so, the Tribunal had regard to the decisions in Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617 and Manna v Minister for Immigration and Citizenship [2012] FMCA 28, where the Courts have held that the Tribunal is not required to defer its decision-making processes indefinitely. The Tribunal also had regard to the decision in Minister for Immigration and Citizenship v Li [2013] HCA 18 (8 May 2013) regarding the reasonableness of any request for an adjournment, and the Full Federal Court decision in Minister for Immigration and Border Protection v Singh [2014] FCAFC 1 (4 February 2014), which considered this issue, as well as the decision in Kaur v Minister for Immigration and Border Protection [2014] FCA 915 (28 August 2014) where analogous issues were discussed.

14. The Tribunal considered whether, in the circumstances of this case, the information that the applicant meets the requirements in r.5.19(3) of the Regulations is likely to be forthcoming and whether the applicant has had a fair opportunity to provide the relevant information or documents already, and the significance of the information or documents to the applicant.

15. The Tribunal had regard to the fact that the application was refused by the Department on 17 January 2018 because the delegate concluded that the applicant had not demonstrated that it had financial capacity to provide full-time employment to the nominee in the nominated position for at least two years and, therefore, did not meet the requirements of r.5.19(3)(d)(i) of the Regulations. The applicant submitted a copy of the primary decision record with the review application. The Tribunal observes that the applicant has been aware for approximately 28 months of the reasons for the nomination refusal.

16. In these circumstances, and for the reasons set out in this decision record, the Tribunal considers that the applicant has had a fair opportunity to provide the relevant information and sufficient time to take steps to satisfy the regulatory criteria. The Tribunal notes that it is uncertain whether and when the applicant will provide information in writing as to whether the nominating business meets the requirements of r.5.19(3). The Tribunal is not disposed to delaying making a decision indefinitely.

17. Accordingly, the Tribunal has decided not to exercise its discretion under s.363(1)(b) of the Act to adjourn the review further to allow the applicant additional time to demonstrate that the nominating business meets the requirements of r.5.19(3).

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

19. 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)

20. 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 two years on terms that do not expressly preclude the possibility of an extension.

21. According to the primary decision record that was submitted to the Tribunal with the application for review, the applicant failed to demonstrate that the nominating business has the financial capacity to employ the nominee in the nominated position on a full-time basis for at least two years. A copy of the notification of the primary decision and a copy of the primary decision record were the only documents provided by the applicant when the Tribunal received the application for review.

22. The primary application form lists the base rate of pay per annum and guaranteed annual earnings for the nominee in the nominated position as $54,000. The application form states that the nominating business has five employees.

23. The Department’s records show that the applicant was approved as a standard business sponsor on 3 May 2017.

24. The applicant provided documents to the Department in support of its application for approval of a nomination when the application was lodged and subsequently. The documents the applicant provided included financial statements for the Sheikh & Chowdhury Unit Trust for the 2012/2013 and 2015/2016 financial years. The financial statements included figures for the 2011/2012 and 2014/2015 financial years. The applicant also provided the Department with a profit and loss statement for the period from July 2013 to June 2014 and a contract of employment dated 27 April 2017 made between the applicant and the nominee. The contract of employment stipulates the nominee’s annual base salary as $54,000 per annum and provides for the applicant to make employer superannuation contributions for the nominee to a superannuation fund of the nominee’s choice to the value of 9.5% of the nominee’s gross salary (bringing the nominee’s total base annual salary and employer superannuation contributions to $59,130 per annum). The applicant provided Australian Taxation Office (ATO) tax agent portal printouts of the activity statements for the nominating business for the 2015/2016 and 2016/2017 financial years. It also provided a letter dated 29 April 2017 from its director, Mr M Sheikh, which stated that the nominee was employed by the applicant as a Finance Executive and had been employed by the applicant in that position from 12 May 2014.

25. The financial statements for the 2012/2013 financial year were prepared by the applicant’s professionally qualified accountant and were signed by the accountant. The Tribunal observes that the 2012/2013 financial year ended more than six years ago. The Tribunal, therefore, gave no weight to the financial information for that financial year.

26. The financial statements for the 2015/2016 financial year indicated that they were prepared by the applicant’s accountant, but they were not signed. The profit and loss statement for the period from July 2013 to June 2014 did not indicate who was responsible for its preparation and it was not signed.

27. The 2014/2015 and 2015/2016 financial year statements showed relatively stable total trading income (turnover). The activity statements for the 2016/2017 financial year were indicative of a possible decrease in turnover. While there were variances in individual operating expense items, the total operating expenses for the 2014/2015 financial year and the 2015/2016 financial year were relatively stable.  The listed expenditure on wages was $78,842 for 2014/2015 and $101,888 for 2015/2016. The listed expenditure on superannuation was $1,181.43 for 2014/2015 and $5,938.81 for 2015/2016. The net profit from ordinary activities before income tax in the 2015/2016 financial year was $144,733.65. This increased by $96,922.97 (an increase of more than 200%) from the net profit from ordinary activities before income tax of $47,810.68 in the 2014/2015 financial year. From 2014/2015 to 2015/2016, the cost of sales reduced by $86,195.62 and the closing finished goods (inventory on hand) increased by $153,441.

28. The current liabilities of the nominating business increased from $194,179.77 in the 2014/2015 financial year to $401,054.50 in the 2015/2016 financial year, an increase of more than 100%. The financial statements showed that the beneficiaries of the Sheikh & Chowdury Unit Trust advanced funds totalling $191,501.36 to the applicant’s business in the 2015/2016 financial year (recorded in the financial statements as beneficiary loans). The business also obtained loans totalling $42,166.11 from Public Room and Get Capital. The reason for the increased short-term borrowings is not explained. While the financial statements indicate that the borrowed funds may have been applied towards the increased inventory on hand at the end of the 2015/2016 financial year, the reason for the increased inventory on hand is not explained. Further, there is no explanation of how the nominating business proposed to fund increased indebtedness and borrowing costs.

29. The documents the applicant provided were consistent with the nominee receiving the stated annual base salary (excluding superannuation) of $54,000. However, there is no corresponding evidence such as itemised payroll records to verify the listed payroll expenditure and to corroborate amounts paid to employees. While the 2015/2016 financial statements appear to have been prepared by the applicant’s accountant, they were not signed. The applicant did not provide tax returns as submitted to the ATO, or other documents that corroborated the figures against those submitted to the relevant authorities. The most recent financial information before the Tribunal is for the 2015/2016 financial year, which ended more than three years ago. The Tribunal, therefore, gave the 2015/2016 financial year information no weight.

30. The Tribunal has attempted to obtain the information required to satisfy the relevant legislative criteria. The applicant has not provided any recent financial information regarding its financial capacity to employ the nominee. The Tribunal wrote to the applicant pursuant to s.359(2) of the Act inviting the applicant to provide information in writing demonstrating that the nominating business meets all the requirements of the criteria in r.5.19(3) of the Regulations. The applicant has failed to do so. The Tribunal has no contemporary information before it concerning the financial capacity of the nominating business to pay the nominee’s salary.

31. The Tribunal has had regard to the documents before it on the Department’s file and the Tribunal’s file in relation to the applicant. The Tribunal does not have any new or further information that was not before the Department when the delegate made the decision.

32. Based on the evidence before it, the Tribunal is satisfied that the evidence is insufficient to demonstrate that the nominating business has the financial capacity to pay the nominated full-time salary for the nominated position of Finance Executive for at least two years. Therefore, the applicant does not meet the requirements of r.5.19(3)(d)(i).

33. As the Tribunal has found that the applicant does not meet r.5.19(3)(d)(i), it is not required to consider the remaining requirements set out in r.5.19(3).

34. 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 the 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

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

    Amanda Ducrou
    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.