M&SA Trading Pty Ltd (Migration) - [2023] AATA 4276

M&SA Trading Pty Ltd (Migration) [2023] AATA 4276 (11 December 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  M&SA Trading Pty Ltd
REPRESENTATIVE:  Mr Yashpal Erda (MARN: 0963835)
CASE NUMBER:  2000219
HOME AFFAIRS REFERENCE:               BCC2019/5320095
MEMBER:Terrence Baxter
DATE:11 December 2023
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Statement made on 11 December 2023 at 11:09am
CATCHWORDS
MIGRATION – approval of a nomination – Temporary Residence Transition stream – position of Café or Restaurant Manager – financial capacity to employ the nominee for at least two years – tasks of the position correspond to nominated occupation – actively and lawfully operating a business in Australia – genuine need for the employment – updated financial information – terms and conditions of employment no less favourable – decision under review set aside
LEGISLATION
Corporations Act 2001, s 95A
Fair Work Act 2009
Income Tax Assessment Act 1997
Migration (Skilling Australians Fund) Charges Act 2018
Migration (Skilling Australians Fund) Charges Regulations 2018
Migration Act 1958, ss 140, 245
Migration Regulations 1994, rr 1.03, 1.13, 2.57, 2.72, 2.73, 5.19, 5.37
Superannuation Guarantee (Administration) Act 1992
CASES
Bharaj Construction Pty Ltd v MIBP [2016] FCCA 902
MIBP v Jayshree Enterprises Pty Ltd [2017] FCA 264
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 18 December 2019 to reject the applicant’s application for approval of the nomination of a position under reg 5.19 of the Migration Regulations 1994 (Cth) (the Regulations).
The applicant, M&SA Trading Pty Ltd, applied for approval on 23 October 2019. The applicant nominated Mr Sumeet Kumar (the nominee) in the position of Café or Restaurant Manager. The applicant operates an Indian cuisine restaurant trading as New River Edge Indian Cuisine from premises situated at 6 Bowra Street, Nambucca Heads, New South Wales. The applicant has employed the nominee as Restaurant Manager on a full-time basis since November 2015.
The requirements for the approval of the nomination of a position in Australia are found in reg 5.19 of the Regulations, which contains general requirements for approval and additional requirements for approval set out in three alternative streams: a Temporary Residence Transition stream, a Direct Entry stream and a Labour Agreement stream. If the application meets the requirements for approval, then the application must be approved: reg 5.19(3)(a). If any of the requirements are not met, then the application must be refused: reg 5.19(3)(b).
In this case, the applicant has applied for approval of a nomination, seeking to satisfy the criteria in the Temporary Residence Transition stream. A nomination that relates to a visa in the Temporary Residence Transition stream must meet the requirements of reg 5.19(5): reg 5.19(4)(e).
The delegate refused the application on the basis that the applicant’s nomination did not satisfy reg 5.19(5)(l) of the Regulations because the delegate found that the applicant had not demonstrated…

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.

Continue reading M&SA Trading Pty Ltd (Migration)

Details

AGLC: M&SA Trading Pty Ltd (Migration) [2023] AATA 4276
Case: [2023] AATA 4276
Decision Date: 11 December 2023

CaseChat Overview and Summary

The Administrative Appeals Tribunal (Cth) considered an application by M&SA Trading Pty Ltd for approval of a nomination for a Temporary Residence Transition stream visa. The dispute concerned whether the applicant, a restaurant operator, met the requirements to employ the nominee as a Café or Restaurant Manager, specifically regarding its financial capacity and the genuine need for the position.

The Tribunal was required to determine if M&SA Trading Pty Ltd had the financial capacity to employ the nominee for at least two years, if the tasks of the nominated position corresponded to the occupation of Café or Restaurant Manager, and if the business was actively and lawfully operating in Australia. Additionally, the Tribunal had to assess whether there was a genuine need for the employment and if the terms and conditions of employment offered to the nominee were no less favourable than those provided to Australian employees. A further issue was whether any adverse information known to the Department about the nominator or associated persons could reasonably be disregarded.

The Tribunal reasoned that the applicant had provided updated financial information, including ATO income statements for the nominee, which satisfied the financial capacity requirement. It found that the tasks of the position aligned with the nominated occupation and that the business was actively and lawfully operating. Regarding adverse information, the Tribunal noted allegations made in 2016 concerning the applicant receiving payments for sponsorship. However, it considered these allegations to be unsubstantiated, uninvestigated by the Department, and denied by Mr. Saini, the sole director. Given the age of the allegations and the lack of substantiation, the Tribunal concluded that it was reasonable to disregard this information.

The Tribunal found that the application complied with the relevant regulations, including those pertaining to the nomination requirements and the absence of adverse information that could not be disregarded. Consequently, the decision under review was set aside.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

Mr Saini is the sole shareholder and director of the applicant. He also works in the restaurant as Head Chef on a part-time basis. The restaurant currently has a staff of seven including Mr Saini and the nominee.Evidence provided after the hearing After the hearing, the applicant provided to the Tribunal Australian Taxation Office income statements of the nominee for the 2021 to 2023 financial years.Application requirements – reg 5.19(4)(a) Regulation 5.19(4)(a) requires that an application for approval be made in accordance with a number of requirements set out in reg 5.19(2). Regulation 5.19(2) requires that an application must:·be made in accordance with approved form 1395 (Internet);·identify the position;·identify a person in relation to the position;·identify an occupation in relation to the position;·identify the subclass and stream to which the nomination relates;·be accompanied by the fee mentioned in reg 5.37; and·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 s 245AR(1) of the Migration Act 1958 (Cth) (the Act). Applications made on or after 12 August 2018 must also be accompanied by any nomination training contribution charge the nominator is liable for, and identify the annual turnover for the nomination: regs 5.19(2)(fa), (fb). The liability is imposed by s 140ZM of the Act and the charge is imposed by the Migration (Skilling Australians Fund) Charges Act 2018 (Cth), with the amount specified in the Migration (Skilling Australians Fund) Charges Regulations 2018 (Cth) (Charges Regulations). ‘Annual turnover’ is defined in the Charges Regulations for liable persons operating a business in Australia as the total ordinary income (within the meaning of the Income Tax Assessment Act 1997 (Cth)) derived in the most recent income year (within the meaning of the Income Tax Assessment Act 1997 (Cth)) ending before the day on which the nomination application is made. In any other case, it is defined as the total income the person liable derived in the ordinary course of business in the most recent financial year ending before the day on which the nomination application is made. Further, if the subclass identified in the application is Subclass 187, the application must be made before 16 November 2019, unless the exception in reg 5.19(2A) applies. The exception applies to an identified person who is a ‘transitional 457’ or ‘transitional 482’ worker at the time of application. This means, respectively, a person who on or after 18 April 2017 held a Subclass 457 visa, and a person who on 20 March 2019 held a Subclass 482 visa in the Medium-term stream or was an applicant for a Subclass 482 visa in the Medium-term stream that was subsequently granted: reg 1.03. Having regard to the application and the information provided to the Department, the Tribunal is satisfied that the above requirements for nomination have been met.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Given the above findings, the Tribunal is satisfied that the application complied with the requirements in reg 5.19(2) and that reg 5.19(4)(a) is met.No adverse information known to Immigration – reg 5.19(4)(b) Regulation 5.19(4)(b) requires that either there is no adverse information known to Immigration about the nominator or a person associated with the nominator, or it is reasonable to disregard any such information. ‘Adverse information’ is defined by reg 1.13A as any adverse information relevant to the person’s suitability as an approved sponsor or a nominator. Regulation 1.13A sets out a non-exhaustive list of examples of the kinds of information which meet this definition, including information that the person:·has contravened a law of the Commonwealth, a State or a Territory, or·is under investigation, subject to disciplinary action or subject to legal proceedings in relation to a contravention of such a law, or·has been the subject of administrative action (including being issued with a warning) for a possible contravention of such a law by a Department or regulatory body that administers or enforces the law, or·has become insolvent (within the meaning of s 95A of the Corporations Act 2001 (Cth)), or·has given, or caused to be given, to the Minister, an officer, the Tribunal or an assessing authority a ‘bogus document’ (as defined in s 5(1) of the Act), or ‘information that is false or misleading in a material particular’ (as defined in reg 1.13A(4)). The term ‘associated with’ is also given a non-exhaustive definition for the purposes of this requirement, in reg 1.13B. It provides that two persons are associated with each other in a wide range of relationships and situations, including if:·they are or were spouses or de facto partners or members of the same immediate, blended or extended family, or have or had a family-like relationship, or belong or belonged to the same social group, unincorporated association or other body of persons, or have or had common friends or acquaintances, or·one is or was a consultant, adviser, partner, representative on retainer, officer, employer, employee or member of the other or any corporation or other body in which the other is or was involved (including as an officer, employee or member), or·a third person is or was a consultant, adviser, partner, representative on retainer, officer, employer, employee or member of both of them, or·they are or were related bodies corporate (within the meaning of the Corporations Act 2001 (Cth)) or,·one is or was able to exercise influence or control over the other, or·a third person is or was able to exercise influence or control over the both of them.Regulation 1.13B(2) provides that it does not matter if one of the persons mentioned has ceased to exist. At the hearing, the Tribunal advised Mr Saini that the records of the Department included Client of Interest notes concerning the applicant. The Tribunal provided to Mr Saini details of those notes. The notes indicated that allegations had been made to the Department in 2016 that the applicant had received payment from visa applicants in exchange for sponsorship. Mr Saini stated that the applicant had not received such payments from visa applicants, that he was not previously aware of the allegations and that the applicant had not been investigated by the Department in relation to those allegations. The Tribunal notes the allegations were made over seven years ago, that they appear to be unsubstantiated and not investigated by the Department and that they were denied by Mr Saini.