Grace Dms Pty Ltd (Migration)

[2021] AATA 2795

Grace Dms Pty Ltd (Migration) [2021] AATA 2795 (10 June 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Grace DMS Pty Ltd

CASE NUMBER:  1913029

HOME AFFAIRS REFERENCE(S):          BCC2017/3954751

MEMBER:Katie Malyon

DATE:10 June 2021

PLACE OF DECISION:  Sydney

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

Statement made on 09 June 2021 at 6:26pm

CATCHWORDS

MIGRATION – Employer Nomination – approval of nominated position – Direct Entry Nomination – Cafe or Restaurant Manager – term of employment – no signed contract of employment – genuine need – decision under review affirmed

LEGISLATION
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 6 May 2019 to refuse the nomination application made by Grace DMS Pty Ltd T/A Haru Cairns (the Company) for approval of its nomination of a position in Australia under r.5.19 of the Migration Regulations 1994 (the Regulations).

2. The Company applied for approval on 26 October 2017. The requirements for the approval of the nomination of a position in Australia are found in r.5.19 of the Regulations which contains two alternative streams: a Temporary Residence Transition nomination (r.5.19(3)) stream; and, a Direct Entry nomination (r.5.19(4)) stream. If the application is made in accordance with r.5.19(2) of the Regulations and meets all of 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: r.5.19(5) of the Regulations.

3. In this case, the Company applied for approval of a nomination seeking to satisfy the criteria in the Direct Entry nomination stream.  The Company nominated the position of Cafe or Restaurant Manager ANZSCO 141111 for nominee, Hun Jin Lee.

4. The delegate refused the application on the basis the Company’s nomination did not satisfy r.5.19(4)(d)(i) of the Regulations because, based on the very limited documentation lodged in support of the application, the delegate was not satisfied that the Company had demonstrated it was financially viable to support the employment of the nominee on a full-time basis for at least 2 years. A copy of the delegate’s decision was provided to the Tribunal.

   Background

5. The Company runs a Korean and Chinese dine-in and takeaway restaurant in Cairns, Queensland.  Haru Cairns commenced trading on 22 February 2017.

6. No documentation was lodged with the Tribunal in support of the review application other than a copy of the delegate’s decision.  In passing, the Tribunal notes that the Company’s former representative, Miss Hee Kyong Kim of Hansol Migration Professionals based in Brisbane, was suspended from practising as a registered migration agent for 2 years effective 6 January 2020.  After a lengthy investigation of multiple complaints, the Office of Migration Agents Registration Authority (OMARA) found that Hee Kim was not a person of integrity and, further, she was not a fit and proper person to give immigration assistance.[1]  The Tribunal informed the Company that Hee Kim had been suspended by OMARA and that it would forward documentation direct to the Company pending appointment of a new representative.

   [1] >

   The Tribunal wrote to the Company on 17 November 2020 pursuant to s.359(2) of the Act inviting it to provide updated information to address all relevant requirements of the Act and the Regulations. On 8 December 2020, the Company notified the Tribunal it had appointed a new registered migration agent based in Seoul, Korea. Various documents were provided to the Tribunal on 19 January 2021 in response to its s.359(2) letter.

7. Subsequently, on 6 May 2021 the Tribunal wrote to the Company pursuant to s.359A of the Act.  The Tribunal’s letter was addressed to Kwang Pyo Kim who, as confirmed by ASIC reports lodged with the Tribunal, is the Company’s sole director and shareholder.

8. The Tribunal’s s.359A letter invited the Company to comment on or respond to information which the Tribunal considers would, subject to the comments or response from the Company, be the reason or part of the reason for affirming the delegate’s decision.  The letter states as follows:

   I am writing in relation to the application by Grace DMS Pty Ltd T/A Haru Cairns (the Company) in respect of a decision to refuse a Direct Entry Regional Sponsored Migration Scheme (RSMS) nomination for the position of Restaurant Manager ANZSCO 141111 in respect of nominee Mrs Hung Jin Lee.

   In conducting this review, the Tribunal is required by the Migration Act 1958 to invite you to comment on, or respond to, certain information which the Tribunal considers would, subject to your comments or response, be the reason, or a part of the reason, for affirming the decision under review.

   Please note, however, that the Tribunal has not made up its mind about the information.

   The particulars of the information are:

   ·     on 14 May 2021, the Tribunal held a combined MS Teams videoconference by way of:

   oa Directions Hearing in relation to a decision of the Department to refuse the Company’s nomination of the occupation of Chef ANZSCO 351311 in respect of an applicant for a Subclass 457 visa (Tribunal Matter No. 1814646); and,

   oa hearing of the Department’s decision to refuse the Subclass 457 visa application of nominee Dongmin Jang for the position of Chef (Tribunal Matter No. 1817397);

   ·     as the Company’s sole director and shareholder, you attended that hearing on behalf of the Company at the request of the Tribunal to give evidence on behalf of the Company;  

   ·     during the course of the hearing, the Tribunal raised for comment the Organization Chart provided to date and discussed both the current and proposed staffing arrangements for the Company’s Haru Restaurant; and,

   ·     you told the Tribunal at the hearing on 14 May 2021 that:

   oyou did not know anyone by the name Hung Jin Lee;

   othe Company has never offered Hung Jin Lee a position with Haru Restaurant; and,

   othe Company did not lodge any nomination in respect of a person by that name.

   This information is relevant because criteria in the Migration Regulations 1994 (the Regulations) for approval of a RSMS nomination application include:

   1.    the nomination application must identify 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: r.5.19(4)(a)(ii);

   2.    the nominee will be employed on a full-time basis in the position for at least 2 years: r.5.19(4)(d)(i); and, 

   3.    there is a genuine need for the nominator to employ the person identified in r.5.19(4)(a)(ii), as a paid employee, to work in the position under the nominator’s direct control: r.5.19(4)(h)(ii)(B). 

   If the Tribunal relies on this information, it may find that the Company does not know the nominee, did not lodge the nomination application in respect of the nominee and does not intend to employ the nominee. As such, it may find it is not satisfied that: the nomination application identifies a need for the Company to employ an identified person, Hung Jin Lee, as a paid employee, to work in the position under the nominator’s direct control; Hung Jin Lee will be employed on a full-time basis in the position of Restaurant Manager for at least 2 years; and, there is a genuine need for the Company to employ Hung Jin Lee, as a paid employee, to work in that position under the Company’s direct control. This may lead the Tribunal to find that r.5.19(4)(a)(ii), r.5.19(4)(d)(i) or r.5.19(4)(h)(ii)(B) of the Regulations are not satisfied and this would be the reason, or part of the reason, for affirming the decision of the Department to refuse the Company’s RSMS nomination application.

   Grace DMS Pty Ltd is invited to give comments on or respond to the above information in writing.

   The comments or response should be received by 8 June 2021. If the comments or
   response are in a language other than English, they must be accompanied by an
   English translation from an accredited translator.

   If Grace DMS Pty Ltd cannot provide written comments or response by 8 June 2021, it
   may ask us for an extension of time in which to provide the comments or response. If
   Grace DMS Pty Ltd makes such a request, it must be received by us by 8 June 2021
   and Grace DMS Pty Ltd must state the reason why the extension of time is required.

   We will carefully consider any request for an extension of time and will advise whether
   or not the extension has been granted.

   If we do not receive Grace DMS Pty Ltd's comments or response within the period
   allowed or as extended, we may make a decision on the review without taking any
   further action to obtain its views on the information. Grace DMS Pty Ltd will also
   lose any entitlement it might otherwise have had under the Migration Act 1958 to
   appear before us to give evidence and present arguments.

   Alternatively, if the Company no longer wishes to proceed with this application
   for review, please complete a withdrawal form by clicking on the link directly
   below.

9. On 1 June 2021, the Tribunal received direct from Mr Kim an email with an attached Withdrawal.  However, although the Withdrawal correctly identified the file number of this case, it incorrectly noted that the Company wished to withdraw the application of Mrs Hun Jin Lee, rather than its own nomination.  Accordingly, a Tribunal Registry officer telephoned Mr Kim and informed him that the Withdrawal needs to relate to withdrawal of the Company’s nomination (and not the visa application of the nominee Mrs Lee).  He clarified he wishes to withdraw the Company’s nomination in respect of her only, not the Company’s 2 other related nominations which the Tribunal is also currently considering (Tribunal No. 1927090 and No. 1814646).  Mr Kim told the Tribunal officer that he would contact the representative in Korea and ask him to send the completed withdrawal form.  No further documentation has been received from the Company or its representative.

10. As the Company has not provided a valid Withdrawal the Tribunal has proceeded to make

    
    

    a decision on available information as the due date for a response to its. s.359A letter has passed.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. 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 r.5.19(4) of the Regulations, which is extracted in the Attachment to this decision.  For the nomination to be approved, all the requirements must be met: if any of the requirements for approval of the nomination are not met, the nomination cannot be approved. 

13. In light of Mr Kim’s admissions set out in the Tribunal’s s.359A letter, it would be open for the Tribunal to make findings on multiple grounds as set out therein. However, for ease, it has made this decision by reference to the provisions in r.5.19(4)(d) and r.5.19(4)(h) of the Regulations. It is evident to the Tribunal that a third party, possibly the Company’s former representative Hee Kim of Hansol Migration Professionals or someone who worked with Hee Kim at Hansol Migration Professionals’ Brisbane office, has used the Company’s details to lodge a bogus nomination application on behalf of the Company.

    The future employment of the visa holder: r.5.19(4)(d)

14. Regulation 5.19(4)(d) of the Regulations requires that the nominee will be employed on a full-time basis for at least 2 years on terms that do not expressly preclude the possibility of an extension.

15. As noted above and set out in the Tribunal’s s.359A letter, Company director Mr Kim told the Tribunal in a related Company hearing that he did not know anyone by the name Hung Jin Lee and the Company has never offered Hung Jin Lee a position with Haru Restaurant.  No signed contract of employment was lodged with the Department or the Tribunal.   

16. Based on evidence before the Tribunal, the Tribunal is satisfied the Company will not employ the nominee on a full-time basis in the position of Restaurant Manager for at least 2 years. In the circumstances, the Company does not meet the requirements of r.5.19(4)(d)(i) of the Regulations.

17. Accordingly, the requirement in r.5.19(4)(d) of the Regulations is not met.

    Genuine need for the position: r.5.19(4)(h)

18. Regulation 5.19(4)(h) contains a number of alternative requirements. These are set out in detail in the Attachment to the decision. Relevantly and by way of brief summary, in respect of positions in regional Australia, the criteria include that there is a genuine need for the nominator to employ the nominee to work in the position under the nominator’s direct control: r.5.19(4)(h)(ii)(B) of the Regulations.

19. The Tribunal accepts that the Company’s business, and therefore position indicated in the nomination, is located in Cairns in far north regional Queensland.  However, as noted above and set out in the Tribunal’s s.359A letter, Company director Mr Kim told the Tribunal at a related Company hearing that he did not know anyone by the name Hung Jin Lee and the Company has never offered Hung Jin Lee a position with Haru Cairns.  The Tribunal put this adverse information to the Company pursuant to s.359A of the Act.  In response, Mr Kim endeavoured to withdraw the Company’s nomination: however, due to shortcomings in the form submitted by Mr Kim referred to above at para [10], the Tribunal is not in a position to finalise the withdrawal.  Despite indicating to the Registry officer that he would organise for the Company’s representative to submit an appropriately completed Withdrawal, no such form has been submitted. 

20. On the basis of available evidence, the Tribunal finds there is not a genuine need for the Company to employ nominee Hung Jin Lee as a paid employee to work in the position of Restaurant Manager under the Company’s direct control. Based on evidence before the Tribunal, the requirements of r.5.19(4)(h)(ii)(B) of the Regulations are not met.

21. For the above reasons, the Tribunal is not satisfied that the Company meets the requirements of r.5.19(4) of the Regulations. The Company has not sought to satisfy the criteria in Temporary Residence Transition Nomination stream and, as such, has not met the requirements in r.5.19(3) of the Regulations. Accordingly, the nomination of the position cannot be approved. Therefore, the Tribunal must affirm the decision under review.

    DECISION

22. The Tribunal affirms the decision under review to refuse the nomination.

    Katie Malyon

    
    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 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).

    oOOo