MULPHA HOTEL PTY LTD (Migration) - [2019] AATA 1206

MULPHA HOTEL PTY LTD (Migration) [2019] AATA 1206 (10 May 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mulpha Hotel Pty Ltd
CASE NUMBER:  1710021
DIBP REFERENCE(S):  BCC2016/3329945
MEMBER:Katie Malyon
DATE:10 May 2019
PLACE OF DECISION:  Sydney
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.
Statement made on 10 May 2019 at 4:02 pm

CATCHWORDS
MIGRATION – approval of nomination – Direct Entry Nomination stream – genuine position – Commis Chef Pastry – company’s relationship with parent company – evidence provided – decision under review set aside
LEGISLATION
Migration Act 1958, ss 65, 245AR(1), 359(2)
Migration Regulations 1994, Schedule 2, rr 1.13A, 1.13B, 5.19, 5.37(2)(a)
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 Immigration on 18 April 2017 to reject the application made by Mulpha Hotel Pty Ltd

ACN 070 662 627 (the Company) for approval of the nomination of a position in Australia under r.5.19 of the Migration Regulations 1994 (the Regulations).
The Company applied for approval on 7 October 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 (r.5.19(3)) stream; and, a Direct Entry nomination (r.5.19(4)) stream. If the application is made in accordance with r.5.19(2) of the Regulations and meets all 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) of the Regulations.
In this case, the Company 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 that the Company’s nomination did not satisfy r.5.19(4)(a)(ii) of the Regulations because no evidence was provided to the Department to demonstrate that there was a need for the Company to employ a paid employee – in this case, Nepalese national Mr Rajeeb Mahato - in the position of the Commis Chef Pastry under the Company’s direct control.
Mr Allan Renkema, the Company’s Executive General Manager of Human Resources, appeared before the Tribunal on 9 April 2019 to give evidence and present arguments. The Company was represented in relation to the review by its registered migration agent, who also attended the hearing.
Background
As explained by Mr Renkema, the Company is part of Mulpha Australia Ltd (Mulpha), a wholly owned subsidiary of Mulpha International Bhd.[1] Mulpha acquires, develops and manages a range of property and lifestyle investments including hotels, a hotel school, integrated residential and commercial developments, a car park as well as a winery and vineyard operations. Previously, the Company traded as Mulpha Hotel Pty Ltd T/A One&Only Hayman Island. Hayman Island is in the Whitsundays, off the Queensland coast near Airlie Beach, and has been recognised as Australia’s…

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: [2019] AATA 1206
Decision Date: 10 May 2019

CaseChat Overview and Summary

The decision reviewed was made by the Administrative Appeals Tribunal (AAT) concerning an application by Mulpha Hotel Pty Ltd for the approval of a nomination for a Commis Chef Pastry position under the Direct Entry stream. The core dispute revolved around whether the company met the cumulative requirements of regulation 5.19(4) of the Migration Regulations 1994 for the approval of this nomination, particularly in relation to the genuineness of the position and the company's operational status.

The Tribunal was required to determine if Mulpha Hotel Pty Ltd had satisfied all the conditions stipulated in regulation 5.19(4) for the approval of the nominated position. This included assessing whether the company was actively and lawfully operating a business, directly operated that business, and whether the nominated position was genuine and not intended for hire to unrelated businesses. Furthermore, the Tribunal had to consider the terms and conditions of employment, the absence of adverse information, and the company's record of compliance with workplace relations laws.

In its reasoning, the Tribunal found that Mulpha Hotel Pty Ltd had met the cumulative requirements of regulation 5.19(4). The decision indicates that the evidence presented, including details about the company's relationship with its parent company and the nature of the Commis Chef Pastry role, satisfied the Tribunal that the nomination was valid. The Tribunal concluded that the company was actively and lawfully operating its business and that the nominated position was genuine.

Consequently, the Tribunal set aside the original decision under review and substituted it with a decision approving the nomination for the Commis Chef Pastry position.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Based on the findings above, the Tribunal is satisfied that the Company meets the cumulative requirements of r.5.19(4) of the Regulations 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.Katie MalyonMemberATTACHMENT - 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 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).oOOo

Ratio Decidendi

Legal Principle Established

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