Continental Foods Pty Ltd (Migration) - [2024] AATA 95

Continental Foods Pty Ltd (Migration) [2024] AATA 95 (18 January 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Continental Foods Pty Ltd
REPRESENTATIVE:  Mr Vikram Jeet Singh (MARN: 1572276)
CASE NUMBER:  2005443
HOME AFFAIRS REFERENCE(S):          BCC2018/1026141
MEMBER:P. Maishman
DATE:18 January 2024
PLACE OF DECISION:  Perth
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Statement made on 18 January 2024 at 4:33pm
CATCHWORDS
MIGRATION – application for approval of nomination of position – direct entry nomination stream – restaurant manager – information provided after prescribed period – no entitlement to hearing – financial capacity to employ nominee – financial reports and tax returns – modest profits and ongoing employment – decision under review set aside
LEGISLATION
Migration Act 1958 (Cth), ss 359, 359C, 360(3), 363A
Migration Regulation 1994 (Cth), r 5.19(4)(d)(i)
CASES
Bharaj Construction Pty Ltd v MIBP [2016] FCCA 902
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 Home Affairs on 26 February 2020 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 applied for approval on 4 March 2018. 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 the applicant’s nomination did not satisfy reg 5.19(4)(d)(i) of the Regulations because the delegate was not convinced that the nominator had the financial capacity to employ the nominee.
On 11 August 2023 the Tribunal wrote to the review applicant pursuant to s 359 of the Act, inviting the review applicant to provide updated and current information about addressing the reg 5.19(2 and (4) criteria in writing.
The invitation was sent to the last address provided in connection with the review and advised that, if the information was not provided in writing by 25 August 2024, the Tribunal may make a decision on the review without taking further steps to obtain the information and the review 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 review applicant has not provided the information within the prescribed period and no extension has been granted. In these circumstances, s 359C applies and pursuant…

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 Continental Foods Pty Ltd (Migration)

Details

AGLC: Continental Foods Pty Ltd (Migration) [2024] AATA 95
Case: [2024] AATA 95
Decision Date: 18 January 2024

CaseChat Overview and Summary

This matter concerned an application by Continental Foods Pty Ltd for approval of a nomination of a position under the Direct Entry stream of the Migration Regulations 1994. The applicant sought to nominate a restaurant manager position. The Tribunal was required to determine whether the applicant met all the requirements for approval of the nomination as set out in regulation 5.19(4).

The legal issues before the Tribunal were whether the applicant had made a compliant application, was actively and lawfully operating a business in Australia, whether the nominated position was not a labour-hire arrangement, and whether the terms of employment met the prescribed standards. Further issues included whether there was any adverse information known to Immigration, whether the applicant had a satisfactory record of compliance with workplace relations laws, and whether there was a genuine need for the position, considering its location in regional Australia and the inability to fill it with a local resident.

The Tribunal found that the applicant had met all the requirements of regulation 5.19(4). It was satisfied that the application was in the approved form, paid, and identified a need for the nominee. The applicant was found to be actively and lawfully operating its business, Sforno, in Munno Para, South Australia, and there was no evidence of labour-hire activities. The Tribunal also determined that the nominated position was located in regional Australia and that there was a genuine need for the position, which could not be filled by a local Australian citizen or permanent resident. The Tribunal was satisfied that there was no adverse information known to Immigration and that the applicant had a satisfactory record of compliance with workplace relations laws.

Accordingly, the Tribunal set aside the original decision and substituted a decision approving the nomination.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

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 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.The application is compliant: reg 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 an identified person as a paid employee to work in the position under their direct control. The Tribunal had regard to the documents on the Department’s file. The Tribunal is satisfied the applicant made an application online in accordance with the approved form 1395; the application included written certification confirming the applicant had not engaged in conduct in contravention of subsection 245AR(1) of the Act; and the nomination application was paid. The application identifies a need for the nominator to employ Mr Kapil Bhatia as a paid employee to work in the position of Restaurant Manager (ANZSCO 141111) under the applicant’s direct control. Accordingly, the requirement in reg 5.19(4)(a) is 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. ASIC records show the applicant is registered. The applicant declared it has traded as Café Canova and renamed to Sforno in October 2018. The Tribunal also had regard to the applicant’s Financial Statements and tax returns for the 2022 and 2023 financial years. The Tribunal gives weight to the information contained in the financial reports and income tax returns and is satisfied the applicant is actively, lawfully and directly operating its business, Sforno at Munno Para, in Australia. Accordingly, the requirement in reg 5.19(4)(b) is met.Position is not labour-hire: reg 5.19(4)(c) Regulation 5.19(4)(c) applies to nominators whose business activities include those relating to labour hire to an unrelated business. In these cases, the nominated position must be within the business activities of the nominator. There is no evidence before the Tribunal to indicate that the applicant is involved in labour hire activities. The Tribunal is satisfied that the employment contract and organisational chart confirm that the nominee will work in the applicant's direct employ. Accordingly, the requirement in reg 5.19(4)(c) does not apply.Term of employment of the visa holder: reg 5.19(4)(d) Regulation 5.19(4)(d) requires the nominee to be employed in the nominated position for at least 2 years full time, and the terms and conditions of that employment do not expressly exclude the possibility of an extension.

Decision

Reasons for decision

Based on the findings above, the Tribunal is satisfied that the applicant meets the requirements of reg 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.P. MaishmanMemberATTACHMENT - 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 an identified person, as 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).

Ratio Decidendi

Legal Principle Established

Accordingly, the requirements of reg 5.19(4)(e) are met.No adverse information known to Immigration: reg 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 regs 1.13A and 1.13B. There is no evidence before the Tribunal that there is adverse information known to Immigration about the nominator or a person associated with the nominator. Accordingly, the requirements of reg 5.19(4)(f) are met.Satisfactory compliance with workplace relations laws: reg 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 of the applicant having anything other than a satisfactory record of compliance with workplace relations laws in Western Australia where it operates its business and employs staff. Accordingly, the requirements of reg 5.19(4)(g) are met.Tasks of the position, genuine need for the position and training requirements reg 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. Relevantly to this matter the requirements of reg 5.19(4)(h)(ii) are as follows: 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.Location of the position and the business The Tribunal first considered reg 5.19(4)(h)(ii)(A) and (E) which provide that the position is located in regional Australia and the applicant’s business is located at that place. Regulation 5.19(16) provides that 'regional Australia' is defined by the legislative instrument. The nominated position is for a restaurant manager to work at the applicant’s restaurant located at Munno Para, South Australia. In this case, the position is located at the business premises in Munno Para, South Australia, 5115, and at the time of application, this location/postcode was considered regional Australia, as per Schedule 2 of IMMI 17/059. Accordingly reg 5.19(4)(h)(ii)(A) and (E) are met. 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