Huong's Food Service Pty Ltd (Migration)

[2020] AATA 6177

Huong's Food Service Pty Ltd (Migration) [2020] AATA 6177 (22 July 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Huong's Food Service Pty Ltd

CASE NUMBER:  1719592

HOME AFFAIRS REFERENCE(S):          BCC2017/991719

MEMBER:George Hallwood

DATE:22 July 2020

PLACE OF DECISION:  Adelaide

DECISION:The Tribunal affirms the decision not to approve the nomination.

Statement made on 22 July 2020 at 3:04pm

CATCHWORDS

MIGRATION – approval of a nomination – position of Café or Restaurant Manager – genuine position – nomination training contribution charge – current standard business sponsor – economic benefits to the regional community – new standard business sponsorship application – decision under review affirmed 

LEGISLATION

Administrative Appeals Tribunal Act 1975, s 2A
Migration Act 1958, ss 140, 359
Migration Regulations 1994, 2.72, 2.73

CASES

Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175

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 Immigration and Border Protection on 11 August 2017 to refuse to approve the applicant’s nomination under s.140GB of the Migration Act 1958 (the Act) and r.2.72 of the Migration Regulations 1994 (the Regulations).

2. The applicant applied for approval on 13 March 2017. A nomination of an occupation for a Subclass 457 visa is made under s.140GB of the Act and r.2.73 of the Regulations. Regulations 2.72(3) to (12) prescribe the criteria that must be satisfied for the Minister to approve a nomination by a person. These criteria are extracted in the attachment to this decision. For nomination applications made from 23 November 2013, additional criteria are specified in s.140GBA.

3. The delegate decided not to approve the nomination on the basis that the applicant did not satisfy 2.72(10)(f) because they did not consider the position associated with the nominated occupation is genuine.

4. Ms Thu Huong Nguyen, a director of Huong’s Food Services Pty Ltd (the applicant), appeared before the Tribunal by video link on 7 July 2020, as a representative of the applicant, to give evidence and present arguments. This was a combined hearing with Tribunal case number 1724016 in relation to Ms Thu Huong Nguyen who is also the related nominee and applicant for a subclass 457 visa. Mr Hai Nguyen, the applicant’s accountant also provided evidence via video link. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.

5. The applicant was represented in relation to the review by its registered migration agent who attended the hearing by telephone.

6. On 28 August 2018 the Migration and Refugee Division of the Administrative Appeals Tribunal (the Tribunal) received an application to review the delegate’s decision.

7. On 24 February 2020 a s359(2) invitation letter was sent to the applicant requesting further information specifically inviting the applicant to provide evidence of, amongst other things, “Current Standard Business Sponsorship”. This letter provided until 10 March 2020 for the information to be received by the Tribunal and offered the opportunity to request an extension of time.

8. On 6 March 2020 a request was received for an extension of time to provide the further information sought as the principal of the applicant was overseas. The request was for a further 14 days.

9. On 28 May 2020 a 359A invitation letter was sent to the applicant noting that in the absence of certain information the Tribunal may affirm the decision under review. Information invited included evidence of a current business sponsorship approval. This information was to be provided by 11 June 2020.

10. Also, on 28 May 2020 an invitation was sent to the applicant to attend a hearing on 17 June 2020.

11. On 10 June 2020 the Tribunal received correspondence expressing the applicant’s serious concern about participating in a telephone hearing and requesting that the hearing be deferred until it could be by video “as a minimum” or face to face. The correspondence also noted that the applicant was still working with their accountant to provide information that had been invited, and the applicant requested an extension of time until late July or early August “when the result of the latest SBS sponsorship may well be available (or at least imminent)”.

12. On this occasion the Tribunal did not allow an extension of time but agreed to a video hearing on 17 June 2020.

13. On 16 June 2020 the video hearing was rescheduled to 7 July 2020. The hearing proceeded on 7 July 2020.

14. Further submissions were allowed by the Tribunal post hearing until 10 July 2020 and a submission was received at 6.10pm on that date.

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

CONSIDERATION OF CLAIMS AND EVIDENCE

1. The issue in the present case is whether the applicant meets the criteria for approval of the nomination. The Tribunal must approve the nomination if the applicant is an approved sponsor and meets the requirements in r.2.72: s.140GB(2). The applicant must also have paid any nomination training contribution charge in relation to the nomination for which they are liable, but this liability only arises for nominations made from 12 August 2018. In addition, for nominations made from 23 November 2013, s.140GBA must be met.

2. The applicant trades as Helen’s Coffee House a café successfully operating in Balcatta, Western Australia. The principal of the applicant, Ms Nguyen, is also the subject of the related subclass 457 visa application.

3. Toward the end of successfully completing studies in Australia, Ms Nguyen was involved in a business venture – Helen’s Fish Diner in 2016 and “after being scammed by another party” she withdrew from that venture and using the same corporate structure renamed the business Helen’s Coffee House in 2017.

4. Evidence provided by Mr Nguyen indicates Helen’s Coffee House has prospered with turnover increasing significantly in the last three years, adding economic benefit to the local community.

5. A number of questions were raised by the Tribunal in relation to relevant criteria and a post hearing submission was received.

6. In order to be successful, a nomination must meet all of the criteria set out in regulation 2.72 paragraphs 3 to 12 as well as criteria specified in s.140GBA of the Act. For this reason the only criterion recorded for this decision relates to regulation 2.72(4).

Nominator is a standard business sponsor or party to a work agreement

1. Regulation 2.72(4) requires that the person making a nomination is either a standard business sponsor or a party to a work agreement other than a Minister. This temporal requirement relates to the time of decision – in this case, the decision of the Tribunal.

2. There is no dispute that the nominator is not currently a standard business sponsor or a party to a work agreement other than a Minister.

3. In submissions post hearing the applicant advised that the Department of Home Affairs is working on the new application for a standard business sponsorship quickly and as evidence of this provided a letter dated 6 July 2020 from the Department of Home Affairs requesting more information in support of the application and allowing 28 days for the applicant to respond to the request. The applicant’s submission goes on to indicate that a decision is expected on the sponsorship application by 3 August 2020 or shortly thereafter.

4. The applicant has that the Tribunal delay the decision in this matter until after the sponsorship application decision is made.

5. The Tribunal’s objectives are contained in section 2A of the Administrative Appeals Tribunal Act 1975 stating:

   In carrying out it’s functions, the Tribunal must pursue the objective of providing a mechanism of review that:

   a)is accessible; and

   b)is fair, just, economical, informal and quick; and

   c)is proportionate to the importance and complexity of the matter; and

   d)promotes public trust and confidence in the decision-making of the Tribunal.

6. In this matter the Tribunal must weigh the delay sought by the applicant, with the potential impact on the applicant’s view of fairness and justice if they were to receive approval of their application as a standard business sponsor soon after a decision is made.

7. The consequences of a decision against a nomination would lead to affirming a rejection of a subsection 457 visa application. The subclass 457 visa was designed to allow skilled workers to come to Australia to work for an approved business in order to address genuine skill shortages. It allowed for visa’s of up to four years if the occupation was listed on the Medium and Long Term Strategic Skills List (MLTSSL) or two years if the occupation was listed on the Short Term Skilled Occupation List (STSOL). Relevant to this case Café or Restaurant Manager is listed on the STSOL.

8. Ms Nguyen applied for the subclass 457 visa on 13 March 2017. She has worked full time for the applicant, the business she established and has worked in for over three years since the applicant sought approval for the nomination under s.140GB of the Act and r.2.72 of the Regulations.

9. The applicant put to the Tribunal that the establishment of Helen’s Coffee House has resulted in a prospering business that employs Ms Nguyen and others adding economic benefits to the community. It was also put to the Tribunal, and the Tribunal has no reason to doubt, that the business would not survive without Ms Nguyen. In a post hearing submission the applicant put to the Tribunal that if the business was forced to close – jobs would be lost, taxes currently paid by the business would be lost, a retail tenancy would be foreclosed, and the local community would lose a valuable eating establishment.

10. The applicant’s standard business sponsorship commenced on 10 July 2017 and ceased on 10 January 2019. The sponsorship was not renewed at that time.

11. The Tribunal sent a s359(2) letter on 24 February 2020 inviting the applicant, amongst other things, to provide evidence that the applicant was currently a standard business sponsor.

1. On 28 May 2020 a 359A invitation letter was sent to the applicant noting that in the absence of certain information, including in relation to being an approved standard business sponsor, the Tribunal may affirm the decision under review.

2. It was not until 6 July 2020 that the applicant applied for approval as a standard business sponsor, and then the application received a response from the Department for further information.

3. The High Court in discussing the impact of case management on proceedings emphasised that speed and efficiency are essential to the just resolution of proceedings and that while opportunity should be provided to parties to put their case, there must be limits placed on the steps pursued.[1]

   [1] Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175

4. In this matter, the request for an adjournment goes beyond a request in relation to obtaining existing information that could assist the decision under review. The request seeks that the Tribunal await new information from the Department of Home Affairs.

5. While the applicant has submitted their application and that would, on the face of it, mean that the standard business sponsorship decision was now out of the applicant’s control with any further delays in the hands of the Department, it is clear from the Department’s response that all of the required information has still not been provided and the timeframe in which to provide a response extended by the Department already takes potential decisions beyond the date the applicant has indicated to the Tribunal will be the decision date.

6. It is also anything but clear that the Department of Home Affairs will approve the application.

7. While it may be sad, the Tribunal cannot see how the intended consequence of the application of regulation 2.72(4) could be unfair or unjust. In the absence of a standard business sponsorship, the application cannot succeed.

8. Having considered the request from the applicant for a delay in making the decision in this matter the Tribunal has put considerable weight on:

   ·     the period of time since the original decision in this matter being 11 August 2017;

   ·     the period of time since the latest sponsorship ceased on 10 January 2019;

   ·     the opportunity extended to the applicant to respond in relation to the standard business sponsorship extended by the Tribunal on 24 February 2020;

   ·     the 359A letter sent by the Tribunal on 28 May 2020 indicating the consequences of not responding;

   ·     the subsequent time taken by the applicant to lodge an application;

   ·     the uncertainty of the timeframe for provision by the applicant of adequate information to the Department; and

   ·     the uncertainty of the outcome of the current application to the Department of Home Affairs for standard business sponsorship;

   and the Tribunal has decided to proceed with this matter without further delay.

9. The applicant making this nomination is neither a standard business sponsor nor a party to a work agreement other than a Minister.

10. For these reasons the requirements of r.2.72(4) are not met.

Concluding paragraph

1. For the reasons given above, the Tribunal is not satisfied that the applicant meets the applicable criteria for the nomination to be approved. Accordingly, the decision under review must be affirmed.

DECISION

1. The Tribunal affirms the decision not to approve the nomination.

George Hallwood
Member

ATTACHMENT - EXTRACTS FROM THE MIGRATION REGULATIONS 1994

2.72 Criteria for approval of nomination — Subclass 457…

(1)This regulation applies to a person who is:

(a)is any of the following:

(i) a standard business sponsor;

(ii) a person who has applied to be a standard business sponsor;

(iii) a party to a work agreement (other than a Minister);

(iv) a party to negotiations to a work agreement (other than a Minister); and

(b)a party to a work agreement (other than a Minister);

who, under paragraph 140GB (1) (b) of the Act, has nominated an occupation in relation to a holder of, or an applicant or a proposed applicant for, a [Subclass 457 visa].

(2)For subsection 140GB (2) of the Act, the criteria that must be satisfied for the Minister to approve a nomination by a person are set out in subregulations (3) to (12).

(3)The Minister is satisfied that the person has made the nomination in accordance with the process set out in regulation 2.73.

(4)The Minister is satisfied that the person is:

(a)a standard business sponsor; or

(b)a party to a work agreement (other than a Minister).

(5)The Minister is satisfied that the person has identified in the nomination the visa holder, or the applicant or proposed applicant for the visa, who will work in the nominated occupation.

(6)If the person identifies a holder of a [Subclass 457 visa] (the visa holder) for subregulation (5), the Minister is satisfied that the person:

(a)has listed on the nomination each other holder of a visa of that kind who was granted the visa on the basis of having the necessary relationship with the visa holder as mentioned in clause 457.321 of Schedule 2; and

(b)if the Minister requires the visa holder to demonstrate that he or she has the skills necessary to perform the occupation — the visa holder demonstrates that he or she has those skills in the manner specified by the Minister.

(7)For paragraph (6) (a), the Minister may disregard the fact that 1 or more persons required to be listed on the nomination are not listed, if the Minister is satisfied it is reasonable in the circumstances to do so.

(7A)In addition to subregulation (6):

(a)if:

(i)       the person identifies a holder of a [Subclass 457 visa] (the visa holder) for subregulation (5); and

(ii)      the [Subclass 457 visa] was granted after the Minister had waived the requirements of paragraph 4006A (1) (c) of Schedule 4 on the basis of a written undertaking made by the current sponsor of the visa holder (as set out in subclause 4006A (2) of that Schedule);

the Minister is satisfied that the person has provided, in writing, an undertaking that is equivalent to the undertaking made by the current sponsor of the visa holder; and

(b)if:

(i)       the person identifies a holder of a [Subclass 457 visa] (the visa holder) for subregulation (5); and

(ii)      the person has listed on the nomination a person described in paragraph (6) (a); and

(iii)     the [Subclass 457 visa] was granted to the person described in paragraph (6) (a) after the Minister had waived the requirements of paragraph 4006A (1) (c) of Schedule 4 on the basis of a written undertaking made by the current sponsor of the visa holder (as set out in subclause 4006A (2) of that Schedule);

the Minister is satisfied that the person has provided, in writing, an undertaking that is equivalent to the undertaking made by the current sponsor of the visa holder.

(8)If the nomination was made before 1 July 2010 — the Minister is satisfied that the person has provided the following information as part of the nomination:

(a)if there is a 6‑digit ASCO code for the nominated occupation — the 6-digit ASCO code;

(b)if there is no 6-digit ASCO code for the occupation, and the person is a standard business sponsor — the name of the occupation as it appears in the instrument in writing made for the purposes of paragraph (10) (a);

(c)if there is no 6-digit ASCO code for the occupation and the person is a party to a work agreement — the name of the occupation as it appears in the work agreement;

(d)the location or locations at which the nominated occupation is to be carried out.

(8A)If the nomination is made on or after 1 July 2010 – the Minister is satisfied that the person has provided the following information as part of the nomination:

(a)if there is a 6-digit ANZSCO code for the nominated occupation - the name of the occupation and the corresponding 6-digit ANZSCO code;

(b)if:

(i)       there is no 6-digit ANZSCO code for the nominated occupation; and

(ii)      the person is a standard business sponsor;

the name of the occupation and the corresponding 6-digit code as they are specified in the instrument in writing made for paragraph (10)(aa);

(c)if:

(i)       there is no 6-digit ANZSCO code for the nominated occupation; and

(ii)      the person is a party to a work agreement;

the name of the occupation and the corresponding 6-digit code (if any) as they are specified in the work agreement;

(d)the location or locations at which the nominated occupation is to be carried out.

(8B)The Minister is satisfied that the person has, in writing, certified as part of the nomination whether or not the person has engaged in conduct, in relation to the nomination, that constitutes a contravention of subsection 245AR(1) of the Act.;

(9)The Minister is satisfied that either:

(a)there is no adverse information known to Immigration about the person or a person associated with the person; or

(b)it is reasonable to disregard any adverse information known to Immigration about the person or a person associated with the person.

(10)If the person is a standard business sponsor — the Minister is satisfied that:

(a)if the nomination was made before 1 July 2010 - the nominated occupation corresponds to an occupation specified by the Minister in an instrument in writing for this paragraph; and

(aa)if the nomination is made on or after 1 July 2010 – the nominated occupation and its corresponding 6-digit code correspond to an occupation and its corresponding 6-digit code specified by the Minister in an instrument in writing for this paragraph and the occupation is applicable to the person identified in the nomination in accordance with the specification of the occupation; and

(b)if required by the instrument mentioned in paragraph (a)  or (aa) — the nomination of an occupation mentioned in the instrument is supported, in writing to the Minister, by an organisation specified by the Minister in an instrument in writing for this paragraph; and

(c)the terms and conditions of employment of the person identified in the nomination will be no less favourable than the terms and conditions (including, if applicable, the terms and conditions provided by an enterprise agreement under the Fair Work Act 2009) that are provided or would be provided to an Australian citizen or an Australian permanent resident for performing equivalent work at the same location; and

(cc)the base rate of pay, under the terms and conditions of employment mentioned in paragraph (c), that:

(i)       are provided; or

(ii)      would be provided;

to an Australian citizen or an Australian permanent resident, will be greater than the temporary skilled migration income threshold specified by the Minister in an instrument in writing for this paragraph; and

(d)if the nomination was made before 1 July 2010 - the person has certified as part of the nomination, in writing, that:

(i)       the tasks of the position include a significant majority of the tasks of:

(A)the nominated occupation listed in the ASCO; or

(B)the nominated occupation specified in an instrument in writing for paragraph (a); and

(ii)      if the person is lawfully operating a business outside Australia but does not lawfully operate a business in Australia:

(A)the nominated occupation is a position in the business of the standard business sponsor; or

(B)the nominated occupation is an occupation specified by the Minister in an instrument in writing for this sub-paragraph; and

(iii)     if the person lawfully operates a business in Australia:

(A)the nominated occupation is a position with a business, or an associated entity, of the person; or

(B)the nominated occupation is an occupation specified by the Minister in an instrument in writing for this sub-paragraph; and

(iv)     the qualifications and experience of the visa holder, or the applicant or proposed applicant for the visa, identified in relation to the nominated occupation are commensurate with the qualifications and experience specified:

(A)for the occupation in the ASCO; or

(B)if there is no ASCO code for the nominated occupation — for the occupation in the instrument in writing made for the purpose of paragraph (a); and

(e)if the nomination is made on or after 1 July 2010 – the person has certified as part of the nomination, in writing, that:

(i)       the tasks of the position include a significant majority of the tasks of:

(A)the nominated occupation listed in the ANZSCO; or

(B)the nominated occupation specified in an instrument in writing for paragraph (aa); and

(ii)      if the person is lawfully operating a business outside Australia but does not lawfully operate a business in Australia:

(A)the nominated occupation is a position in the business of the standard business sponsor; or

(B)the nominated occupation is an occupation specified by the Minister in an instrument in writing for this sub-subparagraph; and

(iii)     if the person lawfully operates a business in Australia:

(A)the nominated occupation is a position with a business, or an associated entity, of the person; or

(B)the nominated occupation is an occupation specified by the Minister in an instrument in writing for this sub-subparagraph; and

(iv)     the qualifications and experience of the visa holder, or the applicant or proposed applicant for the visa, identified in relation to the nominated occupation are commensurate with the qualifications and experience specified:

(A)for the occupation in the ANZSCO; or

(B)if there is no ANZSCO code for the nominated occupation - for the occupation in the instrument in writing made for paragraph (aa).

(f)the position associated with the nominated occupation is genuine; and

(g)if the person has identified in the nomination the holder of a Subclass 457 (Temporary Work (Skilled)) visa in relation to whom the requirements in subclause 457.223(6) of Schedule 2 were met—one of the following applies:

(i)       the requirements in subclause 457.223(6) of Schedule 2 continue to be met;

(ii)      if:

(A)the holder would be required to hold a licence, registration or membership that is mandatory to perform the occupation nominated in relation to the holder; and

(B)in order to obtain the licence, registration or membership, the holder would need to demonstrate that the holder has undertaken a language test specified by the Minister under subparagraph 457.223(4)(eb)(iv) of Schedule 2 and achieved a score that is better than the score specified for the test by the Minister under subparagraph 457.223(4)(eb)(v) of Schedule 2;

the holder demonstrates that he or she has proficiency in English of at least the standard required for the grant (however described) of the licence, registration or membership;

(iii)     the holder is an exempt applicant within the meaning of subclause 457.223(4) of Schedule 2;

(iv)     unless subparagraph (ii) applies—the holder:

(A)has undertaken a language test specified by the Minister under subparagraph 457.223(4)(eb)(iv) of Schedule 2; and

(B)achieved within the period specified by the Minister in a legislative instrument for this subparagraph, in a single attempt at the test, the score specified by the Minister under subparagraph 457.223(4)(eb)(v) of Schedule 2; and

(h)either:

(i)       the person will:

(A)engage the visa holder, the applicant for a visa or the proposed applicant for  a Subclass 457(Temporary Work (Skilled)) visa only as an employee under a written contract of employment; and

(B)give a copy of that contract to the Minister; or

(ii)      the nominated occupation is an occupation specified by the Minister in an instrument in writing for sub-subparagraph (e)(iii)(B).

(10AA)For paragraphs (10) (c) and (cc), if no Australian citizen or Australian permanent resident performs equivalent work in the person’s workplace at the same location, the person must determine, using the method specified by the Minister in an instrument in writing for this subregulation:

(a)the terms and conditions of employment; and

(b)the base rate of pay, under the terms and conditions of employment;

that would be provided to an Australian citizen or an Australian permanent resident to perform equivalent work in the person’s workplace at the same location.

(10AB)Paragraphs (10) (c) and (cc) do not apply if the annual earnings of the person identified in the nomination are equal to or greater than the amount specified by the Minister in an instrument in writing for this subregulation.

(10A)The Minister may disregard the criterion in paragraph (10) (cc) for the purpose of subregulation (2) if:

(a)the base rate of pay will not be greater than the temporary skilled migration income threshold specified for that paragraph; and

(b)the annual earnings are equal to or greater than the temporary skilled migration income threshold; and

(c)the Minister considers it reasonable to do so.

(11)If the person is a party to a work agreement (other than a Minister) — the Minister is satisfied that:

(a)the nominated occupation is specified in the work agreement as an occupation that the person may nominate; and

(b)if the nomination was made before 1 July 2010 - the person has certified as part of the nomination, in writing, that:

(i)       the tasks of the position include a significant majority of the tasks of:

(A)if the nomination is made using an ASCO code - the nominated occupation listed in the ASCO; or

(B)if the nomination is not made using an ASCO code - the nominated occupation specified in the work agreement; and

(ii)      the qualifications and experience of the visa holder, or the applicant or proposed applicant for the visa, identified in relation to the nominated occupation are commensurate with the qualifications and experience specified for the occupation in the work agreement; and

(c)if the nomination is made on or after 1 July 2010 - the person has certified as part of the nomination, in writing, that:

(i)       the tasks of the position include a significant majority of the tasks of:

(A)if the nomination is made using an ANZSCO code - the nominated occupation listed in the ANZSCO; or

(B)if the nomination is not made using an ANZSCO code - the nominated occupation specified in the work agreement; and

(ii)      the qualifications and experience of the visa holder, or the applicant or proposed applicant for the visa, identified in relation to the nominated occupation are commensurate with the qualifications and experience specified for the occupation in the work agreement.

(12)If the person is a party to a work agreement and the work agreement specifies requirements that must be met by the party to the work agreement — the Minister is satisfied that the requirements of the work agreement have been met.