SHEESHMAHAL INDIAN RESTAURANT PTY LTD (Migration)

[2017] AATA 1991

SHEESHMAHAL INDIAN RESTAURANT PTY LTD (Migration) [2017] AATA 1991 (27 October 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  SHEESHMAHAL INDIAN RESTAURANT PTY LTD

CASE NUMBER:  1609438

DIBP REFERENCE(S):  BCC2015/3545837

MEMBER:Bridget Cullen

DATE:27 October 2017

PLACE OF DECISION:  Brisbane

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

Statement made on 27 October 2017 at 12:07pm

CATCHWORDS

Migration – Approval of nominated positions (employer nomination) – Temporary Residence Transition Nomination stream – Nominee employed on a full-time basis in the position for at least 2 years – Applicant’s business has not been profitable – Financial capacity to operate as a business

LEGISLATION

Migration Regulations 1994, r 5.19

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 on 8 June 2016 to reject the applicant’s application for approval of the nomination of a position in Australia under r.5.19 of the Migration Regulations 1994 (the Regulations).

2. The applicant applied for approval on 27 November 2015. The requirements for the approval of the nomination of a position in Australia are found in r.5.19 of the Regulations which contains two alternative streams: a Temporary Residence Transition nomination (r.5.19(3)) stream and a Direct Entry nomination (r.5.19(4)) stream. If the application is made in accordance with r.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: r.5.19(5).

3. In this case, the applicant has applied for approval of a nomination, seeking to satisfy the criteria in the Temporary Residence Transition nomination stream.

4. The delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19(3) of the Regulations because the delegate considered there was insufficient evidence that the business had the financial capacity to pay the full-time salary for the nominated position for at least 2 years. Additionally, as the applicant had not provided any evidence, the delegate considered that r.5.19(4) of the Regulations was not met.

5. The applicant appeared before the Tribunal on 24 October 2017 to give evidence and present arguments, through its director, Mr Jahangir Alam.  The Tribunal also received oral evidence from Mr Syed Razri Waseem, a friend and self-described business partner, and Mr Surender Singh Chandi, the nominee.

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

7. The issue in this case is whether the applicant meets the requirements for approval of the nomination under the Temporary Residence Transition nomination stream set out in r.5.19(3), which is extracted in the attachment to this decision.

   Background

8. The applicant in this case is Sheeshmahal Indian Restaurant Pty Ltd. On 18 November 2015, the applicant applied for approval to nominate a cook, ANZSCO Code 351411. The “Current Business Organisation Chart” lodged by the applicant with the Department disclosed that the business had one restaurant manager and four cooks.   The employment contract provided to the Department indicates that the nominee was being offered a salary of $53,000.00 per annum.

9. The profit and loss statement for the year ended 30 June 2015, provided with the application, indicated that the applicant had a loss before income tax of $350,503.91 for 2015.  The Balance Sheet as at 30 June 2015 revealed a total net liability of $350,503.91.  In the 2014 tax year, there was a loss before income tax of $184,544.03, and a net liability of $184,544.03.

10. During the hearing, Mr Alam admitted that the applicant had struggled and was not profitable.  Still, he maintained that he had always paid staff.  The Tribunal is prepared to accept that Mr Alam paid the nominee, as Mr Changi gave evidence that he has been paid. There is no evidence from the remaining staff about whether that have been paid. 

11. Regardless, both Mr Alam and Mr Waseem gave evidence that the applicant had not been profitable.    The applicant provided the Tribunal with BAS Statements for the quarters ending 31 March 2016, 30 June 2016, 30 September 2016, and 31 December 2016.  These BAS Statements respectively indicate quarterly net sales of approximately $91,326.00; $74,118.00; $97,104.00; and $95,868.00. All of the statements are unsigned.

12. No further information or supporting documents were provided to the Tribunal during the course of the review. During the hearing, the Tribunal invited the applicant to provide further material about its financial position to the Tribunal, either by way of an adjournment or following the hearing.  Mr Alam declined the invitation, saying that his personal circumstances prevented him from doing so, and that he accepted that the applicant’s business had not been profitable.

    CONSIDERATION OF THE EVIDENCE

13. For the nomination to be approved, all the requirements must be met. If an application fails to meet one requirement, there is therefore no need to consider the remaining requirements.

14. As noted above, the delegate refused the application, noting that that the application did not meet either r.5.19(3) or r.5.19(4) of the Regulations. In relation to r.5.19(3)(d), the delegate found that insufficient information had been provided as to the financial capacity of the business to provide the employment envisaged in the nomination.

    Future employment of the visa holder: r.5.19(3)(d)

15. Regulation 5.19(3)(d) only applies to certain nominees (those described in r.5.19(3)(c)(i)). It appears from the application lodged with the department that Mr Chandi was nominated on the basis that he met r.5.19(3)(c)(i)). For this class of person, the regulations require 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. The material on the departmental file does not satisfy the Tribunal that the applicant will employ the nominee in the nominated position of cook in the restaurant for at least 2 years. The insufficiency of the evidence of the applicant's financial capacity to employ the applicant in the nominated position for two years was clearly identified in the delegate's decision record, as was the lack of evidence generally as to the financial situation of the applicant. However, the applicant declined the invitation to provide further material to the Tribunal.

17. Even if it is the applicant’s intention to pay its staff, including Mr Chandi, before it meets its other financial obligations, this is not adequate to meet the test that the business has financial capacity.  The applicant must have financial capacity to operate as a business, not merely to pay its staff.  Otherwise, it is merely elected to pay some of its financial obligations before meeting others, demonstrating that as a whole, it is in a precarious position.  The uncontroverted evidence before the Tribunal is that the applicant has sustained large operating losses, since at least 2014. 

18. In these circumstances, the Tribunal is not satisfied that the nominated employee will be employed on a full-time basis in the position for at least 2 years, and finds that the requirements of r.5.19(3)(d)(i) are not met.

19. For the above reasons the Tribunal is not satisfied that the applicant meets the requirements of r.5.19(3). The applicant has not sought to satisfy the criteria in Direct Entry nomination stream, and has provided no evidence that the requirements in r.5.19(4) are met. Accordingly, the nomination of the position cannot be approved and the Tribunal must affirm the decision under review.

20. For the above reasons the Tribunal is not satisfied that the applicant meets the requirements of r.5.19(3). The applicant has not sought to satisfy the criteria in Direct Entry nomination stream, and as such has not met the requirements in r.5.19(4). Accordingly, the nomination of the position cannot be approved. Therefore, the Tribunal must affirm the decision under review.

    DECISION

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

    Bridget Cullen
    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

    (b)be accompanied by the fee mentioned in regulation 5.37.

    Temporary Residence Transition nomination

    (3)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 person who holds a Subclass 457 … visa granted on the basis that the person satisfied the criterion in subclause 457.223(4) of Schedule 2; and

    (iii)     identifies an occupation, in relation to the position, that:

    (A)is listed in ANZSCO; and

    (B)has the same 4-digit occupation unit group code as the occupation carried  out by the holder of the Subclass 457 … visa; and

    (b)the nominator:

    (i)       is, or was, the standard business sponsor who last identified the holder of the Subclass 457 … visa in a nomination made under section 140GB of the Act or under regulation 1.20G or 1.20GA as in force immediately before 14 September 2009; and

    (ii)      is actively and lawfully operating a business in Australia; and

    (iii)     did not, as that standard business sponsor, meet regulation 1.20DA, or paragraph 2.59(h) or 2.68(i), in the most recent approval as a standard business sponsor; and

    (c)either:

    (i)       both of the following apply:

    (A)in the period of 3 years immediately before the nominator made the application, the holder of the Subclass 457 …visa identified in subparagraph (a) (ii) has:         

    (I)held one or more Subclass 457 visas for a total period of at least 2 years; and

    (II)been employed in the position in respect of which the person holds the Subclass 457 … visa for a total period of at least 2 years (not including any period of unpaid leave);

    (B)the employment in the position has been full-time, and undertaken in Australia; or

    (ii)      all of the following apply:

    (A)the person holds the Subclass 457 … visa on the basis that the person was identified in a nomination of an occupation mentioned in sub-subparagraph 2.72(10)(d)(iii)(B) or sub-subparagraph 2.72(10)(e)(iii)(B);

    (B)the nominator nominated the occupation;

    (C)the person has been employed, in the occupation in respect of which the person holds the Subclass 457 … visa, for a total period of at least 2 years in the period of 3 years immediately before the nominator made the application; and

    (d)for a person to whom subparagraph (c)(i) applies:

    (i)       the person will be employed on a full-time basis in the position for at least 2 years; and

    (ii)      the terms and conditions of the person’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)       the nominator:

    (A)fulfilled any commitments the nominator made relating to meeting the nominator’s training requirements during the period of the nominator’s most recent approval as a standard business sponsor; and

    (B)complied with the applicable obligations under Division 2.19 relating to the nominator’s training requirements during the period of the nominator’s most recent approval as a standard business sponsor; or

    (ii)      it is reasonable to disregard subparagraph (i); and

    Note Different training requirements apply depending on whether the application for approval as a standard business sponsor was made before 14 September 2009 or on or after that date.

    (g)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

    (h)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.