Naseeb Enterprises Pty Ltd (Migration) - [2022] AATA 3300

Naseeb Enterprises Pty Ltd (Migration) [2022] AATA 3300 (26 September 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Naseeb Enterprises Pty Ltd
REPRESENTATIVE:  Mr Suraj Khatri (MARN: 0747797)
CASE NUMBER:  1917869
HOME AFFAIRS REFERENCE(S):          BCC2018/916648
MEMBER:Mary Sheargold
DATE:26 September 2022
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Statement made on 26 September 2022 at 3:52pm
CATCHWORDS
MIGRATION – application for approval of nomination of position – direct entry stream – café or restaurant manager – tasks of position – comparison of position description and ANZSCO descriptor – decision made without hearing necessary – decision under review set aside
LEGISLATION
Migration Act 1958 (Cth), ss 359(2), 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 18 June 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 26 February 2018. 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.
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 because the delegate was not satisfied that the tasks to be performed in the nominated position of Café or Restaurant Manager corresponded to the tasks for a Café or Restaurant Manager as specified at ANZSCO 141111.
In reaching its decision the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the visa applicant on the basis of the material before it, pursuant to s 360(2)(a) of the Act.
The applicant was represented in relation to the review.
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.
On 26 July 2022, the Tribunal wrote to the applicant pursuant…

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.

Continue reading Naseeb Enterprises Pty Ltd (Migration)

Details

AGLC: Naseeb Enterprises Pty Ltd (Migration) [2022] AATA 3300
Case: [2022] AATA 3300
Decision Date: 26 September 2022

CaseChat Overview and Summary

This matter concerned an application by Naseeb Enterprises Pty Ltd for approval of a nomination for a café or restaurant manager position under the Direct Entry stream. The Administrative Appeals Tribunal (AAT) 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 Tribunal was tasked with assessing whether the nomination application complied with various regulatory requirements, including the form and fee, the identification of a genuine need for a paid employee under the nominator's direct control, the nominator's business operations, employment terms and conditions, the absence of adverse information, satisfactory compliance with workplace relations laws, and specific criteria relating to the position's tasks and location in regional Australia. The central issue revolved around whether the tasks of the nominated position corresponded to an occupation specified in the relevant legislative instrument and whether there was a genuine need for the position, particularly in regional Australia.

The Tribunal considered evidence provided by the applicant, including company extracts, Business Activity Statements, financial statements, employment contracts, and an organisational chart, in conjunction with the Departmental file. It found that the application was compliant with regulation 5.19(4)(a), that there was no adverse information known to Immigration under regulation 5.19(4)(f), and that the applicant had a satisfactory record of compliance with workplace relations laws under regulation 5.19(4)(g). Crucially, the Tribunal determined that the position was located in regional Australia, satisfying regulation 5.19(4)(h)(ii)(A), and that there was a genuine need for a full-time Restaurant Manager, as required by regulation 5.19(4)(h)(ii)(B). The Tribunal also considered the relevant legislative instrument defining regional Australia at the time of the application's lodgement.

Having found that all the requirements of regulation 5.19 were met, the Tribunal set aside the original 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. On 26 July 2022, the Tribunal wrote to the applicant pursuant to s.359(2) of the Act inviting the applicant to provide information that demonstrated that the business meets all of the requirements of the criteria in r.5.19(4) of the Regulations at the time of the Tribunal’s decision. A copy of r.5.19(4) was annexed to the letter. A response to the request for information was due by 9 August 2022. On 9 August 2022, the following documents were uploaded onto the applicant’s Tribunal file:·a current and historical company extract for Naseeb Enterprises Pty Ltd from the Australian Securities and Investments Commission (ASIC) dated 2 August 2022;·copies of Business Activity Statements (BAS) for each quarter from 1 July 2019 to 31 March 2022;·detailed financial statements for the applicant for the financial years ending on 30 June 2019, 2020 and 2021;·a copy of the nominee’s most recent contract of employment; and·an organisation chart for the applicant’s business. The Tribunal has considered this evidence, as well as the documents previously provided (including a priority request lodged in November 2019) and the evidence contained in the Departmental file, in reaching its findings.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 reviewed the documentation in the Department’s file and is satisfied that the applicant’s nomination application was made on the approved internet form, and the relevant s.245AR(1) certification was also provided in the application form. Consistent with r.5.37(2)(a) of the Regulations, there is no fee payable in respect of a nomination where the position is located in regional Australia. The applicant has identified a need for a Restaurant Manager for its restaurant business located in Woodend, Victoria, under its direct control. The Tribunal has considered the statement made by Ashwin Singh, the director of Naseeb Enterprises Pty Ltd, made in October 2019 confirming that he is based in Sydney caring for his young family and is not a position to live or work in regional Victoria. Based on the evidence before it, the Tribunal is satisfied that the applicant has identified a need to employ a full time Restaurant Manager to work in its restaurant business.

Decision

Reasons for decision

Based on the findings above, the Tribunal is satisfied that the applicant meets the requirements of reg 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.Mary SheargoldMemberATTACHMENT - 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) 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. There is no evidence before the Tribunal to suggest that there is any adverse information known about the applicant or its director. 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 relations laws in Australia. Accordingly, the requirements of reg 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. The applicant’s application was made under the RSMS Direct Entry stream. Accordingly, the Tribunal has assessed the application against the criteria in r.5.19(4)(h)(ii) of the Regulations, as at the time of lodgement of the nomination application, which required that:·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;·the position cannot be filled by a locally resident Australian citizen or permanent resident who is living in the same local area as that place;·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 ·a regional certifying body has advised the Minister about certain matters relating to the position.Position and nominator’s business is located in regional Australia: rr.5.19(4)(h)(ii)(A) and (E) 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 legislative instrument. The Tribunal has considered the current legislative instrument, IMMI 18/037, that specifies the postcodes classed as “regional Australia” in accordance with r.5.19(16). However, Schedule 3 to IMMI 18/037 states that it applies only to applications lodged on or after 18 March 2018. The Tribunal notes that IMMI 18/037 repealed the previous instrument, IMMI 17/059. Given that neither the current instrument nor its predecessor can be relied upon, in order for the Tribunal to reach a finding in respect of whether the position is located in regional Australia, the Tribunal has considered the legislative instrument that applied at the time the applicant lodged the nomination application, IMMI 16/045. Schedule B of IMMI 16/045 states that postcodes from 3430 to 3649 form part of regional Australia.