URBAN ESTATE CONSTRUCTIONS PTY LTD (Migration)

URBAN ESTATE CONSTRUCTIONS PTY LTD (Migration) [2019] AATA 6573 (5 December 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  URBAN ESTATE CONSTRUCTIONS PTY LTD
CASE NUMBER:  1731902
DIBP REFERENCE(S):  BCC2016/3073167
MEMBER:Karen McNamara
DATE:5 December 2019
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision under review to refuse the nomination.

Statement made on 05 December 2019 at 11:31am
CATCHWORDS
MIGRATION – application for approval of nomination of position – Direct Entry Nomination stream – business and nominated position in regional Australia – construction contractor operated from Sydney metropolitan area building homes in regional city – small number of projects, some years apart – no current projects or contracts for future ones – decision under review affirmed
LEGISLATION
Migration Regulations 1994 (Cth), r 5.19(4)(h)(ii)(A), (E)
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration on 1 December 2017 to reject the application by Urban Estate Constructions Pty Ltd (the applicant) for approval of the nomination of a position in Australia under r.5.19 of the Migration Regulations 1994 (the Regulations).
The applicant applied for approval on 15 September 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).
In this case, the applicant has applied for approval of a nomination, seeking to satisfy the criteria in the Direct Entry Nomination stream.
On 1 December 2017, 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 applicant did not provide sufficient evidence to support that the nominee will be employed on a fulltime basis in the nominated position for at least two years.
The applicant applied to the Tribunal on 17 December 2017 for review of the delegate’s decision. The Tribunal has received a copy of the delegate’s decision record with the application for review.
Mr Ammar Khan appeared before the Tribunal on 29 October 2019 to give evidence and present arguments on behalf of the applicant. The Tribunal also received oral evidence from the nominee Mr Supreet Dhindsa, who provided evidence of his employment with the applicant. Mr Ravinder Ravi a former employee of the applicant also provided evidence.
The applicant was represented in relation to the review by their registered migration agent. The representative attended the Tribunal hearing.
At the conclusion of the hearing, the Tribunal invited the applicant to provide further evidence (including evidence of the position being advertised, future projects within the Goulburn region, evidence of the applicant’s business being located and operating in Goulburn, Workers Compensation details, financial and taxation documentation (including BAS returns), bank statements and the nominee’s pay slips.)
On 8 November 2019, the applicant provided further documentary evidence to the Tribunal. This included the nominee’s superannuation details, council rate notices, insurance certificates, nominee’s payslips, business and nominee’s bank statements, invoices issued for progress payments (Lot 222 & 224 Success Street Goulburn), invoices from suppliers, workers compensation policy details, company tax return 2018, 2017 and 2019, BAS returns and submission from the applicant and nominee.
CONSIDERATION OF CLAIMS AND EVIDENCE
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.
Background
The applicant told the Tribunal that he operates a building company (Urban Estate Constructions Pty Ltd), from his home office in Mount Druitt, Western Sydney. The company was registered in July 2010 and has engaged in the construction of residential buildings and has started to go into commercial construction. The applicant acts as principle contractor and engages subcontractors for the construction of the buildings with his company managing the process. The nominated position of Carpenter is the only position employed by the applicant.
Mr Ravi told the Tribunal that he used to work for the applicant and looks after the applicant’s business when the applicant is away. Mr Ravi also stated that he works in Goulburn and that it is hard to get a Carpenter. Mr Ravi operates his own building company Kalwanu Constructions.
On 15 September 2016, the applicant lodged an application for an employer nomination approval, for the position of Carpenter (ANZSCO 331212) under the Regional Sponsored Migration Direct Entry stream. The nominated base salary is $60,840 per annum.
Evidence before the Tribunal, indicates that the nominee commenced full time employment with the applicant on 24 April 2017 and has been employed with him since.
The Tribunal notes that numerous evidence and submissions were lodged by or on behalf of the applicant. While the Tribunal has considered all of same, only that which was considered material to its decision has been expressly referred to herein.
For the following reasons, the Tribunal has decided to affirm the decision under review to refuse the nomination.
Tasks of the position genuine need for the position and training requirements r.5.19(4)(h)
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 a 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 a regional certifying body has advised the Minister about certain matters relating to the position.
The Tribunal accepts that the relevant criteria to be satisfied in the present matter, are those set out in the second limb, that is under r.5.19(h)(ii) where all subclauses r.5.19(4)(h)(ii)(A) to r.5.19(4)(h)(ii)(F) must be met.
The evidence before the Tribunal shows that applicant’s business is located at Mount Druitt metropolitan Sydney. The applicant has lodged employer nomination approval, for the position of Carpenter (ANZSCO 331212) under the Regional Sponsored Migration Direct Entry stream on the basis that the position and the business operated by the applicant, is located in Goulburn NSW.
The material issue in this case is whether the nominated position and the business operated by the nominator is located in ‘regional Australia’ for the purpose of meeting the criteria set out in r.5.19(4)(h)(ii)(A) and r.5.19(4)(h)(ii)(E).
R.5.19(4)(h)(ii) (A) the position is located in regional Australia
In this case, the applicant has lodged an employer nomination application, nominating the position of Carpenter (ANZSCO 331212) under the Regional Sponsored Migration Direct Entry stream on the basis that the position is located in Goulburn NSW (postcode 2580) According to the relevant legislative instrument this location /postcode constitute part of regional Australia.
At the hearing, the Tribunal raised its concerns with both the applicant and the nominee that based on the evidence before it, the Tribunal may form the view that the position was not located in Goulburn and that the evidence suggests that the nominee was not working for the applicant in Goulburn.
The applicant told the Tribunal that his company is building homes in the Goulburn region and he is currently discussing commercial development opportunities with Goulburn Mulwaree Council (Council). The applicant told the Tribunal that in the last two years the business has built two residential dwellings and is finishing a subdivision. Evidence before the Tribunal shows that since September 2015[1] the applicant has overseen the construction of three residential properties in Goulburn that being 6 Dewhirst Street and Lots 222 & 224 Success Street Goulburn. The subdivision relates to property owned by the applicant at 60 Robinson Street Goulburn. Evidence before the Tribunal in the form of an invoice dated 8 November 2019 from CPC Land Development Consultants Pty Ltd show that work has been undertaken for the lodgement of a Subdivision Certificate with Council. There is no evidence before the Tribunal to show that the Subdivision application has been lodged or at the time of the Tribunal’s decision, approved by Council.
[1] HBCF Statement of Cover for residential building works by Contractors for 6 Dewhirst Street Goulburn states contract date 30 September 2015.
Invoices issued by the applicant for progress payments for 222 and 224 Success Street show preliminary site preparation etc. was invoiced to the respective property owners on 11 April 2019.[2] Invoices for the completion of the construction is dated 10 October 2019. This indicates to the Tribunal that the construction of these premises occurred during April 2019 to October 2019. There is no evidence before the Tribunal to show that the applicant undertook construction work between the construction of the Dewhirst Street property in 2015 and the commencement of the Success Street properties in April 2019.
[2] HBCF Statement of Cover for residential building works by Contractors for Success Street Goulburn properties state contract date 4 February 2019.
Correspondence provided by the applicant shows communication between himself and Goulburn Mulwaree Council dated 22 April 2016 and Quest Apartment Hotels 3 April 2017 regarding the applicant’s proposal to develop commercial property in Goulburn. The emails are of an introductory nature and do not provide any indication of further communication and meetings between the parties. There is no evidence before the Tribunal that the applicant’s proposals came to fruition and that the proposed developments were/are being constructed by the applicant.
The Tribunal raised its concerns with the nominee that his bank transactions contained in statements 1 August 2019 to 20 September 2019, were not indicative of a person residing and working in Goulburn. For example these statements showed only two transactions were undertaken by the nominee in Goulburn on 29 August 2019 at McDonalds and Mobil. All other transactions included those undertaken by the applicant in the North Western metropolitan region of Sydney. The nominee told the Tribunal that during this period he was spending more time in Sydney preparing for an overseas trip. When asked where he was living, the applicant told the Tribunal that he was staying with family and friends at Narrabundah in the ACT but prior to that he was commuting on a daily basis between Schofields and Goulburn. The applicant and nominee, both told the Tribunal that the nominee had been working in Goulburn on a daily basis since 2017.
Following the hearing, the nominee provided to the Tribunal, bank statements for the period 14 September 2018 to 29 October 2019. The Tribunal notes that the statements showed approximately eleven transactions over a twelve-month period to indicate that the nominee had been in the Goulburn region. The Tribunal therefore places little weight on this evidence to support that the applicant has been working on a daily basis in Goulburn since April 2017.
The Tribunal has considered the evidence before it and finds on balance there is no evidence to support that the nominee has carried out work for the applicant in Goulburn and that the business has provided the nominee with regular work to sustain the employment of a fulltime position located in Goulburn since April 2017.
As such, there is no conclusive or compelling evidence to support that the position is located in Goulburn and therefore located in regional Australia. Therefore the applicant does not satisfy r.5.19(4)(h)(ii)(A).
R.5.19(4)(h)(ii) (E) the business operated by the nominator is located at that place.
The Tribunal notes the applicant provided an ASIC extract showing the registration of the business name “Urban estate constructions Goulburn” held by Urban Estate Constructions Pty Ltd on 3 August 2016 (one month before the applicant lodged the nomination application). The principal place of business for this entity is recorded at 6 Dewhirst Street Goulburn NSW 2580. At the hearing the applicant told the Tribunal that he operates the holding business from his home office at Mount Druitt.
The Tribunal notes that multiple evidence associated with the operations of the business including Council rate notices, client’s invoices, icare workers compensation policy, Company Tax returns and payslips issued to the nominee, all show the applicant’s business address is located at Mount Druitt.
When asked if the applicant operated his Goulburn based business out of commercial premises in Goulburn, the applicant told the Tribunal that he operated out of 6 Dewhirst Street. The Tribunal noted that this is a residential home, which the applicant provided evidence to the Tribunal of constructing in support of the nomination application. Evidence before the Tribunal in the form Council rate notices and HBCF Statement of cover shows this is a residential property owned by Mr Ammar Khan and Embreen Khan. The applicant told the Tribunal that the Dewhirst Street property is partially tenanted and he operates the Goulburn operations from a home office located within the Dewhirst Street dwelling.
At the hearing when asked where the business purchases its building materials in Goulburn, the applicant told the Tribunal that he held an account with Bunnings and Mitre 10. The Tribunal requested the applicant to provide evidence of operating the business in Goulburn and requested evidence of purchasing materials from local suppliers including Bunnings and Mitre 10 at Goulburn. The Tribunal notes that the business provided bank statements for 1 September 2018 to 5 November 2019 however, there is no conclusive evidence within these bank statements to indicate purchases from Goulburn based Bunnings or Mitre 10. Invoices provided by the applicant show that materials for the Success Street projects were purchased from Sydney based suppliers. The Tribunal further notes that the applicant has not provided receipts or account details to support that the business holds an account with either Bunnings or Mitre 10 at Goulburn.
The Tribunal notes the applicant told the Tribunal that he is building houses in the Goulburn region and he is currently discussing commercial development opportunities with Council. The Tribunal however notes evidence provided by the applicant indicates that since September 2015[3] the applicant has managed the construction of three residential properties in Goulburn. Between the completion of the Dewhirst Street dwelling and commencement of the Success Street dwellings there is no evidence to support the applicant undertook construction work in the intervening period. Furthermore, there is no evidence currently before the Tribunal to show that the applicant is currently undertaking construction work or has secured contracts for future construction work in the Goulburn region.
[3] HBCF Statement of Cover for residential building works by Contractors for 6 Dewhirst Street Goulburn states contract date 30 September 2015.
The Tribunal notes a letter from “Arcinovationz” dated 7 November 2019 which states “Urban Estate Constructions have sent their following clients to us for preparation of plans which are in progress for Goulburn/Canberra area and are at various stages but not Yet Completed [sic].” The Tribunal notes that of the six projects listed one is at planning stage, one at early planning stage, three DA Lodged by owner and one DA Near Approval. The Tribunal has considered this letter however finds that the information provided is not conclusive of building work being carried out by the applicant and places little weight on this advice.
The Tribunal accepts that the applicant has property interests in Goulburn and has played a role in the construction of at least three residential properties in Goulburn, however the Tribunal finds that there is no persuasive or compelling evidence to support that the business operated by the nominator is located in Goulburn. On balance, the Tribunal has formed the view that the business operated by the nominator is located in Mount Druitt (metropolitan Sydney) and not Goulburn (Regional Australia) and therefore the business operated by the nominator is not located at Goulburn. Therefore, the applicant does not satisfy r.5.19(4)(h)(ii)(E).
Accordingly the requirements of r.5.19(4)(h) are not met.
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 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

The Tribunal affirms the decision under review to refuse the nomination.
Karen McNamara

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).

[2019] AATA 6573

5 December 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction