G SHARMA & P SHARMA (Migration)

[2023] AATA 1771

G SHARMA & P SHARMA (Migration) [2023] AATA 1771 (18 April 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  G SHARMA & P SHARMA

REPRESENTATIVE:  Mr Tejaskumar Patel (MARN: 1688211)

CASE NUMBER:  1924846

HOME AFFAIRS REFERENCE(S):          BCC2018/879179

MEMBER:R. Skaros

DATE:18 April 2023

PLACE OF DECISION:  Sydney

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

Statement made on 18 April 2023 at 11:50am

CATCHWORDS
MIGRATION – Employer Nomination – approval of nominated position – Direct Entry Nomination – Restaurant Manager – genuine need – nominating business no longer operating – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 360
Migration Regulations 1994 (Cth), r 5.19

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 18 August 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).

2. The applicant applied for approval on 23 February 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).

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

4. The delegate was not satisfied that the nominator had a identified a genuine need to employ the identified person to work in the position under the nominator’s direct control as required by reg 5.19(4)(h)(ii)(B) of the Regulations and found that the nominator did not meet the requirements of reg 5.19(4)(h)(ii).

5. On 20 September 2022, pursuant to s.359(2) of the Act, the Tribunal invited the applicant to provide updated and current information to support that they met the requirements of reg 5.19(2) and (4) of the Regulations.

6. In a submission dated 29 September 2022 the applicant advised the Tribunal that the nominating business had closed, and he requested that the Tribunal make an appropriate decision on the review application. In a letter dated 3 April 2023 the Tribunal requested the applicant to confirm that they were consenting to a member making a decision on the papers without a hearing. On 4 April 2023 the applicant’s representative confirmed that the applicant consented a decision on the papers without a hearing. The Tribunal is satisfied that the applicant has consented to deciding the review without the applicant appearing before it pursuant to s.360(2)(b) of the Act.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. 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.

9. The Tribunal has confined its consideration to the requirement in reg 5.19(4)(h), being the issue on which the delegate refused to approve the nomination.

   Tasks of the position, genuine need for the position and training requirements reg 5.19(4)(h)

10. 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 (see legislative instrument IMMI 18/005), 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.

11. In this case, the applicant, trading as ‘Café Primo Mawon Lakes’ lodged an application for the position of Restaurant Manager (ANZSCO Occupation Code 141111) nominating Viral Bhupendra Bhai VYAS. In support of the application, the applicant provided, among other things: Business Activity Statements dated between May 2016 and September 2017; Financial Statements for the years ending 30 June 2016, 30 June 2017, and December 2017; Lease Agreement dated 11 September 2014; ASIC registration information; Payroll documents; Organisational charts; Letter of engagement and employee contract dated 20 March 2018; LMT Report/Submission dated 4 April 2018; Submission dated 15 April 2018 providing information about the business;  Market Salary Report dated 5 April 2018; and a supporting letter from the accountant dated 25 September 2018.

12. The delegate was not satisfied that the evidence demonstrated that the nominator had a identified a genuine need to employ the nominee to work in the position under the nominator’s direct control as required by reg 5.19(4)(h)(ii)(B) of the Regulations and found that the nominator did not meet the requirements of reg 5.19(4)(h)(ii).

13. On 20 September 2022, the Tribunal invited the applicant to provide updated and current information to support that they met the requirements of reg.5.19(2) and (4) of the Regulations. In response, the applicant provided a submission in which they indicated that the nominating business had closed, they were not in a position to financially support the employment of the nominee and that they could not provide the evidence to support they met the requirements of reg 5.19(2) or (4).

14. On the evidence before it, the Tribunal finds that the nominator is not operating a business and is not able to employ the nominee. Accordingly, the Tribunal is not satisfied that there is a genuine need for the nominator to employ the person identified in reg 5.19(a)(ii) as a paid employee to work in the position under the nominator’s direct control and finds that the requirements of reg 5.19(4)(h)(ii)(B) are not met. As the applicant must satisfy all of the requirements of reg 5.19(4)(h)(ii), including reg 5.19(4)(h)(ii)(B), the Tribunal finds that reg 5.19(4)(h)(ii) is not met.

15. The applicant did not pay the relevant fee for the application to be approved in accordance with reg 5.19(4)(h)(i) (per reg 5.19(2) and reg 5.37). Further, and in any event, on the evidence the Tribunal is also not satisfied that the applicant meets the requirements of reg 5.19(4)(h)(i)(AA), that there is a genuine need for the nominator to employ the person identified under reg 5.19(a)(ii), as a paid employee to work in the position under the nominators direct control. Accordingly, reg 5.19(h)(i) is not met.

16. Accordingly, the requirements of reg 5.19(4)(h) are not met.

17. 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.

    R. Skaros
    Senior 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.

    …

    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).