AUSBD PTY LTD (Migration)

[2019] AATA 6204

AUSBD PTY LTD (Migration) [2019] AATA 6204 (31 October 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  AUSBD PTY LTD

CASE NUMBER:  1715201

DIBP REFERENCE(S):  BCC2017/31418

MEMBER:Michael Cooke

DATE:31 October 2019

PLACE OF DECISION:  Sydney

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

Statement made on 31 October 2019 at 3:42pm

CATCHWORDS

MIGRATION – nomination of a position (employer nomination) – Temporary Residents Transition Nomination stream – employment in the position for at least 2 years previously - actively and lawfully operating business in Australia – business closed for fire and renovations – standard business sponsor – decision under review affirmed          

LEGISLATION

Migration Act 1958, s 140GB
Migration Regulations 1994, rr 1.20, 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 10 July 2017 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 4 January 2017. 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 Temporary Residence Transition nomination stream.

4. The delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19(3)(d)9(i) of the Regulations because the nominator could not establish to the delegate’s satisfaction that the nominee would be employed on a full-time basis in the position for a t least 2 years.

5. The applicant (through his general manager Mr Alan Khan) appeared before the Tribunal on 14 October 2019 to give evidence and present arguments. The Tribunal also received oral evidence from the nominated persons:  Mr Pradeep Patel and Mr Hirenkumar Patel.

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

7. The Tribunal invited the applicant at the hearing to forward a further submission addressing the contemporary status of his business pursuant to reg.5.19.

8. The only information which was forthcoming at time of writing was a list of the employees in 2015 and 2016 and their visa status (T1, f.59).

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 Temporary Residence Transition nomination stream set out in r.5.19(3), which is extracted in the attachment to this decision. For the nomination to be approved, all the requirements must be met.

    Status of the nominator: r.5.19(3)

11. Regulation 5.19(3)(b) requires the nominator to be or have been the relevant standard business sponsor who is actively and lawfully operating a business in Australia. In addition, the nominator, as that standard business sponsor, must not have met certain criteria relating to the operation of a business overseas, in the most recent sponsorship approval.

    Evidence and findings and reasons in relation to whether the nominator:

    ·is/was the standard business sponsor who last identified the holder of the Subclass 457 visa in a nomination made under s.140GB of the Act or under r.1.20G or 1.20GA (pre 14 September 2009); and

    ·if so, is actively and lawfully operating a business in Australia; and

    ·if so, was not granted the most recent business sponsorship on the basis of meeting either r.1.20DA, r.2.59(h) or r.2.68(i).

12. The Tribunal was informed by the applicant that - following a fire and injury to staff his business (a restaurant) – it had closed in December 2017. The restaurant shortly thereafter re-opened but then closed again summarily for business and an (ongoing) renovation began in May 2018. It had not reopened subsequently. The applicant’s spokesperson Mr Khan informed the Tribunal that the plan was to open the restaurant for post-Christmas 2019 trading. Various photographs have been submitted of the renovation of the restaurant along with the menu.

13. However, this situation, it appears, has been ongoing since 2018. Furthermore, the Tribunal informed Mr Khan and Ms Tong that it was unaware of any current and necessary information pursuant to reg.5.19 before it. This information was important. It would allow the Tribunal to decide whether to approve the nomination or not. The Tribunal decided to allow the parties a further opportunity to furnish financial and organizational details to the Tribunal in support of the nomination. The Tribunal then spoke to the two ‘nominated persons’ (Subclass 186 visa applicants) who informed that due to the temporary closure of the restaurant they had to seek employment elsewhere or draw on financial resources from family members.

14. The Tribunal is not satisfied from the evidence before it (drawn which from oral evidence and a submission from the applicant AUSBD Pty Ltd) that the nominee is “actively…operating a business in Australia’ being the ‘Spice of Life’ restaurant at Harris Park Sydney. The fact that the applicant did not provide the requested information sought by the Tribunal on 14 October is a further indication of this finding at time of writing.

15. Given the above, the requirement in r.5.19(3)(b)(ii) is not met.

16. For the above reasons the Tribunal is not satisfied that the applicant meets the requirements of r.5.19(3). The applicant has not sought to satisfy the criteria in Direct Entry nomination stream, and as such has not met the requirements in r.5.19(4). Accordingly, the nomination of the position cannot be approved. Therefore, the Tribunal must affirm the decision under review.

    DECISION

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

    Michael Cooke
    Senior 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.

    Temporary Residence Transition nomination

    (3)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 person who holds a Subclass 457 … visa granted on the basis that the person satisfied the criterion in subclause 457.223(4) of Schedule 2; and

    (iii)     identifies an occupation, in relation to the position, that:

    (A)is listed in ANZSCO; and

    (B)has the same 4-digit occupation unit group code as the occupation carried  out by the holder of the Subclass 457 … visa; and

    (b)the nominator:

    (i)       is, or was, the standard business sponsor who last identified the holder of the Subclass 457 … visa in a nomination made under section 140GB of the Act or under regulation 1.20G or 1.20GA as in force immediately before 14 September 2009; and

    (ii)      is actively and lawfully operating a business in Australia; and

    (iii)     did not, as that standard business sponsor, meet regulation 1.20DA, or paragraph 2.59(h) or 2.68(i), in the most recent approval as a standard business sponsor; and

    (c)either:

    (i)       both of the following apply:

    (A)in the period of 3 years immediately before the nominator made the application, the holder of the Subclass 457 …visa identified in subparagraph (a) (ii) has:    

    (I)held one or more Subclass 457 visas for a total period of at least 2 years; and

    (II)been employed in the position in respect of which the person holds the Subclass 457 … visa for a total period of at least 2 years (not including any period of unpaid leave);

    (B)the employment in the position has been full-time, and undertaken in Australia; or

    (ii)      all of the following apply:

    (A)the person holds the Subclass 457 … visa on the basis that the person was identified in a nomination of an occupation mentioned in sub-subparagraph 2.72(10)(d)(iii)(B) or sub-subparagraph 2.72(10)(e)(iii)(B);

    (B)the nominator nominated the occupation;

    (C)the person has been employed, in the occupation in respect of which the person holds the Subclass 457 … visa, for a total period of at least 2 years in the period of 3 years immediately before the nominator made the application; and

    (d)for a person to whom subparagraph (c)(i) applies:

    (i)       the person will be employed on a full-time basis in the position for at least 2 years; and

    (ii)      the terms and conditions of the person’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)       the nominator:

    (A)fulfilled any commitments the nominator made relating to meeting the nominator’s training requirements during the period of the nominator’s most recent approval as a standard business sponsor; and

    (B)complied with the applicable obligations under Division 2.19 relating to the nominator’s training requirements during the period of the nominator’s most recent approval as a standard business sponsor; or

    (ii)      it is reasonable to disregard subparagraph (i); and

    Note Different training requirements apply depending on whether the application for approval as a standard business sponsor was made before 14 September 2009 or on or after that date.

    (g)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

    (h)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.