PIZZA HOUSE (NSW) PTY LTD (Migration)

PIZZA HOUSE (NSW) PTY LTD (Migration) [2018] AATA 630 (1 March 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Pizza House (NSW) Pty Ltd
CASE NUMBER:  1718585
DIBP REFERENCE(S):  BCC2017/2308954
MEMBER:Katie Malyon
DATE:1 March 2018
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision under review to refuse the nomination.

Statement made on 01 March 2018 at 10:32 am

CATCHWORDS
Migration – Employer Nomination – Nominated position – Café or Restaurant Manager – Failed to provide employment contract
LEGISLATION
Migration Act 1958, ss 359(2), 359C, 360(3), 363, 363A
Migration Regulations 1994, r 5.19
CASES
Hasran v MIAC [2010] FCAFC 40
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 9 August 2017 to reject the application by Pizza House (NSW) Pty Ltd (the Company) for approval of a nomination of the position of Café or Restaurant Manager made under r.5.19 of the Migration Regulations 1994 (the Regulations).
The Company applied for approval on 29 June 2017. The requirements for approval of the nomination of a position are found in r.5.19 of the Regulations which contains 2 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 the Company’s nomination did not satisfy r.5.19(4)(d)(i) of the Regulations because the Company did not provide an employment contract to demonstrate that the nominee will be employed on a full-time basis in the position for at least 2 years.
To enable the Tribunal to assess whether the Company meets all the requirements for approval of the nomination, on 13 February 2018 the Tribunal wrote to the Company pursuant to s.359(2) of the Act and invited the Company to provide documentation to the Tribunal including a copy of the proposed contract of employment with the nominee and a detailed position description.
The Tribunal’s invitation letter was sent to the address provided by the representative assisting the Company with the review. The Company was advised that, if the information was not provided in writing by 27 February 2018 or if the Company has not made a request for an extension of time in which to provide the information, the Tribunal may make a decision on the review without taking further steps to obtain the information and, further, the Company would lose any entitlement it might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.
The Company has not provided the information within the prescribed period and no extension has been sought, or granted. In these circumstances, s.359C of the Act applies and, pursuant to s.360(3) of the Act, the Company 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 the applicant to appear: Hasran v MIAC [2010] FCAFC 40.
The Tribunal has considered whether this is an appropriate case for it to adjourn the review under s.363(1)(b) of the Act to allow the Company additional time in which to provide evidence to support the review application. In this regard, the Tribunal has considered whether, in the circumstances of this case, evidence that the Company meets all of the requirements of r.5.19(4) of the Regulations is likely to be forthcoming, whether the Company has had a fair opportunity to provide the relevant information or documents already, and the significance of the information or documents to the Company.
As noted above, on 9 August 2017 the delegate refused the nomination made by the Company, essentially because it did not provide an employment contract to confirm that the nominee will be employed on a full-time basis in the position for at least 2 years. A copy of the delegate’s decision was provided to the Tribunal when the review application was lodged. The Tribunal wrote to the Company under s.359(2) of the Act inviting the Company to provide information demonstrating that the nomination meets all the requirements of the criteria in r.5.19(4) of the Regulations. The Company has failed to provide any of the requested information within the prescribed period set for this purpose, and nor has any request been received to extend the time to provide requested documentation.
In the circumstances, the Tribunal considers the Company has had sufficient time in which to address the issue arising on review. Accordingly, the Tribunal has decided not to exercise its discretion under s.363(1)(b) of the Act to adjourn the review any further. The Tribunal has determined to make a decision on the review without taking any further action to obtain the information in accordance with s.359C of the Act. In passing, the Tribunal notes that the Company is not prevented from lodging a new nomination application with the Department, if it so desires.
For the following reasons, the Tribunal has decided to affirm the decision under review to refuse the nomination.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the Company meets the requirements for approval of the nomination under the Direct Entry nomination stream set out in r.5.19(4) of the Regulations, which is extracted in the Attachment to this decision. For the nomination to be approved all of the requirements must be met.
The future employment of the visa holder: r.5.19(4)(d)
Regulation 5.19(4)(d) requires that the nominee will be employed on a full-time basis for at least 2 years on terms that do not expressly preclude the possibility of an extension.
As noted above, the delegate’s decision states that the Company failed to provide a copy of the nominee’s contract of employment to demonstrate that the Company proposes to employ the nominee on a full-time basis for the minimum period of 2 years.
The Tribunal wrote to the Company under s.359(2) of the Act on 13 February 2018 inviting it to provide information in writing to demonstrate that the Company meets the requirements of the criteria in r.5.19(4) of the Regulations, including r.5.19(4)(d) of the Regulations. The Company has failed to provide requested documentation or seek an extension of time to provide the documentation. In the circumstances, the Tribunal does not have before it a copy of the nominee’s proposed contract of employment.
Based on evidence before the Tribunal, the Tribunal is not satisfied that the Company has demonstrated it will employ the nominee on a full-time basis in the position of Cafe or Restaurant Manager for at least 2 years. In the circumstances, the Company does not meet the requirements of r.5.19(4)(d)(i) of the Regulations.
Accordingly, the requirement in r.5.19(4)(d) of the Regulations is not met.
For the above reasons the Tribunal is not satisfied that the Company meets the requirements of r.5.19(4) of the Regulations. The Company has not sought to satisfy the criteria in Temporary Residence Transition stream and, as such, has not met the requirements in r.5.19(3) of the Regulations. Accordingly, the nomination of the position cannot be approved. Therefore, the Tribunal must affirm the decision under review.
DECISION
The Tribunal affirms the decision under review to refuse the nomination.
Katie Malyon

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 Company; 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 Company 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 Company, 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 Company 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

[2018] AATA 630

1 March 2018

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Appeal