Sanjh Indian Restaurant Pty Ltd (Migration) - [2021] AATA 3450

Sanjh Indian Restaurant Pty Ltd (Migration) [2021] AATA 3450 (11 August 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Sanjh Indian Restaurant Pty Ltd
CASE NUMBER:  1822775
HOME AFFAIRS REFERENCE(S):          BCC2016/4030305
MEMBER:Terrence Baxter
DATE:11 August 2021
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Statement made on 11 August 2021 at 9:05am
CATCHWORDS
MIGRATION – nomination – Direct Entry nomination stream – Restaurant Manager –training benchmark commitments and obligations – genuine need for the nominator to employ a paid employee – position located in regional Australia – actively and lawfully operating a business in Australia – nominee was employed in the nominated position in a full time capacity – financial capacity of the business to employ the nominee for at least 2 years– no less favourable terms and conditions of employment – decision under review set aside
LEGISLATION
Migration Act 1958, s 245AR
Migration Regulations 1994, rr 1.13, 5.19
CASES
MIBP v Jayshree Enterprises Pty Ltd [2017] FCA 264
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 23 July 2018 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 (the Regulations).
The applicant, Sanjh Indian Restaurant Pty Ltd, applied for approval on 29 November 2016. The applicant nominated Ms Harpreet Kaur (the nominee) in the position of Restaurant Manager. 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).
In this case, the applicant has applied for approval of a nomination, seeking to satisfy the criteria in the Direct Entry nomination stream.
The delegate refused the application on the basis the applicant’s nomination did not satisfy reg 5.19(4)(d)(i) of the Regulations because the applicant did not demonstrate the financial capacity to employee a person in the nominated position at the specified salary, and accordingly failed to establish the nominee will be employed on a full-time basis in the position for at least two years.
The applicant lodged an application for review of the delegate’s decision with the Tribunal on 7 August 2018.
Mr Harkanwal Singh, the sole director of the applicant, appeared before the Tribunal by video conference on 25 May 2021 to give evidence and present arguments. The hearing was a joint hearing with the application for review of a decision to refuse the visa application of the nominee. The hearing was also combined with an application for review…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2021] AATA 3450
Decision Date: 11 August 2021

CaseChat Overview and Summary

This matter concerned an application for approval of a nomination under the Direct Entry stream, specifically for a Restaurant Manager position in regional Australia. The applicant, Sanjh Indian Restaurant Pty Ltd, sought to nominate an individual for this role. The core of the dispute revolved around whether the applicant had met the various regulatory requirements for such a nomination, particularly concerning the genuine need for the position, the financial capacity of the business, and the terms and conditions of employment. The decision was made by Terrence Baxter.

The legal issues before the court included whether the applicant had demonstrated a genuine need to employ a paid employee in the nominated position under its direct control, and whether the business possessed the financial capacity to employ the nominee full-time for at least two years. Further, the court had to consider whether the nominee was offered terms and conditions of employment no less favourable than those provided to Australian citizens and permanent residents in similar roles, and whether the business was actively and lawfully operating in Australia. The court also examined the training benchmark commitments and obligations associated with the nomination.

The court's reasoning focused on assessing the evidence presented by the applicant against the requirements of Regulation 5.19(4) of the Migration Regulations 1994. It considered documentation relating to the business's operations, financial standing, and the nominee's employment. Crucially, the court found that the applicant had satisfied the requirement for a genuine need for the position, evidenced by the nature of the business and the tasks involved. The financial capacity of the business was also deemed sufficient, supported by financial reports and tax returns. The court determined that the nominee was employed in the nominated position on a full-time basis and that the terms and conditions of employment were not less favourable than those for local workers.

Ultimately, the Tribunal set aside the original decision and substituted a decision approving the nomination. This outcome was based on the Tribunal's satisfaction that Sanjh Indian Restaurant Pty Ltd had met all the necessary regulatory requirements for the nomination under the Direct Entry stream.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

The nominee gave evidence of her employment in the position and the tasks performed by her in that position.Evidence presented after the hearing After the hearing, the applicant produced to the Tribunal the following documents: a.Submissions from the representative dated 9 June 2021.b.A financial report for the 2020 financial year. c.The company tax return for the 2020 financial year accompanied by evidence of its lodgement. d.Updated evidence of the applicant’s tenancy of its business premises. e.Letters from Queensland Health Inala confirming the admission of the director’s spouse to the Princess Alexandra Hospital on 17 March 2021 and as of 1 June 2021.f.Medical certificates of the director’s spouse dated 20 April 2021 and 19 August 2020, in addition to a hospital prescription. The application is compliant: reg 5.19(4)(a) Regulation 5.19(4)(a) requires that the application for approval must be in the approved form, must be accompanied by the prescribed fee, and, where applicable, must include the required written certification relating to conduct that contravenes s 245AR(1) of the Act. The application must also identify a need for the nominator to employ a paid employee to work in the position under their direct control. Having regard to the documentation in the file of the Department, the Tribunal is satisfied that the application for approval was in the approved form. The application relates to a visa in the Direct Entry stream seeking to meet the requirements in the Regional Sponsored Migration Scheme and consequently no fee is payable (reg 5.19(2) and reg 5.37(4) of the Regulations). The application included a written certification stating that the applicant had not engaged in conduct in relation to the nomination that contravenes s 245AR(1) of the Act. The requirements of reg 5.19(2) and consequently of reg 5.19(4)(a)(i) are therefore met. Regulation 5.19(4)(a)(ii) requires that the application identifies a need for the nominator to employ a paid employee to work in the position under the nominator’s direct control. It is unclear whether this requirement is directed just at a statement to this effect or something of a more qualitative nature. The wording ‘identifies a need’ arguably suggests more is required to meet this criterion than simply a statement or declaration that there is such a need. ‘Identify’ is defined as ‘to recognise or establish as being a particular person or thing; verify the identity of.’[1] On that view, which is consistent with that reflected in Departmental policy, a decision maker would need to be satisfied there is a genuine need on the part of the nominator to employ someone in the nominated position.[2] However, it could alternatively be argued that reg 5.19(4)(a) as a whole is directed towards requirements for the application form/process of a more administrative nature, such that reg 5.19(4)(a)(ii) could be met by a simple statement or certification of need. Support for this view can also be found in the contrast between the wording of reg 5.19(4)(a)(ii) and, for example, reg 5.19(4)(h)(ii)(B) (for applications relating to positions in regional Australia), which requires that there be a genuine need for the nominator to employ a paid employee to work in the position under the nominator’s direct control – clearly requiring a qualitative assessment, and reg 5.19(4)(d)(i), which requires satisfaction that the employee will be employed on a full-time basis in the position for at least two years. Given the uncertain scope of reg 5.19(4)(a)(ii), and the requirement in relation to this application to satisfy reg 5.19(4)(h)(ii)(B), the Tribunal considers that this issue is more appropriately considered under reg 5.19(4)(h)(ii)(B) later in these Reasons.[1] Dictionary.com (accessed January 2021).[2] In Bharaj Construction Pty Ltd v MIBP [2016] FCCA 902 (Judge Barnes, 28 April 2016), the Court considered a similarly worded provision in respect of a pre-1 July 2012 RSMS nomination, i.e. ‘the employer nomination is made by an employer in respect of a need for a paid employee’. Whilst on the one hand reg 5.19(4)(a)(ii) does not appear to impose a different requirement beyond emphasising the requirement for an applicant to identify the need (unlike the pre-1 July 2012 version of reg 5.19(2)(a) and (4)(a)), the wording of the criteria does differ slightly and the Tribunal exercises caution in applying the reasoning of Bharaj to a post-1 July 2012 nomination as is currently being considered.

Decision

Reasons for decision

For the following reasons, the Tribunal has decided to set aside the decision under review and substitute a decision approving the nomination.CONSIDERATION OF CLAIMS AND EVIDENCE 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.Evidence presented prior to the hearing The applicant produced to the Department of Immigration and Border Protection (now the Department of Home Affairs) (the Department) the following documents: a.A Form 1404 issued by the Regional Certifying Body (RCB), the Queensland Chamber of Commerce and Industry, Toowoomba, dated 24 November 2016, and assessment statement also dated 24 November 2016. b.Evidence of the applicant’s tenancy of its business premises. c.Activity statements for the period from January 2016 to September 2016. d.An ASIC Certificate of Registration for the applicant. e.Market salary evidence. f.Current ABN information for the applicant. g.An undated business bank statement. h.An employment contract of the nominee dated November 2016.i.Takeaway and dine-in menus. j.A business plan of the applicant and an organisational chart. The applicant produced to the Tribunal the following documents: a.A copy of the delegate’s decision.b.An annual superannuation statement of the nominee for the 2019 financial year. c.An Australia and New Zealand Standard Classification of Occupations (ANZSCO) extract for the occupation of Café and Restaurant Managers. d.Payslips of the nominee from August 2020, and the period from January to February 2021. e.Financial reports for the 2018 and 2019 financial years. f.Copies of documents previously provided to the Department.g.A position description. h.Submissions from the representative dated 31 August 2020, 19 February 2021 and 20 May 2021. i.A business bank statement of the applicant for the period from January to March 2020.j.An ASIC Australian company summary extract and company statement. k.Submissions from the applicant’s accountant dated 17 February 2020, 2 December 2020 and 17 May 2021. l.Website reviews of the applicant and map showing the location of the business premises.m.Extracts of the applicant’s Facebook page. n.PAYG payment summaries of the nominee for the 2018 to 2020 financial years. o.The company tax return for the 2019 financial year. p.Updated market salary evidence. q.Updated organisational charts.r.A Princess Alexandra Hospital discharge summary of the director’s spouse dated 22 July 2020.s.Activity statements for the period from July 2020 to March 2021. t.Draft company tax return and financial report for the 2020 financial year. u.A scan of the business bank account information of the applicant. v.A job advertisement for the position and a summary table of disqualified applicants. Evidence presented at the hearing regarding the applicant’s operations

Ratio Decidendi

Legal Principle Established

Accordingly, the requirements of reg 5.19(4)(e) are met.No adverse information known to Immigration: reg 5.19(4)(f) Regulation 5.19(4)(f) requires that there is no adverse information known to Immigration about the nominator or person associated with the nominator; or it is reasonable to disregard any such information. For these purposes, ‘adverse information’ and ‘associated with’ have the meaning given in reg 1.13A and reg 1.13B of the Regulations. There is no evidence before the Tribunal that there is any adverse information of the type described in the relevant definitions known to the Department about the applicant or any associated person. Accordingly, the requirements of reg 5.19(4)(f) are met.Satisfactory compliance with workplace relations laws: reg 5.19(4)(g) Regulation 5.19(4)(g) requires that the applicant 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. There is no evidence before the Tribunal to suggest that the applicant has an unsatisfactory record of compliance with workplace relations laws of the Commonwealth or any State or Territory in which the applicant operates a business. The Tribunal is satisfied that the applicant does have a satisfactory record of compliance. Accordingly, the requirements of reg 5.19(4)(g) are met.Tasks of the position, genuine need for the position and training requirements: reg 5.19(4)(h) 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, 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 (see legislative instrument IMMI 17/058), 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.Regulation 5.19(4)(h)(ii)(A) – the position is located in regional Australia Mr Singh gave evidence that the applicant’s business is conducted at Laidley, Queensland. The ASIC company statement for the applicant states that the address of the business premises is 103 Patrick Street, Laidley, QLD 4341, a location in regional Australia according to the relevant instrument. This address is confirmed by the lease of the business premises. Based on the evidence presented, the Tribunal is satisfied that the position is located in regional Australia. Accordingly, the requirements of reg 5.19(4)(h)(ii)(A) are met.Regulation 5.19(4)(h)(ii)(B) – genuine need to employ a paid employee to work in the position under the applicant’s direct control