New Era Hospitality Pty Ltd (Migration) - [2023] AATA 550

New Era Hospitality Pty Ltd (Migration) [2023] AATA 550 (20 March 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  New Era Hospitality Pty Ltd
REPRESENTATIVE:  Ms Nishta Ramnoruth
CASE NUMBER:  1917094
HOME AFFAIRS REFERENCE(S):          BCC2017/4805180
MEMBER:Terrence Baxter
DATE:20 March 2023
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Statement made on 20 March 2023 at 9:16am
CATCHWORDS
MIGRATION – application for approval of nomination of position – direct entry nomination stream – retail manager – tasks of position – applicant previously operated franchise, now operates different independent business – relocation does not change nominated position – expansion of product range and services under nominee’s management – trading profits despite period of non-trading – nominee the brother of director of applicant – no suitably qualified local applicant applied for position – nominee’s training and certification by regional certifying body – director’s limited involvement in management – decision under review set aside
LEGISLATION
Migration Regulations 1994 (Cth), r 5.19(4)(h)(ii)(D)
CASES
Bharaj Construction Pty Ltd v MIBP [2016] FCCA 902
Harinsco Pty Ltd v MICMSMA [2021] FCCA 528
MIBP v Jayshree Enterprises Pty Ltd [2017] FCA 264
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 12 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, New Era Hospitality Pty Ltd, applied for approval on 15 December 2017. The applicant nominated Mr Abdul Waheed (the nominee) in the position of Retail Manager. At the time of the application, the applicant operated a business known as Sumo Salad Sunshine Plaza under a franchise agreement in premises situated at 154-164 Horton Parade, Maroochydore, Queensland. The applicant ceased operating that business on 31 January 2022 and has subsequently purchased a new business located at 59 Aerodrome Road, Maroochydore. The applicant employed the nominee at the Sumo Salad business and continues to employ him at the new business, which trades as 59 Fish.
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 that the applicant’s nomination did not satisfy reg 5.19(4)(h)(ii)(D) of the Regulations because the delegate found that the tasks to be performed in the position do not…

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.

Keep reading for free

Create a free CaseChat account to read New Era Hospitality Pty Ltd (Migration) and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2023] AATA 550
Decision Date: 20 March 2023

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered an application by New Era Hospitality Pty Ltd for approval of a nomination of a position under the Direct Entry stream of the Regional Sponsored Migration Scheme. The dispute concerned whether the applicant met the requirements of regulation 5.19(4) of the Migration Regulations 1994 (Cth) for the approval of the nomination.

The Tribunal was required to determine if the applicant had satisfied all the criteria stipulated in regulation 5.19(4), particularly concerning the genuine need for the nominated position, the tasks associated with that position, and the qualifications and training of the nominee. This involved assessing whether the nominated position was located in regional Australia, if there was a genuine need for the nominee to be employed, and if the nominee possessed the necessary training and certifications for the role.

The Tribunal reasoned that the applicant's business and the nominated position were located in Maroochydore, Queensland, which is designated as regional Australia, thus satisfying regulation 5.19(4)(h)(ii)(A). It found that the nominee had undergone relevant training and possessed qualifications, including a food safety supervisor statement of attainment and a certificate IV in Information Technology (Networking), which were pertinent to the role. The Tribunal also considered evidence of the business's operations, including trading profits despite a period of non-trading, and the nominee's expanded responsibilities under their management, concluding that these factors supported a genuine need for the position. Furthermore, the Tribunal was satisfied that there was no adverse information known to the Department regarding the nominator or associated persons, and that the applicant had a satisfactory record of compliance with workplace relations laws.

The Tribunal decided to set aside the original decision and substitute it with 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

Mr Rahim gave evidence regarding the advertising for the position, the responses received from job applicants and the circumstances surrounding the nominee being issued with a certificate of completion of training as nominated manager of the Sumo Salad business at Sunshine Plaza.Evidence presented after the second hearing After the second hearing, the applicant produced to the Tribunal the following documents:a.A submission from the representative dated 1 March 2023.b.Evidence of the date of settlement of the purchase of the 59 Fish business.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) of the Migration Act 1958 (Cth) (the Act). 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. Having regard to the documentation in the file of the Department, the Tribunal is satisfied that the application for approval was in the approved form. The application relates to a visa in the Direct Entry nomination stream seeking to meet the requirements in the Regional Sponsored Migration Scheme (RSMS) and consequently no fee is payable (reg 5.19(2) and reg 5.37(4) of the Regulations). The application included a written certification stating that the applicant had not engaged in conduct in relation to the nomination that contravenes s 245AR(1) of the Act. The requirements of reg 5.19(2) and consequently of reg 5.19(4)(a)(i) are therefore met. Regulation 5.19(4)(a)(ii) requires that the application identifies a need for the nominator to employ an identified person as a paid employee to work in the position under the nominator’s direct control. It is unclear whether this requirement is directed just at a statement to this effect or something of a more qualitative nature. The wording ‘identifies a need’ arguably suggests more is required to meet this criterion than simply a statement or declaration that there is such a need. ‘Identify’ is defined as ‘to recognise or establish as being a particular person or thing; verify the identity of’.[1] On that view, which is consistent with that reflected in Departmental policy, a decision maker would need to be satisfied there is a genuine need on the part of the nominator to employ a paid employee in the nominated position.[2] However, it could alternatively be argued that reg 5.19(4)(a) as a whole is directed towards requirements for the application form/process of a more administrative nature, such that reg 5.19(4)(a)(ii) could be met by a simple statement or certification of need. Support for this view can also be found in the contrast between the wording of reg 5.19(4)(a)(ii) and, for example, reg 5.19(4)(h)(ii)(B) (for applications relating to positions in regional Australia), which requires that there be a genuine need for the nominator to employ the person identified in the application as a paid employee to work in the position under the nominator’s direct control, clearly requiring a qualitative assessment, and reg 5.19(4)(d)(i), which requires satisfaction that the employee will be employed on a full-time basis in the position for at least two years. Given the uncertain scope of reg 5.19(4)(a)(ii), and the requirement in relation to this application to satisfy reg 5.19(4)(h)(ii)(B), the Tribunal considers that this issue is more appropriately considered under reg 5.19(4)(h)(ii)(B) later in these Reasons.[1] Dictionary.com (accessed March 2023).[2] In Bharaj Construction Pty Ltd v MIBP [2016] FCCA 902 (Judge Barnes, 28 April 2016), the Court considered a similarly worded provision in respect of a pre-1 July 2012 RSMS nomination, i.e. ‘the employer nomination is made by an employer in respect of a need for a paid employee’. Whilst on the one hand reg 5.19(4)(a)(ii) does not appear to impose a different requirement beyond emphasising the requirement for an applicant to identify the need (unlike the pre-1 July 2012 version of regs 5.19(2)(a) and (4)(a)), the wording of the criteria does differ slightly and the Tribunal exercises caution in applying the reasoning of Bharaj to a post-1 July 2012 nomination as is currently being considered.

Decision

Reasons for decision

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.Evidence presented prior to the first hearing The applicant produced to the Department of Immigration and Border Protection (now the Department of Home Affairs) (the Department) the following documents: a.A Sumo Salad franchise agreement of the applicant. b.A job advertisement for the position on Gumtree. c.Market salary research.d.Correspondence and a Form 1404 issued by the Regional Certifying Body (RCB), the Queensland Chamber of Commerce and Industry, Toowoomba, dated 29 November 2017. e.An employment contract of the nominee dated 30 October 2017. f.A business plan of the applicant. g.Profit and loss projections for the business.h.A franchisee management training certificate awarded to the nominee. i.An ABN Lookup form of the applicant. j.Photos of the business premises. k.Evidence of the applicant’s tenancy of its business premises. l.An organisational chart. m.A submission from Mr Rahim dated 30 October 2017. n.A position description. o.Evidence of the tasks performed by the nominee in the position. p.Activity statements for the period from January 2018 to December 2018. The applicant produced to the Tribunal the following documents: a.A copy of the delegate’s decision. b.An ASIC company summary. c.An updated current ABN Lookup form. d.A historical ABN Lookup form. e.An ASIC current company extract.f.Activity statements for the period from July 2020 to June 2022. g.Company tax returns for the 2020 and 2021 financial years.h.A financial report for the 2021 financial year. i.A payroll summary report prepared by the applicant for the 2021 financial year. j.Updated evidence of the applicant’s tenancy of its business premises. k.Copies of various documents provided to the Department. l.A letter addressed to the nominee from Mr Rahim regarding job responsibilities of the position dated 9 March 2022.m.Promotional material of the applicant. n.A product order sheet of the applicant. o.An employment contract of the nominee dated 9 March 2022. p.An updated organisational chart. q.Submissions from the representative dated 27 September 2022. r.A deed of covenant and assignment of lease of the applicant’s current business premises. s.An ASIC company summary of Nasmaj Enterprises Pty Ltd, a company associated with the applicant. t.Current market salary research. u.An NDIS plan approval notification dated 28 July 2022.v.A submission from Mr Rahim dated 27 September 2022. w.A certificate IV in Information Technology (Networking) awarded to the nominee. x.A Bachelor of Accounting awarded to the nominee. y.A food safety supervisor statement of attainment awarded to the nominee.z.A statutory declaration made by the nominee on 27 September 2022, accompanied by various annexures. Evidence presented at the first hearing regarding the applicant’s operations

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 a person associated with the nominator; or it is reasonable to disregard any such information. For these purposes, ‘adverse information’ and ‘associated with’ have the meanings given in regs 1.13A and 1.13B. There is no evidence before the Tribunal that there is any adverse information of the type described in the relevant definitions known to the Department about the applicant or any associated person. 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 has an unsatisfactory record of compliance with workplace relations laws of the Commonwealth or any State or Territory in which the applicant operates a business. The Tribunal is satisfied that the applicant does have a satisfactory record of compliance. 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. 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 and the relevant legislative instrument, the occupation is applicable to the proposed employee in accordance with any specifications made in that instrument, there is a genuine need for the nominee to be employed as a paid employee in the position, and certain specified training requirements are met; or·the position and nominator’s business is located in regional Australia, there is a genuine need for the nominee to be employed as a paid employee in the position under the nominator’s direct control, the position 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 (see legislative instrument IMMI 17/058), 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. The applicant indicated in the nomination application that it was applying under the RSMS in the Direct Entry nomination stream. The applicant indicated that the postcode where the position was to be filled was 4558. Based on the evidence, the Tribunal is satisfied that the position and the applicant’s business are located at 59 Aerodrome Road, Maroochydore, Queensland 4558. As this postcode is specified in the relevant instrument as being in regional Australia, the requirements of reg 5.19(4)(h)(ii) must be met by the applicant.Regulation 5.19(4)(h)(ii)(A) – the position is located in regional Australia