Three Little Steps Pty Ltd and Slanted Pty Ltd (Migration) - [2022] AATA 1669

Three Little Steps Pty Ltd and Slanted Pty Ltd (Migration) [2022] AATA 1669 (12 January 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Three Little Steps Pty Ltd and Slanted Pty Ltd
CASE NUMBER:  1905724
HOME AFFAIRS REFERENCE(S):          BCC2017/2479076
MEMBER:Terrence Baxter
DATE:12 January 2022
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Statement made on 12 January 2022 at 9:04am
CATCHWORDS
MIGRATION – application for approval of nomination of position – direct entry stream – cook – genuine need for position – large-scale business returning to full operation after COVID-19 restrictions – capacity to pay nominee’s salary – nominee’s specialised skills, experience and longevity in position – adverse information not investigated or substantiated – breach of sponsorship obligations counselled but no formal sanction imposed – joint hearing with reviews of related nomination and visa refusals – decision under review set aside
LEGISLATION
Migration Act 1958 (Cth), ss 359AA, 376
Migration Regulations 1994 (Cth), rr 1.13A(1), 5.19(4)(a)(ii), (d)(i), (f)(i), (ii), (h)(ii)(B)
CASES
Bharaj Construction Pty Ltd v MIBP [2016] FCCA 902
MIBP v Jayshree Enterprises Pty Ltd [2017] FCA 264
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 19 February 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, Three Little Steps Pty Ltd and Slanted Pty Ltd, applied for approval on 12 July 2017. The applicant nominated Mrs Elisa Scalabrini (the nominee) in the position of Cook. 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 reg 5.19(4)(a)(ii) of the Regulations because the delegate found that the applicant did not identify a need for a paid employee to work in the position under the applicant’s direct control.
The applicant lodged an application for review of the delegate’s decision with the Tribunal on 11 March 2019.
Mrs Amy Escott, the sole shareholder of Slanted Pty Ltd, appeared before the Tribunal by video conference on 20 October 2021 to give evidence and present arguments. The hearing was a joint hearing with the application for review of a decision to refuse the visa application of the nominee. 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 1669
Decision Date: 12 January 2022

CaseChat Overview and Summary

The Administrative Appeals Tribunal reviewed a decision concerning an application for approval of a nomination for a position under the Direct Entry stream. The parties involved were Three Little Steps Pty Ltd and Slanted Pty Ltd, acting as the nominator, and the Department of Home Affairs (represented by a delegate whose decision was under review). The core of the dispute centred on whether the nominator met the requirements for approving the nomination, particularly in light of certain adverse information that had come to the Department's attention.

The Tribunal was required to determine if the nominator satisfied the criteria set out in regulation 5.19(4) of the Migration Regulations 1994. Specifically, the Tribunal had to assess whether there was a genuine need for the nominated position, whether the nominator had the capacity to pay the nominee's salary, and crucially, whether there was any adverse information known to the Department about the nominator, and if so, whether it was reasonable to disregard such information. The Tribunal also considered the nominator's operational capacity and the nominee's qualifications and experience.

In its reasoning, the Tribunal found that the nominator had demonstrated a genuine need for the position, supported by evidence of its substantial business operations, including a restaurant and a large catering arm, which were returning to full operation after COVID-19 restrictions. The Tribunal was satisfied that the nominator had the capacity to pay the nominee's salary. Regarding the adverse information, which related to an unsubstantiated allegation of cash payments for a previous visa sponsorship, the Tribunal concluded that while the information was technically adverse, it was reasonable to disregard it due to its lack of substantiation, the passage of time, and the nominator's vigorous denial. The Tribunal noted that the allegation had not been investigated or substantiated by the Department.

Consequently, the Tribunal decided to set aside the delegate's decision and substitute it with a decision approving the nomination. This outcome was based on the Tribunal's finding that all the requirements of regulation 5.19(4) had been met, including the satisfactory handling of the adverse information.

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 applicant produced to the Tribunal the following documents: a.A copy of the delegate’s decision. b.Financial reports for the 2018 to 2020 financial years. c.An updated current ABN Lookup form for the Hollesc Family Trust & MIJ Family Trust, ABN 72 350 830 162. d.Copies of the ASIC company summaries previously produced to the Department. e.Activity statements for the period from January 2019 to June 2021. f.A copy of the ASIC business name extract for Nu Nu Restaurant previously produced to the Department. g.Evidence of the tenancy of business premises for the Rising Sun Restaurant and Bar Pty Ltd. h.A copy of the Form 1404 previously produced to the Department. i.Food licences issued to the applicant expiring 30 September 2021 and 30 September 2022. j.A provisional food licence issued to Nu Nu Events & Catering expiring 7 February 2021. k.A staff list of the applicant. l.A payslip of the nominee for the period from 16 March 2020 to 22 March 2020. m.Evidence of job advertisements for the position. n.A position description. o.A menu of the applicant. p.A catering contract between Nu Nu Events and Catering and Sunlover Operations Pty Ltd dated 1 October 2020. q.A partnership tax return for the 2020 financial year. r.Certificates of currency for the applicant’s WorkCover policy, valid from 1 July 2020 to 30 September 2021, and 1 July 2021 to 30 June 2022.s.An employment contract of the nominee dated 30 June 2021. t.A submission from the applicant’s accountant dated 2 August 2021. u.A submission from the representative regarding Mrs Escott’s attendance at the hearing dated 11 October 2021. v.ASIC current and historical company extracts for Slanted Pty Ltd and Three Little Steps Pty Ltd. w.Evidence of the applicant’s tenancy of its business premises. x.A document outlining the applicant’s Enterprise Bargaining Agreement Rates effective from 1 February 2021. y.Evidence of previous employer nomination approvals lodged by the applicant. z.A payslip of a Chef employed by the applicant for the period from 27 September 2021 to 3 October 2021. Evidence presented at the hearing regarding the applicant’s operations Mrs Escott gave evidence regarding the applicant’s business operations. She stated that the applicant comprised two companies which were trustees of two discretionary trusts and operated as a partnership of family trusts. She said that the applicant’s primary business was a restaurant, although the applicant also had a large off-site catering arm, provided boat catering services and hosted regular weddings and functions. Mrs Escott later clarified that the off-site catering was provided by a related business, being the Rising Sun Unit Trust. Mrs Escott said that the applicant had been trading since 2004 and that the restaurant was located at Palm Cove, Cairns, Queensland. Mrs Escott stated that the restaurant operated seven days per week and provided breakfasts, lunches and dinners for its patrons. The staff list produced by the applicant indicates that the applicant has a workforce of over 70 employees.

Decision

Reasons for decision

For the following reasons, the Tribunal has decided to set aside the decision under review and substitute a decision approving 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 prior to the hearing The applicant produced to the Department of Immigration and Border Protection (now the Department of Home Affairs) (the Department) the following documents: a.A certificate of currency regarding the applicant’s insurance dated 24 May 2017. b.Financial reports for the 2015 to 2017 financial years. c.A partnership tax return for the 2016 financial year. d.A submission from the applicant’s Human Resources Manager dated 23 June 2017. e.Activity statements for the period from January 2017 to June 2018. f.The trust deeds for the MIJ Family Trust and Hollesc Family Trust. g.A food licence issued to the applicant expiring on 30 September 2017.h.An employment contract of the nominee dated 30 June 2017. i.A current ABN lookup form for the Hollesc Family Trust & MIJ Family Trust, ABN 72 350 830 162. j.A position description. k.A certificate of currency for the applicant’s WorkCover policy, valid from 1 July 2016 to 30 June 2017. l.A liquor licence issued to the applicant. m.Promotional material of Nu Nu Restaurant. n.An ASIC business name details extract for Nu Nu Restaurant. o.An enterprise bargaining agreement of the applicant last updated 30 August 2013.p.A payslip of Chef employed by the applicant for the period from 26 June 2017 to 2 July 2017. q.Correspondence and a Form 1404 advice from the Regional Certifying body (RCB), the Queensland Chamber of Commerce and Industry, Cairns dated 31 July 2017. r.A food licence issued to the applicant expiring on 30 September 2018. s.A payroll activity summary of employee wages prepared by the applicant for the 2018 financial year. t.Payslips of the nominee for the period from 27 August to 16 September 2018. u.A job advertisement for the position. v.A PAYG payment summary of the nominee for the 2018 financial year. w.An employment contract of the nominee dated 4 October 2018. x.ASIC company summaries for Slanted Pty Ltd and Three Little Steps Pty Ltd. The applicant produced to the Tribunal the following documents: a.A copy of the delegate’s decision. b.Financial reports for the 2018 to 2020 financial years. c.An updated current ABN Lookup form for the Hollesc Family Trust & MIJ Family Trust, ABN 72 350 830 162. d.Copies of the ASIC company summaries previously produced to the Department. e.Activity statements for the period from January 2019 to June 2021. f.A copy of the ASIC business name extract for Nu Nu Restaurant previously produced to the Department. g.Evidence of the tenancy of business premises for the Rising Sun Restaurant and Bar Pty Ltd. h.A copy of the Form 1404 previously produced to the Department. i.Food licences issued to the applicant expiring 30 September 2021 and 30 September 2022. j.A provisional food licence issued to Nu Nu Events & Catering expiring 7 February 2021. k.A staff list of the applicant. l.A payslip of the nominee for the period from 16 March 2020 to 22 March 2020. m.Evidence of job advertisements for the position. n.A position description. o.A menu of the applicant. p.A catering contract between Nu Nu Events and Catering and Sunlover Operations Pty Ltd dated 1 October 2020. q.A partnership tax return for the 2020 financial year. r.Certificates of currency for the applicant’s WorkCover policy, valid from 1 July 2020 to 30 September 2021, and 1 July 2021 to 30 June 2022.s.An employment contract of the nominee dated 30 June 2021. t.A submission from the applicant’s accountant dated 2 August 2021. u.A submission from the representative regarding Mrs Escott’s attendance at the hearing dated 11 October 2021. v.ASIC current and historical company extracts for Slanted Pty Ltd and Three Little Steps Pty Ltd. w.Evidence of the applicant’s tenancy of its business premises. x.A document outlining the applicant’s Enterprise Bargaining Agreement Rates effective from 1 February 2021. y.Evidence of previous employer nomination approvals lodged by the applicant. z.A payslip of a Chef employed by the applicant for the period from 27 September 2021 to 3 October 2021. Evidence presented at the hearing regarding the applicant’s operations

Ratio Decidendi

Legal Principle Established

Accordingly, the requirements of reg 5.19(4)(e) are met.No adverse information known to Immigration: reg 5.19(4)(f) Regulation 5.19(4)(f) requires that there is no adverse information known to Immigration about the nominator or person associated with the nominator; or it is reasonable to disregard any such information. For these purposes, ‘adverse information’ and ‘associated with’ have the meaning given in regs 1.13A and 1.13B. During the review of a related application involving the applicant, the Department issued a certificate and notification under s 376 of the Act on 7 February 2019 with respect to source information received by the Border Watch Allegations and Referral Team on 30 November 2018. The certificate was duly signed and dated. The certificate stated that disclosure of the material would be contrary to the public interest because it may disclose, or enable a person to ascertain the existence or identity of, a confidential source of information. The Tribunal provided a copy of the s 376 certificate to the applicant by email on 6 October 2021. The Tribunal was not satisfied that the information referred to in the certificate could identify the source of the information and exercised its discretion to provide a copy of the information to the applicant, which it did, also on 6 October 2021. The information consisted of an allegation that the applicant was involved in taking cash for an RSMS Subclass 187 visa for sponsoring an unidentified person in the position of Restaurant Manager. The Tribunal discussed the allegation with Mrs Escott at the hearing. She said that it was completely untrue and that the notification of the allegation from the Tribunal on 6 October 2021 was the first that the applicant had heard of the allegation. It is necessary for the Tribunal to consider whether this information, which is known to Immigration, is adverse information within the meaning of reg 1.13A. The section relevantly defines adverse information as adverse information relevant to the sponsor’s suitability as an approved sponsor or nominator and includes certain specific examples of such information. The Tribunal finds that the information known to Immigration about the applicant, being that referred to in the confidential allegation, is relevant to the applicant’s suitability as a nominator and that it is not inconsistent with the kinds of adverse information listed in reg 1.13A(1). The Tribunal therefore finds that the information is adverse information as provided in reg 1.13A. It therefore follows that there is adverse information known to Immigration about the applicant and the applicant does not satisfy the requirement in reg 5.19(4)(f)(i) in respect of this information. The Tribunal then needs to consider whether it is reasonable, under reg 5.19(4)(f)(ii), to disregard the adverse information. As set out in paragraph 47 above, when advised of the details of the allegation, Mrs Escott immediately and vigorously denied it. The Tribunal notes that the allegation of November 2018 is unsubstantiated by names, dates or documentary evidence. There is no information before the Tribunal that the allegation has been investigated or substantiated in any way.