D Company PTY LTD (Migration)

D Company PTY LTD (Migration) [2021] AATA 5558 (21 December 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  D Company PTY LTD
CASE NUMBER:  2001057
HOME AFFAIRS REFERENCE(S):          BCC2019/5268120
MEMBER:Alan McMurran
DATE:21 December 2021
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision under review to refuse the nomination.

Statement made on 21 December 2021 at 2:25pm

CATCHWORDS
MIGRATION – Employer Nomination – approval of nominated position – Direct Entry Nomination – Cook – actively and lawfully operating business – information on current trading activities not provided – telephone disconnected – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 359C, 360, 363A
Migration Regulations 1994 (Cth), r 5.19
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.
statement of decision and reasons
application for review

This is an application lodged with the Tribunal on 21 January 2020 for review of a decision made by a delegate of the Minister for Home Affairs on 9 January 2020 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 21 October 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, for the occupation of Cook (ANZSCO 351411) 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)(a) of the Regulations because the applicant is not actively and lawfully operating a business in Australia.
Background
The applicant is an incorporated entity, active since 12 April 2011, trading from its head office address registered at Moorebank in Sydney.
The application declares in the Department application form that the applicant “has various businesses under different trading names like Transport and few other restaurants”. It uses two registered trading names, D Bollywood Indian Restaurant and Matilda Halfway Creek.[1]
[1] ASIC public register
The application relates to a position for a Cook at the applicant’s business address for the restaurant t/as D Bollywood Indian Restaurant at Laurieton on the NSW mid North coast.
On lodgment of the application with the Department, the applicant relied upon the information set out in the application form, and a bundle of documents which included position advertisements, bank statements (100+ folios), company lease and rent statement, financial statements (2016-2018), employment contract, BAS records (to FYE 06/2018), and advertisements for equivalent Australian employees.
On 8 November 2021, the Tribunal sent a letter by email to the applicant under section 359(2) of the Act, inviting the applicant to provide current information. The letter requested specific, updated, and current information (as at 8 Nov 2021) about the nomination relating to the requirements under r.5.19 of the Migration Regulations. Examples were provided of the information sought.
The examples included information about any salary surveys, advertisements, payroll reports and PAYG statements showing equivalent work in the same location, and information about the current and previous visa status of the nominee. The letter requests updated financials, including recent BAS information (2019-/2021)lodged with the ATO, to demonstrate the applicant’s business is currently active and trading, and its profitability.
The applicant was required to respond by 22 November 2021, failing which 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.[2] The invitation was sent to the applicant via its nominated authorised recipient which information had been provided in connection with the review.
[2] s.360(3)
The applicant was advised that if the information was not provided in writing by 22 November 2021, the Tribunal may make a decision on the review without taking further steps to obtain the information, and 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 review applicant has not provided the information within the prescribed period, or at all, and no extensions have been requested or granted.
In these circumstances, s.359C of the Act applies and pursuant to s.360(3) the review applicant is not entitled to appear before the Tribunal. 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 applicant to appear.[3]
[3] Hasran v MIAC [2010] FCAFC 40.
The Tribunal is satisfied that the invitation to provide the requested information was sent to the applicant’s provided email address[4]. The invitation was not returned to sender as undeliverable mail. To date, the requested information has not been provided and the applicant has not made any contact with the Tribunal, nor by anyone on its behalf, to explain the circumstances or indicate why the information is not forthcoming.
[4] [Email address redacted]
The applicant was not represented in relation to the review, or in respect of the application lodged with the Department, which appears to have been authorised by its officer and contact person, Davinder Kumar.[5]
[5] DIBP application generated 21 October 2019
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 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. If any one requirement is not met, the Tribunal does not have to consider any remaining requirements. The Tribunal has available for consideration the Department and Tribunal files and available public information from the internet.
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 available evidence discloses that the applicant is an incorporated entity, registered since 12 April 2011 and which conducts several businesses.
According to the information available to the Department at the time of the application lodgement, in October 2019, inquiries could not establish that the restaurant business t/as D Bollywood Indian Restaurant at Laurieton on the NSW mid North coast, was actively operating. The available information disclosed that the restaurant had been closed for some time prior to October 2019. The telephone was not answered and a neighbouring business operator confirmed the closure information.
The applicant provided the Tribunal with a copy of the applicant’s lease for the premises from which the applicant trades. The lease was operable for the period 1 April 2016, to 31 March 2021. There is no available information that the expired lease was renewed pursuant to its option provisions , or at all. There is no information currently, such as BAS records for 2019-2021, which indicates the applicant is still in occupation at those premises and actively trading. The historical financial information provided to the Tribunal for the period 2016-2018 does not show the financial information for the restaurant business as a separate entity and what trading activity might be evidenced in those financial records.
There is no explanation from the applicant why the current information as to trading activity has not been made available for the Tribunal’s consideration. It would have been a relatively simple matter to provide a current ATO record of declared income for the business, and for the entity as a whole, to show its trading activity, and for financials which show the trading income and profitability of the restaurant. Equally, a renewal of the existing lease or a new lease could have been produced. No such information however is available.
On its own inquiry, the Tribunal was unable to contact the restaurant business by telephone, which service at the recorded number was said to be no longer connected.
In all the circumstances based on the above available information, and absent anything further from the applicant to update its current activity, the Tribunal finds it is not satisfied that the applicant’s business, t/as D Bollywood Indian Restaurant at Laurieton on the NSW mid North coast, and to which the position nominated under r.5.19 relates, is actively operating.
The regulation requires that the business is actively and lawfully operating the business specified. The requirement is not satisfied where the business in not “actively” operating.
Given the above findings, the Tribunal is not satisfied that reg 5.19(9)(a) is met. Accordingly, reg 5.19(4)(f) is not met.
Future employment – regs 5.19(9)(e), (f) and (g)
Regulations 5.19(9)(e), (f) and (g) contain requirements relating to the future employment of the identified person.
Reg 5.19(9)(g) requires that 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. The ‘annual market salary rate’ is the earnings an Australian citizen or permanent resident earns or would earn for performing equivalent work on a full-time basis for a year in the same workplace at the same location: reg 1.03.
As the Tribunal has found that the available evidence discloses that the applicant is not actively trading and has in fact been closed for a period without evidence of renewing its lease of the premises and has not provided evidence of the current business financial performance as requested, the Tribunal is not satisfied that the nominee will be employed full-time for at least 2 years as from the date of this decision.
The Tribunal is satisfied that there is insufficient evidence of the financials for the restaurant to demonstrate that the nominator’s business has the capacity to employ the nominee for at least 2 years and to pay the nominee the proposed salary of $55,000 per annum.
Given the above findings, the Tribunal is not satisfied that reg 5.19(9)(e) and reg 5.19(9)(g) are met. Accordingly, the Tribunal finds that reg 5.19(4)(f) is not met.
Direct Entry stream – Additional requirements
Regulation 5.19(12) contains a number of requirements, including that: [6]
·a specified regional certifying body located in the same State or Territory and with responsibility for the local area in which the position is located has advised the Minister about whether the identified person would be paid at least the annual market salary rate for the occupation, whether there is a genuine need for the identified person to be employed in the position under the direct control of the nominator, and whether the position can be filled by an Australian citizen or permanent resident who is living in, or would move to, the local area concerned: reg 5.19(12)(f).
[6] r.5.19(12)(f) and (g)
The applicant has nominated the position in regional Australia for a related Subclass 187 visa and to which r.5.19(12) applies. The Tribunal does not have any discretion in relation to this mandatory requirement. The applicant answered “no” in the application to the question whether this nomination been certified by a Regional Certifying Body.
The applicant has not provided evidence of certification by a regional certifying body located in the same State and Territory as the position, and with responsibility for the local area, having advised the Minister about whether the identified person would be paid at least the annual market salary rate for the occupation, whether there is a genuine need for the identified person to be employed in the position under the direct control of the nominator, and whether the position can be filled by an Australian citizen or permanent resident who is living in, or would move to, the local area concerned.
Given the above findings, the Tribunal is not satisfied that reg 5.19(12)(f) is met. Accordingly, reg 5.19(9)(j) and reg 5.19(4)(f) are not met. If one of the applicable requirements in reg 5.19(12)(a)-(f) is not satisfied, it is not necessary to consider the others.
Conclusion
For these reasons the Tribunal is not satisfied that the applicant meets the requirements of reg 5.19. Accordingly, reg 5.19(3)(b) requires that the nomination must be refused. The decision under review must be affirmed.
decision
The Tribunal affirms the decision under review to refuse the nomination.
Alan McMurran
Member

Attachment – extracts from the migration regulations 1994
5.19Approval of nominated positions—Subclass 186 (Employer Nomination Scheme) visa and Subclass 187 (Regional Sponsored Migration Scheme) visa
Application
(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.

[2021] AATA 5558

21 December 2021

Key Legal Topics

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Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Standing