Grace DMS Pty Ltd (Migration) - [2021] AATA 5680

Grace DMS Pty Ltd (Migration) [2021] AATA 5680 (20 July 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Grace DMS Pty Ltd
CASE NUMBER:  1814646
HOME AFFAIRS REFERENCE(S):          BCC2017/1703039
MEMBER:Katie Malyon
DATE:20 July 2021
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to approve the nomination.

Statement made on 20 July 2021 at 5:08 pm
CATCHWORDS
MIGRATION – application for approval of nomination of position – chef – genuine position – financial capacity to employ nominee and two others, including one other chef – size of business, with minimal profit and no tax or superannuation paid in the last financial year – no capacity to employ two chefs, so no offer of position to nominee – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 140GB, 140GBA, 245AR, 359(2), 359A, 376
Migration Regulations 1994 (Cth), rr 2.72(10)(e), (f), 2.73
CASES
Cargo First Pty Ltd v MIBP [2016] FCA 30
Hneidi v MIAC [2010] FCAFC 20
Qiao v MIAC [2008] FMCA 380
Re Drake v MIEA (No 2) (1979) 2 ALD 634
Shi v Migration Agents Registration Authority [2008] HCA 31
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 1 May 2018 to refuse to approve the nomination made by Grace DMS Pty Ltd ABN 45 617 549 729 (the Company) under s.140GB of the Migration Act 1958 (the Act) and r.2.72 of the Migration Regulations 1994 (the Regulations).
The Company applied for approval of its nomination on 12 May 2017. A nomination of an occupation for a Subclass 457 visa is made under s.140GB of the Act and r.2.73 of the Regulations. Regulations 2.72(3) to (12) prescribe the criteria that must be satisfied for the Minister to approve a nomination by a person. These criteria are extracted in the Attachment to this decision. For nomination applications made from 23 November 2013, additional criteria are specified in s.140GBA of the Act.
The delegate decided not to approve the Company’s nomination of the position of Chef ANZSCO 351311 for the nominee, South Korean national Mr Dongmin Jang, on the basis that it did not satisfy r.2.72(10)(f) of the Regulations because the delegate was not satisfied the position associated with the nominated occupation was genuine. A copy of the delegate’s decision was provided to the Tribunal. The delegate expressly referred to the absence of any verifiable evidence to support claims that the Company employs a part-time Chef (the nominee), 2 Cooks, a Kitchen Hand, a Restaurant Manager and 2 part-time Wait Staff. Based on the limited evidence provided, the delegate was not satisfied the nomination was lodged to fill a genuine skill shortage: rather, it appeared the position associated with the nominated occupation was created to facilitate a visa outcome for the nominee Mr Jang.
Background
The Company runs a Korean and Chinese dine-in and takeaway restaurant in Cairns, Queensland…

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.

Continue reading Grace DMS Pty Ltd (Migration)

Details

AGLC: Grace DMS Pty Ltd (Migration) [2021] AATA 5680
Case: [2021] AATA 5680
Decision Date: 20 July 2021

CaseChat Overview and Summary

This matter concerned an application by Grace DMS Pty Ltd for approval of its nomination of a position for a chef. The applicant sought to nominate Mr Jang for a position as a chef at its restaurant, Haru Cairns. The Tribunal was required to determine whether the company had the financial capacity to employ Mr Jang as a chef, as well as two other foreign nationals for whom the company had made separate nominations.

The legal issues before the Tribunal were whether the company had demonstrated it had the financial capacity to employ the nominee and two other individuals, and whether the nominated position was genuine. The Tribunal considered evidence from Mr Kim, a director of the company, who stated he did not work in the restaurant and relied on Mr Jang for its operational management. Mr Kim also indicated a lack of knowledge regarding other nominations made by the company.

The Tribunal found that the company had not satisfied the criteria for the nomination to be approved. Specifically, the Tribunal was not satisfied that the company had the financial capacity to employ two chefs, given its minimal profit and the fact that no tax or superannuation had been paid in the last financial year. This lack of financial capacity meant the company could not genuinely offer the position to the nominee. Consequently, the Tribunal affirmed the decision not to approve the nomination.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

Asked about his work with the Company, Mr Jang told the Tribunal that he has been working as Chef at the Haru Cairns restaurant for about 6 years and that he works every day except Monday and Tuesday. He added the restaurant is currently staffed by 4 people in addition to himself: Bonggwan Shin works full-time as a Cook; 2 named Waitresses who work part-time; and, there is also a Kitchen Hand Jing Liu who works part-time. Mr Jang told the Tribunal he worked in a restaurant in Korea and then later studied English in the Philippines which is where he completed his IELTS test (on 18 April 2015). He also told the Tribunal that he initially came to Australia on a Working Holiday Subclass 417 visa and come back to undertake studies in management as the holder of a Student visa. Mr Kim’s evidence Given the lack of documentation in support of the review application lodged with the Tribunal, the balance of the hearing on 14 May 2021 was devoted to the Tribunal taking independent evidence from Company director Mr Kim. The Tribunal discussed with Mr Kim the multiple criteria for approval of the Company’s nomination and the nature of further documentation it will need to consider the merits of the Company’s review application, in particular, whether the Company can demonstrate that it has the financial capacity to employ not only the nominee Mr Jang as a Chef but also 2 other foreign nationals in relation to whom the Tribunal currently is considering 2 other review applications:1) Tribunal Case No. 1913029 involves review of refusal of the Company’s Regional Sponsored Migration Scheme (RSMS) nomination of the position of Restaurant Manager for nominee Mrs Hun Jin Lee. Mrs Lee and the Company are now represented in relation to their respective reviews by an agent located in Seoul, South Korea. The Tribunal notes the Company and Mrs Lee were formerly represented by an agent, Hee Kyong Kim, who was suspended by the Office of Migration Agents Registration Authority (OMARA) from practising for 2 years, effective 6 January 2020, following investigations by OMARA which concluded she was not a person of integrity and, further, she was not a fit and proper person to give immigration assistance; and,2) Tribunal Case No. 1927090 involves review of refusal of the Company’s RSMS nomination of the position of Chef for nominee Mr Bonggwan Shin. Mr Shin and the Company are represented in relation to their respective reviews by an agent located in Brisbane. Mr Kim told the Tribunal he does not work in the restaurant. Rather, he works full-time as a Support Worker with the NDIS, so he relies on Mr Jang for the operational management of the Haru Cairns restaurant. Mr Shin said he does not know what type of visa Mr Shin has applied for. Further, he said does not know the name Hun Jin Lee, nor was he aware the Company had nominated a lady by that name for the position of Restaurant Manager. Invited for his comments, the representative said that he had received all instructions and documentation direct from Mr Jang in relation to the Company’s nomination of him for the position of Chef. It was the representative’s understanding that Mr Jang had dealt directly with Mr Kim to obtain all necessary documentation from the Company.

Decision

Reasons for decision

For the reasons given above, the Tribunal is not satisfied that the Company meets the applicable criteria for the nomination to be approved. Accordingly, the decision under review must be affirmed.DECISION The Tribunal affirms the decision not to approve the nomination.Katie MalyonMemberATTACHMENT - EXTRACTS FROM THE MIGRATION REGULATIONS 19942.72 Criteria for approval of nomination — Subclass 457…(1)This regulation applies to a person who is:(a)is any of the following:(i) a standard business sponsor;(ii) a person who has applied to be a standard business sponsor;(iii) a party to a work agreement (other than a Minister);(iv) a party to negotiations to a work agreement (other than a Minister); and(b)a party to a work agreement (other than a Minister);who, under paragraph 140GB (1) (b) of the Act, has nominated an occupation in relation to a holder of, or an applicant or a proposed applicant for, a [Subclass 457 visa].(2)For subsection 140GB (2) of the Act, the criteria that must be satisfied for the Minister to approve a nomination by a person are set out in subregulations (3) to (12).(3)The Minister is satisfied that the person has made the nomination in accordance with the process set out in regulation 2.73.(4)The Minister is satisfied that the person is:(a)a standard business sponsor; or(b)a party to a work agreement (other than a Minister).(5)The Minister is satisfied that the person has identified in the nomination the visa holder, or the applicant or proposed applicant for the visa, who will work in the nominated occupation.(6)If the person identifies a holder of a [Subclass 457 visa] (the visa holder) for subregulation (5), the Minister is satisfied that the person:(a)has listed on the nomination each other holder of a visa of that kind who was granted the visa on the basis of having the necessary relationship with the visa holder as mentioned in clause 457.321 of Schedule 2; and(b)if the Minister requires the visa holder to demonstrate that he or she has the skills necessary to perform the occupation — the visa holder demonstrates that he or she has those skills in the manner specified by the Minister.(7)For paragraph (6) (a), the Minister may disregard the fact that 1 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.(7A)In addition to subregulation (6):(a)if:(i) the person identifies a holder of a [Subclass 457 visa] (the visa holder) for subregulation (5); and(ii) the [Subclass 457 visa] was granted after the Minister had waived the requirements of paragraph 4006A (1) (c) of Schedule 4 on the basis of a written undertaking made by the current sponsor of the visa holder (as set out in subclause 4006A (2) of that Schedule);the Minister is satisfied that the person has provided, in writing, an undertaking that is equivalent to the undertaking made by the current sponsor of the visa holder; and(b)if:(i) the person identifies a holder of a [Subclass 457 visa] (the visa holder) for subregulation (5); and(ii) the person has listed on the nomination a person described in paragraph (6) (a); and(iii) the [Subclass 457 visa] was granted to the person described in paragraph (6) (a) after the Minister had waived the requirements of paragraph 4006A (1) (c) of Schedule 4 on the basis of a written undertaking made by the current sponsor of the visa holder (as set out in subclause 4006A (2) of that Schedule);the Minister is satisfied that the person has provided, in writing, an undertaking that is equivalent to the undertaking made by the current sponsor of the visa holder.(8)If the nomination was made before 1 July 2010 — the Minister is satisfied that the person has provided the following information as part of the nomination:(a)if there is a 6‑digit ASCO code for the nominated occupation — the 6-digit ASCO code;(b)if there is no 6-digit ASCO code for the occupation, and the person is a standard business sponsor — the name of the occupation as it appears in the instrument in writing made for the purposes of paragraph (10) (a);(c)if there is no 6-digit ASCO code for the occupation and the person is a party to a work agreement — the name of the occupation as it appears in the work agreement;(d)the location or locations at which the nominated occupation is to be carried out.(8A)If the nomination is made on or after 1 July 2010 – the Minister is satisfied that the person has provided the following information as part of the nomination:(a)if there is a 6-digit ANZSCO code for the nominated occupation - the name of the occupation and the corresponding 6-digit ANZSCO code;(b)if:(i) there is no 6-digit ANZSCO code for the nominated occupation; and (ii) the person is a standard business sponsor;the name of the occupation and the corresponding 6-digit code as they are specified in the instrument in writing made for paragraph (10)(aa);(c)if:(i) there is no 6-digit ANZSCO code for the nominated occupation; and(ii) the person is a party to a work agreement;the name of the occupation and the corresponding 6-digit code (if any) as they are specified in the work agreement;(d)the location or locations at which the nominated occupation is to be carried out.(8B)The Minister is satisfied that the person has, in writing, certified as part of the nomination whether or not the person has engaged in conduct, in relation to the nomination, that constitutes a contravention of subsection 245AR(1) of the Act.;(9)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.(10)If the person is a standard business sponsor — the Minister is satisfied that:(a)if the nomination was made before 1 July 2010 - the nominated occupation corresponds to an occupation specified by the Minister in an instrument in writing for this paragraph; and(aa)if the nomination is made on or after 1 July 2010 – the nominated occupation and its corresponding 6-digit code correspond to an occupation and its corresponding 6-digit code specified by the Minister in an instrument in writing for this paragraph and the occupation is applicable to the person identified in the nomination in accordance with the specification of the occupation; and(b)if required by the instrument mentioned in paragraph (a) or (aa) — the nomination of an occupation mentioned in the instrument is supported, in writing to the Minister, by an organisation specified by the Minister in an instrument in writing for this paragraph; and(c)the terms and conditions of employment of the person identified in the nomination will be no less favourable than the terms and conditions (including, if applicable, the terms and conditions provided by an enterprise agreement under the Fair Work Act 2009) that are provided or would be provided to an Australian citizen or an Australian permanent resident for performing equivalent work at the same location; and(cc)the base rate of pay, under the terms and conditions of employment mentioned in paragraph (c), that:(i) are provided; or(ii) would be provided;to an Australian citizen or an Australian permanent resident, will be greater than the temporary skilled migration income threshold specified by the Minister in an instrument in writing for this paragraph; and(d)if the nomination was made before 1 July 2010 - the person has certified as part of the nomination, in writing, that:(i) the tasks of the position include a significant majority of the tasks of:(A)the nominated occupation listed in the ASCO; or(B)the nominated occupation specified in an instrument in writing for paragraph (a); and(ii) if the person is lawfully operating a business outside Australia but does not lawfully operate a business in Australia:(A)the nominated occupation is a position in the business of the standard business sponsor; or(B)the nominated occupation is an occupation specified by the Minister in an instrument in writing for this sub-paragraph; and(iii) if the person lawfully operates a business in Australia:(A)the nominated occupation is a position with a business, or an associated entity, of the person; or(B)the nominated occupation is an occupation specified by the Minister in an instrument in writing for this sub-paragraph; and(iv) the qualifications and experience of the visa holder, or the applicant or proposed applicant for the visa, identified in relation to the nominated occupation are commensurate with the qualifications and experience specified:(A)for the occupation in the ASCO; or(B)if there is no ASCO code for the nominated occupation — for the occupation in the instrument in writing made for the purpose of paragraph (a); and(e)if the nomination is made on or after 1 July 2010 – the person has certified as part of the nomination, in writing, that:(i) the tasks of the position include a significant majority of the tasks of:(A)the nominated occupation listed in the ANZSCO; or(B)the nominated occupation specified in an instrument in writing for paragraph (aa); and(ii) if the person is lawfully operating a business outside Australia but does not lawfully operate a business in Australia:(A)the nominated occupation is a position in the business of the standard business sponsor; or(B)the nominated occupation is an occupation specified by the Minister in an instrument in writing for this sub-subparagraph; and(iii) if the person lawfully operates a business in Australia:(A)the nominated occupation is a position with a business, or an associated entity, of the person; or(B)the nominated occupation is an occupation specified by the Minister in an instrument in writing for this sub-subparagraph; and(iv) the qualifications and experience of the visa holder, or the applicant or proposed applicant for the visa, identified in relation to the nominated occupation are commensurate with the qualifications and experience specified:(A)for the occupation in the ANZSCO; or(B)if there is no ANZSCO code for the nominated occupation - for the occupation in the instrument in writing made for paragraph (aa).(f)the position associated with the nominated occupation is genuine; and(g)if the person has identified in the nomination the holder of a Subclass 457 (Temporary Work (Skilled)) visa in relation to whom the requirements in subclause 457.223(6) of Schedule 2 were met—one of the following applies:(i) the requirements in subclause 457.223(6) of Schedule 2 continue to be met;(ii) if:(A)the holder would be required to hold a licence, registration or membership that is mandatory to perform the occupation nominated in relation to the holder; and(B)in order to obtain the licence, registration or membership, the holder would need to demonstrate that the holder has undertaken a language test specified by the Minister under subparagraph 457.223(4)(eb)(iv) of Schedule 2 and achieved a score that is better than the score specified for the test by the Minister under subparagraph 457.223(4)(eb)(v) of Schedule 2;the holder demonstrates that he or she has proficiency in English of at least the standard required for the grant (however described) of the licence, registration or membership; (iii) the holder is an exempt applicant within the meaning of subclause 457.223(4) of Schedule 2;(iv) unless subparagraph (ii) applies—the holder:(A)has undertaken a language test specified by the Minister under subparagraph 457.223(4)(eb)(iv) of Schedule 2; and(B)achieved within the period specified by the Minister in a legislative instrument for this subparagraph, in a single attempt at the test, the score specified by the Minister under subparagraph 457.223(4)(eb)(v) of Schedule 2; and(h)either:(i) the person will:(A)engage the visa holder, the applicant for a visa or the proposed applicant for a Subclass 457(Temporary Work (Skilled)) visa only as an employee under a written contract of employment; and(B)give a copy of that contract to the Minister; or(ii) the nominated occupation is an occupation specified by the Minister in an instrument in writing for sub-subparagraph (e)(iii)(B).(10AA)For paragraphs (10) (c) and (cc), if no Australian citizen or Australian permanent resident performs equivalent work in the person’s workplace at the same location, the person must determine, using the method specified by the Minister in an instrument in writing for this subregulation:(a)the terms and conditions of employment; and(b)the base rate of pay, under the terms and conditions of employment;that would be provided to an Australian citizen or an Australian permanent resident to perform equivalent work in the person’s workplace at the same location.(10AB)Paragraphs (10) (c) and (cc) do not apply if the annual earnings of the person identified in the nomination are equal to or greater than the amount specified by the Minister in an instrument in writing for this subregulation.(10A)The Minister may disregard the criterion in paragraph (10) (cc) for the purpose of subregulation (2) if:(a)the base rate of pay will not be greater than the temporary skilled migration income threshold specified for that paragraph; and(b)the annual earnings are equal to or greater than the temporary skilled migration income threshold; and(c)the Minister considers it reasonable to do so.(11)If the person is a party to a work agreement (other than a Minister) — the Minister is satisfied that:(a)the nominated occupation is specified in the work agreement as an occupation that the person may nominate; and(b)if the nomination was made before 1 July 2010 - the person has certified as part of the nomination, in writing, that:(i) the tasks of the position include a significant majority of the tasks of:(A)if the nomination is made using an ASCO code - the nominated occupation listed in the ASCO; or(B)if the nomination is not made using an ASCO code - the nominated occupation specified in the work agreement; and(ii) the qualifications and experience of the visa holder, or the applicant or proposed applicant for the visa, identified in relation to the nominated occupation are commensurate with the qualifications and experience specified for the occupation in the work agreement; and(c)if the nomination is made on or after 1 July 2010 - the person has certified as part of the nomination, in writing, that:(i) the tasks of the position include a significant majority of the tasks of:(A)if the nomination is made using an ANZSCO code - the nominated occupation listed in the ANZSCO; or(B)if the nomination is not made using an ANZSCO code - the nominated occupation specified in the work agreement; and(ii) the qualifications and experience of the visa holder, or the applicant or proposed applicant for the visa, identified in relation to the nominated occupation are commensurate with the qualifications and experience specified for the occupation in the work agreement.(12)If the person is a party to a work agreement and the work agreement specifies requirements that must be met by the party to the work agreement — the Minister is satisfied that the requirements of the work agreement have been met.oOOo

Ratio Decidendi

Legal Principle Established

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