Eastern Tiger Restaurant Nowra Pty Ltd (Migration)
[2023] AATA 305
•13 February 2023
Eastern Tiger Restaurant Nowra Pty Ltd (Migration) [2023] AATA 305 (13 February 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT: Eastern Tiger Restaurant Nowra Pty Ltd
REPRESENTATIVE: Mr Jiang Liu
CASE NUMBER: 1918572
HOME AFFAIRS REFERENCE(S): BCC2018/1056565
MEMBER:De-Anne Kelly
DATE:13 February 2023
PLACE OF DECISION: Brisbane
DECISION:The Tribunal affirms the decision under review to refuse the nomination.
Statement made on 13 February 2023 at 2:21pm
CATCHWORDS
MIGRATION – application for approval of nomination of position – direct entry stream – genuine need for position – position did not become vacant through attrition or expansion – non-attendance at hearing advised but not explained – no evidence of current operation – decision under review affirmedLEGISLATION
Migration Act 1958 (Cth), s 375
Migration Regulations 1994 (Cth), r 5.19(4)(b), (h)(ii)(B)CASE
Bharaj Construction Pty Ltd v MIBP [2016] FCCA 902STATEMENT 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 6 July 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 applied for approval on 6 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)(h)(ii)(B) the Regulations because the applicant did not demonstrate a genuine need for the position because the position did not become vacant through attrition or expansion.
The applicant to appear before the Tribunal on 13 February 2023 at 10 AM Brisbane time for a 2:30 hours hearing however on10 February 2023 the agent wrote advising that neither the applicant nor the agent would be attending the hearing. No explanation was given for the non-attendance nor was a postponement or adjournment requested. On the morning of the hearing the registry telephoned the agent who confirmed that the applicant would not be attending the hearing.
The applicant was represented in relation to the review by Mr Jiang Liu.
For the following reasons, the Tribunal has decided to affirm the decision under review to refuse the nomination.
Section 375 Certificate
On 16 January 2023 the Tribunal invited the applicant to comment on the validity of a s375 certificate by 23 January 2023 however they responded stating they could not comment until they were appraised of the information in the certificate. On 1 February 2023 the Tribunal will invited the applicant to respond by 13 February 2023, to the overall gist of the information in the certificate namely that the relevant regional certifying body assessed the application as not satisfying the requirements as the terms and conditions of employment were not as favourable as those that would be provided to an Australian citizen or Australian permanent resident performing equivalent work in a person’s workplace at the same location and the applicant had not satisfied the criteria that the position could not be filled by an Australian citizen or Australian permanent resident who is living in the same local area where the nominated position exists.
To date there has been no response to the invitation to comment.
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.
On 6 March 2018 the applicant lodged a Regional Sponsored Migration Scheme employer nomination visa subclass 187 in the Direct Entry Stream for the position of Cook on $53,910 per annum to be employed in Nowra NSW 2541 in favour of Mr Yize JIANG. The director of the business is listed as Mr Hao LU.
The nominating business is an accommodation and food services business located in Nowra, New South Wales. In the nomination application, the nominator advised that the business was established or commenced trading in Australia on 10 Aug 2015 and employs a total of 16 employees, comprising 11 Australian employees (including Australian citizens and permanent residents) and five foreign employees.
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.
A Google screen shot for the restaurant states that it is permanently closed, and it is noted that the latest financial information dates to FY 2017. There is scant contemporary financial evidence to show that the restaurant is operating such as current BAS statements, financial statements or tax returns. There is scant evidence of a lease agreement for operational premises.
On the evidence to hand that Tribunal cannot be satisfied that the applicant is actively, lawfully, and directly operating a business in Australia.
Accordingly, the requirement in reg 5.19(4)(b) is not 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 but can be briefly summarised as requiring either that:
·the tasks to be performed in the position will be performed in Australia and correspond to those of an occupation specified by the Minister in a legislative instrument, the occupation is applicable to the proposed employee in accordance with any specifications made in that instrument, there is a genuine need for the nominee to be employed as a paid employee in the position, and certain specified training requirements are met; or
·the position and nominator’s business is located in regional Australia, there is a genuine need for the nominee to be employed as a paid employee in the position under the nominator’s direct control, the position 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.
Genuine need – reg 5.19(4)(h)(ii)(B).
There is a genuine need for the nominator to employ the person identified under reg 5.19(4)(a)(ii) as a paid employee to work in the position under the nominator’s direct control.
A Google screen shot for the restaurant states that it is permanently closed, and it is noted that the latest financial information dates to FY 2017. There is no contemporary financial evidence to show that the restaurant is operating such as current BAS statements, financial statements or tax returns. There is scant evidence of a lease agreement for operational premises and no organisational chart showing how the position fits into the overall scope of the business. There is scant evidence that the nominee has been filling the nominated position such as payslips or tax returns for the nominee which would indicate that there is a genuine need for the position.
The Tribunal would have welcomed the opportunity to put these concerns to the applicant and give them the opportunity to present evidence to support their case however they have declined the invitation to attend a hearing.
The Tribunal notes the Regional Certifying body RCB assessment stated that the application did not meet their requirements however it is clear from the construct of r.5.19(4)(h)(ii)(C) that the decision-maker, while considering the RCB advice, must make a finding on this matter independent of the regional certifying body advice.
The Courts have found that to be the case in Bharaj Construction Pty Ltd v MIBP [2016] FCCA 902 at [81] where it considered a similar requirement in the pre-July 2012 version of r.5.19(4), and commented in obiter that the use of the word ‘advice’ undoubtedly puts beyond doubt the construction of r.5.19(4), i.e. the advice is to be considered by the Minister (or Tribunal) in determining whether those requirements are satisfied but it is not determinative.[1] In Bharaj (No 3). the Court confirmed that the judgment in Bharaj 2016 was correct in holding that there was nothing in the language, text or structure of r.5.19(4) to support the view that the advice given by a regional certifying body is conclusive evidence that the requirements in subparagraphs (a) to (c) have been met.
[1] Bharaj Construction Pty Ltd v MIBP [2016] FCCA 902 at [81].
The Tribunal considers it is reasonable to move to a decision on this matter.
In the absence of evidence that the position fits into the overall scope of the operation such as an organisation chart or evidence that the nominee has been filling the position or evidence that the business has expanded and has a genuine need for the position or that the position has become vacant through attrition the Tribunal is unable to be satisfied that there is a genuine need for the nominator to employ the person identified under subparagraph (a)(ii), (the nominee) as a paid employee, to work in the position under the nominator’s direct control.
Accordingly, the requirements of reg 5.19(4)(h) are 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.
De-Anne Kelly
MemberATTACHMENT - 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, 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).
Schedule 1 – Case 1918572
Documents including the following were provided with the original application.
1)Online application for employer nomination 6 March 2018.
2)Acknowledgement of application received 6 March 2018.
3)ASIC registration.
4)Staff structure chart and list of staff employed.
5)Employment contract 21 February 2018 showing position as Cook on $53,910 per annum.
6)Financial report FY 2017.
7)Regional certifying body assessment 19 June 2018 stating that it does not satisfy their requirements.
Documents including the following were provided after the review application was lodged.
8)Notification of refusal of nomination 6 July 2019 including notice of decision.
9)Hearing availability request June 2022 from the Tribunal.
10)Invitation to comment from the Tribunal 16 January 2023 with a copy of certificate attached.
11)Email 23 January 2023 from the applicant stating they cannot comment without being aware of the contents of the certificate.
12)27 January 2023 invitation from the tribunal to attend hearing.
13)1 February 2023 letter to the applicant from the Tribunal giving the list of the information covered by the certificate.
14) 10 February 2023 email from the agent to the Tribunal advising that neither the applicant nor the agent will attend the scheduled hearing.
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
Legal Concepts
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Judicial Review
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Procedural Fairness
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Statutory Construction
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Jurisdiction
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