Rupinder Kaur (Migration)

[2020] AATA 4620

Rupinder Kaur (Migration) [2020] AATA 4620 (24 August 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Rupinder Kaur
Mr Amarbir Singh

CASE NUMBER:  1811884

HOME AFFAIRS REFERENCE(S):          BCC2016/1417284

MEMBER:Karen Synon

DATE:24 August 2020

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decisions not to grant the applicants Employer Nomination (Permanent) (Class EN) visas.

Statement made on 24 August 2020 at 3:54pm

CATCHWORDS

MIGRATION – Employer Nomination (Permanent) (Class EN) Visa – Subclass 186 Employer Nomination Scheme – Temporary Residence Transition stream – position of Cook – position providing the applicant with the employment referred to – business premises not registered with local councils – approved sites for food preparation – nominating business deregistered – evidence of draft BAS statements – impact of COVID-19 Stage 4 restrictions in Melbourne – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 65, 359
Migration Regulations 1994, r 5.19; Schedule 2, cls 186.212, 186.233, 186.311

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 6 April 2018 to refuse to grant the applicants Employer Nomination (Permanent) (Class EN) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 11 April 2016.  At the time of application, Class EN contained one subclass: Subclass 186 (Employer Nomination Scheme).

3. The criteria for the grant of a Subclass 186 visa are set out in Part 186 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The primary criteria must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria. Applicants seeking to satisfy the primary criteria must meet the ‘Common criteria’, as well as the criteria of one of three alternative visa streams: the Temporary Residence Transition stream, the Direct Entry stream, or the Labour Agreement stream.

4. In the present case, the first named applicant (the applicant) is seeking the visa in the Temporary Residence Transition stream, to work in the nominated position of ‘cook’.

5. The delegate refused to grant the visas because the applicant did not meet cl.186.212 of Schedule 2 to the Regulations because she was not satisfied the position to which the visa application related would provide the applicant with the employment referred to in the application for approval.

6. The applicants applied for review of the primary decision on 26 April 2018 and provided a copy of the Department’s decision.

7. The applicant appeared before the Tribunal on 12 August 2020, via telephone from India, to give evidence and present arguments.  The applicant’s husband, the second named applicant, did not attend or participate in the hearing.  The Tribunal also received oral evidence from Harjinder Kaur, the applicant’s sponsor, via video.

8. The applicants were represented in relation to the review by their registered migration agent who was present throughout the hearing.

9. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The issue in the present case is cl.186.212.

    Employment will be provided

11. Clause 186.212 requires that the nominated position will provide the applicant with the employment referred to in the related nomination application.

12. Relevantly the primary decision records:

    On 11 April 2016, [the main applicant], lodged this visa application under Employer Nomination Scheme (subclass 186) for a grant, under temporary residence transition stream.

    The relevant nomination lodged by the sponsor, B. Deep. S. Pty Ltd, was approved on 02 March 2016.  The place of employment is at 45 Watton Street in Werribee, Victoria, which comes under Wyndham City Council's zone.

    On 17 November 2017, as part of this visa application's processing, a departmental officer conducted a phone interview with Wyndham City Council, Victoria.  Wyndham City Council confirmed the following:

    45 Watton Street Werribee Victoria has never been registered as a venue for food preparation for catering or any other type of sale of food/distribution/restaurant/cafe. It is only registered as a beauty salon.

    The council stated there are various regulatory requirements which the business must take prior to registration and operation as a food venue.

    Furthermore, the sponsor's ABN was not found in the council's database as ever being registered.

    On 02 March 2018, this information was sent to the visa applicant for comment and was given 28 calendar days to respond.  On 03 April 2018, an email was received from the representing migration agent, to request an extension of 14 days to provide supporting documents as they are awaiting on some documents from the visa applicant's sponsor.  On the same day, I sent a response to the migration agent, denying extension of extra 14 days and also advised him that I will be moving to final decision accordingly.

    Based on these findings, it appears your sponsor is not operating as a registered catering business from 45 Watton St Werribee, VIC as declared in their recent contact with the department…

    Regulation 186.212 stipulates that the position to which this visa application relates will provide the visa applicant the employment referred to, in the application for approval.  Based on the above outlined findings, regulation 186.212 is not met.

13. Relevantly on 15 June 2020 the Tribunal wrote to the Health Department of the City of Greater Dandenong requesting the following information:

    ·Information relating to the registration requirements for a catering company operating in the City of Greater Dandenong;

    ·Information about whether each business is required to hold a separate registration under the Food Act, where two separate business are operating from the same premises;

    ·Information relating to whether any businesses currently hold registration under the Food Act in relation to the premises at 13-15 Pultney St, Dandenong, and, if so, the details of the registration, including the details of relevant business or businesses and the period of validity;

    ·Information relating to whether B. Deep. S Pty Ltd currently holds or has ever been registered under the Food Act;

    In response on 26 June 2020 an officer from the City of Greater Dandenong advised:

    A catering company is required to be registered under the Food Act 1984 if they are operating within the City of Greater Dandenong.

    It is possible for individual businesses to hold separate registrations under the Food Act 1984 where they are operating from the same premises.

    The premises listed above is currently registered under the Food Act 1984 in the name of Brothers Australia Pty Ltd with the City of Greater Dandenong.

    Brothers Australia have held this registration since May 2018 and the registration is due for renewal on 31^st July 2020.

    Proprietor - Brothers Australia Pty Ltd ABN: 13611106748 Trading Name - Bothers Haveli

    Primary Contact - Jasmel Singh 0430-464-273

    Postal Address - 13-15 Pultney Street DANDENONG VIC  3175

    Council records indicate that B. Deep. S Pty Ltd has never held a registration under Food Act 1984 within the City of Greater Dandenong.

    Letters sent under s.359 of the Act and notification of a 375A Certificate and the responses before the hearing

    First letter

14. The first letter was sent in accordance with s.359(2) and with the principles of natural justice on 17 April 2020:

    This letter is in two sections.

    In the first section, I inform you about a certificate issued pursuant to s.375A of the Migration Act 1958 (the Act) which has been placed on the Department’s file.  The second section contains an invitation to provide information.

    Section One – The certificate issued in accordance with s.375A

    The Department file contains a certificate issued on 14 May 2018 in accordance with s.375A of the Act. A copy of this certificate is attached.

    The 375A certificate states that a delegate of the Minister has determined that s.375A applies to any statements or evidence contained in TRIM reference numbers: CLD2017/39121057 and OPD2018/57312 of file number BCC2016/1417284 would be contrary to the public interest because “it contains sensitive data which the department collects as part of assessment practise and should not be released to the client/public.”

    The subject matter of the Certificate relates to internal department processes that officers undertook to ultimately ascertain that there was no Wyndam City Council record of the location of 45 Watton Street, Werribee, being registered as a food handling site.

    The Tribunal has formed the view that the certificate is validly made.

    If you wish to make any submissions concerning the 375A certificate, including but not limited to its validity, please provide written submissions by 1 May 2020.

    Section two – Invitation to provide information

    You are invited to provide the following information in writing:

    Information to demonstrate that Rupinder Kaur will be performing the occupation of a Cook in the employment of B. DEEP. S PTY LTD at the location of 45 Watton Street, Werribee, a site which has local council registration as an approved venue for food preparation.

    The information should be received by 1 May 2020.

    Relevantly on 1 May the following response was received:

    DEEP. S PTY LTD’s BUSINESS STRUCTURE

    The business, B. Deep S Pty Ltd is the catering business and has been operating from the sub- leased premises arrangement.  The business hires the premises on sub-lease basis and use the commercial kitchen setup to prepare their food products.  The business hires their own staff to perform the duties and responsibilities in the kitchen.  Accordingly, [the applicant] has been working as full-time cook with business and preforming the role of cook.  The business used to have the sub-lease arrangement at 45 Watton Street Werribee, that at the time of active sub-lease was approved site for food preparation.  But since 1 July 2019, the business has entered into sublease agreement with Brothers Australia Pty for their site located at 13-15 Pultney Street, Dandenong, Vic 3175.  The current site of business operation is approved Food preparation site.  The registration Certificate from concerned council has been attached for your reference.  Moreover, the sub-lease agreement with the Brother Australia Pty Ltd has also been attached for your reference.

    The owner of the business resides in Springvale and find it convenient to run his business from the premises that is more easily accessible from his place.  Taking this into consideration, the director took the decision to move to this new location in 2019.  The business has been in continuance operation at the approved site for food preparation.  The photographs of the kitchen demonstrating the equipment and setup has been attached for your perusal.  It can be envisaged that the business has been in operation from the commercially equipped and approved kitchen set up.  Accordingly, it can be safely derived that the business operates from approved location of food preparation.

15. The second letter was sent in accordance with s.359(A) on 22 May 2020 inviting the applicants’ comments or response to the following particulars:

    ·Information from the Australian Securities & Investments Commission (ASIC) register shows that your nominator, B. Deep. S Pty Ltd was deregistered on 24 February 2019.  There is no evidence before the Tribunal that the company’s registration has been reinstated with ASIC since that time; and

    ·Information from the Australian Business Register shows that the Australian Business Number (ABN) 97 602 087 392 for the business name, B. Deep. S. Pty Ltd, was cancelled on 25 March 2019.

    This information is relevant to the review because cl.186.223(4) requires that the nominated position is still available to you at the time of decision.  If we rely on this information in making our decision, we may find that, since the nominator company is no longer registered and its business number has been cancelled, it is not able to employ you in the nominated position.  This suggests that the nominated position is no longer available and therefore, that you do not satisfy cl.186.223(4).  This would mean you do not satisfy a requirement for the grant of a Subclass 186 visa and we must affirm the decision that is currently under review.  Comments or a response were invited by 5 June 2020.

    Relevantly on 5 June 2020 the following response was received:

    As per your request for further information in regard to the ASIC register and ABR register. The Accountant of Deep S Pty Ltd has provided the letter stating that the company is running and ASIC got cancelled due to one missed payment. As per RG 83.10 of the Corporations Act 2001 (Cth), “When a company is reinstated it is taken to have continued in existence as if it had not been deregistered and is subject to all the requirements of the Corporations Act. The Accountant who is third party, has verified in his letter that the Company is active and running and it is only a missed payment that caused the ASIC to be cancelled. The process of reinstatement will take about 28 days. Accordingly, I would like to request you to provide the extension to the applicant to provide the active ASIC and ABR information in support of her application with AAT.

    Also provided was the following letter from Maulik Shah of Signage Accountant Pty Ltd dated 5 June 2020:

    We act as accountants for B.Deep.S Pty Ltd (ABN: 97 602 087 392).

    We confirm that the above company is actively trading.  We also confirm that the above company was deregistered with ASIC due to the non-payment of ASIC fees and is in the process of getting is registered.  We have applied with ASIC for registration of the above company, and this process is expected to be completed within 28 days.

    On 9 June the Tribunal granted an extension of time in which to respond until 19 June 2020 and on 19 June 2020 the following relevant response was received:

    In response to your email on 9 June 2020, as mentioned in previous email, the Registration process of the company is still in process and its pending with ASIC.  The accountant of the company has informed us that the application is still pending and the registration documents of the company will come in few days.  He further instructs us that it may take the time up to two weeks.  Please provide the extension of two weeks as it beyond the control of the applicant to provide the information before that.

    On 22 June 2020 the Tribunal relevantly responded:

    On 22 May 2020 we sent you an invitation to comment on or respond to information.

    On 5 June 2020 we received a request for an extension of time to provide the comments or response.

    On 9 June 2020 we granted an extension of time to comment on or respond to information.

    On 19 June 2020 we received a request for an extension of time to provide the comments or response.

    We have considered the request carefully but have decided not to grant an extension of time, as pursuant to s s.359B(4) only one extension to a 359 invitation can be granted by the Tribunal.

    Please note that your entitlements under the Migration Act 1958 to appear before us to give evidence and present arguments are reserved on the basis of the previous comments provided.

    The Tribunal, when scheduling a hearing, will be requesting that B. Deep. S. Pty Ltd attend and provide lodged BAS statements for the past four quarters to enable the Tribunal to assess whether the sponsor can provide the required 2 years employment. Please advise B. Deep. S. Pty Ltd of this request so the required financial evidence will be available when the hearing is scheduled.

    On 22 June 2020 the following further correspondence was received:

    In the letter attached the last date to provide the response is 19th June 2020 which has already been passed.  Can you please advise on that.  Also the company is been reinstated and it take a while as it has to go through the procedure and takes around 28 days.  As per our client it has happened because of missing ASIC renewal fees where business is trading effectively.  On behalf of client we agree to provide the financials documents required during the time of hearing if required.

16. The third letter was sent in accordance with s.359A on 29 June 2020 inviting the applicants’ comments or response to the following particulars:

    ·On 26 June 2020 the City of Greater Dandenong advised the Tribunal by email that:

    oA catering company is required to be registered under the Food Act 1984 if they are operating within the City of Greater Dandenong;

    oIt is possible for individual businesses to hold separate registrations under the Food Act 1984, where they are operating from the same premises;

    oThe premises at 13-15 Pulney Street Dandenong VIC 3175 is currently registered under the Food Act 1984 in the name of Brothers Australia Pty Ltd with the City of Greater Dandenong; and

    oCouncil records indicate that B. Deep. S Pty Ltd has never held a registration under Food Act 1984 within the City of Greater Dandenong.

    This information is relevant to the review because Regulation 186.212 requires that the position to which this visa application relates will provide you the employment referred to, in the nomination application.

    If we rely on this information in making our decision, we may find that your sponsor is not operating as a registered catering business from 13-15 Pulney Street, Dandenong.  As a result we may find that the position to which your visa application relates will not be able to provide you the employment as cook which was the employment referred to in the nomination application, and that, therefore, you do not meet the requirements of Regulation 186.212.  This would mean you do not satisfy a requirement for the grant of a Subclass 186 visa and we must affirm the decision that is currently under review.

    Comments or a response were invited in writing by 13 July 2020.

    Relevantly on 13 July 2020 the following relevant response was received:

    The concerns are raised in the correspondence from AAT regarding the B. Deep. S Pty Ltd having genuine food preparation site for its requirements of the catering business.  In this regard, our client wishes to submit the following response:

    B. Deep. S Pty Ltd has the sublease arrangement with Brothers Australia Pty Ltd for their commercial Food Preparation site at 13-15 Pultney Street, Dandenong 3175 Victoria. The sub lease arrangement includes the use of the commercial kitchen along with any registration required for the Food preparation from the respective council. As per requirements of the council, the premise is registered for the Food Preparation. The lessor was responsible for providing all the required registration for food preparation. The registration was required for Food Premises and it has been obtained by Brothers Australia Pty Ltd that makes the premise safe and fit for Food Preparation and conducting any activity related to that. All food business must comply with the Food Act 1984 and FSANZ food standards code. The food premises must be suitably constructed for the purpose of the intended food processes to help ensure the safety of the food.

    As required under the Food Act, the construction of your premises must comply with Standard 3.2.3 of the Food Standards Code and premises must be registered as per the requirements to conduct food preparation activities <

    There is no separate registration required if premise is appropriately registered with Council.  Accordingly, it can be safely derived that the business operates from approved location for food preparation.

17. With the hearing invitation sent on 27 July 2020 the Tribunal specified that it wished to take witness evidence from the sponsor, B. Seep. S. Pty Ltd.

1. On Friday 7 August 2020 the Tribunal received the following correspondence from the applicants’ representative:

   In response to your letter dated 27 July 2020 in regard to hearing invitation of [the applicant].  The Tribunal has requested lodged BAS for year 2020.  As it has been advised to the tribunal in previous correspondence that the Company got de-registered due to missed payment of ASIC annual fee.  The Accountant has advised that the process of reinstatement is in process and has provided the Reference Number of application in his letter attached.  The process is taking extra time than usual due to COVID-19 situation.  The Accountant further advised that without reinstatement of Company, the latest BAS cannot be lodged and final drafted BAS can be provided.  I would like to request you to advise that whether draft BAS can be sent in support of our claims in AAT Application or either the Hearing can be postponed to a suitable time so that lodged BAS for 2020 can be provided upon reinstatement of the company.  The letter of Accountant has been attached in the online portal that also states that the Company is actively trading as of 7 August 2020.

2. Also provided on 7 August 2020 was the following relevant letter from Harpreet Sandhu of ‘Expert Business & Accounting Services, dated 7 August 2020:

   We confirm that we act as accountants for B.Deep.S. Pty Ltd.  This is a new client with us.  The company got de-registered due to non-payment of annual ASIC fee.  We have started the process of reinstatement (Ref: 1-39362368475) with AISC and it will take up-to 28 days as per ASIC.  Till the time the reinstatement of company does not complete, we are unable to prepare the BAS.

   We can confirm that the company has been actively trading as of 7^th August 2020.

3. On Monday 10 August 2020, the Tribunal wrote to the applicants thus:

   I refer to your email of 7 August 2020 in response, please note that the Tribunal will accept all the lodged BAS statements for the two years up until 31 March 2020 and a sworn affidavit from the accountant as to the monthly sales and wages for each month from April 2020 to July 2020.  These must be received by midday Wednesday 12 August 2020.

4. The evening before the hearing draft (that is un-lodged) BAS statements were provided.  The periods covered, sales and wages are as follows:

   April – June 2018:   Sales: $60,812           Wages: $31,207

   July - September 2018:   Sales: $79,124           Wages: $37,874

   October – December 2018:                  Sales: $64,142           Wages: $30,138

   January - March 2019:       Sales: $56,299           Wages: $30,953

   April – June 2019:   Sales: $67,897           Wages: $26,753

   July - September 2019:   Sales: $73,061           Wages: $30,289

   October – December 2019:                  Sales: $58,241           Wages: $45,659

   January - March 2020:       Sales: $35,377           Wages: $26,450

   April – June 2020:                              Sales: $10,470           Wages: $2,560

5. In addition to the actual submissions (detailed above) in response to the Tribunal letters, the following documents were provided before the hearing:

   ·     Photos of kitchen;

   ·     Sub-lease of the kitchen portion of 13-15 Pultney St, Dandenong VIC 3175 dated 1 July 2019;

   · Certificate of Registration under the Food Act 1984 issued to Brothers Australia Pty Ltd 14 August 2019;

   ·     A letter dated 5 June 2020 from Maulik Shah of Signage Accountant Pty Ltd;

   ·     An email from migration agent dated 5 June 2020;

   ·     A letter dated 7 August 2020 from Harpreet Sandhu from Expert Business and Accounting Solutions; and

   ·     Draft Business Activity Statements for the period April 2018 to June 2020

6. On the morning of the hearing the representative wrote to the Tribunal thus:

   In pursuance to your email, I am attaching the Draft BAS for the business as it was informed to the tribunal in last email as well that as per Letter from Accountant attached, it is not possible to Lodge the BAS without the reinstatement of Company by ASIC.  It is also highlighted in the letter that Reinstatement process is taking the longer time than usual due to COVID-19 pandemic.  The applicant informs us that the business recently changed their Accountant as they are not satisfied with the services of previous accountant due to which they missed the ASIC deadline and cannot able to lodge the BAS of the business.  The newly appointed accountant has provided the letter confirming the reinstatement process and also without reinstatement the accountant cannot import the account into portal.  The accountant under the ethical obligation cannot do that.

   Further, in regard to Swear-in Statutory Declaration of Accountant, I would like to bring to bring to your notice that there is Stage 4 restrictions in Melbourne and as the State Government guidelines, the Accounting does not come under essential service activity.  Accordingly, the Accountant cannot come out of his home and also he does not feel safe to go out for getting the Statutory declaration verified.  Moreover, there are very limited options to get the Statutory Declaration certified during this pandemic situation, the authorised persons do not wish to meet any one due to risk of getting infected.  Therefore, it is not possible at the moment to provide the Declaration from the Accountant.  The Draft BAS of the business have been attached for your reference.

7. Ms Harjinder Kaur, the owner of the sponsor, B. Deep. S Pty Ltd gave evidence that she took over 100% ownership of the business from Daljinder Singh in 2016.  The business is very slow right now with COVID-19 and because the applicant is a very good cook for the business and her being away has affected it and she has had to employ other cooks.  The business is principally a catering business specialising in Indian cuisine; she has lots of clients and friends and month to month they do parties for a restaurant in Dandenong.  She also cooks.  Ms Harjinder Kaur started at the business in 2016 and was not involved before then.  She first came to know the applicant when she took over the business from Daljinder and the applicant worked for her from 2016 until she went overseas in 2019.

8. Asked why her company was deregistered, Ms Harjinder Kaur said her accountant did not inform her that the fees had not been paid.  When the Tribunal put to Harjinder Kaur that as the director of the business this was her legal responsibility, she said that she has family and health issues and then there was COVID-19.  The representative noted that the company could not lodge any business activity statements (BASs), when the company was unregistered.  The Tribunal noted that none of the draft BASs provided to it were lodged with the Australian Tax Office and this included BASs from April to June 2018 before the company was deregistered.  Harjinder Kaur said it had only recently come to her attention and she has not got a new accountant.  The Tribunal asked Harjinder Kaur if she understands it is her legal responsibility, as part of the nomination approval, to provide full-time employment to the applicant for two years.  She said yes, and she knows she has to pay her $53,900 and she can do this after COVID-19.  She said that due to heart issues the business was not running properly for a few months.

9. The Tribunal raised with Harjinder Kaur the issue which was the subject of the information put in the Tribunal’s 359A letter of 29 June 2020 which put the advice from the City of Greater Dandenong that a catering company is required to be registered under the Food Act1984 if they are operating within Council boundaries and Council records indicated that B. Deep. S Pty Ltd has never held a registration under Food Act 1984 within the City of Greater Dandenong. The Tribunal asked if she would like to make any further comment or submissions about this. Harjinder Kaur said that she subleases and the owner of the lease needs to be registered. The Tribunal said that advice from the City of Greater Dandenong is that all catering and food service businesses need to be registered.

10. Invited to make any further submissions Harjinder Kaur said the applicant is the best cook she knows and all her clients are missing her and she hopes she can come back soon.  The Tribunal asked the applicant if she would like it to ask any questions of Harjinder Kaur.  She said no but she is just grateful to her for everything.

11. The applicant gave evidence that she started work with the company in 2014 and was aware that the ownership changed in 2016.  She was granted a 457 visa to be employed with the business in 2014.  She worked for a time with Harjinder Kaur at 45 Watton Street, Werribee and then worked with her from July 2016 until 1 March 2019.  While she was on the 457 visa she thinks the business had five to seven employees but she was always in the kitchen and was the only full time worker.  She does not know how many other people worked for Harjinder Kaur because she was working 38 hours in the kitchen but there was a kitchen hand and casual staff when they were very busy.  The Tribunal then raised with the applicant the two issues it had put in its correspondence under s.359A firstly inviting the applicant to comment on the fact that the sponsor’s company has been deregistered.  She responded that this was her employer’s job and she could not answer this.  The Tribunal then raised with the applicant the issue that the business, B. Deep. S Pty Ltd, is not registered as required for a food services business with the City of Greater Dandenong.  The applicant again said she could not really answer as this is her employer’s responsibility.  She said her employer had answered all the Tribunal’s questions and she does not think she needs to answer and she respects Harjinder Kaur.

12. The applicant said she works very hard and is honest and her employer is very satisfied with her.  She left Australia in March 2019 because her mother-in-law was very sick but she is recovered now and the applicant is available to move back to Australia to work for her sponsor.  She is currently working as a cook part time in India and her husband works as a taxi driver.  She loves Australia and spent seven to eight years here.  She has lots of experience.  The last time she worked for Harjinder Kaur was early March 2019.  The applicant said she has suffered a lot and is stressed about her visa.

13. In order for the applicant to meet cl.186.212 the Tribunal must be satisfied that the nominated position of Cook will provide the applicant with the two years’ employment referred to in the nomination.  The Tribunal holds serious concerns about the sponsor’s capacity to do so.

14. Firstly, at the time of this decision, there is no evidence before the Tribunal that the sponsor’s company, B. Deep. S Pty Ltd, has been reinstated with ASIC or that it has been registered with an Australian business number (ABN)and thus can legally operate.  This is despite the Tribunal advising of this potentially adverse information on 22 May, over two months ago and the response on 5 June advising that the reinstatement process would take 28 days.  This is notwithstanding that the Tribunal was advised a second time, by a second accountant, on 7 August, that the process would (still) take 28 days.

15. Secondly the Tribunal has not been able to form an accurate view of the sponsor’s financial capacity to pay the applicant the contracted salary for two years as no BASs have been lodged since at least March 2018 as evidenced by the unlodged statements provided to the Tribunal the night before the hearing.  The Tribunal has considered these financial documents but places little weight on unlodged documents and, while it notes the submission that the company cannot lodge BASs while it is unregistered, it was deregistered on 24 February 2019 and yet the three draft BASs before that time were not lodged.

16. Finally, the Tribunal relies on the advice from the City of Greater Dandenong that a catering company is required to be registered under the Food Act 1984 if they are operating within the City of Greater Dandenong and that council records indicate that B. Deep. S Pty Ltd has never held a registration under the Food Act 1984 within the City of Greater Dandenong.  The Tribunal does not accept the written and oral evidence that it is sufficient for the business from which the sponsor subleases the premises to be registered.  On this basis the Tribunal is satisfied that the sponsor, B. Deep. S Pty Ltd, is not operating in accordance with the Food Act 1984 and local government regulations from its location in Dandenong. In relying on the advice of the City of Greater Dandenong the Tribunal notes that s.35 of the Food Act 1984 states “[t]he registration authority for a food premises is: (a) the Council of the municipal district in which the premises is located” and that s.4F states ‘”a reference to the proprietor of a food premises is a reference to the proprietor of the food business that operates at, or from the premises”.  Further, ss. 38A and 38B of Division 3 specify certain registration requirements that the proprietor of a food premises must meet.

17. The Tribunal maintains serious concerns about all three of these issues: namely: the sponsor’s business still being deregistered; the Tribunal’s inability to rely on any financial evidence provided that could satisfy it that the sponsor can employ the applicant for the required two years at the contracted salary; and the fact that the sponsor’s business is not operating in accordance with the Food Act 1984 and local government regulations.  Each of these issues is sufficient to ground a finding that the nominated position will not provide the applicant with the employment referred to in the related nomination application because it is not satisfied that the sponsor, B. Deep. S Pty Ltd, is financially or legally able to provide the required two years employment at the contracted salary.

18. The Tribunal has considered, in light of the submission that the ASIC reinstatement process is being prolonged due to COVID-19, whether it should delay its decision making to provide the sponsor with further time to complete the process of reinstating her company with ASIC.  However it has determined not to as this alone would not address the Tribunal’s other serious concerns including that the sponsor’s former director Harjinder Kaur said she only became aware that the company had been deregistered this year after the Tribunal wrote to her, some 14 months after her company was deregistered, that no BASs were lodged for at least three quarters before the business was deregistered and that it is not operating in accordance with the Food Act 1984 and local government regulations from its location in Dandenong.

19. In making this finding the Tribunal records that this is no reflection on the applicant’s skills and commitment to her sponsor.

20. Therefore, cl.186.212 is not met.

    Section 375A certificate

21. Before the hearing and, as detailed above at paragraph 14, the Tribunal, in writing, disclosed that the Department had placed a 375A Certificate on some information, namely that contained in TRIM reference numbers: CLD2017/39121057 and OPD2018/57312 of file number BCC2016/1417284, because its disclosure would be contrary to the public interest because “it contains sensitive data which the department collects as part of assessment practise and should not be released to the client/public.  After reviewing the Certificate, the Tribunal formed the view that it is valid.  It conveyed to the applicant the gist of the information which is that it relates to internal department processes that officers undertook to ultimately ascertain that there was no Wyndham City Council record of the location of 45 Watton Street, Werribee, being registered as a food handling site.  The substance and outcomes of these investigations were included in the primary decision.  The Tribunal provided a copy of the Certificate to the applicant with this letter.  The Tribunal invited any submissions on the 375A Certificate, including but not limited to the Tribunal’s view that it is valid by 1 May 2020, but no submissions were received.  The Tribunal also provided the applicant with several opportunities during the hearing to make any submissions but she declined to do so referring only to what she had already submitted.  Asked if she understood what the Certificate was about the applicant said she understood everything in the letter.

22. The applicant has only sought to satisfy the criteria for a Subclass 186 visa in the Temporary Residence Transition stream.  No claims have been made in respect of the other visa streams.  As the requirements that must be met by a person seeking the visa in the Temporary Residence Transition stream have not been met, the decision under review must be affirmed.

23. In relation to the second named applicant, the Tribunal notes that he applied on the basis of being a member of the first named applicant's family unit.  As the Tribunal has found that the first named applicant does not satisfy cl.186.212, the secondary applicant is also unable to meet the requirements of 186.311(a), which requires that he be a member of the family unit of a person who holds a Subclass 186 visa granted on the basis of satisfying the primary criteria for the grant of the visa.

    DECISION

24. The Tribunal affirms the decision not to grant the applicants Employer Nomination (Permanent) (Class EN) visas.

    Karen Synon
    Member