ETHNIC CUISINES PTY LTD (Migration)

[2020] AATA 3486

ETHNIC CUISINES PTY LTD (Migration) [2020] AATA 3486 (6 July 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  ETHNIC CUISINES PTY LTD

CASE NUMBER:  1718227

HOME AFFAIRS REFERENCE(S):          BCC2017/854704

MEMBER:De-Anne Kelly

DATE:6 July 2020

PLACE OF DECISION:  Brisbane

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

Statement made on 06 July 2020 at 11:32am

CATCHWORDS
MIGRATION – application for approval of nomination of position – temporary residence transition stream – nominee did not hold Subclass 457 visa or visas for total of two years in three years immediately before position nomination lodged – held visa for three days less than two years – no discretion in matter of fact – no response to invitation to provide updated and current information – decision under review affirmed

LEGISLATION      
Migration Act 1958 (Cth), ss 359(2), 359C(1), 360(3), 363A, 375
Migration Regulations 1994 (Cth), r 5.19(3)(c)(i)(A)(I)
Acts Interpretation Act 1901 (Cth), s 36

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 Immigration and Border Protection on 7 August 2017 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 3 March 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 delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19.(c)(i)(A)(i) of the Regulations because in the three years immediately before this nomination was lodged the holder of the subclass 457(Business (Long stay)) visa has not held one or more Subclass 457 visas for a total period of two years.

5. The applicant was represented in relation to the review by its registered migration agent, Mr Shva Raj Neupane MARN: 1383508.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. 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.

8. The applicant Ethnic Cuisines Pty Ltd trading as Barbeque Nation was established 0n 27 September 2013 under ABN 66 166 037 912 and operated a restaurant from  Wanniassa ACT 2903. There are five Australian employees and four foreign skilled employees. The company has a gross payroll of $168,300 per annum.

9. On the 3 March 2017, the applicant lodged an employer nomination -visa subclass 186 application in the Temporary Residence Transition TRT stream for the nominated position of cook on a base salary of $55,000 per annum in favour of Hamid Mushtaq. The applicant identified Hamid Mushtaq as the holder of subclass 457 (Business (Long Stay)) visa in paragraph (a)(ii) as the nominee.

10. Documents including the following were provided with the original application;

    ·Acknowledgment of Nomination application received dated 3 March 2017.

    ·Online application lodged 3 March 2017.

    ·Food business registration.

    ·Restaurant awards for the applicant.

    ·Certification “No Payment for Sponsorship”.

    ·Financial Statements for 2016.

    ·Profit and loss to 30 June 2015; July 2016 to September 2016.

    ·Payroll activity for 1 July 2016 to 30 September 2016 including the nominee details showing payment of $14,535 and 1 July 2014 to 30 June 2015.

    ·Payroll documents for nominee for 2015 – 2016.

    ·Business Activity Statements Q1 – 2016-17.

    ·PAYG payment summary for nominee from 31 March 2015 to 30 June 2015; 1 July 2015 to 30 June 2016.

    ·Heads of agreement on lease for the premises dated 2016.

    ·ABN details for 66 166 037 912 for the applicant.

    ·ASIC registration for the applicant to 27 September 2017.

    ·Business name registration for Barbeque Nation dated 4 February 2017.

    ·Notification of approval as standard business sponsorship dated 12 January 2015 to 12 January 2018.

    ·Liquor licence for the applicant.

    ·Maximum occupancy of 50 persons.

    ·Menu for the applicant.

    ·Profit and loss to 30 June 2016.

    ·Training plan from McKkrs dated 2014;2016 and 2017and  tax receipts.

    ·Certificate of Commitment to Training from McKkrs dated 2016.

    ·Certificates of completion for employees for training dated 2016.

    ·Employment reference for the nominee from the applicant dated 2 March 2017.

    ·Photos of the kitchen and restaurant.

    ·Position description.

    ·Invitation to comment on adverse information from Department dated 3 July 2017.

    ·Liquor licence dated 21 July 2017.

    ·Food business registration.

    ·Liquor licence dated 21 July 2017.

    ·Lease agreement.

    ·Business expansion plan dated 17 July 2017.

    ·ASIC registration for business nation to 4 February 2020.

    ·Employment contract signed by applicant and nominee dated 3 March 2017.

    ·Handwritten organisation chart for employees.

11. Documents including the following were provided following the review application;

    ·    Notification of the refusal of employer nomination including notice of decision dated 7 August 2017.

    ·    Assorted documents from the applicant in response to the invitation to comment on the s375 Certificate.

12. Documents including the following were provided in response to the invitation to comment on the s375 certificate;

    ·PAYG MehmoodRashid2019

    ·PAYG Zubair IqbalLodhi2018

    ·PAYG KaurSukhjit20187377429] General Submissionated on 1909:22:1Page 1 175

    ·PAYG KhurramShahzad2018

    ·PAYG MehmoodRashid2018

    ·PAYG MUSHTAQHAMID2018

    ·PAYG Shomnath2018

    ·PAYG Vikramjit Singh Mann2018

    ·PAYG Notice of Discontinuance at Fairwork 18 Feb 2019

    ·DIBP Receipt - Nomination

    ·DIBP Receipt - Visa

    ·Migration Agent Costs Paid for by the Company in relation to Brian

    ·Confirmation_of_Health_Cover paid for BRIAN

    ·Financial Statements Financial Year 2016-2017

    ·Financial Statements Financial Year 2017-2018

    ·Financial Statements Financial Year 2018-2019

    ·Brian Lopes - Surveillance Report 2.docx

    ·Termination Documents Brian

    ·Brian Lopes - Surveillance Report 1.docx

    ·BRIAN ALEX FULL AND FINAL

    ·Withdrawal of Nomination and supporting documents

    ·STAT DEC Sukhjit Kaur former 457 employee with Photo ID

    ·STAT DEC Vikramjit former 457 employee with Photo ID

    ·STAT DEC Hamid Mushtaq former 457 employee with Photo ID

    ·STAT DEC Rashid Mehmood former 457 employee with Photo ID

    ·Bank salary transactions 1 march to 30 june 2019

    ·Bank salary transactions June 2018 to Feb 2019

    ·Print activity statement Apr-Jun 2019

    ·Print activity statement Jan-Mar 2019

    ·Print activity statement Apr-Jun 2018

    ·Print activity statement Jan-Mar 18

    ·Print activity statement Jul-Sep 2018

    ·Print activity statement Oct-Dec 2018

    ·BANK STATEMENT 1 JULY 2017 TO 30 SEPT 2017

    ·PAYG KaurSukhjit2019

    ·PAYG KhurramShahzad2019

    ·PAYG Brian Alex Lopes2019

    ·PAYG MUSHTAQHAMID2019

    ·PAYG Shomnath2019

    ·PAYG Vikramjit Singh Mann2019.

    ·PAYG Zubair IqbalLodhi2019

    ·36 page letter from the applicant defending the allegations in the s375 certificate.

    Tribunal Invitation to Provide Information

13. On 24 February 2020 the Tribunal invited the applicant under section 359(2) of the Act to provide updated and current information that demonstrated that the nomination met all of the criteria in regulation 5.19 of the Regulations at the time of its decision.

14. The combined invitation also specifically stated that the Tribunal must receive the applicant’s comments / response and the requested information by 9 March 2020, or within the period allowed for this purpose, or it would lose any entitlement it might otherwise have under the Act to appear before the Tribunal. 

15. The applicant did not provide its requested information, within the prescribed period.

16. This means that subsection 359C (1) and subsection 360(3) apply to the applicant and it is not entitled to appear before the Tribunal. Under section 363A, the Tribunal does not have the power to permit a party to do something it is not entitled to do, unless a provision expressly provides otherwise. Section 360 does not provide otherwise.

17. In addition, the Courts have confirmed that where an applicant fails to respond to a written invitation under subsection 359(2) of the Act within the prescribed period, section 363A of the Act precludes the Tribunal from offering an applicant a hearing.

18. Accordingly, as the applicant failed to give the information requested within the prescribed period, it has lost its right to appear before the Tribunal to give evidence and present arguments relating to the application for review.

19. The Tribunal finds it is reasonable to make a decision on the evidence before it.

    Section 375A certificate from the Department of Home Affairs

20. On the 5 June 2020, the Tribunal invited the applicant to comment on or respond to information in a s.375A certificate from the Department of Home Affairs file dated BCC2017?854704 dated 5 April 2019 which contains an allegation that the applicant is charging their employees an amount of money for sponsorship and that the applicant was not paying proper wages. It was further alleged that there are six people in the company that have been affected in such as manner.

21. The Tribunal further advised that the Member places no weight on the allegation, subject to any comments or information put by the applicant to the Tribunal on the validity of the certificate and the gist of the information provided. In response the applicant stated that the allegations were likely made by a chef whose employment was terminated and had threatened to cause trouble for the applicant. Statutory declarations were submitted from employees attesting that these allegations are false. Other information was provided such as reports by a private agency that was hired to follow the movements of the chef whose employment was terminated. The applicant states that these allegations have caused great financial loss for them.

22. The Tribunal places no weight on anonymous allegations in making a decision and as such will not consider the allegations any further.

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

23. 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 2 of the 3 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 2 years in the 3 years immediately before the application.

24. Regulation 5.19(3)(c) has two streams the applicant can meet namely (i) or (ii) as shown below;

    (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 (Temporary Work (Skilled)) 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 (Temporary Work (Skilled)) 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 (Temporary Work (Skilled)) 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 theSubclass 457 (Temporary Work (Skilled)) visa, for a total
    period of at least 2 years in the period of 3 years immediately before the nominator made the application; (Emphasis added).

25. For an applicant to meet r.5.19(3)(c)(ii) they must have a nomination that was mentioned in either in r.2.72(10)(d)(iii)(B) or r.2.72(10)(e)(iii)(B). The former regulation refers to a nomination made before 1 July 2010 and does not apply to the present nomination which was made on 3 March 2017. Regulation 2.72(10)(e)(iii)(B) applies to nominations made after 1 July 2019 and is applicable to the timeframe in which this nomination was made. It is this regulation that the Tribunal must consider.

26. Regulation 2.72(10)(e)(iii)(B) provides as follows;

    (B)  the nominated occupation is an occupation specified by the Minister in an instrument in writing for this sub-subparagraph.

27. The instrument in writing at that time was “Migration Regulations 1994 - Specification of Occupations for Nominations in Relation to Subclass 457 (Temporary Work (Skilled)) for Positions other than in the Business of the Nominator - IMMI 13/067’. The instrument lists the position of General Manager and the balance are medical occupations including a list of specialist medical occupations. Cook which is the nominated occupation for this case is not on this list. The Tribunal finds the applicant cannot meet r.2.72(10)(d)(iii)(B) or r.2.27(10)(e)(iii)(B) since their nominated occupation is either not in the required time frame or not in the instrument in writing for this regulation and therefore cannot meet r.5.19(3)(c)(ii).

28. The applicant must therefore seek to meet r.5.19(3)(c)(i). The first requirement to meet is as follows;

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

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

29. The applicant identified the holder of the subclass 457 visa as Mr Hamid Mushtaq and he is required to have held the 457 visa for at least two years in the period of three years immediately before the nomination was made on the 3 March 2017.  Therefore, the nominee Mr Hamid Mushtaq must have at least held a 457 visa from 3 March 2015 to the 3 March 2017.  

30. In the Notice of Decision regarding the refusal of the nomination application which the applicant provided with their review application, the delegate stated that Mr Hamid Mushtaq, the nominee was granted his 457 visa on the 6 March 2015. The delegate further stated that the nominee did not hold any previous subclass 457 visa.

31. The applicant must have been aware of the reason for the delegates decision and the fact that they needed to provide information that the nominee had held his subclass 457 visa for a total of at least two years in the period of three years immediately before the nominator made the application because they submitted the Notice of Decision with their review application which clearly stated the reason for the refusal.

32. On the 25 February 2020, the Tribunal wrote to the applicant inviting them to provide information to satisfy r.5.19(3) but did not receive a response to that invitation.

33. The Tribunal has carefully considered all the documents provided by the applicant but cannot find anywhere that the applicant disputes 6 March 2015 as the grant date of the nominee’s subclass 457 visa or disputes that he held only one 457 visa prior to the nomination being made. There has been no evidence provided regarding the visa grant dates of the nominee to counter the information that the nominee was granted his only 457 visa on the 6 March 2015.

34. The Tribunal considers that the applicant has been given the notice of decision by the delegate advising them of the reason for the nomination refusal and an invitation by the Tribunal to provide information or evidence to satisfy r.5.19(3) but has failed to do so.

35. The Tribunal considers it is reasonable to proceed to a decision on this case.

36. The Tribunal needs to consider the time frame that must be satisfied in the legislation. The nominator lodged the application on 3 March 2017 and the day ‘immediately before’ can be found by referring to section 36 of the Acts Interpretation Act 1901 which provides time frames for reading legislation.

    (1)  A period of time referred to in an Act that is of a kind mentioned in column 1 of an item in the following table is to be calculated according to the rule mentioned in column 2 of that item:

Calculating periods of time
Item	Column 1 If the period of time:	Column 2 then the period of time:
1	is expressed to occur between 2 days	includes both days.
2	is expressed to begin at, on or with a specified day	includes that day.
3	is expressed to continue until a specified day	includes that day.
4	is expressed to end at, on or with a specified day	includes that day.
5	is expressed to begin from a specified day	does not include that day.
6	is expressed to begin after a specified day	does not include that day.
7	is expressed to end before a specified day	does not include that day.

1. The Tribunal considers that the phrase “immediately before the nominator made the nomination” is most similar to Item 7 and therefore would not include the day of the nomination.  As such the period of at least two years immediately before the nominator made the nomination application on the 3 March 2017 would be the 3 March 2015 to 2 March 2017. The holder of the Subclass 457 (Temporary Work (Skilled)) visa identified in the application and subparagraph (a)(ii) has held one visa from 6 March 2015 to 2 March 2017 and therefore less than a period of “at least two years”. There is no discretion in this matter as it is a matter of fact.

2. The Tribunal finds in the period of three years immediately before the nominator made the application on the 3 March 2017, the holder of the Subclass 457 (Temporary work (Skilled)) visa has not held one or more subclass 457 visas for a total period of at least two years.

3. Therefore r.5.19(3)(c)(i) is not met.

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

5. 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 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

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

   De-Anne Kelly
   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

   (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.