The Trustee for the Burger Unit Trust (Migration) - [2022] AATA 3015

The Trustee for the Burger Unit Trust (Migration) [2022] AATA 3015 (31 July 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  The Trustee for the Burger Unit Trust
REPRESENTATIVE:  Mr Andreas Athanasiou (MARN: 1685134)
CASE NUMBER:  1914832
HOME AFFAIRS REFERENCE(S):          BCC2017/2879059
MEMBER:Susan Reece Jones
DATE:31 July 2022
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision under review to refuse the nomination.

Statement made on 31 July 2022 at 2:58pm

CATCHWORDS
MIGRATION – nomination – Direct Entry nomination stream – Cafe or Restaurant Manager – applicant failed to provide the requested information within the prescribed period – no evidence available to demonstrate that the applicant is actively, lawfully, and directly operating a business in Australia – nominator did not provide any updated or current information –decision under review affirmed
LEGISLATION
Migration Act 1958, ss 65, 359, 360, 363
Migration Regulations 1994, r 5.19
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 21 May 2019 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 (Cth) (the Regulations).
The applicant applied for approval on 11 August 2017. The requirements for the approval of the nomination of a position of Cafe or Restaurant Manager (ANZSCO 141111) 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)(h) of the Regulations because the Department found that the applicant did not demonstrate that the position cannot be filled by an Australian citizen or an Australian permanent resident who is living in the same local area (namely Geelong, Victoria).
On 17 June 2022, the Tribunal wrote via email to the applicant’s representative Mr Andreas Athanasiou of the K& A Associates, pursuant to s.359(2) of the Act to invite the applicant to provide up to date and current information demonstrating that the applicant met all of the applicable r.5.19(4) criteria (not merely the subparagraph that the delegate had found was not met).
The Tribunal provided the representative and the applicant with a copy of r.5.19(4) for reference and provided detailed examples of the kind of documentary evidence that would assist the Tribunal to assess the criteria set out in r.5.19(4).
The applicant was requested to provide the requested information by 1 July 2022 and was advised that if it failed to…

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: [2022] AATA 3015
Decision Date: 31 July 2022

CaseChat Overview and Summary

The Administrative Appeals Tribunal (AAT) considered an application by The Trustee for the Burger Unit Trust (the applicant) to review a decision to refuse the approval of a nomination under the Direct Entry stream for a Cafe or Restaurant Manager. The applicant sought to nominate an individual for employment in a position within their business, Boss Burger Co.

The primary legal issue before the Tribunal was whether the applicant met the requirements for approval of the nomination as set out in regulation 5.19(4) of the Migration Regulations 1994. Specifically, the Tribunal was required to determine if the applicant was actively, lawfully, and directly operating a business in Australia, and if the nominated employee would be employed full-time for at least two years on terms that did not expressly preclude an extension.

The Tribunal found that while the application form and fee requirements were met, there was insufficient evidence to satisfy the requirement that the nominator was actively, lawfully, and directly operating a business in Australia. Although a website suggested the business name, no further evidence of ownership or trading status was provided. Furthermore, the Tribunal was unable to be satisfied that the nominee would be employed full-time for at least two years, as required by regulation 5.19(4)(d), due to a lack of evidence regarding the applicant's business and employment capacity. Consequently, the Tribunal affirmed the decision under review to refuse 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 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 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.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). 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. From the material on the Department file, the Tribunal is satisfied that the applicant complied with the above requirements, and that the requirement in r.5.19(3)(a) is met. Accordingly, the requirement in reg 5.19(4)(a) is 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. The applicant’s business was established on 21 September 2015 and trades under the business name Boss Burger Co. According to the applicant’s records, both the head office and the nominated position are located in Geelong West. The Tribunal has not been provided with any evidence to demonstrate that the applicant is actively, lawfully and directly operating a business. The Tribunal has had regard to a website ( which appears to indicate that the applicant may be trading under the business name of Boss Burger Co. However, the Tribunal has not been provided with any other evidence as to the ownership or trading status of the applicant, so the Tribunal is unable to be satisfied that the applicant is actually actively, lawfully and directly operating a business in Australia. Accordingly, the requirement in reg 5.19(4)(b) is not met.Term of employment of the visa holder: reg 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. On the basis that the Tribunal has not been provided with any evidence or material in regard to the applicant and its business and employment of the nominee, the Tribunal is unable to be satisfied that the applicant has the capacity to meet all of its financial obligations including the payment of wages to all employees. Further, the Tribunal is unable to be satisfied that the nominee will be employed by the applicant on a full-time basis for at least 2 years on terms that do not expressly preclude the possibility of an extension, and it is not satisfied that r.5.19(4)(d) is met.

Decision

Reasons for decision

Therefore, the Tribunal must affirm the decision under review. DECISION The Tribunal affirms the decision under review to refuse the nomination.Susan Reece JonesMemberATTACHMENT - 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 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).

Ratio Decidendi

Legal Principle Established

The Tribunal affirms the decision under review to refuse the nomination.Susan Reece JonesMemberATTACHMENT - 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 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).