JP RESTURANTS AND CATERING PTY LTD (Migration) - [2021] AATA 4694

JP RESTURANTS AND CATERING PTY LTD (Migration) [2021] AATA 4694 (25 October 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  JP RESTURANTS AND CATERING PTY LTD
CASE NUMBER:  1813413
HOME AFFAIRS REFERENCE(S):          BCC2017/2097744
MEMBER:Susan Reece Jones
DATE:25 October 2021
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Statement made on 25 October 2021 at 4:00pm

CATCHWORDS
MIGRATION–nomination – Cafe or Restaurant Manager – Temporary Residence Transition nomination stream – turnover of the applicant is growing – nominee performed the nominated occupation on a full-time basis – business was able to financially support the position – financial capacity to employ the nominee full-time for a minimum of 2 years – No less favourable terms and condition of employment –applicant lawfully operating a business in Australia–decision under review set aside
LEGISLATION
Migration Act 1958, ss 65, 140GB, 245AR, 359
Migration Regulations 1994, rr 1.13, 5.19
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 19 April 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 14 June 2017. The requirements for the approval of the nomination of a position of Cafe or Restaurant Manager (ANZSCO: 141111) 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 Temporary Residence Transition nomination stream.
The delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19(3)(d) of the Regulations because the applicant did not demonstrate the financial capacity to pay the full-time salary for the nominated position for at least 2 years.
The Tribunal received a review application on 9 May 2018. It was signed on behalf of the applicant by Mr Harpreet Singh Mangat, the applicant’s director. The review application was accompanied by a copy of the delegate’s decision.
On 9 November 2020, the Tribunal wrote to the applicant’s representative Mr Etienne De Villiers Hugo, of Teleo Immigration Specialists, under s359(2) of the Migration Act 1994 (the Act) inviting them to provide the Tribunal with further information in support of this application.
In response to the Tribunal’s s359(2) request, on 23 November 2020, the applicant requested an extension which the Tribunal provided until 7 December 2020.
On 7 December 2020, the representative requested the Tribunal provide a further extension to provide information. The representative stated that the applicant had informed the…

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.

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Details

Case: [2021] AATA 4694
Decision Date: 25 October 2021

CaseChat Overview and Summary

The Administrative Appeals Tribunal reviewed a decision concerning a nomination application made by JP Restaurants and Catering Pty Ltd. The dispute centred on whether the company met the requirements for approving a nomination under the Temporary Residence Transition stream, specifically for the occupation of Cafe or Restaurant Manager. The Tribunal was tasked with determining if the applicant satisfied all relevant criteria as stipulated in regulation 5.19(3) of the Migration Regulations 1994.

The Tribunal was required to assess several key legal issues. These included whether the nomination application was compliant, whether the nominator was actively and lawfully operating a business in Australia, and whether the nominee had fulfilled the necessary employment requirements in the nominated occupation. Furthermore, the Tribunal had to consider the financial capacity of the business to employ the nominee for the required period, ensure no less favourable terms and conditions of employment were offered compared to Australian citizens or permanent residents, and determine if there was any adverse information known to Immigration concerning the nominator or associated persons that could not be disregarded.

In its reasoning, the Tribunal found that the nomination application met the formal requirements, and that JP Restaurants and Catering Pty Ltd was indeed actively and lawfully operating its business, "The Melting Chilli," in Umina Beach, NSW. The Tribunal was satisfied that the nominee had performed the nominated occupation on a full-time basis for the requisite period. Crucially, the Tribunal considered the financial statements and BAS statements provided, concluding that the business had the financial capacity to employ the nominee full-time for at least two years and that the terms and conditions of employment were no less favourable than those offered to local workers. The Tribunal also found no adverse information known to Immigration that warranted disregarding the nomination.

Consequently, the Tribunal set aside the original decision and substituted a decision approving 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

For the following reasons, the Tribunal has decided to set aside the decision under review and substitute a decision approving the nomination.CONSIDERATION OF CLAIMS AND EVIDENCE The issue in this case is whether the applicant meets the requirements for approval of the nomination under the Temporary Residence Transition nomination stream set out in r.5.19(3), which is extracted in the attachment to this decision. For the nomination to be approved, all the requirements must be met.The application must be compliant: r.5.19(3)(a) Regulation 5.19(3)(a) requires that the application for approval must be in the approved form, must be accompanied by the prescribed fee and, where applicable, must include the required written certification relating to conduct that contravenes s.245AR(1). The application must also identify a relevant person and occupation. From the material on the Department file, the Tribunal is satisfied that the nomination application complied with the above requirements. Given the above findings, the requirement in r.5.19(3)(a) is met.Status of the nominator: r.5.19(3)(b) Regulation 5.19(3)(b) requires the nominator to be or have been the relevant standard business sponsor who is actively and lawfully operating a business in Australia. In addition, the nominator, as that standard business sponsor, must not have met certain criteria relating to the operation of a business overseas, in the most recent sponsorship approval. The Department’s records indicate that the applicant was approved as a standard business sponsor 16 August 2013 to 16 August 2014, 23 December 2014 to 23 December 2017, and most recently, from 6 February 2018 to 6 February 2023. The Tribunal is satisfied that the company was the standard business sponsor who last identified the nominee, Mrs Baljit Kaur, and nominated her for a subclass 457 visa. The Tribunal is further satisfied that in its most recent sponsorship approval, the applicant is not operating a business overseas. The applicant operates a restaurant known as “The Melting Chilli”, in Umina Beach, (Woy Woy) on the NSW Central Coast. The identified occupation in the application is Cafe or Restaurant Manager (ANZSCO: 141111), with a base salary of $54,000. In relation to whether the applicant is actively and lawfully operating a business in Australia, the applicant has provided evidence of its current ASIC and ABN registration and its financial statements and BAS Statements to 2021, which show that it is actively trading. The Tribunal is satisfied based on the material before it, including the business' registration documents, BAS, payroll activity information and other information about the business' activities that the nominator is actively and lawfully operating a business in Australia. Given the above, the requirement in r.5.19(3)(b) is met.Previous employment of the nominee: r.5.19(3)(c) Broadly speaking, to meet the requirement in r.5.19(3)(c), either:· the nominee must have been employed full time in Australia in the position for which he or she holds a Subclass 457 visa for at least 2 of the 3 years preceding the nomination application; or· the nominee holds a Subclass 457 visa on the basis that s/he was identified in a nomination of a specified occupation for that visa, the nominator nominated the occupation, and the nominee has been employed in that occupation for at least 2 years in the 3 years immediately before the application.

Decision

Reasons for decision

Based on the findings above, the Tribunal is satisfied that the applicant meets the requirements of r.5.19 for approval of the nomination of the position in Australia.DECISION The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.Susan Reece JonesMemberATTACHMENT - 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.Temporary Residence Transition nomination(3)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 person who holds a Subclass 457 … visa granted on the basis that the person satisfied the criterion in subclause 457.223(4) of Schedule 2; and(iii) identifies an occupation, in relation to the position, that:(A)is listed in ANZSCO; and(B)has the same 4-digit occupation unit group code as the occupation carried out by the holder of the Subclass 457 … visa; and(b)the nominator:(i) is, or was, the standard business sponsor who last identified the holder of the Subclass 457 … visa in a nomination made under section 140GB of the Act or under regulation 1.20G or 1.20GA as in force immediately before 14 September 2009; and(ii) is actively and lawfully operating a business in Australia; and(iii) did not, as that standard business sponsor, meet regulation 1.20DA, or paragraph 2.59(h) or 2.68(i), in the most recent approval as a standard business sponsor; and(c)either:(i) both of the following apply:(A)in the period of 3 years immediately before the nominator made the application, the holder of the Subclass 457 …visa identified in subparagraph (a) (ii) has: (I)held one or more Subclass 457 visas for a total period of at least 2 years; and(II)been employed in the position in respect of which the person holds the Subclass 457 … visa for a total period of at least 2 years (not including any period of unpaid leave);(B)the employment in the position has been full-time, and undertaken in Australia; or(ii) all of the following apply:(A)the person holds the Subclass 457 … visa on the basis that the person was identified in a nomination of an occupation mentioned in sub-subparagraph 2.72(10)(d)(iii)(B) or sub-subparagraph 2.72(10)(e)(iii)(B);(B)the nominator nominated the occupation;(C)the person has been employed, in the occupation in respect of which the person holds the Subclass 457 … visa, for a total period of at least 2 years in the period of 3 years immediately before the nominator made the application; and(d)for a person to whom subparagraph (c)(i) applies:(i) the person will be employed on a full-time basis in the position for at least 2 years; and(ii) the terms and conditions of the person’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) the nominator:(A)fulfilled any commitments the nominator made relating to meeting the nominator’s training requirements during the period of the nominator’s most recent approval as a standard business sponsor; and(B)complied with the applicable obligations under Division 2.19 relating to the nominator’s training requirements during the period of the nominator’s most recent approval as a standard business sponsor; or(ii) it is reasonable to disregard subparagraph (i); andNote Different training requirements apply depending on whether the application for approval as a standard business sponsor was made before 14 September 2009 or on or after that date.(g)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(h)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.

Ratio Decidendi

Legal Principle Established

Accordingly, the requirement in r.5.19(3)(f) is met.No adverse information known to Immigration: r.5.19(3)(g) Regulation 5.19(3)(g) requires that there is no adverse information known to Immigration about the nominator or person associated with the nominator; or it is reasonable to disregard any such information. For these purposes, ‘adverse information’ and ‘associated with’ have the meaning given in rr.1.13A and 1.13B. The Tribunal has reviewed the Department's records, including its Integrated Client Services Environment (ICSE) and has found nothing to indicate that there is any adverse information known to Immigration about the nominator or person associated with the nominator. The Tribunal upon assessment of the applicant’s financial statements, put the issue of payments owed to the ATO by the applicant to director Mr. Mangat, at the hearing. As acknowledged in the submission from Accountants Mr Greg Olson (Partner) and Avinesh Ram (Partner) of Argo Accounting & Business Services of Blacktown, NSW (dated 17 May 2021- refer paragraph 40 above), the applicant has owed – and is repaying - money to the ATO. The Tribunal has considered whether the payments owed to the ATO constitute adverse information for the purposes of r5.19(3)(g). ‘Adverse information’ for these purposes means any adverse information relevant to a sponsor’s suitability as an approved sponsor or a nominator and includes information about the sponsor or a person associated with the sponsor. Adverse information as defined in reg 1.13A, is a non-exhaustive list and includes information that the person:·has been found guilty by a court, of an offence under a Commonwealth, State or Territory law; or·has, to the satisfaction of a ‘competent authority’,[1] acted in contravention of a Commonwealth, State or Territory law; or·has been the subject of administrative action (including the issue of a warning) by a competent authority for the possible contravention of a Commonwealth, State or Territory law; or·is under investigation, subject to disciplinary action or subject to legal proceedings in relation to an alleged contravention of a Commonwealth, State or Territory law; or·has become insolvent within the meaning of ss 5(2) and (3) of the Bankruptcy Act 1966 (Cth) and s 95A of the Corporations Act 2001 (Cth).[2][1] ‘Competent Authority’ is defined as a Department or regulatory authority that administers or enforces a law that is alleged to have been contravened: reg 2.57(1) as inserted by SLI 2009, No 115.[2] reg 1.13A(1). The law which has been contravened, or has possibly been contravened as referred to in the first four dot points above, must relate to one or more of the following: discrimination, immigration, industrial relations, occupational health and safety, people smuggling and related offences, slavery, sexual servitude and deceptive recruiting, taxation, terrorism and trafficking in persons and debt bondage.[3] In addition, the conviction, finding of non-compliance, administrative action, investigation, legal proceedings or insolvency must have occurred within the previous 3 years.[4][3] reg 1.13A(2).[4] reg 1.13A(3).