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…

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: [2024] AATA 1658
Decision Date: 5 March 2024

CaseChat Overview and Summary

This matter concerned an appeal by Hermano Global Pty Ltd (the applicant) against a decision to refuse the approval of an employer nomination for a Cook position under the Direct Entry Stream of the Regional Sponsored Migration Scheme visa subclass 187. The applicant, trading as Shot Coupe, sought to nominate Mr Imranul Haque Khan for the position. The core of the dispute revolved around whether the applicant met the requirements of regulation 5.19(4) of the Migration Regulations 1994, specifically concerning the need to employ the nominated person and the active operation of the business.

The primary legal issue before the Tribunal was whether the applicant had satisfied all the criteria for the approval of the nomination under regulation 5.19(4). This included determining if there was a genuine need for the nominator to employ the identified person as a paid employee under their direct control, and whether the nominator was actively and lawfully operating a business in Australia. The Tribunal was required to consider the impact of the closure of the applicant's café and the difficulties in securing new premises on these requirements.

The Tribunal's reasoning focused on the applicant's failure to demonstrate a continued need for the nominated employee. It was put to the applicant that the termination of their café lease and their inability to secure new premises due to financial constraints meant there was no longer a genuine need to employ Mr Khan as a cook under their direct control. The Tribunal noted that regulation 5.19(4)(a)(ii) requires the identification of a need for the nominator to employ an identified person, and regulation 5.19(4)(b)(i) requires the nominator to be actively and lawfully operating a business. The Tribunal found that the applicant's circumstances, including the closure of the business and the lack of funds to establish a new one, meant these requirements were not met. The Tribunal affirmed the decision under review.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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).

Decision

Reasons for decision

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).

Ratio Decidendi

Legal Principle Established

De-Anne KellyMemberATTACHMENT - EXTRACTS FROM THE MIGRATION REGULATIONS 19945.19Approval 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).