Snoobar Pty Ltd ATF Bou Mansour Trust (Migration)

[2021] AATA 1152

Snoobar Pty Ltd ATF Bou Mansour  Trust (Migration) [2021] AATA 1152 (5 March 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Snoobar Pty Ltd ATF Bou MansourTrust

CASE NUMBER:  1916155

HOME AFFAIRS REFERENCE(S):          BCC2018/870561

MEMBER:R. Skaros

DATE:5 March 2021

PLACE OF DECISION:  Sydney

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

Statement made on 05 March 2021 at 8:43am

CATCHWORDS

MIGRATION – nomination of a position – Direct Entry Nomination stream – position of Café or Restaurant Manager – actively and lawfully operating a business in Australia – standard business sponsor had been cancelled – division of assets in director’s divorce – business ceased – 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 5 June 2019 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 23 February 2018. 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).

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 r.5.19(4)(b) of the Regulations because the delegate was not satisfied that the applicant was actively operating a business in Australia. The delegate also noted that the applicant’s approval as a standard business sponsor had been cancelled.

5. The applicant’s director Mr George Mansour appeared before the Tribunal on 3 March 2021 to give evidence and present arguments on behalf of the applicant. The hearing was combined with another review application made by the same applicant in respect of a refusal of a temporary employer nomination.

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 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.

8. In this case, the applicant nominated Mr Ram Kumar Adhikarai for a position in the occupation of Café or Restaurant Manager (141111). At the time, the applicant was operating a restaurant business.

9. At the hearing, the Tribunal asked Mr Mansour if he was currently operating a business, to which Mr Mansour indicated that he was not. Mr Mansour provided a detailed history of the businesses operated by the applicant. He explained that in 2014 he had established the first restaurant which was performing quite well. He then established the second restaurant in 2016 and required additional staff. He sponsored the nominee as he needed a full-time restaurant manager.   

10. Mr Mansour gave evidence that between 2017 and 2018 he was going through some personal issues, which included a breakdown of his relationship that ended in divorce and a division of assets. He stated that he had lost a lot in the distribution of assets and to maintain the businesses he had to borrow money from a private lender. He noted that he began to struggle financially and had to sell one of the restaurants. He stated that not long after the second restaurant also began to struggle due to construction works which commenced just outside the restaurant. He stated that the construction works deterred a lot of customers and he had no choice but to shut the business down.

11. Mr Mansour confirmed that he had lost contact with the nominee, Mr Adhikari. The reason being is that he had to change all his contact details as he was having issues with the private lender.

12. The Tribunal explained to Mr Mansour the requirements of r. 5.19(4)(b) for approval of the nomination which requires the Tribunal to be satisfied that the applicant is actively, lawfully and directly operating a business in Australia.

13. Mr Mansour indicated that he was currently working as a chef for another business and acknowledged that the applicant did not currently operate any business.

14. Mr Mansour expressed a desire to be given additional time to establish another business. The Tribunal considered the request however, it was not minded to delaying the review any further. As explained to Mr Mansour at the hearing, the Tribunal is required to conduct reviews in a manner that is fair, just, efficient and quick. The Tribunal noted that the business operated by the applicant has been shut for some time and there was limited evidence before it that imminent plans were in place to establish another restaurant. The Tribunal further noted that when the employer nomination was made it was on the basis that there was an identified need for a position in a business that was actively operating at that time. The Tribunal explained to Mr Mansour that as the applicant is no longer operating a business that need no longer exists.

15. Whether Mr Mansour decides to establish another business and whether that business is one which will be operated by the applicant, particularly given the evidence about the applicant having borrowed funds from a private lender and the problems that arose, and whether the same entity would be used to establish the new business, is at this point in time entirely speculative. Even Mr Mansour himself at the hearing was unsure as to what business structure/entity he would use for the new business.

16. It is simply not in the interest of efficient decision making to indefinitely delay the making of this decision in these circumstances. For these reasons, the Tribunal does not consider it appropriate to delay the making of a decision on this review.

17. As noted above, r. 5.19(4)(b) requires that, at the time of decision, the applicant is actively and lawfully operating a business in Australia. The Tribunal finds on the evidence before it that the applicant is not actively operating a business in Australia. It follows that the nomination cannot be approved.

18. Give the above, the Tribunal finds that the requirement in r.5.19(4)(b) is not met.

19. 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

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

    R. Skaros
    Senior 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 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).