MEXICO FOODS PTY LTD ATF MEXICO FOODS UNIT TRUST (Migration)

[2018] AATA 3516

MEXICO FOODS PTY LTD ATF MEXICO FOODS UNIT TRUST (Migration) [2018] AATA 3516 (3 August 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  MEXICO FOODS PTY LTD ATF MEXICO FOODS UNIT TRUST

CASE NUMBER:  1621283

DIBP REFERENCE(S):  BCC2016/163718

MEMBER:Ian Berry

DATE:3 August 2018

PLACE OF DECISION:  Brisbane

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

Statement made on 03 August 2018 at 10:57am

CATCHWORDS
Migration – Nomination approval – Where the applicant has not responded to adverse information – Where the applicant has no longer employs the nominee – Decision affirmed

Practice and Procedure – Where the original nominator has sold the business – Where the purchaser seeks to continue the application as the nominator – Rights and obligations of the nominator are non-transferable – Purchaser does not have standing to continue the nomination

LEGISLATION
Migration Act 1958 (Cth), ss 65, 245AR, 359A
Migration Regulations 1994 (Cth), Schedule 2, rr 1.13, 5.19

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 22 November 2016 to reject the applicant’s application for approval of the nomination of a position in Australia under r.5.19 of the Migration Regulations 1994 (a reference to a regulation will be to these Regulations).

   Background

2. The applicant applied for approval on 12 January 2016. The requirements for the approval of the nomination of a position in Australia are found in Regulation 5.19, which contains two alternative streams: a Temporary Residence Transition nomination (Regulation 5.19(3)) stream and a Direct Entry nomination (Regulation 5.19(4)) stream. If the application is made in accordance with Regulation 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: Regulation 5.19(5).

3. The applicant, Mexico Foods Pty Ltd as trustee for Mexico Foods Unit Trust (Mexico Foods), made the application for review, but then sold the business to AB Mex Pty Ltd (the new applicant). From the date of the sale, Mexico Foods did not have any further involvement in the nomination process.

4. While Mexico Foods is the review applicant, the new applicant continued with the review application. The Tribunal did not have any evidence before it of any document identifying a relationship between Mexico Foods and the new applicant. In addition, there was not a submission addressing any agency arrangement. It is to be noted that the migration representative for Mexico Foods was the same migration representative for the new applicant.

5. By letter dated 11 December 2017, a hearing invitation was sent to Visa Agents Australia as the representatives for Mexico Foods, inviting it to a hearing. The migration representative for the new applicant advised the Tribunal:

   We would like to advise that the previous entity Mexico Foods Pty Ltd ATF Mexico Foods Unit Trust is no longer the Nominee; there is a new entity since the purchase of the restaurant.[1]

   [1] T1, folio 31

6. By letter dated 8 January 2018[2], the migration representative further advised the Tribunal:

   On 13 July 2017, AB Mex Pty Ltd ABN...  purchased [business name omitted] from Mexico Foods Pty Ltd atf  Mexico Foods Unit Trust with the takeover date of 25.09.17. There is a continuing need for the nominated position of Restaurant Manager currently occupied by [nominee's name omitted] and therefore AB Mex Pty Ltd wished to continue on foot with the ongoing appeal. As such, we provide the following documentation for your consideration: -...

   [2] T1, folio 36

7. That documentation included a copy of the contract purchasing the business[3] and the Profit and Loss statement for November 2017.

   [3] T1, folios 110 - 127

8. The new applicant entered into a new employment agreement on 24 September 2017, a copy of which was given to this Tribunal[4].

   [4] T1, folios 48 -57.

   Delegate’s decision and reasons

9. The delegate refused the application on the basis that Mexico Foods’ nomination did not satisfy Regulation 5.19(4)(a)(ii) of the Regulations because it had already employed a restaurant manager and the role of the second restaurant manager would not appear to be genuine. Mexico Foods had not sufficiently demonstrated the need for a second full-time restaurant manager as it had employed a full-time restaurant manager, which was a shared position between two casual staff employees. Mexico Foods did not employ a chef.

   The proceedings of the review

10. Mexico Foods did not attend the hearings on 23 January 2018 and 21 March 2018. The new applicant did appear at both hearings. At the first hearing, Tribunal requested the new applicant to address its standing to continue with the nomination review in place of Mexico Foods. The hearing was then adjourned to allow submissions to be made.

11. The new applicant appeared at both hearings through its director who was authorised to speak for this entity. The Tribunal received oral evidence from this director. The migration representative also appeared at the hearings. It is noted that the nominee attended both hearings, though she did not take part.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

13. The issue in this case for the Tribunal's consideration is whether  the new applicant is a non-party to the nomination application process can substitute itself for Mexico Foods as it had purchased Mexico Foods’ business.

14. A starting point is for the Tribunal to consider legislative provisions. Regulation 1.03 gives meaning to nominator by regulation 1.13.  Sub-regulation 1.13(1) as set out below is clear in its meaning and states that the nominator is the person who or which completes the nomination form nominating another person as an applicant for a visa of a class.

    Regulation 1.13 (meaning of nominator) states:

    (1)      The nominator of an applicant for a visa is a person who, on the relevant    approved form, nominates another person as an applicant for a visa of a   particular class.

15. Further, Regulation 5.19(1) allows a nominator to apply to the Minister for approval of the nomination of a position in Australia. The meaning given to a nominator is that it can be any person who or which can nominate. Thereafter, the terminology then changes to the nominator as if there can be only one that is the nominator. It is that nominator that has made the nomination application.

16. For example, the nominator must give a written certification stating whether the nominator has engaged in conduct, in relation to the nomination, that is a contravention of subsection 245AR(1) of the Act. That certification must be in the application, and if so, only the nominator who or which made the nomination application can certify.

17. The Migration Act 1958 (Act) and the Regulations are both silent of any provision allowing a for a substitute nominator to take over a nomination. Specifically allowing a nominator to then certify as is required by subsection 245(1).

18. There are other references in regulations 5.19 leading this Tribunal to the finding that there is only one nominator once the nomination application has been made. Once that nomination application is made to the Department, then only that nominator can proceed with the nomination including a review to the Tribunal. In this case, it is noted that the review application was made by Mexico Foods.

19. Another example is regulation 5.19(4)(h)(i)(B) which refers to the nominator having met the requirements for the training of Australian citizens and permanent residents as specified by the Minister in an instrument in writing if the nominator’s business has operated for 12 months or if less than 12 months, the nominator has an auditable plan for meeting the requirements.

20. Regulation 5.19(4)(f) refers to there being no 'adverse information' finding known to Immigration about the nominator or person (meaning the nominee). The Department's control of the immigration process would be fraught with difficulties if the nominator was allowed to sell its business without the Department having been advised and for a substitute nominator to step into the process and avoid the responsibilities with which other nominators are required to comply .

21. A fortiori, there is no provision in the Act and the Regulations for the Department to be informed of a transfer of the nominator’s rights and obligations to another.

22. The new applicant raises the following submissions supporting the contention that it is able to take over the nomination and be the nominator. The underlining is part of the submission.

    a.Regulations 5.19(3) and (4) relate to assessment of the position specified in the nomination, not assessment in the nominator.

    b.Regulation 5.19(4)(h)(ii)(A) requires an RSMS nomination to be made to a position located in regional Australia.

    c.Regulation 5.19(4)(h)(ii)(E) requires the business operated by the nominator    be located in the place where the position exists.

    d.It is also raised that regulation 5.19 in both temporary Residence Transition  and Direct Entry streams, require that the visa applicant will be employed on a full time basis in the nominated position for at least two years...

    e.Policy (meaning PAM 3) speaks of 'who can nominate' providing an explanation as to the entity, for example, allowable entities who can sponsor include individuals, partnership, body politic, body corporate, unincorporated associations.

    f.The central argument as stated, "although a change of entity has occurred the business itself has not been altered in any way. The nominated position has not been altered in any way.

23. Addressing the points of argument in (a), (b), (c) and (d), the nominee's position and place are concepts relevant to the nominator and its relationship with the nominee. The arguments support the contention that the intent of the legislation is to regularise the nominator that has undertaken the nomination process. The points raised by the new applicant are not in conflict with the nominator being the original and only nominator.  These sub-regulations regularise the nominator's obligations in respect of the role of the nominee as required by the legislation.

24. Point (e) deals with the person who or which can be a nominator. PAM 3 as a policy document presents a guide, and as a guide states that any person can nominate, in particular it sets out those who can nominate. The issue is not who or what can be a nominator in a nomination application, but whether that nominator can replace itself by another.

25. Lastly, point (f) is based on a nominator purchasing a business with the same nominee. It is the same business, the same employees, the same location, the same menu and so forth. However, it has a different owner and therefore a different nominator. It will neither be bound by the Departmental requirements nor the Act and Regulations.

26. The Tribunal finds that Mexico Foods is and has always been the applicant/nominator and review applicant. Mexico Foods is the only party  having standing before the Tribunal. It could be argued that the representative who has confirmed representing the applicant and the new applicant did so represent the applicant. However, that is not supported once the Tribunal became aware of the sale of the business.

27. Where does that place the new applicant? It did appear at the hearing and give evidence through its director. That evidence only concerned the new applicant’s business and has very little relevance to Mexico Foods, though they both shared the nominee in employment and the franchisor as the controller of the franchise agreement.

28. The Tribunal finds that the new applicant did not have any standing and while it appeared at the hearings, the evidence given by it relating to the review of the delegate's decision, it is not relevant to the case that Mexico Foods should have met.

    Section 359A letter to the nominator

29. On 26 April 2018, the Tribunal wrote to Mexico Foods pursuant to s.359A of the Act, giving the review applicant particulars of information that the Tribunal considered would be the reason, or part of the reason, for affirming the decision that is under review. That information included details of the sale of the business from Mexico Foods to the new applicant, where the new applicant does not have standing before the Tribunal.

30. The invitation was sent to the last address provided in connection with the review and advised that, if the information was not provided in writing by 10 May 2018, the Tribunal may make a decision on the review without taking further steps to obtain the information and the review applicant would lose any entitlement it might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

31. The applicant has not provided the information within the prescribed period and no extension has been granted. The applicant did not respond, though the letter was sent to the migration representative representing both Mexico Foods and new applicant, with that or those ‘appointments to represent’ not changing throughout the review process.

32. In respect of the response by the representative, she specifically stated in letter dated 9 May 2018 that she was responding to correspondence dated 26 April 2018 confirming she acted “on behalf of the review applicant AB Mex Pty Ltd in regards to their appeal presently before the Administrative Appeals Tribunal ‘AAT’”.[5]

    [5] T1, folio 215.

33. The Tribunal has decided to proceed to decision without taking further steps to obtain the information from the review applicant Mexico Foods.

34. The Tribunal finds that Mexico Foods has sold the business to the new applicant and no longer employees the nominee.  Accordingly, the Tribunal finds Mexico foods does not meet the requirements of regulations 5.19(4)(a)(ii), 5.19(4)(b)(ii) and 5.19(4)(h)(ii)(B).

    DECISION

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

    Ian Berry
    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 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).