The Trustee for the Hungry Fork Trading Trust (Migration)

The Trustee for the Hungry Fork Trading Trust (Migration) [2022] AATA 3748 (21 September 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  The Trustee for the Hungry Fork Trading Trust
CASE NUMBER:  1920580
HOME AFFAIRS REFERENCE(S):          BCC2018/821512
MEMBER:Warren Stooke AM
DATE:21 September 2022
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision under review to refuse the nomination.
Statement made on 21 September 2022 at 10:59am

CATCHWORDS
MIGRATION – nomination – Direct Entry nomination stream – Café or Restaurant Manager – applicant failed to provide the requested information within the prescribed period – applicant has not provided sufficient evidence to support the need for the position – business has not been lawfully operating since deregistration –decision under review affirmed
LEGISLATION
Migration Act 1958, ss 65, 140GBA, 245AR, 359, 360, 363
Migration Regulations 1994, r 5.19
CASES
Hasran v MIAC [2010] FCAFC 40

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 18 July 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 20 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 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)(ii)(D) of the Regulations because the delegate found that even though the company owner/Director may leave some decisions at the restaurant to the nominee (for example rostering, maintaining stock and financial records, supervision of staff and customer service tasks), the delegate formed the opinion that the owner will still provide significant input into any management decisions which are made, to the extent that he is the ultimate decision maker. The delegate found it reasonable to determine that the owner/Director would be able to perform the tasks involved to manage the business along with his other business interests.
On 17 August 2022 the Tribunal corresponded with the applicant to provide information pursuant to s359(2) to the Tribunal pertaining to the nominated position with a response required by 31 August 2022. As at the date of decision, the applicant has not provided the information sought by the Tribunal.
The review applicant has not provided the information within the prescribed period and no extension has been sought or granted. In these circumstances, s 359C applies and pursuant to s 360(3) the review applicant is not entitled to appear before the Tribunal. The effect of s 363A of the Act is that if a review applicant has no entitlement to a hearing, the Tribunal has no power to permit him or her to appear: Hasran v MIAC [2010] FCAFC 40. The Tribunal has decided to proceed to decision without taking further steps to obtain the information.
The applicant was represented in relation to the review.
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 Representative submitted the following profile of the business:
“The restaurant is 45-50 seaters inside and outside servicing local residents. It caters pass bys and office staff of nearby businesses and families in the region. It generates revenue from dine-ins and catering and functions. It has completed the initial stage of development and is a fully operational restaurant and growing on catering contracts. The Restaurant Manager is needed because the business has considerably increased since the onset of the restaurant and require checking the venues and inspecting the site for catering requirements and making arrangements before the functions and also supervising the functions if required. The business has been trading 7 days a week and is finding it hard to be managed. Restaurant Manager is needed so that ala carte and restaurant BAU activities along with outside fixed catering at a large scale does not suffer. Hence, there is a dire need of a full time Restaurant Manager taking up regular restaurant tasks and duties of managing the fixed catering orders and functions and also serving fixed catering orders which the business has with other restaurants and manage busy wedding seasons.”
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.
The applicant provided the Department with a written certification (within the application) stating that the nominator has not engaged in conduct in relation to the nomination that contravenes s. 245AR(1). This document was dated 20 February 2018.
The applicant has provided evidence of an approved RSMS for the position, including the name of the nominee, Gurpreet Singh; the ANZSCO position code – 141111 and the salary of $56,000 to be paid to the nominee.
On 17 August 2022, the Tribunal corresponded with the applicant and sought the provision of the following information for consideration of the application:
“In order for the nomination of a position to be approved, the Tribunal must be satisfied that all of the relevant criteria in r.5.19 of the Regulations are met at the time of its decision. As the application for nomination was made under the Direct Entry
nomination stream, the relevant criteria are in rr.5.19(2) and (4) of the Regulations.
The Tribunal now requires updated and current information addressing these
criteria. Accordingly, and without limiting the information that may be given, you or
another person authorised by the applicant are invited to give the following information in writing. We have given examples of the type of information you could provide:
1. Information about the identity of any person authorised to speak and make
decisions on behalf of the applicant;
·If the applicant is a company or registered business, an ASIC company or business name extract ( If the applicant is a company or registered business, current and historical
information about its owners or office holders’ registration details;
·An ASIC current and historical extract ( 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.
4. Information about the applicant’s current organisational structure and where the
nominated position sits in relation to that structure;
·An organisational structure chart that includes all of the applicant’s
current and proposed employees, their position title/duties and their
immigration status (i.e. Australian citizen, permanent resident or temporary
visa holder).
5. Information about the roles and duties of the nominated position and how they
correspond to the nominated occupation’s position description in ANZSCO;
·Job descriptions, work samples, emails, correspondence and other
examples of the daily tasks performed in the nominated position, and also
the nominated occupation’s position description in ANZSCO (go to
and type the nominated
occupation’s 6 digit ANZSCO code number into the ‘Search’ function).
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;
·A current employment contract in respect of the nominee or letter of
engagement that complies with relevant awards for the nominated position
(if any).
7. If the nominated position is not located in regional Australia and the applicant has
paid the non-regional position application fee, information about:
a.the need to employ the nominee in the nominated position; AND
b.the applicant’s business operating for at least 12 months and its recent training expenditure; OR
c. the applicant’s business operating for less than 12 months and its plan for future training expenditure
·Invoices or contracts for employee training, a training program that
includes a course outline, attendance and identifies increased work
competencies, or records of investment in certain industry training funds
or recognised industry bodies
8. If the nominated position is located in regional Australia, information about:
a. the need to employ the nominee in the nominated position and why the position
cannot be filled by an Australian citizen or permanent resident living in the
same local area; and
b. whether a specified Regional Certifying Body located in the same State or
Territory as the nominated position has provided advice that:
i. the terms and conditions of employment are no less favourable than those provided to Australian citizens or permanent residents performing equivalent work in the same workplace; and
ii. there is a genuine need to employ the nominated person as a paid
employee to work in the nominated position under the applicant’s direct control; and
iii. the position cannot be filled by an Australian citizen or permanent resident living in the same area.
·Local job advertisements for the nominated position that were not
successfully filled, and the Regional Certifying Body’s certificate issued to
the applicant in respect of this position.
9. Information about whether the applicant has been subject to monitoring by the
Department and, if relevant, the outcome of the monitoring audit;
10. Information about whether the applicant has been the subject of any investigation
about a possible contravention of the law.
This information, in writing, should be received by 31 August 2022. If the information
is in a language other than English, it must be accompanied by an English translation
from an accredited translator.
If you or another person authorised by the applicant cannot provide the information by 31 August 2022, you or another person authorised by the applicant may ask us for an extension of time in which to provide the information. If an extension of time request is made, it must be received by us before 31 August 2022 and it must state the reason why the extension of time is required.
We will carefully consider any request for an extension of time and will advise whether or not the extension has been granted.
If we do not receive the information within the period allowed or as extended, we may
make a decision on the review without taking any further action to obtain the
information. The applicant will also lose any entitlement it might otherwise have
had under the Migration Act to appear before us to give evidence and present
arguments.
Alternatively, if the applicant’s circumstances have changed and the applicant no
longer wishes to proceed with this application for review, please complete a withdrawal form by clicking on the link directly below.
If you have any questions, please email [email protected], or contact me on the
number listed below, or telephone our national enquiry line on 1800 228 333. For
language assistance, please contact the Translating and Interpreting Service (TIS) on 131 450.”
Further, in the absence of a response to the request for further contemporary information, addressed in the Tribunal correspondence of 17 August 2022, the Tribunal is not satisfied that the applicant has provided sufficient evidence to support the need for the position of Café or Restaurant Manager – ANZSCO Code: 141111 under the direct control of the business owner.
In the absence of contemporary information concerning the lawful operation of the business, and the evidence that the business was deregistered on 30 June 2018, the Tribunal is not in a position to assess the nominee’s role in the context of the overall business operation and how the position interacts with the owner and other employee positions in the business and whether there is a genuine need for the position. The applicant provided evidence to the Department and Tribunal of an organisation chart with the nominee reporting to the Director, however, the applicant has not provided the Tribunal with any end of financial year accounts to substantiate the capacity to employ the nominee for at least 2 years.
Accordingly, the requirement in r.5.19(4)(a) is not 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 provided evidence that ‘The Trustee for The Hungry Fork Trading Trust’ was registered as a discretionary trust on 1 July 2017 with an assigned ABN: 70 278 081 547 and has the main business located in Queensland.
The Tribunal was advised that the business registration for ‘The Hungry Fork Trading Trust’ with ABN: 70 278 081 547 was cancelled on 30 June 2018 and that it was not registered for GST.
The applicant provided the Department with a BAS return for the quarters, September and December 2017, and has not provided the Tribunal with any end of year accounts or ATO Taxation return for any year since the business was registered on 1 July 2017. As such, the Tribunal is satisfied that the business has not demonstrated any financial capacity to sponsor the nominee in the position of Café or Restaurant Manager – ANZSCO Code: 141111 for at least 2 years, particularly as the business (with registration ABN: 70 278 081 547) has not been lawfully operating since deregistration on 30 June 2018.
Accordingly, the requirement in reg 5.19(4)(b) is not met.
Satisfactory compliance with workplace relations laws: reg 5.19(4)(g)
Regulation 5.19(4)(g) requires that the applicant 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.
The applicant provided the Tribunal with a contract of employment dated on 8 February 2018, with the nominee, that prescribes a salary of $56,000 plus 9.5 per cent superannuation contribution and that the contract will commence after the grant of the 187 RSMS visa and will be in place for at least 2 years.
The applicant has not provided the Tribunal with evidence that the nominee was provided with a Fair Work Information Statement at the commencement of employment with the contract of employment.
Accordingly the requirements of reg 5.19(4)(g) are not met.
On the basis that the Tribunal is not satisfied that the applicant has met regulations: 5.19(4)(a); 5.19(4)(b) and 5.19(4)(g) the Tribunal has not progressed a review of the other criteria, particularly given that the business was deregistered on 30 June 2018 and is not lawfully operating as a busines capable of sponsoring a nominee for the position of Café or Restaurant Manager – ANZSCO Code: 141111.
For the above reasons the Tribunal is not satisfied that the applicant meets the requirements of reg 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 reg 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.
Warren Stooke AM
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 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).

[2022] AATA 3748

21 September 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Standing

Statutory Construction