The Darbar Indian Nepalese Restaurant (Fremantle) Pty Ltd (Migration)

The Darbar Indian Nepalese Restaurant (Fremantle) Pty Ltd (Migration) [2019] AATA 2616 (30 April 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  The Darbar Indian Nepalese Restaurant (Fremantle) Pty Ltd
CASE NUMBER:  1701262
DIBP REFERENCE(S):  BCC2016/795630
MEMBER:Karen McNamara
DATE:30 April 2019
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision under review to refuse the nomination.

Statement made on 30 April 2019 at 1:40pm

CATCHWORDS
MIGRATION – Nomination of position – Regional Sponsored Migration Direct Entry Nomination stream – financial capacity to provide at least 2 years full-time employment – Cook (ANZSCO 351411) – decision made on paper – adverse information – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth)
Migration Regulations 1994, Schedule 2, rr 5.19, 1.13A, 1.13B
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 Immigration on 12 January 2017 to reject application by The Darbar Indian Nepalese Restaurant (Fremantle) Pty Ltd (the applicant) for approval of the nomination of a position in Australia under r.5.19 of the Migration Regulations 1994 (the Regulations).
The applicant applied for approval on 25 February 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 (r.5.19(3)) stream and a Direct Entry nomination (r.5.19(4)) stream. 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).
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 r.5.19(4)(d)(i) of the Regulations because the delegate was not satisfied that the nominee would be employed on a full-time basis in the position for at least 2 years.
The applicant applied to the Tribunal on 24 January 2017 for review of the delegate’s decision.
On 24 April 2019, the Tribunal invited the applicant to appear before the Tribunal on 9 May 2019, to give evidence and present arguments.
The applicant was represented in relation to the review by its registered migration agent.
On the 29 April 2019 the Tribunal received a request from the applicant’s representative (dated 26 April 2019) advising “ Further to the Invitation to Attend a Hearing dated 24 April 2019, the client has instructed me to inform the Tribunal that he does not wish to attend the hearing, as he has no further information to provide, and that the Tribunal may proceed to make a decision in this matter based on the information provided thus far.”
The Tribunal resolved this matter on the papers.
For the following reasons, the Tribunal has decided affirm the decision under review to refuse 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 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.
Background
On 25 February 2016, the applicant lodged a Regional Sponsored Migration Scheme nomination application under the Direct Entry stream.
In the application, the applicant identified that the nominee, Mr Sharma Dahl, would be employed in the nominated occupation of Cook (ANZSCO 351411) under the Regional Sponsored Migration Direct Entry stream. The proposed salary is $54,000 per annum.
When considering the application, the delegate took into account the following issues:
·     The applicant provided documents in support of their application including;
o   Business Activity Statements (BAS)
o   Equity on Asset
o   Organisational Chart
o   Payroll Report
o   Further equity of assets
o   Equity on Home Owned Formal Valuation
·     The Darbar Indian Nepalese Restaurant (Fremantle) Pty Ltd, registered under ABN: 17603074817, commenced trading on 2 January 2015 and is located at 34 Douro Rd South Fremantle Western Australia.
·     The application for nomination states that the business employs 1 Australian employee and 2 foreign employees. An organisational chart dated 19 February 2016 has the business employing 1 Australian and 2 foreign employees, this organisational chart also states that the business employs 2 to 4 kitchen hands per shift and 4 to 8 front staff per shift. A further organisational chart dated 10 August 2016, provided to the Department on 2 December 2016 has the business employing 3 Australian employees and 3 foreign employees.
·     The application for nomination provides the gross payroll expenditure of the business for the past 12 months as $56,527.
·     The delegate noted that the applicant did not provide balance sheets and/or Profit and Loss statements or a letter from their accountant attesting to the financial position of the business and its capacity to pay the full time salary of $54,000 per annum for at least 2 years.
Based on the information before the Department, the delegate formed a view about whether the nominator has the financial capacity to comply with the requirement to provide the nominee with at least 2 years of full-time employment. The delegate found that there was no substantial evidence in support of the nominator’s financial viability to pay the nominee’s full time salary of $54,000 per annum.
Since the nominator did not meet regulation 5.19(4)(d)(i), the delegate refused the application on the basis the applicant did not meet the criteria specified under regulation 5.19(4)(d).
On 27 February 2019, the Tribunal wrote to the applicant requesting the applicant provide further information to indicate they met the requirements of Regulation 5.19(4).
On 12 March 2019, via email the applicant’s authorised representative provided the following information to the Tribunal:
·Submission
·ASIC Current & Historical Company extract
·Business name details (ASIC extract)
·Sale of Business Contract dated 5 February 2015
·Deed of variation lease
·Deed of Assignment of Lease
·Menu
·Photographs
·Financial Statements - 2017 Financial year
·Job Description
·Contract of employment - Mr Prakash Sharma Dahal
·Copy of job advertisement SEEK.com 10 February 2016
·RCB Advice
·Notice of Decision Australian Border Force dated 30 July 2018
The Tribunal has had regard to the information presently before it.
Term of employment of the visa holder: r.5.19(4)(d)
Regulation 5.19(4)(d) requires the nominee to be employed in the nominated position for at least 2 years full time, and the terms and conditions of that employment do not expressly exclude the possibility of an extension.
The Tribunal is not satisfied based on the information before it, including the financial circumstances of the applicant, that the business has the financial capacity to pay the full time salary of $54,000 per annum for the nominated position for at least two years. The applicant has not provide the Tribunal verifiable financial information including recently lodged BAS returns, bank records, PAYG or Company tax returns as evidence of capacity to pay a full time salary of $54,000 per annum for two years. The Tribunal is therefore, not satisfied the employee will be employed on a fulltime basis in the position for at least two years.
Accordingly, the requirement in r.5.19(4)(d) is not met.
No adverse information known to Immigration: r.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 rr.1.13A and 1.13B.
The Tribunal has had regard to information provided by the applicant to the Tribunal on 12 March 2019 being the decision of the Australian Border Force (ABF) dated 30 July 2018.
On the basis of information made available to the Tribunal by the applicant, the Tribunal finds that there is adverse information within the meaning of regulation1.13A, that is known to the Department about the nominator or a person ‘associated with’ the nominator.
Therefore the Tribunal finds that the applicant does not meet regulation 5.19(4)(f)(i).
The Tribunal has considered whether it is reasonable to disregard this information under the provisions of regulation 5.19(4)(f)(i). Information provided by the applicant to the Tribunal indicates on the 30 July 2018 the Department cancelled the applicant’s approval as a Standard Business Sponsor and imposed a 36-month bar on the applicant making applications for approval as a Standard Business Sponsor and temporary activities sponsor. This bar is in place until 30 July 2021.
In the ABF decision of 30 July 2018, the delegate found that the nominator:
- Failed to satisfy sponsorship obligations
- Failed to keep records
- Failed to provide records and information to the Minister
- Failed to ensure primary sponsored person works or participates in nominated occupation, program or activity
- Provided false or misleading information.
The Tribunal considers this information to be of a serious nature and notes there is no evidence before it to support any corrective measures undertaken by the applicant to rectify the breaches identified by the Department.
For these reasons, the Tribunal finds it is not reasonable to disregard this information. Accordingly the applicant does not meet the requirements of regulation 5.19(4)(f)(ii)
Since the applicant does not meet regulation 5.19(4)(f)(i) or 5.19(4)(f)(ii), the applicant does not meet regulation 5.19(4)(f).
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.
Karen McNamara
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)       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).

[2019] AATA 2616

30 April 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction