Alphazeta Cafe Pty Ltd (Migration)

[2021] AATA 4693

Alphazeta Cafe Pty Ltd (Migration) [2021] AATA 4693 (22 October 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Alphazeta Cafe Pty Ltd

CASE NUMBER:  1833384

HOME AFFAIRS REFERENCE(S):          BCC2017/2292014

MEMBER:Sean Baker

DATE:22 October 2021

PLACE OF DECISION:  Melbourne

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

Statement made on 22 October 2021 at 3:53pm

CATCHWORDS
MIGRATION – nomination – applicant failed to provide the information within the prescribed period – Direct Entry nomination stream – Cook – applicant had not demonstrated that the nominee would be employed on a full-time basis in the nominated position for at least 2 years – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 245AR, 359, 360, 363
Migration Regulations 1994, r 5.19

CASES

Hasran v MIAC [2010] FCAFC 40

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 Home Affairs on 24 October 2018 to reject the applicant’s application for approval of the nomination of a position in Australia under reg 5.19 of the Migration Regulations 1994 (Cth) (the Regulations).

2. The applicant applied for approval on 28 June 2017. The requirements for the approval of the nomination of a position in Australia are found in reg 5.19 of the Regulations which contains two alternative streams: a Temporary Residence Transition nomination stream (reg 5.19(3)) and a Direct Entry nomination stream (reg 5.19(4)). If the application is made in accordance with reg 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: reg 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 reg 5.19(4)(d) of the Regulations because the applicant had not demonstrated that the nominee would be employed on a full-time basis in the nominated position for at least 2 years.

5. On 8 July 2021 the Tribunal wrote to the review applicant pursuant to s 359 of the Act, inviting the review applicant to provide updated and current information establishing their ability to meet criteria in rr. 5.19(2) and (4), in writing.

6. The invitation was sent to the last address provided in connection with the review and advised that, if the information was not provided in writing by 22 July 2021, the Tribunal may make a decision on the review without taking further steps to obtain the information and the review 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. The review 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 review 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. The Tribunal has decided to proceed to decision without taking further steps to obtain the information.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. 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 reg 5.19(4), which is extracted in the attachment to this decision. For the nomination to be approved, all the requirements must be met.

10. The applicant is trading as ALPHAZETA CAFÉ lodged a nomination application under the Direct Entry stream of the Regional Sponsored Migration Scheme (RSMS) for the position of Cook, which the nominator has indicated relates to the Australian and New Zealand Australian Standard Classification of Occupations (ANZSCO) occupation of Cook (ANZSCO Occupation Code: 351411). The nomination was lodged in favour of Rupendra BOGATI (“the nominee”). The base salary offered to the nominee is $54,000 per annum.

    Term of employment of the visa holder: reg 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. It has been accepted that where a decision maker is assessing this criterion, it is open to consider whether the nominator’s business has the financial resources to meet the wages costs for the proposed employment over the relevant period.[1]

    [1] MIBP v Jayshree Enterprises Pty Ltd [2017] FCA 264

13. The delegate noted that the applicant had provided amongst other things, an Employment Contract, a Business Plan, and Business Activity Statements (BAS) for the September and December 2017 quarters.

14. The delegate noted that the employment contract indicated that the nominee is offered full time employment as a cook with an annual salary of $54,000 plus superannuation. The contract states that the position will be available for a period of at least 2 years upon a visa decision under the 187 RSMS visa. The delegate noted that the Business Plan contains financial goals, forecasts and expected cash flow figures; but the applicant had not explained how the figures were derived. The delegate noted that the sales figures reported in the BAS for the September and December 2017 quarters were significantly lower than the expected cash flow figures in the business plan. The delegate went on to consider that the inconsistences between the BAS and the expected cash flow figures raised concern with the reliability of the information in the business plan.

15. I have also had regard to the information provided to the Department in relation to the staffing of the café at that time, the size of the business at that time and the Regional Certifying Body advice. None of this information provides substantiated evidence of the financial capacity of the applicant to employ the nominee for 2 years with the possibility of extension.

16. The applicant sought review before the Tribunal and included a copy of the delegate’s decision record but did not provide further information to substantiate the claims to satisfy the criteria.

17. I note that the applicant was provided with an opportunity to provide information about the applicant’s ability to satisfy the criteria in rr. 5.19(2) and (4) by providing updated and current information in writing but did not respond. This included an invitation to provide information which would have addressed this criterion and the concern raised by the delegate.

18. On the information before me and considering the non-response of the applicant to the invitation, I find that the applicant has not demonstrated the financial capacity to be able to pay the nominated salary for the nominated position for at least 2 years.

19. On this basis I find that the applicant will not provide the nominee with employment in the nominated position for at least 2 years full time. On this basis I find that r. 5.19(4)(d)(i) is not met.

20. Accordingly, the requirement in reg 5.19(4)(d) is not met.

21. For the above reasons the Tribunal is not satisfied that the applicant meets the requirements of reg 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 reg 5.19(3). Accordingly, the nomination of the position cannot be approved. Therefore, the Tribunal must affirm the decision under review.

    DECISION

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

    Sean Baker
    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).