Boutique Venues Group Pty Ltd ATF Boutique Venues Group Unit Trust (Migration)

Boutique Venues Group Pty Ltd ATF Boutique Venues Group Unit Trust (Migration) [2022] AATA 859 (12 April 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Boutique Venues Group Pty Ltd ATF Boutique Venues Group Unit Trust
REPRESENTATIVE:  Mrs Maree Julia Elliott (MARN: 9902416)
CASE NUMBER:  1910925
HOME AFFAIRS REFERENCE(S):          BCC2018/913799
MEMBER:Terrence Baxter
DATE:12 April 2022
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision under review to refuse the nomination.

Statement made on 12 April 2022 at 9:35am
CATCHWORDS
MIGRATION – application for approval of nomination of position – direct entry nomination stream – duty manager – need for position – no information provided in response to tribunal’s invitation – no evidence that business is actively and lawfully operating – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 359(2), 359C(1), 360(3), 363(1)(b), 363A
Migration Regulations 1994 (Cth), r 5.19(2), (4)(b)
CASES
Hasran v MIAC [2010] FCAFC 40
Huo v MIMA [2002] FCA 617
Manna v MIAC [2012] FMCA 28
MIAC v Saba Bros Tiling Pty Ltd [2011] FCA 233
Re Drake and MIEA (No 2) [1979] AATA 179
Singh v MICMSMA [2019] FCCA 2343
Vishnumolakala v Minister for Immigration [2006] FMCA 1209
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 11 April 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).
The applicant, Boutique Venues Group Pty Ltd as trustee for the Boutique Venues Group Unit Trust, applied for approval on 26 February 2018. The applicant nominated Mr Maurizio Pagani (the nominee) in the position of Duty Manager. 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).
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 that the applicant’s nomination did not satisfy reg 5.19 (4)(a)(ii) of the Regulations because the delegate found that the applicant had not identified a need to employ the nominee, as a paid employee, to work in the position under the applicant’s direct control.
The applicant lodged an application for review of the delegate’s decision with the Tribunal on 1 May 2019.
The applicant was represented in relation to the review by its registered migration agent Ms Maree Julia Elliott of Holt Durham Migration Services.
On 28 March 2022, the Tribunal wrote to the applicant pursuant to s 359(2) of the Migration Act 1958 (the Act) inviting it to provide current information addressing the relevant criteria under reg 5.19(2) and (4) of the Regulations. The Tribunal is satisfied that this invitation was properly dispatched to the applicant’s email address.
On the same day, 28 March 2022, the representative advised the Tribunal by email that she was trying to find someone who may be able to withdraw the application. No other response has been received by the Tribunal to its invitation of 29 March 2022. The application has not been withdrawn.
The Tribunal has considered whether the email correspondence from the representative on 28 March 2022 can be considered as information which has been given by the applicant to the Tribunal in response to the invitation of 28 March 2022. The correspondence did not provide the information requested in the Tribunal’s invitation but stated that the application was to be withdrawn.
In Minister for Immigration and Citizenship v Saba Bros Tiling Pty Ltd [2011] FCA 233, the Federal Court considered the requirements of s 359C(2) of the Act which deals with the failure of an applicant to comment on or respond to information given by the Tribunal under s 359A of the Act. The Court considered that a reply to such an invitation in which the applicant merely stated that he would like the opportunity of an oral hearing could constitute a response to the invitation (emphasis by the Tribunal).
However, those circumstances were distinguished by the Federal Circuit Court in Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCCA 2343 where the Court considered the requirements of s 359C(1) of the Act (which is the relevant section in this matter). In that matter, the invitation under s 359(2) invited the applicant to provide information in writing as to whether he met the requirements under a specific clause of the Regulations. The applicant provided a response which did not provide the information requested in the invitation. The Court inferred that the applicant’s response was an explanation as to why he could not demonstrate that he met the relevant criterion but did not demonstrate that he met the criterion as required by the invitation. The Court found that s 359C applied and that the applicant had lost any entitlement to appear before the Tribunal.
The Tribunal finds that the applicant failed to provide the information requested in the invitation of 28 March 2022 within the time for responding to the invitation. No information in response to that invitation has been received by the Tribunal at the time of this decision.
Where a review 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 review 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 a review applicant has no entitlement to a hearing, the Tribunal has no power to permit the review applicant to appear before it as outlined in the Full Federal Court authority in the matter of Hasran v MIAC [2010] FCAFC 40.
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.
The Tribunal has taken into account that the applicant has been aware since 11 April 2019 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 28 March 2022 were set out in that correspondence. The Tribunal has also taken into account the notification from the representative that the application is to be withdrawn, although that has not occurred.
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(2) and (4) of the Regulations.
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.
For the following reasons, the Tribunal has decided to affirm the decision under review to refuse the nomination.
Evidence presented to the Department
The applicant produced to the Department of Immigration and Border Protection (now the Department of Home Affairs) (the Department) the following documents:
a.A curriculum vitae of the nominee.
b.Market salary evidence.
c.An employment contract dated 8 February 2018.
d.A submission from the applicant dated 13 February 2018.
e.A position description.
f.An ASIC certificate confirming the applicant’s change of name.
g.A submission from the applicant’s accountant dated 26 February 2018.
h.A draft Profit and Loss statement for the half-year ended 31 December 2017.
i.A deed evidencing the change of name of the Boutique Venues Group Unit Trust.
j.A Form 1404 issued by the Regional Certifying Body (RCB), Migration NT, Department of Trade, Business and Innovation dated 3 April 2018 accompanied by copies of documents provided to the RCB in support of the application and correspondence from the RCB dated 11 April 2018.
The applicant provided to the Tribunal a copy of the delegate’s decision.
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 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.
Nominator is actively and lawfully operating a business in Australia: reg 5.19(4)(b)
Regulation 5.19(4)(b) requires that the applicant is actively, lawfully and directly operating a business in Australia.
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”.
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.
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 its nomination application that it was established or commenced trading in Australia on 5 June 2017. 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. The applicant has produced to the Department only a draft Profit and Loss statement for the half-year ending on 31 December 2017. The applicant has not produced to the Tribunal any contemporary financial statements regarding its business activities or taxation returns.
The nomination application and the application for review were lodged by the company Boutique Venues Group Pty Ltd as trustee for the Boutique Venues Group Unit Trust. 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 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 such evidence has been provided to the Tribunal. No copy of the relevant trust deed has been provided to the Department or the Tribunal (although a deed evidencing the change of name of the Trust was produced to the Department). Accordingly, the applicant has not established that the applicant Trust is properly constituted.
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. The Tribunal finds that the applicant does not satisfy the requirements of reg 5.19(4)(b)(i).
Accordingly, the requirement in reg 5.19(4)(b) is not met.
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
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 (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 an identified person, 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)       all 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;
(AA)there is a genuine need for the nominator to employ the person identified under subparagraph (a)(ii), as a paid employee, to work in the position under the nominator’s direct control;
(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 the person identified under subparagraph (a)(ii), as 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).

[2022] AATA 859

12 April 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice