Roylands Pty Ltd ATF The Ahern Family Trust (Migration)

[2021] AATA 5060

Roylands Pty Ltd ATF The Ahern Family Trust (Migration) [2021] AATA 5060 (31 August 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Roylands Pty Ltd ATF The Ahern Family Trust

CASE NUMBER:  1831776

HOME AFFAIRS REFERENCE(S):          BCC2017/2280161

MEMBER:Danielle Galvin

DATE:31 August 2021

PLACE OF DECISION:  Melbourne

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

Statement made on 31 August 2021 at 1:59pm

CATCHWORDS
MIGRATION – application for approval of nomination of position – direct entry nomination stream – need for position – no current information or supporting evidence provided for review – comparison of tasks of position and ANZSCO description – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 359C, 360(3), 363A
Migration Regulations 1994 (Cth), r 5.19(4)(h)

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 10 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, ROYLANDS PTY LTD applied for approval on 27 October 2017. 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, the nominee being Kin Kei Lam in the nominated position of Chef (ANZSCO 351311).

4. The delegate refused the application on the basis the applicant’s nomination did not satisfy reg 5.19(4)(a)(ii) of the Regulations because, based on the information before them, the applicant had not identified a need for the nominator to employ a paid employee to work in the position under the nominator’s direct control.

5. The delegate had access to the following material:

   ·The application made under the Regional Sponsored Migration Scheme (visa subclass 187) stating that the nominator was the Trustee for the Ahern Family Trust. The application did not state if the company named in the application was acting as trustee. The position was located in Northern Territory and the proposed salary was $53,900;

   ·Bundle of BAS;

   ·employment contract dated 29 March 2017 signed by the nominee only;

   ·Form 1404;

   ·Draft financial statements for the Ahern Family Trust;

   ·Employment letter dated 15/1/18 from Roylands Pty Ltd to the nominee describing Roylands Pty Ltd AFT The Ahern Family Trust (ABN 51 851 107 144) t/a Daly Waters Hi-Way Inn;

   ·Payscale extract

6. The Tribunal received a submission from the newly appointed agent for the applicant on 5 March 2019. The submission stated that the applicant operates a one stop shop including a 24 hour fuel station, motel accommodation, with cabins and campervan grounds and a licensed restaurant and bar. It claimed that due to the business’s location it was difficult to locate staff and that the nominee is the longest serving chef in the business having been there for just shy of 2 years and qualified as a chef on 1 March 2019. The following documents were attached:

   ·Handwritten staff list listing 12 employees and bundle of photographs

7. On 5 June 2019 the agent sent an email to the Tribunal indicating that the review may be withdrawn. The review application was not withdrawn and on 8 July 2021 the Tribunal invited the applicant to provide updated and current information in support of the application by 22 July 2021.

8. The applicant did not provide the requested information within the prescribed period. In these circumstances s.359C of the Act applies and pursuant to s.360(3) the applicant is not entitled to appear before the Tribunal. The effect of s.363A is that if a review applicant has no entitlement to a hearing, the Tribunal has no power to permit them to appear. In these circumstances, the Tribunal has decided to proceed to make a decision.

9. Despite the submissions of the agent in 2019 the Tribunal has not received any current or updated material and is bound to review the material previously provided.

10. At the time of the Department’s decision the delegate found that the nomination had failed to identify a need for a paid employee to work in the position under the direct control of the nominator. The submissions made in 2019 acknowledged this and purported to provide some information in support with an indication that further evidence would be provided to the Tribunal. It was not and the next indication was that the matter would be withdrawn. It was not.

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

12. ANZSCO lists the tasks to be performed by a chef as:

    -planning menus, estimating food and labour costs, and ordering food supplies

    -monitoring quality of dishes at all stages of preparation and presentation

    -discussing food preparation issues with Managers, Dietitians and kitchen and waiting staff

    -Demonstrating techniques and advising on cooking procedures;

    -Preparing and cooking food;

    -Explaining and enforcing hygiene regulations;

    -May select and train staff;

    -May freeze and preserve foods

13. The information before the Tribunal does not demonstrate that the nominee is performing the tasks as listed by ANZSCO. Whilst the most recent agent states that the nominee had been working as a chef for a while in 2019, no evidence supporting this assertion was provided. A job description was not submitted and although the 2019 submissions indicate further supportive material would be forthcoming, it was not. The Tribunal finds that the applicant has not identified a need for the nominator to employ a paid employee to work in the position under the nominator’s direct control.

    CONSIDERATION OF CLAIMS AND EVIDENCE

14. 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.

    Tasks of the position, genuine need for the position and training requirements reg 5.19(4)(h)

15. 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 IMMI 17/080, the occupation is applicable to the proposed employee in accordance with any specifications made in that instrument, there is a genuine need for the nominee to be employed as a paid employee in the position, and certain specified training requirements are met; or

    ·the position and nominator’s business is located in regional Australia, there is a genuine need for the nominee to be employed as a paid employee in the position under the nominator’s direct control, the position 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.

16. Whilst the position is located in the Northern Territory and the required certification from the regional certifying body obtained, the applicant has not identified that there is a genuine need for the nominator to employ the person identified under reg 5.19(4)(a)(ii) as a paid employee, to work in the position under the nominator’s direct control.

17. Accordingly, the requirements of reg 5.19(4)(h) are not met.

18. 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

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

    Danielle Galvin
    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)       all 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;

    (AA)there is a genuine need for the nominator to employ the person identified under subparagraph (a)(ii), as a paid employee, to work in the position under the nominator’s direct control;

    (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 the person identified under subparagraph (a)(ii), as 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).