TM Cafe Pty Ltd (Migration)

[2021] AATA 3152

TM Cafe Pty Ltd (Migration) [2021] AATA 3152 (19 August 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  TM Cafe Pty Ltd

CASE NUMBER:  1831082

HOME AFFAIRS REFERENCE(S):          BCC2017/2034183

MEMBER:Penelope Hunter

DATE:19 August 2021

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision under review to refuse the nomination.

Statement made on 19 August 2021 at 4:25pm

CATCHWORDS

MIGRATION – application for approval of nomination of position – direct entry nomination stream – full-time employment for two years – business newly established and operating at loss when nomination refused – no current information provided or submissions made – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 359(2), 359C, 360(3), 363A

Migration Regulations 1994 (Cth), r 5.19(4)(d)(i)

CASE

Hasran v MIAC [2010] FCAFC 40

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 9 October 2018 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 8 June 2017. 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).

3. In this case, the applicant has applied for approval of a nomination, seeking to satisfy the criteria in the Direct Entry nomination stream, and nominated the position of Chef, to work in their business.

4. The delegate refused the application on the basis the applicant’s nomination did not satisfy reg 5.19(4)(d)(i) of the Regulations because they were not satisfied that the applicant had demonstrated that the nominee would be employed on a full time basis for two years.

5. The Tribunal received an application for review from the applicant on 23 October 2018.

6. On 8 July 2021, the Tribunal wrote to the applicant and requested that the applicant provide information to the Tribunal pursuant to s.359(2) of the Act, in writing demonstrating that the business currently met all relevant criteria in r.5.19(2) and (4) of the Regulations, including but not limited to, the criteria that the Department had found was not met. The Tribunal requested that the information be provided by 22 July 2021, and advised that an extension of time to respond could be requested, but that this would need to be made before 22 July 2021. Finally, the Tribunal advised the applicant that if the requested information was not received by the due date (or by the extended due date, if an extension of time was requested and granted), then the entitlement to appear at the Tribunal hearing would be lost, and the Tribunal might proceed to make its decision on the available evidence without taking further steps to obtain the requested information.

7. The applicant has not provided any further information or submissions to the Tribunal by 22 July 2021 or as at the date of this decision.

8. As the applicant had not responded to the Tribunal’s request for information of 8 July 2021, by 22 July 2021, or requested a further extension of time prior to 22 July 2021, s.359C  of the Act applies. Pursuant to s.360(3) of the Act the 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 them to appear: Hasran v MIAC [2010] FCAFC 40.

9. The Tribunal is satisfied that the invitation to provide information was sent to the correct email address for correspondence for the applicant. The Tribunal has had regard to the fact that the application was refused by the Department on 9 October 2018. It is observed that the applicant has been on notice for more than 34 months of the reasons for the refusal of the nomination application. In the circumstances the Tribunal considers that the applicant has had sufficient time to address the central issues arising from the application for review. Accordingly the Tribunal has determined not to adjourn the review application further and proceed to a determination of the review application.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. 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.

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

12. 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.

13. The Tribunal must by necessity consider contemporary information relating to the requirements of r.5.19(4). It has been over four years since the applicant submitted information to support the nomination to the Department. In their decision the delegate noted that the applicant’s business was newly established, according to the financial statements and taxation documents provided to the Department it was trading at a loss and its operations were not meeting the turnover projected in the applicant’s business plan. With the application to the Tribunal the applicant provided some further information including a business activity statement for the reporting period 1 April 2018 to 30 June 2018, a payslip for the applicant, a submission and an updated business plan. The applicant submitted that big growth was expected for the business and that within 8 months of October 2018 it would be meeting projected targets. However, the applicant has not provided any updated information. As the business was trading at a loss at the time of the Departmental assessment it would be reasonable to expect the applicant to provide updated details of the trade at the premises, turnover, the number of employees that continue to be engaged, wage expenses, and ability to meet ongoing costs, in response to the request for information by the Tribunal. Without limiting the type of information, the Tribunal had suggested examples of information that could be provided, including tax returns and business activity statements, financial statements for the most recent two years and evidence or samples of the type of work performed by the nominee.

14. The Tribunal finds that it is not possible from the information provided to determine if the applicant is continuing to trade profitably or even that it is continuing to trade. The applicant has not demonstrated that it is currently operating a business or that is in a financial position as at the time of this decision to employ the nominee as a Chef in the nominated position for on a full-time basis for two years.

15. Accordingly, the Tribunal finds that the requirement in reg 5.19(4)(d) is not met.

16. 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

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

    Penelope Hunter
    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)       both 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;

    (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 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).