THE TRUSTEE FOR GEN2 GROUP DISCRETIONARY TRUST (Migration) - [2023] AATA 1585

THE TRUSTEE FOR GEN2 GROUP DISCRETIONARY TRUST (Migration) [2023] AATA 1585 (1 June 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Gen2 Group Pty Ltd as the Trustee for Gen2 Group Discretionary Trust
REPRESENTATIVE:  Mr Mitchell Simmons
CASE NUMBER:  1921814
HOME AFFAIRS REFERENCE(S):          BCC2018/843448
MEMBER:Katie Malyon
DATE:1 June 2023
PLACE OF DECISION:  Sydney
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Statement made on 01 June 2023 at 1:58 pm
CATCHWORDS
MIGRATION – application for approval of nomination of position – direct entry stream – cook – financial capacity to employ nominee for two years – extensive updated and current financial information and genuine and credible oral evidence from director and nominee – decision under review set aside
LEGISLATION
Migration Act 1958 (Cth), s 359(2)
Migration Regulations 1994 (Cth), r 5.19(4)(d)
CASE
Bharaj Construction Pty Ltd v MIBP (No 3) [2019] FCCA 31
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 26 July 2019 to refuse the applicant’s application for approval of the nomination of a position in Australia under reg 5.19 of the Migration Regulations 1994 (Cth) (the Regulations).
The applicant, Gen2 Group Pty Ltd ACN 608 623 963 as the Trustee for the Gen2 Group Discretionary Trust T/A Empress Restaurant ABN 20 409 961 818 (the Trustee), applied for approval on 21 February 2018. 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 all of 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 Trustee 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 Trustee’s nomination did not satisfy reg 5.19(4)(d) of the Regulations because there was insufficient information to demonstrate that the Trustee had the financial capacity to employ the nominee, Chinese national Mr Wing Fung Tang, in the occupation of Cook ANZSCO 351411 at the salary of $55,130 per annum for at least 2 years.
Background
The Trustee operates the Empress Restaurant in Toorak Gardens in Adelaide. It has been operating the business since December 2016. Based on evidence lodged with the Tribunal, there are 4 full-time Cooks, 3 of whom are Australian citizens as well as 9 part-time Cooks, 5 of whom are Australian citizens or permanent residents and 2 casual Cooks, one of whom is an Australian citizen and the other is a permanent resident. In total, the business has 51 employees. Two of…

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

Case: [2023] AATA 1585
Decision Date: 1 June 2023

CaseChat Overview and Summary

This matter concerned an application for approval of a nomination of a position under the Direct Entry stream, brought before the Administrative Appeals Tribunal. The applicant, The Trustee for Gen2 Group Discretionary Trust, sought to have a decision reviewed, which had refused to approve its nomination.

The primary legal issue before the Tribunal was whether the applicant met all the requirements for approval of its nomination under regulation 5.19(4) of the Migration Regulations 1994. This involved assessing various criteria, including the compliance of the application form, the active and lawful operation of the nominator's business, whether the position was labour-hire, the financial capacity to employ the nominee for at least two years, and the absence of adverse information known to Immigration, or the reasonableness of disregarding such information.

The Tribunal found that the applicant had provided extensive and updated financial information, along with credible oral evidence from the director and the nominee, which satisfied the requirements. Crucially, the Tribunal accepted the nominee's explanation regarding his immigration history and work rights, including a period of unemployment from March 2017 to December 2019. This evidence, supported by a detailed statutory declaration, addressed concerns raised by the delegate regarding the nominee's employment status at the time of the nomination's lodgement. The Tribunal concluded that, based on the cumulative findings, all requirements of regulation 5.19(4) were met.

Consequently, the Tribunal set aside the original decision and substituted a new decision approving the nomination.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

For the following reasons, the Tribunal has decided to set aside the decision under review and substitute a decision approving the nomination. The Tribunal acknowledges that it has significantly more information than that which was available to the delegate at the time of her decision. It also acknowledges that the representative has, helpfully, fully complied with the Tribunal’s Practice Direction in relation to submitting documentation to the Tribunal.CONSIDERATION OF CLAIMS AND EVIDENCE The issue in this case is whether the applicant meets all of the requirements for approval of its nomination under the Direct Entry nomination stream set out in reg 5.19(4) of the Regulations, which is extracted in the Attachment to this decision. For the nomination to be approved, all the requirements must be met. The application is compliant: reg 5.19(4)(a) Regulation 5.19(4)(a) requires that the application for approval must be in the approved form, must be accompanied by the prescribed fee, and, where applicable, must include the required written certification relating to conduct that contravenes s 245AR(1) of the Act. The application must also identify a need for the nominator to employ an identified person as a paid employee to work in the position under their direct control. On the basis of the information in the Department’s eFile, the Tribunal is satisfied that the nomination application was made using the relevant online form. Consistent with reg 5.37(2)(a) of the Regulations, there is no fee payable in respect of a nomination where the position is located in regional Australia. The administrative processes of completing, in the online form itself, the required certification in relation to s 245AR(1) of the Act and the required identification of a need to employ a paid employee to work in the nominated position under the Trustee’s control were provided in the application form. Accordingly, the requirements in reg 5.19(4)(a) are met. Nominator is actively and lawfully operating a business in Australia: reg 5.19(4)(b) Regulation 5.19(4)(b) requires that the applicant is actively, lawfully and directly operating a business in Australia. Based on the information provided including a copy of the signed Trust Deed dated 8 October 2015, current ASIC and ABN searches, the Trustee’s Financial Reports for years ended 30 June 2020 to 30 June 2022, BAS for the period 1 July 2020 to 31 December 2022 as well as the Trustee’s Tax Returns downloaded from the ATO’s website for years ended 30 June 2018 to 30 Jun 2022, the signed letter from the Trustee’s CPA Ms Joanna Zeng of Brightwing Accountants dated 7 November 2022 summarising the Trustee’s financial performance since 1 July 2018 as well as the Restaurant Licence issued under the Liquor Licensing Act 1997 (South Australia), the Tribunal is satisfied that the Trustee is actively, lawfully and directly operating a business in Australia. Accordingly, the requirements in reg 5.19(4)(b) are met. Position is not labour-hire: reg 5.19(4)(c)

Decision

Reasons for decision

Based on the cumulative findings above, the Tribunal is satisfied that the Trustee meets all the requirements of reg 5.19(4)(h) for approval of its nomination of the position in Australia.DECISION The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.Katie MalyonMemberATTACHMENT - EXTRACTS FROM THE MIGRATION REGULATIONS 19945.19Approval 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 an identified person, as 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).oOOo

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 a person associated with the nominator; or it is reasonable to disregard any such information. For these purposes, the terms ‘adverse information’ and ‘associated with’ have the meaning respectively given in regs 1.13A and 1.13B of the Regulations. The Tribunal put to Mr Wong during the course of the hearing the delegate’s comment that the Organisation Chart lodged with the Department indicates that Mr Tang was employed as a Cook at the time of lodgement of the Trustee’s nomination on 21 February 2018. Relevantly, the Tribunal noted that it appeared Mr Tang’s name was in red print whilst all other names were identified in black print. It also noted that, as confirmed in his signed Statement lodged with the Tribunal prior to the hearing, the Trustee was aware that Mr Tang’s Student visa had been cancelled and, as such, the Trustee did not employ him again until he had regained work rights in December 2019. In his Statement, Mr Wong observes that the Trustee was lucky to be able to secure employment from a former employee who came out of semi-retirement to help fill Mr Tang’s position pending his return. During the hearing, Mr Wong acknowledged the Tribunal’s comment regarding the delegate’s observation. He apologised for not clarifying this at the time of lodgement of the nomination. Mr Tang gave independent oral evidence at the hearing that he was unemployed from March 2017 until December 2019 during which time he held a Subclass 600 Visitor visa with condition 8101 (No work). He explained to the Tribunal that he needed to do this because he had not finished the courses that he wanted to complete in Australia. As a consequence, he said he had to cease working at the Empress Restaurant on 15 March 2017 because he was aware that he didn’t have work rights. During the 2 years and 8 months from March 2017 until December 2019 (when he again had work rights), he lived at different places including with his girlfriend or with one of mother’s friends and he would also go over to his aunt’s place in Adelaide for meals. After the hearing, Mr Tang provided a detailed Statutory Declaration setting out details of his immigration history in Australia and associated work rights. He also provided details of where he lived during the period when he did not have work rights and how he managed to survive on savings as well as support from his then girlfriend, his family including his cousins and his aunt as well as friends and then his current girlfriend. The Tribunal accepts the details set out in Mr Tang’s Statutory Declaration. Mr Tang also explains in his Statutory Declaration that he was willing to remain in Australia without work rights for such a long period for 2 reasons: first, he needed to finish his studies having spent so much money, time and effort to get that far; and second, he had already started working as a Kitchenhand with Empress Restaurant in September 2016 consistent with the conditions of his then Student visa and had developed a really good relationship with Mr Wong who had indicated the business would be willing to sponsor him. Mr Tang observes that the Empress Restaurant is highly regarded in Adelaide and he saw this as a good opportunity for his future career. Therefore, with the help of family who supported him throughout, he was prepared to await the outcome. The Tribunal accepts Mr Tang’s comments.