Suvercha Pty Ltd (Migration) - [2021] AATA 4185

Suvercha Pty Ltd (Migration) [2021] AATA 4185 (12 October 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Suvercha Pty Ltd
CASE NUMBER:  1823957
HOME AFFAIRS REFERENCE(S):          BCC2016/1576432
MEMBER:Terrence Baxter
DATE:12 October 2021
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Statement made on 12 October 2021 at 11:38am
CATCHWORDS
MIGRATION – approval of a nomination – Direct Entry nomination stream – position of Cook – genuine need for the position – updated financial information – actively and lawfully operating a business in Australia – terms and conditions of employment no less favourable – financial capacity to employ the nominee for at least two years – tasks of the position – decision under review set aside
LEGISLATION
Migration Act 1958, ss 245, 359, 363
Migration Regulations 1994, rr 1.13, 5.19, 5.37
Superannuation Guarantee (Administration) Act 1992
CASES
Bharaj Construction Pty Ltd v MIBP [2016] FCCA 902
Hasran v MIAC [2010] FCAFC 40
MIBP v Jayshree Enterprises Pty Ltd [2017] FCA 264
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 27 July 2018 to reject the applicant’s application for approval of the nomination of a position in Australia under reg 5.19 of the Migration Regulations 1994 (the Regulations).
The applicant, Suvercha Pty Ltd, applied for approval on 28 April 2016. The applicant nominated Simranjit Kaur (the nominee) in the position of Cook. The requirements for the approval of the nomination of a position in Australia are found in reg 5.19 of the Regulations which contains two alternative streams: a Temporary Residence Transition nomination stream (reg 5.19(3)) and a Direct Entry nomination stream (reg 5.19(4)). If the application is made in accordance with reg 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: reg 5.19(5).
In this case, the applicant has applied for approval of a nomination, seeking to satisfy the criteria in the Direct Entry nomination stream.
The delegate refused the application on the basis the applicant’s nomination did not satisfy reg 5.19(4)(a)(ii) of the Regulations because the delegate found that the applicant did not identify a need for a paid employee to work in the position under their direct control.
The applicant lodged an application for review of the delegate’s decision with the Tribunal on 17 August 2018.
On 5 February 2021, the Tribunal wrote to the applicant pursuant to s 359(2) of the Migration Act 1958 (the Act) inviting it to provide current information addressing the relevant criteria under reg 5.19(2) and (4) of the Regulations. The Tribunal is satisfied that this invitation was properly dispatched to the applicant’s email address. The invitation notified the applicant that the requested information should be received by the Tribunal by 19 February 2021. On 18 February 2021, the applicant…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Suvercha Pty Ltd (Migration) [2021] AATA 4185
Case: [2021] AATA 4185
Decision Date: 12 October 2021

CaseChat Overview and Summary

Suvercha Pty Ltd (Migration) concerned an appeal to the Administrative Appeals Tribunal (AAT) regarding the approval of a nomination under the Direct Entry stream of the Regional Sponsored Migration Scheme. The applicant, Suvercha Pty Ltd, sought to nominate an individual for the position of Cook. The core of the dispute revolved around whether the applicant had met the various requirements stipulated in regulation 5.19(4) of the Migration Regulations 1994 for the nomination to be approved.

The Tribunal was required to determine if Suvercha Pty Ltd had satisfied all the conditions under regulation 5.19(4). This included assessing whether the business was actively and lawfully operating in Australia, whether there was a genuine need for the nominated position, whether the terms and conditions of employment were no less favourable than those provided to Australian citizens or permanent residents, and whether the applicant had the financial capacity to employ the nominee for at least two years. Additionally, the Tribunal had to consider compliance with workplace relations laws and the absence of adverse information known to the Department.

The Tribunal's reasoning focused on a detailed examination of the evidence presented by the applicant, both to the Department of Home Affairs and subsequently to the Tribunal. It found that the applicant had provided sufficient documentation to demonstrate compliance with the relevant regulations. Specifically, the Tribunal was satisfied that the business was operating in regional Australia, that there was a genuine need for the position which could not be filled locally, and that the applicant had met its obligations regarding employment terms and financial capacity. The Tribunal also noted the applicant's satisfactory record of compliance with workplace relations laws and the lack of adverse information.

Ultimately, the Tribunal decided to set aside the original decision under review. It substituted this with a decision approving the nomination, finding that Suvercha Pty Ltd had met all the necessary requirements under regulation 5.19(4) for the nomination to be approved.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The applicant produced to the Department of Immigration and Border Protection (now the Department of Home Affairs) (the Department) the following documents: a.An ASIC Certificate of Registration for the applicant and an extract in respect of the business name Auras Restaurant. b.ABN information for the applicant. c.A position description and employment contract of the nominee dated 1 November 2015. d.An assessment statement dated 18 April 2016 and a Form 1404 issued by the Regional Certifying Body (RCB), the Queensland Chamber of Commerce and Industry, Toowoomba, dated 19 April 2016.e.An undated submission from a previous director, Mr Bindu Khattar. f.An organisational chart and business plan.g.An invoice for interior design services dated 29 June 2015. h.Evidence of the applicant’s tenancy of its business premises. i.Business bank account statement for the period from 31 December 2015 to 30 March 2016. j.Market salary evidence. k.A section 245AR declaration signed by Mr Khattar, dated 28 April 2016.l.A section 245AS declaration signed by the nominee, dated 28 April 2016. m.A job advertisement for the position. n.Activity statements for the period from October 2015 to March 2017. o.Submissions from the applicant’s accountant dated 12 October 2016. Evidence presented to the Tribunal The applicant produced to the Tribunal the following documents in response to the invitation of 5 February 2021: a.An ASIC Australian company extract for the applicant.b.An ASIC current and historical company extract for the applicant.c.An updated organisational chart. d.Submissions from the current director of the applicant company, Mr Anshul Arora, dated 2 March 2021. e.Copies of documents previously provided to the Department. f.An employment contract of the nominee dated 2 March 2021. g.Financial reports for the 2019 and 2020 financial years. The applicant also produced to the Tribunal the following documents in response to the requests for information on 27 May 2021, 12 August 2021 and 3 September 2021: a.Submissions from Mr Arora dated 20 June 2021. b.Current and historical ABN information for the applicant. c.An ASIC current company extract for the applicant. d.Updated market salary evidence.e.Payslips of the nominee for the period from April to July 2021.f.Further market salary evidence.g.The nominee’s taxation assessments for the 2019 to 2021 financial years.h.A submission from Mr Arora dated 26 August 2021.i.An employment contract of the nominee dated 26 August 2021.j.The applicant’s company tax returns for the 2019 and 2020 financial years.k.Various eftpos transaction records of the applicant.l.Various invoices relating to the applicant’s business.The nature of the applicant’s business The documents provided by the applicant disclose that the applicant operates two restaurants, with the nominee being employed at the restaurant located at 109–117 Brisbane Street, Jimboomba, Queensland 4280. Mr Arora stated that the business had experienced increased consumer demand as a result of its location within the Logan City local government area, with Queensland Government projections for future population increase.The application is compliant: reg 5.19(4)(a)

Decision

Reasons for decision

For the following reasons, the Tribunal has decided to set aside the decision under review and substitute a decision approving the nomination.CONSIDERATION OF CLAIMS AND EVIDENCE 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 reg 5.19(4), which is extracted in the attachment to this decision. For the nomination to be approved, all the requirements must be met.Evidence presented to the Department The applicant produced to the Department of Immigration and Border Protection (now the Department of Home Affairs) (the Department) the following documents: a.An ASIC Certificate of Registration for the applicant and an extract in respect of the business name Auras Restaurant. b.ABN information for the applicant. c.A position description and employment contract of the nominee dated 1 November 2015. d.An assessment statement dated 18 April 2016 and a Form 1404 issued by the Regional Certifying Body (RCB), the Queensland Chamber of Commerce and Industry, Toowoomba, dated 19 April 2016.e.An undated submission from a previous director, Mr Bindu Khattar. f.An organisational chart and business plan.g.An invoice for interior design services dated 29 June 2015. h.Evidence of the applicant’s tenancy of its business premises. i.Business bank account statement for the period from 31 December 2015 to 30 March 2016. j.Market salary evidence. k.A section 245AR declaration signed by Mr Khattar, dated 28 April 2016.l.A section 245AS declaration signed by the nominee, dated 28 April 2016. m.A job advertisement for the position. n.Activity statements for the period from October 2015 to March 2017. o.Submissions from the applicant’s accountant dated 12 October 2016. Evidence presented to the Tribunal The applicant produced to the Tribunal the following documents in response to the invitation of 5 February 2021: a.An ASIC Australian company extract for the applicant.b.An ASIC current and historical company extract for the applicant.c.An updated organisational chart. d.Submissions from the current director of the applicant company, Mr Anshul Arora, dated 2 March 2021. e.Copies of documents previously provided to the Department. f.An employment contract of the nominee dated 2 March 2021. g.Financial reports for the 2019 and 2020 financial years. The applicant also produced to the Tribunal the following documents in response to the requests for information on 27 May 2021, 12 August 2021 and 3 September 2021: a.Submissions from Mr Arora dated 20 June 2021. b.Current and historical ABN information for the applicant. c.An ASIC current company extract for the applicant. d.Updated market salary evidence.e.Payslips of the nominee for the period from April to July 2021.f.Further market salary evidence.g.The nominee’s taxation assessments for the 2019 to 2021 financial years.h.A submission from Mr Arora dated 26 August 2021.i.An employment contract of the nominee dated 26 August 2021.j.The applicant’s company tax returns for the 2019 and 2020 financial years.k.Various eftpos transaction records of the applicant.l.Various invoices relating to the applicant’s business.The nature of the applicant’s business

Ratio Decidendi

Legal Principle Established

Accordingly, the requirements of reg 5.19(4)(e) are met.No adverse information known to Immigration: reg 5.19(4)(f) Regulation 5.19(4)(f) requires that there is no adverse information known to Immigration about the nominator or person associated with the nominator; or it is reasonable to disregard any such information. For these purposes, ‘adverse information’ and ‘associated with’ have the meaning given in regs 1.13A and 1.13B. There is no evidence before the Tribunal that there is any adverse information of the type described in the relevant definitions known to the Department about the applicant or any associated person. Accordingly, the requirements of reg 5.19(4)(f) are met.Satisfactory compliance with workplace relations laws: reg 5.19(4)(g) Regulation 5.19(4)(g) requires that the applicant 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. There is no evidence before the Tribunal to suggest that the applicant has an unsatisfactory record of compliance with workplace relations laws of the Commonwealth or any State or Territory in which the applicant operates a business. The Tribunal is satisfied that the applicant does have a satisfactory record of compliance. Accordingly, the requirements of reg 5.19(4)(g) are met.Tasks of the position, genuine need for the position and training requirements: reg 5.19(4)(h) Regulation 5.19(4)(h) contains a number of alternative requirements. These are set out in detail in the attachment to the decision but can be briefly summarised as requiring either that:·the tasks to be performed in the position will be performed in Australia and correspond to those of an occupation specified by the Minister in the relevant legislative instrument, the occupation is applicable to the proposed employee in accordance with any specifications made in that instrument, and specified training requirements are met; or·the position and nominator’s business is located in regional Australia, there is a genuine need for the paid position under the nominator’s direct control which cannot be filled by a locally resident Australian citizen or permanent resident, the tasks of the position correspond to those of an occupation specified in the relevant legislative instrument (see legislative instrument IMMI 15/083), the occupation is applicable to the proposed employee in accordance with the specification of the occupation and that a regional certifying body has advised the Minister about certain matters relating to the position. The applicant indicated in the nomination application that it was applying under the Regional Sponsored Migration Scheme in the Direct Entry nomination stream. The applicant indicated that the address where the position was to be filled was Stockland Jimboomba, Mount Lindsay Highway, Jimboomba, Queensland. The postcode stated in the application was 4350. The Tribunal notes that the correct postcode for Jimboomba is 4280. All other documents produced to the Department and the Tribunal, including the assessment by the RCB, refer to postcode 4280. Based on the evidence, the Tribunal is satisfied that the position and the applicant’s business are located at 109–117 Brisbane Street, Jimboomba, Queensland 4280. As this postcode is specified in the relevant Instrument as being in regional Australia, the requirements of reg 5.19(4)(h)(ii) must be met by the applicant.Regulation 5.19(4)(h)(ii)(A) – the position is located in regional Australia