SAINI PTY LTD (Migration)

[2021] AATA 4833

SAINI PTY LTD (Migration) [2021] AATA 4833 (7 December 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  SAINI PTY LTD

CASE NUMBER:  1932435

HOME AFFAIRS REFERENCE(S):          BCC2018/974052

MEMBER:Deputy President J.L Redfern PSM

DATE:7 December 2021

PLACE OF DECISION:  Sydney

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

Statement made on 7 December 2021 at 6:10 PM

CATCHWORDS:

MIGRATION – Employer Nomination Scheme – Direct Entry stream – Regional Sponsored Migration Scheme – Cook – whether the nominee will be employed on a full-time basis for at least 2 years – where visa application by nominee refused – nominee did not seek review of refusal and currently offshore – subclass 187 visa is closed to new applications – requirement of nomination cannot be met – decision under review affirmed

LEGISLATION:

Migration Act 1958 (Cth), ss 245AR, 359(2), 359C and 360(3)
Migration Regulations 1994 (Cth), reg 5.19

SECONDARY MATERIALS:

Department of Home Affairs, PAM3 – Div 5.3 General – Approval of nominated positions (employer nomination) – Regulation – 5.19

STATEMENT OF DECISION AND REASONS

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 24 October 2019 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, Saini Pty Ltd (Saini) applied for approval of the nomination for the position of Cook on 28 February 2018. Mr Deepinder Singh Khosa was nominated for this position by Saini and on 2 March 2018 he applied for a Regional Employer Nomination (Permanent) work visa under cl 187 of Schedule 2 to the Regulations.

3. Saini operates an Indian restaurant, in Port Macquarie New South Wales. The business has been established for 21 years.

4. Employer nominations are intended to enable Australian employers to recruit, for permanent positions, skilled workers either from overseas or who are temporarily in Australia, where the employer has not been able to fulfil their needs from the Australian work force or through their own training efforts. The employer nomination scheme involves two stages, firstly, an employer seeking approval of a nominated position in which an individual is proposed to be employed in Australia and secondly, a person applying for a permanent position on the grounds the visa applicant proposes to be employed in that position.[1]

   [1] Department of Home Affairs, PAM3 – Div 5.3 General – Approval of nominated positions (employer nomination) – Regulation – 5.19, 5.1.1.

5. 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).

6. In this case, Saini has applied for approval of a nomination, seeking to satisfy the criteria in the Direct Entry nomination stream. It has applied under the Regional Sponsored Migration Scheme, which operates where the nominated position is located in regional Australia. The objective of the program is to allow employers to sponsor foreign workers for permanent residence to fill genuine vacancies in their business. The employer must operate in regional Australia.

7. The delegate refused the application on the basis Saini’s nomination did not satisfy reg 5.19(4) of the Regulations because the delegate was not satisfied that there was genuine need for the position and that this position could otherwise be filled by an Australian citizen or permanent resident. In coming to this conclusion, the delegate relied on the organisational chart that was provided in support of the application which indicated that Saini already employed four part time and two full time positions. The delegate further noted that there was little evidence provided to suggest that Saini had suffered any inconvenience in the absence of Mr Khosa and Saini has continued to operate sufficiently without the nominated position. The delegate did not make an assessment or findings in relation to the balance of the requirements for the approval of the nomination.

8. Mr Khosa’s application for a work visa was dependent upon the nomination made by Saini for his role as a Cook being approved. Because the nomination was refused Mr Khosa’s application for the related visa was also refused.

9. On 14 November 2019 Saini applied to the Tribunal for the review of the decision made by the delegate. The applicant was represented by a migration agent.

10. For the following reasons, I have decided to affirm the decision under review to refuse the nomination.

    PROCEDURAL ISSUES

11. In documents accompanying the application Saini, provided details of its registration and corporate history, financial information including its financial statements for the financial years ended 30 June 2017 and 30 June 2018, business activity statements for the period July 2018 to March 2019, and a letter from its accountant, employment details, including the employment contract for Mr Khosa dated 1 September 2017, details of various advertisements and a completed Regional Certifying Body Advice (Form 1404).

12. On 25 February 2021 the Tribunal wrote to the applicant under s 359(2) of the Migration Act 1958 (Cth) (the Act), inviting Saini to provide specified information in writing to satisfy the Tribunal that Saini met the requirements in reg 5.19.

13. The invitation to provide information was sent to the applicant’s migration agent and advised that if the information was not provided in writing by 11 March 2021, or within any extended time as requested and granted, the Tribunal may make a decision on the review without taking any further steps to obtain the information and the applicant would lose any entitlement they might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

14. On 11 March 2021, the representative on behalf of Saini requested an extension of time to provide the information. The Tribunal granted an extension of time until 8 April 2021.

15. On 22 April 2021, the representative for Saini provided to the Tribunal submissions and further evidence in support of its claim seeking approval of the nomination.

16. As this material was not provided to the Tribunal or a further extension was not sought in the prescribed period, Saini lost its right to participate in a hearing by reason of the effect of ss 359C and 360(3) of the Act.

17. Mr Khosa did not seek a review of the decision to refuse his visa and, according to a search conducted of the Department of Home Affairs database, departed Australia in February 2016. He has not returned to Australia since this time.

18. Because this was adverse information relevant to the review, the Tribunal invited Saini to comment on or respond to the information particularised in its letter dated 29 October 2021 which was identified as information that would be the reason or part of the reason for affirming the decision under review. This invitation was made pursuant to s 359A of the Act.

19. The information identified was to the effect that a search of the Departmental records indicated Mr Khosa had departed Australia in February 2016, he had not returned onshore since this time, he did not apply to the Tribunal for review of the decision to grant his subclass 187 visa, this visa was no longer open to new applications by reason of amendments to the Regulations and that, as a consequence, Saini could not satisfy an essential requirement of reg 5.19. Relevantly, Mr Khosa could not be granted a subclass 187 visa and therefore could not be employed on a full-time basis in the nominated position for at least two years.

20. Saini requested an extension of time to provide information, outside of the prescribed period on 15 November 2021, and the Tribunal was unable to grant an extension of time. The Tribunal advised Saini that it would delay making its decision and Saini should provide any information it would like the Tribunal to consider by 19 November 2021.

21. In a submission dated 18 November 2021, Mr Saini acknowledged that Mr Khosa was unable to lodge a new visa application under subclass 187 and responded to the following effect:

    Now Subclass 187 Visa is closed for direct entry and Mr Deepinder Singh Khosa is unable to lodge new Visa Application in the same subclass, but I request you to please consider the review application for Nomination. I am currently seeking advice from legal professionals and couldn’t decide what can be done in that case. The RCB advice was approved for his application. I request you to if somehow permission can be given to revoke the decision of Visa Refusal and reconsider the Visa Application as well then it will be very supportive for my business and Visa Applicant can get a chance for his application.

    Mr Deepinder Singh Khosa has spent his career building years in Australia and has completed his education in Australia. He has worked at different Indian Restaurants in Australia. He has knowledge, Professionals skills and English language skills as well.

    Saini Pty Ltd is planning to open another restaurant and looking for Indian Cooks to employ. But due to Covid 19, it is almost impossible to get any qualified and experienced Indian Cooks in Australia.

    So I request you to please consider the application and give myself and Visa Applicant a chance as well.

22. No further submissions or evidence have been received from Saini and I have determined to make decision on based on the information and submissions before me.

    CONSIDERATION

23. 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.

24. Relevant to the circumstances of this case, reg 5.19(4)(d) requires the nominee, Mr Khosa, to be employed in the nominated position for at least 2 years full time.

25. In this case, I am not satisfied that Saini meets reg 5.19(4)(d) because I am not satisfied that Mr Khosa will be, or in fact could be, employed on a full-time basis in the nominated position for at least two years. He cannot be granted a subclass 187 visa and, as such, he cannot be employed on this basis. Mr Saini’s response to the invitation to respond or comment on adverse information does not assist. The Tribunal does not have power to revoke the decision of the delegate in respect of the refusal of Mr Khosa’s visa. This visa subclass is now closed by operation of law and there is nothing that can be done to alter or reverse this position, other than an application for Ministerial Intervention and there is no evidence that such an application has been made.

26. Mr Khosa may have spent a number of years in Australia completing his education and he may have skills to be employed as a cook. It may also be the case that, having regard to the impact of the COVID-19 pandemic on the availability of suitable skilled employees, it is difficult to obtain difficult to employ cooks who have experience in cooking the Indian cuisine at this time. Saini may or may not open another restaurant in the future, this is entirely speculative. However, these issues are irrelevant to the determination of whether Saini meets the requirements for approval of the nomination in reg 5.19(4) and therefore irrelevant for the purposes of my consideration of the review.

27. For completeness, I note that if the matters raised by Mr Saini can be substantiated, the company may make a further application to sponsor Mr Khosa, or another overseas worker, in accordance with the relevant requirements of the current work visa regime.

28. Accordingly, the requirement in reg 5.19(4)(d) is not met. I have not considered the balance of the criterion in reg 5.19(4) because all requirements must be met and given that I found that one of the requirements is not met there would be no practical utility in making findings in respect of the other requirements of reg 5.19(4)

29. 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

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

    J.L Redfern PSM
    Deputy President

    
    
    

    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).