RAMONA PTY LTD ATF J AND R FAMILY TRUST (Migration)

RAMONA PTY LTD ATF J AND R FAMILY TRUST (Migration) [2017] AATA 2480 (8 November 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  RAMONA PTY LTD ATF J AND R FAMILY TRUST
CASE NUMBER:  1512552
DIBP REFERENCE(S):  BCC2015/2027931
MEMBER:Karen Synon
DATE:8 November 2017
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to approve the nomination.
Statement made on 08 November 2017 at 1:42pm

CATCHWORDS
Migration – Approval of nominated positions (employer nomination) – Subclass 457 (Temporary Work (Skilled)) – Genuine position – Café/Restaurant Manager – Decision on the papers – Insufficient evidence provided
LEGISLATION
Migration Act 1958, ss 140GB, 140GBA, 359(2)
Migration Regulations 1994, r 2.72, r 2.73

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 28 August 2015 to refuse to approve the applicant’s nomination under s.140GB of the Migration Act 1958 (the Act) and r.2.72 of the Migration Regulations 1994 (the Regulations).
The applicant applied for approval on 15 July 2015. A nomination of an occupation for a Subclass 457 visa is made under s.140GB of the Act and r.2.73 of the Regulations. Regulations 2.72(3) to (12) prescribe the criteria that must be satisfied for the Minister to approve a nomination by a person. These criteria are extracted in the attachment to this decision. For nomination applications made from 23 November 2013, additional criteria are specified in s.140GBA.
The delegate decided not to approve the nomination on the basis that the applicant did not satisfy r.2.72(10)(f) because she was not satisfied that the nominated occupation was genuine.
The applicant applied for review of the primary decision on 14 September 2015 and provided a copy of the department’s decision.
The applicant was represented in relation to the review by its registered migration agent.
On 14 February 2017 the review applicant (‘the applicant’) was invited to attend a Callover on 2 March 2017. The applicant did not attend the Callover on 2 March 2017 however he was represented by a registered migration agent. It was explained that the purpose of the Callover was to establish whether the case was ready to be listed for a hearing and type of issues that would be discussed. The migration agent was advised that a s.359(2) would shortly be issued and that if the review applicant fails to provide the information within the specified time period in response to the notice – the review applicant loses the right to have a hearing and so no hearing will be held, and the Tribunal will make a decision on the information before it.
On 24 March 2017 the Tribunal wrote to the applicant, via his registered migration agent and authorised representative, in accordance with s.359(2) of the Act, inviting the following information in writing:
Information that demonstrates that RAMONA PTY LTD ATF J AND R FAMILY TRUST meets all of the requirements of the criteria in regulation 2.27 of the Migration Regulations 1994 at the time of the Tribunal’s decision.
It was emphasised the ‘the Tribunal must consider whether RAMONA PTY LTD ATF J AND R FAMILY TRUST meets all of the relevant criteria in regulation 2.72 at the time the Tribunal makes a decision’. On 7 April 2017 a response to the Tribunal’s invitation was received.
On 12 April 2017 a hearing invitation was issued inviting the applicant to a hearing ‘to give evidence and presents arguments relating to the issues arising in relation to the decision under review’ on 14 June 2017.
On 13 June 2017, in a telephone conversation with a tribunal officer, the applicant’s authorised representative and registered migration agent relevantly advised that he had spoken with the applicant who indicated he would not be attending the hearing. The Tribunal officer explained that if the applicant failed to appear at the hearing, the Member may dismiss the case or make a decision on the documents before the Tribunal. The applicant’s representative was advised that a hearing is usually scheduled when the Member is not satisfied with the evidence before it. The representative said the applicant did not want to withdraw the case but rather have the Member make a decision on the documents before her. On the same day the applicant’s representative emailed the Tribunal relevantly advising:
[T]he applicant (sic) not attending the hearing scheduled tomorrow 14 June 2017. I write to notify the member of this and kindly request this matter to be dealt with in lights (sic) of the information previously provided in support of this review.
As the applicant did not appear before the Tribunal at the time and place he was scheduled to appear, the Tribunal has proceeded to decision based on the evidence before it.
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 the present case is whether the applicant meets the criteria for approval of the nomination. The Tribunal must approve the nomination if the applicable requirements in r.2.72 and, for nomination applications made from 23 November 2013, s.140GBA have been met: s.140GB(2).
Position must be genuine
Regulation 2.72(10)(f) requires that the position associated with the nominated occupation is genuine.
The delegate refused the nomination as there was insufficient evidence before her to support a second full time Café/Restaurant Manager was required within the business.
The Tribunal has considered all the information available to it but does not consider it to be sufficient to satisfy the Tribunal that the position is genuine. While noting that submissions were provided to the Tribunal before the Callover and in response to the invitation issued in accordance with s.359(2), all the submissions made that relate to the Tribunal’s consideration of the genuineness of the position are considerably out-dated. For example, a document titled ‘Genuine Position Report –business profile and how the position being nominated is relevant to the nature of the business and its day to day operational activities‘ dated 14 July 2015 was provided to the department and the same document (dated 14 July 2015) was twice provided to the Tribunal. Another document provided to the Tribunal in response to its s.369(2) invitation is titled ‘Business Expansion Plan’ and dated 9 September 2014, making it now over 3 years old. Further, the same organisational chart provided to the Tribunal in 2017 was provided to the department in 2015. This organisational chart includes both positions and the staff filling these positions (or proposed to fill these positions) including the nominee’s name even though the evidence before the Tribunal is that the nominee is no longer working for the applicant.
A submission titled ‘MRT Submission’ but undated states, in relation to 2.272(10)(f),
The applicant confirms that there is a continuing need for a Restaurant Manager at the applicant’s business. There has been significant growth at the nominating business which is reflected by an increase in turnover in the last financial years…as shown in the Business Growth Report, in spite of increased turnover, the payroll of the business is less than previous financial years. For this reason the business requires additional staff to discharge duties at the level of Restaurant Manager.
The submitted Genuine Position Report and Director statement were referred to in support of this assertion but, as already noted, the Genuine Position Report is dated September 2015 and the Director statement is undated but an identical copy was provided to the department at least prior to the nomination being refused on 28 August 2015. Further, the Business Growth Plan which is advanced in support for the continuing need for a Restaurant Manager is dated 9 September 2014. In sum all of the submissions and documents provided in support of why the nominated occupation is genuine are substantially out of date. The Tribunal clearly advised the applicant via its representative at both the Callover and in its invitation issued under s.359(2) that the criteria in regulation 2.72 must be satisfied at the time of the Tribunal’s decision however the applicant has not provided to the Tribunal any recent information about the need for the position or the genuineness of the position, such as information about the duties of the position and how the position fits within the size and nature of the business.
In any case, there does not appear to be any logic supporting the argument advanced that despite increased turnover, the payroll of the business is less than previous financial years and for this reason the business requires additional staff to discharge duties at the level of Restaurant Manager. This statement was made with no reference to how increased turnover impacts the various area of the restaurant particularly the kitchen and wait staff and increased turnover does not, of itself and without reference to the whole operations of the business, satisfy the Tribunal that an additional Restaurant Manager is necessary.
The Tribunal notes that the only current information provided to it is a letter dated 6 April 2017 from ‘dfk benjamin king money’ which acts as accountants for the applicant and who detail the turnover to 30 June 2016. Dfk benjamin king money opine that “we predict that the turnover and expenditure on wages for FY 2017/2017 would be either (sic) similar” and that “it is our opinion that Ramona Pty Ltd AFT J & R Family Trust has the financial viability to increase and/or maintain the number of employees as required for the business” and that “we support Ramona Pty Ltd ATF J & R Family Trust’s nomination application to employ a Restaurant Manager”.
The Tribunal has considered this information however that fact that the last year’s turnover and expenditure on wages would be similar to the previous year’s turnover and expenditure on wages does not in any way satisfy the Tribunal that the nominated position is genuine.
As very little current, relevant information has been provided to the Tribunal and because the applicant declined the Tribunal’s invitation to appear before it to give evidence and arguments, the Tribunal was not able to take oral evidence from it regarding the genuineness of the position or why the applicant believes the position associated with the nominated occupation is genuine. Therefore the Tribunal only has before it very limited current information and, in the absence of being able to take oral evidence, the Tribunal does not consider the limited current information before it to be sufficient to satisfy the Tribunal that the position is genuine.
At the time of decision, the Tribunal is not satisfied that there is sufficient recent evidence about the nature of the position or the operations of the applicant. On the limited current evidence before it, the Tribunal is not satisfied that the position associated with the nominated occupation is genuine.
For these reasons the requirements of r.2.72(10)(f) are not met.
The Tribunal must approve the nomination if all of the applicable requirements in r.2.72 have been met: s.140GB(2). The Tribunal has found that the applicant does not meet r.2.72(10)(f). As the provisions of r.2.72 are cumulative and the applicant is required to meet all relevant subparagraphs, it follows that it is not necessary for the Tribunal consider all of the prescribed the criteria of r.2.72
For the reasons given above, the Tribunal is not satisfied that the applicant meets the applicable criteria for the nomination to be approved. Accordingly, the decision under review must be affirmed.
DECISION
The Tribunal affirms the decision not to approve the nomination.
Karen Synon
Member

ATTACHMENT - EXTRACTS FROM THE MIGRATION REGULATIONS 1994
2.72 Criteria for approval of nomination — Subclass 457…
(1)This regulation applies to a person who is:
(a)a standard business sponsor; or
(b)a party to a work agreement (other than a Minister);
who, under paragraph 140GB (1) (b) of the Act, has nominated an occupation in relation to a holder of, or an applicant or a proposed applicant for, a [Subclass 457 visa].
(2)For subsection 140GB (2) of the Act, the criteria that must be satisfied for the Minister to approve a nomination by a person are set out in subregulations (3) to (12).
(3)The Minister is satisfied that the person has made the nomination in accordance with the process set out in regulation 2.73.
(4)The Minister is satisfied that the person is:
(a)a standard business sponsor; or
(b)a party to a work agreement (other than a Minister).
(5)The Minister is satisfied that the person has identified in the nomination the visa holder, or the applicant or proposed applicant for the visa, who will work in the nominated occupation.
(6)If the person identifies a holder of a [Subclass 457 visa] (the visa holder) for subregulation (5), the Minister is satisfied that the person:
(a)has listed on the nomination each other holder of a visa of that kind who was granted the visa on the basis of having the necessary relationship with the visa holder as mentioned in clause 457.321 of Schedule 2; and
(b)if the Minister requires the visa holder to demonstrate that he or she has the skills necessary to perform the occupation — the visa holder demonstrates that he or she has those skills in the manner specified by the Minister.
(7)For paragraph (6) (a), the Minister may disregard the fact that 1 or more persons required to be listed on the nomination are not listed, if the Minister is satisfied it is reasonable in the circumstances to do so.
(7A)In addition to subregulation (6):
(a)if:
(i)       the person identifies a holder of a [Subclass 457 visa] (the visa holder) for subregulation (5); and
(ii)      the [Subclass 457 visa] was granted after the Minister had waived the requirements of paragraph 4006A (1) (c) of Schedule 4 on the basis of a written undertaking made by the current sponsor of the visa holder (as set out in subclause 4006A (2) of that Schedule);
the Minister is satisfied that the person has provided, in writing, an undertaking that is equivalent to the undertaking made by the current sponsor of the visa holder; and
(b)if:
(i)       the person identifies a holder of a [Subclass 457 visa] (the visa holder) for subregulation (5); and
(ii)      the person has listed on the nomination a person described in paragraph (6) (a); and
(iii)     the [Subclass 457 visa] was granted to the person described in paragraph (6) (a) after the Minister had waived the requirements of paragraph 4006A (1) (c) of Schedule 4 on the basis of a written undertaking made by the current sponsor of the visa holder (as set out in subclause 4006A (2) of that Schedule);
the Minister is satisfied that the person has provided, in writing, an undertaking that is equivalent to the undertaking made by the current sponsor of the visa holder.
(8)If the nomination was made before 1 July 2010 — the Minister is satisfied that the person has provided the following information as part of the nomination:
(a)if there is a 6‑digit ASCO code for the nominated occupation — the 6-digit ASCO code;
(b)if there is no 6-digit ASCO code for the occupation, and the person is a standard business sponsor — the name of the occupation as it appears in the instrument in writing made for the purposes of paragraph (10) (a);
(c)if there is no 6-digit ASCO code for the occupation and the person is a party to a work agreement — the name of the occupation as it appears in the work agreement;
(d)the location or locations at which the nominated occupation is to be carried out.
(8A)If the nomination is made on or after 1 July 2010 – the Minister is satisfied that the person has provided the following information as part of the nomination:
(a)if there is a 6-digit ANZSCO code for the nominated occupation - the name of the occupation and the corresponding 6-digit ANZSCO code;
(b)if:
(i)       there is no 6-digit ANZSCO code for the nominated occupation; and
(ii)      the person is a standard business sponsor;
the name of the occupation and the corresponding 6-digit code as they are specified in the instrument in writing made for paragraph (10)(aa);
(c)if:
(i)       there is no 6-digit ANZSCO code for the nominated occupation; and
(ii)      the person is a party to a work agreement;
the name of the occupation and the corresponding 6-digit code (if any) as they are specified in the work agreement;
(d)the location or locations at which the nominated occupation is to be carried out.
(9)The Minister is satisfied that either:
(a)there is no adverse information known to Immigration about the person or a person associated with the person; or
(b)it is reasonable to disregard any adverse information known to Immigration about the person or a person associated with the person.
(10)If the person is a standard business sponsor — the Minister is satisfied that:
(a)if the nomination was made before 1 July 2010 - the nominated occupation corresponds to an occupation specified by the Minister in an instrument in writing for this paragraph; and
(aa)if the nomination is made on or after 1 July 2010 – the nominated occupation and its corresponding 6-digit code correspond to an occupation and its corresponding 6-digit code specified by the Minister in an instrument in writing for this paragraph and the occupation is applicable to the person identified in the nomination in accordance with the specification of the occupation; and
(b)if required by the instrument mentioned in paragraph (a) or (aa) — the nomination of an occupation mentioned in the instrument is supported, in writing to the Minister, by an organisation specified by the Minister in an instrument in writing for this paragraph; and
(c)the terms and conditions of employment of the person identified in the nomination 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 at the same location; and
(cc)the base rate of pay, under the terms and conditions of employment mentioned in paragraph (c), that:
(i)       are provided; or
(ii)      would be provided;
to an Australian citizen or an Australian permanent resident, will be greater than the temporary skilled migration income threshold specified by the Minister in an instrument in writing for this paragraph; and
(d)if the nomination was made before 1 July 2010 - the person has certified as part of the nomination, in writing, that:
(i)       the tasks of the position include a significant majority of the tasks of:
(A)the nominated occupation listed in the ASCO; or
(B)the nominated occupation specified in an instrument in writing for paragraph (a); and
(ii)      if the person is lawfully operating a business outside Australia but does not lawfully operate a business in Australia:
(A)the nominated occupation is a position in the business of the standard business sponsor; or
(B)the nominated occupation is an occupation specified by the Minister in an instrument in writing for this sub-paragraph; and
(iii)     if the person lawfully operates a business in Australia:
(A)the nominated occupation is a position with a business, or an associated entity, of the person; or
(B)the nominated occupation is an occupation specified by the Minister in an instrument in writing for this sub-paragraph; and
(iv)     the qualifications and experience of the visa holder, or the applicant or proposed applicant for the visa, identified in relation to the nominated occupation are commensurate with the qualifications and experience specified:
(A)for the occupation in the ASCO; or
(B)if there is no ASCO code for the nominated occupation — for the occupation in the instrument in writing made for the purpose of paragraph (a); and
(e)if the nomination is made on or after 1 July 2010 – the person has certified as part of the nomination, in writing, that:
(i)       the tasks of the position include a significant majority of the tasks of:
(A)the nominated occupation listed in the ANZSCO; or
(B)the nominated occupation specified in an instrument in writing for paragraph (aa); and
(ii)      if the person is lawfully operating a business outside Australia but does not lawfully operate a business in Australia:
(A)the nominated occupation is a position in the business of the standard business sponsor; or
(B)the nominated occupation is an occupation specified by the Minister in an instrument in writing for this sub-subparagraph; and
(iii)     if the person lawfully operates a business in Australia:
(A)the nominated occupation is a position with a business, or an associated entity, of the person; or
(B)the nominated occupation is an occupation specified by the Minister in an instrument in writing for this sub-subparagraph; and
(iv)     the qualifications and experience of the visa holder, or the applicant or proposed applicant for the visa, identified in relation to the nominated occupation are commensurate with the qualifications and experience specified:
(A)for the occupation in the ANZSCO; or
(B)if there is no ANZSCO code for the nominated occupation - for the occupation in the instrument in writing made for paragraph (aa).
(f)the position associated with the nominated occupation is genuine; and
(g)if the person has identified in the nomination the holder of a Subclass 457 (Temporary Work (Skilled)) visa in relation to whom the requirements in subclause 457.223(6) of Schedule 2 were met—one of the following applies:
(i)       the requirements in subclause 457.223(6) of Schedule 2 continue to be met;
(ii)      if:
(A)the holder would be required to hold a licence, registration or membership that is mandatory to perform the occupation nominated in relation to the holder; and
(B)in order to obtain the licence, registration or membership, the holder would need to demonstrate that the holder has undertaken a language test specified by the Minister under subparagraph 457.223(4)(eb)(iv) of Schedule 2 and achieved a score that is better than the score specified for the test by the Minister under subparagraph 457.223(4)(eb)(v) of Schedule 2;
the holder demonstrates that he or she has proficiency in English of at least the standard required for the grant (however described) of the licence, registration or membership;
(iii)     the holder is an exempt applicant within the meaning of subclause 457.223(4) of Schedule 2;
(iv)     unless subparagraph (ii) applies—the holder:
(A)has undertaken a language test specified by the Minister under subparagraph 457.223(4)(eb)(iv) of Schedule 2; and
(B)achieved within the period specified by the Minister in a legislative instrument for this subparagraph, in a single attempt at the test, the score specified by the Minister under subparagraph 457.223(4)(eb)(v) of Schedule 2; and
(h)either:
(i)       the person will:
(A)engage the visa holder, the applicant for a visa or the proposed applicant for a Subclass 457(Temporary Work (Skilled)) visa only as an employee under a written contract of employment; and
(B)give a copy of that contract to the Minister; or
(ii)      the nominated occupation is an occupation specified by the Minister in an instrument in writing for sub-subparagraph (e)(iii)(B).
(10AA)For paragraphs (10) (c) and (cc), if no Australian citizen or Australian permanent resident performs equivalent work in the person’s workplace at the same location, the person must determine, using the method specified by the Minister in an instrument in writing for this subregulation:
(a)the terms and conditions of employment; and
(b)the base rate of pay, under the terms and conditions of employment;
that would be provided to an Australian citizen or an Australian permanent resident to perform equivalent work in the person’s workplace at the same location.
(10AB)Paragraphs (10) (c) and (cc) do not apply if the annual earnings of the person identified in the nomination are equal to or greater than the amount specified by the Minister in an instrument in writing for this subregulation.
(10A)The Minister may disregard the criterion in paragraph (10) (cc) for the purpose of subregulation (2) if:
(a)the base rate of pay will not be greater than the temporary skilled migration income threshold specified for that paragraph; and
(b)the annual earnings are equal to or greater than the temporary skilled migration income threshold; and
(c)the Minister considers it reasonable to do so.
(11)If the person is a party to a work agreement (other than a Minister) — the Minister is satisfied that:
(a)the nominated occupation is specified in the work agreement as an occupation that the person may nominate; and
(b)if the nomination was made before 1 July 2010 - the person has certified as part of the nomination, in writing, that:
(i)       the tasks of the position include a significant majority of the tasks of:
(A)if the nomination is made using an ASCO code - the nominated occupation listed in the ASCO; or
(B)if the nomination is not made using an ASCO code -the nominated occupation specified in the work agreement; and
(ii)      the qualifications and experience of the visa holder, or the applicant or proposed applicant for the visa, identified in relation to the nominated occupation are commensurate with the qualifications and experience specified for the occupation in the work agreement; and
(c)if the nomination is made on or after 1 July 2010 - the person has certified as part of the nomination, in writing, that:
(i)       the tasks of the position include a significant majority of the tasks of:
(A)if the nomination is made using an ANZSCO code - the nominated occupation listed in the ANZSCO; or
(B)if the nomination is not made using an ANZSCO code -the nominated occupation specified in the work agreement; and
(ii)      the qualifications and experience of the visa holder, or the applicant or proposed applicant for the visa, identified in relation to the nominated occupation are commensurate with the qualifications and experience specified for the occupation in the work agreement.
(12)If the person is a party to a work agreement and the work agreement specifies requirements that must be met by the party to the work agreement — the Minister is satisfied that the requirements of the work agreement have been met.

[2017] AATA 2480

8 November 2017

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Appeal