YOGIS TRADERS PTY LTD (Migration)

YOGIS TRADERS PTY LTD (Migration) [2021] AATA 714 (8 February 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  YOGIS TRADERS PTY LTD
CASE NUMBER:  1824896
HOME AFFAIRS REFERENCE(S):          BCC2016/4313513
MEMBER:Karen McNamara
DATE:8 February 2021
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision under review to refuse the nomination.

Statement made on 08 February 2021 at 10:29am
CATCHWORDS
MIGRATION – approval of a nomination – Direct Entry Nomination stream – position of Café or Restaurant Manager – tasks to be performed did not correspond to a specified occupation – financial capacity to employ the nominee for at least 2 years – financial losses – absence from employment and return part time – genuine need for the employment – terms and conditions of employment – decision under review affirmed
LEGISLATION
Migration Act 1958, s 359
Migration Regulations 1994, r 5.19
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 Home Affairs on 7 August 2018 to reject the application by Yogis Traders 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 21 December 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 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).
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)(h)(ii) (D) of the Regulations because the delegate found that the tasks to be performed in the position did not correspond to the tasks of an occupation specified by the Minister in an instrument in writing for sub-paragraph 5.19(4)(h)(ii).
The applicant applied to the Tribunal on 27 August 2018 for review of the delegate’s decision. The applicant submitted a copy of the primary decision record with the review application.
On the 1 September 2020, the Tribunal wrote to the applicant pursuant to section 359(2) of the Act (dispatched by email to the authorised recipient), requesting the applicant to provide updated and current information that would assist to determine whether the criteria in rr. 5.19(2) & (4) of the Regulations were met.
Information provided to the Tribunal
On 15 September 2020, information provided by the applicant to the Tribunal included the following;
·ASIC current and historical extract
·Business Activity Statements (BAS) returns July 2018 to March 2020
·ATO Activity Statement April 2018 to June 2018
·Company Tax returns financial years 2017/18 & 2018/19
·Draft P&L Statements 30 June 2020
·Draft P&L Statements 30 June 2018
·Financial Statements 30 June 2018 & 30 June 2019
·Letter of engagement dated 7 September 2020
·Job advertisement
·RCB Advice dated 19 June 2017
·Organisation Chart
On 1 December 2020, the representative provided to the Tribunal on behalf of the nominee numerous dated screenshots of text messages between the applicant and the nominee within the period January 2018 to November 2020.
On 3 December 2020, the applicant represented by Ms Yogita Rani (referred to below as the applicant) appeared before the Tribunal via telephone, to give evidence and present arguments. The Tribunal also received oral evidence from Mr Satwant Singh Warring (the nominee) in the related matter for the subclass 187 visa (AAT Case file 1828086). The related matters were heard concurrently in a combined hearing. The Tribunal hearing was conducted with the assistance of an interpreter in the Hindi and English languages. The interpreter’s services were utilised as per when required by the applicant and nominee.
The applicant was represented in relation to the review by its registered migration agent. The representative attended the Tribunal hearing.
The Tribunal exercised its discretion to hold the hearing by telephone. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant and nominee. 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 and nominee were given a fair opportunity to give evidence and present arguments.
At the conclusion of the hearing, the Tribunal invited the applicant and nominee to provide further documentation including PAYG’s issued to the applicant’s employee’s for the financial years 2018/19 and 2019/20, the business and nominee’s bank statements for the period November 2018 to November 2020 showing payment of salary to the nominee, evidence of the nominee receiving superannuation and the applicant’s Business Activity Statements (BAS) returns showing wage expense July 2018 to March 2019 and BAS returns for period April to June 2020.
On 14 December 2020, the applicant requested an extension of time to provide said information which was subsequently granted by the Tribunal.
On 21 and 22 December the applicant provided the following documents to the Tribunal;
·BAS returns July 2017 to June 2020
·PAYG summaries Financial Year 2019/20 for four employees
·PAYG summaries Financial Year 2018/19 for seven employees
·Workers Compensation cover note dated 4 December 2020
·PAYG Summary Statement Financial Years 2018/19 & 2019/20
·Company Tax Return Financial year 2018/19
·Submission from applicant dated 7 December 2020
·Statutory Declaration by applicant declared 10 December 2020
·Nominee’s bank statements 22 July 2016 to 22 November 2017
·Submission from nominee dated 9 December 2020
·Death Certificate (nominee’s mother)
·Nominee’s superannuation statements
·Nominee’s Notice of Assessments issued by the Australian Taxation Office for Financial years 2016/17, 2017/18 & 2018/19.
On 24 December 2020, the Tribunal wrote to the applicant under s.359A of the Act. The invitation sought comment and further information from the applicant, including the following;
‘ On 21 and 22 December 2020, the Tribunal received evidence provided by you and Mr Satwant Singh Warring (the nominee), including PAYG summaries and written statements dated 7 & 9 December 2020, which stated that the nominee was absent from the position and your employment from April 2019 to December 2019 and that he resumed employment with you on a part time basis in January 2020. At the hearing you told the Tribunal his absence was for a few months i.e approximately 3 to 5 months.
The Tribunal invites you to comment in regard to the following;
·The PAYG Summary issued by you to the nominee for the 2019 financial year records gross payments of $28,236, however the nominee’s Notice of Assessment (issued by the Australian Taxation Office on 19 August 2019), states his taxable income was $41,247. The Tribunal further notes that this PAYG Summary was issued by you to the nominee, signed and dated 21 December 2020 which suggests it was not submitted as part of the nominee’s 2019 financial year tax return and therefore not included in his 2019 Notice of Assessment.
·Evidence currently before the Tribunal shows the nominee from April 2019 to December 2019 (a period of 8 months) did not work for you. The gross payments recorded in the nominee’s 2019 PAYG Summary ($28,236) is not reflective of an eight months pro rata salary of $60,000 per annum. Please provide comment as to why the PAYG is signed and dated 21 December 2020 and provide evidence to support the actual salary which was paid to the nominee during the 2019 Financial Year.
·The financial statements provided by you to the Tribunal, record that the business has operated at a loss since 2016. Evidence currently before the Tribunal indicates that the nominee has not worked for you on a full time basis since November 2017. This may suggest to the Tribunal that you do not have the financial capacity to pay the nominee a full time salary of $60,000 per annum for at least two years. Please provide comment.
·At the hearing on 3 December 2020, you told the Tribunal that the nominee had left the position for a few months due to a family illness. Subsequent information provided to the Tribunal suggests this period was eight months. In the absence of information currently before the Tribunal to support the nominee was employed by you on a full time basis post November 2017, the Tribunal may form the view that there is not a genuine need for you to employ the nominee to work in the position under your direct control. Please provide comment.
The above information is relevant because r.5.19(4)(d) requires the employee to be paid on a full time basis in the position for at least 2 years. Additionally, r.5.19(4)(h)(ii)(B) requires there is a genuine need for the nominator to employ a paid employee to work in the position under the nominator’s direct control.
If the Tribunal relies on this information, it may find that the nomination does not satisfy the requirements of r.5.19(4) and consequently the decision under review would be affirmed.’
Relevant to this matter, on 24 December 2020, the Tribunal additionally wrote to the nominee in the related matter for the subclass 187 visa (AAT Case file 1828086) under s359A of the Act. The invitation sought comment and further information from the nominee, including the following;
‘ At the hearing of 3 December 2020, you were requested to provide additional documentation to the Tribunal in support of your employment and receipt of regular salary payments from Yogis Traders Pty Ltd (the nominator). This documentation included copies of your personal bank statements for the last two years, that being November 2018 to December 2020. Additionally, at the hearing the Tribunal was told that you left the employment of Yogis Traders Pty Ltd in July 2019 for a few months and that you were absent from the position for approximately 3 to 5 months.
On 21 and 22 December 2020 the Tribunal received evidence provided by you and the nominator, including written statements dated 7 & 9 December 2020, stating that you were absent from the position and the employment of the nominator from April 2019 to December 2019, resuming employment on a part time basis in January 2020. The Tribunal additionally notes that you provided bank statements for the period 22 July 2016 to 20 November 2017.
The Tribunal invites you to comment in regard to the following;
·The PAYG Summary issued by the nominator for the 2019 financial year states gross payments of $28,236, however the Notice of Assessment (issued by the Australian Taxation Office on 19 August 2019), that you have provided to the Tribunal for the corresponding 2019 Financial Year, states your Taxable income was $41,247. The Tribunal further notes that the PAYG Summary issued to you by the nominator is signed and dated 21 December 2020 which suggests it was not submitted as part your 2019 Financial Year tax return and therefore not included in your 2019 Notice of Assessment. Please provide comment and reason as to the variance and evidence of the source of income declared to the Australian Taxation Office.
·Based on the information before the Tribunal that being your 2019 PAYG summary showing gross payments of $28,236 and that you did not work for the nominator from April 2019 to December 2019 (a period of 8 months), the amount stated in your PAYG ($28,236) is not reflective of an eight months pro rata salary of $60,000 per annum. Furthermore, there is no evidence before the Tribunal to support payment of salary by the nominator to you during the 2019 Financial year as you have not provided copies of your bank statements for this period. In the absence of information to verify actual salary payments the Tribunal may not be satisfied that you worked for the nominator during the period claimed.
The above information is relevant because r.5.19(4)(d) requires the employee to be paid on a full time basis in the position for at least 2 years. If the Tribunal relies on this information, it may find that the nomination does not satisfy the requirements of r.5.19(4) and consequently the decision under review would be affirmed.’
17. The Tribunal sought response from the applicant and nominee by 7 January 2021.
On 4 January 2021, the applicant requested an extension of time to provide said information which was subsequently granted by the Tribunal to 19 January 2021.
On 19 and 22 January 2021 the nominee provided the following documents to the Tribunal;
·Letter from the nominee’s accountant undated
·Passport extract from nominee
·Nominee’s bank statements 22 November 2017 to 10 July 2019
·Nominee’s bank statements 22 May 2019 to 10 July 2019
·Notice of Assessments for secondary applicant Beant Kaur Dhillon re: Financial years 2015/16 to 2019/20(inc)
·Statement of service re: Beant Kaur Dhillon
·Statutory Declaration by nominee declared 19 January 2021.
On 1 February 2021, the Tribunal made a decision based on the information before the member at the time of decision. The decision noted the applicant had not provided documentation requested at the hearing. Subsequent to receipt of the Tribunal’s decision, on 4 February 2021, the applicant’s agent advised the Tribunal that documentation had been submitted to the Tribunal via the Tribunal National Registry Mailbox and on 22 January 2021 the agent had contacted the Tribunal requesting confirmation of receipt of the applicant’s submissions. Upon receipt of the agent’s advice, the Tribunal identified that further information had been received from the applicant but had not been provided to the member. In consideration of the circumstances as to why this information was not made available to the member, the Tribunal has reopened this case.
The Tribunal acknowledges that in response to the Tribunal’s invitation of 24 December 2020, the applicant provided the following;
·Comments submitted by Ms Rani
·Medical certificate dated 11 November 2020
·Letter from accountant dated 18 January 2021
·Financial Statements financial years 2018/19 and 2019/20
·Confirmation re: nominee’s PAYG summary amount 2018/19 financial year
·Amended PAYG summary re: nominee 2018/19 financial year
·Company Tax returns 2018/19 and 2019/20 financial years
·BAS returns April to June 2019 & April to June 2020
·PAYG Summaries re: employees’ financial years 2018/19 and 2019/20
·Business bank statements
o16 April 2018 to 15 October 2018 (account ###6756)
o16 October 2018 to 15 April 2019 (account ###6756)
o1 July 2018 to 2 August 2018 (account ###4657)
o3 August 2018 to 11 September 2018 (account ###4657)
·Statutory Declaration declared 19 January 2021.

22. The Tribunal has taken into account all of the information before it and for the following reasons, the Tribunal has decided to affirm the decision under review to refuse the nomination.
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 operates an Indian Cuisine restaurant under the business name Yogi’s Kitchen & Indian, located in Barton, Canberra ACT. Information before the Tribunal including ASIC records show the company was registered on 20 February 2015 and commenced formal trading on 18 July 2016.
On 21 December 2016, the applicant lodged an application for an employer nomination approval for the position of Café or Restaurant Manager (ANZSCO 141111) under the Regional Sponsored Migration Direct Entry stream. The nominated base salary is $60,000 per annum exclusive of superannuation.
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.
Term of employment of the visa holder: r.5.19(4)(d)
Regulation 5.19(4)(d) requires the nominee to be employed in the nominated position for at least 2 years full time, and the terms and conditions of that employment do not expressly exclude the possibility of an extension.
At the hearing the Tribunal discussed with the applicant, the capacity of the applicant to employ the nominee on a full time basis in the position for at least two years. The Tribunal discussed with the applicant that the financial statements provided to the Tribunal at the time of the hearing, show that the business has recorded consecutive losses since 2017. The draft Profit and Loss Statement for the 2019/20 financial year, recorded retained earnings of negative ($19,231) which is a considerable improvement on the previous financial year 2019, where the applicant recorded retained earnings of negative ($113,970). The applicant addressed this at the hearing and told the Tribunal that the reported losses were contributable to the closure of the applicant’s former business which for tax purpose was claimed as a loss.
The Tribunal raised its concern with the applicant that the salary expense recorded in the draft 2020 P&L statements record salary as $118,317 plus job keeper $24,000 which indicates a total salary cost to the applicant of $142,317. Given the nominated salary is $60,000 this left $82,317 to cover the additional staffing which the applicant told the Tribunal is 2 full time staff (additional to the nominee) 4 casuals and one part time. The Tribunal was told that the nominee did not work full time in 2020 and received $12,000 in salary payments.
Whilst providing oral evidence, the applicant could not confirm (with the exception of the nominee) what the respective salary payments made to the applicant’s employees were for 2019/20 financial year. The Tribunal requested the applicant to provide post hearing, copies of PAYG summaries issued to her employees for the 2018/19 and 2019/20 financial years.
At the conclusion of the hearing the Tribunal invited the applicant and nominee to provide additional information in support of the nomination review, including the business and nominee’s bank statements for the period November 2018 to November 2020. The Tribunal in explaining to the applicant and nominee as to why this information is required noted that whilst (subject to the information before it at the time) that per se it had no immediate concerns, however, it must be satisfied that the business has the financial capacity to pay the nominee’s salary for at least two years.
Post hearing the applicant provided to the Tribunal inter alia a copy of the nominee’s 2018/19 PAYG Summary which reported that the nominee received gross payments of $28,236. A Notice of Assessment (issued by the Australian Taxation Office on 19 August 2019) provided to the Tribunal by the nominee for the corresponding 2018/19 financial year, states the nominee’s taxable income was $41,247.

During the hearing the applicant told the Tribunal that the nominee ‘left the job for a few months and was absent for 3 to 5 months.” In submissions provided to the Tribunal dated 7 & 9 December 2020 the applicant and the nominee state that the nominee was absent from the position and the employment of the nominator from March/April 2019 to December 2019, resuming employment on a part time basis in January 2020. The nominee’s bank statements provided post hearing for the period 22 November 2017 to 10 July 2019, show that the nominee ceased receiving deposited salary payments from the applicant post 6 March 2019.
On 24 December 2020, the Tribunal wrote to the applicant and nominee inviting comment under s 359A of the Act, in regard to inter alia, its concern that the reported gross payments on the nominee’s 2018/19 PAYG Summary, did not correspond with the Notice of Assessment (issued by the Australian Taxation Office) and that evidence before the Tribunal shows the nominee was absent from the position a period of eight months. As such, in the 2018/19 financial year the nominee would have worked in the position from July 2018 to March 2019 (eight months) however the payment amount recorded on the 2018/19 PAYG summary, is not reflective of an eight months pro rata salary of $60,000 per annum.
The Tribunal also sought comment from the applicant that the financial information provided to the Tribunal, record that the business has operated at a loss since 2016 and that evidence currently before the Tribunal (including the nominee’s bank statements provided at the time i.e. 22 July 2016 to 22 November 2017) do not support that the nominee has worked for the applicant since November 2017.
The applicant and nominee subsequently provided an explanation for the amount recorded on the nominee’s 2018/19 PAYG summary and confirmation from the applicant and nominee’s accountant stating the correct amount in gross salary paid by the applicant is $34,615 and that the nominee received gross payments of $7,211 from a second employer during the 2018/19 financial year. The applicant provided an amended PAYG summary recording gross payments of $34,615 to the nominee during the 2018/19 financial year. On the basis of the explanation and subsequent evidence provided to the Tribunal, the Tribunal accepts the that the correct gross payment amount made to the nominee by the applicant for the 2018/19 financial year is $34,615.
On 19 January 2021, the nominee provided bank statements for the periods 22 November 2017 to 3 May 2019 and 22 May 2019 to 10 July 2019. As at the time of this decision the nominee has not provided bank statements post 10 July 2019 despite being invited by the Tribunal to provide bank statements up to November 2020.
The applicant provided copies of bank statements to support payment of the nominee’s salary, ranging in date from 16 April 2018 to 15 April 2019. As at the time of this decision the applicant has not provided bank statements post 15 April 2019 despite being invited by the Tribunal to provide bank statements up to November 2020.
The Tribunal notes that the applicant has provided numerous versions of the businesses 2018/19 financial statements and Company tax returns. The Tribunal has considered the most recent dated statements and tax returns as submitted by the applicant post hearing on 19 January 2021.
The Tribunal is required to assess the requirements for approval of the nomination on the evidence before it at the time of decision. In undertaking this assessment, the Tribunal is aware that the concept of ‘onus of proof’ is not appropriate to administrative inquiries and decision-making. On the other hand, the Courts have held that an applicant will have to supply the relevant facts of the individual case, in as much detail as necessary to enable a decision maker to establish the relevant case, and in as much detail as is necessary to enable a decision maker to establish the relevant facts. As a result, a decision maker is not required to make the applicant’s case for it. Nor is the Tribunal required to accept uncritically any and all the claims an applicant puts forward.
In assessing the applicant’s capacity to employ the nominee full time in the position for at least 2 years, the Tribunal has taken into consideration the applicant’s financial statements, company tax returns, the nominee and applicant’s bank statements, the nominee’s PAYG summaries and Notice of Assessments, letter of engagement, the nominated salary amount and advice from the applicant and nominee’s accountant.
Bank statements before the Tribunal, confirm that the nominee received regular deposit of a salary/ wage payment from the applicant during the period 24 November 2017 to 6 March 2019. Whilst the applicant and nominee told the Tribunal that the nominee returned to work part time for the applicant in January 2020 and that he subsequently decided in August 2020 that he was ready to work full time, there is no corroborating evidence before the Tribunal to support payment of salary to the nominee from the applicant since March 2019.
The Tribunal acknowledges the applicant’s evidence including the handwritten PAYG summary that the nominee received gross payments of $12,000 from the applicant in the 2019/20 financial year.
As noted above, the applicant and nominee subsequently provided evidence to support that the nominee received gross payments of $34,615 from the applicant in the 2018/19 financial year.
The nominee’s letter of engagement dated 7 September 2020 states the salary payable to the nominee is $60,000 per annum. The nominated salary as per the applicant’s nomination application lodged with the Department states the nominee will be paid $60,000 per annum.
The applicant and nominee submit that the nominee did not work for the applicant during the period March 2019 to January 2020.
In the circumstances, it is difficult to be satisfied that the applicant has the financial capacity to employ the nominee on a full time basis in the position for at least 2 years when the evidence before the Tribunal shows that the applicant since the 2016/17 financial year has reported consecutive tax losses and negative net equity.
The Tribunal notes that the nominee’s salary as per the PAYG summary for 2018/19 financial year was $34,615 and 2019/20 financial year was $12,000. At the hearing the applicant told the Tribunal that with the assistance of ‘one of the girls who has a diploma of management’ she covered the tasks of the position for a few months. There is no evidence before the Tribunal to support that the applicant has incurred additional payroll or salary expense to cover the nominee’s absence from the position during the 2018/19 and 2019/20 financial years. There is no verifiable or compelling evidence before the Tribunal to support how the applicant would have met an additional salary expense in 2018/19 financial year of $25,385, when the business recorded (as per financial statements dated by accountant 12 January 2021) a loss of ($24,697) and accumulated tax loss of $150,585 and in the 2019/20 financial year an additional salary expense of $2,108 when the business recorded a profit of $45,892 and accumulated tax loss of ($104,693). Whilst the Tribunal notes that the applicant’s 2019/20 financial statements record total cash at bank amount of $6,957, this amount may be sufficient to cover the shortfall in salary payment of $2,108, however in considering whether the applicant has the capacity to employ the nominee on a full time basis for at least 2 years, the Tribunal has afforded consideration to the overall financial position of the applicant.
The Tribunal notes evidence before it that the applicant operates a beauty business in addition to the restaurant. The applicant’s financial statements record the financial position of each business, then accumulatively for the purpose of reporting profit/loss. The 2019/20 recorded profit of $45,892 is contributable to reported ‘other income’ from the applicant’s Threading & Tinting Bar which records income of $26,982 and $24,000 in job keeper payments. The Tribunal in assessing the applicant’s financial capacity to pay the nominee is mindful that whilst the applicant reported a profit of $45,892, the applicant also received $24,000 in wages relief through job keeper payments.
According to the applicant’s 2019/20 comparative profit and loss statements for the years ending 30 June 2019 and 30 June 2020, the restaurant business being the business where the nominated position exists, suffered consecutive business losses of ($65,526) and ($5,090). The applicant’s balance sheet as of 30 June 2020, which gives an indication of its financial position at that point in time, shows a greater amount of liabilities of $217,356 over its total assets of $112,665, an excess of liabilities over assets of -$104,691. In business parlance, a situation where a company’s liabilities exceed its assets and according to the financial statements provided to the Tribunal, has recorded consecutive negative net equity since the 2016/17 financial year, are not indicators of a viable and profitable business.
The Tribunal’s assessment of the business’s capacity to employ the nominee full time for at least two years has weighted heavily upon the evidence before the Tribunal in so far as the only indication of the business’s most recent financial position is evidence for the 2018/19 and 2019/20 financial years. There is no corroborative or independent evidence before the Tribunal to support any improvement in the applicant’s overall financial position in the 2020/21 financial year to date.
The Tribunal has considered the salary payments made by the applicant to the nominee during the period 24 November 2017 to 6 March 2019 and finds on balance little weight can be attributed to these payments in so far there is no evidence in the form of bank statements, to support salary payments made by the applicant to the nominee since March 2019. The Tribunal has therefore assessed the financial capacity of the nominating business to pay the nominee's salary for at least two years, based on the applicant’s financial performance as reported in the applicant’s most recent financial evidence before the Tribunal.
Having overall consideration of the evidence before it, the Tribunal is of the view that there is a lack of evidence that the Tribunal considers concrete and persuasive, to suggest that the financial situation of the business has improved. As stated previously the negative net equity recorded in the applicant’s 2018/19 and 2019/20 financial statements are not indicative of a viable and profitable business. The Tribunal also notes that there is no corroborative and persuasive evidence before the Tribunal to support that the nominee has received regular salary payments from the applicant since March 2019.
On the information before it and the reasons noted above, the Tribunal finds, it is not satisfied that applicant has demonstrated the financial capacity to pay the full time salary for the nominated position for at least two years. Accordingly, the Tribunal has formed the view that the applicant has not demonstrated that the nominee will be employed as required for the minimum period of two years on a full-time basis as specified in the Regulation. The Tribunal therefore finds the applicant does not satisfy the requirement in r.5.19(4)(d)(i).
Accordingly, the requirements in r.5.19(4)(d) are not met.
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 the relevant 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 (4)(h)(ii) where all subclauses r.5.19(4)(h)(ii)(A) to r.5.19(4)(h)(ii)(F) must be met.
In her submission to the Tribunal dated 7 December 2020, the applicant submits that the nominee from April 2019 to December 2019 did not work for her due to the nominee struggling to cope with his mother’s diagnosis of cancer. In January 2020 the nominee recommenced his employment with the applicant on a part time basis and after his mother’s death in August 2020, decided to return to work for the applicant on a full time basis. The applicant states “ .....and we said, Yes! Straight away to Satwant as I desperately need Satwant to manage and operate Yogi’s Kitchen where he has the experience of three years with us while I am personally looking after our 2^nd beauty business.”
At the hearing, the applicant disclosed to the Tribunal that the nominee had left the position for a few months. Subsequent evidence provided to the Tribunal post hearing, indicated that the absence was approximately eight months with the nominee returning on a part time basis in January 2020 then deciding to return full time in August 2020. As previously mentioned in this decision there is no corroborative evidence before the Tribunal to support that the nominee has returned to work for the applicant.
The Tribunal discussed with the applicant how she had managed the business without the nominee. The applicant told the Tribunal that she had carried out the position for a few months herself with assistance from “one of the girls who has a diploma of management,” who helped for a few months. There is no evidence before the Tribunal to support that the applicant has incurred additional payroll or salary expense to cover the nominee’s absence from the position during the 2018/19 and 2019/20 financial years or that the nominee’s absence was detrimental to the operations of the business.
On 24 December 2020, the Tribunal wrote to the applicant under s.359A inviting comment in regard to the absence of the nominee from the position. The Tribunal invited the applicant to respond to the Tribunal’s concern that ‘in the absence of information currently before the Tribunal to support the nominee was employed by the applicant on a full time basis post November 2017[1], the Tribunal may form the view that there is not a genuine need for the applicant to employ the nominee to work in the position under the applicant’s direct control. As at the time of this decision the applicant has not provided comment.
[1] At the time of writing to the applicant, the evidence before the Tribunal showed that the nominee had received salary payments up to November 2017.
Bank statements (including those provided by the nominee post 24 December 2020) confirm that the nominee received regular deposit of a salary/ wage payment from the applicant during the period 24 November 2017 to 6 March 2019. Whilst the applicant and nominee submit that the nominee returned to work part time for the applicant in January 2020 and that he subsequently decided in August 2020 that he was ready to work full time, there is no persuasive evidence before the Tribunal to support payment of salary to the nominee from the applicant since March 2019. Whilst the applicant has provided a 2019/20 financial year PAYG summary for gross payments of $12,000, there is no corroborating evidence to support the actual date the nominee resumed employment with the applicant and whether the $12,000 gross payment represented full time or part time salary payments.
In his submission to the Tribunal dated 10 December 2020, the nominee stated that ‘ Where I had some time off from work and I tried to work part-time or causal base. [sic]. In response to the Tribunal’s s.359A invitation of 24 December 2020, the nominee in providing clarification of the 2019/20 PAYG summary and Notice of Assessment amounts in a Statutory Declaration declared on 19 January 2021, ‘……I worked for E & A Malmierca Pty Ltd on a casual basis especially on weekends following completion of the contract with Yogi Traders.”
The Tribunal makes the observation from the bank statements provided by the nominee that that on 1 May 2019 and during the period 29 May 2019 to 4 July 2019, the applicant received regular weekly payments of $855.69 from a different employer. The Tribunal notes that the nominee did not provide bank statements for the period 4 May 2019 to 21 May 2019 and post 10 July 2019. Therefore, there is no evidence before the Tribunal to indicate the overall period of secondary employment.
Whilst the Tribunal acknowledges the evidence provided by the applicant and nominee in regard to the personal circumstances of the nominee, which contributed to the nominee’s absence from the position for approximately eight months and his subsequent part time employment in the position for a further approximate eight months, the Tribunal considers that the motivation and personal circumstances of the nominee are not germane to the question of 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. The issue under consideration by the Tribunal is whether there is a genuine need for the nominator (the applicant) to employ a paid employee to work in the position of Restaurant Manager at her restaurant in Barton.
In undertaking this assessment, the Tribunal has considered the term “genuine need”. The Tribunal notes that the Macquarie Dictionary Online defines the word “Genuine” to mean – ‘being truly such; real; authentic; properly so called; sincere; free from pretence or affection’. It also variously defines “Need” to mean ‘some necessity or want exists; a condition marked by the lack of something requisite; to be in need or want.’
Accordingly, given the evidence before it, the Tribunal observes the following factors detract from the applicant’s claims that she has a ‘genuine need’ to employ a paid employee to work in the position of Restaurant Manager, in her restaurant located at Barton.
In her oral and written evidence, the applicant claims she ‘desperately needs’ the nominee to manage and operate the restaurant, to allow her to look after her beauty business. In a Statutory Declaration declared 19 January 2021, the applicant submits that she genuinely needs the nominee to look after her restaurant business because of her mental health and workload and that her Doctor and Psychologist suggested she reduce the workload. The Tribunal has afforded consideration to the applicant’s evidence and has formed the view that if the applicant ‘s mental health has suffered adversely through her heavy workload and managing two businesses, the applicant would have seriously prevailed upon the nominee to return to work for her, rather than continue to allow the nominee to take leave of absence during which time he undertook alternate employment with another employer. Upon the nominee’s return to work after an approximate eight-month absence the applicant permitted the nominee to work in the position on a part time basis for approximately eight months. Whilst the Tribunal acknowledges the applicant’s evidence that from March 2020, COVID-19 restrictions impacted staffing of her restaurant, however as stated previously in this decision, there is no evidence before the Tribunal to corroborate the applicant and nominee’s evidence, of when the nominee did actually resume employment with the applicant and whether the employment was on a part time or full time basis.

On the basis of the evidence that the nominee was absent from the position for approximately eight months then worked in the position on a part time basis for approximately another eight months, the Tribunal is not satisfied that the evidence before it supports a requirement for the position to be filled on a fulltime basis and therefore has formed the view that the applicant has not demonstrated a genuine need to employ a paid employee to work in the position under the nominator’s direct control.
The Tribunal has considered the evidence before it, and does not consider the evidence before it, sufficient to support a finding that the applicant has demonstrated 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, particularly given that the evidence before the Tribunal suggests the position for approximately 16 months was not filled on a full time basis. The Tribunal therefore finds the applicant does not satisfy the requirements of r.5.19(4)(h)(ii) (B).
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).

[2] Macquarie Dictionary online (accessed 2 June 2020).

[2021] AATA 714

8 February 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Statutory Construction

Jurisdiction

Procedural Fairness