1506826 (Migration)

[2016] AATA 4252

1506826 (Migration) [2016] AATA 4252 (17 August 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  MAHARAJAS KITCHEN PTY LTD

CASE NUMBER:  1506826

DIBP REFERENCE(S):  BCC2014/3392968

MEMBER:Dione Dimitriadis

DATE:17 August 2016

PLACE OF DECISION:  Sydney

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

Statement made on 17 August 2016 at 4:54pm

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 29 April 2015 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 10 December 2014. 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 Direct Entry Nomination stream.

4. The delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19(d) of the Regulations.

5. The applicant was represented in relation to the review by its registered migration agent.

6. On 1 August 2016 the Tribunal wrote to the applicant pursuant to s.359 of the Act, inviting the applicant to provide information to demonstrate that it meets the requirements of r.5.19(4) for approval of a nomination of a position in Australia or r.5.19(3).

7. The invitation was sent to the last e-mail address provided in connection with the review and advised that, if the information was not provided in writing by 15 August 2016, the Tribunal may make a decision on the review without taking further steps to obtain the information and 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 has not provided the information within the prescribed period and no extension has been granted. In these circumstances, s.359C applies and pursuant to s.360(3) the applicant is not entitled to appear before the Tribunal. The effect of s.363A of the Act is that if an applicant has no entitlement to a hearing, the Tribunal has no power to permit the applicant to appear: Hasran v MIAC [2010] FCAFC 40. The Tribunal has decided to proceed to decision without taking further steps to obtain the information.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. 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.

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

11. 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.

12. At the time of application, on 10 December 2014, the applicant stated that it trades as Maharajas Kitchen and the industry type is accommodation and food services. The applicant stated that the address where the nominated person (the nominee) will be employed is in Kempsey, New South Wales, postcode 2440.  The applicant stated in the application that it had two Australian employees and one foreign employee. The gross payroll expenditure of the business/organisation in the previous 12 months was “00000”. The gross expenditure on training Australian citizens or permanent residents in the previous 12 months was “00000”.

13. The applicant provided to the Department of Immigration (the Department) a number of documents including a menu, ASIC extract, Business Activity Statement, organisation chart, letter of engagement dated 5 December 2014 from the applicant to the nominee (Barinder Singh), position description, labour market information and financial statements for the year ended 30 June 2014.   

14. The Tribunal wrote to the applicant on 1 August 2016 and invited the applicant to provide information to demonstrate that it meets all of the requirements of r.5.19(4) for approval of the nomination of a position in Australia in the Direct Entry nomination stream. The Tribunal informed the applicant in its letter that the application was lodged on 10 December 2014. The Tribunal requested that the applicant provide current information that the appointment will provide the proposed employee with at least 2 years employment without any express exclusion of the possibility of extending the period of employment and to provide details of the salary and conditions currently applying to or proposed for the nominated position of Café or Restaurant Manager (ANZSCO 141111). The Tribunal also requested that the applicant bank account statements for the business for the last 6 months, Business Activity Statements for the last 12 months and recent financial statements for the business.

15. The applicant did not respond to the Tribunal’s letter requesting updated information. No current evidence has been provided in support of the application during this review.

16. The delegate refused to approve the nomination because the applicant did not satisfy r.5.19(4)(d). The applicant was aware that this was the reason for the refusal and provided a copy of the delegate’s decision to the Tribunal at the time of lodging the application for review. The Tribunal wrote to the applicant and requested that it provide updated information to show that it meets r.5.19(4).

17. Although a letter of engagement dated 5 December 2014 and information about the financial circumstances of the applicant were provided to the Department, this material is now quite out of date. The applicant did not provide to the Tribunal any recent information that the nominee will be employed on a full-time basis in the position for at least 2 years. No financial documents were provided to the Tribunal. No recent financial evidence has been provided to the Tribunal. The applicant did not respond to the Tribunal’s letter of 1 August 2016 inviting the applicant to demonstrate that it meets the requirements of r.5.19(4).

18. The Tribunal has considered the evidence but is not satisfied that the employee (the nominee) will be employed on a full-time basis in the position for at least 2 years. The Tribunal is not satisfied that the applicant meets r.5.19(4)(d)(i).

19. Accordingly, the requirement in r.5.19(4)(d) is not met.

20. 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

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

    Dione Dimitriadis
    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;

    (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 at a skill level of ANZSCO skill level 1, 2 or 3;

    (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).