Ambrosia Indian Restaurant Pty Ltd (Migration) - [2023] AATA 2848

Ambrosia Indian Restaurant Pty Ltd (Migration) [2023] AATA 2848 (14 August 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Ambrosia Indian Restaurant Pty Ltd
REPRESENTATIVE:  Mr Joseph Chan
CASE NUMBER:  1927893
HOME AFFAIRS REFERENCE(S):          BCC2019/2490199
MEMBER:Terrence Baxter
DATE:14 August 2023
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Statement made on 14 August 2023 at 11:31am
CATCHWORDS
MIGRATION – nomination – Temporary Residence Transition stream – Cook – position located in regional Australia– nominee was employed in the nominated position in a full time capacity – no less favourable terms and conditions of employment – no adverse information known to Immigration – genuine need for the nominator to employ a paid employee to work in the position – decision under review set aside
LEGISLATION
Migration Act 1958, ss 140, 245
Migration Regulations 1994, rr 2.72, 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 19 September 2019 to reject the applicant’s application for approval of the nomination of a position under reg 5.19 of the Migration Regulations 1994 (Cth) (the Regulations).
The applicant, Ambrosia Indian Restaurant Pty Ltd, applied for approval on 11 May 2019. The applicant nominated Ms Damanpreet Kaur (the nominee) in the position of Cook. The applicant operates a restaurant providing Indian cuisine in Gympie, Queensland. The applicant has employed the nominee as a Cook since 2013.
The requirements for the approval of the nomination of a position in Australia are found in reg 5.19 of the Regulations, which contains general requirements for approval and additional requirements for approval set out in three alternative streams: a Temporary Residence Transition stream, a Direct Entry stream and a Labour Agreement stream. If the application meets the requirements for approval, then the application must be approved: reg 5.19(3)(a). If any of the requirements are not met, then the application must be refused: reg 5.19(3)(b).
In this case, the applicant has applied for approval of a nomination, seeking to satisfy the criteria in the Temporary Residence Transition stream. A nomination that relates to a visa in the Temporary Residence Transition stream must meet the requirements of reg 5.19(5); reg 5.19(4)(e).
The delegate refused the application on the basis the applicant’s nomination did not satisfy reg 5.19(5)(n) of the Regulations because the delegate found that the applicant had not demonstrated that it had the capacity to employ the nominee for at least two years and to pay her at least the annual market salary rate (AMSR) for the occupation in each year. Consequently, the delegate found that the requirements of reg 5.19(4)(e) had not been met.
The applicant lodged an application for review of the delegate’s decision with the Tribunal on 3 October 2019.
Mr Lovedeep Singh and the nominee, the directors of the applicant, appeared before the Tribunal by video conference on 26 July 2023…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2023] AATA 2848
Decision Date: 14 August 2023

CaseChat Overview and Summary

The Administrative Appeals Tribunal reviewed a decision concerning Ambrosia Indian Restaurant Pty Ltd's nomination for a Temporary Residence Transition stream visa for a cook. The dispute arose from the refusal of the nomination, which the restaurant sought to have set aside. The Tribunal considered whether the restaurant had met the requirements for nominating an employee for this visa subclass.

The primary legal issues before the Tribunal were whether the nominator, Ambrosia Indian Restaurant Pty Ltd, had satisfied the various regulatory requirements for a valid nomination under the migration regulations. Specifically, the Tribunal had to determine if the nominator had a satisfactory record of compliance with employment laws, if any mandatory licensing or registration requirements were met, if training contribution debts had been paid, and if the nominated employee held the appropriate visa at the time of application. The Tribunal also considered the genuine need for the position and whether the nominee was employed under no less favourable terms and conditions.

The Tribunal reasoned that the restaurant had demonstrated a genuine need for a paid cook, particularly given its operational capacity and increased sales, even during periods of lockdown. It found that the nominee was employed full-time in the nominated position with no less favourable terms and conditions. Crucially, the Tribunal was satisfied that the nominator had a satisfactory record of compliance with employment laws, that no mandatory licensing was required for the cook position in Queensland, that all training contribution charges had been paid, and that the nominee held the requisite visa at the time of application. The Tribunal also noted the absence of adverse information known to the Department of Immigration.

Consequently, the Tribunal found that Ambrosia Indian Restaurant Pty Ltd had met the necessary regulatory requirements for the nomination. The decision under review was set aside, and the Tribunal was satisfied that the nomination met the criteria for approval.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The restaurant was forced to close for dine-in patrons during lockdowns associated with the COVID-19 pandemic. The restaurant continued to provide takeaway meals and meals via delivery service during lockdowns and has since returned to full trading. The applicant’s sales have increased significantly in the 2023 financial year.Further evidence provided by the applicant During and after the hearing, the applicant provided to the Tribunal the following documents:a.Business activity statements for the period from July 2017 to March 2023.b.An undated submission from the representative.c.The passport, a current payslip and a VEVO search in respect of the applicant’s employee Mr Robin Singh.d.An employment contract of the nominee dated 31 July 2023.Application requirements – reg 5.19(4)(a) Regulation 5.19(4)(a) requires that an application for approval be made in accordance with a number of requirements set out in reg 5.19(2). Regulation 5.19(2) requires that an application must:·be made in accordance with approved form 1395 (Internet);·identify the position;·identify a person in relation to the position;·identify an occupation in relation to the position,·identify the subclass and stream to which the nomination relates;·be accompanied by the fee mentioned in reg 5.37; and·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 s 245AR(1) of the Migration Act 1958 (Cth) (the Act). Applications made on or after 12 August 2018 must also be accompanied by any nomination training contribution charge the nominator is liable for, and identify the annual turnover for the nomination: regs 5.19(2)(fa), (fb). The liability is imposed by s 140ZM of the Act and the charge is imposed by the Migration (Skilling Australians Fund) Charges Act 2018 (Cth), with the amount specified in the Migration (Skilling Australians Fund) Charges Regulations 2018 (Cth) (Charges Regulations). ‘Annual turnover’ is defined in the Charges Regulations for liable persons operating a business in Australia as the total ordinary income (within the meaning of the Income Tax Assessment Act 1997 (Cth)) derived in the most recent income year (within the meaning of the Income Tax Assessment Act 1997 (Cth)) ending before the day on which the nomination application is made. In any other case, it is defined as the total income the person liable derived in the ordinary course of business in the most recent financial year ending before the day on which the nomination application is made. Further, if the subclass identified in the application is Subclass 187, the application must be made before 16 November 2019, unless the exception in reg 5.19(2A) applies. The exception applies to an identified person who is a ‘transitional 457’ or ‘transitional 482’ worker at the time of application. This means, respectively, a person who on or after 18 April 2017 held a Subclass 457 visa, and a person who on 20 March 2019 held a Subclass 482 visa in the Medium-term stream or was an applicant for a Subclass 482 visa in the Medium-term stream that was subsequently granted: reg 1.03.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Given the above findings, the Tribunal is satisfied that reg 5.19(4)(b) is met.Mandatory licencing, registration and memberships – reg 5.19(4)(c) Regulation 5.19(4)(c) provides that if it is mandatory in the State or Territory in which the position is located for a person to hold a licence or a registration of a particular kind, or be a member (or a member of a particular kind) of a particular professional body, to perform tasks of the kind to be performed in the occupation, the identified person is, or is eligible to become, the holder of the licence, the holder of the registration, or a member of the body, at the time of application. In this instance, the relevant State or Territory is Queensland, the relevant occupation is Cook and the date of application is 11 May 2019. The Tribunal is satisfied that it is not mandatory for the nominee to hold a licence for the position of Cook. Given the above findings, the Tribunal is satisfied that reg 5.19(4)(c) is met.Satisfactory compliance with employment laws – reg 5.19(4)(d) Regulation 5.19(4)(d) requires that the nominator has a satisfactory record of compliance with the laws of the Commonwealth, and of each State or Territory in which the nominator operates a business and employs employees in the business, relating to employment. There is no evidence before the Tribunal to suggest that the applicant has an unsatisfactory record of compliance with workplace relations laws of the Commonwealth or any State or Territory in which the applicant operates a business. The Tribunal is satisfied that the applicant does have a satisfactory record of compliance. Given the above findings, the Tribunal is satisfied that reg 5.19(4)(d) is met.Training contribution debts – reg 5.19(4)(da) Regulation 5.19(4)(da) applies to applications made on or after 12 August 2018. It requires that any debt due by the nominator as mentioned in s 140ZO of the Act, relating to recovery of nomination training contribution charges and penalties for underpayments, has been paid in full. The records of the Department confirm that the nomination training contribution charge payable by the applicant has been paid in full. The Tribunal is satisfied that there is no debt due by the applicant relating to recovery of nomination training contribution charges or penalties for underpayment. Given the above findings, the Tribunal is satisfied that reg 5.19(4)(da) is met.Visa held by identified person at time of application – reg 5.19(5)(a) Regulation 5.19(5)(a) requires that the identified person holds a visa of a particular kind at the time the application for approval of the nominated position was made. There are several alternatives including:·a Subclass 457 visa granted on the basis of satisfying the Standard Business Sponsorship stream (cl 457.223(4)); or·a Subclass 482 visa in the Medium-term stream; or·for persons specified in a legislative instrument, a Subclass 482 visa in the Short-term stream; or·if the last substantive visa held was one of the above three visa types, a bridging visa granted on the basis they are an applicant for one of those visa types (for a Subclass 482 in the Short-term stream, only those persons specified in the legislative instrument), or for a Subclass 186 or 187 visa.