Sarva Pty Ltd (Migration)

[2022] AATA 867

Sarva Pty Ltd (Migration) [2022] AATA 867 (11 April 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Sarva Pty Ltd

REPRESENTATIVE:  Mrs Preeti Puri (MARN: 0960289)

CASE NUMBER:  1904587

HOME AFFAIRS REFERENCE(S):          BCC2017/2342498

MEMBER:P. Maishman

DATE:11 April 2022

PLACE OF DECISION:  Perth

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

Statement made on 11 April 2022 at 12:40pm

CATCHWORDS
MIGATION – application for approval of nomination of position – direct entry nomination stream – restaurant manager – need for position – no substantive response to tribunal’s invitation to provide information – no evidence that business actively and lawfully operating – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 359, 359C, 360(3), 363A
Migration Regulations 1994 (Cth), r 5.19(4)(a)(ii), (b)

CASE
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 12 February 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 applied for approval on 30 June 2017. 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).

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 nomination did not satisfy reg 5.19(4)(a)(ii) of the Regulations because the applicant has not identified a need for the nominator to employ a paid employee to work in the position under the nominator's direct control.

5. On 17 February 2022 the Tribunal invited the review applicant, pursuant to s 359 of the Act, to provide updated and current information addressing the relevant criteria in reg 5.19(3) and (4) of the Regulations in writing. The invitation notified the applicant the Tribunal must be satisfied the requirements of all relevant criteria in reg 5.19 are met at the time of its decision for the nomination of the position to be approved.

6. The invitation was sent to the email address provided in connection with the review. The invitation advised if the information was not provided in writing, or an extension of time requested, by 3 March 2022 the Tribunal may make a decision on the review without taking further steps to obtain the information and the review applicant would lose any entitlement they might otherwise have had to appear before the Tribunal to give evidence and present arguments.

7. The applicant sought an extension of time on 2 March 2022. The Tribunal notified the applicant in writing on 4 March 2022 the time in which to provide information was extended to 31 March 2022. The notification advised if the information was not provided by 31 March 2022 the Tribunal may make a decision on the review without taking further steps to obtain the information and the review applicant would lose any entitlement they might otherwise have had to appear before the Tribunal to give evidence and present arguments.

8. The applicant did not provide the information, nor request a further extension, within the prescribed period i.e. by 31 March 2022. In these circumstances, s 359C applies and pursuant to s 360(3) the review applicant is not entitled to appear before the Tribunal. The effect of s 363A of the Act is that if a review applicant has no entitlement to a hearing, the Tribunal has no power to permit it to appear: Hasran v MIAC [2010] FCAFC 40.

9. The application was constituted to the Member on 7 April 2022. The Tribunal has received no further information or submissions. The Tribunal has decided to proceed to decision without taking further steps to obtain the information.

10. The applicant was represented in relation to the review.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. The Tribunal had before it a copy of the Department’s file containing the nomination application and documents received by the Department.

13. The applicant gave the Tribunal a copy of the delegate’s notice of decision with its application for review. The delegate was not satisfied the applicant identified a need to employ a paid employee to work in the position of “Restaurant Manager” under their direct control and refused the nomination on the basis that reg 5.19(4)(a)(ii) was not met.

14. The Tribunal’s letter to the applicant of 17 February 2022 invited the applicant to provide updated and current information about all the requirements in r.5.19. It also advised that, for the nomination to be approved, the Tribunal must be satisfied that all of the relevant criteria are met at the time of its decision. The applicant was invited to give information including, and not limited to, whether it is a company; whether it directly operates an active and lawful business; the applicants current organisational structure including where the nominated position sits in that structure; and information about the roles and duties of the nominated position. The Tribunal letter gave examples of the types of information that could be provided.

15. As stated above, the applicant did not respond to the invitation and no updated information about the applicant, or its business, has been received by the Tribunal.

16. 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.

    Nominator is actively and lawfully operating a business in Australia: reg 5.19(4)(b)

17. Regulation 5.19(4)(b) requires that the applicant is actively, lawfully and directly operating a business in Australia.

18. The Tribunal invited the applicant to provide information supporting that it is actively and lawfully operating a business in Australia. The Tribunal suggested examples of information the applicant could provide included, but was not limited to; an ASIC company or business name extract; a current and historical ASIC extract; lodged tax returns for the last two financial years; business activity statements lodged with the ATO for the last 24 months; and financial statements including profit and loss statements and balance sheets for the most recent two financial years.

19. The applicant has not provided any current information that supports its application.

20. There is no current information before the Tribunal about whether the nominator is actively, lawfully and directly operating a business in Australia.

21. The Tribunal is unable to be satisfied that at the time of this decision the applicant is actively, lawfully and directly operating a business in Australia.

22. 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

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

    P. Maishman
    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).