Curium Pty Limited (Migration) - [2023] AATA 2873

Curium Pty Limited (Migration) [2023] AATA 2873 (30 August 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Curium Pty Limited
REPRESENTATIVE:  Mr Mark Anthony Bridge (MARN: 1382065)
CASE NUMBER:  1936473
HOME AFFAIRS REFERENCE(S):          BCC2019/5710013
MEMBER:Amanda Mendes Da Costa
DATE:30 August 2023
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Statement made on 30 August 2023 at 10.06am

CATCHWORDS
MIGRATION – application for approval of nomination of position – direct entry stream – cook – genuine need for position – documentary and oral evidence and certification from regional certifying body – attempts to recruit locally – skills shortage and competition from other businesses – tasks of position – decision under review set aside
LEGISLATION
Migration Regulations 1994 (Cth), r 5.19

CASE
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 15 December 2019 to reject the applicant’s application for approval of the nomination of a position under reg 5.19 of the Migration Regulations 1994 (Cth) (the Regulations).
The applicant applied for approval on 12 November 2019. The requirements for the approval of the nomination of a position in Australia are found in reg 5.19 of the Regulations, which contains general requirements for approval and additional requirements for approval set out in three alternative streams: a Temporary Residence Transition stream, a Direct Entry stream and a Labour Agreement stream. If the application meets the requirements for approval then the application must be approved: reg 5.19(3)(a). If any of the requirements are not met then the application must be refused: reg 5.19(3)(b).
In this case, the applicant has applied for approval of a nomination, seeking to satisfy the criteria in the Direct Entry stream.
The delegate refused the application on the basis the applicant’s nomination did not satisfy reg 5.19(9)(d) of the Regulations because it had not identified a genuine need to employ a paid employee to work in the nominated position under the nominator’s direct control.
Via an internet-enabled audio-visual platform, Mr Graham Kenyon (a director of the applicant company) appeared before the Tribunal on 29 August 2023 to give evidence and present arguments.
The Tribunal determined it was reasonable to hold the hearing by video, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not be conducted by video. The Tribunal was satisfied that the applicant, representative and the Tribunal could satisfactorily see, hear and understand each other throughout the hearing. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments to the Tribunal.
At the commencement of the Tribunal hearing, the…

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 Curium Pty Limited (Migration)

Details

AGLC: Curium Pty Limited (Migration) [2023] AATA 2873
Case: [2023] AATA 2873
Decision Date: 30 August 2023

CaseChat Overview and Summary

This matter concerned an application for approval of a nomination for a position under the Direct Entry stream of the Subclass 186 (Employer Nomination Scheme) visa. The applicant, Curium Pty Limited, sought approval for a nominated position as a cook. The decision was made by Amanda Mendes Da Costa, a Member of the Tribunal.

The primary legal issue before the Tribunal was whether the applicant met the general requirements for approval of a nomination as set out in regulation 5.19(4) and the stream-specific requirements for the Direct Entry stream under regulation 5.19(9) of the Migration Regulations 1994. These regulations encompass various criteria, including the application process, the nominator's compliance with employment laws, the genuine need for the position, and the nominator's ability to operate a lawful business in Australia.

The Tribunal considered extensive documentary evidence, including company records, financial statements, employment contracts, and market research. It found that the applicant had satisfied the requirements of regulation 5.19(4), including having a satisfactory record of compliance with employment laws and having paid the necessary training contribution charge. Crucially, the Tribunal was satisfied that the applicant was actively and lawfully operating a business in Australia, as required by regulation 5.19(9)(a), and that there was a genuine need for the nominated cook position.

Consequently, the Tribunal set aside the original decision under review 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 general requirements for approval of the nomination set out in reg 5.19(4) and the stream specific requirements set out in reg 5.19(9), which are extracted in the attachment to this decision. For the nomination to be approved, all the requirements must be met.Documents provided to the Tribunal The documentation provided to the Tribunal for the purpose of the review includes the following:·ASIC company statement of Graham Kenyon.·ASIC current and historical extract, ABN historical details and Business Name records.·Company taxation returns for the financial years 2021 and 2022.·Business activity statements (BAS) for the period July 2021 to May 2023.·Financial statements for the 2021 and 2022 financial years.·Organisation chart.·Nominee’s flight details.·Nominee’s initial payslip.·Job description dated 28 June 2023.·Work samples.·Employment contracts dated 31 October 2019 and 25 June 2023.·Restaurant Industry Award 2020.·Job Outlook Salary Survey.·Bundle of payslips for the period 8 December 2019 to June 2023.·Australian salary Market rate Research from SEEK.com.·PAYG Payment Summaries for the financial years 2020, 2021 and 2022.·Newspaper articles: Coast Roast Café.·Lease agreement for the period September 2019 to 2021.·Rent payment statement for the period March 2022 to 2033.·Quotation and invoice for café fit-out.·Subclass 457 vis grant notice for the nominee, dated 3 December 2015.·Café menus.·Business gas bill for the period November to December 2022.·Business telephone bill for February 2023. Application requirements – reg 5.19(4)(a) Regulation 5.19(4)(a) requires that an application for approval be made in accordance with a number of requirements set out in reg 5.19(2). Regulation 5.19(2) requires that an application must:·be made in accordance with approved form 1395 (Internet);·identify the position;·identify a person in relation to the position;·identify an occupation in relation to the position,·identify the subclass and stream to which the nomination relates;·be accompanied by the fee mentioned in reg 5.37; and·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 s 245AR(1) of the Migration Act 1958 (Cth) (the Act). Applications made on or after 12 August 2018 must also be accompanied by any nomination training contribution charge the nominator is liable for, and identify the annual turnover for the nomination: regs 5.19(2)(fa), (fb). The liability is imposed by s 140ZM of the Act and the charge is imposed by the Migration (Skilling Australians Fund) Charges Act 2018 (Cth), with the amount specified in the Migration (Skilling Australians Fund) Charges Regulations 2018 (Cth) (Charges Regulations). ‘Annual turnover’ is defined in the Charges Regulations for liable persons operating a business in Australia as the total ordinary income (within the meaning of the Income Tax Assessment Act 1997 (Cth)) derived in the most recent income year (within the meaning of the Income Tax Assessment Act 1997 (Cth)) ending before the day on which the nomination application is made. In any other case, it is defined as the total income the person liable derived in the ordinary course of business in the most recent financial year ending before the day on which the nomination application is made.

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.Amanda Mendes Da CostaMemberATTACHMENT – EXTRACTS FROM THE MIGRATION REGULATIONS 19945.19Approval of nominated positions—Subclass 186 (Employer Nomination Scheme) visa and Subclass 187 (Regional Sponsored Migration Scheme) visaApplication(1)A person (the nominator) (including a partnership or unincorporated association) may apply to the Minister for approval of the nomination of a position in Australia.(2)The application must:(a)be made in accordance with approved form 1395 (Internet); and(b)identify the position; and(c)identify a person (the identified person) in relation to the position; and(d)identify an occupation in relation to the position; and(e)identify the subclass and stream to which the nomination relates, which must be one of the following:(i)a Subclass 186 (Employer Nomination Scheme) visa in the Temporary Residence Transition stream;(ii)a Subclass 187 (Regional Sponsored Migration Scheme) visa in the Temporary Residence Transition stream;(iii)a Subclass 186 (Employer Nomination Scheme) visa in the Direct Entry stream;(iv)Subclass 187 (Regional Sponsored Migration Scheme) visa in the Direct Entry stream;(v)a Subclass 186 (Employer Nomination Scheme) visa in the Labour Agreement stream; and(f)be accompanied by the fee mentioned in regulation 5.37; and(fa)be accompanied by any nomination training contribution charge the nominator is liable to pay in relation to the nomination; and(fb)identify the annual turnover (within the meaning of the Migration (Skilling Australians Fund) Charges Regulations 2018) for the nomination; and(g)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.Approval of nomination(3)The Minister must, in writing:(a)approve the nomination if the Minister is satisfied that the requirements set out in subregulation (4) are met; or(b)otherwise—refuse to approve the nomination.Requirements for approval—general(4)The requirements to be met for the nomination to be approved are as follows:(a)the application is made in accordance with subregulation (2);(b)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;(c)if it is mandatory, in the State or Territory in which the position is located, for a person to:(i)hold a licence of a particular kind; or(ii)hold registration of a particular kind; or(iii)be a member (or a member of a particular kind) of a particular professional body;to perform tasks of the kind to be performed in the occupation, the identified person is, or is eligible to become, the holder of the licence, the holder of the registration, or a member of the body, at the time of application;(d)the nominator has a satisfactory record of compliance with the laws of the Commonwealth, and of each State or Territory in which the nominator operates a business and employs employees in the business, relating to employment;(da)any debt due by the nominator as mentioned in section 140ZO of the Act (recovery of nomination training contribution charge and late payment penalty) has been paid in full;(e)if the nomination relates to a visa in a Temporary Residence Transition stream—the requirements set out in subregulation (5) are met;(f)if the nomination relates to a visa in a Direct Entry stream—the requirements set out in subregulation (9) are met;(g)if the nomination relates to a visa in a Labour Agreement stream—the requirements set out in subregulation (14) are met.…Direct Entry stream—additional requirements for approval(9)If the nomination relates to a visa in a Direct Entry stream, the following requirements must also be met:(a)the nominator is actively and lawfully operating a business in Australia;(b)if the nominator’s business activities include activities related 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;(c)the application identifies a need for the identified person to be employed in the position, under the direct control of the nominator;(d)there is a genuine need for the identified person to be employed in the position, under the direct control of the nominator;(e)the identified person will be employed on a full‑time basis in the position for at least 2 years;(f)the terms and conditions of the identified person’s employment will not include an express exclusion of the possibility of extending the period of employment;(g)the nominator’s business has the capacity to employ the identified person for at least 2 years and to pay the person at least the annual market salary rate for the occupation each year;(h)the requirements set out in subregulation 2.72(15) are met, applying subregulations 2.72(15) and (16) as if:(i)paragraph 2.72(15)(a) did not apply; and(ii)references to the nominee were references to the identified person; and(iii)references to the person were references to the nominator;(i)either:(i)there is no information known to Immigration that indicates that the employment conditions (other than in relation to earnings) that will apply to the identified person are less favourable than those that apply, or would apply, to an Australian citizen or an Australian permanent resident performing equivalent work at the same location; or(ii)it is reasonable to disregard any such information;(j)the requirements set out in subregulation (10) or (12) are met.Occupations for the Subclass 186 (Employer Nomination Scheme) visa in the Direct Entry stream(10)The requirements of this subregulation are as follows:(a)the tasks to be performed in the position will be performed in Australia and correspond to the tasks of an occupation specified in a legislative instrument:(i)made under subregulation (11); and(ii)in force at the time the application is made;(b)the occupation applies to the identified person in accordance with that instrument.(11)The Minister may, by legislative instrument, specify occupations for the purposes of subregulation (10) and, for each occupation, specify any matters for the purposes of determining whether the occupation applies to an identified person, including matters relating to any of the following:(a)the nominator;(b)the identified person;(c)the occupation;(d)the position in which the identified person is to work;(e)the circumstances in which the occupation is undertaken;(f)the circumstances in which the person is to be employed in the position.Occupations for the Subclass 187 (Regional Sponsored Migration Scheme) visa in the Direct Entry stream(12)The requirements of this subregulation are as follows:(a)the position is located at a place in regional Australia;(b)the business operated by the nominator is located at that place;(c)the position cannot be filled by an Australian citizen or an Australian permanent resident who is living in, or would move to, the local area concerned;(d)the tasks to be performed in the position correspond to the tasks of an occupation specified in a legislative instrument:(i)made under subregulation (13); and(ii)as in force at the time the application is made;(e)the occupation applies to the identified person in accordance with that instrument;(f)the Minister has been advised by a body that meets the requirements set out in paragraph (g) of this subregulation about matters relating to the following:(i)whether the identified person would be paid at least the annual market salary rate for the occupation;(ii)whether there is a genuine need for the identified person to be employed in the position, under the direct control of the nominator;(iii)whether the position can be filled by an Australian citizen or an Australian permanent resident who is living in, or would move to, the local area concerned;(g)the body must:(i)be specified in a legislative instrument made by the Minister for the purposes of this paragraph; and(ii)be located in the State or Territory in which the position is located; and(iii)have responsibility for the local area in which the position is located.(13)The Minister may, by legislative instrument, specify occupations for the purposes of subregulation (12) and, for each occupation, specify any matters for the purposes of determining whether the occupation applies to an identified person, including matters relating to any of the following:(a)the nominator;(b)the identified person;(c)the occupation;(d)the position in which the identified person is to work;(e)the circumstances in which the occupation is undertaken;(f)the circumstances in which the person is to be employed in the position.…Meaning of regional Australia(16)In this regulation:regional Australia means a part of Australia specified in legislative instrument made by the Minister for the purposes of this definition.

Ratio Decidendi

Legal Principle Established

Given the above findings, the Tribunal is satisfied that reg 5.19(4)(b) is met.Mandatory licencing, registration and memberships – reg 5.19(4)(c) Regulation 5.19(4)(c) provides that if it is mandatory in the State or Territory in which the position is located for a person to hold a licence or a registration of a particular kind, or be a member (or a member of a particular kind) of a particular professional body, to perform tasks of the kind to be performed in the occupation, the identified person is, or is eligible to become, the holder of the licence, the holder of the registration, or a member of the body, at the time of application. In this instance, the relevant State or Territory is Queensland, the relevant occupation is Cook ANZSCO 351411 and the date of application is 12 November 2019. The Tribunal is not aware of any mandatory licensing, registration, or professional membership required for persons to work as Cooks in Queensland. Given the above findings, the Tribunal is satisfied that reg 5.19(4)(c) is met.Satisfactory compliance with employment laws - reg 5.19(4)(d) Regulation 5.19(4)(d) requires that the nominator has a satisfactory record of compliance with the laws of the Commonwealth, and of each State or Territory in which the nominator operates a business and employs employees in the business, relating to employment. There is no evidence before the Tribunal to suggest that the applicant does not have a satisfactory record of compliance with the laws of the Commonwealth and Queensland (where the applicant operates its business), relating to employment. Given the above findings, the Tribunal is satisfied that reg 5.19(4)(d) is met.Training contribution debts – reg 5.19(4)(da) Regulation 5.19(4)(da) applies to applications made on or after 12 August 2018. It requires that any debt due by the nominator as mentioned in s 140ZO of the Act, relating to recovery of nomination training contribution charges and penalties for underpayments, has been paid in full. As set out above, the Tribunal is satisfied that the applicant paid the required training contribution charge at the time the application was made. Therefore, no training contribution debts have accrued. Given the above findings, the Tribunal is satisfied that reg 5.19(4)(da) is met.Actively and lawfully operating business – reg 5.19(9)(a) Regulation 5.19(9)(a) requires that the nominator is actively and lawfully operating a business in Australia. The Tribunal has been provided with the applicant’s current ASIC records, ABN details, recent business activity statements (BAS), company taxation returns and financial statements and other information relating to its business operations. Based on the documentation before it, the Tribunal is satisfied that the applicant is actively, lawfully and directly operating a business in Australia. Given the above findings, the Tribunal is satisfied that reg 5.19(9)(a) is met.Labour hire businesses – reg 5.19(9)(b) Regulation 5.19(9)(b) applies to nominators whose business activities include those related to labour hire to other unrelated businesses. In these cases, the nominated position must be within the business activities of the nominator and not for hire to other unrelated businesses.