MD Bros Pty Ltd (Migration)
[2022] AATA 906
•30 March 2022
MD Bros Pty Ltd (Migration) [2022] AATA 906 (30 March 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT: MD Bros Pty Ltd
CASE NUMBER: 1907858
HOME AFFAIRS REFERENCE(S): BCC2016/1920119
MEMBER:Terrence Baxter
DATE:30 March 2022
PLACE OF DECISION: Brisbane
DECISION:The Tribunal affirms the decision under review to refuse the nomination.
Statement made on 30 March 2022 at 12:08pm
CATCHWORDS
MIGRATION – approval of a nomination – Direct Entry nomination stream – position of Cook – actively and lawfully operating a business in Australia – no updated financial information – Regional Certifying Body advice – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 359, 363
Migration Regulations 1994, r 5.19CASES
El Jejieh v Minister for Home Affairs and Anor (No 2) [2019] FCCA 840
Hasran v MIAC [2010] FCAFC 40
Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617
Manna v Minister for Immigration and Citizenship [2012] FMCA 28
Vishnumolakala v Minister for Immigration [2006] FMCA 1209STATEMENT 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 20 March 2019 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).
The applicant, MD Bros Pty Ltd, applied for approval on 2 June 2016. The applicant nominated Mr Tehseen Faraz Khan in the position of Cook. 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).
In this case, the applicant has applied for approval of a nomination, seeking to satisfy the criteria in the Direct Entry nomination stream.
The delegate refused the application on the basis the applicant’s nomination did not satisfy reg 5.19(b)(i) of the Regulations because the delegate found that the applicant had not demonstrated that it was actively and lawfully operating a business in Australia.
The applicant lodged an application for review of the delegate’s decision with the Tribunal on 2 April 2019.
On 7 March 2022, the Tribunal wrote to the applicant pursuant to s 359(2) of the Migration Act 1958 (Cth) (the Act) inviting it to provide current information addressing the relevant criteria under reg 5.19(2) and (4) of the Regulations. The Tribunal is satisfied that this invitation was properly dispatched to the applicant’s email address. The applicant failed to provide the information within the prescribed time for responding to the invitation. No response to that invitation has been received by the Tribunal at the time of this decision.
Where a review applicant is invited to provide further information in accordance with s 359(2) of the Act, and fails to do so within the prescribed period, the Tribunal may make a decision on the review without taking any further action to obtain the information, according to s 359C(1) of the Act. In these circumstances, the review applicant is not entitled to appear before the Tribunal in accordance with s 360(3) of the Act. Of note, 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 the review applicant to appear before it as outlined in the Full Federal Court authority in the matter of Hasran v MIAC [2010] FCAFC 40.
Although the applicant has not requested this, the Tribunal has also considered whether it would be appropriate to adjourn the application for review under s 363(1)(b) of the Act to allow the applicant additional time in which to provide evidence to support its application for review. In doing so, it has paid careful regard to the guidance in the decisions of Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617 and Manna v Minister for Immigration and Citizenship [2012] FMCA 28 where the Courts held that the Tribunal is not required to indefinitely defer its decision-making process.
The Tribunal has taken into account that the applicant has been aware since 20 March 2019 of the reasons for the nomination application being refused and also that the implications of not providing the information requested in the invitation from the Tribunal of 7 March 2022 were set out in that correspondence.
In these circumstances, the Tribunal considers that the applicant has had sufficient time in which to address the central issues arising in the application for review. Accordingly, the Tribunal has decided not to exercise its discretion under s 363(1)(b) of the Act to adjourn the review any further to allow the applicant more time in which to demonstrate that it meets the relevant criteria under reg 5.19(2) and (4) of the Regulations.
Following careful consideration, the Tribunal has decided to proceed to make a decision on this review without taking any further action to obtain the information referred to in the aforementioned invitation and having due regard to the documentary material before it.
For the following reasons, the Tribunal has decided to affirm the decision under review to refuse 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 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.
Evidence presented to the Department
The applicant produced to the Department of Immigration and Border Protection (now the Department of Home Affairs) (the Department) the following documents:
a.A certificate of registration of the applicant’s food business.
b.A letter from Skilled Migration WA with form 1404 dated 20 February 2017.
c.An ASIC company summary of the applicant dated 4 February 2017.
d.An employment contract and letter of offer dated 1 April 2016.
e.A job description.
f.An organisational chart.
g.An assignment of lease of the applicant’s business premises.
h.An ABN Lookup form for the applicant’s ABN dated 18 February 2019.
i.An ASIC extract for the business name Yummy Italia and two other business names dated 18 February 2019.
j.A further ASIC company summary dated 18 February 2019.
k.A submission from the applicant dated 1 October 2016.
Evidence presented to the Tribunal
The applicant produced to the Tribunal a copy of the delegate’s decision.
Nominator is actively and lawfully operating a business in Australia: reg 5.19(4)(b)
Regulation 5.19(4)(b) requires that the applicant is actively, lawfully and directly operating a business in Australia.
The Tribunal has considered the Department’s policy on the issue of active operation. The policy states that a business that has been actively operating for a period of more than 12 months should be able to provide appropriate financial documentation to support their claims of active operation. The applicant stated in its nomination application that it was established or commenced trading in Australia on 29 June 2015. The policy states that such businesses should be able to submit a balance sheet for the most recently concluded fiscal year (with comparative figures for the previous fiscal year) and a profit and loss statement (statement of performance) for the most recently concluded fiscal year, with comparative figures for the previous fiscal year or business tax returns for the most recently concluded fiscal year. The applicant produced to the Department ASIC evidence that the company and its relevant business name were registered as at 18 February 2019 together with evidence from ABN Lookup that the applicant’s ABN was active as at that date. No more recent information has been provided by the applicant regarding its business activities. No financial statements, taxation returns or business activity statements have been produced by the applicant.
The Department’s policy states that, in assessing the requirement for lawful operation for a company, the decision maker should be satisfied that the registered name of the applicant as indicated in the nomination application is the name that is registered with ASIC. The invitation issued pursuant to s 359(2) of the Act invited the applicant to provide current and historical evidence about the company such as an ASIC current and historical extract. No such current evidence has been provided to the Tribunal.
The Tribunal is not bound by the policy but the Tribunal notes the finding of Brennan J in Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179 that the Tribunal should adopt the following practice: ‘When the Tribunal is reviewing the exercise of a discretionary power reposed in a Minister, and the Minister has adopted a general policy to guide him in the exercise of the power, the Tribunal will ordinarily apply that policy in reviewing the decision, unless the policy is unlawful or unless its application tends to produce an unjust decision in the circumstances of the particular case’.
The Tribunal notes the comments of the Court in Vishnumolakala v Minister for Immigration [2006] FMCA 1209 at [27] that the policy is no more than an advisory administrative guide to delegates in relation to their application of the legislation, and that, as a matter of law, it could have no higher status. The Tribunal finds that the same rule applies to the Tribunal’s consideration of the policy. However, the Tribunal agrees that the approach suggested in the policy in relation to the issue of active operation is appropriate and has considered this application on that basis.
The Tribunal notes that the Regional Certifying Body, Skilled Migration WA, Department of Training and Workforce Development has issued an advice that the application satisfies the requirements in regs 5.19 (e), 5.19(h(ii)(B) and 5.19(h)(ii)(C). The issue of that advice satisfies the requirements of reg 5.19(h)(ii)(F) but the Tribunal finds that it is not persuasive in relation to the requirement in reg 5.19(4)(b)(i).
Having regard to the lack of contemporary evidence before the Tribunal, bearing in mind that the applicant has failed to respond to the invitation issued pursuant to s 359(2) of the Act, the Tribunal is not satisfied that at the time of this decision the applicant is actively and lawfully operating a business in Australia. Accordingly, the requirement in reg 5.19(4)(b)(i) is not met.
Having regard to that finding, the requirement in reg 5.19(4)(b) is not met.
Departmental certificate
On 10 April 2019, the Department issued a certificate and notification under s 375A of the Act in respect of certain information, namely a Departmental file note dated 16 February 2017. The certificate bears a printed signature but is not signed. Having regard to the decision of the Federal Circuit Court of Australia in the matter of El Jejieh v Minister for Home Affairs and Anor (No 2) [2019] FCCA 840, the Tribunal considers the certificate to be invalid. The certificate states that disclosure of the material referred to in the certificate would be contrary to the public interest because it relates to internal risk management procedures.
The information referred to in the s 375A certificate consists only of a file note referring to a procedure for dealing with the nomination application.
As recorded previously in these Reasons, the Tribunal has found that it is not satisfied that the applicant has complied with the requirement in reg 5.19(4)(b). The information referred to in the s 375A certificate is in no way related to the requirement that the applicant is actively and lawfully operating a business in Australia. Accordingly, the Tribunal finds that the information is not relevant to the Tribunal’s consideration of the requirement for active and lawful operation of a business and has placed no weight on that information in reaching a decision in this matter. Had the information referred to in the certificate been relevant to the Tribunal’s decision in this matter, the Tribunal would have notified the Department that it regarded the certificate to be invalid and enquired whether the Department intended to revoke the certificate.
Section 359A of the Act requires that the Tribunal must give to an applicant clear particulars of any information that the Tribunal considers would be the reason, or part of the reason, for affirming the decision under review. The Tribunal has considered whether the information referred to in the s 375A certificate (if it were valid) is information that falls within this description. For the reasons set out in the preceding paragraph, the Tribunal has not relied on the information contained in the certificate and has placed no weight on that information. Accordingly, the Tribunal finds that the information is not information that would be the reason, or part of the reason, for affirming the decision under review.
For the same reasons, the Tribunal has not notified the applicant of the issue of the certificate, contacted the Department regarding possible revocation of the certificate or invited the applicant to comment on the validity of the certificate.
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 the 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
The Tribunal affirms the decision under review to refuse the nomination.
Terrence Baxter
MemberATTACHMENT - 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 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) both 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;
(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 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).
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
Legal Concepts
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Judicial Review
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Procedural Fairness
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Statutory Construction
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Standing
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