The Trustee for Wang and Yuan Family Trust T/AS Ant&Elephant Cafe (Migration)

The Trustee for Wang and Yuan Family Trust T/AS Ant&Elephant Cafe (Migration) [2022] AATA 3125 (19 August 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  The Trustee for Wang and Yuan Family Trust T/AS Ant & Elephant Cafe
REPRESENTATIVE:  Mrs Li (MARN: 1798321)
CASE NUMBER:  1918920
HOME AFFAIRS REFERENCE(S):          BCC2018/4619801
MEMBER:De-Anne Kelly
DATE:19 August 2022
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision under review to refuse the nomination.

Statement made on 19 August 2022 at 10:49am
CATCHWORDS
MIGRATION – nomination – Direct Entry nomination stream – Café & Restaurant Manager – applicant failed to provide the requested information within the prescribed period – nominator did not provide any updated or current information –decision under review affirmed
LEGISLATION
Migration Act 1958, ss 65, 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 29 June 2019 to reject the applicant’s application for approval of the nomination of a position under reg 5.19 of the Migration Regulations 1994 (Cth) (the Regulations).
The applicant applied for approval on 22 October 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 general requirements for approval and additional requirements for approval set out in three alternative streams: a Temporary Residence Transition stream, a Direct Entry stream and a Labour Agreement stream. If the application meets the requirements for approval then the application must be approved: reg 5.19(3)(a). If any of the requirements are not met then the application must be refused: reg 5.19(3)(b).
In this case, the applicant has applied for approval of a nomination, seeking to satisfy the criteria in the Direct Entry stream.
The delegate refused the application on the basis the applicant’s nomination did not satisfy reg 5.19(4)(f) and reg.5.19(4) of the Regulations because the applicant had not provided information demonstrating how they determined the Annual Market Salary Rate, AMSR for the nominated occupation such that it was in accordance with IMMI 18/033 and paragraph 2.72(15)(c).
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.
Tribunal invitation to provide information
On 26 July 2022 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.
The combined invitation also specifically stated that the Tribunal must receive the applicant’s comments / response and the requested information by 9 August 2022, 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. The invitation was sent via the email address provided on the review application form.
However, the applicant did not provide its requested information, within the prescribed period and did not request an extension of time.
In these circumstances, s.359C of the Act 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.
To date, the requested information has not been provided and the applicant has not contacted the Tribunal to indicate that the information is forthcoming. The Tribunal is not required to delay indefinitely making its decision. In the circumstances, the Tribunal has decided to proceed to decision without taking further steps to obtain the information.
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 general requirements for approval of the nomination set out in reg 5.19(4) and the stream specific requirements set out in DE reg 5.19(9) which is extracted in the attachment to this decision. For the nomination to be approved, all the requirements must be met.
On 22 October 2018 the applicant trading as Ant and Elephant Café lodged a Regional Sponsored Migration Scheme employer nomination visa subclass 187 in the Direct Entry Stream for the position of Café & Restaurant Manager on $54,000 per annum to be employed in Modbury South Australia 5092 in favour of Mr Kian Seong TENG.
Actively and lawfully operating business – reg 5.19(9)(a)
Regulation 5.19(9)(a) requires that the nominator is actively and lawfully operating a business in Australia.
In the invitation sent by the Tribunal it requested updated evidence of financial circumstances such as tax returns for the last two full financial years and BAS statements lodged with the ATO for the past 24 trading months to demonstrate that the business is actively and lawfully operating.
The applicant did not provide updated information in response to the invitation and the Tribunal can only examine the evidence it has to hand which is scant and being documents that are several years out of date. The Tribunal cannot be satisfied on the evidence to hand that the applicant is actively operating a business.
Given the above findings, the Tribunal is not satisfied that reg 5.19(9)(a) is met. Accordingly, reg 5.19(4)(f) is not met.
Annual earnings – reg 5.19(9)(h)
Regulation 5.19(9)(h) provides that the requirements set out in reg 2.72(15) must be met, applying regs 2.72(15) and (16) as if reg 2.72(15)(a) did not apply and references to ‘the nominee’ and ‘the person’ were references to the identified person and the nominator respectively. Regulation 2.72(15) contains several requirements which must be met if the identified person’s annual earnings in relation to the occupation will not be at least the amount specified in the instrument IMMI 18/033, Regulation 2.57A provides for the meaning of ‘earnings’. Where reg 2.72(15) applies, it requires that:
·the annual market salary rate (the rate) for the occupation has been determined by the applicant by reference to instrument IMMI18/033 : reg 2.72(15)(c). The ‘annual market salary rate’ means the earnings an Australian citizen or an Australian permanent resident earns or would earn for performing equivalent work on a full-time basis for a year in the same workplace at the same location: reg 1.03.
·the rate, excluding any non-monetary benefits (as defined in reg 2.57A(3)), for the occupation is not less than the temporary skilled migration income threshold specified in the instrument IMMI18/033, (TSMIT), unless the rate for the occupation is not less than the TSMIT, and it is reasonable in the circumstances to disregard this criterion: regs 2.72(15)(d) and 2.72(16)(a);
·the identified person’s annual earnings in relation to the occupation will not be less than the rate for the occupation, unless it is reasonable in the circumstances to disregard this criterion, and the criterion in reg 2.72(10)(b) in relation to the need for a full-time position is disregarded under reg 2.72(10A): regs 2.72(15)(e) and 2.72(16)(aa). However, in this case, the power under reg 2.72(10A) does not arise;
·the identified person’s annual earnings, excluding any non-monetary benefits (as defined in reg 2.57A(3)), in relation to the occupation will not be less than the TSMIT, unless it is reasonable in the circumstances to disregard this criterion: regs 2.72(15)(f) and 2.72(16)(b); and
·either there is no information known to Immigration that indicates the rate for the occupation is inconsistent with Australian labour market conditions relevant to the occupation, or it is reasonable to disregard any such information: reg 2.72(15)(g).
The relevant legislative instrument made for the purposes of paragraphs 2.72(15)(b), (d)and subregulation 2.72(17) is Migration (IMMI 18/033: Specification of Income Threshold and Annual Earnings and Methodology of Annual Market Salary Rate) Instrument 2018.
IMMI18/033 specifies:
● for the purposes of paragraph 2.72(15)(b), the amount of annual earnings is AUD
250,000;
● for the purposes of paragraph 2.72(15)(d), the TSMIT is AUD 53,900; and
● for the purposes of subregulation 2.72(17), the method of determination of AMSR.
IMMI 18/033 states the method to be used to determine the AMSR depends on whether there is an Australian worker performing equivalent work in the same workplace and location.
Where there is an Australian worker performing equivalent work in the same workplace and location, the method for determining the AMSR is:
● If there is a fair work instrument, state industrial instrument or transitional instrument
applicable to such an Australian worker, then the AMSR for the nominated occupation is
the annual earnings of an Australian worker contained in those instruments.
● If there is no such instrument, then the AMSR should be determined by reference to the
relevant employment documents.
Where there is not an Australian worker performing equivalent work in the same workplace
and location, the method for determining the AMSR is:
● If there is a fair work instrument, state industrial instrument or transitional instrument
applicable to a nominated occupation, then the AMSR for the nominated occupation is
the annual earnings of an equivalent Australian worker contained in those instruments.
● If there is no such instrument, then the AMSR is the annual earnings that would apply
to an equivalent Australian worker, which must be determined by reference to relevant
information.
IMMI 18/033 includes the following definitions:
Australian worker means an employee that is either an Australian citizen or an Australian
permanent resident
Relevant employment documents may include, but is not limited to:
a) pay slips;
b) contract of employment.
relevant information may include, but is not limited to:
a) information published on the Australian Government’s Job Outlook website;
b) job advertisements from a national recruitment website or national print media that are
in English and specify the salary arrangements for the advertised position;
c) written advice from registered employer associations and/or unions;
d) remuneration surveys generated across the relevant industry by a reputable
organisation or body.
fair work instrument and state industrial instrument have the meaning given by section
12 of the Fair Work Act 2009.
transitional instrument has the meaning given by section 2 of the Fair Work (Transitional
Provisions and Consequential Amendments) Act 2009.
As the proposed annual earnings of the identified person are less than AUD 250,000 in accordance with paragraph 2.72(15)(b), the Minister or delegate must be satisfied of the other criteria in paragraphs 2.72(15)(c) to (g).
In relation to the criteria in paragraph 2.72(15)(c): The applicant indicated in their application form that they do not have an Australian worker in their workplace performing work equivalent to that of the nominated position.
The application stated that an equivalent Australian worker would not be paid in accordance with a fair work instrument, state industrial instrument or transitional instrument. As a result the AMSR must be determined by reference to relevant information. The application indicated that there is not an Australian worker performing equivalent work, but there is a fair work instrument, state industrial instrument or transitional instrument applicable to the nominated occupation. Therefore, the AMSR is the annual earnings of an equivalent Australian worker specified in those instruments: paragraph 8(a) of IMMI 18/033. It is noted that in the application the nominator stated that they used advertisements on websites such as Indeed and Payscale information to substantiate the AMSR however scant evidence of these was provided at the time.
In the Tribunal invitation for updated information, it requested information about the terms and conditions of employment in the nominated position, including whether they are more or less favourable than those that would be provided for an Australian citizen or Australian permanent resident performing equivalent work in the same workplace at the same location.
The applicant did not provide updated information in response to the invitation. The Tribunal cannot be satisfied that the applicant has determined the AMSR for the nominated occupation in accordance with method specified in IMMI 18/033.
As such 2.72(15)(c) and subregulation 2.72(15) are not met and as a result paragraph 5.19(9)(h) is not met. Consequently, paragraph 5.19(4)(f) is not met and the nominator does not meet subregulation 5.19(4).
Given the above findings, the Tribunal is not satisfied that reg 5.19(9)(h) is met. Accordingly, reg 5.19(4)(f) is not met.
For these reasons the Tribunal is not satisfied that the applicant meets the requirements of reg 5.19. Accordingly, reg 5.19(3)(b) requires that the nomination must be refused. The decision under review must be affirmed.
decision
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—Subclass 186 (Employer Nomination Scheme) visa and Subclass 187 (Regional Sponsored Migration Scheme) visa
Application
(1)A person (the nominator) (including a partnership or unincorporated association) may apply to the Minister for approval of the nomination of a position in Australia.
(2)The application must:
(a)be made in accordance with approved form 1395 (Internet); and
(b)identify the position; and
(c)identify a person (the identified person) in relation to the position; and
(d)identify an occupation in relation to the position; and
(e)identify the subclass and stream to which the nomination relates, which must be one of the following:
(i)a Subclass 186 (Employer Nomination Scheme) visa in the Temporary Residence Transition stream;
(ii)a Subclass 187 (Regional Sponsored Migration Scheme) visa in the Temporary Residence Transition stream;
(iii)a Subclass 186 (Employer Nomination Scheme) visa in the Direct Entry stream;
(iv)Subclass 187 (Regional Sponsored Migration Scheme) visa in the Direct Entry stream;
(v)a Subclass 186 (Employer Nomination Scheme) visa in the Labour Agreement stream; and
(f)be accompanied by the fee mentioned in regulation 5.37; and
(fa)be accompanied by any nomination training contribution charge the nominator is liable to pay in relation to the nomination; and
(fb)identify the annual turnover (within the meaning of the Migration (Skilling Australians Fund) Charges Regulations 2018) for the nomination; and
(g)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.
Approval of nomination
(3)The Minister must, in writing:
(a)approve the nomination if the Minister is satisfied that the requirements set out in subregulation (4) are met; or
(b)otherwise—refuse to approve the nomination.
Requirements for approval—general
(4)The requirements to be met for the nomination to be approved are as follows:
(a)the application is made in accordance with subregulation (2);
(b)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;
(c)if it is mandatory, in the State or Territory in which the position is located, for a person to:
(i)hold a licence of a particular kind; or
(ii)hold registration of a particular kind; or
(iii)be a member (or a member of a particular kind) of a particular professional body;
to perform tasks of the kind to be performed in the occupation, the identified person is, or is eligible to become, the holder of the licence, the holder of the registration, or a member of the body, at the time of application;
(d)the nominator has a satisfactory record of compliance with the laws of the Commonwealth, and of each State or Territory in which the nominator operates a business and employs employees in the business, relating to employment;
(da)any debt due by the nominator as mentioned in section 140ZO of the Act (recovery of nomination training contribution charge and late payment penalty) has been paid in full;
(e)if the nomination relates to a visa in a Temporary Residence Transition stream—the requirements set out in subregulation (5) are met;
(f)if the nomination relates to a visa in a Direct Entry stream—the requirements set out in subregulation (9) are met;
(g)if the nomination relates to a visa in a Labour Agreement stream—the requirements set out in subregulation (14) are met.
…
Direct Entry stream—additional requirements for approval
(9)If the nomination relates to a visa in a Direct Entry stream, the following requirements must also be met:
(a)the nominator is actively and lawfully operating a business in Australia;
(b)if the nominator’s business activities include activities related 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;
(c)the application identifies a need for the identified person to be employed in the position, under the direct control of the nominator;
(d)there is a genuine need for the identified person to be employed in the position, under the direct control of the nominator;
(e)the identified person will be employed on a full‑time basis in the position for at least 2 years;
(f)the terms and conditions of the identified person’s employment will not include an express exclusion of the possibility of extending the period of employment;
(g)the nominator’s business has the capacity to employ the identified person for at least 2 years and to pay the person at least the annual market salary rate for the occupation each year;
(h)the requirements set out in subregulation 2.72(15) are met, applying subregulations 2.72(15) and (16) as if:
(i)paragraph 2.72(15)(a) did not apply; and
(ii)references to the nominee were references to the identified person; and
(iii)references to the person were references to the nominator;
(i)either:
(i)there is no information known to Immigration that indicates that the employment conditions (other than in relation to earnings) that will apply to the identified person are less favourable than those that apply, or would apply, to an Australian citizen or an Australian permanent resident performing equivalent work at the same location; or
(ii)it is reasonable to disregard any such information;
(j)the requirements set out in subregulation (10) or (12) are met.
Occupations for the Subclass 186 (Employer Nomination Scheme) visa in the Direct Entry stream
(10)The requirements of this subregulation are as follows:
(a)the tasks to be performed in the position will be performed in Australia and correspond to the tasks of an occupation specified in a legislative instrument:
(i)made under subregulation (11); and
(ii)in force at the time the application is made;
(b)the occupation applies to the identified person in accordance with that instrument.
(11)The Minister may, by legislative instrument, specify occupations for the purposes of subregulation (10) and, for each occupation, specify any matters for the purposes of determining whether the occupation applies to an identified person, including matters relating to any of the following:
(a)the nominator;
(b)the identified person;
(c)the occupation;
(d)the position in which the identified person is to work;
(e)the circumstances in which the occupation is undertaken;
(f)the circumstances in which the person is to be employed in the position.
Occupations for the Subclass 187 (Regional Sponsored Migration Scheme) visa in the Direct Entry stream
(12)The requirements of this subregulation are as follows:
(a)the position is located at a place in regional Australia;
(b)the business operated by the nominator is located at that place;
(c)the position cannot be filled by an Australian citizen or an Australian permanent resident who is living in, or would move to, the local area concerned;
(d)the tasks to be performed in the position correspond to the tasks of an occupation specified in a legislative instrument:
(i)made under subregulation (13); and
(ii)as in force at the time the application is made;
(e)the occupation applies to the identified person in accordance with that instrument;
(f)the Minister has been advised by a body that meets the requirements set out in paragraph (g) of this subregulation about matters relating to the following:
(i)whether the identified person would be paid at least the annual market salary rate for the occupation;
(ii)whether there is a genuine need for the identified person to be employed in the position, under the direct control of the nominator;
(iii)whether the position can be filled by an Australian citizen or an Australian permanent resident who is living in, or would move to, the local area concerned;
(g)the body must:
(i)be specified in a legislative instrument made by the Minister for the purposes of this paragraph; and
(ii)be located in the State or Territory in which the position is located; and
(iii)have responsibility for the local area in which the position is located.
(13)The Minister may, by legislative instrument, specify occupations for the purposes of subregulation (12) and, for each occupation, specify any matters for the purposes of determining whether the occupation applies to an identified person, including matters relating to any of the following:
(a)the nominator;
(b)the identified person;
(c)the occupation;
(d)the position in which the identified person is to work;
(e)the circumstances in which the occupation is undertaken;
(f)the circumstances in which the person is to be employed in the position.
…
Meaning of regional Australia
(16)In this regulation:
regional Australia means a part of Australia specified in legislative instrument made by the Minister for the purposes of this definition.

[2022] AATA 3125

19 August 2022

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Immigration

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