A.J BROWN & FRONTRUNNER CONSOLIDATED HOLDINGS PTY LTD & MARLAS PTY. LTD. T/A UNIQUE LUNCH STOP (Migration)

[2020] AATA 1616

A.J BROWN & FRONTRUNNER CONSOLIDATED HOLDINGS PTY LTD & MARLAS PTY. LTD. T/A UNIQUE LUNCH STOP (Migration) [2020] AATA 1616 (14 May 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  A J BROWN & FRONTRUNNER CONSOLIDATED HOLDINGS PTY LTD & MARLAS PTY LTD (T/A UNIQUE LUNCH STOP)

CASE NUMBER:  1817187

DIBP REFERENCE(S):  BCC2016/3238293

MEMBER:Stavros Georgiadis

DATE:14 May 2020

PLACE OF DECISION:  Adelaide

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

Statement made on 14 May 2020 at 3:19pm

CATCHWORDS
MIGRATION – Employer Nomination – approval of nominated position – Direct Entry Nomination stream – Retail Manager – actively and lawfully operating – ownership of company had transferred to a different entity – ABN cancelled – falling out between partners of the partnership – decision under review affirmed

LEGISLATION
Migration Regulations 1994 (Cth), r 5.19

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 May 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 29 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).

3. In this case, the applicant has applied for approval of a nomination, seeking to satisfy the criteria in the Direct Entry Nomination stream.

4. The delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19(4) of the Regulations, specifically cl.5.19(4)(b)(i), as the applicant was no longer operating as a legal entity because ownership of the company had transferred to a different entity.

5. Mr Matthew Merrick Brown appeared before the Tribunal on 9 April 2020 to give evidence and present arguments on behalf of the applicant.  He is Director of FRONTRUNNER CONSOLIDATED HOLDINGS PTY LTD who is one of the three partners of the applicant partnership A.J BROWN, and FRONTRUNNER CONSOLIDATED HOLDINGS PTY LTD, and MARLAS PTY LTD. The Tribunal also received oral evidence from Ms Sumanpreet Kaur Bhattal who is the person nominated for the position of Retail Manager ANZSCO 142111 in the applicant’s business at the time of application.  The hearing was conducted as a combined hearing with related matter AAT casefile 1925371.

6. The applicant was represented in relation to the review by its registered migration agent. The representative attended the Tribunal hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. 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.

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

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

10. As described above, the applicant is a partnership comprising of A J Brown & Frontrunner Consolidated Holdings Pty Ltd & Marlas Pty Ltd.  The oral evidence given is that the applicant has operated under the trading name, Unique Lunch Stop in South Australia for a number of years. The applicant’s Australian Business Number (ABN) is identified in the application as 45 675 588 357. 

11. At the hearing, the Tribunal explored whether the applicant is actively, lawfully and directly operating a business in Australia.  During the hearing, the applicant explained to the Tribunal there had been a falling out between members of the partnership a number of years ago and that since October 2016 the business has been operating solely under Mr Matthew Merrick Brown’s own company, Frontrunner Consolidated Holdings Pty Ltd (ABN 27 096 285 424). A fresh RSMS nomination application was lodged under that company entity (being AAT casefile 1925371) with the nominated position and nominee, Ms Sumanpreet Kaur Bhattal remaining the same, which she confirmed at the hearing.

12. The Tribunal raised concerns regarding the issue of whether, for the purposes of meeting the criteria in r.5.19(4)(b), the applicant continued to actively and lawfully operate the business given Frontrunner Consolidated Holdings Pty Ltd is a different legal entity to that of the applicant partnership, and asked what had happened with the partnership at that time. In response, Mr Matthew Merrick Brown explained that the partnership had ceased to operate from the time his company took over the business operations in October 2016. The Tribunal accepts the applicant’s oral evidence and places weight on this as it is consistent with the Australian Government ABN Lookup historical details for ABN 45 675 588 357 which record that the applicant’s ABN status was cancelled from 30 September 2016. [>

    Considering the applicant’s accepted oral evidence above, the Tribunal finds that the applicant is no longer actively and lawfully operating a business in Australia as therefore, the requirement in r.5.19(4)(b)(i) is not met.

13. Accordingly, the applicant does not meet 5.19(4).

14. 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

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

    Stavros Georgiadis
    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).