Arish & Aleesa Pty Ltd (Migration)

[2021] AATA 1715

Arish & Aleesa Pty Ltd (Migration) [2021] AATA 1715 (21 April 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Arish & Aleesa Pty Ltd

CASE NUMBER:  1812271

HOME AFFAIRS REFERENCE(S):          BCC2016/2466149

MEMBER:Nicola Findson

DATE:21 April 2021

PLACE OF DECISION:  Perth

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

Statement made on 21 April 2021 at 9:06am

CATCHWORDS
MIGRATION – Employer Nomination – approval of nominated position – Direct Entry Nomination – Café or Restaurant Manager – ‘dob in’ information – validity of s.376 certificate – genuine need for the position – Regional Certifying Body advice – small business supported by five positions – no one worked on a full-time basis in the position for the last three years – 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 Home Affairs on 11 April 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 25 July 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).

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)(h)(ii)(B) of the Regulations, because the delegate was not satisfied 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.

5. On 17 December 2020, co-owner and Director, Ms Nanu Maya Timilsina Gurung, appeared before the Tribunal, to give evidence and present arguments on behalf of the applicant.  

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

9. On 21 August 2020, the Tribunal wrote to the applicant, inviting it to provide further information to demonstrate all the relevant requirements of r.5.19(2) and (4). The applicant responded by the due date and provided to the Tribunal additional and updated evidence in support of the application, including but not limited to: ASIC records confirming the applicant’s company registration and the ABN record; Company Tax Returns for the years ended 30 June 2018 and 2019; Profit and Loss Statements for the years ended 30 June 2018 and 2019; Business Activity Statements (BAS) for the period 1 July 2018 to 30 June 2020; Current organisational structure chart; Job description for the nominated position; advertisements in relation to the nominated position dated 11 May 2016 and 26 August 2020; and photographs of the applicant business.

10. The applicant trades as a Café – ‘Delicious Fingers’ – in Melville, Western Australia, 6156.  In the application, the position of Cook (ANZSCO 351411) in relation to Mr Irfan Mehmood, is nominated for approval.  However, during the review process, the applicant’s representative, claimed in a written submission to the Tribunal that a mistake had been made in the online application, and that the position of Café or Restaurant Manager (rather than Cook) should have been selected as the position to be nominated for approval.  The Tribunal observes that the material lodged in support of the nomination application – including an employment contract between the applicant and nominee, position description, job advertisement, Regional Certifying Body advice, and a submission in support of the application - relates to the position of Café or Restaurant Manager (ANZSCO 141111). 

11. The Tribunal notes that on 25 September 2018, the Department issued a certificate pursuant to s.376 of the Act, purporting to cover ‘dob in’ information given to the Minister in confidence.  At the hearing, the Tribunal informed the applicant of the existence of the certificate and discussed the validity of the non-disclosure certificate with the applicant. When invited to do so, the applicant did not make any submission as to the validity of the certificate.  Notwithstanding the certificate, the applicant was advised of the gist of the information and given the opportunity to respond to adverse information that would be the reason or part of the reason for affirming the decision under review.   The Tribunal put to the applicant that information had been received from a source alleging that the nominee had paid the restaurant $50,000 to secure sponsorship, and that he had paid his taxes and wages to get pay slips, but he did not work at the restaurant at all.

12. By way of response, Ms Gurung strongly refuted the ‘dob in’ information. She indicated that both she and her husband had worked extremely hard to purchase the applicant business and to make it a success.  She said that it did not make any sense that she or her husband would take a relatively small amount of money (in comparison to the profitability of the business) from the nominee to secure a migration outcome for him, or to jeopardize their livelihood.  Ms Gurung told the Tribunal that the allegations were simply untrue.  She indicated to the Tribunal that the nominee had worked for the business for about 12 months during 2016 and 2017 and that after this time he had, for personal reasons, moved to Tasmania. She indicated that the Covid-19 pandemic had prevented him returning to Western Australia.  Ms Gurung did not seek additional time to respond to the adverse information.

13. The Tribunal decided that the s.376 is invalid because it is unsigned and unclear on its terms, merely describing the information covered by the certificate.  Notwithstanding its view that the certificate is invalid, the Tribunal ultimately decided not to release the allegation report in full to the applicant because it may have disclosed the identity of a person(s) who had an expectation of anonymity when providing an allegation(s) to the Department.

14. In any event, the Tribunal gives the allegation no weight as there is no other evidence before it to indicate that the allegation is of any substance.  In addition, the Tribunal is of the view that the material (including financial documents) provided to the Tribunal and the oral evidence given by Ms Gurung is inconsistent with the allegation received about the applicant.  The Tribunal does not rely on any of the particulars in the allegation to make its findings. 

    Tasks of the position, genuine need for the position and training requirements r.5.19(4)(h)

15. Regulation 5.19(4)(h) contains a number of alternative requirements. These are set out in detail in the attachment to the decision and those relevant to this matter are as follows:

    ·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.

    Genuine need for the paid position

16. Subparagraph 5.19(4)(h)(ii)(B) requires the Tribunal to be satisfied that there is a genuine need for the applicant, as the nominator, to employ a paid employee to work in the position under the nominator’s direct control.

17. At the hearing, Ms Gurung outlined to the Tribunal that she and her husband – Mr Dil Gurung - had been successfully operating the applicant business since they purchased it in early 2016.  She told the Tribunal, and the documentary evidence provided to the Tribunal (including an organisational chart and photographs) reflects, that the applicant business is a small business operating seven days a week, and has a full time Cook as well as four other positions - Kitchen Assistant, Kitchen Hand, Barista and a Waitstaff position - shared by casual and part time staff members. In addition to these employees, Ms Gurung told the Tribunal that her husband, a cook (who is currently suffering a medical condition preventing him from standing for long periods), assists in the kitchen when he is needed, mostly during the busy period between 9am and 12noon each day.  Ms Gurung also indicated to the Tribunal that she spends some time helping at the business when she is able to, while her children are at school.  She indicated that when she is at the business, among other things, she deals with customers, helps with clearing tables and dishes, checks supplies and pays invoices. She told the Tribunal that she also handles the ‘paperwork’ and accounts of the business. 

18. Ms Gurung’s evidence to the Tribunal was that the nominated position is a newly created position to enable both herself and her husband to spend more time at home with their children and to ensure the business continues to operate smoothly.  

19. Ms Gurung told the Tribunal that the applicant business had operated without anyone in the nominated role for the last few years, since the nominee moved to Tasmania. Ms Gurung told the that Tribunal that she had recently – unsuccessfully - re-advertised the position (on 26 August 2020), in an attempt to fill the position, to enable her to spend more time with her children and to help the business to grow.

20. The Tribunal raised its concerns about the need for the nominated position.  It indicated that even if it were to accept a mistake was made on the application and it was intended for the nominated position to be that of a Café or Restaurant Manager, there had been no one working on a full-time basis in the position for, at least, the last three years.  It also raised that on the financial material before it, despite not having a full time Café or Restaurant Manager, there had been steady and significant growth in the business since 2016.  Ms Gurung, by way of response, told the Tribunal that she really wanted a full-time manager in the business.  She indicated that she could not continue to give time to the business and believed a Manager would assist the business to grow even more.

21. On the basis of the evidence before it, the Tribunal accepts that the applicant intended to nominate the position of Café or Restaurant Manager for approval.  In considering whether there is a genuine need for the nominated position, the Tribunal has taken into account the information provided regarding the nature and size of the business and the explanation as to why there is a genuine need for a Café Manager in the business. The Tribunal notes that a Regional Certifying Body advice dated 2 August 2016 provided in support of the nomination application indicates, among other things, that there is a need for a paid employee in the nominated position.  However, the Tribunal has considered, and places greater weight on, additional and updated evidence before it that the applicant trades as a small business supported by five positions, in addition to its owners. It has considered that Mr Gurung assists in the kitchen when he is needed, and, Ms Gurung gives time to the business when she is able to, while her children are at school.  In addition, the evidence is that there has been no Café Manager working for the business on a full-time basis since 2017, and yet the profitability of the business has significantly increased since that time.

22. Having considered all of the evidence before it, the Tribunal is not satisfied the applicant business needs a position to undertake the duties of a Café or Restaurant Manager on a full-time basis.  The Tribunal therefore finds that there is not a genuine need to employ a paid employee to work in the position under the nominator’s direct control.

23. Accordingly, the requirements of r.5.19(4)(h) are not met.

24. 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

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

    Nicola Findson
    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).