Ikonkar Satnaam Pty. Ltd. (Migration)

[2020] AATA 1604

Ikonkar Satnaam Pty. Ltd. (Migration) [2020] AATA 1604 (14 May 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ikonkar Satnaam Pty. Ltd.

CASE NUMBER:  1732021

DIBP REFERENCE(S):  BCC2017/3157877

MEMBER:Ian Berry

DATE:14 May 2020

PLACE OF DECISION:  Brisbane

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

Statement made on 14 May 2020 at 9:24am

CATCHWORDS
MIGRATION – Employer Nomination – approval of nominated position – Cook – specified occupation – inapplicability conditions – limited service restaurant – applicant gone into liquidation – external administration – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 140GB
Migration Regulations 1994 (Cth), r 2.72

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 to refuse to approve a 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 of the nomination on 31 August 2017. The delegate decided not to approve the nomination on the basis that the nominated position was that of a cook (ANZSCO[1] 351411). That occupation is not applicable to a cook where the nominated position is involved in mass production in a factory setting or in a limited service restaurant: r.2.72(10)(aa).

   [1] Australian and New Zealand Standard Classification of Occupations, First Edition, Revision 1

3. The applicant was represented in relation to the review by its registered migration agent Ms Stephanou of AIS Immigration Solutions.

4. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed. 

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. The issues in the present case are whether:

   a.the applicant’s nominated position of cook is involved in mass food production in a factory setting or in a limited service restaurant. If it is in either setting, then the nominated position is not within the Ministers instrument in writing IMMI 17/060 (the relevant instrument in writing).

   b.The applicant is carrying on a business as it is under external administration.

6. The applicant either operates or has operated a small restaurant in Kawana on the Sunshine Coast, Queensland. With its application for the nomination of a Temporary Business Entry visa, the applicant provided copies of its restaurant menu and photographs of the restaurant.

7. The menu consists of simple dishes with a limited selection and basic ingredients. For example, the most expensive items on the menu is Benedict at $16.50; barbecue pulled pork is $18; with the most expensive item on the menu being an OB tomato hotpot at $19.50. A handwritten specials menu appearing on entry reflects amounts less in price. Again, basic ingredients simple meals with very little preparation.

8. The applicant’s job description is consistent with the description of the meals previously mentioned. For example, the position description[2] states as one of the cooks duties is to apportion, arrange and garnish food before giving it to waiters; oversee washing cleaning floors, crockery, utensils, work surfaces and other kitchen equipment to ensure that the necessary hygiene and health and safety standards are maintained in the kitchen and dining room is appropriate. Photographs of the sitting area in the restaurant is basic without table service.

   [2] tribunal file folio 45

9. The relevant instrument in writing in paragraph 4 (Definitions) defines limited service restaurant as including the following:

   a.A fast food or takeaway food service;

   b.A fast casual restaurant;

   c.A drinking establishment that offers only a limited food service;

   d.A limited service café, including a coffee shop or mall café;

   e.A limited service pizza restaurant.

10. The relevant instrument in writing at item number 202 in Column 3 for the occupation of cook was subject to ‘inapplicability conditions (see section 8). The relevant conditions were numbered 7 and 8. The schedule was entitled ‘Positions for which occupation is inapplicable’:

    a.Item 7 stated ‘the position is involved in mass production in a factory setting.

    b.Item 8 stated ‘the position is in a limited service restaurant’.

11. On 13 February 2020, the Tribunal invited the applicant to provide information relevant to its application. The invitation extended to provide information, if the applicant was a company, current and historical information about its office holders registration details.

12. The applicant was invited to provide the information on or before 27 February 2020. The Tribunal’s letter made clear that the applicant could apply for an extension of time but the information must be received by 27 February 2020 if no extension was sought or granted. The applicant did not respond either by asking for an extension or in providing the information requested.

13. By email dated 28 February 2020, the applicant’s migration representative, advised the Tribunal of the applicant having gone into liquidation on 26 June 2019. The migration representative further stated the nominator is therefore unable to proceed further with the appeal.

14. On 2 March 2020, the Tribunal ascertained from the asset database the applicant present status was of External Administration.[3]

    [3] ASIC is the Australian Securities & Investments Commission.

15. The applicant through its migration representative was invited to withdraw the application to review by letter dated 6 March 2020. A response was not received and as a result to the Tribunal proceeded to make a decision.

    DECISION

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

    Ian Berry
    Member