M G CREATIVE ENTERPRISE PTY LTD (Migration)

[2023] AATA 3802

M G CREATIVE ENTERPRISE PTY LTD (Migration) [2023] AATA 3802 (6 November 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  M G CREATIVE ENTERPRISE PTY LTD

CASE NUMBER:  2010694

HOME AFFAIRS REFERENCE(S):          BCC2017/2379901

MEMBER:Warren Stooke AM

DATE:6 November 2023

PLACE OF DECISION:  Melbourne

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

Statement made on 6 November 2023 at 1:00pm

CATCHWORDS 
MIGRATION – nomination – Direct Entry stream – Cook –applicant failed to provide the requested information within the prescribed period– not satisfied that the applicant is actively operating a business at this time – applicant has not provided current information about the genuine need to employ the nominee to work in the nominated position – decision under review affirmed  

LEGISLATION
Migration Act 1958, ss 65, 245AR, 359, 360, 363
Migration Regulations 1994, 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 10 June 2020 to reject the applicant’s application for approval of the nomination of a position in Australia under reg 5.19 of the Migration Regulations 1994 (Cth) (the Regulations).

2. The applicant applied for approval on 4 July 2017. The requirements for the approval of the nomination of a position in Australia are found in reg 5.19 of the Regulations which contains two alternative streams: a Temporary Residence Transition nomination stream (reg 5.19(3)) and a Direct Entry nomination stream (reg 5.19(4)). If the application is made in accordance with reg 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: reg 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.

4. The delegate refused the application on the basis the applicant’s nomination did not satisfy reg 5.19(4)(a)(ii) of the Regulations because of the advice received from the directors of the business on 30 April 2020 that they do not require the nominated position. As such, the delegate considered there was not a genuine vacancy existing for the business for the nominated position of Cook – ANZSCO Code: 351411.

5. On 11 August 2023 the Tribunal corresponded with the applicant to provide information pursuant to s359(2) to the Tribunal pertaining to the nominated position with a response required by 25 August 2023.

6. The review applicant has not provided the information within the prescribed period and no extension has been sought or granted. 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 him or her to appear: Hasran v MIAC [2010] FCAFC 40. The Tribunal has decided to proceed to decision without taking further steps to obtain the information.

7. The applicant was represented in relation to the review.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. 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 reg 5.19(4), which is extracted in the attachment to this decision. For the nomination to be approved, all the requirements must be met.

10. The applicant provided evidence to the Department that the business was registered as M G Creative Enterprise Pty Ltd on 15 September 2015 and assigned an ABN: 43 608 230 584. The business was registered for GST on 15 October 2015 and traded as Suq Restaurant.

11. The applicant provided a signed contract of employment with the nominee, Franciso Xavier Staehl Jr dated 3 October 2017 with a start date to be announced and a contract of at least 2 years upon a visa decision under a 187 visa, with a further option to extend. The contract was based upon 38 hours per week with a salary of $54,000 and a superannuation contribution of 9.5 per cent. The contract included a position description for a Cook.

12. The applicant provided a satisfied Regional Certifying Body document from Regional Development Australia Central Coast for the nominated position of Cook – ANZSCO Code: 351411 on a salary of $54,000 with the nominee: Francisco Xavier Straehl Jr dated 24 October 2017.

13. The applicant provided the Department with a ‘genuine need’ letter dated 3 October 2017.

14. The applicant provided proof of holding a liquor licence, which was dated 23 May 2017.

15. The applicant provided the Department with a list of available positions in the business with numerous positions designated, as vacant.

16. The applicant provided documentation that a position was advertised with Sherry Consulting Service Home page website for April 2017 for the position of Cook, without identifying the nominated employer. Similar evidence was provided with Seek and Jobs on the Coast, without identifying the employer and the advertisement only includes a limited job position.

    The application is compliant: reg 5.19(4)(a)

17. Regulation 5.19(4)(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 need for the nominator to employ an identified person as a paid employee to work in the position under their direct control.

18. As at the time of decision, the applicant has not responded to the request for information from the Tribunal dated 11 August 2023 and has not provided the requisite information to satisfy reg 5.19(2).

19. Given the above findings, the Tribunal is not satisfied that the application complied with the requirements in reg 5.19(2) and finds that reg 5.19(4)(a) is not met.

20. Accordingly, the requirement in reg 5.19(4)(a) is not met.

    Nominator is actively and lawfully operating a business in Australia: reg 5.19(4)(b)

21. Regulation 5.19(4)(b) requires that the applicant is actively, lawfully and directly operating a business in Australia.

22. As at the time of decision, the applicant has not responded to the request for information from the Tribunal dated 11 August 2023 and has not provided the requisite information to satisfy reg 5.19(4)(b).

23. Given the above findings, the Tribunal is not satisfied that reg 5.19(4)(b) is met.

24. Accordingly, the requirement in reg 5.19(4)(b) is not met.

    Satisfactory compliance with workplace relations laws: reg 5.19(4)(g)

25. Regulation 5.19(4)(g) requires that the applicant 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.

26. In the absence of financial taxation returns and superannuation contribution documentation, the Tribunal is not satisfied that the applicant has paid salary and wages to the staff employed or made superannuation contributions to a complying Superannuation fund.

27. Further, the contract of employment dated 3 October 2017, included a proposed salary of $54,000 for the nominee and there is no evidence before the Tribunal that the nominee has been employed by the applicant pending the grant of a 187 visa or that superannuation payments have been made to a complying fund.

28. Accordingly the requirements of reg 5.19(4)(g) are not met.

    Tasks of the position, genuine need for the position and training requirements reg 5.19(4)(h)

29. Regulation 5.19(4)(h) contains a number of alternative requirements. These are set out in detail in the attachment to the decision but can be briefly summarised as requiring either that:

    ·the tasks to be performed in the position will be performed in Australia and correspond to those of an occupation specified by the Minister, the occupation is applicable to the proposed employee in accordance with any specifications made in that instrument, there is a genuine need for the nominee to be employed as a paid employee in the position, and certain specified training requirements are met; or

    ·the position and nominator’s business is located in regional Australia, there is a genuine need for the nominee to be employed as a paid employee in the position under the nominator’s direct control, the position cannot be filled by a locally resident Australian citizen or permanent resident, the tasks of the position correspond to those of an occupation specified in the relevant legislative instrument, the occupation is applicable to the proposed employee in accordance with the specification of the occupation, and that a regional certifying body has advised the Minister about certain matters relating to the position.

30. In the absence of financial taxation returns the Tribunal is not satisfied that the applicant has paid salary and wages to the staff employed or made superannuation contributions to a complying Superannuation fund.

31. Further, in the absence of a response to the correspondence of the Tribunal of 11 August 2023 seeking information concerning the nominated position, the Tribunal is not satisfied that the applicant has demonstrated a need for the nominated position, and whether the applicant has met training contribution requirements.

32. The Tribunal acknowledges that the RCB requirements for the nominated position of Cook – ANZSCO Code: 351411 were satisfied on 24 October 2017, however evidence of subsequent employment has not been provided, including payslips or taxation returns.

33. Accordingly the requirements of reg 5.19(4)(h) are not met.

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

    DECISION

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

    Warren Stooke AM
    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 an identified person, as  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).