Guru's Food Temptation Pty Ltd (Migration) - [2022] AATA 28

Guru's Food Temptation Pty Ltd (Migration) [2022] AATA 28 (5 January 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Guru's Food Temptation Pty Ltd
CASE NUMBER:  1834833
HOME AFFAIRS REFERENCE(S):          BCC2017/1021473
MEMBER:Terrence Baxter
DATE:5 January 2022
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Statement made on 05 January 2022 at 10:03am
CATCHWORDS
MIGRATION – application for approval of nomination of position – direct entry nomination stream – tasks of position – restaurant manager – comparison of nominee’s tasks and ANZSCO description – active involvement of company director/chef in some tasks – consistent oral evidence given by director and nominee separately – decision under review set aside
LEGISLATION
Migration Regulations 1994 (Cth), r 5.19(4)(h)(ii)(D)
CASES
Bharaj Construction Pty Ltd v MIBP [2016] FCCA 902
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 9 November 2018 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, Guru’s Food Temptation Pty Ltd, applied for approval on 15 March 2017. The applicant nominated Mrs Parneet Kaur (the nominee) in the position of 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)(h)(ii)(D) of the Regulations because the delegate found that the tasks to be performed in the position do not correspond to the tasks of an occupation specified by the Minister in an instrument in writing.
The applicant lodged an application for review of the delegate’s decision with the Tribunal on 27 November 2018.
The sole director of the applicant company, Mr Gurvinder Singh, appeared before the Tribunal by video conference on 2 November 2021 to give evidence and present arguments. The hearing was a joint hearing with the application for review of a decision to refuse the visa application of the nominee. The Tribunal also received oral evidence from the nominee by video conference.
The Tribunal exercised its discretion to hold the hearing by video conference. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by video…

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: [2022] AATA 28
Decision Date: 5 January 2022

CaseChat Overview and Summary

This matter concerned an application by Guru's Food Temptation Pty Ltd for approval of a nomination of a position under the Direct Entry stream. The dispute arose when the delegate of the Minister refused to approve the nomination. The applicant sought review of this decision before the Administrative Appeals Tribunal.

The primary legal issue before the Tribunal was whether the applicant had satisfied all the requirements for the approval of the nomination as set out in regulation 5.19(4) of the Migration Regulations 1994 (Cth). This involved a detailed examination of various sub-regulations, including those pertaining to the application form, the identification of a need for a paid employee, the absence of adverse information, satisfactory compliance with workplace relations laws, and specific requirements relating to the tasks of the nominated position and the genuine need for it.

The Tribunal considered the evidence presented both before the hearing and at the hearing, including extensive documentation relating to the company's operations, financial standing, and the nominee's qualifications and employment. The Tribunal found that the applicant had met the requirements of regulation 5.19(4)(a), (f), and (g). Crucially, regarding regulation 5.19(4)(h), which addresses the tasks of the position and the genuine need for it, the Tribunal noted that the nominee's tasks, as described by the company director and the nominee, were consistent with the ANZSCO description for the nominated occupation. The Tribunal also considered evidence of the expansion of the business and the director's active involvement in some operational tasks, concluding that these factors did not detract from the genuine need for the nominated position.

Ultimately, the Tribunal determined that the applicant had satisfied all the necessary requirements for the approval of the nomination. Consequently, the Tribunal set aside the delegate's decision and substituted a new decision approving the nomination.

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

The nominee gave evidence of her employment in the position and the tasks performed by her in that position.Evidence presented after the hearing After the hearing, the applicant produced to the Tribunal the following documents: a.A title search regarding the business premises.b.Submissions from Mr Singh dated 23 November 2021. c.A financial report for the 2019 and 2020 financial years, and draft report for the 2021 financial year. d.Company tax returns for the 2019 and 2020 financial years, and a draft tax return for the 2021 financial year. e.A submission from the applicant’s accountant dated 19 November 2021. f.PAYG payment summaries of the nominee for the 2017 and 2019 financial years. g.Income statements of the nominee for the 2020 and 2021 financial years. h.Bank statements of the nominee for the period from October 2017 to November 2021. i.A draft individual tax return of Mr Singh for the 2021 financial year. j.An updated submission regarding labour market testing. The application is compliant: reg 5.19(4)(a) Regulation 5.19(4)(a) requires that the application for approval must be in the approved form, must be accompanied by the prescribed fee, and, where applicable, must include the required written certification relating to conduct that contravenes s 245AR(1) of the Migration Act 1958 (Cth) (the Act). The application must also identify a need for the nominator to employ a paid employee to work in the position under their direct control. Having regard to the documentation in the file of the Department, the Tribunal is satisfied that the application for approval was in the approved form. The application relates to a visa in the Direct Entry stream seeking to meet the requirements in the Regional Sponsored Migration Scheme (RSMS) and consequently no fee is payable (reg 5.19(2) and reg 5.37(4) of the Regulations). The application included a written certification stating that the applicant had not engaged in conduct in relation to the nomination that contravenes s 245AR(1) of the Act. The requirements of reg 5.19(2) and consequently of reg 5.19(4)(a)(i) are therefore met. Regulation 5.19(4)(a)(ii) requires that the application identifies a need for the nominator to employ a paid employee to work in the position under the nominator’s direct control. It is unclear whether this requirement is directed just at a statement to this effect or something of a more qualitative nature. The wording ‘identifies a need’ arguably suggests more is required to meet this criterion than simply a statement or declaration that there is such a need. ‘Identify’ is defined as ‘to recognise or establish as being a particular person or thing; verify the identity of.’[1] On that view, which is consistent with that reflected in Departmental policy, a decision maker would need to be satisfied there is a genuine need on the part of the nominator to employ someone in the nominated position.[2] However, it could alternatively be argued that reg 5.19(4)(a) as a whole is directed towards requirements for the application form/process of a more administrative nature, such that reg 5.19(4)(a)(ii) could be met by a simple statement or certification of need. Support for this view can also be found in the contrast between the wording of reg 5.19(4)(a)(ii) and, for example, reg 5.19(4)(h)(ii)(B) (for applications relating to positions in regional Australia), which requires that there be a genuine need for the nominator to employ the nominee to work in the position under the nominator’s direct control – clearly requiring a qualitative assessment, and reg 5.19(4)(d)(i), which requires satisfaction that the employee will be employed on a full-time basis in the position for at least two years. Given the uncertain scope of reg 5.19(4)(a)(ii), and the requirement in relation to this application to satisfy reg 5.19(4)(h)(ii)(B), the Tribunal considers that this issue is more appropriately considered under reg 5.19(4)(h)(ii)(B) later in these Reasons.[1] Dictionary.com (accessed November 2021).[2] In Bharaj Construction Pty Ltd v MIBP [2016] FCCA 902 (Judge Barnes, 28 April 2016), the Court considered a similarly worded provision in respect of a pre-1 July 2012 RSMS nomination, i.e. ‘the employer nomination is made by an employer in respect of a need for a paid employee’. Whilst on the one hand reg 5.19(4)(a)(ii) does not appear to impose a different requirement beyond emphasising the requirement for an applicant to identify the need (unlike the pre-1 July 2012 version of regs 5.19(2)(a) and (4)(a)), the wording of the criteria does differ slightly and the Tribunal exercises caution in applying the reasoning of Bharaj to a post-1 July 2012 nomination as is currently being considered.

Decision

Reasons for decision

For the following reasons, the Tribunal has decided to set aside the decision under review and substitute a decision approving 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 prior to the hearing The applicant produced to the Department of Immigration and Border Protection (now the Department of Home Affairs) (the Department) the following documents: a.An ASIC record of business name registration for Guru’s Star Café & Restaurant. b.An ASIC current company extract of the applicant. c.Business bank statements of the applicant for the periods from November to December 2016, July to September 2016 and August 2017 to April 2018. d.A transfer of lease of the applicant’s business premises. e.An ASIC certificate of registration of a company for the applicant. f.Market salary research. g.A current ABN Lookup form of the applicant. h.A financial report for the period from July to December 2016. i.Menus of the business.j.A PTE Academic test report of the nominee. k.Activity statements for the period from July 2016 to March 2018. l.A job advertisement for the position accompanied by resumes of unsuccessful candidates for the position.m.A SEEK invoice regarding an advertisement for the position dated 25 January 2017. n.A record of results issued by Sunshine College of Management Pty Ltd for the nominee. o.The nominee’s passport. p.An employment reference from Mr Singh regarding the nominee, dated 13 February 2017.q.A Diploma of Business awarded to the nominee. r.Submissions from Mr Singh dated 13 February 2017. s.An employment contract of the nominee dated 13 February 2017. t.A business plan of the applicant. u.A Form 1404 issued by the Regional Certifying Body (RCB), Regional Development Australia, Murray dated 9 May 2017. v.A financial report for the 2017 financial year. The applicant produced to the Tribunal the following documents: a.A copy of the delegate’s decision. b.Copies of documents previously produced to the Department. c.A company tax return for the 2017 financial year.d.Photos of the applicant’s business premises. e.An updated ASIC record of business name registration of Guru’s Star Café & Restaurant. f.An ASIC company summary and company details extract of the applicant.g.A financial report and company tax return for the 2020 financial year. h.Activity statements for the period from July 2019 to June 2021. i.A business bank statements of the applicant for the period from June to July 2021. j.An organisational chart signed by Mr Singh and dated 3 August 2021. k.A position description dated 5 August 2021. l.An employment contract of the nominee dated 5 August 2021. m.A submission from Mr Singh regarding the remuneration of the nominee dated 5 August 2021. n.An employment reference letter from Mr Singh regarding the nominee dated 3 August 2021. o.Superannuation statements of the nominee for the 2018 and 2020 financial years. p.Notices of taxation assessment of the nominee for the 2019 to 2021 financial years. q.A submission from Mr Singh dated 27 October 2021. r.Evidence of the expansion of the business, including a contract, quote and receipt. Evidence presented at the hearing regarding the applicant’s operations

Ratio Decidendi

Legal Principle Established

Accordingly, the requirements of reg 5.19(4)(e) are met.No adverse information known to Immigration: reg 5.19(4)(f) Regulation 5.19(4)(f) requires that there is no adverse information known to Immigration about the nominator or person associated with the nominator; or it is reasonable to disregard any such information. For these purposes, ‘adverse information’ and ‘associated with’ have the meaning given in regs 1.13A and 1.13B of the Regulations. At the hearing, the Tribunal notified Mr Singh that the records of the Department contain a Client of Interest Note referring to an allegation regarding possible employer/sponsor breach/illegal work. No further information has been provided to the Tribunal regarding that allegation. Mr Singh stated that he had no knowledge of the allegation. Having regard to the lack of any further details of the allegation, the Tribunal does not consider that information to be ‘adverse information’ for the purposes of the Regulations. The Tribunal advised Mr Singh accordingly at the hearing. There is no evidence before the Tribunal that there is any adverse information of the type described in the relevant definitions known to the Department about the applicant or any associated person. Accordingly, the requirements of reg 5.19(4)(f) are met.Satisfactory compliance with workplace relations laws: reg 5.19(4)(g) Regulation 5.19(4)(g) requires that the applicant 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. There is no evidence before the Tribunal to suggest that the applicant has an unsatisfactory record of compliance with workplace relations laws of the Commonwealth or any state or territory in which the applicant operates a business. The Tribunal is satisfied that the applicant does have a satisfactory record of compliance. Accordingly, the requirements of reg 5.19(4)(g) are met.Tasks of the position, genuine need for the position and training requirements reg 5.19(4)(h) 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 in the relevant legislative instrument, the occupation is applicable to the proposed employee in accordance with any specifications made in that instrument, and specified training requirements are met; or·the position and nominator’s business is located in regional Australia, there is a genuine need for the paid position under the nominator’s direct control which 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 (see legislative instrument IMMI 15/083), 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.