MILLS CATERING GROUP PTY LTD (Migration)

MILLS CATERING GROUP PTY LTD (Migration) [2021] AATA 1881 (1 June 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  MILLS CATERING GROUP PTY LTD
CASE NUMBER:  1809844
HOME AFFAIRS REFERENCE(S):          BCC2017/262451
MEMBER:Amanda Mendes Da Costa
DATE:1 June 2021
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision under review to refuse the nomination.
Statement made on 1 June 2021 at 11.42am

CATCHWORDS
MIGRATION – application for approval of nomination of position – direct entry nomination stream – financial capacity to pay full-time salary for 2 years – profit and loss before COVID-19 closure and reopening under restrictions – visa applicant not currently working in the business – plans for full reopening and expansion – difficulty in recruiting staff – anonymous, unsubstantiated allegations of visa sponsorship fraud given limited weight – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 375A, 376, 359A
Migration Regulations 1994 (Cth), r 5.19(4)(d)(i), (f)

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 29 March 2018 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 (the Regulations).
The applicant applied for approval on 19 January 2017. The requirements for the approval of the nomination of a position in Australia are found in r.5.19 of the Regulations which contains two alternative streams: a Temporary Residence Transition nomination stream (r.5.19(3)) and a Direct Entry nomination stream (r.5.19(4)). If the application is made in accordance with r.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: r.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 r.5.19(4)(d)(i) of the Regulations because the applicant had not demonstrated the financial capacity to be able to pay the full-time salary for the nominated position for at least two years. Therefore, the delegate was not satisfied that the nominated position would provide the employee with full-time employment for at least two years.
Mr Mark Mills (a director of the company) and his wife (Ruth Mills) applicant appeared on behalf of the applicant before the Tribunal on 11 March 2021 to give evidence and present arguments. The hearing was held as a combined hearing with the Tribunal cases with file numbers 1809842, 1809846 and 1931260. Mr Mills indicated to the Tribunal at the commencement of the hearing that he had no objection to the four cases being heard together. The Tribunal notes that following the hearing the applicant withdrew the review applications in respect of the cases with file numbers 1809842 and 1809846.
The applicant was represented in relation to the review by its registered migration agent, who also participated in the hearing.
The Tribunal exercised its discretion to hold the hearing by video. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by video, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal has taken into account that the applicant was prepared to participate in a video hearing, that the technology for facilitating the hearing was successfully trialled with the applicant prior to the hearing and the applicant was offered the opportunity to provide the Tribunal with further documentation and submissions following the hearing.
The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.
The documentation provided to the Tribunal by the applicant includes the following:
·Position description (Cook).
·Australian Business Number records.
·Australian Securities and Investments Commission (ASIC) business name records.
·Regional Certifying Body advice dated 13 December 2016.
·Staff training expenses.
·Individual taxation return for the nominee (2018-2019).
·Taxation Estimate for the nominee (2018-2019).
·Nominee’s previous and current employment contract.
·Employment documents.
·Business activity statements for the period July 2017 to September 2019.
·Employer statement dated 16 December 2019.
·Company taxation returns for the financial years ended 30 June 2017 and 2018.
·Annualised Market salary Rate and Job advertisements.
·Profit and Loss Statement for the period 1 July 2017 to 31 December 2017.
·Profit and Loss Statements for the financial years ended 30 June 2018 and 2019.
·Submissions dated 21 January 2021 and 24 March 2021.
The Tribunal also notes that the applicant provided documents for case file number 1931260, including organisational chart; ASIC current and historical extract for the applicant; balance sheet as at 30 September 2020; Commonwealth Bank account statement dated 3 March 2021; Submissions dated 10 March 2021; and letters (2) to the Tribunal from the applicant dated 3 March 2021. The applicant relied on these documents for the purpose of this review.
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 r.5.19(4), which is extracted in the attachment to this decision. For the nomination to be approved, all the requirements must be met.
Tribunal’s letter dated 8 January 2021
The Tribunal notes that on 8 January 2021 it wrote to the applicant, advising that the Department had provided it with certificates issued pursuant to s.375A and s.376 of the Act, which state that that the disclosure of the information in the certificates would be contrary to the public interest because it would disclose lawful methods for preventing, detecting and investigating breaches or evasions of the law which would or be likely to prejudice the effectiveness of such methods or may disclose or enable a person to ascertain the existence or identity of, a confidential source of information[1].
[1] These certificates are dated 21 October 2019, 8 September 2020, 2 October 2020 and 20 October 2020.
The Tribunal advised the applicant that it had formed the view that the certificates were validly made and invited the applicant to make any comments regarding this information (in writing) by 22 January 2021.
Pursuant to s.359A of the Act, the Tribunal also invited the applicant to comment on information that it considered (subject to the applicant’s response) would be the reason or part of the reason for affirming the decision under review. In writing.
The Tribunal advised the applicant that the particulars of this information (which were provided by the Department) were:
·An Allegation dated 1 October 2019 which includes a claim that ‘The Plough’ “charged $50,000 to sponsorship from me and my friend but never give me work”.
·An anonymous allegation dated 14 January 2020 which included a claim that a restaurant owner in Ballarat was paid $50,000 from two people, taking from all the employees to sponsor them and making a contract to get PR before even a single shift is given to that employee.
·An anonymous allegation made 30 August 2018 which includes a claim that the owner of the Plough Bistro previously asked for $50,000 in cash in exchange for sponsorship of a visa applicant and accepted payment of $40,000 but refused to give the money back. The informant further advised that the owner of the Plough Bistro also previously accepted payment to sponsor another visa applicant and has sponsored some people who do not have any experience at all, “the owner is just selling the RSMS sponsorship”.
·An allegation dated 3 October 2018 which includes a claim that the owner of the Plough Bistro is selling sponsorship for $50,000 to people who are not actually working at the restaurant and is giving people an overview of the restaurant wo when immigration officers ask, they know the restaurant very clearly, even though they do not work there. The informant further advised that two people have given the owner of the Plough Bistro money, but he has refused to give at least one of these people their money back.
The Tribunal advised the applicant that if it relied on this information in making its decision, it may find that the information received by the Department of Home Affairs is adverse information relevant to the applicant’s suitability as a nominator and that it was not reasonable to disregard such information. This would mean that the applicant does not satisfy r.5.19(4)(f) which is a requirement for the approval of the nomination application.
The Tribunal informed the applicant that any response should be provided in writing by 22 January 2021.
In their written response to the Tribunal (dated 21 January 2021) the applicant denies the allegations and asserts that they constitute an attempt to defame Mr Mills and the business, which has operated for many years. The applicant further asserts that there are no genuine sources behind the allegations. The application is concerned about its business reputation which has been built up over many years. Having been in the hospitality industry for almost 40 years, Mr Mills (the director of the company) identifies the most difficult issue and constant challenge for a business in the hospitality industry is creating a reliable team of staff who can commit to their employment.
Evidence of Mark and Ruth Mills
Mr Mill is the managing director of the applicant company. He and he and his wife (Ruth Mills) operate the business together. The applicant was registered in 2007. In 2009 it purchased the property at 17 Main Street, Myrniong, Victoria, where it operates a business trading as ‘The Plough Bistro Bar B&B’. After renovating the premises, the applicant opened the business which originally operated an A La Carte restaurant and provided some accommodation. When the business commenced in 2010 it had a 63-seat capacity, expanding to 140 seat capacity within the first year of operation. Staff for the kitchen and floor teams were built commencing with four full-time staff and four to six casual staff.
In mid-2013 the applicant commenced a joint venture with a local reception centre to provide the catering, staffing, and marketing for functions to be held at the reception centre. The seating capacity of this venue was 350 people across two separate dining rooms. The joint venture required an expansion of the applicant’s business to accommodate the additional food preparation as well as extra wait and bar staff. This collaboration ceased in 2016.
In mid-2016 the applicant opened a new venue – ‘The Stables’. This venue is suited for wedding ceremonies for 100+ guests, intimate dinner functions for up to 54 guests for sit-down functions or 80+ guests for a cocktail party. All of the food for this venue is prepared in the applicant’s kitchens.
In late 2016 the applicant opened another venue – ‘The Marquee’. This venue is suitable for functions catering for up to 140 guests for a sit-down function.
Prior to the Covid-19 pandemic, the applicant’s restaurant was opened from Thursday to Sunday each week, offering seven meal services including a dinner service on three nights and a lunch service on four days. In addition, the business was holding at least one large function such as a wedding or birthday party each weekend and functions in The Stables (for community and service groups and birthday parties) on weekdays.
The applicant also offers accommodation of three rooms which are generally used by guests at functions such as weddings. This accommodation has not been used to the Covid-19 pandemic.
Due to the introduction by the Victorian government of Covid-19 restrictions in late March 2020, the business “closed its books” to functions in both The Stables and The Marquee. The restaurant was also closed for a large part of 2020 due to Covid-19 restrictions apart from offering takeaway meals on Thursday, Friday, and Saturday nights. Since the easing of restrictions in Victoria, the applicant has provided a dinner service three nights per week and last week catered for a wedding in the stables for 60 guests. The business has not resumed lunch services on weekends as there is limited demand for this. The applicant has plans to rebuild its Marquee facility and replace the existing cloth marquee with a permanent structure. Mr and Mrs Mills estimated that after planning and building permits are obtained, it will take approximately one month to demolish the existing structure and build its replacement.
Mr and Mrs Mills told the Tribunal that they anticipated with the introduction of the Covid-19 vaccination, government restrictions on the number of guests permitted in the restaurant and function venues will be lessened and patronage will increase.
The Tribunal discussed the organisational structure of the business with Mr and Mrs Mills. Their account of the current structure is consistent with the organisational chart provided by the applicant prior to the hearing. Mr Mills is the Managing Director of the company and is also responsible for managing the kitchen. Mrs Mills is responsible for administration and marketing and managing the restaurant, function rooms and accommodation. The restaurant employs four wait staff, two food runners and one bar staff member, all of whom work on a casual basis. The business also has a position (currently vacant) for a Bar Manager. In the kitchen the applicant employs an Executive Sous Chef who is employed on a part-time basis and three apprentice chefs who are employed on a full-time basis. When the accommodation is rented to guests, the business employees cleaners on a casual basis.
The Tribunal questioned Mr and Mrs Mills about the position of Cook for the nominee Inderjeet Singh Verma. The organisational chart indicates that due to the Covid-19 pandemic, the nominee is not currently employed in the business. Mr and Mrs Mills told the Tribunal at the time of hearing, the nominee was not employed by the applicant.
In its response dated 21 January 2021 the applicant states that the nominee was referred to the business by another employee. The nominee was interviewed to discuss his skills, qualifications and availability for work. He was taken on a tour of the applicant’s business premises and subsequently offered part-time employment as a Cook in order to determine his suitability for the position of Cook. The nominee worked a few shifts, after which, the applicant offered him a permanent position at The Plough. The nominee continued to work with The Plough and has been remained with the applicant. The business was closed in January 2020 for the vacation period and then was affected by the Covid-19 pandemic which led to a decrease in custom in February and the closure of the business to eat-in diners in late March 2021.
In a letter dated 3 March 2021 provided to the Tribunal, the applicant confirms that the business is currently operating at 50% staff reduction due to Covid-19 restrictions. In a further letter of the same date, the applicant advises that it has plans to expand its business by replacing an aging canvas marquee used for functions with a purpose-built shed which will be available for use all-year round.
The applicant’s written submissions dated 10 March 2021 include the following:
·Since 2015 the business has had a turnover of $1 million, which indicates the financial capacity of the business to support the nominated position of Chef.
·In the 2019 financial year the business had total sales of $1,133,147 and has been a profitable venture with a high volume of sales. Accordingly, the business has the capacity to bear the cost and liabilities of employing a new Chef.
·The business has continuously been able to pay the payroll expenses of its employees and the capacity to do so in future.
·The business has earned a substantial reputation in the local community and across the region.
·The continued growth in the business led to the creation of two kitchen teams to cater for the restaurant and function sides of the business. The restaurant kitchen was previously understaffed with only three Commis Chefs in contrast to four chefs in the function side of the business.
·As the applicant’s business is in a regional area, staff recruitment and retention has been a major concern for several years. Consequently, the business has trouble attracting suitably qualified and experienced staff.
·During the Covid-19 pandemic the business was forced to close its operations for a few weeks before introducing online ordering and take-away arrangements. Thereafter, the business opened with a Covid-19 safe plan and has been operating at reduced capacity to government limitations.
·Despite the reduction in in the profit of the business (due to the Covid-19 pandemic), it is looking forward to achieving a turnover of over $1million in the next few years.
·The projections also depict that the business is highly likely to achieve a sales target of over $1.5million in the next financial year, if it is adequately staffed.
·The business has plans to expand by adding an onsite shed for functions.
As the number of people vaccinated against Covid-19 increases and government restrictions on the number of guests permitted in the restaurant and function rooms are eased, the applicant intends to reemploy the nominee to work in its kitchen. Mr and Mrs Mills told the Tribunal that they have been in regular contact with the nominee during the past year and he has told them he also plans to return to work in the business.
The Tribunal discussed with Mr and Mrs Mills information which had previously been put to the applicant (pursuant to s.359A of the Act) in the letter dated 8 January 2021. During the hearing, the Tribunal discussed with Mr and Mrs Mills each of the instances set out in the letter which information had been received from the Department and the potential effect on the Tribunal’s decision if it accepted such information. That information may be summarised as follows:
·the applicant had charged two visa applicants $50,000 to sponsor them but had not given them work;
·the owner of the applicant business had asked for $50,000 in cash in exchange for sponsorship of a visa applicant and accepted payment of $40,000 but refused to return the money to the visa applicant;
·the applicant has sponsored visa applicants who do not have any work experience and is “selling sponsorship”; and
·The owner of the applicant business is selling sponsorship for $50,000 to people who are not actually working in the business.
In their oral evidence, Mr and Mills further denied the allegations that they had ‘sold’ sponsorship of visa applicants in exchange for money or that the business had employed people without suitable experience. They were unable to provide any explanation for the allegations being made, apart from a person previously sponsored by the applicant, who had abused them when he left the business.

The Tribunal also notes that its letter of 8 January 2021 it advised the applicant that it had received certificates issued under sections 375A and 376 of the Act on the basis that the disclosure of information would be contrary to the public interest because it would disclose information that would be contrary to the public interest because it would disclose lawful methods for preventing, detecting and investigating breaches or evasions of the law which would or be likely to prejudice the effectiveness of those methods and disclose or enable a person to ascertain the existence or identity of, a confidential source of information.
The Tribunal advised the applicants that it had formed the view that the certificates were validly made.
The Tribunal notes that in its written response (dated 21 January 2021) the applicant advised that it did not object to the certificates issued by the Departments and did not make any submissions regarding any reliance by the Tribunal on the material the subject of the certificates.
The applicant’s profit and loss statement for the year ended 30 June 2018 shows that the income of business (from sales) for 2017 was $1,107,259 and in 2018 was $1,190,683 . After the deduction of expenses, in 2017 the profit before income taxation was $35,148 and in 2018 was $36,260. The statement indicates that in 2017 the applicant’s expenditure on wages was $482,765 and in 2018 was $807,577.
The profit and loss statement for the year ended 30 June 2019 shows that the gross income of business was $1,133,147. After the deduction of expenses, the profit before income taxation was $8,461. The statement indicates that the applicant’s expenditure on wages was $562,309.
The company taxation return for the year ended 30 June 2017 indicates that for the year ended 30 June 2019 the total income of the business was $1,108,167 and that after total expenses of $1,140415 and other deductions, the business incurred a loss of $37,330.
The company taxation return for the year ended 30 June 2018 indicates that for the year ended 30 June 2018 the total income of the business was $1,191,825 and that after total expenses of $1,165912 and made a profit of $25,913.
The business activity statements (BAS) provided show total sales of $1,331,263 for the period July 2017 to June 2018; $1,239,642 for the period July 2018 to June 2019; and $302,281 for the period July 2019 to September 2019.
The Commonwealth Bank account statement (for the applicant) shows available funds of $5,325.68.
The balance sheet for the applicant as at 30 September 2020 shows total assets of $520,638, total liabilities of $449,257, net assets of $71,380 and total equity of $71,380.
The letter to the Tribunal dated 16 December 2019 includes a financial overview of the business for the financial years ended 30 June 2018 and 2019. This overview indicates that the income for the business in 2018 was $1,190,683 and that after the deduction of expenses (including wages of $496,548), the net income was $36,260. In 2019 the income of the business was $1,133,147 and that after the deduction of expenses (including wages of $562,309), the net income was $8,461.
The applicant further explains that it could not book functions for six months during the financial year 2018 to 2019 and its turnover had dropped slightly compared to the previous financial year. However, the business still made a profit. The restrictions on the business were imposed because of “some compliance issues”. Despites these restrictions, the payroll cost for the business had increased by $73,571 from 2018 to 2019. After settlement of matters with the local council in November 2019, the applicant recommenced accepting bookings for functions.
The taxation estimate for the year ended 30 June 2019 indicates a gross salary for the nominee of $77,879. The individual taxation return for the nominee for the financial year 2018 to 2019 year ended shows his occupation as Manager-fast food with a total income of $78,302.
In the letter dated 3 March 2021 in respect of the its expansion plans for 2021, the applicant advises that the business is preparing for the removal of the canvas marquees and replacing them in situ with a purpose-built shed. This will provide all-year round opportunity for functions and events to be conducted by the applicant.
The submissions dated 10 March 2021 included the following:
·In the financial year 2019 the total sales for the applicant’s business was $1,133,147 and the business has been an overall profitable venture.
·The business has high volumes of sales and has the capacity to bear the costs and liabilities to employ a new chef in the business.
·The business has been able (continuously) been able to bear the payroll expenses for its employees and has the capacity to do so in future.
·A further nominated position of Chef was created in response to growing business demand and has resulted in the creation of two kitchens to cater separately for the restaurant and function sides of the business.
·The addition of a full-time chef will reduce the stress and burden experienced by existing kitchen staff and ensure the consistency of taste and quality if the meals served to customers.
·The recruitment of staff has been a major concern for the applicant over the past few years, given it is located in a regional area. It is difficult to recruit qualified and skilled staff who are prepared to live and work in regional Victoria.
·During the Covid-19 pandemic in 2020, the business was forced to close its operations for several weeks before reopening with online ordering of meals and a takeaway service.
·The business has now reopened with a Covid-19 safe plan and has been operating at reduced capacity due to government limitations.
·The business has future expansion plans including the addition of an in-situ shed in places of a current marque.
·The other nominee has been employed the nominee in the business since 2019. He has contributed to the success of the business and has been continuously working in the position of chef.
The applicant further submitted that:
·In making its decision, the Tribunal is obliged to consider all relevant evidence and to refrain from relying on irrelevant evidence It has a statutory duty to review the delegate’s decision fully and frankly.
·Where a state prescribes that there must be ‘reasonable grounds’ for a state of mind – including suspicion and belief – it requires the existence of facts which are sufficient to induce that state of mind in a reasonable person.
Following the hearing, the applicant provided the Tribunal with further documentation including:
·Payroll advice report for the nominee for the periods 22 March 2021 to 28 March 2021 and 29 March 2021 to 4 April 2021.
·Letter to the Tribunal dated 24 March 2021.
·Letter to the nominee dated 1 April 2021.
The payroll advice indicates gross payments by the applicant to the nominee for the period 22 March 2021 to 4 April 2021, totalling $1,476.90.
In the letter dated 24 March 2021, the applicant states:
We strongly refute all allegations of selling RSMS sponsorship or taking any money from any one for the sponsorship or for any related matter.
In its letter to the nominee (dated 1 April 2021), the applicant advises that with increasing consumer confidence and customers returning to The Plough, it would like the nominee to re-commence his employment. The hours required will be dictated by the number of bookings made by customers. The applicant undertakes to publish its roster weekly and offer the nominee as many shifts as possible.
Findings regarding certificates issued pursuant to s.375A and s.376 and adverse information
The Tribunal finds that the certificates provided to the Tribunal were validly made. It further considers that the allegations made against the applicant (as set out in paragraph 15 of this decision) are of a serious and concerning nature. The Tribunal notes that it has not been provided with any further information in support of the allegations and Mr and Mrs Mills have denied the allegations . Accordingly, the Tribunal gives the allegations limited probative weight. Based on the evidence before it, the Tribunal is not satisfied that the applicant or any person associated with the applicant has behaved in the manner alleged.
Term of employment of the visa holder: r.5.19(4)(d)
Regulation 5.19(4)(d) requires the nominee to be employed in the nominated position for at least 2 years full time, and the terms and conditions of that employment do not expressly exclude the possibility of an extension.
The Tribunal accepts that the applicant operates an A la Carte restaurant and two function rooms with some limited accommodation. Prior to the Covid-19 pandemic, the restaurant was open from Thursday to Sunday each week, offering lunch and dinner meals and Saturday and Sunday, catered for functions such as weddings and birthday parties.
The Tribunal further accepts that the applicant’s business was adversely affected by the government restrictions imposed during the pandemic in 2020. This resulted in the closure of the restaurant and function rooms and the applicant operated a limited service, providing takeaway meals. In early 2021 the applicant re-opened its restaurant in accordance with government regulations and has plans to re-open its functions business.
The Tribunal acknowledges that in their oral evidence, Mr and Mrs Mills said that they anticipated that with the lessening of government restrictions on the business and an increase in staff numbers, patronage and profit would increase significantly (i.e. $1million -$1.5million). These claims are also contained in the applicant’s written submissions. However, the financial documents provided show that whilst the applicant made a profit for the financial year 2018, it made a loss in 2017 and only a modest profit in 2019 – prior to the financial impact of the Covid-19 pandemic. The Tribunal acknowledges the applicant’s explanation for the drop in the turnover of the business in the financial year ended 30 June 2019. However, the documentation for the financial years 2017, 2018 and 2019 do not indicate a continuous income or any growth in the business prior to the impact of the Covid-19 pandemic, such would indicate a likely future growth in the business. Nor is the Tribunal satisfied that the evidence regarding the applicant’s plans for a new marque indicate that the building works have commenced or that the works are likely to be completed in the foreseeable future.
The Tribunal notes that it was not provided with a company taxation return for the 2020 financial year or any ATO notices of assessment in respect of the applicant’s taxation returns or BAS for any period subsequent to September 2019. Although in its submissions, the applicant referred to projections regarding a sales target of over $1Million in the next financial year, the Tribunal was not provided any documentation regarding such projections. The Tribunal is not satisfied that the financial documentation for the business pre Covid-19 indicates that in the absence of Covid-19 restrictions, the business will make the profits anticipated by the applicant.
Based on the financial documentation provided, the Tribunal is not satisfied that the applicant is currently in a position to employ the nominee as a full-time Cook for at least two years.
Whilst the taxation estimate and individual taxation return provided indicate that that the nominee was employed by the applicant for the financial year ended 30 June 2019, it does not show that he was employed in the position of Cook. Nor is was the Tribunal provided with any Notice of Assessment issued by the Australian Taxation Office (ATO), which indicates an assessment by the ATO of the nominee’s income for that financial year.
The Tribunal further notes that there is no documentation regarding the nominee’s employment from 30 June 2019 to 22 March 2021. The Tribunal notes that although the applicant’s business was affected by the Covid-19 pandemic, this did not commence until late March/April 2020. Based on the material before it, the Tribunal is not satisfied that the nominee was employed in the business between July 2019 and the impact of the pandemic commencing.
Although the organisational chart provided by the applicant shows the nominee occupying the position of Cook as a full-time employee, the Tribunal notes that in their oral evidence, Mr and Mrs Mills told the Tribunal that the business closed after Christmas in 2019 and throughout January 2020 for the holiday period. Shortly afterwards, the business was closed (save for takeaway meals) due to the Covid-19 pandemic. Mr and Mrs Mills explained that the nominee was not employed in the business from late 2019 and had not resumed his employment at the date of the hearing.
The Tribunal notes that it was provided with a letter of offer to the nominee and payroll advice in support of the applicant’s claim that the nominee had recommenced employment with it. However, the Tribunal finds that the payroll advice indicates that such employment was for a two-week period and is of a part-time nature. There is no extrinsic evidence to support the assertion that the nominee has in fact been reemployed by the applicant on a full-time basis.
The Tribunal acknowledges that it was provided with submissions and oral evidence about the applicant’s future expansion plans, including the plans to replace the applicant’s existing marquee with a purpose-built. Mr and Mrs Mills indicated in their oral evidence that the building works on the marque had yet to commence. There is no evidence to indicate that the applicant has undertaken the proposed building works or that it has re-opened its function rooms. The Tribunal further notes that the current opening hours for the applicant’s restaurant are more limited than those in operation prior to the Covi-19 pandemic. The Tribunal is not satisfied that the evidence before it indicates that the business is currently of a size or is operating at a level which would support the nominated position in the business.
For the above reasons the Tribunal is not satisfied that the nominee will be employed on a full-time basis in the nominated position for at least 2 years and therefore does not meet the requirements of r.5.19(4)(d)(i).
Given that the applicant does not meet one of the requirements for the approval of the nomination, the Tribunal considers it unnecessary to consider the remaining criteria in r.5.19(4).
Nomination stream, and as such has not met the requirements in r.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.
Amanda Mendes Da Costa
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).

[2021] AATA 1881

1 June 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Standing

Natural Justice