LUCAS TAYLAH INVESTMENTS PTY LTD ATF LUCAS TAYLAH INVESTMENTS TRUST (Migration)

[2017] AATA 2519

LUCAS TAYLAH INVESTMENTS PTY LTD ATF LUCAS TAYLAH INVESTMENTS TRUST (Migration) [2017] AATA 2519 (5 July 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Lucas Taylah Investments Pty Ltd ATF Lucas Taylah Investments Trust

CASE NUMBER:  1514761

DIBP REFERENCE(S):  BCC2015/2609502

MEMBER:Alison Mercer

DATE:5 July 2017

PLACE OF DECISION:  Melbourne

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

Statement made on 05 July 2017 at 10:49am

CATCHWORDS
Migration – Nomination – Subclass 457 visa – Nominated occupation – Restaurant or Café Manager – Fast food/ takeaway outlets excluded – No approval as standard business sponsor – Applicant did not respond to the Tribunal’s comments

LEGISLATION
Migration Act 1958 ss 65, 140GB, 140GB(2), 140GBA, 359A, 359(2), 359C, 360(3),
Migration Regulations 1994 rr 2.72(1)-(12), 2.73, 2.72(3)-(12)

CASES

Yang v MIAC [2010] FMCA 890

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 on 13 October 2015 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, Lucas Taylah Investments Pty Ltd as trustee for the Lucas Taylah Investments Trust (trading as Cafenatics 367 Collins), applied for approval on 8 September 2015. 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)(aa), which requires that the nominated occupation corresponds to an occupation specified by the Minister in an instrument in writing for the purposes of that paragraph (being IMMI 15/092). The delegate found that the applicant had specified the nominated occupation of Restaurant or Café Manager (Australian and New Zealand Standard Classification of Occupations, or ANZSCO, code 141111), and that IMMI 15/092 provided that for this occupation, the following positions were excluded: positions in fast food or take away food services. The delegate found that the applicant, trading as Cafenatics 367 Collins, was a fast food/take away service, according to Departmental guidelines. She further found that as a general rule, the work undertaken by managers of fast food and casual dining outlets more closely aligned with the occupations of Retail Supervisor (ANZSCO 621511) or Retail Manager (General) (ANZSCO 142111) and not Café or Restaurant Manager (ANZSCO 141111). As one of the mandatory requirements of r.2.72(10) was not met, the applicant’s nomination could not be approved.

4. The Tribunal received a review application on 1 November 2015.  It was signed on behalf of the applicant by Mr Greg Wilson, who described himself as a director. The review application was accompanied by a copy of the delegate’s decision and an authority by which a registered migration agent, Mr Spandan Karki, was appointed as the applicant’s representative and authorised recipient for correspondence.

5. On 5 April 2017, the Tribunal wrote to Mr Wilson of the applicant via the agent to invite Mr Wilson (or another person authorised to represent the applicant) and the agent to attend a call over on 5 May 2017. They were advised that the purposes of the call over was to establish whether the case was ready to be set down for hearing, and that the types of issues that would be discussed included what evidence the applicant intended to rely upon, the timeline for submission of further documents (if any), whether the applicant intended to call witnesses for any hearing, the scheduling of any hearing, and whether the Tribunal would issue a s.359(2) letter requesting further information.

6. Mr Wilson attended the call over on behalf of the applicant on 5 July 2017. The Tribunal (differently constituted) discussed with him the fact that it would issue a s.359(2) letter shortly requesting him (or another authorised person) to provide specified information on behalf of the applicant within 14 days (with 1 possible extension of 14 days), failure to comply with which would result in the loss of a right to a hearing. The Tribunal also advised Mr Wilson that a hearing would most likely be scheduled for August or September 2017, assuming the right to a hearing was not lost. The Tribunal noted that the applicant’s approval as a standard business sponsor ceased in November 2016 and that its nomination could not be approved without it obtaining a new approval as a standard business sponsor, so this needed to be addressed as soon as possible. Mr Wilson confirmed that the nominee Ms Fiona Dundass had previously worked for the applicant in the nominated occupation of Restaurant or Café Manager but was currently working at another business. He indicated that his wife, the other director of the applicant, owned the applicant business and was undertaking the tasks associated with the nominated role with the assistance of other employees. Mrs Wilson did not work full-time in the business, but the duties were spread across several employees. Mr Wilson confirmed that therefore, there was no single equivalent Australian employee in the same position and undertook to provide updated information about the market salary rate he believed was applicable. The Tribunal requested that Mr Wilson provide updated information addressing the r.2.72 criteria including updated, lodged BAS statements, financial statements, updated organisational chart, updated employment contract (if applicable), information addressing the genuineness of the nominated position, pay records (including PAYG statements) for the nominee, the menu offered by the applicant, its hours of operation and service(s) provided.

7. The Tribunal noted that recent changes to immigration law in April 2017 meant that there were new requirements to be met for a number of occupations, including Café or Restaurant Managers. The nominated occupation was now subject to a caveat that excluded from approval for the purposes of r.2.72 positions in fast food, take away, fast casual or limited service cafes and pizza shops. The Tribunal requested that Mr Wilson address this issue in relation to the applicant’s operations. The Tribunal also provided Mr Wilson with a detailed guide to relevant information that could be provided to address the r.2.72 criteria.

8. On 9 May 2017, the Tribunal wrote to Mr Wilson on behalf of the applicant, via the agent, pursuant to ss. 359A and 359(2) of the Act and formally invited him to comment or respond to certain information, and to provide information to the Tribunal on behalf of the applicant. The Tribunal noted that the Department’s records indicated that the applicant’s approval as a standard business sponsor had ceased on 3 November 2016 and it was no longer a standard business sponsor. The Tribunal stated that this information was relevant to the review because, in order for the applicant to satisfy an essential criterion for the approval of the nomination application, it had to be a currently approved standard business sponsor (per r.2.72(4)). The Tribunal noted that, subject to any comments or response Mr Wilson (or another authorised person for the applicant) wished to make, if the Tribunal relied upon this information, it would have to make a finding that the applicant did not meet r.2.72(4) and this would result in the nomination criteria not being met. This would be a reason to affirm the decision under review. Mr Wilson (or another person authorised by the applicant) was invited to provide comments or a response to this information by 23 May 2017.

9. The Tribunal also invited Mr Wilson (or another person authorised by the applicant) to provide information in writing that demonstrated that the applicant met all the requirements in r.2.72 at the time of the Tribunal’s decision. A copy of r.2.72 was attached for reference. This information was requested by 23 May 2017.

10. The Tribunal advised that if the comments/response and requested information could not be provided by 23 May 2017, an extension of time could be requested but if so, it should be made before 23 May 2017. If the comments/response and requested information were not received by 23 May 2017 (or by the extended due date), the applicant would lose its entitlement to a hearing and the Tribunal might proceed to make its decision on the available evidence. The Tribunal also reiterated that changes made to the relevant legislation on 18 April 2017 had introduced additional requirements (set out in written instrument IMMI 16/059) for the occupation of Café or Restaurant Manager to meet in order to be approved under r.2.72(10)(aa) and requested any submissions on this issue be provided by 23 May 2017.

11. The Tribunal did not receive any response from Mr Wilson or any other person on behalf of the applicant by the due date.  Nor did it receive any response from the agent by that date.  No extension of time to respond was received by the Tribunal.  On 15 June 2017, an officer of the Tribunal acting at the direction of the Presiding Member telephoned the agent on the number he provided but received no answer and was not able to leave a message as there was no voicemail service.  On the same date, the Tribunal sent an email to the applicant’s agent at his nominated email address to advise that as there was no response, comments or extension of time request received in response to the Tribunal’s letter of 9 May 2017, the applicant had lost its right to a hearing and the Tribunal might proceed to make its decision on the available evidence.  The Tribunal advised that if there was anything additional the applicant wished the Tribunal to consider, that information should be provided to the Tribunal by 29 June 2017.

12. The Tribunal did not receive any response from Mr Wilson or any other person on behalf of the applicant by 29 June 2017, nor did it receive any response from the agent by that date.

13. The Tribunal is satisfied that its email correspondence of 9 May 2017 and 29 June 2017 was sent to the nominated email address for the agent, who is the applicant’s authorised recipient for correspondence for the purposes of the review.  There is no indication from the Tribunal’s electronic records that the email correspondence was undeliverable or otherwise ‘bounced back’.

14. No one authorised on behalf of the applicant has responded to the Tribunal’s ss.359A and 359(2) letter of 9 May 2017. In the circumstances, s.359C applies and pursuant to s.360(3), the applicant is not entitled to appear before the Tribunal. The Tribunal has no power to permit a person to appear on behalf of the applicant: see Yang v MIAC [2010] FMCA 890. In the circumstances set out above – where there Mr Wilson attended a call over hearing on behalf of the applicant at which he was apprised of the issues relevant to the nomination criteria, where a formal letter pursuant to ss.359A and 359(2) was subsequently sent to him as an authorised person for the applicant, via the applicant’s authorised recipient for correspondence and where he and the applicant have had the assistance of a registered migration agent but did not respond to the ss.359A/359(2) letter - the Tribunal has decided to proceed to a decision without taking further steps to obtain comments on or response to the information set out, or to obtain the information requested, in the letter of 9 May 2017.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

16. 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 applicable requirements in r.2.72 and, for nomination applications made from 23 November 2013, s.140GBA have been met: s.140GB(2).

    Nominator is a standard business sponsor or party to a work agreement

17. Regulation 2.72(4) requires that the person making a nomination is either a standard business sponsor or a party to a work agreement other than a Minister.

18. The Department’s records indicate that the applicant’s approval as a standard business sponsor ceased on 3 November 2016.  This issue was identified to Mr Wilson, who attended the call over on behalf of the applicant on 5 April 2017, and was formally set out in the Tribunal’s letter of 9 May 2017.  The Tribunal has not received any information from Mr Wilson or the agent on behalf of the applicant to indicate that the applicant is currently approved as a standard business sponsor, or indeed, whether it has even lodged a new approval application with the Department.

19. The Tribunal notes that this criterion was not the original reason for the Department’s refusal of the applicant’s nomination application.  However, it has become an issue since then and was raised with the applicant at the call over and by way of the Tribunal’s letter of 9 May 2017. As noted above, nothing has been provided to the Tribunal to indicate that the applicant is currently approved as, or has a pending application for approval as, a standard business sponsor.

20. Given this, the Tribunal finds that the requirements of r.2.72(4) are not met.

21. As the applicant must meet all the subparagraphs of r.2.72 in order to have its nomination approved, the failure to meet one means the nomination cannot be approved. It is therefore unnecessary for the Tribunal to consider the remaining criteria in r.2.72(1) – (3) and (5) – (12).

22. 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

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

    Alison Mercer
    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)a standard business sponsor; or

    (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.

    (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

    (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 that:

    (i)       are provided; or

    (ii)      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.