Sandhar Pty Ltd (Migration)

[2022] AATA 2695

Sandhar Pty Ltd (Migration) [2022] AATA 2695 (20 June 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Sandhar Pty Ltd

REPRESENTATIVE:  Mr Natale Menniti (MARN: 1066082)

CASE NUMBER:  1913021

HOME AFFAIRS REFERENCE(S):          BCC2017/3139004

MEMBER:Katie Malyon

DATE:20 June 2022

PLACE OF DECISION:  Sydney

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

Statement made on 20 June 2022 at 4:22 pm

CATCHWORDS
MIGRATION – nomination – Direct Entry nomination stream – Cafe or Restaurant Manager –applicant failed to provide the requested information within the prescribed period – failed to identify a genuine need to employ a Cafe or Restaurant Manager on a full-time basis under the Company’s direct control– decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 359, 360, 363
Migration Regulations 1994, r 5.19

CASES

Hasran v MIAC [2010] FCAFC 40

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 May 2019 to refuse the nomination application made by the applicant, Sandhar Pty Ltd T/A Saffron Indian Fine Cuisine (the Company), for approval of the nomination of a position in Australia under reg 5.19 of the Migration Regulations 1994 (Cth) (the Regulations).

2. The Company applied for approval on 30 August 2017. Requirements for the approval of the nomination of a permanent position in Australia are found in reg 5.19 of the Regulations which contains 2 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 all of the relevant 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 Company applied for approval of a nomination seeking to satisfy the criteria in the Direct Entry nomination stream.  It nominated the position of Cafe or Restaurant Manager ANZSCO 141111 for its nominee, Indian national Mr Randjodh Singh.

4. The delegate decided not to approve the nomination on the basis the Company’s nomination did not satisfy reg 5.19(4)(h)(ii)(B) of the Regulations because it had not been demonstrated that there is a genuine need for a full-time Restaurant Manager to be employed at the nominator’s business in Smithfield, north of Cairns in Queensland. A copy of the delegate’s decision was provided to the Tribunal.

5. To enable the Tribunal to assess whether the Company meets all of the relevant requirements for approval of its nomination, on 24 May 2022 the Tribunal wrote to the Company pursuant to s 359(2) of the Migration Act 1958 (the Act) and invited it to provide an updated and current information about its business and the nominated position.  The Tribunal’s letter was sent to the person appointed to receive communications on behalf of the Company, its representative Mr Natale Menniti.

6. The Tribunal’s s 359(2) letter advised the Company that, if information in writing was not received by the Tribunal on or before 7 June 2022 or, if it did not, on or before that date make a request for an extension of time in which to provide the information, the Tribunal: may make a decision on the review without taking further steps to obtain the information; and, the Company would lose any entitlement it might otherwise have under the Act to appear before the Tribunal to give evidence and present arguments.

7. On 7 June 2022, the Tribunal received an email from the representative informing it that he had advised the Company of the Tribunal’s request for information.  However, the representative added that he has not received any information or further instructions from the Company.

8. The Company has not provided updated and current information about its business and the nominated position in response to the Tribunal’s s 359(2) letter. In these circumstances,

   
   

   s 359C of the Act applies and, pursuant to s 360(3) of the Act, the Company is not entitled to appear before the Tribunal. If a review applicant has no entitlement to a hearing, the effect of s 363A of the Act is that the Tribunal has no power to permit the applicant to appear: Hasran v MIAC [2010] FCAFC 40.

9. The Tribunal has considered whether this is an appropriate case for it to adjourn the review under s 363(1)(b) of the Act to allow the Company additional time in which to provide evidence to support the review application. In this regard, the Tribunal has considered whether, in the circumstances of this case and having regard to the COVID-19 pandemic, evidence that the Company meets all of the requirements of reg 5.19(4) of the Regulations is likely to be forthcoming, whether the Company has had a fair opportunity to provide the relevant information or documents already, and the significance of the information or documents to the Company. The Tribunal has taken into account the decisions in Huo v Minister for Immigration and Multicultural Affairs[1] and Manna v Minister for Immigration and Citizenship[2] where the Courts have held that the Tribunal is not required to indefinitely defer its decision-making processes.  It has also had regard to the decision in Minister for Immigration and Citizenship v Li[3] regarding the reasonableness of any request for an adjournment, and the Full Federal Court decision in Minister for Immigration and Border Protection v Singh[4].

   [1] [2002] FCA 617

   [2] [2012] FMCA 28

   [3] [2013] HCA 18

   [4] [2014] FCAFC 1

10. As noted above, on 6 May 2019 the delegate refused the nomination made by the Company because it failed to identify a genuine need to employ a Cafe or Restaurant Manager on a full-time basis under the Company’s direct control. A copy of the delegate’s decision was provided to the Tribunal when the review application was lodged. The Tribunal wrote to the Company under s 359(2) of the Act inviting the Company to provide information demonstrating that the nomination meets all the requirements of the criteria in reg 5.19(4) of the Regulations including reg 5.19(4)(h)(ii)(B) of the Regulations. The Company has failed to provide any of the requested information within the prescribed period set for this purpose and nor has it provided the requested information within the extended period.

11. In the circumstances and notwithstanding COVID-19 pandemic, the Tribunal considers the Company has had sufficient time to provide requested information and thereby address all of the issues arising on review. Accordingly, the Tribunal has decided not to exercise its discretion under s 363(1)(b) of the Act to adjourn the review any further. The Tribunal has determined to make a decision on the review without taking any further action to obtain the information in accordance with s 359C of the Act.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

13. The issue in this case is whether the Company meets the requirements for approval of its nomination under the Direct Entry nomination stream set out in reg 5.19(4) of the Regulations. Relevant provisions of the Regulations are extracted in the Attachment to this decision. For the nomination to be approved, all of the requirements must be met. If any of the requirements are not met, the application must be refused: reg 5.19(5) of the Regulations.

14. Although the delegate refused the Company’s nomination on the basis it did not satisfy criteria in reg 5.19(4)(a)(ii)(B) of the Regulations because the delegate found that the Company did not identify a need to employ a Cafe or Restaurant Manager on a full-time basis to work under the Company’s direct control, the Tribunal has, instead, had regard to the absence of current documentation to demonstrate the capacity of the Company to employ the nominee for at least 2 years.

    The future employment of the visa holder: reg 5.19(4)(d)

15. Regulation 5.19(4)(d) of the Regulations requires that the nominee will be employed on a full-time basis for at least 2 years on terms that do not expressly preclude the possibility of an extension.

16. No documentation accompanied the Company’s application for review when it was lodged with the Tribunal on 24 May 2019. The Tribunal wrote to the Company via its representative under s 359(2) of the Act on 24 May 2022 inviting it to provide information in writing to demonstrate that the Company meets all of the requirements of the criteria in reg 5.19(4) of the Regulations, including reg 5.19(4)(d) of the Regulations.

17. Relevantly, the Company has not provided evidence to demonstrate that it is directly operating an active and lawful business in Australia including information regarding the Company’s financial circumstances.  In this regard, the Company has not provided requested evidence of its Tax Returns for the last 2 full financial years as lodged with the Australian Taxation Office or its Financial Statements (including Profit & Loss Statements and Balance Sheets) for the 2 most recent financial years as evidence to demonstrate that the nominee Mr Singh will be employed on a full-time basis for at least 2 years.  Documentation lodged with the Department dates back to 2018, that is, more than 4 years ago.  In the circumstances, the Tribunal has no current information before it to demonstrate that the Company has the financial capacity to pay the nominee’s salary of $46,800 plus superannuation as set out in the signed Letter of Engagement dated 28 August 2017 lodged with the Department. 

18. Based on available evidence, the Tribunal is not satisfied that the Company has demonstrated its financial capacity to pay the full-time salary of its nominee Mr Singh for the nominated position of Restaurant Manager for at least 2 years. In the circumstances, the Company does not meet the requirements of reg 5.19(4)(d)(i) of the Regulations.

19. Accordingly, the requirements in reg 5.19(4)(d) of the Regulations are not met.

20. For the above reasons the Tribunal is not satisfied that the Company meets the requirements of reg 5.19(4) of the Regulations. The Company 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) of the Regulations. Accordingly, the nomination of the position cannot be approved. Therefore, the Tribunal must affirm the decision under review to refuse the Company’s nomination.

    DECISION

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

    Katie Malyon

    
    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).