Jai Shiv Shakti Noodles Bar & Cafe Pty Ltd (Migration)

[2020] AATA 5866

Jai Shiv Shakti Noodles Bar & Cafe Pty Ltd (Migration) [2020] AATA 5866 (30 November 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Jai Shiv Shakti Noodles Bar & Cafe Pty Ltd

CASE NUMBER:  1930288

HOME AFFAIRS REFERENCE(S):          BCC2018/1277276

MEMBER:W Frost

DATE:30 November 2020

PLACE OF DECISION:  Canberra

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

Statement made on 30 November 2020 at 4:44pm

CATCHWORDS
MIGRATION – Employer Nomination – approval of nominated position – Direct Entry Nomination – Chef – identification of need – no response to s.359(20 letter – response to s.359A letter – GST registration cancelled – active and lawful operation – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 359C, 360, 363A
Migration Regulations 1994 (Cth), r 5.19

CASES
Hasran v MIAC [2010] FCAFC 40

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 5 October 2019 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 (Regulations).

2. The applicant applied for approval on 16 March 2018. 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).

3. In this case, the applicant has applied for approval of a nomination, seeking to satisfy the criteria in the Direct Entry nomination stream. The review applicant nominated the position of Chef (ANZSCO 351311).

4. The delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19(4)(a)(ii) of the Regulations because it was not satisfied that the application had identified a need for the nominator to employ a paid employee to work in the position under the nominator’s direct control.

5. On 25 October 2019, the applicant applied to the Administrative Appeals Tribunal (Tribunal) for review of the delegate’s refusal decision.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. 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.

   Tribunal’s invitation pursuant to s.359(2) of the Migration Act

8. On 4 August 2020, the Tribunal wrote to the applicant pursuant to s.359(2) of the Migration Act 1958 (Act), inviting the applicant to provide updated and current information about all the requirements in rr.5.19(2) and (4). The letter also advised that, in order for the nomination of a position to be approved, the Tribunal must be satisfied that all of the relevant criteria in r.5.19 are met at the time of its decision.

9. The Tribunal invited the applicant to provide updated and current information about a range of matters, including information about its organisational structure and financial capacity. Without limiting the type of information that could be provided, the Tribunal suggested examples could include tax returns and business activity statements, financial statements for the most recent two financial years, and a current employment contract in respect of the nominee or letter of engagement for the nominated position.

10. On 18 August 2020, the applicant requested an extension of time to provide updated and current information.

11. On 20 August 2020, the Tribunal granted the applicant an extension of time until 15 September 2020.

12. On 15 September 2020, the applicant requested a further extension of time of between two to three months to provide updated and current information.

13. On 24 September 2020, the Tribunal granted the applicant an extension of time until 26 November 2020. The letter relevantly stated that:

    If we do not receive the information by 26 November 2020, we may make a decision on the review without taking any further action to obtain the information. Jai Shiv Shakti Noodles Bar & Cafe Pty Ltd will also lose any entitlement it might otherwise have had under the Migration Act 1958 to appear before us to give evidence and present arguments. [emphasis in original]

14. The review applicant has not provided the information within the prescribed period or within the extended period of time to provide such information granted by the Tribunal. In these circumstances, s.359C of the Act applies and pursuant to s.360(3) the review applicant is not entitled to appear before the Tribunal. The effect of s.363A of the Act is that if a review applicant has no entitlement to a hearing, the Tribunal has no power to permit him or her to appear: Hasran v MIAC [2010] FCAFC 40.

15. The Tribunal is satisfied that the invitation to provide information was sent to the correct email address. This invitation was not returned to sender as undeliverable mail. To date, the requested information has not been provided and the applicant has not made any further contact with the Tribunal to indicate that the information is forthcoming since its last extension of time granted to 26 November 2020. The Tribunal is not required to delay indefinitely making its decision. In the circumstances, the Tribunal has decided to proceed to a decision without taking further steps to obtain the information.

16. The applicant did not provide to the Tribunal any updated or current information, either with its application to the Tribunal for review in October 2019 or at any other subsequent stage. Accordingly, the Tribunal turns to consider the information the applicant provided to the Department when it applied in March 2018. These documents were:

    a.Menu for the business titled ‘Raj Noodle Bar & Café’;

    b.Financial Statements for the year ending 30 June 2015, listing sales of $85,163.32, wages payments of $24,050.74 and net loss of $11,950.02;

    c.Australian Taxation Office (ATO) Tax Agent Portal information on the applicant for the period 1 July 2015 to 30 September 2015 listing total sales of $53,246, the payment of $23,924 in wages and a total amount of $7.034 owing to the ATO;

    d.ATO Tax Agent Portal information on the applicant for the period 1 October 2015 to 31 December 2015 listing total sales of $72,088, the payment of $23,490 in wages and a total amount of $8,604 owing to the ATO;

    e.ATO Tax Agent Portal information on the applicant for the period 1 January 2016 to 31 March 2016 listing total sales of $94,530, the payment of $23,490 in wages and a total amount of $8,604 owing to the ATO;

    f.ATO Tax Agent Portal information on the applicant for the period 1 April 2016 to 30 June 2016 listing total sales of $67,148, the payment of $22,667 in wages and a total amount of $7,251 owing to the ATO;

    g.Payslips of the nominee from July 2016 to December 2016;

    h.‘Food Business Registration’ certificate issued by the ACT Government for the period 28 August 2016 to 28 August 2017; and

    i.Email from ‘ACT Migration and Information Services’ dated 13 August 2018, being the body approved by the Minister for Immigration and Border Protection for the purposes of r.5.19(4), advising that the nomination satisfies the following requirements:

    i.there is a genuine need for the nominator to employ a paid employee to work in the position under the nominator’s direct control;

    ii.the position cannot be filled by an Australian citizen or an Australian permanent resident who is living in the same local area where the nominated position exists; and

    iii.the terms and conditions of employment applicable to the position will be no less favourable than the terms and conditions that are provided to, or would be provided to, an Australian citizen or Australian permanent resident for performing work in the person’s workplace at the same location.

17. In circumstances where the documents of the applicant that were provided to the Department are now four years old, and the documentation from the ACT Government is more than two years old, the applicant has not provided any current information about its business, including identifying a need to employ a paid employee to work in the position.

18. As is evident from the documentary evidence, the applicant traded at a loss in the 2015 financial year. In addition, the Tribunal has been provided with no financial information for the applicant beyond the 2016 financial year, being a period of more than four years. The applicant also told the Tribunal in its recent response to the s.359A invitation that its restaurant had been closed since the ‘end of last year’. Accordingly, based on the available evidence, the Tribunal is not satisfied that the application has identified a need for the nominator to employ a paid employee to work in the position under the nominator’s direct control pursuant to r.5.19(4)(a)(ii).

    Tribunal’s invitation pursuant to s.359A of the Migration Act

19. The Tribunal notes that it also wrote to the applicant pursuant to s.359A of the Act. This correspondence was sent to the applicant on the same day as the Tribunal’s last correspondence granting an extension of time for the applicant to provide updated and current information pursuant to s.359(2) of the Act, being 24 September 2020. While the applicant replied to the Tribunal’s letter sent under s.359A of the Act within the prescribed time (being 8 October 2020), as set out above, the applicant did not reply to the Tribunal’s letter sent under s.359(2) of the Act within the prescribed time (being 26 November 2020). Accordingly, as described above, the applicant lost its right to appear before the Tribunal at a hearing and the Tribunal has proceeded to make a decision in relation to this application.

20. However, for completeness, the Tribunal considers the applicant’s response to the Tribunal’s letter sent pursuant to s.359A of the Act, which was relevantly in the following terms:

    I am writing in relation to the application for review made on 25 October 2019 by Jai Shiv Shakti Noodles Bar & Cafe Pty Ltd in respect of a decision made on 5 October 2019 to refuse its application for approval of a nominated position under r.5.19 of the Migration Regulations 1994 (Regulations).

    In conducting the review, we are required by section 359A of the Migration Act 1958 (Act) to invite you to comment on or respond to certain information which we consider would, subject to your comments or response, be the reason, or a part of the reason, for affirming the decision under review.

    Please note, however, that we have not made up our mind about the information.

    The particulars of the information are that records from the Australian Business Register indicate that Jai Shiv Shakti Noodles Bar & Cafe Pty Ltd ABN 22 602 771 031 is not currently registered for GST and GST registration was cancelled from 30 September 2019.

    The information before the Tribunal is relevant to the review because the Tribunal may not be satisfied that Jai Shiv Shakti Noodles Bar & Cafe Pty Ltd ABN 22 602 771 031 is actively and lawfully operating a business in Australia, pursuant to r.5.19(4)(b)(i) of the Regulations, and that it will be able to employ the nominee on a full-time basis in the nominated position for at least 2 years, pursuant to r.5.19(4)(d)(i) of the Regulations.

    Subject to your comment and response, if the Tribunal relies on this information, it may find that Jai Shiv Shakti Noodles Bar & Cafe Pty Ltd ABN 22 602 771 031 is not actively and lawfully operating a business in Australia and will not be able to employ the nominee on a full-time basis in the nominated position for at least 2 years, and this would be the reason, or a part of the reason, for affirming the decision under review to refuse the application for approval of a nominated position under r.5.19(4) of the Regulations.

    You are invited to comment on or respond to the above information in writing. [emphasis in original]

21. On 7 October 2020, the applicant provided the following response to the Tribunal’s letter of 24 September 2020 sent pursuant to section 359A of the Act:

    I am writing this email because you mentioned that Jai Shiv Shakti Noodles bar & cafe Pty Ltd ABN is not currently registered for GST since end of last year. It’s right, the reason for that end of last year very big bushfire around Canberra and weather was very smoky and very quite people scared to go outside and then we planned close the restaurant for renovation but after that COVID-19, so that’s by my restaurant close since end of last year. And my restaurant ABN is unregistered for GST because my restaurant is close and I don’t want to pay extra money to my accountant for lodge the documents etc.

    But when I reopen my restaurant I will provide all the documents ASAP. I hope you understand the situation thanks.

22. Based on the information before the Tribunal, here being the information obtained from the Australian Business Register that the applicant is not currently registered for GST and GST registration was cancelled from 30 September 2019 and the applicant’s response to the s.359A invitation, the Tribunal is not satisfied that the applicant is actively and lawfully operating a business in Australia and will be able to employ the nominee on a full-time basis in the nominated position for at least 2 years. While the Tribunal notes that there may be reasons for a business, and here the applicant, not to be registered for GST (including because it is closed), in the absence of any current financial information (noting again that the information is four years old), and the fact that the applicant has stated that the business has been closed since the end of last year and at least up until the last correspondence from the applicant in October 2020, the Tribunal is not satisfied that the applicant is currently actively and lawfully operating a business in Australia, pursuant to r.5.19(4)(b)(i) of the Regulations, and that it will be able to employ the nominee on a full-time basis in the nominated position for at least 2 years, pursuant to r.5.19(4)(d)(i) of the Regulations.

23. For the reasons set out in this decision, the Tribunal finds that the requirements in r.5.19(4)(b)(i) and r.5.19(4)(d)(i) are not met.

24. For the above reasons, the Tribunal is not satisfied that the applicant meets the requirements of r.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 r.5.19(3). Accordingly, the nomination of the position cannot be approved. Therefore, the Tribunal must affirm the decision under review.

    DECISION

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

    W Frost
    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 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).