H R Singhs Pty Ltd (Migration)

[2020] AATA 3110

H R Singhs Pty Ltd (Migration) [2020] AATA 3110 (8 June 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  H R Singhs Pty Ltd

CASE NUMBER:  1818197

HOME AFFAIRS REFERENCE(S):          BCC2016/2486686

MEMBER:Alison Mercer

DATE:8 June 2020

PLACE OF DECISION:  Melbourne

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

Statement made on 08 June 2020 at 2:48pm

CATCHWORDS
MIGRATION – Employer Nomination – approval of nominated position – Direct Entry nomination stream – Cook – genuine need – no response to s 359(2) invitation – not entitled to appear before the Tribunal – active and lawful operation – financial capacity to maintain future employment – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 359C, 360
Migration Regulations 1994 (Cth), r 5.19

CASES
Yang v MIAC [2010] FMCA 890

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 5 June 2018 to reject the applicant’s application for approval of the nomination of a position in Australia under r.5.19 of the Migration Regulations 1994 (the Regulations).

2. The applicant, H R Singhs Pty Ltd (trading as the Coolabah Tree Café) applied for approval of the position of Cook on 27 July 2016. 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 (TRT) nomination stream (r.5.19(3)) and a Direct Entry (DE) nomination stream (r.5.19(4)). If the application is made in accordance with r.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: r.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 refused the application on the basis the applicant’s nomination did not satisfy r.5.19(4)(h)(ii)(B) of the Regulations because he was not satisfied that the applicant had demonstrated that it had a genuine need for the nominated position of Cook. The delegate noted that the material provided by the applicant indicated that it already employed 3 Cooks and 2 Kitchen Hands, that it was unclear whether the nominee was presently working for the applicant, and that there was no recent evidence of the financial capacity, or need, of the applicant for the services of a fourth Cook within the business. The delegate therefore found that r.5.19(4) was not met as a whole, and also found that the applicant had not made any claims against the TRT stream criteria in r.5.19(3).

5. The Tribunal received a review application on 21 June 2018. It was signed on behalf of the applicant by its director, Mr Hardeep Singh, and was accompanied by a copy of the delegate’s decision and an authority by which Mr Davenport appointed a registered migration agent, Mr Shannon Semenikow, as the applicant’s representative and authorised recipient for correspondence.

6. On 30 March 2020, the Tribunal wrote to Mr Singh, via the agent, pursuant to s.359(2) of the Act to invite him to provide current and updated information demonstrating how the applicant met the r.5.19(4) criteria. The Tribunal noted that all of the criteria in r.5.19(4) had to be met (not just the criterion that was found not to be satisfied by the delegate). The Tribunal provided examples of the kinds of information that would assist it to assess whether the applicant met the r.5.19(4) criteria. Mr Singh was requested to provide the information by 14 April 2020 and was advised that he could seek an extension of time to do so but should do so before 14 April 2020. He was further advised that if the information was not received by the due date (or the extended due date, if an extension of time was granted) then the applicant would lose its right to have an authorised person attend a Tribunal hearing on its behalf, and the Tribunal might then proceed to make its decision on the available evidence, without taking further steps to obtain the requested information.

7. The Tribunal did not receive any information or any request for an extension of time to respond from Mr Singh or the agent by 14 April 2020, and has received nothing further from him, or any other authorised officer of the applicant, or the agent, to date.

8. The Tribunal is satisfied that its s.359(2) letter of 30 March 2020 were sent to the nominated email address of the applicant’s authorised recipient for correspondence. There is no indication from the Tribunal’s records that the email was undelivered or undeliverable. 

9. On behalf of the applicant, Mr Singh has not responded to the Tribunal’s s.359(2) letter. In the circumstances, s.359C applies and pursuant to s.360(3), a person representing the applicant is not entitled to appear before the Tribunal. The Tribunal has no power to permit them to appear: see Yang v MIAC [2010] FMCA 890.

10. Accordingly, the Tribunal has proceeded to make its decision on the available evidence. In doing so, the Tribunal notes that Mr Singh was invited to provide updated and current information, with detailed examples given, to enable the Tribunal to obtain relevant evidence to assess whether the applicant currently meets the r.5.19(4) criteria. Mr Singh also had the assistance of a migration agent. In the circumstances, the Tribunal does not consider it unreasonable to proceed to a decision without any further deferral.

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), which is extracted in the attachment to this decision. For the nomination to be approved, all the requirements must be met.

    Nominator is actively and lawfully operating a business in Australia: r.5.19(4)(b)

13. Regulation 5.19(4)(b) requires that the applicant is actively, lawfully and directly operating a business in Australia.

14. The Tribunal notes that it received no response to its invitation to the applicant to provide, amongst other things, evidence of its current operations and financial position. The most recent evidence provided to the Department dates from July 2016, being a letter from the applicant’s accountant stating that it has the financial capacity to employ the applicant for at least 2 years, and its 2014/15 financial statements. The Tribunal notes that this information is approximately 4 years old.

15. In the absence of any more recent evidence, the Tribunal is unable to be satisfied that the applicant is actively and lawfully operating a business in Australia at the time of its consideration in June 2020.

16. Accordingly, the requirement in r.5.19(4)(b) is not met.

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

17. Regulation 5.19(4)(d) requires the nominee to be employed in the nominated position for at least 2 years full time, and the terms and conditions of that employment do not expressly exclude the possibility of an extension.

18. For the reasons set out above at paragraphs 14 and 15, the Tribunal is not satisfied that the applicant has the financial capacity to employ the nominee in the nominated position for at least 2 years full time, as it has no evidence of its current operations and financial capacity.   

19. Accordingly, the Tribunal finds that the requirement in r.5.19(4)(d) is not met.

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

20. 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 written 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, 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.

21. Essentially, the requirements set out in the first dot point above are a summary of r.5.19(4)(h)(i), which must be met by nominating businesses which are not based in regional Australia. The Tribunal is satisfied that the applicant’s business is based in regional Australia, from the material provided to the Department, and it find that it must therefore meet the requirements set out in the second dot point, which are set out in r.5.19(4)(h)(ii).

22. As noted by the delegate, r.5.19(4)(h)(ii)(B) requires that there is a genuine need for the paid position under the nominator’s control. The delegate concluded that this requirement was not met as insufficient evidence had been provided to indicate why a fourth position for a Cook was required in the applicant’s business, particularly as it appeared the nominee was no longer working there, and that at least 1 of the other Cooks was also sponsored for permanent residence.

23. Despite its request for updated information on this issue, amongst others, nothing was provided to the Tribunal by Mr Singh or the agent on behalf of the applicant.

24. Accordingly, the Tribunal is not satisfied that there is a genuine need for the paid position of Cook under the nominator’s control, and it finds that r.5.19(4)(h)(ii)(B) is not met. This means that r.5.19(4)(h)(ii) is not met as a whole, and that in turn r.5.19(4)(h) is not met.

25. For the above reasons the Tribunal is not satisfied that the applicant meets the requirements of r.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 r.5.19(3). Accordingly, the nomination of the position cannot be approved. Therefore, the Tribunal must affirm the decision under review.

    DECISION

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

    Alison Mercer
    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)       both 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;

    (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 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).