Bertino, Paul B (Migration)

[2021] AATA 4697

Bertino, Paul B (Migration) [2021] AATA 4697 (26 November 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Bertino, Paul B

CASE NUMBER:  1902332

HOME AFFAIRS REFERENCE(S):          BCC2016/4070590

MEMBER:De-Anne Kelly

DATE:26 November 2021

PLACE OF DECISION:  Brisbane

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

Statement made on 26 November 2021 at 2:30pm

CATCHWORDS
MIGRATION – application for approval of nomination of position – direct entry nomination stream – actively operating business – no evidence of business activity provided or appearance at hearing – decision of review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 360, 362B(1), 379A(5)
Migration Regulations 1994 (Cth), r 5.19(4)(b)(ii)

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 16 January 2019 to reject the applicant’s application for approval of the nomination of a position in Australia under reg 5.19 of the Migration Regulations 1994 (Cth) (the Regulations).

2. The applicant applied for approval on 2 December 2016. The requirements for the approval of the nomination of a position in Australia are found in reg 5.19 of the Regulations which contains two alternative streams: a Temporary Residence Transition nomination stream (reg 5.19(3)) and a Direct Entry nomination stream (reg 5.19(4)). If the application is made in accordance with reg 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: reg 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 reg 5.19(4)(b)(i) of the Regulations because publicly available information indicated that the nominating business Mama’s & Pappas Pizzeria located at Corner Aerodrome Road & Sixth Ave, Maroochydore QLD 4558 was permanently closed and as such the nominator was not actively and lawfully operating in Australia.

5. The review applicant was invited under s 360 of the Migration Act 1958 (the Act) to appear before the Tribunal at a dual hearing of both the employer nomination refusal review and the visa application refusal review on 25 November 2021 at 1:00pm (AEST). The invitation stated that if they did not attend the hearing, the Tribunal, among other things, may make a decision on the review without taking any further action to allow the applicant to appear.

6. The Tribunal also sent SMS reminders about the hearing 5 business days and one business day before the scheduled hearing.

7. The review applicant did not appear before the Tribunal on the day and at the scheduled time and place. Having reviewed the Tribunal file, the Tribunal is satisfied that the review applicant was properly invited to a hearing in accordance with s 379A(5) of the Act, and the invitation has not been returned to sender. The Tribunal is also satisfied that two separate SMS reminders were also sent to the review applicant about the hearing. No satisfactory reason for the non-appearance has been given and no adjournment was sought.

8. In these circumstances, the Tribunal has decided to proceed to make a decision on the review without taking any further action to allow the applicant to appear, pursuant to s 362B(1) of the Act.

9. The applicant was represented in relation to the review by Ms Preeti Puri MARN: 0960289.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. The Tribunal had before it the digitised file from the Department of Home Affairs and the digitised Tribunal file, including the application for review and a copy of the decision of the delegate, dated 16 January 2019. The Tribunal notes that no further submissions were provided to the Tribunal after the application for review was lodged.

12. 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 reg 5.19(4), which is extracted in the attachment to this decision. For the nomination to be approved, all the requirements must be met.

13. On 2 December 2016, the applicant sole trader Bertino, Paul B trading as Mama’s& Papa’s Pizzeria ABN: 59 342 069 456 lodged a Regional Sponsored Migration Scheme employer nomination in the Direct Entry Stream for the position of  Restaurant Manager on $55,000 per annum in favour of Mr Khushpreet Singh to be employed at corner Aerodrome Rd & Sixth Ave, Maroochydore QLD 4558. Contact numbers were given as 07 3343 7788 and 0414 656 436.

14. The sole trader was represented by Mr Paul Bertino who did not attend the hearing.

    Nominator is actively and lawfully operating a business in Australia: reg 5.19(4)(b)

15. Regulation 5.19(4)(b) requires that the applicant is actively, lawfully and directly operating a business in Australia.

16. The Tribunal would expect evidence of the business being active such as a contemporary ASIC or ABN registration and financial statements or tax returns or BAS statements for the most recent two (2) financial years however none of this evidence has been provided. The only financial documents date back to 2016 and are not contemporary evidence of an applicant actively, lawfully and directly operating a business in Australia. The Tribunal would have welcomed an opportunity to hear from the applicant as to whether their business is still actively operating however, they did not attend the hearing.

17. On the evidence before the Tribunal it cannot be satisfied that the applicant is actively, lawfully and directly operating a business in Australia.

18. Accordingly, the requirement in reg 5.19(4)(b) is not met.

19. For the above reasons the Tribunal is not satisfied that the applicant meets the requirements of reg 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 reg 5.19(3). Accordingly, the nomination of the position cannot be approved. Therefore, the Tribunal must affirm the decision under review.

    DECISION

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

    De-Anne Kelly
    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).