TOOWOOMBA HONG KONG RESTAURANT PTY LTD (Migration)

[2018] AATA 792

TOOWOOMBA HONG KONG RESTAURANT PTY LTD (Migration) [2018] AATA 792 (13 March 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  TOOWOOMBA HONG KONG RESTAURANT PTY LTD

CASE NUMBER:  1614511

DIBP REFERENCE(S):  BCC2015/3501050

MEMBER:Ian Berry

DATE:13 March 2018

PLACE OF DECISION:  Brisbane

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

Statement made on 13 March 2018 at 10:08am

CATCHWORDS
Migration – Employer Nomination – Nominee’s position – Need for a paid employee – Closed business – Time to resurrect business – No leased premises – Financial statements – No evidence to generate income – Lateness of loan offer

LEGISLATION
Migration Act 1958, s 140GB
Migration Regulations 1994, r 5.19

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 Immigration to refuse to approve a nomination under s.140GB of the Migration Act 1958 (the Act) and r.5.19 of the Migration Regulations 1994 (the Regulations).

2. The applicant applied for approval of the nomination on 24 November 2015. The delegate decided not to approve the nomination on the basis that the nomination is for a Café and restaurant manager where the tasks provided by the nominator were more in line with a position of retail supervisor.  In effect, the tasks of the nominator did not correspond to the tasks of a Café and restaurant manager in ANZSCO.

3. The applicant appeared before the Tribunal, by one of its three directors Mr Chung Tse Lau (“Mr Tommy Lau”), on 5 December 2017 to give evidence and present arguments. The Tribunal received oral evidence from Mr Tommy Lau. The Tribunal hearing was conducted with the assistance of an interpreter in the Cantonese and English languages.

4. The applicant was represented in relation to the review by its registered migration agent. The representative attended the Tribunal hearing.

5. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed. 

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issue in the present case is whether the nominator’s direct entry nominee’s position is that of a Café and restaurant manager recognised as being substantially similar to the Café and restaurant manager in ANZSCO (code 141111).

7. The applicant was a Chinese restaurant in Toowoomba serving Chinese cuisine to its patrons since July 2010.  It was a restaurant catering for patrons requiring both sit-down meals and takeaway Chinese food.  From menus provided to the Department, it appears that the meals are basic and standardised and ordinarily prepared by a cook and not a chef.  Mr Tommy Lau described that the income earned by the business was probably 50% sit-down patrons and 50% takeaway customers.

8. The restaurant is now closed and has been closed for some time. Therefore, another issue to arise for this Tribunal to consider is:

   (a)Does the business identify a need to employ a paid employee to work in the position under the nominator’s direct control - r.5.19(4)(a)(ii)?

   (b)is the nominator actively and lawfully operating a business in Australia – r.5.19(4)(b)(i)?

   (c)Will the employee be employed on a fulltime basis in the position for at least 2 years - r.5.19(4)(d)(i)?

9. The applicant has three directors who are also the shareholders.  It is the corporation who was the nominator. Evidence was not tendered to indicate that it is still registered. The Tribunal did not infer that it was not registered.

   Background

10. The Tribunal was informed by Mr Tommy Lau, the nominator did have a manager to 2014.  This manager left to pursue another position.  The directors Mr For Lam Lau and Mr Tommy Lau, shared the manager’s role for so long as the business was operating. 

11. Mr For Lam Lau had and has health problems of a reasonably serious nature and returned to Hong Kong as had the remaining director Mr Wing Chong Yau.

12. In running the business, it was Mr For Lam Lau who has the ability to speak vocational English while his brother Mr Tommy Lau cooked and otherwise did most of the on-the-job work. He only speaks Cantonese.

13. As an indication as to the operation of the business and its ability to resurrect should it be successful in the nomination application, the nominator’s submission included:

    “since the business ceased to operation, Mr For Lam Lau has returned to Hong Kong for recovery.  Mr ‘Tommy’ Lau has since become unemployed.  The submission explains the Mr Tommy Lau is keen to reopen the restaurant where it can offer him a job”.

14. The Tribunal has considered this submission in detail. It raises such issues as the length of time it will take to secure premises, to recruit suitable staff, the ability to pay paid employees, not only the prospective nominee. Whether it will cater for dine-in meals only or take-away meals, or both? The cost of securing equipment and sustain the re-opening pending the build up of sales.

15. The submission stated that the reopening of the restaurant is possible as the directors can give personal guarantees.  It is further stated “the nominator will not have any financial hardship to employ the nominee for at least 2 years”. The Tribunal must consider the evidence provided by the nominator. It is noted that the nomination was refused on 24 November 2015, yet the steps now suggested (to get the business up and running profitably) by the applicant have not be taken in the 3 years that have elapsed. The Tribunal is not satisfied the employment of a restaurant manager, as part of the re-opening stage, will have any effect in the business being profitable within a foreseeable future.

16. A post hearing submission dated 18 December 2017 included as an attachment a letter from a potential investor.  This investor stated that a “preliminary mutual agreement” has been or is in the process in becoming a loan agreement where $280,000 is to be lent to the applicant.  This post hearing submission had attached to it, the investor’s copy bank statement with a credit balance of over $287,000.  This post hearing submission was in response to the Tribunal’s comments in the course of the hearing, whether the nominator is actively and lawfully operating a business and whether it has the ability to support a nominee for 2 years.

17. The Tribunal is not satisfied that the evidence of the lateness of the loan offer advances the applicant’s position. The Tribunal notes that the negotiation for this loan is still in its infancy, and no concluded agreement has been made. That is there is not any evidence of a concluded agreement.

18. The Tribunal is not satisfied the business is active and lawful as the applicant nominator’s ABN is active and lawfully fulfilling its tax obligations in Australia as submitted by the applicant.  The applicant’s business has been closed for a considerable time. The applicant conceded the lease of the business premises has expired, and the applicant has not presented any evidence as to how or when the business could be resurrected, after the time when the Department refused the applicant’s nomination application. 

19. The applicant submitted that “was temporarily closed at the time of the hearing due to the shortage of managerial personnel”.  This submission also states that “the nominating business is still in Toowoomba and it can be reopened immediately.”  The last submission is that “the nominator’s current situation is not contrary to regulation 5.19”. The Tribunal is not satisfied for the reasons given that the business could be reopened immediately. The business, at the instigation of the directors has closed. The business does not have leased premises or staff; and no plan has been submitted as to how a reopening could be achieved immediately.

20. Understandably by reason of the business having been closed, the Tribunal does not have up-to-date financial statements, tax returns or business activity statements evidencing the profitability of the business since 2016.

21. The Tribunal finds that the applicant is not actively operating a business, as it is required to do under r.5.19(4)(b)(i) as there is no business, that the business does not identify a need to employ a person as a café and restaurant manager as such a position does not exist, as required by r.5.19(4)(a)(ii) and the Tribunal is not satisfied that it could employ that manager for 2 years, as required by r.5.19(4)(d)(i), as there is no evidence as to how the business could generate income to sustain the manager’s salary for 2 years. Therefore, the applicant’s nomination application must fail.

    DECISION

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

    Ian Berry
    Member