QIAM PTY LTD (Migration)

QIAM PTY LTD (Migration) [2021] AATA 1772 (16 April 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  QIAM PTY LTD
CASE NUMBER:  1821459
HOME AFFAIRS REFERENCE(S):          BCC2016/4036126
MEMBER:Alan McMurran
DATE:16 April 2021
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision under review to refuse the nomination.

Statement made on 16 April 2021 at 2:14pm

CATCHWORDS
MIGRATION – Employer Nomination – approval of nominated position – Direct Entry Nomination – Chef – identification of need – no response to s.359(2) invitation – active and lawful operation – no updated and current information – registered trading name – website address – term of employment – genuine need – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 359C, 360, 363A
Migration Regulations 1994 (Cth), r 5.19

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW
The nomination

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 20 July 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).
The applicant applied for approval on 30 November 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).
The position nominated
The applicant is a registered corporation in Western Australia, and the application states that it operates a restaurant business trading as “Village Spice Cuisine” from premises in the Perth suburb of Bibra Lake.
In this case, the applicant has applied for approval of a nomination, seeking to satisfy the criteria in the Direct Entry nomination stream.
The nominee is a 35-year-old citizen of Pakistan, Irfan Abbas (“the nominee”), who has been nominated for a position in the applicant’s business as a Chef (ANZSCO 351311). The nominee has made application for a related Subclass 187 visa, under the regional sponsored nomination scheme.
Department decision
The delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19 (4) (a) (ii) of the Regulations, because the delegate was not satisfied that the nominated position had identified the responsibilities of a Chef, and that the position in fact may require tasks for a higher skill level occupation.
The delegate found in addition that there was not enough information to demonstrate the nominee would have overall responsibility for tasks such as organising food ordering, cost estimates and training staff, being tasks associated with the occupation.
The delegate concluded on the information provided that the applicant had not identified a need for a paid employee to work in the nominated position, considering the nature and scope of the business.
As a result, the application did not meet the requirements of r. 5.19 (4).
Tribunal process
On 24 July 2018, the applicant sought review of the decision in the Tribunal. The applicant lodged a copy of the Department decision with the application, but no further supporting information.
On 22 November 2019, in response to a request from the Tribunal, the applicant provided phone contact details as follows:
” Dear sir
My mobile number is [number redacted]
Please send me message if I can’t pickup your call thnx”
On 21 January 2021, the Tribunal sent a letter under section 359 (2) of the Act, inviting the applicant to provide information. The Tribunal letter included the following:
“In order for the nomination of a position to be approved, the Tribunal must be satisfied that all of the relevant criteria in r. 5.19 of the Regulations are met at the time of its decision. As the application for nomination was made under the direct entry nomination stream, the relevant criteria are in rr. 5.19 (2) and (4) of the Regulations.
The Tribunal now requires updated and current information addressing these criteria. Accordingly, and without limiting the information that may be given, you or another person authorised by the applicant are invited to give the following information in writing. We have given examples of the type of information you could provide”.
The Tribunal’s letter set out clearly the information sought relevant to rr 5.19 (2) and (4). That included a request for the applicant to provide lodged tax returns for at least the previous 2 financial years (2019-2020), Business Activity Statements, and financial evidence for at least the most recent 2 financial years. This evidence is relevant to meet the criteria that the applicant is operating an active and lawful business in Australia.
The Tribunal letter further set out a request for information about the roles and duties of the nominated position and how they corresponded to the description in the ANZSCO guide.
The Tribunal letter provided that if the applicant was unable to respond by the due date, being 4 February 2021, then the applicant might seek an extension of time to provide any information. If no extension was sought or granted, the letter informed the applicant that if the information was not received by 4 February 2021, then the applicant would lose any entitlement it might otherwise have had under the Act to appear in the Tribunal to give evidence and present arguments, and that the Tribunal may then proceed to make a decision without taking any further action to obtain the information.
On 5 February 2021, the Tribunal sent a letter granting the applicant an extension of time to a request on 2 February 2021, for the provision of any responses by 2 March 2021. The Tribunal’s response was dispatched by email to the applicant’s nominated address.
The applicant engaged a migration agent who assisted and lodged the application with the Department.
The Tribunal did not receive a response to its request for updated information by the due date, or at all.
No hearing
S.360 (1) of the Act provides that the Tribunal must invite an applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.
S. 360(2) (c) provides that subsection (1) does not apply if the applicant is invited to give information in writing to the Tribunal under s.359 of the Act but does not give the information before the time for giving it has passed.
On 3 March 2021, time had passed for the applicant to respond to the Tribunal request. The applicant therefore lost the right to a hearing.[1]
[1] S.360(3)
On 22 March 2021, the review was allocated to a Tribunal member for determination.
As at the time of decision in April 2021, there has been no further communication from the applicant, or on its behalf, and the Tribunal has not taken any further action to obtain the applicant’s views on the information.
The application for review was lodged by a former director of the applicant, Mr Naeem Abbas, who was replaced as a director on 28 February 2019 and who provided postal contact details as the address for the restaurant premises at Bibra Lake south of Perth.
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 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.
The information before the Tribunal consists of the Department file produced electronically, with the information lodged with the application[2] , together with the Tribunal file.
[2] BCC2016/4036126
The information on the Department file in support of the application, together with the Department’s communications with the applicant, covers the period from 30 November 2016 to 20 July 2018.
Nominator is actively and lawfully operating a business in Australia: r.5.19(4)(b)
Regulation 5.19(4)(b) requires that the applicant is “actively, lawfully and directly” operating a business in Australia. Those terms are not specifically defined.
Company registration is required before the applicant can commence as a body corporate and starts from the day it is registered. The Tribunal finds on the available information[3] that the applicant is a currently registered corporation trading in Australia and is “lawful” within the meaning of the regulation, where that term is interpreted by the Tribunal as meaning operating in accordance with legislated requirements [4] for the specified entity.
[3] ASIC website and current ABN records
[4] Corporations Act, ss 117 - 119
The Tribunal must also be satisfied at the time of decision (April 2021) that there is sufficient objective material before it and evidence which supports a reasonable conclusion that the business is “actively” operating in Australia, and that the applicant directly operates the business the subject of the application.
The Tribunal does not have the benefit of any current information provided by the applicant in this matter. Nor was any information supplied to the Department in terms of the registration of the business name when the application was lodged. All information was provided in the name of the applicant corporation.
According to an ASIC historical extract checked by the Tribunal on 30 March 2021, the corporation commenced on 3 May 2016. The record discloses a change in ownership occurred on or about 26 March 2019 when the previous director ceased, and whose shares were transferred to the incoming director.
The Tribunal has considered information recorded as at the time of decision by the public regulator, ASIC.[5] That record does not disclose any registered trading name by the applicant of “Village Spice Cuisine”. A previous Internet address under that name has been taken down or removed, and which formerly described the business as “Indian and Halal takeaway restaurant”.
[5] >
The Tribunal was unable to locate a current website address for the restaurant, and the Tribunal’s internet inquiry notes “does not have a DNS entry”.[6] It is not possible to establish from the available information when the previous Internet address was first posted, ceased, or removed.
[6] >
The Tribunal finds that there is no current financial information that has been made available by the applicant, although requested by the Tribunal, and which may have provided information as to current trading activity.
Against this background, the Tribunal is asked to consider whether the applicant is “actively and directly” operating the business of the restaurant, “Village Spice Cuisine”.
At the time of application, it was purported to be “a new restaurant” [7] , and it is reasonable to conclude that current financial information such as Business Activity Statements and lodged taxation returns from the company, would have been made available as requested. Policy provides, and the Tribunal accepts, that such evidence is useful in determining the activity level of the applicant and its business operations[8] since commencement, and in determining whether the business is in fact “actively” operating under the direct control of the applicant.
[7] undated submission on "need for a paid employee" uploaded for the application
[8] PAM 3 – Nominations 5.19(4) considerations
The Tribunal finds in the available evidence that there is no other information of any other business activity by the applicant, other than the nominated business of the restaurant.
The Tribunal is not in a position to speculate as to whether or not the applicant is actively operating the business at the time of the Tribunal’s decision. The determination in that regard must rely upon objective factual findings by the Tribunal.
The Tribunal finds therefore that it is not satisfied on any available and objective current information either that the applicant is actively operating the business of the restaurant “Village Spice Cuisine”, or under its direct control, and considering the change in ownership in 2019 and the fact there is no current registered business name which connects the business trading name with the applicant.
Accordingly, the requirement in r.5.19(4)(b) is not met.
Term of employment of the visa holder: r.5.19(4)(d)
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.
The Tribunal finds that in the absence of any current information which was requested from the applicant but not provided, it is unable to determine the terms and conditions of the nominee’s employment at the time of decision, and whether or not those terms and conditions of employment are continuing, and whether or not an extension beyond 2 years is expressly excluded.
Similarly, as the Tribunal has found there is no currently available financial information to show the trading performance of the applicant from its commencement, the Tribunal cannot reasonably conclude that there is a reasonable likelihood that the nominee’s employment would continue for at least two years from the time of the issue of a visa.
Accordingly, the requirement in r.5.19(4)(d) is not met.
Tasks of the position, genuine need for the position and training requirements r.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 (see legislative instrument IMMI16/059),the occupation is applicable to the proposed employee in accordance with any specifications made in that instrument, and specified training requirements are met; or
·the position and nominator’s business is located in regional Australia, there is a genuine need for the paid position under the nominator’s direct control which 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.
In the present case, the nominated position is located in regional Australia.[9]
[9] RSMS-0816-017615
The Tribunal has found that there is no current information before it to demonstrate that the applicant is actively operating and directly controlling a restaurant business known as Village Spice Cuisine. It must follow that there is no information currently available and upon which the Tribunal might objectively determine that there is a genuine need for the paid position for the nominee, to work in the restaurant as a Chef and under the nominator’s direct control.
The Tribunal finds therefore on the available information at the time of decision that the application does not establish there is a genuine need to employ a paid employee to work in the position under the nominator’s direct control and the applicant does not meet subregulation 5.19(4)(h)(ii)(B).
If one of the requirements of r. 5.19(4)(h) is not met, the Tribunal is not required to consider any remaining requirements of that subregulation.
Summary
r.5.19(4)
The Tribunal finds on the available information that the applicant does not satisfy rr.5.19 (4)(b),5.19(4)(d) and 5.19(4)(h)(ii)(B).
Accordingly, the Tribunal finds that as the requirements of r.5.19(4)(h) are not met, the applicant does not meet r.5.19(4).
r.5.19(3)
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 the 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
The Tribunal affirms the decision under review to refuse the nomination.
Alan McMurran
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).

[2021] AATA 1772

16 April 2021

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