Rosepalm Holdings Pty Ltd (Migration)

[2021] AATA 4188

Rosepalm Holdings Pty Ltd (Migration) [2021] AATA 4188 (11 October 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Rosepalm Holdings Pty Ltd

CASE NUMBER:  1830570

HOME AFFAIRS REFERENCE(S):          BCC2016/4098931

MEMBER:George Hallwood

DATE:11 October 2021

PLACE OF DECISION:  Adelaide

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

Statement made on 11 October 2021 at 11:43am

CATCHWORDS

MIGRATION – approval of a nomination – Direct Entry nomination stream – occupation of cook – sponsor lawfully operating in Australia – business ceased – decision under review affirmed           

LEGISLATION

Migration Act 1958, ss 245, 359, 363
Migration Regulations 1994, r 5.19

CASES

Hasran v MIAC [2010] FCAFC 40

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 2 October 2018 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).

2. The applicant applied for approval on 5 December 2016. 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).

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 reg 5.19(4)(b) of the Regulations because they were not satisfied the applicant had demonstrated they were actively operating a business in Australia.

5. The applicant was represented in relation to the review.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. 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.

   Nominator is actively and lawfully operating a business in Australia: reg 5.19(4)(b)

8. Regulation 5.19(4)(b) requires that the applicant is actively, lawfully and directly operating a business in Australia.

9. On 2 October 2018 the Department of Home Affairs notified the applicant that their nomination application was refused explaining:

   Regulation 5.19(4)(b)(i) requires that the applicant is actively and lawfully operating a
   business in Australia.

   Information before the Department of Home Affairs (the Department) indicates the business, BAILEY BAR AND BISTRO located at 20 Reid Promenade, Joondalup, WA, 6027, has ceased to operate.

   On 26 July 2018, the applicant was sent an invitation to comment on this adverse information and was provided with 28 days in which to respond. To date, no response has been received to the invitation to comment by the Department.

10. On 18 October 2018 the applicant lodged an application for review with the Tribunal.

11. On 8 July 2021 the Tribunal wrote to the review applicant pursuant to s 359 of the Act, inviting the review applicant to provide updated and current information about how they meet the relevant criteria set out in rr.5.19(2) and (4) of the Regulations in writing.

12. The invitation was sent to the last address provided in connection with the review and advised that, if the information was not provided in writing by 22 July 2021, the Tribunal may make a decision on the review without taking further steps to obtain the information and the review applicant would lose any entitlement they might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

13. The review applicant has not provided the information within the prescribed period and no extension has been granted. In these circumstances, s 359C applies and pursuant to s 360(3) the review applicant 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 him or her to appear: Hasran v MIAC [2010] FCAFC 40. The Tribunal has decided to proceed to decision without taking further steps to obtain the information.

14. On 20 July 2021 a reply was received from the applicant’s registered migration agent, Ms Maria Giordani stating:

    Dear Member,

    The applicant wishes to withdraw this application - he has been granted a 491 visa and do not wish to proceed with the AAT review.

    Kindly refer to the Withdrawal Form attached.

    Kind Regards,

    Maria Cecilia Giordani

15. The withdrawal form provided by the applicant’s registered migration agent only related to the associated subclass 187 visa nominee, Mr Lucas Kobayashi Colombo.

16. The Tribunal contacted the registered migration agent on 26 July 2021 to inform them that the withdrawal they had sent related to the nominee and not the nomination applicant who was the subject of the s.359(2) invitation.

17. A further response was received from the applicant’s registered migration agent on 27 July 2021 stating:

    Dear Member,

    Thank you for your email.

    Kindly refer to the amended withdrawal form attached. The applicant wishes to withdraw this application.

    With the Nomination Application, Case Number 1830570 - Rosepalm Holdings Pty Ltd, the business is now closed and we do not have access to them.

    In case you need any further information, please do not hesitate to contact me.

    Kind Regards,

    Maria Cecelia Giordano

18. Records from the Australian Business Register indicate that although the ABN 80 397 735 818 associated with the above review applicant remains registered, it is either not registered for GST or that the GST registration has lapsed.

19. The business name of the applicant, and the business in which the person associated with the visa was to be employed, is no longer registered.

20. The Tribunal is not satisfied that the applicant, while still registered, is actively and lawfully operating a business in Australia, and directly operates that business.

21. Accordingly, the requirement in reg 5.19(4)(b) is not met.

    CONCLUDING PARAGRAPH

22. 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 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

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

    George Hallwood
    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).