B R Brothers Pty Ltd (Migration) - [2021] AATA 3212

B R Brothers Pty Ltd (Migration) [2021] AATA 3212 (28 July 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  B R Brothers Pty Ltd
CASE NUMBER:  1830195
HOME AFFAIRS REFERENCE(S):          BCC2017/654608
MEMBER:Mary Sheargold
DATE:28 July 2021
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Statement made on 28 July 2021 at 6:03pm
CATCHWORDS
MIGRATION – nomination – Direct Entry nomination stream – Cook – genuine need for the nominator to employ a paid employee – position located in regional Australia – actively and lawfully operating a business in Australia – no adverse information known to Immigration – decision under review set aside
LEGISLATION
Migration Act 1958, ss 245AR, 359
Migration Regulations 1994, rr 1.13, 5.19
CASES
Bharaj Construction Pty Ltd v MIBP [2016] FCCA 902
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 26 September 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).
The applicant applied for approval on 17 February 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 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).
In this case, the applicant has applied for approval of a nomination, seeking to satisfy the criteria in the Direct Entry nomination stream.
The delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19(4)(d)(i) of the Regulations because it did not demonstrate that it had the financial capacity to be able to pay the full-time salary for the nominated position for at least 2 years.
The Tribunal did not consider it necessary to conduct a hearing as it was able to find in favour of the visa applicant on the basis of the material before it, pursuant to s.360(2)(a) of the Act.
The applicant was represented in relation to the review by its registered migration agent.
For the following reasons, the Tribunal has decided to set aside the decision under review and substitute a decision approving the nomination.
CONSIDERATION OF CLAIMS AND EVIDENCE
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.
On 15 December 2020, the applicant’s representative wrote to the Tribunal enclosing detailed written submission and documentary evidence in support of the application. The Tribunal…

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.

Continue reading B R Brothers Pty Ltd (Migration)

Details

AGLC: B R Brothers Pty Ltd (Migration) [2021] AATA 3212
Case: [2021] AATA 3212
Decision Date: 28 July 2021

CaseChat Overview and Summary

The Administrative Appeals Tribunal reviewed a decision concerning B R Brothers Pty Ltd's nomination for a position under the Direct Entry stream. The core dispute revolved around whether B R Brothers Pty Ltd met all the regulatory requirements for the approval of its nomination for a Cook position.

The Tribunal was tasked with determining if the applicant satisfied the criteria outlined in regulation 5.19(4) of the Migration Regulations 1994. Specifically, this involved assessing whether the nomination application was in the approved form, identified a genuine need for a paid employee under the nominator's direct control, and if the nominator was actively and lawfully operating a business in Australia. Further, the Tribunal had to consider whether there was any adverse information known to Immigration, whether the nominator had a satisfactory record of compliance with workplace relations laws, and whether the nominated position was located in regional Australia with a genuine need for the employee.

The Tribunal's reasoning focused on a detailed examination of the documentary evidence provided by the applicant, which included lease agreements, company registration details, financial statements, employment contracts, and job advertisements. It found that the application met the formal requirements, including the identification of a genuine need for a Cook at its Warrnambool restaurant. The Tribunal was satisfied that there was no adverse information known to Immigration, that the applicant had a satisfactory record of compliance with workplace relations laws, and that the position was located in regional Australia, fulfilling the requirements of regulation 5.19(4)(h)(ii).

Consequently, the Tribunal set aside the original decision and substituted a decision approving B R Brothers Pty Ltd's nomination.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

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Evidence

Evidence Before The Court

For the following reasons, the Tribunal has decided to set aside the decision under review and substitute a decision approving the nomination.CONSIDERATION OF CLAIMS AND EVIDENCE 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. On 15 December 2020, the applicant’s representative wrote to the Tribunal enclosing detailed written submission and documentary evidence in support of the application. The Tribunal received the following documents:a.detailed written submissions addressing each of the criteria for approval;b.a copy of the lease agreement for business premises at Warrnambool; c.copies of ASIC company registration information for Portland operations; d.company registration documentation for the applicant; e.an employment contract for the nominee;f.detailed financial statements for the financial year ending on 30 June 2020;g.BAS for the first quarter of 2021 financial year;h.a copy of the restaurant’s menu;i.PAYG summaries for 2019 and 2020 as issued for the nominee; j.superannuation statements for 2018 to 2020 for the nominee; k.letter of support from Mr Maulik Shah, accountant to the applicant;l.salary increase letter for the nominee; m.an organisational chart dated December 2020; n.Job Outlook information relating to the position of ‘Cook’;o.bundle of relevant job advertisements from the Seek website;p.photographs of the restaurant operations; q.advertisements run by the Applicant in relation to the nominated position;r.Regional Certifying Body approval; ·position description for the nominated occupation; and ·ANZSCO entry for the position of ‘Cook’. On 18 June 2021, pursuant to s.359(2) of the Act, the Tribunal wrote to the applicant requesting updated information in relation to this application. On 2 July 2021, the applicant’s authorised representative provided further written submissions and recent financial information in support of the application. The Tribunal has considered all of the documentary evidence received in reaching its findings.The application is compliant: r.5.19(4)(a) Regulation 5.19(4)(a) requires that the application for approval must be in the approved form, must be accompanied by the prescribed fee, and, where applicable, must include the required written certification relating to conduct that contravenes s.245AR(1). The application must also identify a need for the nominator to employ a paid employee to work in the position under their direct control. The Tribunal has reviewed the documentation in the Department’s file, and is satisfied that the applicant’s nomination application was made on the approved internet form, and the relevant s.245AR(1) certification was also provided in the application form. Consistent with r.5.37(2)(a) of the Regulations, there is no fee payable in respect of a nomination where the position is located in regional Australia. The applicant has identified a need for a Cook at its restaurant business located at 132 Koroit Street, Warrnambool, Victoria, 3280, under its direct control.

Decision

Reasons for decision

Based on the findings above, the Tribunal is satisfied that the applicant meets the requirements of r.5.19 for approval of the nomination of the position in Australia.DECISION The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.Mary SheargoldMemberATTACHMENT - EXTRACTS FROM THE MIGRATION REGULATIONS 19945.19Approval 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).

Ratio Decidendi

Legal Principle Established

Accordingly, the requirement in r.5.19(4)(e) is met.No adverse information known to Immigration: r.5.19(4)(f) Regulation 5.19(4)(f) requires that there is no adverse information known to Immigration about the nominator or person associated with the nominator; or it is reasonable to disregard any such information. For these purposes, ‘adverse information’ and ‘associated with’ have the meaning given in rr.1.13A and 1.13B. There is no evidence before the Tribunal to suggest that there is any adverse information known about the applicant or any of its directors. Accordingly, the requirements of r.5.19(4)(f) are met.Satisfactory compliance with workplace relations laws: r.5.19(4)(g) Regulation 5.19(4)(g) requires that the applicant 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. There is no evidence before the Tribunal to suggest that the applicant does not have a satisfactory record of compliance with workplace relations laws in Australia. Accordingly, the requirements of r.5.19(4)(g) are met.Tasks of the position genuine need for the position and training requirements r.5.19(4)(h) Regulation 5.19(4)(h) contains a number of alternative requirements. As noted above, the applicant’s application was made under the RSMS Direct Entry stream. Accordingly, the Tribunal has assessed the application against the criteria in r.5.19(4)(h)(ii) of the Regulations, as at the time of lodgement of the nomination application, which required that:·the position and nominator’s business is located in regional Australia; ·there is a genuine need for the nominator to employ a paid employee to work in the position under the nominator’s direct control;·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;·the tasks to be performed in the position correspond to the tasks of an occupation specified by the Minister in an instrument in writing; and·a regional certifying body has advised the Minister about certain matters relating to the position.Position and nominator’s business is located in regional Australia: r.5.19(4)(h)(ii)(A) and (E) The first consideration under r.5.19(4)(h)(ii) is whether the position is located in regional Australia. Regulation 5.19(16) provides that “regional Australia” is defined by legislative instrument. The Tribunal has considered the current legislative instrument, Migration (IMMI 18/037: Regional Certifying Bodies and Regional Postcodes) Instrument 2018 (IMMI 18/037), that specifies the postcodes classed as “regional Australia” in accordance with r.5.19(16). However, Schedule 3 of IMMI 18/037 states that it applies only to applications lodged on or after 18 March 2018.[1] The Tribunal notes that IMMI 18/037 repealed the previous instrument, Migration (IMMI 17/059: Regional Certifying Bodies and Regional Postcodes) Instrument 2017 (IMMI 17/059).[2] [1] Relevantly, IMMI 18/037, Schedule 3 – Application of this Instrument states: “(1) This instrument applies in relation to the following: (a) an application for approval of a nomination relation to the Subclass 187 (Regional Sponsored Migration Scheme) visa made on or after 18 March 2018…”[2] See IMMI 18/037, Schedule 4.