Kamel Droubi (Migration)

[2020] AATA 3959

Kamel Droubi (Migration) [2020] AATA 3959 (1 September 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Kamel Droubi

CASE NUMBER:  1718359

HOME AFFAIRS REFERENCE(S):          BCC2017/640650

MEMBER:George Hallwood

DATE:1 September 2020

PLACE OF DECISION:  Adelaide

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

Statement made on 01 September 2020 at 2:45pm

CATCHWORDS
MIGRATION – Employer Nomination – approval of nominated position – Café or Restaurant Manager – genuine position – no response to s.359(2) invitation – not entitled to appear before the Tribunal – nominee brother of nominating business’s owner – minimal advertising of position – facilitation of migration outcome – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 140GB, 140GBA, 359C, 360, 363A
Migration Regulations 1994 (Cth), rr 2.72, 2.73

CASES
Cargo First Pty Ltd v MIBP [2016] FCA 30
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 Immigration and Border Protection on 31 July 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 16 February 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 r.2.72(10)(f) because they were not satisfied that the position associated with the nominated occupation is genuine.

4. The applicant in this matter is Mr Kamel Droubi, a sole trader and owner of two restaurants, Beiyrut Tuart Hill and King Kebab, in Western Australia. The applicant is represented in relation to the review by their registered migration agent.

5. On 1 June 2020 the Tribunal wrote to the applicant pursuant to s.359(2) of the Act, inviting the applicant to provide updated and current information addressing the requirements in regulation 2.72 of the Regulation and section 140GB of the Act in writing. The invitation was sent via the applicant’s registered migration agent and advised that, if the information was not provided in writing by the prescribed date, being 15 June 2020, or within any extended time granted, the Tribunal may make a decision on the review without taking further steps to obtain the information and the applicant would lose any entitlement they might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

6. On 15 June 2020 a request for an extension of time was received from the applicant’s agent stating:

   Thank you for your email in respect of this applicant. We have passed the material on to him and he indicated by a phone call that he would review it and get in touch. To date he has not done so and we have followed up by email today to obtain his instructions.

   May we have a short extension whilst we obtain those please?

7. The agent had requested an extension of time on behalf of the applicant. The Tribunal notes that the request was only for a short extension. The Tribunal is satisfied that the agent has the authority to act on behalf of the applicant and so may request an extension of time without express instructions from the applicant.

8. The Tribunal carefully considered the request for an extension of time noting that the potential loss of the right to a hearing is a significant consequence. For the Tribunal to grant the applicant an extension of time there must be a reason or reasons for the Tribunal to consider.

9. In this matter the agent had identified that the applicant received the invitation from the Tribunal to provide updated and current information, the applicant was reviewing the invitation, and the applicant had not provided materials to the agent in time to be sent to the Tribunal by the prescribed date. While these may be the facts, no reason has been provided to the Tribunal for consideration of an extension of time. That the applicant has not responded in time is not a reason for the applicant not meeting the timeframe.

10. In the absence of a reason to consider, the Tribunal was unable to find a reason to extend the timeframe in which the applicant could respond to the invitation to provide information.  For these reasons the Tribunal refused to exercise its discretion to grant an extension of time and the applicant was informed of this refusal by the Tribunal on 17 June 2020.

11. In these circumstances, s.359C 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 them to appear: Hasran v MIAC [2010] FCAFC 40.

12. The section 359(2) letter, inviting the applicant to provide updated and current information, contained a number of specific requests and included examples. None of the requested information was received by the Tribunal prior to the prescribed date. The Tribunal’s letter dated 17 June 2020 refusing an extension of time informed the applicant that “the Presiding Member will consider all written submissions until the time that the tribunal makes a decision in the matter”. The applicant has made no further submissions to the Tribunal.  For this reason the Tribunal has decided to proceed to a decision without taking further steps to obtain the information.

13. 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.

Position must be genuine

1. Regulation 2.72(10)(f) requires that the position associated with the nominated occupation is genuine. This was considered in Cargo First Pty Ltd v MIBP [2016] FCA 30, where the Court (at [34]) upheld the Tribunal’s approach of qualitatively assessing the position and comparing this with the occupation nominated in order to determine whether it was genuine.

2. This provision is intended to ensure that positions nominated under this provision are in skilled occupations that are genuinely needed by the nominating employer. Subclass 457 visa was designed to allow employers to sponsor skilled overseas workers to work temporarily in Australia in order to meet short term skill shortages.

3. On 16 February 2017 Mr Kamel Droubi, a sole trader and owner of the Beiyrut Tuart Hill Restaurant and King Kebab lodged a 457 nomination application for a position of restaurant manager related to a nominated occupation of Café or Restaurant Manager ANZSCO Code 141111. Mr Kamel Droubi’s brother, Mr Hassan Droubi, was listed as the nominee in the application.

4. The delegate found that the weight of evidence indicated that the position associated with the nominated occupation exists solely to facilitate the stay of the nominee in Australia rather than to fill a genuine vacancy or skill shortage.

5. In a response to a request for more information by the Department in March 2017 the applicant relevantly offered evidence of the position being genuine:

   ·     Job description (Restaurant Manager – Beiyrut Restaurant)

   ·     Position advertisement from Gumtree

   ·     Genuine position declaration

   ·     Organisation structure chart

   ·     Organisation chart – Beiyrut Tuart Hill restaurant

   ·     Organisation chart – King Kebab

   ·     Photographs of the venue

   ·     Submission on the need for a manager (undated)

6. The Tribunal is satisfied that the position of Restaurant Manager at the Beiyrut Restaurant as described in the job description is a close match with the occupation description for Café and Restaurant Manager as described in ANZSCO code 141111.

7. Mr Kamel Droubi’s submission from 2017 in relation to the need for a manager sets out that business has experienced growth and is at the stage that a position of Restaurant Manager is required in order to grow the business further. Mr Kamel Droubi at that time oversaw both the Beiyrut Restaurant and King Kebab as well as cooking in the role of Chef at the restaurant and managing the operations.

8. The Tribunal is satisfied the business could reduce the demands on Mr Kamel Droubi by recruiting a restaurant manager.

9. Mr Kamel Droubi’s submission states that he tried to recruit a Restaurant Manager locally with limited response to advertising the role which did not attract any suitable candidates. The submission goes on to detail extra expectations of the position that he specifically matches to his brother’s skill set including loyalty, ethnic heritage (to enhance diners authentic Lebanese experience).

10. An explanation of the advertising of the nominated position states that the position was advertised on Gumtree for two weeks in February 2017 commencing 15 February 2017. This advertisement did not list the wages for the position. There is no evidence of paid advertising or any involvement of professional recruitment organisations.

11. An offer of employment from Mr Kamel Droubi to Mr Hassan Droubi is dated 13 February 2017, two days before the advertisement for the position was placed on Gumtree, and lists the base salary as $96,400 per annum. Four of the five examples of comparable positions provided to the Tribunal by the applicant listed base salaries of between $45,000 and $60,000 and one had a salary range of $80,000 and $90,000.

12. The requirements Mr Kamel Droubi listed beyond the job description, the requirements described that do not match the occupation description in ANZSCO, the minimal advertising for the position, the listing of the position on Gumtree after the date of the offer of employment, the apparent high base salary for the position, and the failure to list the base salary in the job advertisement all weigh toward the position being created in order to achieve a migration outcome for his brother rather than to fill a genuine skill shortage.

13. While the Tribunal is satisfied that Mr Kamel Droubi may have benefitted from recruiting a restaurant manager for his Beiyrut Restaurant, on balance the Tribunal is not satisfied that the position associated with the nominated occupation was created to fill a genuine skill shortage. The Tribunal finds that the position associated with the nominated occupation exists to facilitate a migration outcome for Mr Hassan Droubi, the nominee listed in the application.

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

Concluding paragraphs

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.