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

1. 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).

2. 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).

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 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).

5. 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).

6. 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).

7. The applicant was requested to provide the requested information by 1 July 2022 and was advised that if it failed to do so (or failed to ask for an extension of time to do so), by that date, the applicant would lose its entitlement to have someone attend a hearing to present evidence and arguments on its behalf, and the Tribunal might proceed to make its decision without requesting further information.

8. On 5 July 2022 the representative emailed the Tribunal and stated that it was unable to contact the applicant and requested an extension of time to 19 July 2022.

9. As the Tribunal did not receive a response or a request for an extension of time by the due date, the applicant has lost their right to a hearing.  

10. If a person is given a formal invitation to provide information under s.359(2) and does not do so within the prescribed period, the Tribunal may make a decision on the review without taking any further action to obtain the information.[1] Moreover, if a person fails to respond to a written invitation within the prescribed period (or as extended), the review applicant also loses any entitlement to appear before the Tribunal to give evidence and present arguments relating to the issues in the review.[2] 

    [1] ss 359C(1), 424C(1). 

    [2] ss 360(3), 425(3). In Shrestha v MIBP [2014] FCCA 34, in circumstances where there was an administrative error by the Tribunal and a s 359A letter template was used instead of a s 359(2) letter template, the Court found that s 360 did not operate with the effect that the applicant was no longer entitled to a hearing, as the Tribunal had not complied with its statutory obligation under s 359C(1) to invite the applicant under s 359 to give information.

11. In the case of a review under Part 5 of the Migration Act (under which Part this review application falls), the language of s.363A operates to remove any discretion which the Tribunal may have had to allow a person to do something where a provision of Part 5 states that the person is not entitled to do so.[3] Therefore, once the applicant has lost their entitlement to a hearing, the effect of ss.359C(1), 360(3) and 363A is that the Tribunal has no power to invite the applicant to a hearing.

    [3] Hasran v MIAC (2010) 183 FCR 413 at [26]. This confirms the views expressed in M v MIMA (2006) 155 FCR 333 at [46], and MIMA v Sun (2005) 146 FCR 498, for example.

12. Given the above, the Tribunal finds that the applicant lost its entitlement to a hearing due to the failure to provide the requested information (or seek an extension of time to do so) by 1 July 2022, the due date. Accordingly, the Tribunal considers it reasonable to now proceed to make a decision on the evidence before it.

13. For the following reasons, the Tribunal has decided to affirm the decision under review to refuse the nomination.

    CONSIDERATION OF CLAIMS AND EVIDENCE

14. 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)

15. 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.

16. 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.

17. 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)

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

19. 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.

20. The Tribunal has not been provided with any evidence to demonstrate that the applicant is actively, lawfully and directly operating a business.

21. 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.

22. Accordingly, the requirement in reg 5.19(4)(b) is not met.

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

23. 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. 

24. 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.

25. 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.

26. For the above reasons, the Tribunal is not satisfied that the applicant meets the requirements of r.5.19(4), as failure to meet any 1 of the subparagraphs is sufficient for the criteria in r.5.19(4) not to be met as a whole.

27. The Tribunal has found that r.5.19(4)(d) is not met, and therefore it is unnecessary for it to consider the remaining r.5.19(4) criteria.

28. The applicant has not sought to satisfy the criteria in Temporary Residence Transition Nomination, and as such has not met the requirements in r.5.19(3). Accordingly, the nomination of the position cannot be approved.

29. Therefore, the Tribunal must affirm the decision under review. 

    DECISION

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

    Susan Reece Jones
    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)       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).