MORETON BAY REGIONAL FOOD AND CATERING PTY LTD (Migration)

[2020] AATA 5812

MORETON BAY REGIONAL FOOD AND CATERING PTY LTD (Migration) [2020] AATA 5812 (20 November 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  MORETON BAY REGIONAL FOOD AND CATERING PTY LTD

CASE NUMBER:  1809493

HOME AFFAIRS REFERENCE(S):          BCC2016/693637

MEMBER:De-Anne Kelly

DATE:20 November 2020

PLACE OF DECISION:  Brisbane

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

Statement made on 20 November 2020 at 7:21am

CATCHWORDS
MIGRATION – Employer Nomination – approval of nominated position – Direct Entry Nomination – Café or Restaurant Manager – tasks of the position – location of position – definition of ‘Regional Australia’ – IMMI 16/045 – business never opened and actively operated in designated postcode area – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 359AA
Migration Regulations 1994 (Cth), r 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 Home Affairs on 27 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).

2. The applicant applied for approval on 18 February 2016. 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).

3. In this case, the applicant has applied for approval of a nomination, seeking to satisfy the criteria in the Direct Entry nomination stream.

4. The delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19(4)(h)(ii)(D) of the Regulations because the tasks of the nominated position do not correspond to the tasks of an occupation specified by the Minister.

5. The applicant appeared before the Tribunal on 27 October 2020 to give evidence and present arguments. This was a dual hearing of both the employer nomination refusal review and the visa application refusal review.

6. The applicant was represented by Amit Chandwani MARN: 1001305 of North Lakes, Qld 4509. The registered migration agent did not attend the hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. 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.

9. On the 18 February 2016, the applicant, Moreton Bay Regional Food and Catering Pty Ltd ABN: 39 609 866 426 trading as Fiesta Restaurant and Bar, lodged a Regional Sponsored Migration Scheme – Visa Subclass 187 Employer Nomination in the Direct Entry stream for the position of Café or Restaurant Manager ANZSCO 141111 in favour of Chiragkumar Chandrakant Mysuria.

10. The online application gave the address where the nominated person will be employed as Shop 11–12, 121 Mooloolaba Esplanade, Mooloolaba, Qld 4557.

11. The director of the company is Mr Maisuria Ashok. The Tribunal invited the director to give an overview of his business which he did in broad terms.

12. The Tribunal noted that the ABN: 39 609 866 426 had not been registered since May 2020 and asked the director about this anomaly. He responded that they had been paying their GST and he did not know why the ABN was not registered. A further discussion occurred, and the director advised that the nominator, Moreton Bay Regional Food and Catering Pty Ltd, had never opened or operated a restaurant in Mooloolaba. The ASIC extract dated 24 September 2020 shows that the business name Fiesta Restaurant and Bar is registered to Moreton Bay Regional Food and Catering Pty Ltd with the principal place of business listed as “24 Michael Ave Morayfield QLD 4506. The director advised that he had a restaurant called Fiesta Restaurant and Bar in Morayfield, Qld 4506 and the nominee had worked there as a Restaurant Manager in the past but had “moved on”. They waited for the application to be approved but it was delayed for so long and they couldn’t get a visa and were “wasting time”.

13. It was noted that there had been no documents submitted such as a lease agreement; council food licence; website; council rates notice; utilities accounts or suppliers’ invoices for the alleged restaurant located in Mooloolaba.

14. The director advised that he owned and operated a restaurant at Morayfield and he (the nominee) was there. The nominee waited four years altogether for the visa decision and he moved on. They did not hear from the Tribunal and then COVID‑19 occurred. The director advised the Morayfield restaurant had now closed because without the nominee to manage it, he could not manage it on his own. He stated, “If the visa is granted, then I will open the restaurant in Mooloolaba.”

    Section 359AA of the Act

15. At the commencement of the hearing, the Tribunal explained that it may put information to the applicant, under s.359AA of the Act, that would be the reason, or a part of the reason, for affirming the decision that is under review and that it would explain why this information was relevant to the decision and how it may be relied upon in reaching a decision. Section 359AA of the Act was read out to the applicant. The Tribunal also advised that the applicant would be given an opportunity to respond to this information in one of three ways: they could request an adjournment and the hearing could be stopped for 15 or 20 minutes or whatever period of time they wished and they could seek advice from the registered migration agent; the applicant could make a written submission within 14 days or an extended period of time if it requested an extension; or they could respond in the hearing. If they responded in the hearing, it would not prevent them from making a written submission within 14 days or a longer period if they requested an extension of time.

16. Section 359AA provides as follows:

    (a)   The Tribunal may orally give to the applicant clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and

    (b)   if the Tribunal does so—the Tribunal must:

    (i)ensure, as far as is reasonably practicable, that the applicant understands why the information is relevant to the review, and the consequences of the information being relied on in affirming the decision that is under review; and

    (ii) orally invite the applicant to comment on or respond to the information; and

    (iii) advise the applicant that he or she may seek additional time to comment on or respond to the information; and

    (iv) if the applicant seeks additional time to comment on or respond to the information—adjourn the review, if the Tribunal considers that the applicant reasonably needs additional time to comment on or respond to the information.

    Tasks of the position, genuine need for the position and training requirements: r.5.19(4)(h)

17. Regulation 5.19(4)(h) contains a number of alternative requirements. These are set out in detail in the attachment to the decision but can be briefly summarised as requiring either that:

    ·the tasks to be performed in the position will be performed in Australia and correspond to those of an occupation specified by the Minister in an instrument, the occupation is applicable to the proposed employee in accordance with any specifications made in that instrument, and specified training requirements are met; or

    ·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.

18. The applicant can choose therefore to meet either r.5.19(4)(h)(i) or r.5.19(4)(h)(ii). The applicant has chosen to meet r.5.19(4)(h)(ii) which provides for the second dot point above.

19. The Tribunal put to the director under s.359AA of the Act that since the restaurant in Mooloolaba had never been opened and actively operated that the position is not located in regional Australia and if the Tribunal gave consideration to this it may find that the application could not satisfy r.5.19(4)9h)(ii)(A).

20. The director chose to respond in the hearing and said he didn’t have anybody to get advice from at such short notice and “I have tried my best”.

21. The Tribunal gave the director a further 14 days to make a written response, however no further documents or information were provided by the director or the registered migration agent.

22. The Tribunal needs to determine if the position is in regional Australia. Mooloolaba’s postcode is 4557. The definition of ‘Regional Australia’ is found in IMMI 16/045. This postcode is included in the list of postcodes for designated regional areas (IMMI 16/045) therefore Mooloolaba is in regional Australia at the time of application. However, the business and the position are not located in Mooloolaba, Queensland, postcode 4557, as stated in the online employer nomination because the director never opened and actively operated a restaurant in Mooloolaba.

23. The director did own and actively operate a restaurant from Morayfield, Qld 4506. This postcode is not included in the list of postcodes for designated regional areas (IMMI 16/045) and therefore Morayfield is not in regional Australia. It is further noted that this restaurant has closed according to evidence given by the director, so the position is not available from this location even if it were in regional Australia.

24. It is open to question whether there is even a position as the nominator does not actively operate a restaurant which would require the services of a Café or Restaurant Manager. However, whether there is a position of Café and Restaurant Manager or whether the position does not exist is moot as it is not located in regional Australia because the director has never opened and operated a restaurant in Mooloolaba in regional Australia. The director has not submitted evidence or stated that he owns or operates any other restaurants or cafes in Australia.

25. The Tribunal finds that the position of Café or Restaurant Manager is not located in regional Australia. Accordingly, the requirements of r.5.19(4)(h)(ii)(A) are not met.

26. Accordingly, the requirements of r.5.19(4)(h) are not met.

27. For the above reasons, the Tribunal is not satisfied that the applicant meets the requirements of r.5.19(4). The applicant has not sought to satisfy the criteria in Temporary Residence Transition 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

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

    De-Anne Kelly
    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).