Top Shelf Blokes Pty Ltd (Migration) - [2022] AATA 4170

Top Shelf Blokes Pty Ltd (Migration) [2022] AATA 4170 (24 October 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Top Shelf Blokes Pty Ltd
REPRESENTATIVE:  Ms Athina Stephanou (MARN: 0103875)
CASE NUMBER:  1930768
HOME AFFAIRS REFERENCE(S):          BCC2018/983152
MEMBER:De-Anne Kelly
DATE:24 October 2022
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision under review to refuse the nomination.

Statement made on 24 October 2022 at 10:16am
CATCHWORDS
MIGRATION – nomination – Direct Entry nomination stream – Cook – Tribunal cannot be satisfied that the employee will be employed on a full-time basis in the position for at least 2 years –decision under review affirmed
LEGISLATION
Migration Act 1958, ss 65, 245AR
Migration Regulations 1994, r 5.19
CASES
Pexbury Pty Ltd v Minister for Immigration & Anor [2020] FCCA3074
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 10 October 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 applied for approval on 1 March 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 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 the applicant’s nomination did not satisfy reg 5.19(4)(h)(ii)(C) of the Regulations because despite the positive assessment by the Regional Certifying body it appeared that the applicant had not undertaken a recruitment process and as such did not satisfy the requirement that the position cannot be filled by an Australian citizen or Australian permanent resident who is living in the same local area as that place.
The applicant appeared before the Tribunal on 27 September 2022 to give evidence and present arguments. This was a joint hearing of two employer nominations by the same nominator namely case number 1930768 nominating a Chef for the Warwick restaurant and case number 1912974 nominating a Restaurant Manager for the Tweed restaurant.
The applicant was represented in relation to the review by Ms Stephanou.
For the following reasons, the Tribunal has decided to affirm the decision under review to refuse the nomination.
Section 359AA of the Act
At the commencement of the hearing, the Tribunal explained that it may put information to the applicant, under s.359AA of the Migration Act (Cth) 1958, that would be the reason, or a part of the reason, for…

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 4170
Decision Date: 24 October 2022

CaseChat Overview and Summary

This matter concerned an appeal by Top Shelf Blokes Pty Ltd against a decision to refuse a nomination for a Regional Sponsored Migration Scheme employer nomination visa subclass 187 in the Direct Entry Stream. The nomination was for the position of Chef, to be employed at the applicant's Warwick premises. The Tribunal was required to determine whether the applicant met all the requirements for approval of the nomination under regulation 5.19(4) of the Migration Regulations 1994.

The central legal issue before the Tribunal was whether the applicant had satisfied the requirements of regulation 5.19(4)(d)(i), which stipulates that the employee will be employed on a full-time basis in the nominated position for at least two years. The Tribunal also considered its procedural obligations under sections 359AA and 360 of the Migration Act 1958, ensuring the applicant was informed of any information that might lead to the affirmation of the decision and was given an opportunity to respond.

The Tribunal affirmed the decision to refuse the nomination. It found that it could not be satisfied that the nominated employee would be employed on a full-time basis for at least two years, a key requirement under regulation 5.19(4)(d)(i). While the applicant provided a range of documentation, this specific evidentiary threshold was not met to the Tribunal's satisfaction.

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

At the commencement of the hearing, the Tribunal explained that it may put information to the applicant, under s.359AA of the Migration Act (Cth) 1958, that would be the reason, or a part of the reason, for affirming the decision that is under review and that it would explain why this information was relevant to the decision and how it may be relied upon in reaching a decision. The Tribunal also advised that the applicant would be given an opportunity to respond to this information in one of three ways: they could request an adjournment and the hearing could be stopped for 15 or 20 minutes or whatever period of time they wished and they could seek advice from the registered migration agent and they could respond in the hearing. Under s.360 of the Migration Act 1958 (Cth.) the Tribunal must invite the applicant to a hearing to give evidence and present arguments relating to issues arising in relation to the review and this affords the applicant the opportunity to canvas information before the Tribunal. Section 359AA provides as follows:(a) The Tribunal may orally give to the applicant clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and(b) if the Tribunal does so—the Tribunal must:(i)ensure, as far as is reasonably practicable, that the applicant understands why the information is relevant to the review, and the consequences of the information being relied on in affirming the decision that is under review; and(ii) orally invite the applicant to comment on or respond to the information; and(iii) advise the applicant that he or she may seek additional time to comment on or respond to the information; and(iv) if the applicant seeks additional time to comment on or respond to the information—adjourn the review, if the Tribunal considers that the applicant reasonably needs additional time to comment on or respond to the information.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. On 1 March 2018, the applicant Top Shelf Blokes Pty Ltd ABN: 76 608 890 526 trading as Tandoor on Warwick and Tandoor on Tweed lodged a Regional Sponsored Migration Scheme employer nomination visa subclass 187 in the Direct Entry Stream for the position of Chef on $55,300 to be employed at Shop 2/40 Albion Street, Warwick QLD 4370 in favour of Mr Harvinder Singh. A range of documentation was provided and considered by the Tribunal including ASIC registration, photos of the interior and exterior of the restaurants, supplier invoices, training plans and training invoices, menus, BAS statements, organisation charts, payroll summaries, lease agreements, letters of engagement and job descriptions for the nominees, promotional material, purchase agreement for the Tweed business, Council inspections of premises, Bank statements for the nominator from 2019, Regional Certifying body assessment, Payslips, PAYG summaries and Notices of assessment for the nominee,

Decision

Reasons for decision

The applicant was represented in relation to the review by Ms Stephanou.For the following reasons, the Tribunal has decided to affirm the decision under review to refuse the nomination.Section 359AA of the Act At the commencement of the hearing, the Tribunal explained that it may put information to the applicant, under s.359AA of the Migration Act (Cth) 1958, that would be the reason, or a part of the reason, for affirming the decision that is under review and that it would explain why this information was relevant to the decision and how it may be relied upon in reaching a decision. The Tribunal also advised that the applicant would be given an opportunity to respond to this information in one of three ways: they could request an adjournment and the hearing could be stopped for 15 or 20 minutes or whatever period of time they wished and they could seek advice from the registered migration agent and they could respond in the hearing. Under s.360 of the Migration Act 1958 (Cth.) the Tribunal must invite the applicant to a hearing to give evidence and present arguments relating to issues arising in relation to the review and this affords the applicant the opportunity to canvas information before the Tribunal. Section 359AA provides as follows:(a) The Tribunal may orally give to the applicant clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and(b) if the Tribunal does so—the Tribunal must:(i)ensure, as far as is reasonably practicable, that the applicant understands why the information is relevant to the review, and the consequences of the information being relied on in affirming the decision that is under review; and(ii) orally invite the applicant to comment on or respond to the information; and(iii) advise the applicant that he or she may seek additional time to comment on or respond to the information; and(iv) if the applicant seeks additional time to comment on or respond to the information—adjourn the review, if the Tribunal considers that the applicant reasonably needs additional time to comment on or respond to the information.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. On 1 March 2018, the applicant Top Shelf Blokes Pty Ltd ABN: 76 608 890 526 trading as Tandoor on Warwick and Tandoor on Tweed lodged a Regional Sponsored Migration Scheme employer nomination visa subclass 187 in the Direct Entry Stream for the position of Chef on $55,300 to be employed at Shop 2/40 Albion Street, Warwick QLD 4370 in favour of Mr Harvinder Singh. A range of documentation was provided and considered by the Tribunal including ASIC registration, photos of the interior and exterior of the restaurants, supplier invoices, training plans and training invoices, menus, BAS statements, organisation charts, payroll summaries, lease agreements, letters of engagement and job descriptions for the nominees, promotional material, purchase agreement for the Tweed business, Council inspections of premises, Bank statements for the nominator from 2019, Regional Certifying body assessment, Payslips, PAYG summaries and Notices of assessment for the nominee,

Ratio Decidendi

Legal Principle Established

The Tribunal affirms the decision under review to refuse the nomination.De-Anne KellyMemberATTACHMENT - 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).