Golden Jade Palace Pty Ltd (Migration) - [2023] AATA 3897

Golden Jade Palace Pty Ltd (Migration) [2023] AATA 3897 (18 July 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Golden Jade Palace Pty Ltd
REPRESENTATIVE:  Ms Yi Luo (MARN: 1802013)
CASE NUMBER:  1927534
HOME AFFAIRS REFERENCE(S):          BCC2018/857775
MEMBER:Terrence Baxter
DATE:18 July 2023
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision under review to refuse the nomination.

Statement made on 18 July 2023 at 11:19am
CATCHWORDS
MIGRATION – Employer Nomination – approval of nominated position – Direct Entry Nomination – Café or Restaurant Manager – term of employment – financial capacity to pay the full-time salary – failure to provide additional financial information – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 360, 363
Migration Regulations 1994 (Cth), r 5.19

CASES
MIBP v Jayshree Enterprises Pty Ltd [2017] FCA 264
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 11 September 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, Golden Jade Palace Pty Ltd, applied for approval on 22 February 2018. The applicant nominated Mr Zhongda Xu (the nominee) in the position of Café or Restaurant Manager.
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 that the applicant’s nomination did not satisfy reg 5.19(4)(d)(i) of the Regulations because the delegate found that the applicant had not demonstrated the financial capacity to pay the full-time salary for the nominated position for at least two years and that accordingly the applicant had not demonstrated that the appointment would provide the nominee with full-time employment for at least two years.
The applicant lodged an application for review of the delegate’s decision with the Tribunal on 30 September 2019.
On 3 May 2023, the Tribunal wrote to the applicant advising that it had considered the material before it but was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to appear before the Tribunal by video conference to give evidence and present arguments relating to the issues at a hearing scheduled for 23 May 2023.
The applicant was represented in relation to the review by its registered migration agent Ms Yi Luo.
On 8 May 2023, the applicant’s…

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: [2023] AATA 3897
Decision Date: 18 July 2023

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered a decision to refuse the approval of a nominated position for a Direct Entry visa. The applicant, Golden Jade Palace Pty Ltd, sought to nominate a position for a Café or Restaurant Manager. The dispute centred on whether the applicant met the requirements for approval of the nomination under the Migration Regulations 1994.

The primary legal issue before the Tribunal was whether the applicant satisfied all the criteria stipulated in regulation 5.19(4) of the Migration Regulations 1994 for the approval of a Direct Entry nomination. This included, but was not limited to, demonstrating a genuine need for the nominated employee, the financial capacity to pay the full-time salary, and that the terms and conditions of employment met the required standards.

The Tribunal affirmed the decision to refuse the nomination. While the applicant provided various documents, including business registrations, bank statements, and employment agreements, the Tribunal found that the applicant had failed to adequately demonstrate its financial capacity to pay the full-time salary for the nominated position. The provided financial information was insufficient to satisfy this requirement, and the applicant did not provide additional information when requested. The Tribunal applied the principles of regulation 5.19(4), which mandates that all requirements for approval must be met.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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.Evidence presented to the Department The applicant produced to the Department of Home Affairs (the Department) the following documents:a.ASIC evidence of registration of the business name Yum Cha Cuisine Toowoomba.b.Bank statements of the applicant for the period from October 2017 to February 2018.c.Market salary evidence.d.An ABN Lookup report in respect of the applicant’s ABN.e.Business activity statements for the months from July 2017 to December 2017.f.An ASIC Certificate of Registration on Change of Name in respect of the applicant.g.A licence agreement and lessor’s consent in respect of the applicant’s business premises.h.An employment agreement dated 20 February 2018.i.Menus of the applicant.j.An organisational chart.k.A Form 1404 and Assessment Statement issued by the Regional Certifying Body, the Chamber of Commerce and Industry Queensland (Toowoomba) dated 9 March 2018.l.A job advertisement and recruitment report in respect of attempts to fill the position.m.Undated submissions from the applicant submitted on 18 March 2018 and 31 October 2019.n.PAYG payment summaries of the nominee for the 2018 and 2019 financial years.o.Financial statements for the 2018 and 2019 financial years.p.Australian Taxation Office (ATO) activity statements (001 and 002) of the applicant for the period from 7 August 2017 to 30 June 2019.q.Various payslips of the nominee.r.A submission from the applicant’s accountant dated 9 August 2019. The applicant produced to the Tribunal the following documents:a.A copy of the delegate’s decision.b.A submission from the applicant’s accountant dated 1 December 2022.c.A position description.d.A payroll summary of the applicant for the 2022 financial year.e.ASIC evidence in respect of the registration of a related company Green Forest Ocean Pty Ltd.f.ASIC evidence of registration of the business name Koon Hong Chinese Take Away, owned by Golden Jade Feast Pty Ltd.g.Current ASIC evidence in respect of the business name Yum Cha Cuisine Toowoomba owned by the applicant.h.A financial statement for the 2021 financial year.i.A current ASIC statement in respect of the applicant.j.A business activity statement of the applicant for the quarter from July 2022 to September 2022.Term of employment of the visa holder: reg 5.19(4)(d) Regulation 5.19(4)(d)(i) requires the nominee to be employed in the position for at least two years full time. Regulation 5.19(4)(d)(ii) requires that the terms and conditions of that employment do not expressly exclude the possibility of an extension. The employment agreement dated 20 February 2018 provides that the nominee’s employment is to commence on the date of the grant of his Subclass 187 visa and that the employment is full time. The nominee’s employment is permanent and ongoing and is to continue for a period of at least two years. The agreement does not exclude the possibility of extension of the term of employment.

Ratio Decidendi

Legal Principle Established

The Tribunal affirms the decision under review to refuse the nomination.Terrence BaxterMemberATTACHMENT - 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 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).