The Trustee for Mahal Family Trust (Migration)

[2020] AATA 5392

The Trustee for Mahal Family Trust (Migration) [2020] AATA 5392 (20 October 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  The Trustee for Mahal Family Trust

CASE NUMBER:  1812070

HOME AFFAIRS REFERENCE(S):          BCC2016/3635131

MEMBER:De-Anne Kelly

DATE:20 October 2020

PLACE OF DECISION:  Brisbane

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

Statement made on 20 October 2020 at 4:44pm

CATCHWORDS

MIGRATION – nomination of a position – Direct Entry nomination stream – position of Restaurant Manager – active and lawful business – financial capacity to employ the nominee for 2 years – updated evidence of business operations – terms and conditions of employment – decision under review affirmed      

LEGISLATION

Migration Act 1958, ss 359, 363
Migration Regulations 1994, rr 5.19

CASES

Hasran v MIAC [2010] FCAFC 40
Minister for Immigration and Multicultural Affairs v Sun (2005) 146 FCR 498
Singh v Minister for Immigration and Border Protection [2014] FCCA 1403
Yang Minister for Immigration and Citizenship [2010] FMCA 890

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 10 April 2018 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 1 November 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 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)(a)(ii) of the Regulations because the application did not identify a need for the nominator to employ a paid employee to work in the position under the nominator’s direct control.

5. The applicant was represented in relation to the review initially by Mr Sourabh Aggarwal MARN: 1462149 of Upper Mount Gravatt QLD 4122 but later was self-represented.

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. On 1 November 2016 the applicant The Trustee for Mahal Family Trust trading as Andy’s pizza and pasta lodged a Regional Sponsored Migration Scheme - visa subclass 187 nomination application in the direct entry stream for the position of restaurant manager on $54,000 per annum in favour of Ms Jindpreet Kaur Mann.

9. Documents including the following were provided with the original application;

   1)    Extract from the website for Andy’s pizza and pasta including menu.

   2)    ASIC company extract dated 2016.

   3)    Trust deed.

   4)    Letter from the solicitor dated 2016 regarding purchase of the business.

   5)    Lease on the premises.

   6)    Deed of variation of lease dated 2017.

   7)    Acknowledgement of nomination application dated 1 November 2016.

   8)    BAS Q1, Q2, Q3 Q4 2016; Q1, Q2 2017

   9)    Market salary advice for café and restaurant managers.

   10) Employment contract dated 2016 signed by applicant and nominee.

   11) Statement of genuine position dated 2016.

   12) Regional certifying body advice dated 2016 including form 1404.

   13) Online application for employer nomination dated 1 November 2016.

   14) Gumtree advertisement for the position dated 2016.

   15) Certification form paying for Visa sponsorship dated 2016.

   Documents including the following were submitted with the review application;

   16) Notice of decision for nomination refusal dated 10 April 2018.

   17) Invitation to provide information dated 21 August 2020 from the Tribunal.

   Information about the applicant directly operating an active and lawful business in
   Australia, including its financial circumstances;
    The applicant’s lodged tax returns for the last two full financial years,
   business activity statements that have been lodged with the ATO for the
   last 24 months and financial statements prepared in accordance with
   Australian accounting standards, including profit and loss statements and balance sheets, for the most recent two financial years.

   6. Information about the terms and conditions of employment in the nominated
   position, including whether they are more or less favourable than those provided
   for an Australian citizen or permanent residence performing equivalent work in the
   same workplace at the same location, and whether the nominee will be employed
   on a full time basis for at least 2 years with terms and conditions not expressly
   excluding the possibility of extension;

   18) Request for extension of time dated 1 September 2020.

   19) Tribunal letter dated 2 September 2020 advising extension to 30 September 2020.

   Tribunal invitation to provide information

10. On 21 August 2020 the Tribunal invited the applicant under s.359(2) of the Migration Act 1958 (the Act) to provide updated and current information that demonstrated that the nomination met all of the criteria in r.5.19 of the Regulations at the time of its decision.

11. The combined invitation also specifically stated that the Tribunal must receive the applicant’s comments / response and the requested information by 04 September 2020, or within the period allowed for this purpose, or it would lose any entitlement it might otherwise have under the Act to appear before the Tribunal. 

12. The applicant requested an extension of time which was granted to 30 September 2020.

13. The applicant did not provide its requested information, within the extended and prescribed period.

14. This means that s.359C(1) and s.360(3) of the Act apply to the applicant and it is not entitled to appear before the Tribunal. Under s.363A, the Tribunal does not have the power to permit a party to do something it is not entitled to do, unless a provision expressly provides otherwise. Section 360 does not provide otherwise.

15. In addition, the Courts[1] have confirmed that where an applicant fails to respond to a written invitation under s.359(2) of the Act within the prescribed period, s.363A of the Act precludes the Tribunal from offering an applicant a hearing.

    [1] See Singh v Minister for Immigration and Border Protection [2014] FCCA 1403 [32]-[39]; Yang Minister for Immigration and Citizenship [2010] FMCA 890 at [40]; Hasran v Minister for Immigration and Citizenship [2010] FCAFC 40; M v Minister for Immigration and Multicultural Affairs (2006) 155 FCR 333; Minister for Immigration and Multicultural Affairs v Sun (2005) 146 FCR 498

16. Accordingly, as the applicant failed to give the information requested within the prescribed period, it has lost its right to appear before the Tribunal to give evidence and present arguments relating to the application for review.

    Section 375A certificate from the Department of Home Affairs

17. On the 12 October 2020, the Tribunal invited the applicant to comment on or respond to information in a s.375A certificate from the Department of Home Affairs

    The Tribunal is required by law to disclose any certificates issued to it under s.375A or
    s.376 of the Migration Act, even when it does not intend to rely on the material covered
    by the material. The Tribunal has been provided a certificate issued by the Department
    issued 14 May 2018.
    The Member has a preliminary view that the certificate is valid. As such, you are
    requested to provide the following information:
    Your comments on the validity of the certificate. Please provide this information, in writing, by 19 October 2020.

18. There was no response to the invitation to comment.

19. The Tribunal places no weight on the 375A certificate as it deals with internal Departmental processes and is not material to a decision on this matter.

    Nominator is actively and lawfully operating a business in Australia: r.5.19(4)(b)

20. Regulation 5.19(4)(b) requires that the applicant is actively, lawfully and directly operating a business in Australia.

21. On 21 August 2020 the Tribunal sent an invitation to the applicant to provide the following to demonstrate that the business was actively, lawfully and directly operating in Australia;

    Information about the applicant directly operating an active and lawful business in
    Australia, including its financial circumstances;
     The applicant’s lodged tax returns for the last two full financial years,
    business activity statements that have been lodged with the ATO for the
    last 24 months and financial statements prepared in accordance with
    Australian accounting standards, including profit and loss statements and balance sheets, for the most recent two financial years.

22. There has been no response to the invitation despite the Tribunal providing an extension of time and thus there is scant evidence that the applicant is actively, lawfully and directly operating a business in Australia. The Tribunal has examined the evidence and can only find financial statements and documents to financial year 2017.

23. Since the Tribunal has no contemporary evidence of the business actively, lawfully and directly operating in Australia it finds that the applicant cannot satisfy r.5.19(4)(b).

24. Accordingly, the requirement in r.5.19(4)(b) is not met.

    Term of employment of the visa holder: r.5.19(4)(d)

25. 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.

26. On 21 August 2020 the Tribunal sent an invitation to the applicant to provide the following to demonstrate that the applicant has the financial capacity such that the employee will be employed on a full-time basis in the position for at least 2 years;

    6. Information about the terms and conditions of employment in the nominated
    position, including whether they are more or less favourable than those provided
    for an Australian citizen or permanent residence performing equivalent work in the
    same workplace at the same location, and whether the nominee will be employed
    on a full time basis for at least 2 years with terms and conditions not expressly
    excluding the possibility of extension;

27. There has been no response to the invitation despite the Tribunal providing an extension of time and thus there is scant evidence that the applicant has the financial capacity such that the employee will be employed on a full-time basis in the position for at least 2 years. The Tribunal has examined the evidence and can only find financial statements and documents to financial year 2017.

28. Since the Tribunal has no contemporary evidence of the business’s financial capacity such as BAS; financial statements or tax returns for 2019 or 2020 it finds that the applicant cannot satisfy r.5.19(4)(d).

29. Accordingly, the requirement in r.5.19(4)(d) is not met.

30. 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

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

    De-Anne Kelly
    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).