POCKET OF SPICE PTY LTD (Migration)

[2021] AATA 349

POCKET OF SPICE PTY LTD (Migration) [2021] AATA 349 (7 January 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  POCKET OF SPICE PTY LTD

CASE NUMBER:  1807913

HOME AFFAIRS REFERENCE(S):          BCC2016/2039907

MEMBER:De-Anne Kelly

DATE:7 January 2021

PLACE OF DECISION:  Brisbane

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

Statement made on 07 January 2021 at 3:56pm

CATCHWORDS

MIGRATION – approval of a nomination – Direct Entry nomination stream – position of Café or Restaurant Manager – filling the nominated position with an Australian permanent resident – sponsor sold business – nominee employed elsewhere – new sponsor offered - terms and conditions of employment – business de-registered – decision under review affirmed 

LEGISLATION

Migration Act 1958, s 359
Migration Regulations 1994, r 5.19

CASES

Singh v Minister for Immigration and Border Protection [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 7 March 2018 to reject the applicant’s application for approval of the nomination of a position in Australia under r.5.19 of the Migration Regulations 1994 (the Regulations).

2. The applicant applied for approval on 14 June 2016. The requirements for the approval of the nomination of a position in Australia are found in r.5.19 of the Regulations which contains two alternative streams: a Temporary Residence Transition nomination stream (r.5.19(3)) and a Direct Entry nomination stream (r.5.19(4)). If the application is made in accordance with r.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: r.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 r.5.19(4)(h)(ii)(B) and (C) of the Regulations because the delegate was not satisfied on the evidence before them that the applicant was unable to fill the nominated position with an Australian citizen or Australian permanent resident.

5. The applicant appeared before the Tribunal on 27 October 2020 to give evidence and present arguments. This was a dual hearing of both the employer nomination refusal review and the visa application refusal review. A second hearing was held on the 7 December 2020.

6. The applicant was represented in relation to the review by its registered migration agent, Dr Geety Nabi MARN: 1800424 of Eight Mile Plains, Qld 4113.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. 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 r.5.19(4), which is extracted in the attachment to this decision. For the nomination to be approved, all the requirements must be met. 5 January 2021.

9. The applicant, Pocket of Spice Pty Ltd ABN; 35 600 798 436 lodged a nomination application online on 14 June 2016 for a Regional Sponsored Migration Scheme - visa subclass 187 nomination application in the direct entry stream for the position of Café or Restaurant Manager ANZSCO 141111 on salary $54,000 in favour of Mr Jasmeet Singh. The business is located in Stanthorpe Qld 4380. The company was represented by Mr Sukhvinder Singh the owner of the business and the person who lodged the original employer nomination.

10. Initially Mr Sukhvinder Singh when contacted by the Tribunal to join the hearing was surprised and said he had to go to work and was unaware that a hearing was being held. It seemed the previous agent had not passed the hearing invitation to him. After some initial discussion with the nominee and registered migration agent; they contacted Mr Sukhvinder Singh and he joined the hearing by video conference.

11. Mr Sukhvinder Singh advised that he had sold the business including the ABN some two and half to three years ago. The lease had expired, and the landlord did not want to renew the lease and he had a marriage breakdown and just sold the business. The nominee worked there until the business was sold but for whatever reason the new owners did not continue with the nominee’s employment.

12. The nominee addressed the Tribunal and stated that he had not worked in the restaurant after it had changed hands and he has no prospects of working there in the future.

13. The nominee and registered migration agent submitted documents including a covering letter which stated that Pocket of Spice Pty Ltd was insolvent, and they offered the Tribunal a replacement sponsor namely Pathak Patil Family Trust ABN: 22 065 315 299. Financial documents, organisation chart, job description, an employment contract etc. for this replacement sponsor were provided.  

14. The Tribunal explained that it is not possible under regulation 5.19(3) or 5.19(4) to replace one sponsor, being a legal entity identified by ABN, with another sponsor with a different legal entity and different ABN such that both are linked to the same visa application. Each employer nomination is a ‘one off’ as decided by the courts in Singh v Minister for Immigration and Border Protection [2017] FCAFC 105 (14 July 2017) by Judges Jagot, Bromberg and Mortimer JJ where they stated;

    89. The structure of reg 5.19 contemplates (whether for sub-reg (3) or (4), although (4) is the relevant sub-regulation in this appeal) that the Minister is obliged to either accept or reject the nomination, depending on whether the matters in the sub-regulation are satisfied. Again, this contemplates an assessment by the Minister at a particular point in time. Thereafter, the only variation to this assessment contemplated by the scheme is review by (now) the Administrative Appeals Tribunal. On merits review there is an opportunity for an employer to adduce new or further material in order to satisfy the Tribunal that the nomination should be approved. It is in this way that the “time of decision” criterion can operate on merits review, as described by the Full Court in Singh  at [28], referring to Berenguel v Minister for Immigration and Citizenship[2010] HCA 8; 264 ALR 417 at [24]- [27]. This is the mechanism the scheme contemplates to alter an unsuccessful nomination. It does not contemplate that an employer can file repeated nomination applications in relation to the same visa application and the same visa applicant.
    90. The identification of this as a criterion for the validity of a visa application is important in the scheme. The appellant’s construction deprives the criterion of its intended operation as a criterion of validity because it contemplates further nominations can be filed and can subsequently satisfy cl 187.233(1). An examination of the nature and range of matters set out in reg 5.19 discloses an intention that only very particular positions of employment, with a specified set of attributes, which are to be verified through the mechanism of a ministerial approval of an employer nomination made at the time of application, are intended to allow a visa applicant to secure a visa of this kind. The scheme intends it to be a “once off” process, so that the visa application is considered against a specific employer nomination and a specific approval of that nomination by the Minister (or his delegate).

    Section 359AA of the Act

15. At the commencement of the two hearings, the Tribunal explained that it may put information to the applicant, under s.359AA of the Act, that would be the reason, or a part of the reason, for affirming the decision that is under review and that it would explain why this information was relevant to the decision and how it may be relied upon in reaching a decision. The Tribunal also advised that the applicant would be given an opportunity to respond to this information in one of three ways: they could request an adjournment and the hearing could be stopped for 15 or 20 minutes or whatever period of time they wished and they could seek advice from the registered migration agent; the applicant could make a written submission within 14 days or an extended period of time if it requested an extension; or they could respond in the hearing. If they responded in the hearing, it would not prevent them from making a written submission within 14 days or a longer period if they requested an extension of time.

16. Section 359AA provides as follows:

    (a)   The Tribunal may orally give to the applicant clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and

    (b)   if the Tribunal does so—the Tribunal must:

    (i)ensure, as far as is reasonably practicable, that the applicant understands why the information is relevant to the review, and the consequences of the information being relied on in affirming the decision that is under review; and

    (ii)orally invite the applicant to comment on or respond to the information; and

    (iii)advise the applicant that he or she may seek additional time to comment on or respond to the information; and

    (iv)if the applicant seeks additional time to comment on or respond to the information—adjourn the review, if the Tribunal considers that the applicant reasonably needs additional time to comment on or respond to the information.

    Term of employment of the visa holder: r.5.19(4)(d)

17. Regulation 5.19(4)(d) requires the nominee to be employed in the nominated position for at least 2 years full time, and the terms and conditions of that employment do not expressly exclude the possibility of an extension.

18. The Tribunal believed it was reasonable to hold a second hearing and allow Mr Sukhvinder Singh to be heard further on the matter. At the second hearing Mr Sukhvinder Singh explained that the business was purchased complete with ABN by an individual. He believes the restaurant has since closed down.

19. The Tribunal put under s.359AA of the Act to Mr Sukhvinder Singh that since he stated the restaurant had closed down and there were no trading figures to evidence profitability, if the Tribunal considered this it may find that the employee (the nominee) will not be employed on a full-time basis in the position for at least two years and the application may not satisfy r.5.19(4)(d)(i).

20. The Tribunal gave Mr Sukhvinder Singh a further 14 days to respond to the concern or by 05 January 2021.

21. There was no further response or communication from the applicant and the Tribunal considers it is reasonable to make a decision on this case.

22. A search of the ASIC website shows that Pocket of Spice Pty Ltd was deregistered on the 6 December 2020 and its ABN was cancelled from 18 December 2020. This information was not available at the time of the first and second hearings.

23. Since Mr Sukhvinder Singh has advised that the restaurant was sold and has subsequently closed down; the registered migration agent in a letter dated 9 September 2020 stated that the applicant is insolvent and investigation shows the applicant has been deregistered by ASIC and its ABN cancelled, the Tribunal finds the employee (the nominee) will not be employed on a full-time basis in the position for at least two years. The applicant cannot satisfy r.5.19(4)(d)(i).

24. Accordingly, the requirement in r.5.19(4)(d) is not met.

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

    DECISION

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

    De-Anne Kelly
    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 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).