J & J Pty Ltd (Migration) - [2021] AATA 3327

J & J Pty Ltd (Migration) [2021] AATA 3327 (27 August 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  J & J Pty Ltd
CASE NUMBER:  1828818
HOME AFFAIRS REFERENCE(S):          BCC2017/1098013
MEMBER:De-Anne Kelly
DATE:27 August 2021
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision under review to refuse the nomination.

Statement made on 27 August 2021 at 8:33am
CATCHWORDS
MIGRATION – application for approval of nomination of position – direct entry nomination stream – genuine need to employ nominee – restaurant manager spending more time as waiter – COVID-19 restrictions and closures – position cannot be filled by citizen or permanent resident in same local area – change of location within same region – position not re-advertised – reliance on advertising for original location – advice from regional certifying body not conclusive – sound evidence required to support finding that position cannot be filled locally – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), s 359AA
Migration Regulations 1994 (Cth), r 5.19(4)(h)(ii)(B), (C), (E)
CASES
Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27
Bharaj Construction Pty Ltd v MIBP [2016] FCCA 902
Chinchilla (Australia) Enterprises Pty Ltd (Migration) [2020] AATA 2913
V&B Holdings Pty Ltd (Migration) [2020] AATA 2904
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 14 September 2018 to reject the applicant’s application for approval of the nomination of a position in Australia under r.5.19 of the Migration Regulations 1994 (the Regulations).
The applicant applied for approval on 21 March 2017. The requirements for the approval of the nomination of a position in Australia are found in r.5.19 of the Regulations which contains two alternative streams: a Temporary Residence Transition nomination stream (r.5.19(3)) and a Direct Entry nomination stream (r.5.19(4)). If the application is made in accordance with r.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: r.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 r.5.19(4)(h)(ii)(B) of the Regulations because the applicant had not demonstrated a genuine need to employ the nominee in the position for at least two years.
The applicant appeared before the Tribunal on 10 August 2021 to give evidence and present arguments.
The applicant was represented in relation to the review by its registered migration agent, Ms Athina Stephanou MARN: 0103975.
For the following reasons, the Tribunal has decided to affirm the decision under review to refuse the nomination.
Postponements, adjournments and extensions of time.
The hearing was originally scheduled for 5 August 2021 however a request for postponement was received on the basis that the spouse of the director was also…

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.

Continue reading J & J Pty Ltd (Migration)

Details

AGLC: J & J Pty Ltd (Migration) [2021] AATA 3327
Case: [2021] AATA 3327
Decision Date: 27 August 2021

CaseChat Overview and Summary

This matter concerned an application by J & J Pty Ltd for approval of a nomination for a Restaurant Manager position under the Direct Entry stream of the Regional Sponsored Migration Scheme. The dispute arose because the Tribunal affirmed the decision to refuse the nomination, finding that the applicant had not demonstrated a genuine need for the nominee or that the position could not be filled locally. The case was heard by De-Anne Kelly.

The primary legal issue before the court was whether J & J Pty Ltd had met the requirements of regulation 5.19(4) of the Migration Regulations 1994, specifically concerning the genuine need for the nominated employee and the inability to fill the position with an Australian citizen or permanent resident in the same local area. This involved assessing the evidence presented regarding the business's operations, recruitment efforts, and the relocation of the business from Nanango to Highfields.

The court reasoned that the applicant had failed to establish a genuine need for the nominated position in the context of the business's relocation. The original nomination was for a position in Nanango, but the business subsequently moved to Highfields, a suburb of Toowoomba. The court found that the advertising for the original location was not sufficient to demonstrate that the position could not be filled locally in the new location. Furthermore, while advice from a regional certifying body was considered, the court emphasised the need for sound evidence to support the claim that the position could not be filled locally, which was not adequately provided. The court also noted that the nominee's role appeared to involve more time spent as a waiter than as a restaurant manager, which cast doubt on the genuine need for the nominated position.

The Tribunal affirmed the decision under review to refuse the nomination.

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.Evidence12.At the commencement of the hearing, the Tribunal advised that the evidence to be considered included documents provided with the original application to the Department and subsequently; the evidence at hearing and any documents provided up to 14 days following the hearing or within an extended period of time, if a reasonable request was made. Documents considered are in attached Schedule 1.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 r.5.19(4), which is extracted in the attachment to this decision. For the nomination to be approved, all the requirements must be met. The applicant J & J Pty Ltd registered on 24 March 2014 and is operating under ABN: 35 168 713 219 with the sole director; Secretary and shareholder being Ms Rajni Arora who was unable to attend having given birth eight months ago. On 21 March 2017, the applicant J & J Pty Ltd trading as Nanango Food Junction lodged a Regional Sponsored Migration Scheme employer nomination - Visa subclass 187 in the direct entry stream for the position of Restaurant Manager on $52,100 per annum to be located in Nanango QLD 4165 in favour of Mr Jagjit Singh. The nominee’s place of employment was listed as 77 Drayton Street, Nanango QLD 4165. Mr Chetan Talwar, the spouse of the owner and director, represented the applicant and advised that he had knowledge of the business structure. Ms Rajni Arora signed a lease on 19 August 2019 for another location in Toowoomba called Highfields Curry Garden until 31 August 2022 with “Nil options”. Both restaurants are under the same ABN: 35 168 713 219. Mr Talwar advised that they acquired the Indian restaurant in 2017 and it was the only Indian restaurant in the Nanango area and was busy and they intended to employ a full-time manager. The lease expired and was not extended, and they tried to find another location in Nanango but found another in Highfields. So, they moved from Nanango and opened in Highfields, a suburb of Toowoomba. They employ, one chef, one cook, one kitchen hand, two waiters and the Restaurant Manager. The reason for moving was the high Indian population in the area and a chance to expand into catering.

Decision

Reasons for decision

For the following reasons, the Tribunal has decided to affirm the decision under review to refuse the nomination.Postponements, adjournments and extensions of time. The hearing was originally scheduled for 5 August 2021 however a request for postponement was received on the basis that the spouse of the director was also the head chef and a director of another legal entity Spice Garden Restaurant Pty Ltd with ABN 91 611 189 783 and that if the hearing could not be postponed then they would have to close both restaurants. The postponement was granted, and the hearing re-scheduled to 10 August 2021. On 1 July 2021 the applicant requested an extension of time of 14 days to provide information which was granted.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 from the registered migration agent; the applicant could make a written submission within 14 days or an extended period of time if it requested an extension; or they could respond in the hearing. If they responded in the hearing, it would not prevent them from making a written submission within 14 days or a longer period if they requested an extension of time. 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.Evidence12.At the commencement of the hearing, the Tribunal advised that the evidence to be considered included documents provided with the original application to the Department and subsequently; the evidence at hearing and any documents provided up to 14 days following the hearing or within an extended period of time, if a reasonable request was made. Documents considered are in attached Schedule 1.CONSIDERATION OF CLAIMS AND EVIDENCE

Ratio Decidendi

Legal Principle Established

The Tribunal affirms the decision under review to refuse the nomination.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 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) both 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;(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 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).Schedule 1Documents including the following were provided with the original application.1)Regional certifying body advice including form 1404 including following information “RSMS postcode: Nanango 4615”, “Can’t be filled locally: recruitment efforts: gumtree 270117. Copy of listing provided. Five applicants but they lacked knowledge et cetera. RCB local knowledge: South Burnett region about 200 km north west of Brisbane. Population 3800. Known shortages cross hospitality if seeking Quals. Manager needs to know about the food so Indian makes this that that much harder. Little if any labour pool of qualified hospitality staff… No local available acceptable; known difficulties so except.”2)Organisation chart for Nanango Food Junction showing owners; restaurant manager (nominee); 2 x front of house; 1x cook (full-time); 1 x casual cook and 1 x kitchen hand.3)Labour market testing/recruitment summary showing advertisement on gumtree Australia as at 27 January 2017 with geographical target audience listed as Nanango Queensland with five applications received.4)Selection of supplier invoices.5)ASIC and ABN registration.6)Market salary analysis.7)Menu or Nanango food junction.8)Lease agreement, business plan, projected cash flow for Nanango food junction.9)Employment dated 20 March 2017 stating, “you will be required to perform your duties at 77 Drayton Street, Nanango QLD 4165”, signed by both employer and nominee.10)Gumtree advertisement listed on 27 January 2017 stating as follows “Restaurant manager Nanango Queensland” listed as full time.11)Online application and acknowledgement dated 21 March 2017 stating, “address where nominated person will be employed-Australia 77 Drayton Street, Nanango, Queensland, postcode 4165.”12)BAS statements for FY 2017, 2018.13)Photographs of the premises.14)Financial report or FY 2017.15)Support letter from accountants.16)Overview of the position from the agent dated 1 March 2017.Documents including the following were provided with and after the review application.17)Invitation from the Tribunal dated 18 June 2021 to provide updated information.18)ASIC and ABN registration dated 2019 showing business name as Highfields Curry Garden.19)Supporting letter from accountant dated 22 January 2020.20)Photos of and menu for Highfields curry Garden restaurant.21)Lease agreement for Highfields premises.22)Financial report 2018, 2019, 2020 and 2021.23)Company tax return 201924)BAS statements FY 2020 and FY 2021.25)Organisation chart for Highfields curry Garden.26)Payroll the applicant for FY 2018 to 2021.27)PAYG payment summaries and notice of assessments for the nominee FY 2019 to 2021.28)Assorted documents for the nominee including passport and qualifications.29)Employment contract dated 4 July 2021 with requirement to perform duties at Highfields Plaza QLD 4352 & by applicant and nominee.30)Market salary analysis.31)Menu for Highfields curry Garden.32)Letter from the agent dated 2 August 2021.33)Screenshot of advertisement on Seek.34)Payslips for the nominee for July 2021.35) Letter from the agent dated 26 August 2021.