FI INVESTMENTS AUSTRALIA PTY LTD (Migration)
[2024] AATA 470
•8 January 2024
FI INVESTMENTS AUSTRALIA PTY LTD (Migration) [2024] AATA 470 (8 January 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT: FI Investments Australia Pty Ltd
REPRESENTATIVE: Mrs Sun Mi Hislop (MARN: 1383279)
CASE NUMBER: 2112060
HOME AFFAIRS REFERENCE(S): BCC2020/2230638
MEMBER:Katie Malyon
DATE:8 January 2024
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision not to approve the nomination.
Statement made on 08 January 2024 at 12:18 pm
CATCHWORDS
MIGRATION – nomination – Cook – applicant failed to provide the requested information within the prescribed period – there was adverse information about the Company – no evidence to confirm that the Company currently operates another restaurant elsewhere – lack of any current information about the nominee, the program and the business – decision under review affirmedLEGISLATION
Migration Act 1958, ss 65, 140GB, 359, 360, 363
Migration Regulations 1994, rr 1.13, 2.72, 2.73CASES
Cargo First Pty Ltd v MIBP [2016] FCA 30
Hasran v MIAC [2010] FCAFC 40Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617
Manna v Minister for Immigration and Citizenship [2012] FMCA 28
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 26 August 2021 to refuse to approve the applicant’s nomination under s 140GB of the Migration Act 1958 (Cth) (the Act) and reg 2.72 of the Migration Regulations 1994 (Cth) (the Regulations).
The applicant, FI Investments Australia Pty Ltd T/A Fernandos Italian Restaurant ABN 35 632 118 631 (the Company), applied for approval on 2 September 2020. In its nomination, the Company indicated it was seeking approval to nominate Mrs Sandeep Kaur for the position of Cook ANZSCO 351411. The Company claimed to operate its restaurant at 118 Norton Street, Leichhardt.
A nomination of an occupation for a Subclass 482 visa is made under s 140GB of the Act and reg 2.73 of the Regulations. The occupation must be nominated for a Subclass 482 visa in one of three alternative streams: the Short-term stream; the Medium-term stream; or, the Labour Agreement stream. Regulation 2.72 prescribes general and stream-specific criteria that must be satisfied for the Minister to approve a nomination by a person. Relevant provisions of the Regulations are extracted in the Attachment to this decision. Additional criteria are specified in s 140GBA of the Act.
The delegate decided not to approve the nomination on the basis that the Company did not satisfy reg 2.72(4)(a) of the Regulations because there was adverse information about the Company since its website indicated that the restaurant was closed having been purchased by another business, namely, Costinellup Pty Ltd (Costinellup) which operated the business known as Fratelli Lupo at 118 Norton Street, Leichhardt. Further, the delegate noted that the Director of the Company, Anthony Riggio, was also a Director of a related entity AR Enterprises NSW Pty Ltd (AR Enterprises). ASIC records confirmed that AR Enterprises had its ABN cancelled from 7 November 2019 and it was not registered for GST. This led the Department to cancel AR Enterprises’ approval as a standard business sponsor on 13 November 2020. Having regard to all available evidence, the delegate was not satisfied that Fernandos Italian Restaurant was operating. As such, the delegate had concerns that this was adverse information about the Company and that reg 2.72(4)(a) of the Regulations may not be met. The Department wrote to the Company on 2 January 2021 inviting it pursuant to s 56 of the Act to comment on this adverse information. No response was received to the Department’s natural justice letter.
Subsequently, the delegate established that the Company’s ABN was cancelled on 6 August 2021. A copy of the delegate’s refusal decision was provided to the Tribunal together with the review application. However, inconsistent with the relevant AAT Practice Direction, no documentation was lodged by the Company or its representative to address the delegate’s reasons for refusing the Company’s nomination.
The Tribunal’s s 359(2) letter
To enable the Tribunal to assess whether the Company meets all of the relevant requirements for approval of its nomination, the Tribunal wrote to the Company pursuant to
s 359(2) of the Act on 16 October 2023 and invited it to provide updated and current information about the business and the nominated position. The Tribunal’s letter was sent to the person appointed to receive communications on behalf of the Company, registered migration agent, Mrs Sun Mi Hislop.
The Tribunal’s s 359(2) letter advised the Company that, if information in writing was not received by the Tribunal on or before 30 October 2023 or, in the alternative, if it did not, on or before that date, make a request for an extension of time in which to provide the information, the Tribunal may make a decision on the review without taking further steps to obtain the information; and, the Company would lose any entitlement it might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.
The Company has not provided the requested information within the prescribed period and no extension of time has been sought, or granted. In these circumstances, s 359C of the Act applies and, pursuant to s 360(3) of the Act, the Company is not entitled to appear before the Tribunal. If a review applicant has no entitlement to a hearing, the effect of s 363A of the Act is that the Tribunal has no power to permit the applicant to appear: Hasran v MIAC [2010] FCAFC 40.
The Tribunal has considered whether this is an appropriate case for it to adjourn the review under s 363(1)(b) of the Act to allow the Company additional time in which to provide evidence to support the review application. In this regard, the Tribunal has considered whether, in the circumstances of this case and having regard to the impact of the COVID-19 pandemic on the hospitality industry, evidence that the Company meets all relevant requirements in reg 2.72 of the Regulations and s 140GBA of the Act is likely to be forthcoming, whether it has had a fair opportunity to provide the relevant information or documents already, and the significance of the information or documents to the Company. The Tribunal has also considered the decisions in Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617 and Manna v Minister for Immigration and Citizenship [2012] FMCA 28 where the Courts have held that the Tribunal is not required to indefinitely defer its decision-making processes.
The Tribunal’s s 359(2) letter invited the Company to provide updated and current information to demonstrate that its nomination meets all of the relevant requirements in reg 2.72 of the Regulations and s 140GBA of the Act. The Tribunal is satisfied that its s 359(2) letter was properly dispatched to the Company’s representative, Mrs Hislop, to her email address provided in the review application. The Company has failed to provide any documentation in response to the Tribunal’s invitation within the prescribed period set for this purpose, and nor has it requested additional time in which to provide this information.
In the circumstances of this case, the Tribunal considers that Company has had sufficient time in which to address all of the issues arising on review, or request an extension of time to address these issues. Accordingly, the Tribunal has decided not to exercise its discretion under s 363(1)(b) of the Act to adjourn the review any further. The Tribunal has determined to make a decision on the review without taking any further action to obtain the information in accordance with s 359C of the Act.
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 the present case is whether the Company meets all of the relevant criteria for approval of its nomination. The Tribunal must approve the nomination if the Company is an approved work sponsor and meets the requirements in reg 2.72: s 140GB(2) of the Act. It must also have paid any nomination training contribution charge in relation to the nomination for which it is liable. In addition, the labour market testing requirements in s 140GBA of the Act must be met.
Although the delegate refused the Company’s nomination of the position of Cook ANZSCO 351411 for Mrs Sandeep Kaur on the basis that there was adverse information about the Company, the Tribunal has also considered whether another requirement in reg 2.72(10) of the Regulations is met.
No adverse information known to Immigration
Regulation 2.72(4) requires that either: there is no adverse information known to Immigration about the applicant or a person associated with the applicant; or it is reasonable to disregard such information. For these purposes, ‘adverse information’ and ‘associated with’ have the meaning given in reg 1.13A and reg 1.13B of the Regulations.
As set out in the delegate’s decision, a copy of which was provided to the Tribunal, the Department was aware of the following adverse information about the Company:
1)its website indicated that Fernandos Italian Restaurant at 118 Norton Street, Leichhardt was closed having been purchased by Costinellup which operated the business known as Fratelli Lupo at that site; and,
2)Company Director, Anthony Riggio, was also a Director of related entity AR Enterprises which had its ABN cancelled from 7 November 2019 and was not registered for GST purposes. This led the Department to cancel its standard business sponsorship approval on 13 November 2020.
In addition, the Department had not been informed that the Company’s Fernandos Italian Restaurant was not operating as established by its review of ASIC records. These records confirmed that the Company’s ABN was cancelled on 6 August 2021.
The Tribunal concurs with the delegate’s findings that the information outlined immediately above is adverse information about the Company and its Director Anthony Riggio: as such, it is relevant to the Company’s suitability as a sponsor or nominator: reg 1.13A(1) of the Regulations. It is the Tribunal’s view that Mr Riggio has a positive obligation to inform the Department of the information set out at para [16] and address the reasons why it would be reasonable to disregard this information as required by reg 2.72(4)(b) of the Regulations. The Tribunal has before it no information to address whether it is reasonable, in the circumstances of this case, to disregard the adverse information about the Company and Anthony Riggio.
For these reasons, the Tribunal is satisfied that the requirements of reg 2.72(4) are not met.
Position must be genuine and full-time
Regulation 2.72(10)(a) requires that the position associated with the nominated occupation is genuine. A similar requirement was considered in Cargo First Pty Ltd v MIBP [2016] FCA 30, where the Court (at [34]) upheld the Tribunal’s approach of qualitatively assessing the position and comparing this with the occupation nominated in order to determine whether it was genuine. In addition, reg 2.72(10)(b) requires the position to be a full-time position, unless it is reasonable to disregard this requirement.
The Department’s file contains some evidence addressing the genuineness requirement at the time of lodgement of its application on 20 September 2020 in support of the Company’s nomination. However, despite the Tribunal in its s 359(2) letter requesting the Company provide current and updated evidence that it is actively operating a business which requires the services of the nominee to work as a Cook, no such evidence has been provided. Relevant to its consideration in regard, the Company has not provided evidence of recent signed Financial Reports, Company Tax Returns downloaded from the website of the Australian Taxation Office (ATO) or the Company’s Business Activity Statements as lodged with the ATO. Further, no evidence of its organisational structure or menu has been provided to the Tribunal. There is no evidence before the Tribunal to confirm that the Company currently operates another restaurant elsewhere.
Having regard to available evidence, the Tribunal cannot be satisfied that the position associated with the nominated occupation of Cook is genuine and that the Company requires the nominee Mrs Sandeep Kaur to fill the position on a full-time basis as the holder of a Subclass 482 visa. As such, the Tribunal finds that the requirements in reg 2.72(10)(a) and reg 2.72(10)(b) of the Regulations are not met.
Accordingly, the requirements of reg 2.72(10) of the Regulations are not met.
Conclusion
For the reasons given above, the Tribunal is not satisfied that the Company meets the applicable criteria for approval of its nomination. In these circumstances, the decision under review must be affirmed.
DECISION
The Tribunal affirms the decision not to approve the nomination.
Katie Malyon
MemberATTACHMENT - EXTRACTS FROM THE MIGRATION REGULATIONS 1994
1.13A Meaning of adverse information
(1) Adverse information about a person is any adverse information relevant to the person's suitability as:
(a) an approved sponsor; or
(b) a nominator (within the meaning of regulation 5.19).
(2) Without limiting subregulation (1), adverse information about a person includes information that the person:
(a) has contravened a law of the Commonwealth, a State or a Territory; or
(b) is under investigation, subject to disciplinary action or subject to legal proceedings in relation to a contravention of such a law; or
(c) has been the subject of administrative action (including being issued with a warning) for a possible contravention of such a law by a Department or regulatory authority that administers or enforces the law; or
(d) has become insolvent (within the meaning of section 95A of the Corporations Act 2001 ); or
(e) has given, or caused to be given, to the Minister, an officer, the Tribunal or an assessing authority a bogus document, or information that is false or misleading in a material particular.
(3) Nothing in this regulation affects the operation of Part VIIC of the Crimes Act 1914(which includes provisions that, in certain circumstances, relieve persons from the requirement to disclose spent convictions and require persons aware of such convictions to disregard them).
(4) In this regulation: "information that is false or misleading in a material particular " means information that is:
(a) false or misleading at the time it is given; and
(b) relevant to any of the matters the Minister may consider when making a decision under the Act or these Regulations, whether or not the decision is made because of that information.
Note: For the definition of bogus document , see subsection 5(1) of the Act.
1.13B Meaning of associated with
(1) Two persons are associated with each other if:
(a) they:
(i) are or were spouses or de facto partners; or
(ii) are or were members of the same immediate, blended or extended family; or
(iii) have or had a family-like relationship; or
(iv) belong or belonged to the same social group, unincorporated association or other body of persons; or
(v) have or had common friends or acquaintances; or
(b) one is or was a consultant, adviser, partner, representative on retainer, officer, employer, employee or member of:
(i) the other; or
(ii) any corporation or other body in which the other is or was involved (including as an officer, employee or member); or
(c) a third person is or was a consultant, adviser, partner, representative on retainer, officer, employer, employee or member of both of them; or
(d) they are or were related bodies corporate (within the meaning of the Corporations Act 2001); or
(e) one is or was able to exercise influence or control over the other; or
(f) a third person is or was able to exercise influence or control over both of them.
(2) For the purposes of subregulation (1), it does not matter if a person has ceased to exist.
(3) This regulation does not limit the circumstances in which persons are associated with each other.
(4) In this regulation: "officer " has the meaning given by section 9 of the Corporations Act 2001.
…
2.72 Criteria for approval of nomination--Subclass 457 (Temporary Work (Skilled)) visa and Subclass 482 (Temporary Skill Shortage) visa
(1)This regulation applies in relation to a person who:
(a)is any of the following:
(i) a standard business sponsor;
(ii) a person who has applied to be a standard business sponsor;
(iii) …
(iv) …
(b)under paragraph 140GB(1)(b) of the Act, nominates a proposed occupation in relation to any of the following (the nominee):
(i) a holder of a Subclass 457 (Temporary Work (Skilled)) visa;
(ii) a holder of a Subclass 482 (Temporary Skill Shortage) visa;
(iii) an applicant or a proposed applicant for a Subclass 482 (Temporary Skill Shortage) visa.
(2)For the purposes of paragraph 140GB(2)(b) of the Act, the criteria set out in this regulation are prescribed.
Note: In addition, subsection 140GB(2) of the Act requires the person to be an approved work sponsor and to have paid any nomination training contribution charge in relation to the nomination.
(3)The Minister is satisfied that the person made the nomination in accordance with the process set out in regulation 2.73.
(4)The Minister is satisfied that either:
(a)there is no adverse information known to Immigration about the person or a person associated with the person; or
(b)it is reasonable to disregard any adverse information known to Immigration about the person or a person associated with the person.
(5)The Minister is satisfied that:
(a)if the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream or Medium-term stream—the person is a standard business sponsor; or
(b)…
(5A)The Minister is satisfied that any debt due by the person as mentioned in section 140ZO of the Act (recovery of nomination training contribution charge and late payment penalty) has been paid in full.
(6)If the nominee holds:
(a)a Subclass 457 (Temporary Work (Skilled)) visa; or
(b)a Subclass 482 (Temporary Skill Shortage) visa;
the Minister is satisfied that the person has listed on the nomination each other holder of either of those kinds of visa who was granted the visa on the basis of having the necessary relationship with the nominee as mentioned in clause 457.321 of Schedule 2 (as in force before 18 March 2018) or subclause 482.312(1) of Schedule 2.
(7)However, the Minister may disregard the fact that one or more persons required to be listed on the nomination are not listed, if the Minister is satisfied it is reasonable in the circumstances to do so.
(8)The Minister is satisfied that:
(a)the occupation and its corresponding 6-digit code correspond to an occupation and its corresponding 6-digit code specified in:
(i) if the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream or Medium-term stream—the instrument made under subregulation (9) in force at the time the nomination is made; or
(ii) …; and
(b)the occupation applies to the nominee in accordance with the instrument or work agreement.
(9)The Minister may, by legislative instrument, specify occupations and, for each occupation:
(a)whether the occupation is:
(i) a short term skilled occupation; or
(ii) a medium and long term strategic skills occupation; and
(b)either:
(i) the 6-digit ANZSCO code for the occupation; or
(ii) if there is no 6-digit ANZSCO code for the occupation—a 6-digit code for the occupation; and
(c)if there is no 6-digit ANZSCO code for the occupation—tasks, qualifications and experience for the occupation; and
(d)any matters for the purpose of determining whether the occupation applies to a nominee, including matters relating to any of the following:
(i) the person who nominated the occupation;
(ii) the nominee;
(iii) the occupation;
(iv) the position in which the nominee is to work;
(v) the circumstances in which the occupation is undertaken;
(vi) the circumstances in which the nominee is to be employed in the position.
(10)The Minister is satisfied that the position associated with the occupation is:
(a)genuine; and
(b)a full-time position.
(10A)However, the Minister may disregard the criterion in paragraph (10)(b) if the Minister is satisfied that it is reasonable in the circumstances to do so.
(11)If:
(a)the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream or Medium-term stream; and
(b)the person is not an overseas business sponsor; and
(c)the occupation is not an occupation specified by the Minister in an instrument made under subregulation (13);
the Minister is satisfied that:
(d)the nominee will be engaged only as an employee under a written contract of employment by the person or an associated entity of the person (the employer); and
(e)the person will give the Minister a copy of the contract signed by the employer and the nominee.
(12)If:
(a)the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream or Medium-term stream; and
(b)the person is an overseas business sponsor; and
(c)the occupation is not an occupation specified by the Minister in an instrument made under subregulation (13);
the Minister is satisfied that:
(d)the nominee will be engaged only as an employee under a written contract of employment by the person; and
(e)the person will give the Minister a copy of the contract signed by the person and the nominee.
(13)The Minister may, by legislative instrument, specify occupations for the purposes of paragraphs (11)(c) and (12)(c) …
(14)If:
(a)the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream or Medium-term stream; and
(b)the nominee holds a Subclass 457 (Temporary Work (Skilled)) visa or a Subclass 482 (Temporary Skill Shortage) visa; and
(c)the Minister requested the person to provide evidence that the nominee satisfies the language test requirements;
the person has provided evidence to the Minister that the nominee satisfies:
(d)if the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream—any language test requirements specified by the Minister in a legislative instrument for clause 482.223 of Schedule 2 that would apply to the nominee if the nominee were an applicant for a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream; or
(e)if the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Medium-term stream—any language test requirements specified by the Minister in a legislative instrument for clause 482.232 of Schedule 2 that would apply to the nominee if the nominee were an applicant for a Subclass 482 (Temporary Skill Shortage) visa in the Medium-term stream.
(15)Subject to subregulation (16), if:
(a)the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream or Medium-term stream; and
(b)the Minister is not satisfied that the nominee’s annual earnings in relation to the occupation will be at least the amount specified by the Minister in a legislative instrument made for the purposes of this paragraph;
the Minister is satisfied that:
(c)the annual market salary rate for the occupation has been determined by the person in accordance with the instrument made under subregulation (17); and
(d)the annual market salary rate, excluding any non-monetary benefits, for the occupation (determined by the person in accordance with an instrument made under subregulation (17)) is not less than the temporary skilled migration income threshold specified by the Minister in a legislative instrument made for the purposes of this paragraph; and
(e)the nominee’s annual earnings in relation to the occupation will not be less than the annual market salary rate for the occupation (determined by the person in accordance with an instrument made under subregulation (17)); and
(f)the nominee’s annual earnings, excluding any non-monetary benefits, in relation to the occupation will not be less than the temporary skilled migration income threshold specified by the Minister in a legislative instrument made for the purposes of paragraph (d); and
(g)either:
(i) there is no information known to Immigration that indicates that the annual market salary rate for the occupation (determined by the person in accordance with an instrument made under subregulation (17)) is inconsistent with Australian labour market conditions relevant to the occupation; or
(ii) it is reasonable to disregard any such information.
(16)However:
(a)the Minister may disregard the criterion in paragraph (15)(d) if the Minister is satisfied that:
(i) the annual market salary rate for the occupation (determined by the person in accordance with an instrument made under subregulation (17)) is not less than the temporary skilled migration income threshold specified by the Minister in a legislative instrument made for the purposes of paragraph (15)(d); and
(ii) it is reasonable in the circumstances to do so; and
(aa)the Minister may disregard the criterion in paragraph (15)(e) if:
(i) under subregulation (10A), the Minister disregards the criterion in paragraph (10)(b) in relation to the position associated with the occupation; and
(ii) the Minister is satisfied that it is reasonable in the circumstances to do so; and
(b)the Minister may disregard the criterion in paragraph (15)(f) if the Minister is satisfied that it is reasonable in the circumstances to do so.
(17)The Minister may, by legislative instrument, specify a method for determining the annual market salary rate for an occupation nominated under section 140GB of the Act or an occupation in relation to which a position is nominated under regulation 5.19.
(18)If the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream or Medium-term stream, the Minister is satisfied that:
(a)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 nominee 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; and
(b)if the person is lawfully operating a business in Australia—the person has not engaged in discriminatory recruitment practices.
(19)…
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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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Natural Justice
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