B & E POULTRY HOLDINGS PTY LTD (Migration)

[2023] AATA 2876

B & E POULTRY HOLDINGS PTY LTD (Migration) [2023] AATA 2876 (17 August 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  B & E POULTRY HOLDINGS PTY LTD

REPRESENTATIVE:  Mr Guanheng Liang

CASE NUMBER:  2202521

HOME AFFAIRS REFERENCE(S):          BCC2020/1512935

MEMBER:Terrence Baxter

DATE:17 August 2023

PLACE OF DECISION:  Brisbane

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

Statement made on 17 August 2023 at 9:24am

CATCHWORDS 
MIGRATION – nomination – Temporary Residence Transition stream – Contract Administrator– applicant failed to provide the requested information within the prescribed period – lack of any current information about the nominee – decision under review affirmed 

LEGISLATION
Migration Act 1958, ss 65, 359, 360, 363
Migration Regulations 1994, r 5.19

CASES

Hasran v MIAC [2010] FCAFC 40
Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617
Kaur v Minister for Immigration and Border Protection [2014] FCA 915
Manna v Minister for Immigration and Citizenship [2012] FMCA 28

Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179
Vishnumolakala v Minister for Immigration [2006] FMCA 1209

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 9 February 2022 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).

2. The applicant, B & E Poultry Holdings Pty Ltd, applied for approval on 8 May 2020. The applicant nominated Mr Gurlal Singh (the nominee) in the position of Contract Administrator. 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).

3. In this case, the applicant has applied for approval of a nomination, seeking to satisfy the criteria in the Temporary Residence Transition stream. Regulation 5.19(4)(e) requires that, if the nomination relates to a visa in the Temporary Residence Transition stream, the requirements of reg 5.19(5) are met.

4. The delegate refused the application on the basis that the applicant’s nomination did not satisfy reg 5.19(4)(b) of the Regulations because the delegate found that there was adverse information, as defined in the Regulations, known to Immigration about the applicant or a person associated with the applicant and that it was not reasonable to disregard the adverse information.

5. The applicant lodged an application for review of the delegate’s decision with the Tribunal on 24 February 2022.

6. The applicant was represented in relation to the review by its legal practitioner Mr Guanheng Liang of Vision Legal Pty Ltd.

7. On 13 July 2023, the Tribunal wrote to the applicant pursuant to s 359(2) of the Migration Act 1958 (Cth) (the Act) inviting it to provide current information addressing the relevant criteria under reg 5.19(4) and (5) of the Regulations. The Tribunal is satisfied that this invitation was properly dispatched to the applicant’s email address. The applicant failed to provide the information within the prescribed time for responding to the invitation. No response to that invitation has been received by the Tribunal at the time of this decision.

8. Where an applicant is invited to provide further information in accordance with s 359(2) of the Act, and fails to do so within the prescribed period, the Tribunal may make a decision on the review without taking any further action to obtain the information, according to s 359C(1) of the Act. In these circumstances, the applicant is not entitled to appear before the Tribunal in accordance with s 360(3) of the Act. Of note, the effect of s 363A of the Act is that if an applicant has no entitlement to a hearing, the Tribunal has no power to permit the applicant to appear before it, as outlined in the Full Federal Court authority in the matter of Hasran v MIAC [2010] FCAFC 40.

9. Although the applicant has not requested this, the Tribunal has also considered whether it would be appropriate to adjourn the application for review under s 363(1)(b) of the Act to allow the applicant additional time in which to provide evidence to support its application for review. In doing so, it has paid careful regard to the guidance in the decisions of Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617 and Manna v Minister for Immigration and Citizenship [2012] FMCA 28 where the Courts held that the Tribunal is not required to indefinitely defer its decision-making process.

10. The Tribunal has taken into account that the applicant has been aware since 9 February 2022 of the reasons for the nomination application being refused and also that the implications of not providing the information requested in the invitation from the Tribunal of 13 July 2023 were set out in that correspondence.

11. In these circumstances, the Tribunal considers that the applicant has had sufficient time in which to address the central issues arising in the application for review. Accordingly, the Tribunal has decided not to exercise its discretion under s 363(1)(b) of the Act to adjourn the review any further to allow the applicant more time in which to demonstrate that it meets the relevant criteria under reg 5.19(4) and (5) of the Regulations.

12. Following careful consideration, the Tribunal has decided to proceed to make a decision on this review without taking any further action to obtain the information referred to in the aforementioned invitation and having due regard to the documentary material before it.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

14. The issue in this case is whether the applicant meets the general requirements for approval of the nomination set out in reg 5.19(4) and the stream specific requirements set out in reg 5.19(5), which are extracted in the attachment to this decision. For the nomination to be approved, all the requirements must be met.

    Evidence presented

15. The applicant produced to the Department of Home Affairs (the Department) the following documents:

    a.The nomination application.

    b.An ASIC organisation extract in respect of the applicant dated 8 November 2021.

    c.A lease in favour of the applicant.

    d.A job advertisement for the position.

    e.Market salary evidence.

    f.The nominee’s PAYG payment summary for the 2018 financial year.

    g.Payslips of the nominee.

    h.The nominee’s superannuation statements for the period from January 2018 to June 2021.

    i.Tax returns of the B & E Poultry Trading Trust (the Trust) for the 2018 and 2019 financial years.

    j.ASIC evidence of registration of the business name B & E Foods held by the trustee for the Trust dated 18 April 2020.

    k.An undated employment certificate issued by the applicant in respect of the nominee.

    l.A financial statement of the Trust for the 2019 financial year.

    m.Business activity statements of the trustee for the Trust for periods from July 2018 to July 2021.

    n.An employment contract dated 30 April 2020.

    o.A position description.

    p.The trust deed of the Trust dated 2 June 2009.

    q.An ASIC current and historical organisation extract in respect of the applicant dated 31 January 2018.

    r.The nominee’s taxation assessment for the 2021 financial year.

    s.A submission from the applicant dated 13 December 2021.

16. The applicant provided to the Tribunal a copy of the delegate’s decision.

    Status of the nominator – reg 5.19(5)(h)

17. Regulation 5.19(5)(h)(i) requires that the applicant was the standard business sponsor who last identified the nominee in a nomination approved under s 140GB of the Act.

18. The records of the Department confirm that the applicant was the standard business sponsor who last identified the nominee in a nomination under s 140GB of the Act.

19. Regulation 5.19(5)(h)(ii) then requires that the applicant is actively and lawfully operating a business in Australia.

20. The Tribunal has considered the Department’s policy on the issue of active operation. The Tribunal is not bound by the policy but the Tribunal notes the finding of Brennan J in Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179 that the Tribunal should adopt the following practice: ‘When the Tribunal is reviewing the exercise of a discretionary power reposed in a Minister, and the Minister has adopted a general policy to guide him in the exercise of the power, the Tribunal will ordinarily apply that policy in reviewing the decision, unless the policy is unlawful or unless its application tends to produce an unjust decision in the circumstances of the particular case’.

21. The Tribunal notes the comments of the Court in Vishnumolakala v Minister for Immigration [2006] FMCA 1209 at [27] that the policy is no more than an advisory administrative guide to delegates in relation to their application of the legislation, and that, as a matter of law, it could have no higher status. The Tribunal finds that the same rule applies to the Tribunal’s consideration of the policy. However, the Tribunal agrees that the matters set out in the policy for consideration when assessing this requirement are appropriate and considers that it is reasonably open to the Tribunal to assess the requirement having regard to those matters.

22. The policy states that a business that has been actively operating for a period of more than 12 months should be able to provide appropriate financial documentation to support their claims of active operation. The applicant stated in the nomination application that it had been operating in Australia for 11 years. The policy states that such businesses should be able to submit a balance sheet for the most recently concluded fiscal year (with comparative figures for the previous fiscal year) and a profit and loss statement (statement of performance) for the most recently concluded fiscal year, with comparative figures for the previous fiscal year or business tax returns for the most recently concluded fiscal year.

23. In the Tribunal’s invitation to provide information dated 13 July 2023, the applicant was advised as follows:

    In order for the nomination of a position to be approved, the Tribunal must be satisfied that all of the relevant criteria in r.5.19 of the Regulations are met at the time of its decision. As the application for nomination was made under the Temporary Residence Transition nomination stream, the relevant criteria are in rr.5.19(4) and (5) of the Regulations.

24. In that invitation, the applicant was invited to provide:

    The applicant’s lodged tax returns for the last two full financial years,
    business activity statements that have been lodged with the ATO for the last 24 months and financial statements prepared in accordance with Australian accounting standards, including profit and loss statements and balance sheets, for the most recent two financial years.

25. The nomination application was lodged by the applicant B & E Poultry Holdings Pty Ltd without any reference to a Trust. However, the application states that the applicant trades as B & E Foods with ABN 20 195 957 269. The applicant provided evidence to the Department that the business name was held by the Trust and that the applicant was appointed as trustee of the Trust on 2 June 2009. The financial documents all relate to the Trust with the same ABN 20 195 957 269. The employer named in the employment agreement is the applicant as trustee of the Trust. The Tribunal finds that the applicant made the nomination as trustee of the Trust.

26. The most recent financial statement and tax return provided by the applicant to the Department was for the 2019 financial year and the most recent business activity statement was for the month of July 2021. The applicant has not produced to the Tribunal any contemporary financial statements regarding its business activities or tax returns.

27. The Department’s policy states that, in assessing the requirement for lawful operation for a company, the decision maker should be satisfied that the registered name of the applicant as indicated in the nomination application is the name that is registered with ASIC. The most recent evidence produced by the applicant to the Department as to its registration was dated 8 November 2021. The invitation issued pursuant to s 359(2) of the Act invited the applicant to provide current and historical evidence about the company, such as an ASIC current and historical extract. No contemporary evidence of that nature has been provided to the Tribunal.

28. Having regard to the lack of contemporary evidence before the Tribunal, bearing in mind that the applicant has failed to respond to the invitation issued pursuant to s 359(2) of the Act, the Tribunal is not satisfied that at the time of this decision the applicant is actively and lawfully operating a business in Australia. Regulation 5.19(5)(h)(ii) is therefore not met.

29. Given the above findings, the Tribunal is not satisfied that reg 5.19(5)(h) is met. Accordingly, reg 5.19(4)(e) is not met.

30. For these reasons the Tribunal is not satisfied that the applicant meets the requirements of reg 5.19. Accordingly, reg 5.19(3)(b) requires that the nomination must be refused. The decision under review must be affirmed.

    DECISION

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

    Terrence Baxter
    Member

    
    

    ATTACHMENT – EXTRACTS FROM THE MIGRATION REGULATIONS 1994

    5.19Approval of nominated positions—Subclass 186 (Employer Nomination Scheme) visa and Subclass 187 (Regional Sponsored Migration Scheme) visa

    Application

    (1)A person (the nominator) (including a partnership or unincorporated association) may apply to the Minister for approval of the nomination of a position in Australia.

    (2)The application must:

    (aa) if the application identifies a Subclass 187 (Regional Sponsored Migration Scheme) visa–be made before 16 November 2019 (subject to subclause (2A)); and

    (a)be made in accordance with approved form 1395 (Internet); and

    (b)identify the position; and

    (c)identify a person (the identified person) in relation to the position; and

    (d)identify an occupation in relation to the position; and

    (e)identify the subclass and stream to which the nomination relates, which must be one of the following:

    (i)a Subclass 186 (Employer Nomination Scheme) visa in the Temporary Residence Transition stream;

    (ii)a Subclass 187 (Regional Sponsored Migration Scheme) visa in the Temporary Residence Transition stream;

    (iii)a Subclass 186 (Employer Nomination Scheme) visa in the Direct Entry stream;

    (iv)Subclass 187 (Regional Sponsored Migration Scheme) visa in the Direct Entry stream;

    (v)a Subclass 186 (Employer Nomination Scheme) visa in the Labour Agreement stream; and

    (f)be accompanied by the fee mentioned in regulation 5.37; and

    (fa)be accompanied by any nomination training contribution charge the nominator is liable to pay in relation to the nomination; and

    (fb)identify the annual turnover (within the meaning of the Migration (Skilling Australians Fund) Charges Regulations 2018) for the nomination; and

    (g)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.

    (2A) Paragraph (2)(aa) does not apply if:

    (a) the application identifies a Subclass 187 (Regional Sponsored Migration Scheme) visa in the Temporary Residence Transition stream; and

    (b) the identified person is a transitional 457 worker or transitional 482 worker at the time the application is made.

    Approval of nomination

    (3)The Minister must, in writing:

    (a)approve the nomination if the Minister is satisfied that the requirements set out in subregulation (4) are met; or

    (b)otherwise—refuse to approve the nomination.

    Requirements for approval—general

    (4)The requirements to be met for the nomination to be approved are as follows:

    (a)the application is made in accordance with subregulation (2);

    (b)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;

    (c)if it is mandatory, in the State or Territory in which the position is located, for a person to:

    (i)hold a licence of a particular kind; or

    (ii)hold registration of a particular kind; or

    (iii)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;

    (d)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;

    (da)any debt due by the nominator as mentioned in section 140ZO of the Act (recovery of nomination training contribution charge and late payment penalty) has been paid in full;

    (e)if the nomination relates to a visa in a Temporary Residence Transition stream—the requirements set out in subregulation (5) are met;

    (f)if the nomination relates to a visa in a Direct Entry stream—the requirements set out in subregulation (9) are met;

    (g)if the nomination relates to a visa in a Labour Agreement stream—the requirements set out in subregulation (14) are met.

    Temporary Residence Transition stream—additional requirements for approval

    (5)If the nomination relates to a visa in a Temporary Residence Transition stream, the following requirements must also be met:

    (a)at the time the application is made, the identified person holds:

    (i)a Subclass 457 (Temporary Work (Skilled)) visa granted on the basis that the person satisfied the criterion in subclause 457.223(4) of Schedule 2 as in force before 18 March 2018; or

    (ii)a Subclass 482 (Temporary Skill Shortage) visa in the Medium‑term stream; or

    (iii)for a person specified in a legislative instrument made by the Minister for the purposes of this subparagraph—a Subclass 482 (Temporary Skill Shortage) visa in the Short‑term stream; or

    (iv)if the last substantive visa held by the identified person was a visa mentioned in subparagraph (i), (ii) or (iii)—a bridging visa granted on the basis that the person is an applicant for a visa mentioned in subparagraph (i) or (ii); or

    (v)if the last substantive visa held by the identified person was a visa mentioned in subparagraph (i), (ii) or (iii)—for a person specified in a legislative instrument made under subparagraph (iii), a bridging visa granted on the basis that the person is an applicant for a visa mentioned in subparagraph (iii); or

    (vi)if the last substantive visa held by the identified person was a visa mentioned in subparagraph (i), (ii) or (iii)—a bridging visa granted on the basis that the person is an applicant for a Subclass 186 (Employer Nomination Scheme) visa or a Subclass 187 (Regional Sponsored Migration Scheme) visa;

    (b)the occupation:

    (i)is listed in ANZSCO; and

    (ii)has the same 4‑digit ANZSCO occupation unit group code as the occupation in relation to which the identified person’s most recently held Subclass 457 (Temporary Work (Skilled)) visa or Subclass 482 (Temporary Skill Shortage) visa was granted;

    (c)unless a legislative instrument made under subregulation (8) exempts the identified person from the operation of this paragraph—the occupation must:

    (i)be an occupation specified in an instrument made under subregulation (8) and in force at the time the application is made; and

    (ii)apply to the identified person in accordance with an instrument made under that subregulation;

    (d)either:

    (i)there is no information known to Immigration that indicates that the identified person is not genuinely performing the tasks of the occupation as specified in ANZSCO; or

    (ii)it is reasonable to disregard any such information;

    (e)during the period of 4 years immediately before the application is made, the identified person held one or more of the following for a total period of at least 3 years:

    (i)a Subclass 457 (Temporary Work (Skilled)) visa granted on the basis that the person satisfied the criterion in subclause 457.223(4) of Schedule 2 as in force before 18 March 2018;

    (ii)a Subclass 482 (Temporary Skill Shortage) visa in the Medium‑term stream;

    (iii)for a person specified in a legislative instrument made under subparagraph (a)(iii)—a Subclass 482 (Temporary Skill Shortage) visa in the Short‑term stream;

    (f)unless paragraph (g) applies—during the period of 4 years immediately before the application is made, the identified person was employed in the position in relation to which the visa, or visas, mentioned in paragraph (e) were granted:

    (i)for a total period of at least 3 years (not including any periods of unpaid leave); and

    (ii)on a full‑time basis, with the employment being undertaken in Australia;

    (g)if the visa, or visas, mentioned in paragraph (e) were granted in relation to an occupation specified in an instrument made under subregulation 2.72(13)—during the period of 4 years immediately before the application is made, the identified person was employed in the occupation for a total period of at least 3 years (not including any periods of unpaid leave);

    (h)the nominator:

    (i)was the standard business sponsor who last identified the identified person in a nomination approved under section 140GB of the Act; and

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

    (j)the application identifies a need for the identified person to be employed in the position, under the direct control of the nominator;

    (k)there is a genuine need for the identified person to be employed in the position, under the direct control of the nominator;

    (l)the identified person will be employed on a full‑time basis in the position for at least 2 years;

    (m)the terms and conditions of the identified person’s employment will not include an express exclusion of the possibility of extending the period of employment;

    (n)the nominator’s business has the capacity to employ the identified person for at least 2 years and to pay the person at least the annual market salary rate for the occupation each year;

    (o)the requirements set out in subregulation 2.72(15) are met, applying subregulations 2.72(15) and (16) as if:

    (i)paragraph 2.72(15)(a) did not apply; and

    (ii)references to the nominee were references to the identified person; and

    (iii)references to the person were references to the nominator;

    (p)either:

    (i)there is no information known to Immigration that indicates that the employment conditions (other than in relation to earnings) that will apply to the identified person are less favourable than those that apply, or would apply, to an Australian citizen or an Australian permanent resident performing equivalent work at the same location; or

    (ii)it is reasonable to disregard any such information;

    (q)the nominator has provided the information required by the Minister for the purposes of paragraph (k) to (n).

    Minister may vary certain Temporary Residence Transition stream requirements

    (6)The Minister may, by legislative instrument, determine different periods of time for the purposes of paragraphs (5)(e), (f) and (g) for persons specified in the instrument.

    (7)Paragraphs (5)(j), (k) and (l) do not apply in relation to occupations specified in an instrument made under subregulation 2.72(13).

    (8)The Minister may, by legislative instrument, specify:

    (a)occupations for the purposes of paragraph (5)(c); and

    (b)persons who are exempt from the operation of that paragraph; and

    (c)for each occupation, any matters for the purposes of determining whether the occupation applies to an identified person, including matters relating to any of the following:

    (i)the nominator;

    (ii)the identified person;

    (iii)the occupation;

    (iv)the position in which the identified person is to work;

    (v)the circumstances in which the occupation is undertaken;

    (vi)the circumstances in which the person is to be employed in the position.