DDD Indian Pty Ltd (Migration)

[2021] AATA 5574

DDD Indian Pty Ltd (Migration) [2021] AATA 5574 (24 May 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  DDD Indian Pty Ltd

CASE NUMBER:  1824234

HOME AFFAIRS REFERENCE(S):          BCC2017/4802195

MEMBER:Glenn O’Brien

DATE:24 May 2021

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decision under review to refuse the nomination.

Statement made on 24 May 2021 at 11:11am

CATCHWORDS
MIGRATION – application for approval of nomination of position – temporary residence transition stream – employment in position as Subclass 457 visa holder for two years before nomination application made – employment in another business claimed to have been purchased by applicant – applicant obtained new lease on former premises of other business and established unrelated business there – genuine need to employ nominee in position – nominated workplace currently closed and nominee working in similar position in related business – decision under review affirmed


LEGISLATION
Migration Act 1958 (Cth), ss 359(2), 362A
Migration Regulations 1994 (Cth), r 5.19(3)(c)(i)(A), (i)

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 7 August 2018 to reject the applicant’s application for approval of the nomination of a position in Australia under r 5.19 of the Migration Regulations 1994 (the Regulations).

2. The applicant applied for approval on 15 December 2017. 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 stream (r 5.19(3)) and a Direct Entry nomination stream (r 5.19(4)). 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).

3. In this case, the applicant has applied for approval of a nomination, seeking to satisfy the criteria in the Temporary Residence Transition nomination stream.

4. The applicant provided the Tribunal a copy of the delegate’s decision record with the application for review. The delegate refused the application on the basis the applicant’s nomination did not satisfy r 5.19(3)(c) of the Regulations because the delegate was not satisfied the holder of the Subclass 457 (Temporary Work)(Skilled) visa had been employed in the occupation in respect of which the nominee held the visa for a period of at least two years in the period of three years immediately before the nomination application.

5. On 5 February 2021, the Tribunal wrote to the applicant pursuant to s 359(2) of the Act inviting them to provide current information addressing the relevant criteria under r 5.19 of the Regulations. In response, the Tribunal received material including, but not limited to, written submissions, financial records, ASIC information, employment contracts (SBS), organisational charts, work samples, position descriptions, a lease, and other documents. The applicant’s representative made a number of written submissions including those dated 26 February 2021 and 22 April 2021. All material received prior to the review hearing has been duly considered by the Tribunal.

6. The applicant appeared before the Tribunal on 29 April 2021 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Mehant the nominee.  On the hearing response provided to the Tribunal prior to the hearing the applicant listed Mr Surjit Dhillon as a witness.  Mr Dhillon provided a written statement dated 22 August 2018.  At the hearing the applicant nor his representative sought to call Mr Dhillon to the hearing.

7. The Tribunal provided the applicant further time to make submissions in relation to the concerns identified by the Tribunal during the course of the hearing until 20 May 2021.  On 19 May 2021 the Tribunal received a request from the applicant’s representative seeking an extension in which to provide further submissions for the following reasons:

   1. Mr Chander Kant, the director of DDD Indian Pty Ltd is waiting on documentation from third parties which will provide substantial weight to the Tribunal’s concerns (listed above), namely information regarding the sale of business.

   1.General

   (a) The applicant seeks an extension of time to provide the information requested, so that Mr Chander Kant as the company’s director may reasonably provide instructions to our office and/or the company’s advisors in order to prepare or collate the information and/or documentation, as requested.

   (b) The Minister for Home Affairs will not suffer any material prejudice as a consequence of an extension of the timeframe.

   (c) The applicant respectfully proposes that an extension of two (2) weeks be provided. (sic)

8. The Tribunal carefully considered the request for a postponement and refused the request.  On 19 May 2021 the Tribunal wrote to the applicant’s representative informing the applicant of the reasons for the refusal, being:

   ·The application was filed on 21 August 2018. The delegate refused the nomination on 7 August 2018 on the basis the applicant did not demonstrate the nominee had been employed in the position on a full-time basis for two of the three years preceding the application.

   ·On 16 December 2018, the applicant requested documents pursuant to s 362A of the Migration Act 1958 which were provided on 4 January 2019.

   ·

   On 5 February 2021, an invitation was issued to the applicant pursuant to

   
   

   s 359(2) of the Migration Act 1958 to provide information by 19 February 2021. On 18 February 2021, the day prior to the response being due, the applicant was granted an extension in relation to the s 359(2) invitation to 26 February 2021.

   ·The applicant was aware the restaurant at Miami’s Indian Kitchen was closed and the nominee was working at a different location prior to the hearing.

   ·The Tribunal provided a further 21 days after the hearing for the applicant to provide post hearing submissions. The applicant did not indicate what documents it was seeking from third parties and why those documents have not previously been available to it.

   ·The  applicant was aware of the issues in which the application was refused since 7 August 2018 and has been provided previous extensions to provide relevant information and post hearing submission; and

   ·The Tribunal considers the applicant has had a reasonable opportunity to prepare its case and provide the information upon which the applicant seeks to rely both prior to and after the hearing of the matter.

9. On 24 May 2021, the Tribunal received an MR5 – Appointment of Representative and Change of Details form appointing Mr Beau Hartnett, principal of Hartnett Lawyers as representative.  The applicant’s newly appointed representative again requested an extension to file further submissions indicating:

   I am advising the applicant and respectfully observe that this particular aspect of the regulations is complex and might be described as unusual necessitating the applicant seeking out appropriate advice in pursuance of the applicant’s obligation to assist the Tribunal.

   I respectfully seek an extension of time of say seven (7) days within which time to take instructions, liaise with the applicant’s other advisors, review documentary evidence and to provide a short form submission to assist the Tribunal.

   We respectfully submit that the applicant simply did not appreciate the importance of the fact of the change of the ownership of the business and that the matters to be considered in addressing the issue and responding to the Tribunal’s invitation to provide further information warrant the obtaining of further advice from a senior practitioner specialising in immigration law.

   The writer is a Queensland Law Society Accredited Specialist in Immigration Law and has agreed to act for the applicant in assisting the Tribunal with the provision of the further information addressing the change of ownership of the business.

   We respectfully submit that in the context of the application for review having been filed on 21 August 2018 an extension of seven (7) days will not give rise to an unreasonable delay in the Tribunal’s performance of its objectives.

10. Notably, the Tribunal already refused a request for an extension for the reasons set out above.  Further, the applicant has been aware of the issue upon which the delegate refused the nomination application since 7 August 2018.  The applicant’s previous representative, Ms Weel is a legal practitioner and director of Ausway which describes itself as Australia’s leading migration agents.  Ms Weel was listed as the representative on the application for review filed on 21 August 2018.   Notably, the applicant’s new representative is listed as a specialist consultant for Ausway.  There is no explanation as to why the applicant and his previous representative were unable to seek the specialist services of Mr Hartnett within the 21 days previously provided to the applicant to provide post hearing submissions.

11. While the Tribunal acknowledges the assertion that the issue may complex for the applicant, the applicant’s previous representative was aware of the central issue upon which the nomination application was refused and made detailed written submissions in relation to r.5.19(3)(c)(i)(A) on 26 February 2021.

12. The Tribunal has provided the applicant with a reasonable opportunity to present its case and respond to the central issue upon which the delegate refused the nomination.  While a further period of seven days is unlikely to create any prejudice, the Tribunal is satisfied the applicant has been afforded a reasonable period of time to provide submissions and evidence to support its’ claims.  The Tribunal considers the applicants most recent conduct in relation to further requests for extensions of time are made for the purpose of creating further and unnecessary delay. 

13. The applicant’s further request for an extension of time in which to provide post hearing submissions is therefore refused.

14. The applicant was represented in relation to the review.

15. For the following reasons, the Tribunal has decided to affirm the decision under review to refuse the nomination.

    CONSIDERATION OF CLAIMS AND EVIDENCE

16. The issue in this case is whether the applicant meets the requirements for approval of the nomination under the Temporary Residence Transition nomination stream set out in

    
    

    r 5.19(3), which is extracted in the attachment to this decision. For the nomination to be approved, all the requirements must be met.

    Previous employment of the nominee: r 5.19(3)(c)

17. Broadly speaking, to meet the requirement in r 5.19(3)(c), either:

    ·     the nominee must have been employed full time in Australia in the position for which he or she holds a Subclass 457 visa for at least two of the three years preceding the nomination application; or

    ·     the nominee holds a Subclass 457 visa on the basis that s/he was identified in a nomination of a specified occupation for that visa, the nominator nominated the occupation, and the nominee has been employed in that occupation for at least two years in the three years immediately before the application.

18. The delegate refused the nomination application on the basis that the applicant had not demonstrated that the nominee had been employed full time in the position for which he had been nominated for at least two of the three years preceding the nomination application.

19. It is common ground that the nominee had not been employed by the applicant on a full-time basis in the position for which he holds the nomination.  The applicant however seeks to satisfy that criteria on the basis of the nominee’s previous employment by The Tandoori Place on Miami Pty Ltd (The Tandoori Place) for the reasons set out in the applicant’s representative’s submissions dated 26 February 2021.

20. The Tribunal was, however, concerned that the applicant had not in fact taken over The Tandoori Place and/or the lease of the relevant premises as was asserted by the applicant.  The previous lease on the premises by The Tandoori Place had expired sometime in December 2016. On the day of the hearing the applicant provided to the Tribunal a lease on the subject premises from 16 January 2017 but dated by the applicant on 10 February 2017. 

21. Further the nominee’s PAYG statements provided to the Tribunal indicate he was not deriving income from either The Tandoori Place or the applicant from 22 February 2017 to 4 September 2017.  The applicant lodged a Subclass 457 visa nomination application for the nominee for the position of Cook (ANZSCO 351411) on 25 May 2017.  Notably, the applicant’s representative told the Tribunal that the nominee was not employed during this period as the 457 visa nomination by the applicant was not approved until 29 August 2017 and it would have been unlawful for the nominee to work during this period.

22. Irrespective of whether or not the applicant was working during the period from 22 February 2017 to 4 September 2017, the Tribunal is not satisfied the applicant has demonstrated any connection between the nominee’s previous employment with The Tandoori Place and the applicant.  The applicant was provided a reasonable opportunity to provide such evidence and did not do so.

23. Notably, the organisational charts provided to the Tribunal indicated that the nominee reported to a Head Chef at Tandoori Place and a restaurant manager at Miami’s Indian Kitchen.  The applicant told the Tribunal that in fact was not the case and at both locations the nominee reported to a restaurant manager.  It is unclear why the organisational chart provided by the applicant in relation to The Tandoori Palace would indicate the nominee reported to a head chef if that was not in fact the case and there was no other independent evidence to verify the nominee’s claim.

24. Further the PAYG summaries provided by the applicant in relation to the nominee’s previous employment with The Tandoori Place are signed by the nominee as the authorised person.  This indicates to the Tribunal that the nominee was engaged in a different role as a cook would not ordinarily be an authorised person for the employer on PAYG statements and suggests a role in the management of that business. 

25. During the course of Mr Kant’s oral evidence, it was disclosed that the applicant had purchased The Tandoori Place for the sum of AUD45,000.  Mr Kant told the Tribunal that he could not locate the sale documents.  The Tribunal does not accept that evidence.  Were the business purchased, those documents are not only relevant to the present application but would be required to be retained for taxation purposes.  It is unclear what the basis of the any sale may have been given the lease by Tandoori Place had already expired and that business was later de-registered by its former owner Mr Dhillon on 20 May 2018.  There is no documentary evidence before the Tribunal that the applicant purchased the business operated by The Tandoori Place. 

26. Notably, the applicant, represented by a legal practitioner had the opportunity to call Mr Dhillon to give evidence at the hearing.  Mr Dhillion was listed as a witness on the hearing response filed by the applicant.  Neither Mr Kant nor the representative sought to adduce evidence from Mr Dhillon at the hearing despite being invited to adduce evidence in relation to any other matter.  The Tribunal has however considered the document signed by Mr Dhillon dated 22 August 2018 during the course of the review.

27. The evidence suggests to the Tribunal that, after the previous lease held by The Tandoori Place expired, the applicant obtained a new lease on the former premises of The Tandoori Place and established its own business unrelated to The Tandoori Place and the assertion by the applicant that it took over or purchased that business through the acquisition of shares or the like and has been constructed to assist the applicant in relation to establishing the requisite criteria in the nomination application.

28. On the basis of the evidence before the Tribunal the Tribunal is not satisfied the applicant has demonstrated the nominee has been employed full time in Australia in the position for which he holds a Subclass 457 visa for at least two of the three years preceding the nomination application.

29. Given the above findings, the requirement in r 5.19(3)(c) is not met.

    Genuine need to employ nominee: r 5.19(3)(i)

30. Regulation 5.19(3)(i) requires that there is a genuine need for the nominator to employ the person, as a paid employee, to work in the position under the nominator’s direct control.

31. The fact is that the nominee is not currently employed in the role for which he was nominated at Miami’s Indian Kitchen but is employed in a similar role within the applicant’s businesses at Palm’s Indian Kitchen.

32. Mr Kant gave divergent evidence in relation to the employment of the nominee first informing the Tribunal that the nominee was temporarily moved to Palm’s Indian Kitchen until Miami’s Indian Kitchen reopened, but then indicated that the nominee would be kept at Palm’s Indian Kitchen as he needs two cooks there.

33. On the basis of the oral evidence of Mr Kant, the Tribunal does not accept that the closure of Miami’s Indian Kitchen is temporary.  Mr Kant told the Tribunal that he does not currently have a lease on those premises and does not have any prospective lease albeit he told the Tribunal he is in verbal contact with the lessor.  Mr Kant told the Tribunal he anticipates that the previous location would again be ready in a few months.

34. Conversely, Mr Kant told the Tribunal in written submissions there was a need for two cooks at Palm’s Indian Kitchen due to a “high need” and the coincidental departure of another cook, Mr Singh around the same time.   At the hearing Mr Kant also asserted that there was a requirement for the nominee to move to Palm’s Indian Kitchen due to his own medical issues and abdominal surgery which prevented him from undertaking the duties of chef at Palm’s Indian Kitchen.  Later Mr Kant told the Tribunal that he never worked as a full-time chef and split his time as chef and front of house.

35. The applicant was invited to provide post hearing submissions in relation to the genuine need to employee the nominee at Palm’s Indian Kitchen and did not do so.  The applicant sought an extension to provide post hearing submissions notwithstanding 21 days was provided to do so.  The request for an extension was refused.  The applicant indicated he was waiting for information from third parties, and more recently specialist advice.  The Tribunal notes that Mr Kant operates Palm’s Indian Kitchen and information in relation to the genuineness of the position at Palm’s Indian Kitchen would reasonably be within the knowledge of Mr Kant and not third parties. 

36. The Tribunal finds the evidence of Mr Kant to be unreliable given the variances in his evidence.  The Tribunal finds that there is no genuine need for the nominator to employ the nominee as a paid employee at Miami’s Indian Kitchen as that restaurant is not operating and there is no reliable evidence before the Tribunal as to when or if it may again do so.  

37. Notwithstanding, the Tribunal provided the applicant the opportunity to demonstrate a genuine need to employ the nominee as a paid employee at Palm’s Indian Kitchen.  The applicant failed to do so, despite having been invited to make post hearing submissions.

38. On the basis of the evidence before the Tribunal, including the oral evidence of Mr Kant, the Tribunal is not satisfied the applicant has demonstrated there is a genuine need for the nominator to employ the person, as a paid employee, to work in the position under the nominator’s direct control.

39. Accordingly, the requirement in r 5.19(3)(i) is not met.

1. For the above reasons the Tribunal is not satisfied that the applicant meets the requirements of r 5.19(3). The applicant has not sought to satisfy the criteria in the Direct Entry nomination stream, and as such has not met the requirements in r 5.19(4). Accordingly, the nomination of the position cannot be approved. Therefore, the Tribunal must affirm the decision under review.

   DECISION

2. The Tribunal affirms the decision under review to refuse the nomination.

   Glenn O’Brien
   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.

   Temporary Residence Transition nomination

   (3)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 person who holds a Subclass 457 … visa granted on the basis that the person satisfied the criterion in subclause 457.223(4) of Schedule 2; and

   (iii)     identifies an occupation, in relation to the position, that:

   (A)is listed in ANZSCO; and

   (B)has the same 4-digit occupation unit group code as the occupation carried  out by the holder of the Subclass 457 … visa; and

   (iv)    identifies a need for the nominator to employ the person, as a paid employee, to work in the position under the nominator’s direct control; and

   (b)the nominator:

   (i)       is, or was, the standard business sponsor who last identified the holder of the Subclass 457 … visa in a nomination made under section 140GB of the Act or under regulation 1.20G or 1.20GA as in force immediately before 14 September 2009; and

   (ii)      is actively and lawfully operating a business in Australia; and

   (iii)     did not, as that standard business sponsor, meet regulation 1.20DA, or paragraph 2.59(h) or 2.68(i), in the most recent approval as a standard business sponsor; and

   (c)either:

   (i)       both of the following apply:

   (A)in the period of 3 years immediately before the nominator made the application, the holder of the Subclass 457 …visa identified in subparagraph (a) (ii) has:    

   (I)held one or more Subclass 457 visas for a total period of at least 2 years; and

   (II)been employed in the position in respect of which the person holds the Subclass 457 … visa for a total period of at least 2 years (not including any period of unpaid leave);

   (B)the employment in the position has been full-time, and undertaken in Australia; or

   (ii)      all of the following apply:

   (A)the person holds the Subclass 457 … visa on the basis that the person was identified in a nomination of an occupation mentioned in sub-subparagraph 2.72(10)(d)(iii)(B) or sub-subparagraph 2.72(10)(e)(iii)(B);

   (B)the nominator nominated the occupation;

   (C)the person has been employed, in the occupation in respect of which the person holds the Subclass 457 … visa, for a total period of at least 2 years in the period of 3 years immediately before the nominator made the application; and

   (d)for a person to whom subparagraph (c)(i) applies:

   (i)       the person will be employed on a full-time basis in the position for at least 2 years; and

   (ii)      the terms and conditions of the person’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)       the nominator:

   (A)fulfilled any commitments the nominator made relating to meeting the nominator’s training requirements during the period of the nominator’s most recent approval as a standard business sponsor; and

   (B)complied with the applicable obligations under Division 2.19 relating to the nominator’s training requirements during the period of the nominator’s most recent approval as a standard business sponsor; or

   (ii)      it is reasonable to disregard subparagraph (i); and

   Note Different training requirements apply depending on whether the application for approval as a standard business sponsor was made before 14 September 2009 or on or after that date.

   (g)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

   (h)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

   (i)there is a genuine need for the nominator to employ the person, as a paid employee, to work in the position under the nominator’s direct control.