RUPINDER KAUR (Migration)

[2018] AATA 3921

RUPINDER KAUR (Migration) [2018] AATA 3921 (14 September 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  RUPINDER KAUR

CASE NUMBER:  1613784

DIBP REFERENCE(S):  BCC2015/3533583

MEMBER:Jennifer Cripps Watts

DATE:14 September 2018

PLACE OF DECISION:  Sydney

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

Statement made on 14 September 2018 at 12:23pm

CATCHWORDS
MIGRATION – nominating employer –direct entry nomination stream –nominated position of Café or Restaurant Manager – Genuine need for a paid employee – no information about staffing needs – position description not provided – whether the tasks match the nominated positon – offer of employment refers to ‘employment as a full time cook’ – decision under review affirmed

PRACTICE AND PROCEDURE – did not respond to hearing invitation – decision made on review

LEGISLATION
Migration Regulations 1994 (Cth), r 5.19

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 Immigration on 15 August 2016 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).

2. The applicant applied for approval the nomination on 26 November 2015. 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 (r.5.19(3)) stream and a Direct Entry nomination (r.5.19(4)) stream. 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).

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 r.5.19(4) or r.5.19(3) of the Regulations because the applicant did not satisfy the delegate that there was a genuine need for the nominated position of Café Restaurant or Manager (141111) and submitted “insufficient claims or evidence” against r.5.19(3).

5. On 17 August 2018, the Tribunal sent an invitation in writing to the applicant inviting them to appear at a combined scheduled hearing (with the nominee in related Tribunal matter 1616171) at 10:30am on 14 September 2018.  In the invitation, the applicant was informed they should provide any documents they wished to rely on prior to the hearing.  The applicant did not respond to the hearing invitation, nor did they provide any additional documents.  The applicant did not request a hearing postponement.

6. The applicant did not appear at the scheduled hearing and did not give any reason for the non-appearance.  The hearing was scheduled for 10:30am.  A little after 11:00am the member instructed the hearing officer to cancel the hearing and record the applicant as a ‘no-show’.  The Tribunal is satisfied that the applicant has been invited to and been given ample opportunity and time to provide additional information in support of the review application and has proceeded to make a decision on the evidence before it.

7. The applicant was represented in relation to the review by their registered migration agent, Mr Neeraj Kumar Sharma, Migration Agent Registration Number 0746230.

8. Referring to the Tribunal file, including the electronic and hard copy files, neither the applicant, nor their migration agent, has engaged with the Tribunal at any time since the review application was lodged on 29 August 2016.  

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. 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.

11. Referring to the application lodged by the applicant online on 10 November 2015, the applicant has, in the online application, nominated Rajwinder Kaur to work in the position of Café or Restaurant Manager (ANZSCO 141111) at their business, Tandoori Flames Griffith, New South Wales, 2680 (ABN 20161211812). 

    Tasks of the position genuine need for the position and training requirements r.5.19(4)(h)

12. 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 17/060), 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.

13. The applicant provided the Tribunal with a copy of the delegate’s decision when the review application was lodged.  The decision included the following information:

    a.Three nominations for cooks that were lodged in August 2014 in the applicant’s restaurant were approved

    b.The applicant subsequently lodged a nomination for the position of Café or Restaurant Manager, naming the nominee, Ms Rajwinder Kaur

    c.The applicant provided a financial report for the business for the year ending 30 June 2015 and certified Business Activity Statements for the period July 2014 to June 2015

    d.The financial report showed that the business had retail sales of $165,112 for the year ending June 2015 and wages costs of $63,244

    e.The nominee’s employment contract in support of the application had at the top of the document the position, “Offer of Employment – Cook” and throughout the document refers to the position alternately as “Restaurant Manager” and “Cook”

    f.The applicant did not provide:

    i.an organisational chart

    ii.any information addressing the need for a Restaurant Manager

    iii.any information indicating the seating capacity of the restaurant

    iv.a position description for the nominated position and therefore no information that demonstrated that the tasks to be performed by the nominee/position correspond to the tasks of an occupation of Café or Restaurant Manager (ANZSCO code 141111)

    v.the delegate’s view, based on the sales figures, did not justify a need for a Restaurant Manager because the position could not be supported by the restaurant sales. 

14. The above evidence, at the time of this decision in 2018, is not considered by the Tribunal to be current or up-to-date, as it relates to matters only up to 2015. 

15. The Tribunal is concerned that the letter attaching the offer of employment was unclear in relation to the nature of the position, that is, whether the position being offered is for a Cook, or a Café or Restaurant Manager.  The position title at the top of the Employment Contract is ‘Restaurant Manager’, but in the body of the contract the position is referred to as ‘employment as a full-time Cook’.  In the letter dated 1 November 2015, attaching the contract, the position in the heading is ‘Cook’, but in the body of the letter it is an ‘offer of employment as a Restaurant Manager’.   The Tribunal is not satisfied these documents, when considered individually and cumulatively are reliable evidence as to the terms and conditions regarding the nominated position. 

16. The Tribunal sent a hearing invitation in writing to the applicant requesting that they respond within seven days of receiving it.  The invitation was sent to the applicant’s representative, Neeraj Sharma (Migration Agent Registration Number 0746230) on 30 August 2018.  The hearing invitation contained the following information:

    “What you should do within 7 days of receipt of this letter

    Please provide all documents you intend to rely on to establish that you meet the criteria for the visa. The decision made by the department to refuse to grant a visa should set out the reasons why you did not meet the criteria, and you should have regard to these, and any changes in your circumstances, in providing documents and preparing for the hearing. Any documents or written arguments sent to us should be in English and if not then accompanied by a translation from a qualified translator.

    Other things to note

    If you are not able to participate in this hearing, you need to advise us as soon as possible. Please note that we will only change this date if satisfied that you have a very good reason for being granted an adjournment. If we do not advise you that an adjournment has been granted, you must assume that the hearing will go ahead. 

    If you do not participate in the scheduled hearing, we may make a decision on the review without taking any further action to allow or enable you to appear before us or may dismiss your application for review without any further consideration of the application or the information before us. A dismissed case can be reinstated if the Member considers it appropriate to do so and the application is made within 14 days of receiving notice of the dismissal. If the Member confirms the dismissal, the decision under review is taken to be affirmed.

    We may make a decision at the end of your hearing.

    The enclosed leaflet ‘Information about hearings - MR Division’ contains important information about hearings, dismissals and the rights of review applicants.

    If you have any questions, please email [email protected], or contact me on the number listed below, or telephone our national enquiry line on 1800 228 333. For language assistance, please contact the Translating and Interpreting Service (TIS) on 131 450.”

17. The Tribunal enclosed the Information about Hearings leaflet with the hearing invitation sent on 30 August 2018.  The applicant has not responded to the invitation or engaged with the Tribunal at all since the invitation was sent.  The Tribunal is satisfied that the applicant was informed in writing, prior to the hearing, of the consequences of not attending the scheduled hearing in circumstances where no reason was given for the non-attendance, that is, essentially, that a decision made be made without giving them any further opportunity to appear or provide evidence.

18. The purpose of the hearing invitation is to invite the applicant to attend a scheduled hearing to give oral evidence and present arguments and to provide or bring with them documents they wish to rely on.  The applicant did not respond to the invitation within seven days or at any time from when the review application was lodged in 2016 up to the time of the scheduled hearing.  They did not provide any documents and did not attend the hearing to give oral evidence and present arguments.  The applicant did not notify the Tribunal that they would not or could not attend the hearing – they did not request a postponement.  They did not inform the Tribunal of any change to their circumstances, for example, that they had new contact details or that there had been any change with regard to their migration agent or authorised recipient. 

19. The Tribunal is satisfied that all reasonable attempts have been made to invite the applicant to the scheduled hearing and to provide documentary evidence addressing why the nominated should be approved. The applicant has not, since the application for the visa was lodged with the Department on 26 November 2015, nearly three years ago at the time of this decision, provided any updated or current information in support of the review application before the Tribunal that address the requirements in r.5.19(3).

20. It is noted in the delegate’s decision, and the Tribunal has reviewed the Department file which confirms these matters, that the applicant provided some documentary evidence in support of the applicant addressing the need for the nominated position.  The evidence provided has been detailed earlier in this decision.  Since then (November 2015), the applicant has provided no current or updated information about its financial position.  There has been no current or updated organisational chart provided, nor evidence that the applicant did or continues to have a need for a Café or Restaurant Manager.  No updated or current information about the restaurant’s business registration, seating capacity, profits or wages costs has been provided to the Tribunal, or at any time since the review application was lodged. 

21. Accordingly, the requirements of r.5.19(4)(h) are not met.

22. It is noted in the delegate’s decision that the applicant only provided claims against r.5.19(4) relating to Direct Entry Nominations. That remains the case – the applicant has still only provided claims, at the time of this decision, against r.5.19(4). It remains, at the time of this decision, that the applicant has still provided insufficient claims or evidence against r.5.19(3), relating to Temporary Residence Transition nominations. The applicant has provided the Tribunal with no documents, other than the review application and a copy of the delegate’s decision, since lodging the application for review on 29 August 2016. There is no information before the Tribunal that it considers to be current that addresses the r.5.19(3) requirements.

23. Accordingly, the requirements of r.5.19(3) are not met.

24. 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 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

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

    Jennifer Cripps Watts
    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

    (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).