Ex-RPH Trust ATF Mega 3 Pty Ltd (Migration) - [2021] AATA 3753

Ex-RPH Trust ATF Mega 3 Pty Ltd (Migration) [2021] AATA 3753 (27 September 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Ex-RPH Trust ATF Mega 3 Pty Ltd
CASE NUMBER:  1833704
HOME AFFAIRS REFERENCE(S):          BCC2018/753837
MEMBER:Susan Reece Jones
DATE:27 September 2021
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision under review to refuse the nomination.

Statement made on 27 September 2021 at 4:13pm

CATCHWORDS
MIGRATION – application for approval of nomination of position – direct entry nomination stream – genuine need for position, actively operating business and employment for 2 years – no response to tribunal’s invitation to provide updated information – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 359(2), 359C(1), 360(3), 363A
Migration Regulations 1994 (Cth), r 5.19(4)(a)(ii), (b), (d)
CASE
Hasran v MIAC (2010) 183 FCR 413
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 24 October 2018 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 14 February 2018. The requirements for the approval of the nomination of a position of Cook (ANZSCO: 351411) 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(a) of the Regulations because the applicant failed to provide sufficient information to indicate that the applicant had a need for a full time position and did not provide evidence to justify and substantiate the need for a full-time employee in the position of Cook.
The Tribunal received a review application on 16 November 2018. It was lodged on behalf of the applicant by its director, Mr Steven Papagelou. It was accompanied by a copy of the delegate’s decision and an authority by which Mr Papagelou appointed a registered migration agent, Ms Sarabjit Kaur, to be the applicant’s representative and authorised recipient for correspondence.
On 22 July 2021, the Tribunal wrote via email to the agent pursuant to s.359(2) of the Act to invite Mr Papagelou to provide up to date and current information demonstrating that the applicant met all of the applicable r.5.19(3) criteria (not merely the subparagraph that the delegate had found was not met).
The Tribunal provided the agent and Mr Papagelou with a copy of r.5.19(3) for reference and provided…

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.

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Details

Case: [2021] AATA 3753
Decision Date: 27 September 2021

CaseChat Overview and Summary

This matter concerned an application for approval of a nomination of a position under the Direct Entry nomination stream, brought before the Administrative Appeals Tribunal. The applicant sought to have a nomination for the position of Cook at a restaurant trading as ‘Villa Romana’ approved.

The Tribunal was required to determine whether the applicant met the requirements for approval of the nomination as set out in regulation 5.19(4) of the Migration Regulations 1994. Specifically, the Tribunal considered whether the application identified a genuine need for the position, whether the nominator was actively and lawfully operating a business in Australia, and whether the proposed employment would be for at least two years.

The Tribunal found that the applicant had failed to provide updated information in response to a request from the Tribunal, despite being advised that failure to do so would result in the loss of entitlement to a hearing and the possibility of a decision being made without further action. Consequently, the Tribunal lacked sufficient information to establish a current genuine need for the position of Cook or evidence of full-time employment for at least two years, meaning regulation 5.19(4)(a) was not met. Furthermore, without the requested documentation, the Tribunal could not be satisfied that the nominator was actively and lawfully operating a business in Australia, thus failing to meet regulation 5.19(4)(b). As the failure to meet any one of these subparagraphs was sufficient to prevent approval, the Tribunal did not consider the remaining criteria.

The Tribunal affirmed the decision under review to refuse 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 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 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.The application is compliant: reg 5.19(4)(a) Regulation 5.19(4)(a) requires that the application for approval must be in the approved form, must be accompanied by the prescribed fee, and, where applicable, must include the required written certification relating to conduct that contravenes s 245AR(1). The application must also identify a need for the nominator to employ an identified person as a paid employee to work in the position under their direct control According to the information provided with the application, the position of Cook was to be located in a restaurant trading as ‘Villa Romana” located in Cairns, Queensland. When the application for review was lodged, the application form was accompanied by a copy of the Department’s decision. Regulation r 5.19(4)(a)(ii) requires that the application identify a need for a paid employee to work in the position under the direct control of the nominator. The Tribunal wrote to the applicant pursuant to s 359(2) of the Act on 22 July 2021 requesting the applicant provide updated and current information addressing the requirements in r 5.19(4) including (a)(ii). The applicant was advised that if no response was received, they would lose any entitlement to a hearing and the Tribunal may make a decision without taking any further action. The invitation for further information was sent to the last email address provided to the Tribunal. No response was received by the due date. As no response was received from the applicant, the Tribunal considers that there is insufficient information before it to establish that there is currently a genuine need for the position of Cook. Nor is the Tribunal in receipt of any evidence to support a finding that the applicant will employ the nominee on a full-time basis for at least two years. Accordingly, the requirement in reg 5.19(4)(a) is not met.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. As noted at paragraphs 21 and 22 above, no response was received from the applicant, and consequently, the Tribunal does not have any information (such as a copy of ASIC Current and Historical Extract, ABN Lookup records, BAS, Financial Statement, ATO tax returns and Organisational chart), to demonstrate that the business is currently actively and lawfully operating a business in Australia. Accordingly, the requirement in reg 5.19(4)(b) is not met.Term of employment of the visa holder: reg 5.19(4)(d)

Decision

Reasons for decision

For the above reasons, the Tribunal is not satisfied that the applicant meets the requirements of r.5.19(4), as failure to meet any 1 of the subparagraphs is sufficient for the criteria in r.5.19(4) not to be met as a whole. As noted at paragraph 23 above, the Tribunal has found that r.5.19(4)(a) (b) and (d) are not met, and therefore it is unnecessary for it to consider the remaining r.5.19(4) criteria. 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.Susan Reece JonesMemberATTACHMENT - EXTRACTS FROM THE MIGRATION REGULATIONS 19945.19Approval 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 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).

Ratio Decidendi

Legal Principle Established

The Tribunal affirms the decision under review to refuse the nomination.Susan Reece JonesMemberATTACHMENT - EXTRACTS FROM THE MIGRATION REGULATIONS 19945.19Approval 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 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).