PKJS (Australia) Pty Ltd (Migration)
[2022] AATA 2068
•4 May 2022
PKJS (Australia) Pty Ltd (Migration) [2022] AATA 2068 (4 May 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT: PKJS (Australia) Pty Ltd
CASE NUMBER: 1902599
HOME AFFAIRS REFERENCE(S): BCC2017/1703976
MEMBER:Terrence Baxter
DATE:4 May 2022
PLACE OF DECISION: Brisbane
DECISION:The Tribunal affirms the decision under review to refuse the nomination.
Statement made on 04 May 2022 at 12:02pm
CATCHWORDS
MIGRATION – nomination – Direct Entry nomination stream – Tribunal is not satisfied that at the time of this decision the applicant is actively and lawfully operating a business in Australia – applicant failed to demonstrate that 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 – decision under review affirmedLEGISLATION
Migration Act 1958, ss 65, 245AR
Migration Regulations 1994, r 5.19STATEMENT 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 January 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, PKJS (Australia) Pty Ltd, applied for approval on 12 May 2017. The applicant nominated Ms Kamaljeet Kaur Bains (the nominee) in the position of Cook. 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)(C) of the Regulations because the delegate found that the applicant failed to demonstrate that 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.
The applicant lodged an application for review of the delegate’s decision with the Tribunal on 5 February 2019.
The sole Director of the applicant, Mrs Daljit Kaur Gill, appeared before the Tribunal by video conference on 13 April 2022 to give evidence and present arguments. The hearing was a joint hearing with the application for review of a decision to refuse the visa application of the nominee. The Tribunal also received oral evidence from the nominee by video conference.
The Tribunal exercised its discretion to hold the hearing by video conference. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by video conference, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by video conference.
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 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 hearing
The applicant produced to the Department of Immigration and Border Protection (now the Department of Home Affairs) (the Department) the following documents:
a.Correspondence and a Form 1404 advice from the Regional Certifying Body (RCB), Chamber of Commerce and Industry Qld Toowoomba, dated 21 February 2017.
b.Profit and loss statements for the 2016 to 2018 financial years.
c.A job description for the position.
d.Market salary research.
e.Receipts from TAFE NSW regarding Training Benchmark A contributions dated 28 April 2017, 23 August 2016 and 29 June 2017.
f.A current ABN Lookup form of the applicant.
g.An ASIC business name details extract.
h.Photos of the business premises.
i.An employment contract of the nominee dated 10 February 2017.
j.Advertisements for the position accompanied by receipts for the cost of advertising.
k.A submission from the applicant’s accountant dated 16 March 2017.
l.An ASIC Certificate of Registration of a Company.
m.A training plan.
n.A summary of domestic recruitment efforts dated 28 April 2017.
o.Evidence of the applicant’s tenancy of its business premises.
p.An undated submission from Mrs Gill.
q.Activity statements for the period from July 2016 to June 2018.
r.PAYG payment summaries of another employee for the 2016 and 2017 financial years.
s.PAYG payment summaries of the nominee for the 2016 and 2017 financial years.
t.PAYG payment summaries of various employees for the 2018 financial year.
u.Payroll employee summaries prepared by the applicant for the 2017 and 2018 financial years.
v.Company tax returns for the 2017 and 2018 financial years.
w.A financial report for the 2017 financial year.
x.A profit and loss account and balance sheet for the 2018 financial year.
y.Payroll employee summaries prepared by the applicant for the period from January 2017 to March 2018.
The applicant produced to the Tribunal the following documents:
a.A copy of the delegate’s decision.
b.An ASIC current and historical company extract.
c.An updated current ABN Lookup form of the applicant.
d.A historical ABN Lookup form of the applicant.
e.Company tax returns for the 2019 and 2020 financial years.
f.An ASIC company statement of the applicant.
g.A request for an auditable training plan form submitted to TAFE NSW by the applicant.
h.Copies of the receipts for Training Benchmark A contributions provided to the Department.
i.An organisational chart.
j.A copy of the correspondence and Form 1404 issued by the RCB provided to the Department.
k.Copies of the advertisements for the position and receipts provided to the Department.
l.A copy of the employment contract of the nominee provided to the Department.
m.A submission from Mrs Gill dated 2 March 2022.
n.Activity statements for the period from January 2019 to June 2021.
Evidence regarding the applicant’s operations
The applicant was represented in relation to the review until 29 May 2021 by a registered migration agent. On that date, the applicant notified the Tribunal that it withdrew the previous authorisation of the representative in the matter. At the hearing, Mrs Gill stated that she wished to proceed with the hearing without the applicant being represented.
In the nomination application, the applicant disclosed that the position was to be filled in a restaurant trading as Chillie Crackers at premises situated at Shop 4/2-4 Ann Maree Close, Maroochydore, Queensland.
At the hearing, Mrs Gill stated that the applicant had commenced its business in 2016 and that it had traded satisfactorily for almost two years. However, she said that the location of the business was in a substantially residential area and that it was difficult for customers to locate the business. She said the business should have been located adjacent to other shops.
Mrs Gill stated that from 2018 the applicant began to sustain losses, but that it had continued to operate. She said that Maroochydore relied heavily on the tourism industry and was then impacted by travel restrictions associated with the COVID-19 pandemic. She said that the applicant had tried to survive the setbacks but had been forced to close the business in September 2021. She said that the nominee had been employed by the applicant until July 2021.
Mrs Gill stated that the applicant had not traded since last September but might try to start a business in a different location, possibly closer to the Gold Coast, Queensland. She said that she resides in Box Hill, New South Wales and that it had been difficult for her to travel to Queensland to try to find an alternative business site. She said that the applicant had not yet commenced negotiations to obtain new premises.
The nominee was not present in the hearing when the evidence of Mrs Gill was given. She confirmed that she had worked for the applicant until July 2021. She stated that she had worked elsewhere as a Cook after that date.
Evidence presented after the hearing
After the hearing, the applicant produced to the Tribunal the following documents:
a.A company tax return for the 2021 financial year.
b.A financial report for the 2021 financial year.
c.Diplomas of Hospitality awarded to the nominee.
d.A Certificate III in Hospitality (Commercial Cookery) awarded to the nominee.
e.A Certificate IV in Commercial Cookery awarded to the nominee.
Nominator is actively and lawfully operating a business in Australia: reg 5.19(4)(b)
Regulation 5.19(4)(b) requires that the applicant is actively, lawfully and directly operating a business in Australia.
Mrs Gill was completely candid in giving her evidence at the hearing regarding the applicant’s business history. She stated that the company had been sustaining losses since 2018, that it had ceased operating its restaurant business in September 2021 and that it has not operated since that date. Mrs Gill said that the applicant ‘might’ try to start a business in a different location but confirmed that no negotiations to obtain alternative premises had been commenced.
The applicant did produce evidence from ASIC that its registration is current and from ABN Lookup that it has an active ABN and is registered for GST. However, Mrs Gill’s evidence was clear that the applicant has not actively operated a business since September 2021 and has no current plans to recommence business operations.
Mrs Gill claimed at the hearing that the applicant’s business losses were partly attributable to the COVID-19 pandemic. The Tribunal accepts that businesses around Australia have suffered severe impacts as a result of the pandemic. If the Tribunal had accepted that the pandemic was the sole reason for the decline in the applicant’s trading performance, the Tribunal would have more readily accepted that the applicant may be in a position to soon recommence operation of its restaurant business and adjourned the review to enable the applicant to provide evidence that it was again actively operating a business.
However, the principal reason given by Mrs Gill at the hearing for the applicant’s business losses was the inappropriate location of the business, resulting in losses having been incurred since 2018. This evidence is supported by the financial documents provided by the applicant which indicate that the applicant sustained a loss of $62,373 in the 2019 financial year (after having paid salary and wage expenses of $107,916), a loss of $4,416 in the 2020 financial year (after having paid salary and wage expenses of $55,000) and a loss of $1,151 in the 2021 financial year (after having paid salary and wage expenses of $48,988). The major loss in the 2019 financial year was incurred well before the effects of the pandemic would have begun to impact on the applicant’s business. Following careful consideration, the Tribunal has decided to proceed to make a decision on this review having regard to the documentary material before it and the evidence at the hearing.
Having regard to that evidence, the Tribunal is not satisfied that at the time of this decision the applicant is actively and lawfully operating a business in Australia.
Accordingly, the requirement in reg 5.19(4)(b) is not met.
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 the 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
The Tribunal affirms the decision under review to refuse the nomination.
Terrence Baxter
MemberATTACHMENT – 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 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).
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
Legal Concepts
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Judicial Review
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Procedural Fairness
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Natural Justice
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Statutory Construction
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