SG Ventures (QLD) Pty Ltd (Migration)

[2021] AATA 3764

SG Ventures (QLD) Pty Ltd (Migration) [2021] AATA 3764 (20 September 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  SG Ventures (QLD) Pty Ltd

CASE NUMBER:  1834267

HOME AFFAIRS REFERENCE(S):          BCC2018/870663

MEMBER:Ian Berry

DATE:20 September 2021

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decision not to approve the nomination.

Statement made on 20 September 2021 at 2:16pm

CATCHWORDS
MIGRATION – application for approval of nomination of position – manager of fast food casual chain restaurant – no updated and current information provided – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 140GB, 359(2), 359C, 360(3), 363A
Migration Regulations 1994 (Cth), r 2.72

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 Immigration to refuse to approve a nomination under s 140GB of the Migration Act 1958 (Cth) (the Act) and r.2.72 of the Migration Regulations 1994 (Cth) (the Regulations).

2. The applicant applied for approval of the nomination on 23 February 2018. The delegate decided not to approve the nomination on the basis that the nominated occupation was café or restaurant manager (ANZSCO code 141111). The delegate decided that the nominated occupation is applicable where the business is a limited service restaurant. On the information available the delegate held that to the Guzman Y Gomez restaurant is a well-known fast Food or fast casual restaurant chain and makes itself as a fast food restaurant or a fast casual restaurant.

3. The applicant was represented in relation to the review by its registered migration agent Ms K Smith (migration agent number 1384452).

4. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. The issue in the present case is whether the applicant satisfies s.140GBA and the criteria in r.2.72.

6. Section 359 of the Act provides:

   359 Tribunal may seek information

   (1)In conducting the review, the Tribunal may get any information that it considers relevant. However, if the Tribunal gets such information, the Tribunal must have regard to that information in making the decision on the review.

   (2)Without limiting subsection (1), the Tribunal may invite, either orally (including by telephone) or in writing, a person to give information.

   (3)If a written invitation under subsection (2) is given to a person other than the Secretary, the invitation must be given:

   (a)    except where paragraph (b) applies—by one of the methods specified in section 379A; or

   (b)    if the invitation is given to a person in immigration detention—by a method prescribed for the purposes of giving documents to such a person.

   (4)If an invitation is given to the Secretary, the invitation must be given by one of the methods specified in section 379B.

7. On 22 July 2021, the Tribunal wrote to the applicant pursuant to s.359(2) of the Act, inviting the applicant to provide information about the applicant’s business, more particularly, including information and directions as to access to the appropriate form and the time it must be completed and provided to the Tribunal:

   ‘Accordingly, the Tribunal now invites the applicant to provide, in writing, updated and current information about its business and the nominated position. Specific details about the information requested as set out in the Request for This Nomination Information form which can be accessed by clicking on the link below. The information requested may be given to us by completing the online form and clicking ‘submit’ on the Declaration page.

   If you are unable to access the Request for Business Nomination Information form by clicking on the link above, please contact us as soon as possible.

   Please ensure that all information you give to the Tribunal is complete and up to date.

   Information, in writing, should be received by 5 August 2021. 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 5 August 2021, 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 by 5 August 2021 and it must state the reason why the extension of time as required.

   We will carefully consider any request for an extension of time and will advise whether or not extension has been granted.’

8. 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 5 August 2021, the Tribunal may make a decision on the review without taking further steps to obtain the information and the applicant would lose any entitlement it might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments. 

9. The applicant has not provided the information within the prescribed period. The applicant requested an extension of time. On 5 August 2021, the Tribunal communicated with the applicant which requested an extension of time to provide the requested information. The Tribunal considered the applicant’s request carefully and has agreed to extend the time to provide the information 19 August 2021.

10. The Tribunal did not receive any information on or before 19 August 2021. In these circumstances, s.359C applies and pursuant to s.360(3), the applicant is not entitled to appear before the Tribunal. The effect of s.363A of the Act is that if an applicant has no entitlement to a hearing, the Tribunal has no power to permit it to appear: Hasran v MIAC [2010] FCAFC 40. The Tribunal has decided to proceed to decision without taking further steps to obtain the comments

11. The Tribunal has considered the evidence in both the files of the Department and the Tribunal. There is insufficient evidence for the Tribunal to assess all the criteria required under the legislation. It is in those circumstances; the Tribunal is satisfied and finds that the applicant has not provided sufficient information and evidence for it to approve the nomination.

    DECISION

12. The Tribunal affirms the decision not to approve the nomination.

    Ian Berry
    Member