OFF THE GREEN PTY LTD (Migration)

[2023] AATA 797

OFF THE GREEN PTY LTD (Migration) [2023] AATA 797 (28 February 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  OFF THE GREEN PTY LTD

REPRESENTATIVE:  Mr Harsh Yadav (MARN: 2117646)

CASE NUMBER:  1919695

HOME AFFAIRS REFERENCE(S):          BCC2017/4798865

MEMBER:Namoi Dougall

DATE:28 February 2023

PLACE OF DECISION:  Sydney

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

Statement made on 28 February 2023 at 3:02pm

CATCHWORDS
MIGRATION – Employer Nomination – approval of nominated position – Direct Entry nomination stream – Restaurant or Café Manager – no response to section 359(2) invitation – location of position – address of registered office – address where business activities are undertaken – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 359C, 360, 363A
Migration Regulations 1994 (Cth), r 5.19

CASES
Harinsco Pty Ltd v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs and Anor [2021] FCCA 528
Hasran v MIAC [2010] FCAFC
Singh v MIBP [2017] FCAFC 105

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 1 July 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).

2. The applicant applied for approval on 15 December 2017. 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).

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 reg 5.19(4)(d)(i) of the Regulations because the delegate was not satisfied that the applicant had the financial capacity to employ the nominated person, Ms Rippandeep Gill (the nominee) on a full time position in the nominated position of Restaurant or Café Manager (ANZSCO 141111) for at least 2 years.

5. On 26 July 2022, the Tribunal wrote to the review applicant pursuant to s 359(2) of the Act, inviting the review applicant to provide in writing uptodate and current information relevant to criteria in reg.5.19 which the applicant must satisfy for the nomination of a position to be approved.

6. The invitation and advised that, if the information was not provided in writing by 09 August 2022, the Tribunal may make a decision on the review without taking further steps to obtain the information and the review applicant would lose any entitlement the applicant might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments. The invitation was received by the applicant as on 9 August 2022, the applicant by email from its representative, requested an extension of time to provide the information which was granted on 11 August 2022.

7. The grant of the extension on time was sent to the last address provided in connection with the review and advised that, if the information was not provided in writing by 23 August 2022, the Tribunal may make a decision on the review without taking further steps to obtain the information and the applicant would lose any entitlement the applicant might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

8. The review applicant has not provided the information within the prescribed period and no extension has been granted. In these circumstances, s 359C applies and pursuant to s 360(3) the review applicant is not entitled to appear before the Tribunal. The effect of s 363A of the Act is that if a review applicant has no entitlement to a hearing, the Tribunal has no power to permit him or her to appear: Hasran v MIAC [2010] FCAFC 40. The Tribunal has decided to proceed to decision without taking further steps to obtain the information. However, the Tribunal on 21 October 2022, did request specific information referred to in the original information which was provided by the applicant.

9. The Tribunal notes that on 23 August 2022, the applicant withdrew its former representative, however, this does not change the above.

10. The applicant was represented in relation to the review.

    BACKGROUND

11. The applicant had lodged related business nominations and visa applications which are:

    ·Tribunal file 1919873, the nominated position is Cook and the nominated person is Mr Davinderjeet Singh (Tribunal file 1933095).

    ·Tribunal file 1919867, the nominated position is Cook and the nominated person is Mr Dattar Singh (Tribunal file 1933901)

    ·In relation to the above related matters, Mr Peter Yasin, a director of the applicant appeared on behalf of the applicant before the Tribunal on 17 January 2023 (the first hearing) and at the hearing on 2 February 2023 (the second hearing) to give evidence and present arguments. At the first hearing the Tribunal also received oral evidence from the nominee, Ms Rippandeep Gill, Mr Davinderjeet Singh and Mr Dattar Singh.

    ·At the second hearing Mr Yasin confirmed that his oral evidence at both hearings could be referred to in the Tribunal’s decision in relation to this matter. Similarly, Mr Yasin and his representative agreed that the submission dated 21 February 202 3provided in relation to the related matters could be referred to in the Tribunal’s decision in relation to this matter.

12. The applicant was represented in relation to the review.

BACKGROUND

1. In the application for the approval of the employer nomination the applicant stated that the business employees 12 employees and the nominee was to work as a Restaurant Manager on $55,000 per annum. The nominee’s work location postcode was Terrigal 2260.

2. In a submission provided to the Department dated 18 December 2018, it was submitted that the applicant: ‘owns and operates a catering services company that coordinates the creation, preparation, delivery and presentation of food for corporate clients in accordance with catering contracts at various locations’. At the date of the submission, it was stated that the applicant operated three catering contracts at:

   ·The Azura Restaurant, Gwandalan Bowling Club, Gwandalan, 2259.

   ·Splash Restaurant and Café, Terrigal Trojan Rugby Club, Terrigal 2260.

   ·Bay Salt Restaurant and Bar, Batemans Bay 2356.Batemans Bay Soldiers Club,

3. In support of the above the Department was provided with catering services contracts or supporting letters.

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

CONSIDERATION OF CLAIMS AND EVIDENCE

1. 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.

The application is compliant: reg 5.19(4)(a)

1. 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.

2. In the nomination application, the applicant identified Ms Rappandeep Gill as the person they wish to employ in the position of Restaurant Manager (ANZSCO: Café or Restaurant Manager) and the address where Ms Gill would be employed was Terrigal, 2260.

3. On 8 November 2022, the Tribunal was provided with a letter from the applicant which stated that the applicant by mutual agreement terminated its contract with Splash Restaurant in Terrigal and the nominee now worked at Gwandalan Bowling which is in Wyong or at the Armidale City Bowling Club. The letter also stated that the applicant operates in several different venues throughout regional New South Wales (NSW) and sometimes employees are required to move venues due to staff shortages. The letter also stated that the nominee is still employed by the applicant which is contracted to two other venues in Gwandalan Bowling Club and Armidale City Bowling Club.

4. At the second hearing Mr Yasin confirmed that the business of the applicants currently operating at Armidale City Bowling Club. Splash Restaurant and Café, Terrigal ceased just before the COVID-19 Pandemic. The reason the applicant ceasing to operate there was that the council who owned the building started to renovate the building for 9 months during the term of the contract. The applicant ceased to operate at the location and terminated the lease. The contract for catering services at the Splash Restaurant and Café in Terrigal with the Trojan Rugby Club was also terminated.

5. At the second hearing Mr Yasin stated that the Gwandalan Bowling Club did not renew the catering services contract due to differences between him and the new CEO.

6. At the second hearing the Mr Yasin stated that his business Pure Kitchen Catering Pty Ltd operated in Inverell Sporties Club and his other business Nationwide Catering Solutions Pty Ltd operates at the Taree Railway Bowling Club. Mr Yasin then added that he is travelling to speak to both Clubs in Tamworth and that a third Club is interested in his catering services. He is going to continue the negotiations about the renovations and how much income he will also.

7. On the above the Tribunal is satisfied that the position ceased to exist when the applicant ceased to operate at the Splash Restaurant and Café, Terrigal, NSW 2260 around the start of the COVID-19 Pandemic in early 2020 and the nominee started to work in Gwandalan Bowling Club, Gwandalan NSW 2259 and later at the Armidale City Bowling Club, Armidale, NSW, 2350 around December 2022. The Tribunal, therefore, finds that there was no longer a need for the applicant to employ a paid employees to work in the nominated position under the applicant’s direct control when the applicant ceased to operate at Splash Restaurant and Café, Terrigal in early 2020.

8. Given the above, the Tribunal finds that requirements in reg 5.19(4)(a) are met.

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

1. 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 (see legislative instrument IMMI 18/005), 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, 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.

2. The relevant criteria to be met are the five sub-criteria set out in r.5.19(4)(h)(ii)(A - F)

Location of position and Regional Certifying Body Certification

1. As referred to above the nomination application stated that the address where the person identified in the nomination would be employed was Terrigal 2260. This location is included in the relevant instrument, IMMI 17/059 as a regional area.

1. On 16 July 2018, Regional Development Australia - Central Coast NSW Inc, a regional certifying body (RCB) (the Central Coast RCB) specified in IMMI 17/059, and located in the same State or Territory as the position’s original location and with responsibility for that local area has advised the Minister about a number of matters relating to the position which are referred to in detail below.

2. The same certification from the Central Coast RCB was provided in the nomination in relation to the nominated position is Cook and the nominated person being Ms Rippandeep Gill

3. As referred to above the Tribunal was provided with a letter from the applicant on 9 November 2022, which stated the applicant by mutual agreement terminated its contract with Splash Restaurant in Terrigal.

4. Harinsco Pty Ltd v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs and Anor [2021] FCCA 528 (Harinsco) involved a nomination application under the Regional Sponsored Migration Scheme similar to the application in this present matter. The Court found that the position the subject of the nomination application was geographically specific. The Court further found that the position the subject of the nomination application was, factually, geographically located at the location specified in the nomination application and not the location to which the applicant’s business had been relocated. The Court found that the two locations were separated by a distance of approximately 45 km.

5. At the first hearing, at which the applicant’s representative was present, the Tribunal discussed Harinsco in similar terms as set out above and that there are issues if there is a change in location for the positions for all of the positions. The Tribunal allowed additional time for the applicant to comment on this issue in writing.

6. On 14 February 2023, the applicant’s representative provided a submission to the Tribunal on amongst other thing, Harinsco. It was submitted that the unlike the sponsoring buisness in Harinsco, the applicant in this matter never stopped operating and continues to support the sponsorship. The submission then stated that the applicant was providing services for its clients, Gwandalan Bowling Club at that time of the application but just a week before the hearing the Gwandalan Bowling Club did not renew the contract with the applicant. This did not affect the applicant as it move the position to the Armidale City Bowling Club which is a bigger venue where more staff is needed.

7. In relation to this submission, the nomination application the address where the person identified in the nomination would be employed was Terrigal 2260 and not Gwandalan, 2059.

8. It was also submitted that the actual location of the applicant was still the same as it operates under the same ABN at the same location in Lake Munmorah, 2059. The Tribunal will respond to this argument when responding to the submission dated 21 February 2023, which was provided I the related matters.

9. On 21 February 2023, the Tribunal was provided with a submission which, amongst other matters, addressed the issue raised by the Tribunal as set out in Harinsco and the change of location of the nominated positions (the February submission). The background provided in the February submission was:

   ·The principal place of business of the applicant has at all times been Lake Munmorah, NSW, 2059 which is within the Central Coast Region of NSW. The nominated position is within the activities of the applicant whose principal place of business is located on the Central Coast, in a regional area.

   ·The address where the nominee was to work, at the time of application, was in Terrigal which is also located in the Central Coast.

   ·The address where the nominee will be employed is in Armidale. The Tribunal notes that the evidence is that the nominee does work in Armidale.

   ·Armidale is located in the Northern Tablelands of NSW and the RCB is Regional Development Australia, Northern Inland.

   ·The nominee is physically required to work in regional NSW to perform the tasks of the position.

10. It was further submitted in the February submission that Harinsco held that the nominated position was geographically specific and the certification by the RCB was in respect of a specific location and a nomination is fixed to the position nominated at the time of application in relation to regional nominations. The submission then submitted as follows:

    ·The regulations required the position to be located in ‘regional Australia’ as defined in reg,5.19(7).

    ·The nominee was nominated to undertake employment in ‘regional Australia’ and the location of the position at the time of the nomination application and now is in ‘regional Australia’.

    ·‘Position’ is not defined in the Act or Regulations, however, the submission notes ‘the Courts have commented that it referred to a particularly role, incorporating duties and tasks involved in performing that role’. The submission references Singh v MIBP [2017] FCAFC 105 at [7] [(Singh).

    ·The position referred to in the nomination application for was Restaurant manager and the nominator continues to offer the nominee the position located in regional Australia as specified in the application at time of lodgement.

11. The foot note referencing Singh goes on to quote from paragraph [88] at the paragraph of Singh in relation to reg.5.19: “[t]hat the ‘position’ referred to is a particular job with a particular employer that exists at a particular point in time, and in a particular set of factual circumstances’. The Tribunal notes that the decision in Harinsco also refers to paragraphs [88] – [89] of Singh and then states that the position ‘the subject of the nomination application was, factually, geographically located’ at the position stated in the nomination application and not at the location at the time of the Tribunal’s decision.

12. In relation to the RCB, on 16 July 2018 certifying that the nominated position cannot be filled by an Australian citizen or permanent resident living in the same local area as the nominated position it was submitted that:

    ·The nomination had been assessed by an RCB in the State or Territory in which the nominated position: reg.5.19(4)(h)(ii)(F).

    ·In Harinsco the RCB specifically referenced the address of the restaurant where the nominee worked, however, the Central Coast RCB referenced the business location of an address at Lake Munmorah, 2259. As referred to above this is the registered office of the applicant.

    ·The Central Coast RCB certification does not refer to any other location and it is submitted that there has been no geographic change to the specific business location of the applicant.

13. The Central Coast RCB certification dated 16 July 2018 requires information to be filled on the certificate including: the ‘contact address of the nominating buisness/organisation’. The Tribunal notes that the address that is required to be filled in is not necessarily where the business activities are located but just a contact address. In this case the address provided was the registered office of the applicant as confirmed by the ASIC Company Statement provided with the January submission.

14. The Lake Munmorah address is the registered office of the applicant but is not the address where the business activities of the applicant where undertaken. As set out in the submission dated 18 December 2018 the applicant operates a catering services company with catering contracts at various locations and it is at those various locations that the business activities are located.

1. The factual circumstance of this matter is that, at that the time of the nomination application was lodged, the nominated position was Restaurant Manager and that position was located at the address stated in the nomination application as to where the nominated person will be employed being Terrigal, NSW 2260. There is nothing on the files that the applicant was to work in the business of the applicant at the Lake Munmorah address.

2. The evidence is that the applicant no longer has the contracts to provide catering services at the Splash Restaurant and Café, Terrigal or at the Gwandalan Bowling Club, Gwandalan and the position has changed location to the Armidale City Bowling Club. Therefore, the Tribunal is satisfied that the position of Cook at Terrigal no longer exists.

3. The regulations required that a body specified by the Minister in an instrument in writing and located in the same State or Territory as the location of the position has advised on certain matters relating to the nomination. As referred to above, the Central Coast RCB) is specified in IMMI 17/059 as such a body.

4. The Central Coast RCB certification dated 16 July 2018 stated that the RCB had assessed the nomination against the following requirements:

   ·     There was a need for a paid employee in the nominated position within the business activities of the nominating employer; and

   ·     The nominated position cannot be filled by an Australian citizen or Australian permanent resident who is living in the same local area as the nominated position; and

   ·     The terms and conditions of employment that were applicable to the nominated position will be no less favourable than the terms and conditions that are or would be provided to an Australian citizen or Australian permanent resident for performing equivalent work in the same workplace at the same location.

   The Tribunal has added the emphasis.

5. The above certification is made in relation to the position of Cook in Terrigal, as stated above that position no longer exists as the nominee is employed in Armidale.

6. On the above, the Tribunal finds the following criteria are not met for the purposes of r.5.19(4)(h)(ii):

   ·     there is a genuine need to employ a paid employee to work in the position under the nominator’s direct control.

   ·     the position cannot be filled by an Australian citizen or permanent resident who is living in the same local area.

   · a Regional Certifying Body located in the same State or Territory as the position has advised the Minister about the matters in r.5.19(4)(e) and r.5.19(4)(h)(ii)(B) & (C).

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

8. For the above reasons the Tribunal is not satisfied that the applicant meets the requirements of reg 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 reg 5.19(3). Accordingly, the nomination of the position cannot be approved. Therefore, the Tribunal must affirm the decision under review.

DECISION

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

Namoi Dougall
Member

ATTACHMENT  -  EXTRACTS FROM THE MIGRATION REGULATIONS 1994

5.19Approval of nominated positions (employer nomination)

…

1. 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

1. 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 an identified person, as  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).