Black Pepper Investments Pty Ltd ATF Deen Unit Trust (Migration)

Black Pepper Investments Pty Ltd ATF Deen Unit Trust (Migration) [2019] AATA 2300 (9 May 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Black Pepper Investments Pty Ltd ATF Deen Unit Trust
CASE NUMBER:  1806023
DIBP REFERENCE(S):  BCC2016/3832185
MEMBER:Karen McNamara
DATE:9 May 2019
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision under review to refuse the nomination.

Statement made on 09 May 2019 at 1:36pm

CATCHWORDS
MIGRATION – nomination – Accommodation and Hospitality Manager – Licensed Bar/Tavern Manager – Restaurant – Direct Entry Nomination stream – failed to demonstrate how Licensed Bar/Tavern Manager performs role of Accommodation and Hospitality Manager as per ANZSCO definition – fair opportunity to provide relevant information – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 245AR(1), 359, 360, 363A
Migration Regulations 1994 (Cth), r 5.19

CASES
Hasran v MIAC [2010] FCAFC 40

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 Immigration on 16 February 2018 to reject the application by Black Pepper Investments Pty Ltd ATF Deen Unit Trust (the applicant) 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 15 November 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 (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).
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 regulations 5.19(4)(h)(ii)(D) and 5.19(4)(h)(ii) because the applicant failed to demonstrate how a Licensed Bar / Tavern Manager performs the role of an Accommodation & Hospitality Manager, as per the definitions set out in the ANZSCO dictionary. Furthermore, the applicant failed to demonstrate how the key duties provided in the position’s job description are commensurate with that of ANZSCO Skill level 2 tasks & duties.
The applicant applied to the Tribunal on 6 March 2018 for review of the delegate’s decision.
On the 11 April 2019, the Tribunal wrote to the applicant pursuant to section 359(2) of the Act (dispatched by email to the authorised recipient), requesting the applicant to provide updated and current information that would assist to determine whether the criteria in r. 5.19(2) & (4) of the Regulations were met. The applicant was advised if the information was not provided in writing by 26 April 2019, or if the applicant has not made a request for an extension of time in which to provide the information, the Tribunal may make a decision on the review without taking further steps to obtain the information, and further, the applicant would lose any entitlement it might otherwise have had under the Act, to appear before the Tribunal to give evidence and present arguments.
The Tribunal did not receive any response from or on behalf of the applicant at the date and time of this decision. In these circumstances, s.359C applies and pursuant to s.360(3), the applicant is not entitled to appear before the Tribunal. The effect of s.363A of the Act is, if a review applicant has no entitlement to a hearing, the tribunal has no power to permit the applicant to appear: Hasran v MIAC [2010] FCAFC 40.
The Tribunal has considered whether this is an appropriate case for it to adjourn the review under s.363(1)(b) of the Act, to allow the applicant additional time in which to provide evidence to support the review application. In this regard the Tribunal considered whether, in the circumstances of this case, evidence that the applicant meets all of the requirements of r.5.19(4) of the Regulations is likely to be forthcoming, whether the applicant had a fair opportunity to provide the relevant information or documents already and the significance of the information or documents to the applicant.

The Tribunal has regard to the fact that the nomination application was refused by the Department on 16 February 2018. The applicant submitted a copy of the primary decision record with the review application. As a result, the Tribunal observes that the applicant has been aware for approximately fifteen months of the reasons for the nomination application refusal. The Tribunal wrote to the applicant under subsection 359(2) of the Act inviting the applicant to provide information demonstrating that the nomination meets all the requirements of the criteria in regulation 5.19(4) of the Regulations. The applicant has failed to provide requested information within the prescribed period set for this purpose and nor has any request been received to extend the time to provide requested documentation.
In these circumstances, the Tribunal considers the applicant has had a fair opportunity to provide the relevant information and sufficient time to take steps to satisfy the regulatory criteria. The Tribunal notes that it is uncertain if and when the applicant will provide information in writing as to whether the applicant meets the requirements of reg. 5.19(3) & (4). The Tribunal has decided not to delay its decision any further. Accordingly, the Tribunal has decided not to exercise its discretion under subsection 363(1)(b) of the Act to adjourn the review any further. The Tribunal has determined to make a decision on the review without taking any further action to obtain the information in accordance with section 359C of the Act. In passing, the Tribunal notes that the applicant is not prevented from lodging a new nomination application with the Department.
For the following reasons, the Tribunal has decided to affirm the decision under review to refuse 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) of the Regulations, which is extracted in the Attachment to this decision. For the nomination to be approved, all of the requirements must be 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. These are set out in detail in the attachment to the decision but can be briefly summarised as requiring either that:
(i)the tasks to be performed in the position will be performed in Australia and correspond to those of an occupation specified by the Minister in an instrument, the occupation is applicable to the proposed employee in accordance with any specifications made in that instrument, and specified training requirements are met; or
(ii)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.
In this case the applicant claims to meet the requirements in r.5.19(h)(ii).
Background
On 15 November 2016, Black Pepper Investments Pty Ltd ATF Deen Unit Trust, trading as Deen Street BBQ, lodged a Regional Employer Nomination (Permanent) (Class RN) nomination under the direct entry stream.
In the application form, the applicant identified that the nominee, Hemant Dhakla would be employed in the occupation of Accommodation and Hospitality Manager not elsewhere classified (nec) (ANZSCO 141999) in the position of Licensed Bar/Tavern Manager. The proposed salary is $52,000 per annum.
The business, Black Pepper Investments ATF the Deen Unit Trust, operate a restaurant, in Northbridge Western Australia, trading as Deen Street BBQ. The entity is a Fixed Unit Trust with three Owners/Directors holding propriety interests. The Australian Business Number (ABN) provided, 71540550857, is linked with the organisation business name of The Trustee for Deen Unit Trust. Information from Australian Securities Investments Commission(ASIC) indicate that the business name associated with the organisation is DeenStreet BBQ.
Documents lodged in support of the application, amongst other items, included the following:
●Organisation Charts
●Financials of the business including Business Activity Statements (BAS) and Profit & Loss statements (P&L)
●Business Plan
●Business Case (need for nominated position)
●Employment contract dated 25 October 2016
●Job Description Licensed Manager
●Payroll documentation
●Lease agreement
●Regional Certifying Body Certification (RCBC) – Form 1404
The delegate noted the application form stated that the business services the Accommodation and Food Services industry, further noting that the place of business is a restaurant with a bar and that there are no accommodation services attached to the business.
The nominated position is for an Accommodation and Hospitality Manager nec (ANZSCO 141999). The position description provided by the Nominator to support the nominated position’s role, is for a Licensed Bar / Tavern Manager. The position/job description, supported by the Business Plan, Organisation Charts and Employment Contract, outline the position holder’s key responsibilities & duties.
The delegate noted that the nominator failed to provide claims or evidence to support any ‘Accommodation’ services tasks as provided within ‘Accommodation & Hospitality Manager nec (ANZSCO 141999) and observed that ANZSCO did not set out clearly defined tasks of the occupation group, rather, referring to the tasks of ‘Organises and controls the operations of the establishments’.
Based on the evidence before them, the delegate found that the Nominator failed to demonstrate how a Licensed Bar/ Tavern Manager performs the role of an Accommodation & Hospitality Manager, as per the definitions set out in the ANZSCO dictionary. Furthermore, the Nominator failed to demonstrate how the key duties provided in the job description are commensurate with that of ANZSCO Skill level 2 tasks & duties.
The delegate refused the application on the basis the applicant’s nomination did not satisfy regulations 5.19(4)(h)(ii)(D) and 5.19(4)(h)(ii), therefore the applicant did not meet regulation 5.19(4)(h).
The Tribunal wrote to the applicant under s.359 (2) of the Act on 11 April 2019 inviting them to provide information in writing to demonstrate that the applicant meets the requirements of the criteria in r.19(4) of the Regulations, including r.5.19(4)(h) of the Regulations. The applicant has failed to provide requested documentation or seek an extension of time to provide the documentation.
The Tribunal has had regard to the information presently before it. The applicant did not provide any documentation and/or evidence that will indicate the tasks to be performed in the position of Accommodation & Hospitality Manager, correspond to the tasks of an occupation specified by the Minister in an instrument in writing.
Given the above findings, the applicant does not meet the requirements of regulations 5.19(4)(h)(ii)(D) and 5.19(4)(h)(ii), therefore the applicant does not meet regulation 5.19(4)(h).
For the above reasons the Tribunal is not satisfied that the applicant meets the requirements of r.5.19(4)of the Regulations. 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) of the Regulations. Accordingly, the nomination of the position cannot be approved. Therefore, the Tribunal must affirm the decision under review.
DECISION
The Tribunal affirms the decision under review to refuse the nomination.
Karen McNamara
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).

[2019] AATA 2300

9 May 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Statutory Construction

Procedural Fairness

Jurisdiction