Hermano Global Pty Ltd (Migration) - [2024] AATA 1658

Hermano Global Pty Ltd (Migration) [2024] AATA 1658 (5 March 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  HERMANO GLOBAL PTY LTD
CASE NUMBER:  2016258
HOME AFFAIRS REFERENCE(S):          BCC2018/1103688
MEMBER:De-Anne Kelly
DATE:5 March 2024
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision under review to refuse the nomination.

Statement made on 05 March 2024 at 2:34pm
CATCHWORDS
MIGRATION – nomination – Direct Entry nomination stream – applicant failed to provide the requested information within the prescribed period– the business had closed – applicant does not have an actively and lawfully operating Café in which to employ the nominee – no identified need for the nominator to employ an identified person –– decision under review affirmed
LEGISLATION
Migration Act 1958, ss 65, 245AR, 359
Migration Regulations 1994, rr 1.13, 5.19
CASES
Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617
Minister for Immigration and Citizenship v Li [2013] HCA 18
Pexbury Pty Ltd v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 660
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 22 October 2020 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 applied for approval on 8 March 2018. 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 the applicant’s nomination did not satisfy reg 5.19(4)(a) of the Regulations because the business had not demonstrated a need for the nominator to employ a paid employee to work in the position under the nominator’s direct control since only an ASIC registration and an employment contract had been provided. As such there was no evidence provided that they were actively and lawfully operating a business in Australia.
At the commencement of the hearing the Tribunal read out the reason the delegate refused the employer nomination and the applicant confirmed that she understood the reason.
The applicant appeared before the Tribunal on 13 February 2024 to give evidence and present arguments. She advised that she needed full interpretation. The nominee was also invited to the hearing but failed to attend. The Tribunal hearing was conducted with the assistance of an interpreter in the Bengali and English languages.
The applicant was initially represented in relation to the review. However, prior to the hearing the representative withdrew his representation from the case.
For the following reasons, the Tribunal has decided to affirm the decision under review to refuse the nomination.
Procedural matters
Several times during the hearing the Tribunal asked if the interpretation was clearly understood, and Ms Haque confirmed that it was. It was noted that Ms Haque responded in English during much of the hearing and it was evident that she had a sound grasp of the language.
Section 359AA of the Act
At the commencement of the hearing, the Tribunal explained that it may put information to the applicant, under s.359AA of the Act, that would be the reason, or a part of the reason, for affirming the decision that is under review and that it would explain why this information was relevant to the decision and how it may be relied upon in reaching a decision. The Tribunal also advised that the applicant would be given an opportunity to respond to this information in one of three ways: they could request an adjournment and the hearing could be stopped for 15 or 20 minutes or whatever period of time they wished and they could seek advice and they could then respond in the hearing, they could make a written submission within 14 days or they could respond directly in the hearing. Under s.360 of the Migration Act 1958 (Cth.) the Tribunal must invite the applicant to a hearing to give evidence and present arguments relating to issues arising in relation to the review and this affords the applicant the opportunity to canvas information before the Tribunal.
Section 359AA provides as follows:
(a) The Tribunal may orally give to the applicant clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b) if the Tribunal does so—the Tribunal must:
(i)ensure, as far as is reasonably practicable, that the applicant understands why the information is relevant to the review, and the consequences of the information being relied on in affirming the decision that is under review; and
(ii) orally invite the applicant to comment on or respond to the information; and
(iii) advise the applicant that he or she may seek additional time to comment on or respond to the information; and
(iv) if the applicant seeks additional time to comment on or respond to the information—adjourn the review, if the Tribunal considers that the applicant reasonably needs additional time to comment on or respond to the information.
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.
On 8 March 2018 the applicant ABN: 34 624 521 642 trading as Shot Coupe lodged a Regional Sponsored Migration Scheme employer nomination visa subclass 187 in the Direct Entry Stream for the position of Cook to be employed in Gosford NSW 2250 on $56,000 per annum in favour of Mr Imranul Haque KHAN (9 Jan 1996).
Ms Shanzida Haque represented the nominator and gave an overview of the business which is a Café in Gosford which was running very well until COVID but after that there were difficulties in operating the business and she was running two months behind in the rent. The landlord abruptly terminated the lease without any discussion with Mr Haque. She has been trying to get a new business started or buy an existing business which would give her an opportunity to continue employing the nominee. However, this has been foiled by the landlord failing to pay back the bond.
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). The application must also identify a need for the nominator to employ an identified person as a paid employee to work in the position under their direct control.
It was put to the applicant under s359AA of the Act that she had advised that as the lease had been terminated and she was “stuck” as she lacked the funds being the bond deposit to either start a new business or purchase an existing business and as such there was not a need to employ the identified person being Mr Imranul Haque KHAN as a paid employee to work in the position of Cook under the nominators direct control. This may be part or all of the reason to find that the applicant did not satisfy reg 5.19(4)(a)(ii).
After this was put the interpreters, connection became “frozen” because of storms in the south and Ms Haque asked if she could respond in English however the Tribunal advised that since she had requested full interpretation they should proceed on that basis. There was a short period of time before a new interpreter was found and joined the hearing.
Ms Haque chose to respond in the hearing to the concern and she requested an adjournment for a couple of months and when asked why she needed that period of time she advised that she wanted to start a new business. However, she had already advised that she lacked the funds to start a new a new business. Ms Haque maintains that she is not a defaulter and has always met her obligations.
The applicant asked for an adjournment of several months to start a new business. In the request for an adjournment, the Tribunal is guided by Minister for Immigration and Citizenship v Li. Unlike Li where the adjournment was requested for a “highly specific purpose” namely a pivotal piece of evidence that would determine whether the review was affirmed or set aside; the applicant has asked on the basis that she wishes to start a new business although she has already advised that she lacks the funds to do this. Such a request is not consistent with the Courts finding and as such the Tribunal has declined to grant an adjournment of several months.
The Tribunal is also guided by the judgment in Huo v Minister for Immigration & Multicultural Affairs (includes corrigendum dated 24 May 2002) [2002] FCA 617 (15 May 2002) at [31] where his Honour stated.
As Senior Counsel for the Minister rightly contended, there was no error of law apparent or manifest in the conduct of the Tribunal below. It was under no obligation to postpone its decision-making, merely because Mr Huo wished to attempt, either at Departmental level or in the forum of another Tribunal hearing, to meet a statutory criterion found not as yet to have been fulfilled. As Senior Counsel further pointed out, Mr Huo had been in Australia since 1997, and had had more than ample time to satisfy the regulatory criteria.
For the reasons above the Tribunal declines the request for an adjournment of several months while the applicant seeks the funds to start a new café, locates a suitable site and lease and sets up an operational business. The Tribunal considers it is reasonable to proceed to a decision on this matter.
Ms Haque then asked for a month’s adjournment to start afresh. However, the Tribunal advised her that she would not be able to provide evidence in one month of financial statements or even a single quarterly BAS Statement to demonstrate that the business satisfied reg 5.19(4)(d)(i) which requires that the nominator has the financial capacity such that the employee (the nominee) will be employed on a full-time basis in the position for at least two years.
The Tribunal notes the judgment of Judge Egan in Pexbury Pty Ltd v Minister for Immigration & Anor [2020] FCCA3074 at [5] where his Honour stated that the Tribunal was entitled to consider the financial viability of the applicants business in considering r.5.19(3)(d)(i) which is equally applicable to r.5.19(4)(d)(i) or r.5.19(5)(l) since the wording of the legislation is similar with r.5.19(3)(d) stating “the person will be employed on a full-time basis in the position for at least 2 years’ while r.5.19(4)(d)(i) states “the employee will be employed on a full-time basis in the position for at least 2 years” and r.5.19(5)(l) stating “the identified person will be employed on a full‑time basis in the position for at least 2 years”.
Contrary to the applicant’s submissions, the Tribunal was entitled to consider the financial viability of the applicant’s business when considering whether the company was able to meet the requirement that it employ Ms Kaur on a full-time basis, for a period of at least two years, as provided for in r. 5.19(3)(d)(i) of the Migration Regulations 1994 (Cth) (“the Regulations”). In assessing the evidence the Tribunal has taken into account of the remarks of his Honour In Minister for Immigration and Border Protection v Jayshree Enterprises Pty Ltd [2017] FCA 264 at [22], and [28] – [30], Logan J accepted that a company’s financial viability was a matter to be taken into account when assessing whether or not a business was financially able to support the employment of a person for at least a two (2) year period and that it is not illogical, on the material which the Tribunal had, for the Tribunal not to be satisfied that the position could be supported on business performance for a further two years.
Judge Greenwood supported this view in the subsequent case Pexbury Pty Ltd v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs[2022] FCA 660.
It is clear that even with a month adjournment the applicant could not prove the financial capacity of the business through a financial statement or quarterly BAS statement such that the Tribunal could find it satisfied reg 5.19(4)(d)(i). This supposes that Ms Haque could find the funds which she presently lacks to start a new business and could conceivably find a location to lease and set up an operational Café in that time.
Ms Haque in a closing statement said that the Tribunal should listen to all her statements and that the nominee Mr Kahn is a good worker and has always worked hard. While the Tribunal has considered Ms Haque’s evidence it does not go to satisfying reg 5.19(4)(a)(ii) and demonstrating a need for a Cook.Ms Haque was given a further 14 days to make written submissions, but it is noted that none were provided, and no extension of time was requested.
The applicant does not have an actively and lawfully operating Café in which to employ the nominee and no prospects of opening and having a Café operating in the near future so there is no identified need for the nominator to employ an identified person, Mr Khan as a paid employee, to work in the position of Cook under the nominator’s direct control.
Accordingly, the requirement in reg 5.19(4)(a)(ii) is not met.
For the above reasons the Tribunal is not satisfied that the applicant meets the requirements of reg 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 reg 5.19(3). Accordingly, the nomination of the position cannot be approved. Therefore, the Tribunal must affirm the decision under review.
DECISION
The Tribunal affirms the decision under review to refuse the nomination.
De-Anne Kelly

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 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).