Smooth Sailing Ventures Pty Ltd (Migration)

[2021] AATA 3454

Smooth Sailing Ventures Pty Ltd (Migration) [2021] AATA 3454 (24 August 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Smooth Sailing Ventures Pty Ltd

CASE NUMBER:  1827095

HOME AFFAIRS REFERENCE(S):          BCC2017/2326460

MEMBER:Jessica Henderson

DATE:24 August 2021

PLACE OF DECISION:  Perth

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

Statement made on 24 August 2021 at 2:51pm

CATCHWORDS
MIGRATION – nomination – applicant is not currently trading as a restaurant – no current need for a Chef – position associated with the nominated occupation is not genuine – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 140GB, 359
Migration Regulations 1994, rr 2.72, 2.73

CASES

Cargo First Pty Ltd v MIBP [2016] FCA 30

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 27 August 2018 to refuse to approve the applicant’s nomination under s 140GB of the Migration Act 1958 (Cth) (the Act) and reg 2.72 of the Migration Regulations 1994 (Cth) (the Regulations).

2. The applicant applied for approval on 29 June 2017. A nomination of an occupation for a Subclass 457 visa is made under s 140GB of the Act and reg 2.73 of the Regulations. Regulations 2.72(3) to (12) prescribe the criteria that must be satisfied for the Minister to approve a nomination by a person. These criteria are extracted in the attachment to this decision. For nomination applications made from 23 November 2013, additional criteria are specified in s 140GBA.

3. The delegate decided not to approve the nomination on the basis that the applicant did not satisfy reg 2.72(10)(aa) because the delegate was satisfied that the position was located in a fast casual dining establishment and therefore was located in a limited service restaurant.

4. On 9 April 2021 the Tribunal wrote to the applicant pursuant to s.359(2) of the Act and invited it to provide further information. The applicant completed the online form ‘Request for Business Nomination Information’ in response.

5. On 21 June 2021 the Tribunal wrote to the applicant in the following terms:

   INVITATION TO COMMENT ON OR RESPOND TO INFORMATION – SMOOTH
   SAILING VENTURES PTY LTD

   I am writing on instruction from the Member conducting your review, in relation to the
   application for review made by Smooth Sailing Ventures Pty Ltd in respect of a
   decision to refuse a business nomination application.

   In conducting the review, we are required by the Migration Act 1958 to invite Smooth
   Sailing Ventures Pty Ltd to comment on or respond to certain information which we
   consider would, subject to any comments or response it makes, be the reason, or a
   part of the reason, for affirming the decision under review.

   Please note, however, that we have not made up our mind about the information.

   The particulars of the information are as follows.

   1.The Tribunal notes the information provided in your response to the “Invitation to Provide Information” letter dated 9 April 2021 included the following:

   “Before October 2021 (sic) the restaurant was operating from Osman (sic) Park. In October 2021 the Osman Park restaurant was sold and the business is in the process of securing a new premise.”

   2.The Tribunal also notes that a Facebook webpage called “Fushi” with a local

   address of “20 Walters Drive 6017 Perth” contains the following post:

   Jan 2021 update:

   We would like to advise our loyal customers our pop up at Rifresso has ended as of December 2020. We would like to thank Gilbert Rief for the hospitality and wish you all the best in the new year.

   Please stay tuned for our next location.

   There is no subsequent update appearing on that Facebook page, and Fushi does not appear to the Tribunal to have any other website.

   The collective effect of the above information appears to be that Fushi may not
   currently be trading as a restaurant.

   This information is relevant to the review for two reasons:

   1.Regulation 2.72(10)(f) requires that the position associated with the nominated occupation is genuine. If Fushi is not currently trading as a restaurant, then Fushi will need to address how the position of full-time chef is said to be genuine.

   2.Regulation 2.72(10)(c) requires that the terms and conditions of employment of the nominee will be no less favourable than those that are, or would be, provided to an Australian citizen or permanent resident performing equivalent work at the same location. In order to perform that assessment, the Tribunal requires confirmation of the relevant location and the current terms and conditions of employment.

   If the Tribunal finds that Fushi is not currently trading as a restaurant it may be the
   reason or part of the reason to affirm the decision to refuse the business nomination
   application.

   Smooth Sailing Ventures Pty Ltd is invited to give comments on or respond to the
   above information in writing.

   The comments or response should be received by 7 July 2021. If the comments or
   response are in a language other than English, they must be accompanied by an
   English translation from an accredited translator.

   If Smooth Sailing Ventures Pty Ltd cannot provide written comments or response by 7 July 2021, it may ask us for an extension of time in which to provide the comments or response. If Smooth Sailing Ventures Pty Ltd makes such a request, it must be
   received by us by 7 July 2021 and Smooth Sailing Ventures Pty Ltd must state the
   reason why the extension of time is required.

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

   If we do not receive Smooth Sailing Ventures Pty Ltd's comments or response within
   the period allowed or as extended, we may make a decision on the review without
   taking any further action to obtain its views on the information. Smooth Sailing
   Ventures Pty Ltd will also lose any entitlement it might otherwise have had
   under the Migration Act 1958 to appear before us to give evidence and present
   arguments.

6. As of 7 July 2021 no response had been received from the applicant.

7. On 21 July 2021 the Tribunal wrote to the applicant and confirmed that the Tribunal had not received a response to the letter of 21 June 2021, and that the hearing listed on 29 July 2021 had been cancelled.  The Tribunal further noted that if it did not hear from the applicant by 27 July 2021 the Tribunal would proceed to make a decision on the papers before it.

8. The Tribunal has not subsequently heard from the applicant.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The issue in the present case is whether the applicant meets the criteria for approval of the nomination. The Tribunal must approve the nomination if the applicant is an approved sponsor and meets the requirements in reg 2.72: s 140GB(2). The applicant must also have paid any nomination training contribution charge in relation to the nomination for which they are liable, but this liability only arises for nominations made from 12 August 2018. In addition, for nominations made from 23 November 2013, s 140GBA must be met.

    Position must be genuine

11. Regulation 2.72(10)(f) requires that the position associated with the nominated occupation is genuine. This was considered in Cargo First Pty Ltd v MIBP [2016] FCA 30, where the Court (at [34]) upheld the Tribunal’s approach of qualitatively assessing the position and comparing this with the occupation nominated in order to determine whether it was genuine.

12. The nominated position is that of Chef (ANZSCO 351311).  The nomination specified that the street address where the nominee would be employed was Ground Floor, 20 Walters Drive, Osborne Park.

13. The applicant completed the online form ‘Request for Business Nomination Information’ in response to the Tribunal’s invitation to provide information sent on 9 April 2021.  The applicant provided the following information to the Tribunal:

    “Before October 2021 (sic) the restaurant was operating from Osman (sic) Park. In October 2021 the Osman Park restaurant was sold and the business is in the process of securing a new premise.”

14. An ABN search for the applicant records a business name ‘FUSHI modern sushi’ and menu headed ‘Fushi’ was provided by the applicant to the delegate in support of the original application.  The Tribunal conducted an internet search for the applicant business and located a Facebook webpage called “Fushi” with a local address of “20 Walters Drive 6017 Perth”.  The Facebook webpage contained the following post:

    Jan 2021 update:

    We would like to advise our loyal customers our pop up at Rifresso has ended as of December 2020. We would like to thank Gilbert Rief for the hospitality and wish you all the best in the new year.

    Please stay tuned for our next location.

15. No subsequent update appeared on that Facebook page, and Fushi does not appear to the Tribunal to have any other website.

16. The Tribunal wrote to the applicant to the above effect and setting out the Tribunal’s view that Fushi may not currently be trading as a restaurant.  The applicant did not respond.

17. The Tribunal finds that the applicant is not currently trading as a restaurant, and that therefore it has no current need for a Chef. The Tribunal is satisfied that the position associated with the nominated occupation is not genuine.

18. For these reasons the requirements of reg 2.72(10)(f) are not met.

19. For the reasons given above, the Tribunal is satisfied that the applicant does not meet the applicable criteria for the nomination to be approved. Accordingly, the decision under review must be affirmed.

    DECISION

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

    Jessica Henderson
    Member

    
    

    ATTACHMENT - EXTRACTS FROM THE MIGRATION REGULATIONS 1994

    2.72 Criteria for approval of nomination — Subclass 457…

    (1)This regulation applies to a person who is:

    (a)is any of the following:

    (i) a standard business sponsor;

    (ii) a person who has applied to be a standard business sponsor;

    (iii) a party to a work agreement (other than a Minister);

    (iv) a party to negotiations to a work agreement (other than a Minister); and

    (b)a party to a work agreement (other than a Minister);

    who, under paragraph 140GB (1) (b) of the Act, has nominated an occupation in relation to a holder of, or an applicant or a proposed applicant for, a [Subclass 457 visa].

    (2)For subsection 140GB (2) of the Act, the criteria that must be satisfied for the Minister to approve a nomination by a person are set out in subregulations (3) to (12).

    (3)The Minister is satisfied that the person has made the nomination in accordance with the process set out in regulation 2.73.

    (4)The Minister is satisfied that the person is:

    (a)a standard business sponsor; or

    (b)a party to a work agreement (other than a Minister).

    (5)The Minister is satisfied that the person has identified in the nomination the visa holder, or the applicant or proposed applicant for the visa, who will work in the nominated occupation.

    (6)If the person identifies a holder of a [Subclass 457 visa] (the visa holder) for subregulation (5), the Minister is satisfied that the person:

    (a)has listed on the nomination each other holder of a visa of that kind who was granted the visa on the basis of having the necessary relationship with the visa holder as mentioned in clause 457.321 of Schedule 2; and

    (b)if the Minister requires the visa holder to demonstrate that he or she has the skills necessary to perform the occupation — the visa holder demonstrates that he or she has those skills in the manner specified by the Minister.

    (7)For paragraph (6) (a), the Minister may disregard the fact that 1 or more persons required to be listed on the nomination are not listed, if the Minister is satisfied it is reasonable in the circumstances to do so.

    (7A)In addition to subregulation (6):

    (a)if:

    (i)       the person identifies a holder of a [Subclass 457 visa] (the visa holder) for subregulation (5); and

    (ii)      the [Subclass 457 visa] was granted after the Minister had waived the requirements of paragraph 4006A (1) (c) of Schedule 4 on the basis of a written undertaking made by the current sponsor of the visa holder (as set out in subclause 4006A (2) of that Schedule);

    the Minister is satisfied that the person has provided, in writing, an undertaking that is equivalent to the undertaking made by the current sponsor of the visa holder; and

    (b)if:

    (i)       the person identifies a holder of a [Subclass 457 visa] (the visa holder) for subregulation (5); and

    (ii)      the person has listed on the nomination a person described in paragraph (6) (a); and

    (iii)     the [Subclass 457 visa] was granted to the person described in paragraph (6) (a) after the Minister had waived the requirements of paragraph 4006A (1) (c) of Schedule 4 on the basis of a written undertaking made by the current sponsor of the visa holder (as set out in subclause 4006A (2) of that Schedule);

    the Minister is satisfied that the person has provided, in writing, an undertaking that is equivalent to the undertaking made by the current sponsor of the visa holder.

    (8)If the nomination was made before 1 July 2010 — the Minister is satisfied that the person has provided the following information as part of the nomination:

    (a)if there is a 6‑digit ASCO code for the nominated occupation — the 6-digit ASCO code;

    (b)if there is no 6-digit ASCO code for the occupation, and the person is a standard business sponsor — the name of the occupation as it appears in the instrument in writing made for the purposes of paragraph (10) (a);

    (c)if there is no 6-digit ASCO code for the occupation and the person is a party to a work agreement — the name of the occupation as it appears in the work agreement;

    (d)the location or locations at which the nominated occupation is to be carried out.

    (8A)If the nomination is made on or after 1 July 2010 – the Minister is satisfied that the person has provided the following information as part of the nomination:

    (a)if there is a 6-digit ANZSCO code for the nominated occupation - the name of the occupation and the corresponding 6-digit ANZSCO code;

    (b)if:

    (i)       there is no 6-digit ANZSCO code for the nominated occupation; and

    (ii)      the person is a standard business sponsor;

    the name of the occupation and the corresponding 6-digit code as they are specified in the instrument in writing made for paragraph (10)(aa);

    (c)if:

    (i)       there is no 6-digit ANZSCO code for the nominated occupation; and

    (ii)      the person is a party to a work agreement;

    the name of the occupation and the corresponding 6-digit code (if any) as they are specified in the work agreement;

    (d)the location or locations at which the nominated occupation is to be carried out.

    (8B)The Minister is satisfied that the person has, in writing, certified as part of the nomination whether or not the person has engaged in conduct, in relation to the nomination, that constitutes a contravention of subsection 245AR(1) of the Act.;

    (9)The Minister is satisfied that either:

    (a)there is no adverse information known to Immigration about the person or a person associated with the person; or

    (b)it is reasonable to disregard any adverse information known to Immigration about the person or a person associated with the person.

    (10)If the person is a standard business sponsor — the Minister is satisfied that:

    (a)if the nomination was made before 1 July 2010 - the nominated occupation corresponds to an occupation specified by the Minister in an instrument in writing for this paragraph; and

    (aa)if the nomination is made on or after 1 July 2010 – the nominated occupation and its corresponding 6-digit code correspond to an occupation and its corresponding 6-digit code specified by the Minister in an instrument in writing for this paragraph and the occupation is applicable to the person identified in the nomination in accordance with the specification of the occupation; and

    (b)if required by the instrument mentioned in paragraph (a)  or (aa) — the nomination of an occupation mentioned in the instrument is supported, in writing to the Minister, by an organisation specified by the Minister in an instrument in writing for this paragraph; and

    (c)the terms and conditions of employment of the person identified in the nomination will be no less favourable than the terms and conditions (including, if applicable, the terms and conditions provided by an enterprise agreement under the Fair Work Act 2009) that are provided or would be provided to an Australian citizen or an Australian permanent resident for performing equivalent work at the same location; and

    (cc)the base rate of pay, under the terms and conditions of employment mentioned in paragraph (c), that:

    (i)       are provided; or

    (ii)      would be provided;

    to an Australian citizen or an Australian permanent resident, will be greater than the temporary skilled migration income threshold specified by the Minister in an instrument in writing for this paragraph; and

    (d)if the nomination was made before 1 July 2010 - the person has certified as part of the nomination, in writing, that:

    (i)       the tasks of the position include a significant majority of the tasks of:

    (A)the nominated occupation listed in the ASCO; or

    (B)the nominated occupation specified in an instrument in writing for paragraph (a); and

    (ii)      if the person is lawfully operating a business outside Australia but does not lawfully operate a business in Australia:

    (A)the nominated occupation is a position in the business of the standard business sponsor; or

    (B)the nominated occupation is an occupation specified by the Minister in an instrument in writing for this sub-paragraph; and

    (iii)     if the person lawfully operates a business in Australia:

    (A)the nominated occupation is a position with a business, or an associated entity, of the person; or

    (B)the nominated occupation is an occupation specified by the Minister in an instrument in writing for this sub-paragraph; and

    (iv)     the qualifications and experience of the visa holder, or the applicant or proposed applicant for the visa, identified in relation to the nominated occupation are commensurate with the qualifications and experience specified:

    (A)for the occupation in the ASCO; or

    (B)if there is no ASCO code for the nominated occupation — for the occupation in the instrument in writing made for the purpose of paragraph (a); and

    (e)if the nomination is made on or after 1 July 2010 – the person has certified as part of the nomination, in writing, that:

    (i)       the tasks of the position include a significant majority of the tasks of:

    (A)the nominated occupation listed in the ANZSCO; or

    (B)the nominated occupation specified in an instrument in writing for paragraph (aa); and

    (ii)      if the person is lawfully operating a business outside Australia but does not lawfully operate a business in Australia:

    (A)the nominated occupation is a position in the business of the standard business sponsor; or

    (B)the nominated occupation is an occupation specified by the Minister in an instrument in writing for this sub-subparagraph; and

    (iii)     if the person lawfully operates a business in Australia:

    (A)the nominated occupation is a position with a business, or an associated entity, of the person; or

    (B)the nominated occupation is an occupation specified by the Minister in an instrument in writing for this sub-subparagraph; and

    (iv)     the qualifications and experience of the visa holder, or the applicant or proposed applicant for the visa, identified in relation to the nominated occupation are commensurate with the qualifications and experience specified:

    (A)for the occupation in the ANZSCO; or

    (B)if there is no ANZSCO code for the nominated occupation - for the occupation in the instrument in writing made for paragraph (aa).

    (f)the position associated with the nominated occupation is genuine; and

    (g)if the person has identified in the nomination the holder of a Subclass 457 (Temporary Work (Skilled)) visa in relation to whom the requirements in subclause 457.223(6) of Schedule 2 were met—one of the following applies:

    (i)       the requirements in subclause 457.223(6) of Schedule 2 continue to be met;

    (ii)      if:

    (A)the holder would be required to hold a licence, registration or membership that is mandatory to perform the occupation nominated in relation to the holder; and

    (B)in order to obtain the licence, registration or membership, the holder would need to demonstrate that the holder has undertaken a language test specified by the Minister under subparagraph 457.223(4)(eb)(iv) of Schedule 2 and achieved a score that is better than the score specified for the test by the Minister under subparagraph 457.223(4)(eb)(v) of Schedule 2;

    the holder demonstrates that he or she has proficiency in English of at least the standard required for the grant (however described) of the licence, registration or membership;

    (iii)     the holder is an exempt applicant within the meaning of subclause 457.223(4) of Schedule 2;

    (iv)     unless subparagraph (ii) applies—the holder:

    (A)has undertaken a language test specified by the Minister under subparagraph 457.223(4)(eb)(iv) of Schedule 2; and

    (B)achieved within the period specified by the Minister in a legislative instrument for this subparagraph, in a single attempt at the test, the score specified by the Minister under subparagraph 457.223(4)(eb)(v) of Schedule 2; and

    (h)either:

    (i)       the person will:

    (A)engage the visa holder, the applicant for a visa or the proposed applicant for  a Subclass 457(Temporary Work (Skilled)) visa only as an employee under a written contract of employment; and

    (B)give a copy of that contract to the Minister; or

    (ii)      the nominated occupation is an occupation specified by the Minister in an instrument in writing for sub-subparagraph (e)(iii)(B).

    (10AA)For paragraphs (10) (c) and (cc), if no Australian citizen or Australian permanent resident performs equivalent work in the person’s workplace at the same location, the person must determine, using the method specified by the Minister in an instrument in writing for this subregulation:

    (a)the terms and conditions of employment; and

    (b)the base rate of pay, under the terms and conditions of employment;

    that would be provided to an Australian citizen or an Australian permanent resident to perform equivalent work in the person’s workplace at the same location.

    (10AB)Paragraphs (10) (c) and (cc) do not apply if the annual earnings of the person identified in the nomination are equal to or greater than the amount specified by the Minister in an instrument in writing for this subregulation.

    (10A)The Minister may disregard the criterion in paragraph (10) (cc) for the purpose of subregulation (2) if:

    (a)the base rate of pay will not be greater than the temporary skilled migration income threshold specified for that paragraph; and

    (b)the annual earnings are equal to or greater than the temporary skilled migration income threshold; and

    (c)the Minister considers it reasonable to do so.

    (11)If the person is a party to a work agreement (other than a Minister) — the Minister is satisfied that:

    (a)the nominated occupation is specified in the work agreement as an occupation that the person may nominate; and

    (b)if the nomination was made before 1 July 2010 - the person has certified as part of the nomination, in writing, that:

    (i)       the tasks of the position include a significant majority of the tasks of:

    (A)if the nomination is made using an ASCO code - the nominated occupation listed in the ASCO; or

    (B)if the nomination is not made using an ASCO code - the nominated occupation specified in the work agreement; and

    (ii)      the qualifications and experience of the visa holder, or the applicant or proposed applicant for the visa, identified in relation to the nominated occupation are commensurate with the qualifications and experience specified for the occupation in the work agreement; and

    (c)if the nomination is made on or after 1 July 2010 - the person has certified as part of the nomination, in writing, that:

    (i)       the tasks of the position include a significant majority of the tasks of:

    (A)if the nomination is made using an ANZSCO code - the nominated occupation listed in the ANZSCO; or

    (B)if the nomination is not made using an ANZSCO code - the nominated occupation specified in the work agreement; and

    (ii)      the qualifications and experience of the visa holder, or the applicant or proposed applicant for the visa, identified in relation to the nominated occupation are commensurate with the qualifications and experience specified for the occupation in the work agreement.

    (12)If the person is a party to a work agreement and the work agreement specifies requirements that must be met by the party to the work agreement — the Minister is satisfied that the requirements of the work agreement have been met.