Messineo Holdings Pty Ltd (Migration) - [2023] AATA 298

Messineo Holdings Pty Ltd (Migration) [2023] AATA 298 (16 February 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Messineo Holdings Pty Ltd
REPRESENTATIVE:  Ms Valentina Segreto (MARN: 1281543)
CASE NUMBER:  1911098
HOME AFFAIRS REFERENCE(S):          BCC2017/4661162
MEMBER:Nicola Findson
DATE:16 February 2023
PLACE OF DECISION:  Perth
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Statement made on 16 February 2023 at 7:56pm
CATCHWORDS
MIGRATION – application for approval of nomination of nomination – direct entry stream – café or restaurant manager – tasks of position – delegate considered tasks more akin to lower-level retail supervisor – documentation and written submissions provided to tribunal – directors no longer actively involved and nominee primarily responsible for day-to-day operations – decision made without hearing necessary – decision under review set aside
LEGISLATION
Migration Act 1958 (Cth), s 360(2)(a)
Migration Regulations 1994 (Cth), r 5.19(4)(h)(ii)(D)
CASE
Bharaj Construction Pty Ltd v MIBP [2016] FCCA 902
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 12 April 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 applied for approval on 7 December 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).
In this case, the applicant has applied for approval of a nomination, seeking to satisfy the criteria in the Direct Entry nomination stream for the position of Café or Restaurant Manager (ANZSCO 141111). The person identified for the position is Mr Giovanni Paterniti.
The delegate refused the application on the basis the applicant’s nomination did not satisfy reg 5.19(4)(h)(ii)(D) of the Regulations. The delegate was of the view that the tasks of the position did not correspond to the skill level 2 occupation of Café or Restaurant Manager nominated. Instead, the delegate considered that the nominated occupation was closer to a skill level 4 Retail Supervisory position. The delegate therefore found that the tasks to be performed in the position did not correspond to the tasks of an occupation specified by the Minister in an instrument in writing, and therefore did not meet reg 5.19(4)(h)(ii)(D), and therefore reg 5.19(4)(h) as a whole.
The applicant was represented in relation to the review.
In reaching its decision, the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the applicant on the basis of the material before…

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.

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Details

Case: [2023] AATA 298
Decision Date: 16 February 2023

CaseChat Overview and Summary

Messineo Holdings Pty Ltd (Migration) concerned an application for approval of a nomination for the Direct Entry stream, specifically for the position of café or restaurant manager. The applicant sought to have the delegate's decision, which refused to approve the nomination, set aside. The Tribunal was required to determine whether the applicant met the requirements for approval of the nomination under regulation 5.19(4) of the Migration Regulations 1994.

The central legal issue was whether the nominated position of café or restaurant manager genuinely met the criteria for the Direct Entry stream, particularly concerning the tasks of the position and the genuine need for the role. The delegate had formed the view that the tasks were more akin to those of a lower-level retail supervisor. The Tribunal considered extensive documentation and written submissions provided by the applicant, including ASIC and ABN records, financial statements, an organisational chart, a position description, evidence of tasks performed, and statutory declarations from the directors.

The Tribunal found that the applicant met the requirements of regulation 5.19(4). It was satisfied that the application was in the approved form, accompanied by the prescribed fee, and identified a need for the nominator to employ the identified person under their direct control. Furthermore, the Tribunal was satisfied that there was no adverse information known to Immigration, and the nominator had a satisfactory record of compliance with workplace relations laws. Crucially, regarding regulation 5.19(4)(h)(ii), the Tribunal found that the position was located in regional Australia, there was a genuine need for the paid position that could not be filled by a local Australian citizen or permanent resident, and the tasks corresponded to an eligible occupation. The Tribunal concluded that the delegate's decision was made without adequately considering the evidence and submissions.

Consequently, the Tribunal set aside the delegate's decision and substituted a decision approving the nomination.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

For the following reasons, the Tribunal has decided to set aside the decision under review and substitute a decision approving 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. During the review process, on 28 March 2022, the Tribunal wrote to the applicant, inviting it to provide further information to demonstrate all the relevant requirements of reg 5.19(2) and (4). The applicant responded and provided to the Tribunal additional and updated evidence in support of the application, including but not limited to:·ASIC and ABN records;·Financial material, including Financial Statements and Business Tax Returns, for the years ended 30 June 2020 and 2021;·Letter of support from the applicant’s accountant dated 30 June 2021, setting out that the applicant is well capitalised, and trading at a level that will meet its sponsorship obligations; ·Current Organisational Chart;·Position Description for the nominated position;·Updated contract of employment between the nominator and nominee dated 17 June 2021;·Evidence of tasks performed by the nominated position;·Advertising material in relation to the nominated position;·Market rate information relevant to the nominated position;·Photographs and menu;·Statutory Declarations of Directors, Mr Damien and Mr Julian Messineo as well as a statement of Director, Mrs Rosa Messineo, setting out, among other things, background to the operation of the applicant business; the reasons why there is a need for the nominated position; and attempts made to fill the nominated position;·Evidence relevant to the applicant’s recent approval of a Subclass 482 Nomination, in relation to the nominee;·Evidence of the skills and experience of the nominee. The applicant’s representative also provided a written submission to the Tribunal. The submission provides a focused response to the concerns set out by the delegate in the decision record, as well as addresses the relevant requirements for the approval of the nomination.The application is compliant: reg 5.19(4)(a) 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. The Tribunal has had regard to the information on the Department’s file as to the nomination, and is satisfied that these requirements are met. The application for approval was made on the approved form and was accompanied by the prescribed fee. The relevant s.245AR(1) certification was also provided in the application form.

Decision

Reasons for decision

Based on the findings above, the Tribunal is satisfied that the applicant meets the requirements of r.5.19 for approval of the nomination of the position in Australia.DECISION The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.Nicola FindsonMemberATTACHMENT - Extracts from the Migration Regulations 19945.19Approval 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).

Ratio Decidendi

Legal Principle Established

Accordingly, the requirements of reg 5.19(4)(e) are met.No adverse information known to Immigration: reg 5.19(4)(f) Regulation 5.19(4)(f) requires that there is no adverse information known to Immigration about the nominator or person associated with the nominator; or it is reasonable to disregard any such information. For these purposes, ‘adverse information’ and ‘associated with’ have the meaning given in regs 1.13A and 1.13B. The Tribunal is not aware of any adverse information known to Immigration about the nominator or person associated with the nominator. Accordingly, the requirements of reg 5.19(4)(f) are met.Satisfactory compliance with workplace relations laws: reg 5.19(4)(g) 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. There is no evidence before the Tribunal to suggest that the applicant does not have a satisfactory record of compliance with workplace relation laws. Accordingly, the requirements of r.5.19(4)(g) are met.Tasks of the position, genuine need for the position and training requirements reg 5.19(4)(h) Regulation 5.19(4)(h) contains a number of alternative requirements. These are set out in detail in the attachment to the decision and those relevant to this matter are as follows:·the position and nominator’s business is located in regional Australia, there is a genuine need for the paid position under the nominator’s direct control which 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.Location of the position and the business The first consideration under r.5.19(4)(h)(ii) is whether the position is located in regional Australia. Regulation 5.19(16) provides that ‘regional Australia’ is defined by the legislative instrument. In this case, the position is located in Mandurah, Western Australia, 6210, and at the time of application, this location/postcode was considered regional Australia, as per Schedule 2 of IMMI 17/059. Accordingly, the Tribunal finds that the requirements of sub-paragraph 5.19(4)(h)(ii)(A) and (E) are met. Genuine need for the paid position, which cannot be filled by an Australian citizen or an Australian permanent resident Subparagraph 5.19(4)(h)(ii)(B) requires the Tribunal to be satisfied that there is a genuine need for the applicant, as the nominator, to employ a paid employee to work in the position under the nominator’s direct control. In considering this issue, the Tribunal has taken into account the information provided to the Tribunal regarding the nature of the business and the explanation as to why there is a genuine need for a paid Restaurant Manager in the business. In particular, it takes into account the location of the business and the service it provides.