S & S Hospitality Group Pty Ltd (Migration)

[2021] AATA 3728

S & S Hospitality Group Pty Ltd (Migration) [2021] AATA 3728 (8 July 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  S & S Hospitality Group Pty Ltd

CASE NUMBER:  1910634

HOME AFFAIRS REFERENCE(S):          BCC2017/2318630

MEMBER:Cathrine Burnett-Wake

DATE:8 July 2021

PLACE OF DECISION:  Melbourne

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

Statement made on 8 July 2021 at 2:02pm

CATCHWORDS
MIGRATION – Employer Nomination – approval of nominated position – Direct Entry Nomination – Cook – genuine need – café in question closed over 12-months ago – decision under review affirmed

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 Home Affairs on 12 April 2019 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 on 29 June 2017. 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 stream (r.5.19(3)) and a Direct Entry nomination stream (r.5.19(4)). 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 for the position of Cook, 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 5.19(4)(h)(ii)(B) of the Regulations because they found the nominator failed to demonstrate that there is a genuine need for the nominator to employ a paid employee to work in the position under the nominator’s direct control.

5. Mr Mathew Drozario, Director and shareholder of S & S Hospitality Group Pty Ltd appeared before the Tribunal on 12 April 2021 to give evidence and present arguments.  

6. The applicant was represented in relation to the review by its registered migration agent, however they were not present at the hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. 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.

   Evidence of Mr Drozario at hearing

9. Mr Drozario told the Tribunal that when the nomination was originally lodged the position was based at the Railway Hotel in Elmore, Victoria. He explained that he had entered into a business arrangement with another party to operate the hotel. However, that business relationship went sour and S & S Hospitality Group Pty Ltd’s business interests were withdrawn from the operation.

10. Mr Drozario explained that although he has other company’s operating businesses in regional Victoria, S&S Hospitality Group Pty Ltd’s only current interest was in a café located in Manangatang. He stated he purchased the premises as a freehold in 2018, which includes a residence at the back of the café space.

11. Mr Drozario explained that he wishes the nominated position to be located at the Manangatang cafe location.

12. Mr Drozario told the Tribunal that the Manangatang café has not been operating since March 2020, due to COVID. He stated that the manager who was operating the café just shut the doors and left. Mr Drozario told the Tribunal that S&S Hospitality Group Pty Ltd has not been trading since and has not received any income.

13. Mr Drozario told the Tribunal that he needs a Cook so he can reopen the café in Manangatang.

14. During the hearing the Tribunal noted that it had conflicting evidence before it, being documentary evidence in the form of BAS for the July through to September 2020 period that indicated S&S Hospitality Group Pty Ltd had been trading as sales were reported. Yet in contradiction was his oral evidence to the Tribunal that S&S Hospitality Group Pty Ltd had not traded since March 2020 when the Manangatang café closed. Mr Drozario said he could not explain why the BAS would reflect such, as the company had not received revenue and he would need to check with the migration agent and the accountant.

    Post hearing evidence

15. On 15 April 2021, the Tribunal received, through the applicant’s migration agent, a letter from STP Success Tax Professionals. The letter advised that the BAS prepared by them for the July through to September 2020 period indicating S&S Hospitality Group Pty Ltd had been trading was issued in error and the reflected sales figures related to another entity held by Mr Drozario.

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

16. 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 in the relevant legislative instrument IMMI, 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.

17. During the hearing the Tribunal put to Mr Drozario its serious concerns about the company’s genuine need for the position of a Cook given the company was not involved with the operations of the Railway Hotel in Elmore, where the nominee was originally meant to be located and because the Manangatang café closed over 12-months ago. In response Mr Drozario stated he needed a cook to open and generate income at the Manangatang cafe, that’s why he still needs the nomination.

18. Given the company has not received income since March 2020, when the Manangatang Café closed and as the company is not currently trading, the Tribunal finds that the applicant has not demonstrated there is a genuine need for the paid position under the nominator’s direct control. The Tribunal acknowledges Mr Drozario’s desire for the nomination to be approved so he can reopen the Manangatang café, however, this does not counteract the fact that S&S Hospitality Group Pty Ltd no longer has an interest in the Railway Hotel, nor the fact that there is currently no active trading by the company in a business that requires a Cook.

19. Accordingly, the requirement in r.5.19(4)(h) is not met.

20. 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

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

    Cathrine Burnett-Wake
    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).