Snoobar Pty Ltd (Migration)

[2021] AATA 1062

Snoobar Pty Ltd (Migration) [2021] AATA 1062 (24 March 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Snoobar Pty Ltd

CASE NUMBER:  1810473

HOME AFFAIRS REFERENCE(S):          BCC2018/1112148

MEMBER:R. Skaros

DATE:24 March 2021

PLACE OF DECISION:  Sydney

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

Statement made on 24 March 2021 at 11:08am

CATCHWORDS
MIGRATION – nomination– applicant was no longer actively operating a business – position with the business no longer exists –decision under review affirmed

LEGISLATION
Migration Act 1958, s 140
Migration Regulations 1994, r 2.72

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 28 March 2018 to refuse to approve the applicant’s nomination under s.140GB of the Migration Act 1958 (the Act) and r.2.72 of the Migration Regulations 1994 (the Regulations).

2. The applicant applied for approval on 8 March 2018. A nomination of an occupation for a Subclass 457 visa is made under s.140GB of the Act and r.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 r.2.72(10(f) because the delegate was not satisfied that the position associated with the nominated occupation is genuine.

4. Mr George Mansour, the applicant’s Director, appeared before the Tribunal on 3 March 2021 to give evidence and present arguments on behalf of the applicant.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. 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 r.2.72: s.140GB(2). If, however any of the requirements for approval are not satisfied, then the nomination cannot be approved and the decision under review must be affirmed.

7. In this case, the applicant nominated Mr Jiwandeep Singh in the occupation of Café or Restaurant Manager (141111) for a position in the applicant’s business.  At the time, the applicant was operating a restaurant business.

8. The Tribunal requested the applicant to provide current and updated information about the requirements for approval of the nomination under s.140GB of the Act. In response to this request, the Tribunal received information indicating that the applicant was no longer actively operating a business.

9. In correspondence to the Tribunal, the applicant’s Director, Mr Mansour, explained to the Tribunal that due to personal circumstances he was unable to continue to run the business and that Covid-19 conditions were harsh for all businesses.

10. In relation to the nominee, Mr Mansour stated that Mr Singh had travelled to Australia for a better life for his family, and particularly his young children. He stated that Mr Singh worked very hard to provide for his family and had managed the applicant’s restaurant quite well. Mr Mansour expressed his strong sympathy for Mr Singh who had been a loyal employee and stated that he would like to start another business to support Mr Singh. Mr Mansour expressed concern that Mr Singh would not be able to lodge another application as he will be restricted by s.48 of the Act.

11. 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 and another person as he needed full-time managers to take care of the day to day operations of the restaurants.  

12. 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. Mr Mansour also have evidence that he had issues with the private lender and had to change his phone number.

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

14. Mr Mansour gave evidence that he wants to assist Mr Singh who had been a very good employee. He stated that Mr Singh cannot return to India and that the children had become accustomed to life in Australia. The Tribunal acknowledged Mr Mansour’s concerns about Mr Singh and his family, but explained that Mr Singh has his own matter before the Tribunal and that he will have an opportunity to present his case, though it also acknowledged without an approved 457-nomination Mr Singh would be unable to satisfy the criteria for the Subclass 457 visa.

15. The Tribunal explained to Mr Mansour that given the applicant is no longer operating the restaurant business, then the position with the business no longer exists. It further noted that at the time of considering the requirements for approval of the nomination, being the time of the Tribunal’s decision, the Tribunal cannot be satisfied that there is a genuine vacancy in the applicant’s business that needs to be filled.

16. Mr Mansour requested the Tribunal to delay making its decision until the end of 2021 so that he can have an opportunity to set up a business and employ Mr Singh. The Tribunal explained to Mr Mansour that the timeframe he had requested was excessive and that having regard to all the circumstances it did not consider it appropriate to delay the review until the end of the year. The Tribunal did however indicate that it would not hand down a decision on the review until after 14 days which would give Mr Mansour the opportunity to explain to Mr Singh the issues discussed at the hearing about the requirements for approval of the nomination and why the applicant does not satisfy those requirements.

17. In considering the evidence before it, the Tribunal notes that 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 highly speculative. On his own evidence at the hearing, Mr Mansour was unsure as to what business structure/entity he would use for the new business.

18. Having regard to the all the circumstances, and particularly the fact that the applicant has ceased operating the business in which the nominated position was required, the Tribunal does not consider it appropriate to delay the making of its decision on this review for a period of 9 months. The Tribunal acknowledges the difficulties that the nominee, Mr Singh, may face in relation to his eligibility to apply for another visa onshore and Mr Mansour’s desire to assist him, however, the Tribunal is not satisfied that these circumstances warrant a lengthy delay in the finalisation of this review. For these reasons, the Tribunal has decided not to delay the making of its decision any further and has decided to proceed to a decision on the evidence before it.

19. As note above, the applicant was requested to provide information which demonstrates that they satisfy the requirements for approval of the nomination, this included information about whether the applicant was an approved sponsor, the nature of the position, the terms and conditions or employment, an employment contract and whether the position is genuine. Much of that information was unable to be provided, however, the applicant provided some information to the Tribunal which indicated that the applicant is no longer operating the business in which the position was nominated. In the circumstances, the Tribunal finds that there is no longer a genuine vacancy for a position in the occupation of Café and Restaurant manager in applicant’s business. For these reasons, the Tribunal is not satisfied, at the time of decision, that the position associated with the nominated occupation is genuine. The requirements of r.2.72(10)(f) are therefore not met.

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

    DECISION

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

    R. Skaros
    Senior 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.