The Trustee For The Kakatiya Unit Trust (Migration) - [2022] AATA 4333

The Trustee For The Kakatiya Unit Trust (Migration) [2022] AATA 4333 (21 November 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  The Trustee For The Kakatiya Unit Trust
REPRESENTATIVE:  Mr Tariq Ameer (MARN: 1807556)
CASE NUMBER:  1926206
HOME AFFAIRS REFERENCE(S):          BCC2018/945502
MEMBER:Terrence Baxter
DATE:21 November 2022
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision under review to refuse the nomination.

Statement made on 21 November 2022 at 9:22am
CATCHWORDS
MIGRATION – nomination – Direct Entry nomination stream – Retail Manager – No response to the Tribunal’s invitation has been received – not satisfied that at the time of this decision the applicant is actively and lawfully operating a business in Australia –– decision under review affirmed
LEGISLATION
Migration Act 1958, ss 65, 359, 360, 363
Migration Regulations 1994, rr 2.57, 5.19
CASES
Hasran v MIAC [2010] FCAFC 40
Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617
Manna v Minister for Immigration and Citizenship [2012] FMCA 28
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179
Vishnumolakala v Minister for Immigration [2006] FMCA 1209
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 29 August 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, The Trustee for the Kakatiya Unit Trust, applied for approval on 27 February 2018. The applicant nominated Mr Ashok Kumar Ayilam (the nominee) in the position of Retail Manager. 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 that the applicant’s nomination did not satisfy:
a.reg 5.19(4)(h)(ii)(B) of the Regulations because the delegate found that the applicant had not demonstrated that there was a genuine need to employ the nominee as a paid employee to work in the position under the applicant’s direct control; and
b.reg 5.19(4)(h)(ii)(C) of the Regulations because the delegate found that the applicant had not demonstrated that the position could not be filled by an Australian citizen or an Australian permanent resident living in the same local area is the nominated position.
The applicant lodged an application for review of the delegate’s decision with the Tribunal on 18 September 2019.
The applicant was represented in relation to the…

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 4333
Decision Date: 21 November 2022

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered an application by The Trustee For The Kakatiya Unit Trust (the applicant) concerning the approval of a nomination under the Direct Entry nomination stream. The dispute arose when the Department of Home Affairs refused to approve the nomination, and this decision was subsequently affirmed by the Tribunal. The core issue was whether the applicant met the requirements for nomination approval, specifically under regulation 5.19(4) of the Migration Regulations 1994.

The Tribunal was required to determine if the applicant satisfied all the criteria for the Direct Entry nomination stream, as stipulated in regulation 5.19(4). This included assessing whether the nominator was actively and lawfully operating a business in Australia and directly operating that business, as required by subregulations 5.19(4)(b)(i) and (ii). The Tribunal also considered the Department's policy regarding the assessment of active business operation, noting that while not bound by it, it could be applied if it did not lead to an unlawful or unjust decision.

The Tribunal reasoned that for a business operating for more than 12 months, appropriate financial documentation, such as a balance sheet and profit and loss statement for the most recent fiscal year, or business tax returns, should be provided to support claims of active operation. The applicant had provided various documents to both the Department and the Tribunal, including ABN lookup forms, financial statements, and tax returns. However, the Tribunal found that no response had been received to its invitation for further information, and it was not satisfied that the applicant was actively and lawfully operating a business in Australia at the time of the decision. 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

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.Evidence presented to the Department The applicant produced to the Department of Home Affairs (the Department) documents including:a.An ABN Lookup form in respect of the applicant’s ABN.b.A market salary submission and supporting evidence.c.Evidence of advertising for the position.d.An employment agreement and position description.e.The Trust Deed of the applicant trust.f.A business activity statement for the period from January 2017 to March 2017.g.A financial statement for the 2016 financial year.h.Taxation returns for the 2016 and 2017 financial years.i.A Form 1404 issued by the Regional Certifying Body dated 14 June 2018.j.A submission from the applicant dated 7 March 2018.Evidence presented to the Tribunal The applicant produced to the Tribunal:a.A copy of the delegate’s decision.b.The ABN Lookup form that had been provided to the Department.Nominator is actively and lawfully operating a business in Australia: reg 5.19(4)(b) 5.19(4)(b(i)) requires that the applicant is actively and lawfully operating a business in Australia. Regulation 5.19(4)(b(ii)) requires that the applicant directly operates the business. Regulation The Tribunal has considered the Department’s policy on the issue of active operation. The Tribunal is not bound by the policy but the Tribunal notes the finding of Brennan J in Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179 that the Tribunal should adopt the following practice: “When the Tribunal is reviewing the exercise of a discretionary power reposed in a Minister, and the Minister has adopted a general policy to guide him in the exercise of the power, the Tribunal will ordinarily apply that policy in reviewing the decision, unless the policy is unlawful or unless its application tends to produce an unjust decision in the circumstances of the particular case”. The Tribunal notes the comments of the Court in Vishnumolakala v Minister for Immigration [2006] FMCA 1209 at [27] that the policy is no more than an advisory administrative guide to delegates in relation to their application of the legislation, and that, as a matter of law, it could have no higher status. The Tribunal finds that the same rule applies to the Tribunal’s consideration of the policy. However, the Tribunal agrees that the matters set out in the policy for consideration when assessing this requirement are appropriate and considers that it is reasonably open to the Tribunal to assess the requirement having regard to those matters. The policy states that a business that has been actively operating for a period of more than 12 months should be able to provide appropriate financial documentation to support their claims of active operation. The applicant stated in its nomination application that it was established or commenced trading in Australia on 21 January 2011. The policy states that such businesses should be able to submit a balance sheet for the most recently concluded fiscal year (with comparative figures for the previous fiscal year) and a profit and loss statement (statement of performance) for the most recently concluded fiscal year, with comparative figures for the previous fiscal year or business tax returns for the most recently concluded fiscal year.

Decision

Reasons for decision

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.Evidence presented to the Department The applicant produced to the Department of Home Affairs (the Department) documents including:a.An ABN Lookup form in respect of the applicant’s ABN.b.A market salary submission and supporting evidence.c.Evidence of advertising for the position.d.An employment agreement and position description.e.The Trust Deed of the applicant trust.f.A business activity statement for the period from January 2017 to March 2017.g.A financial statement for the 2016 financial year.h.Taxation returns for the 2016 and 2017 financial years.i.A Form 1404 issued by the Regional Certifying Body dated 14 June 2018.j.A submission from the applicant dated 7 March 2018.Evidence presented to the Tribunal The applicant produced to the Tribunal:a.A copy of the delegate’s decision.b.The ABN Lookup form that had been provided to the Department.Nominator is actively and lawfully operating a business in Australia: reg 5.19(4)(b) 5.19(4)(b(i)) requires that the applicant is actively and lawfully operating a business in Australia. Regulation 5.19(4)(b(ii)) requires that the applicant directly operates the business. Regulation The Tribunal has considered the Department’s policy on the issue of active operation. The Tribunal is not bound by the policy but the Tribunal notes the finding of Brennan J in Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179 that the Tribunal should adopt the following practice: “When the Tribunal is reviewing the exercise of a discretionary power reposed in a Minister, and the Minister has adopted a general policy to guide him in the exercise of the power, the Tribunal will ordinarily apply that policy in reviewing the decision, unless the policy is unlawful or unless its application tends to produce an unjust decision in the circumstances of the particular case”. The Tribunal notes the comments of the Court in Vishnumolakala v Minister for Immigration [2006] FMCA 1209 at [27] that the policy is no more than an advisory administrative guide to delegates in relation to their application of the legislation, and that, as a matter of law, it could have no higher status. The Tribunal finds that the same rule applies to the Tribunal’s consideration of the policy. However, the Tribunal agrees that the matters set out in the policy for consideration when assessing this requirement are appropriate and considers that it is reasonably open to the Tribunal to assess the requirement having regard to those matters. The policy states that a business that has been actively operating for a period of more than 12 months should be able to provide appropriate financial documentation to support their claims of active operation. The applicant stated in its nomination application that it was established or commenced trading in Australia on 21 January 2011. The policy states that such businesses should be able to submit a balance sheet for the most recently concluded fiscal year (with comparative figures for the previous fiscal year) and a profit and loss statement (statement of performance) for the most recently concluded fiscal year, with comparative figures for the previous fiscal year or business tax returns for the most recently concluded fiscal year.

Ratio Decidendi

Legal Principle Established

The Tribunal affirms the decision under review to refuse the nomination.Terrence BaxterMemberATTACHMENT - 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).