Sidd Pty Ltd (Migration)

[2021] AATA 1150

Sidd Pty Ltd (Migration) [2021] AATA 1150 (9 March 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Sidd Pty Ltd

CASE NUMBER:  1810399

HOME AFFAIRS REFERENCE(S):          BCC2016/2474811

MEMBER:Mark O'Loughlin

DATE:9 March 2021

PLACE OF DECISION:  Adelaide

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

Statement made on 09 March 2021 at 12:14pm

CATCHWORDS

MIGRATION – nomination approval of a position – Direct Entry Nomination stream – position of café or restaurant manager – nominated position could be filled by an Australian citizen or permanent resident – limited efforts to recruit Australian citizen or permanent resident –
regional certifying body report – decision under review affirmed     

LEGISLATION

Migration Act 1958, s 245
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 Home Affairs on 23 March 2018 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).

1. The applicant applied for approval on 26 July 2016. 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 stream (r.5.19(3)) and a Direct Entry nomination stream (r.5.19(4)). 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).

1. In this case, the applicant has applied for approval of a nomination, seeking to satisfy the criteria in the Direct Entry nomination stream.

1. The delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19(4)(h)(ii)(C) of the Regulations because the delegate was not satisfied that the position could not be filled by a local Australian citizen or Australian permanent resident.

1. Ms. Juanita Chetly Du Pont, the sole director and shareholder of the applicant, appeared before the Tribunal on 30 November 2020 to give evidence and present arguments. The Tribunal also received oral evidence from Mr. Qazi Muhammad Awais Siddiqui, the nominee for the relevant position and an applicant in a related visa application. 

1. The applicant was represented in relation to the review by its registered migration agent.

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

CONSIDERATION OF CLAIMS AND EVIDENCE

1. 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 r.5.19(4), which is extracted in the attachment to this decision. For the nomination to be approved, all the requirements must be met.

1. The applicant had provided the Tribunal with a bundle of documents numbered 1 to 92 in support of its claim.

10.  Ms du Pont gave evidence that she had been the sole director and shareholder of the company since 2019.

11.  She said that she works as a nurse but that she had wanted to try to run a business as well. She said she had done some study in the area of business some time ago.

12.  She said that she learned about the opportunity to acquire the applicant business from a family friend.

13.  The applicant said that the business had an outstanding tax debt and that she took the business over on the basis that she paid that outstanding amount, which she believed to be in the vicinity of $20,000.  She said that that was effectively the purchase price for the business.

14.  The Tribunal has had regard to company information provided to it by the applicant and appearing at pages 9 to 18 of the bundle of documents tendered to the Tribunal.

15.  That company information shows that there have been 3 previous directors of the applicant company, the first being Muhammad Raheel Siddiqui who was appointed on 22 April 2016 (the date on which the applicant company was first registered).  He remained a director until 15 July 2016.

16.  On 24 June 2016 Adil Iftikhar was appointed director - about 3 weeks before Muhammad Raheel Siddiqui finished as director.

17.  Adil Iftikhar’s directorship lasted until 26 February 2018 when Mirza Umerdraz Baig was appointed director.

18.  He remained director until 26 June 2019 when Ms du Pont was appointed.

19.  Each of the directors referred to has also been sole shareholder.

20.  The Tribunal observes that the applicant applied for approval of the nomination on 26 July 2016, about 3 months after the company was first registered.  The Tribunal further observes that at the time the application was made, the sole director was Adil Iftikhar and at the time of the delegate’s decision on 23 March 2018, Mirza Uberdraz Baig was sole director.

21.  Ms du Pont’s evidence was that she was not involved with the business in any way before purchasing it in 2019.

22. In relation to the specific issue of what efforts had been made to place an Australian citizen or permanent resident in the position of café or restaurant manager, and whether r.5.19(4)(h)(ii)(C) is satisfied, the Tribunal had regard to a letter dated 26^th of June 2016 on the applicant’s letterhead that was included at p.90 of the applicant’s document bundle.

23.  It was signed by Mr. Iftikhar.

24.  The 2^nd and 3^rd paragraphs of the letter read as follows;

i.“We placed an advertisement for the position of café and restaurant manager on gumtree.com.au on 29 4 2016 for more than 8 weeks period to date.

ii.We received around 4 job applications including one Australian resident/citizen. All job applications were assessed against the position selection criteria and one Australian resident/citizen was interviewed. But does not possess any relevant qualification and/or work experience.”

25.  Ms du Pont gave evidence that she had never met Mr Adil Iftikhar or Mr Muhammad Raheel Siddiqui and that the only one of the previous directors with whom she had dealt was Mr Mirza Umerdraz Baig, the owner before her who was an acquaintance of her husband’s family.

26.  Ms du Pont was asked whether she understood that the delegate had decided to refuse the nomination because the delegate was not satisfied that enough effort had been made to find Australian citizen or permanent resident to take the job.

27.  Ms du Pont said that she did understand that, but she did not realise that there would be so much paperwork associated with the visa application. She said that she assumed the paperwork was in order when she took the business over and that all that would be “done and dusted”.

28.  She was asked about her statement that appears on pages 3 to 6 of the bundle of documents provided by the applicant to the Tribunal. At point 2 on the 3^rd page of that statement she says:

“Company at the time published the advertisement on Gumtree and on our page (screenshot attached) to attract the suitable candidates for the position. After    reviewing evidence before me, I found that company received 4 applications out of      which only one was Australian citizen/permanent resident, who had no qualifications and/or experience in the relevant or closely relevant field. Therefore, it was deemed not suitable for the job (Declaration of the advertisement is attached).”

29.  Ms du Pont was asked whether her statement is accurate, and she said that it is.

30.  She was asked about the “evidence before me” which she had reviewed to satisfy herself that adequate enquiry had been made to place an Australian citizen or permanent resident in the role of manager.

31.  Ms du Pont said that the information that she had about the recruitment came from the Gumtree screenshots, the letter on file and the conversation that she had with Mr Baig when the handover of the business took place.

32.  Ms du Pont said that during the handover Mr. Baig told her that the nominee is a visa holder and that there had been 4 applicants for the job who had not met the criteria. She said that she was given a good reference for the nominee and that there was nothing else covered in the handover conversation save what was in the letter of 26 July 2016.

33.  That letter is signed by Adil Iftikhar, who had been a director of the company for 2 days at that stage.

34.  There is no evidence that Mr Mirza Umerdraz Baig, who briefed Ms du Pont on handover, was associated with the company at the time the advertisement was placed.  In any event, Ms du Pont’s evidence was that when he briefed her at the time of handover she was not told anything about the recruitment process that is not contained in the letter of 26 July 2016 or the Gumtree screenshots (which appear at pages 88 and 89 of the bundle of documents).

35.  The letter suggests that the other applicants did not hold appropriate visas for full-time work or were not prepared to move to Ledge Point as it was too far out of the city.

36.  The Tribunal observes that the screenshot of the Gumtree ad makes it clear that the job is located at Ledge Point and is full-time employment.  It seems unlikely that persons who are unable to work full time or are not prepared to move to Ledge Point would form the majority of respondents to such an advertisement.

37.  The evidence of efforts made to employ a relevant Australian citizen or permanent resident is scant and cannot be tested by the Tribunal.

38.  Having considered the statement and oral testimony of Ms du Pont, the letter from the applicant of 26 June 2016, the Gumtree screenshot of the ad from 29 April 2016, and the written submissions of the applicant’s representative, all of which are included in the bundle of documents tendered by the applicant, the Tribunal is not satisfied that the position cannot be filled by an Australian citizen or an Australian permanent resident who is living in the local area of Ledge Point.

39.  The Tribunal has also had regard to the evidence of the nominee, Mr. Qazi Siddiqui.  He said that he had worked for the business for a long time, including during the time that Mr. Adil Iftikhar owned it.  He said that Mr. Adil Iftikhar had no apparent direct involvement in the running of the business and that he lived in NSW.

40.  Mr. Qazin Siddiqui said that he had started working for the business in March 2016, before it was bought by the applicant company.  The Tribunal observes that the applicant company was not formed until late April 2016.

41.  He said that he started in March 2016 working part time and became a full-time worker in September 2016.

42.  He said that he did not answer an advertisement for the full-time position, but that he was approached by the owners.  He said he told them that he would love to work for them full time.

43.  He was already working at the premises part time while he was still on a student visa.

44.  He said that he has since looked at the arrangements that had been made for advertising his position and that although he does not recall the detail, he understands that there were few applicants, and none were suitable.

45.  He says that he believes that there were interviews conducted by Adil.

46.  Mr. Qazi Siddiqui’s evidence in relation to the efforts made to obtain an Australian citizen or permanent resident to fill the position was vague and unsupported, which is quite understandable given that he was not involved in the process.  The Tribunal gives his evidence about these matters little weight.

47.  The applicant’s written submissions, and those of its registered migration agent, direct the Tribunal’s attention to a form 1404 completed by a regional certifying body and dated 3 August 2016.  That certificate, a copy of which appears at p.91 of the bundle of documents, includes a declaration that the nominated position cannot be filled by an Australian citizen or Australian permanent resident who is living in the same local area as the nominated position.  The applicant and its representative suggest that this declaration is conclusive and should be accepted by the Tribunal as proof.

48. The Tribunal acknowledges that it is necessary for the applicant to provide such certification in order to satisfy r.5.19(4)(h)(ii)(F) and is satisfied that that subregulation is met. The Tribunal also has regard to that advice and accepts that it is relevant to consideration of whether the applicant satisfies r.5.19(4)(h)(ii)(C).

49. However, the applicant does not say that the regional certifying body had any further evidence before it than that available to the Tribunal. The Tribunal does not accept that the certificate or the declaration that it contains is definitive or binding upon the Tribunal. There is nothing that puts the regional certifying body in any better position than the Tribunal to decide whether the applicant satisfies r.5.19(4)(h)(ii)(C) and the Tribunal places little weight on the certificate.

50.  Having considered all of the relevant evidence available to it, the Tribunal is not satisfied that the position cannot be filled by an Australian citizen or an Australian permanent resident who is living in the Ledge Point location.

51. Accordingly, the requirements of r.5.19(4)(h) are not met.

52. For the above reasons the Tribunal is not satisfied that the applicant meets the requirements of r.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 r.5.19(3). Accordingly, the nomination of the position cannot be approved. Therefore, the Tribunal must affirm the decision under review.

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

Mark O'Loughlin
Member

ATTACHMENT  -  EXTRACTS FROM THE MIGRATION REGULATIONS 1994

5.19Approval of nominated positions (employer nomination)

…

1. 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

1. 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).