Sengaroun Pty Ltd (Migration)

[2022] AATA 4507

Sengaroun Pty Ltd (Migration) [2022] AATA 4507 (7 December 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Sengaroun Pty Ltd

REPRESENTATIVE:  Mr Jiang Liu

CASE NUMBER:  1917963

HOME AFFAIRS REFERENCE(S):          BCC2018/318139

MEMBER:Ian Berry

DATE:7 December 2022

PLACE OF DECISION:  Brisbane

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

Statement made on 07 December 2022 at 12:53pm

CATCHWORDS
MIGRATION – application for approval of nomination of position – direct entry nomination stream – café or restaurant manager – need for position – limited information and documentation provided out of time, some of which refers to another employee – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 140GB, 359(2), 359C, 360(3), 363A
Migration Regulations 1994 (Cth), r 5.19(4)(h)(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 17 June 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 19 January 2018. 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 applicant’s nomination did not satisfy reg 5.19(4)(h)(ii)(B) of the Regulations because after considering all the information provided there was not enough evidence to support the claim for the applicant’s business to require a Café or Restaurant Manager.

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

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. 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.

   Invitation to provide updated information for the Tribunal pursuant to s 359(2)

8. On 26 July 2022, the Tribunal wrote to the pursuant to s.359(2) of the Act, inviting the applicant to provide information, in writing, about which the following is relevant:

   I am writing on instruction from the Member conducting the review, about the application for review made by Sengaroun Pty Ltd (“the applicant”) in respect of a decision to refuse their application for approval of a nominated position under [regulation 5.19] of the Migration Regulations 1994 (the Regulations).

   In order for the Tribunal to approve the business nomination, it must be satisfied that all of the requirements in [regulation 5.19] of the Migration Regulations 1994 (the Regulations) and section 140GB of the Act are met at the time of its decision.

   The Tribunal now requires that the applicant to provide, in writing, updated and current information addressing these criteria. Accordingly, and without limiting the information that may be given, you or another person authorised by the applicant are invited to give the following information in writing. We have given examples of the type of the information you could provide:

   1.Information about the identity of any person authorised to speak and make decisions on behalf the applicant;

   ·If the applicant is a company or registered business, and ASIC company or business name extract ( the applicant is a company or registered business, current and historical information about its owners or officeholders’ registration details;

   ·An ASIC current and historical extract ( about the applicant directly operating an active and lawful business in Australia, including its financial circumstances;

   ·The applicant’s lodged tax returns for the last 2 full financial years, business activity statements that have been lodged with the ATO for the last 24 months and financial statements prepared in accordance with Australian accounting standards, including profit and loss statements and balance sheets, for the most recent 2 financial years.

   4.information about the applicant’s current organisational structure and where the nominated position sits in relation to that structure;

   ·An organisational structure chart that includes all the applicant’s current and proposed employees, their position title/duties and their immigration status (i.e. Australian citizen, permanent resident or temporary visa holder).

   5.Information about the roles and duties of the nominated position and how they correspond to the nominated occupation is position description in ANZSCO;

   ·Job descriptions, work samples, emails, correspondence and other

   ·examples of the daily tasks performed in the nominated position, and also the nominated occupation’s position description in ANZSCO (go to and type the nominated occupation’s 6 digit ANZSCO code number into the ‘Search’ function).

   6.information about the terms and conditions of employment in the nominated position, including whether they are more all those favourable than those provided for an Australian citizen or permanent resident performing equivalent work in the same workplace at the same location, and whether the nominee will be employed on a full-time basis for at least 2 years with terms and conditions not expressly excluded the possibility of extension;

   ·A current employment contract in respect of the nominee or letter of engagement that complies with the relevant awards for the nominated position (if any).

   7.If the nominated position is not located in regional Australia and the applicant has paid the non—regional position application fee, information about:

   (a)    the need to employ the nominee in the nominated position; and

   (b)     the applicant’s business operating for at least 12 months and its recent training expenditure; or

   (c)    the applicant’s business operating for less than 12 months and its plan for future training expenditure.

   ·Invoices or contracts for employee training, a training program that includes a course outline, attendance and identifies increased work competencies, all records of investment in certain industry training funds or recognised industry bodies.

   8.If the nominated position is located in regional Australia, information about:

   (a)    The need to employ the nominee in the nominated position and why the position cannot be filled by an Australian citizen or permanent resident living in the same local area; and

   (b)     whether a specified Regional Certifying Body located in the same State or Territory as the nominated position has provided advice that:

   (i)     the terms and conditions of employment are no less favourable than those provided to Australian citizens or permanent residents performing equivalent work in the same workplace; and

   (ii)    there is a genuine need to employ the nominated person as a paid employee to work in the nominated position under the applicant’s direct control; and

   (iii)the position cannot be filled by an Australian citizen or permanent resident living in the same area.

   ·Local job advertisements for the nominated position that were not successfully filled, and the Regional Certifying Body’s certificate issued to the applicant in respect of this position

   9.Information about whether the applicant has been subject to monitoring by the Department and, if relevant, the outcome of the monitoring audit;

   10.Information about whether the applicant has been the subject of any investigation about a possible contravention of the law.

   This information, in writing, should be received by 9 August 2022. If the information is in a language other than English, it must be accompanied by an English translation from an accredited translator.

   If you or another person authorised by the applicant cannot provide the information by 9 August 2022, you or another person authorised by the applicant may ask us for an extension of time in which to provide the information. If an extension of time request is made, it must be received by us before 9 August 2022 and it must state the reason why the extension of time is required.

   If we do not receive the information within the period allowed or as extended, we may make a decision on the review without taking any further action to obtain the information. The applicant will also lose any entitlement it might otherwise have had under the Migration Act to appear before us to give evidence and present arguments’

9. The invitation was sent to the last address provided in connection with the review and advised that, if the information was not provided in writing by 4 October 2022, the Tribunal may make a decision on the review without taking further steps to obtain the information and the applicant would lose any entitlement the applicant might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

10. The applicant has not provided the information within the prescribed period and no extension has been granted. 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 him or her to appear: Hasran v MIAC [2010] FCAFC 40. The Tribunal has decided to proceed to decision without taking further steps to obtain the information.

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

11. 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 (see legislative instrument IMMI 17/058), the occupation is applicable to the proposed employee in accordance with any specifications made in that instrument, there is a genuine need for the nominee to be employed as a paid employee in the position, and certain specified training requirements are met; or

    ·the position and nominator’s business is located in regional Australia, there is a genuine need for the nominee to be employed as a paid employee in the position under the nominator’s direct control, the position 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.

12. The applicant nominated a restaurant manager (Café or Restaurant Manager ANZSCO 141111) who will be employed in regional Queensland at Rangeville 4352 on a salary of $54,000 per annum plus superannuation guarantee contribution.

13. The nomination application states that to the applicant’s business employs five Australians, five foreign employees of whom two are 457 visa holders, to our overseas students and one is a temporary work Visa holder.

14. The primary nominee is  Mr Jiaxin Tao.  The applicant is Sengaroun Pty Ltd as trustee for for the A & A Family Trust trading as ‘Thai On High Street’.  The applicant secured a form 1404 from the Queensland Chamber of Commerce and Industry of its satisfaction under the terms of that form.

15. An undated submission was made by the applicant of the applicant’s business employing eight employees which include a manager who was a 457-visa holder, a cook who also was a 457- visa holder, an Australian kitchen hand employed casually and three kitchen staff, one of which was an Australian working part-time and two were temporary visa holders employed part-time and lastly a waitress working casually who also was an Australian.

16. That the applicant did not comply with the s 359(2) invitation, it did provide to the Tribunal a letter from the business owner of the experiences the business has had in not securing people to fill vacant positions 1 of which is the café or restaurant manager.  However, in this letter, the nominee is referred to as ‘Nuttiya’ who is not to the identified nominee.  This letter states that this person has been working for the applicant since 2015.  The applicant also refers to this person as a female and says ‘she is 1 of our valuable workers, she has been together with us since the pandemic started and all the way through until now.  She has always performed her duties as restaurant manager diligently and competently.  She is also good with customers who prefer to speak Thai.’

17. The applicant did provide to the Department an employment agreement dated 21 December 2017 between Sengaroun Pty Ltd as trustee for the A & A Family Trust (the owner of the business) and employee Jiaxin Tao in the position of Restaurant Manager.  After the expiration of the s 359(2) invitation, the applicant provided to the Tribunal another ‘contracts for personal service’ dated 9 August 2022.  However, this contract was between the applicant and Ms Nuttiya Khunsong who is not the identified nominee in the applicant’s nomination application.  Notwithstanding, the contract states that the salary to be paid to this person is to be the amount set out in item 7.  There is no item 7 in the contract.

18. It is with this background together with very limited information as to the update of the applicant’s financial position and more concerning the person who is the nominee to occupy the position of restaurant manager.  As the person identified in the latest employment contract is not the identified nominee, the Tribunal is not satisfied there is a genuine need for the position a café or restaurant manager which are now appears to be filled by a person other than the identified nominee.

19. 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

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

    Ian Berry

    
    

    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 an identified person, as  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).