Hridhaan Enterprises Pty Ltd (Migration)

[2022] AATA 329

Hridhaan Enterprises Pty Ltd (Migration) [2022] AATA 329 (7 February 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Hridhaan Enterprises Pty Ltd

REPRESENTATIVE:  Mr Gagandeep Singh (MARN: 0964638)

CASE NUMBER:  1829685

HOME AFFAIRS REFERENCE(S):          BCC2017/3140755

MEMBER:Vanessa Plain

DATE:7 February 2022

PLACE OF DECISION:  Melbourne

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

Statement made on 07 February 2022 at 11:02am

CATCHWORDS

MIGRATION – approval of a nomination – Direct Entry nomination stream – position of Café or Restaurant Manager – financial capacity to employ the nominee for at least two years – genuine need for the employment – no updated financial information – terms and conditions of employment – relevant qualifications – decision under review affirmed        

LEGISLATION

Migration Act 1958, s 245
Migration Regulations 1994, rr 5.19, 5.37

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 19 September 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).

2. The applicant applied for approval on 30 August 2017. 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).

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 reg 5.19(4)(d)(i) of the Regulations because the delegate was not satisfied that the nominating applicant had demonstrated on the documents submitted by it that it would be able to employ the nominee on a full time basis in the position of Café or Restaurant Manager for at least 2 years and on the basis of paying a salary of $55,000 per annum to the nominee.

5. The applicant was supposed to appear before the Tribunal on 7 February 2022 to give evidence and present arguments. However, on 4 February 2022 the Tribunal received correspondence from the applicant’s representative stating that the applicant would not be appearing at the hearing and seeking a decision be made on the papers.  The

6. On the basis of the above, the Tribunal is satisfied that it may proceed to make a decision on the papers in this case and in the related Tribunal case 1834074, which was listed for hearing together with the applicant’s case.    

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. 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.

   Term of employment of the visa holder: reg 5.19(4)(d)(i)

9. Regulation 5.19(4)(d)(i) 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.

10. The applicant did not submit any financial documents to the Tribunal in support of its case.  The financial documents considered by the delegate traverse the financial years 2016 and 2017 and underpinned the basis for the delegate forming the view that the applicant did not have the financial capacity to employ the nominee on a full-time basis in the position of Café or Restaurant Manager for a period of at least two years and pay him $55,000 per annum.

11. The documents submitted were as follows:

    ·Profit and loss statement of the FYE 30/06/2016 indicating the business made a net profit of $13,991.00 and paid wages of $9,020.00

    ·BAS statements for the reporting period July 2016 to June 2017 which demonstrate an overall decline in the net financial position of the business.  For the period 01/07/2016 – 30/09/2016 the net position is $28,784; 01/10/2016 – 31/12/2016 the net position is $14,285; 01/01/2017 – 31/03/3017 the net position is $,054; 01/04/2017 – 30/06/2017 the net position is $15,255

12. No evidence or explanation has been provided by the applicant to substantiate how it as the nominating business would improve its profitability in order to be able to meet the additional cost of employing the nominee on a full-time basis with a salary of $55,000 for a period of at least two years.

13. Accordingly, the requirement in reg 5.19(4)(d)(i) is not met and the applicant nominator does not meet reg 5.19(4)(d)(i).

14. 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

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

    Vanessa Plain
    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 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).