United Group of Restaurants Pty Ltd (Migration)

[2020] AATA 4987

United Group of Restaurants Pty Ltd (Migration) [2020] AATA 4987 (10 September 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  United Group of Restaurants Pty Ltd

CASE NUMBER:  1714538

HOME AFFAIRS REFERENCE(S):          BCC2016/4418045

MEMBER:Nicola Findson

DATE:10 September 2020

PLACE OF DECISION:  Perth

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

Statement made on 10 September 2020 at 9:58am

CATCHWORDS

MIGRATION – nomination of a position – Temporary Residence Transition Nomination stream – position of Cook – complied with the training requirements – actively operating a business in Australia – sponsor business moved to due to regional area dependent of travellers – temporarily closed due to COVID restrictions – restrictions relaxed within Western Australia – decision under review affirmed         

LEGISLATION

Migration Act 1958, s 359
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 and Border Protection on 17 June 2017 to reject the applicant’s application for approval of the nomination of a position in Australia under r.5.19 of the Migration Regulations 1994 (the Regulations).

2. The applicant applied for approval on 31 December 2016. The requirements for the approval of the nomination of a position in Australia are found in r.5.19 of the Regulations which contains two alternative streams: a Temporary Residence Transition nomination stream (r.5.19(3)) and a Direct Entry nomination stream (r.5.19(4)). If the application is made in accordance with r.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: r.5.19(5).

3. In this case, the applicant has applied for approval of a nomination, seeking to satisfy the criteria in the Temporary Residence Transition nomination stream.  The nominated occupation is Cook (ANZSCO 351411).  The nominator sponsored Mr Ali Raza for a Subclass 457 visa for the same position and occupation, and has sought to continue to employ him for the position.  Mr Raza lodged a Subclass 186 visa in respect of this nomination.

4. The delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19(3)(f) of the Regulations, because it did not provide sufficient evidence to demonstrate that it had complied with the training requirements during the period of its most recent approval as a standard business sponsor.

5. The applicant applied to the Tribunal for review of the delegate’s decision on 6 July 2017 and provided a copy of the decision record with the application.  The same registered migration agent represented both the applicant and nominee in relation to the review.

6. On 10 July 2020, the Tribunal wrote to the review applicant advising that it had considered all the material it had about the application but could not make a favourable decision on that information alone.  The Tribunal invited the review applicant to give evidence and present arguments at a hearing on 6 August 2020. 

7. On 15 July 2020, the Tribunal received a response to the hearing invitation, which indicated that the applicant did not intend participating in the hearing and that it consented to the Tribunal making a decision on the papers without taking further steps to allow it to appear.  

8. Given that the applicant has provided its consent to the Tribunal deciding the review without appearing before it, the Tribunal has proceeded to make a decision on the information before it.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The issue in this case is whether the applicant meets the requirements for approval of the nomination under the Temporary Residence Transition nomination stream set out in r.5.19(3), which is extracted in the attachment to this decision. For the nomination to be approved, all the requirements must be met.

11. The Tribunal has had regard to documents on the Department’s file.  The applicant company trades as an Indian restaurant, ‘Fiery Flames Café & Restaurant’.  At the time of application, the applicant gave the following information.  It nominated the position of Cook.  It stated that the nominee is to be employed in Gosnells, Western Australia, 6110, on a base salary of $54,000.  It stated it employs 4 Australian employees and 9 foreign employees.

12. On 13 December 2019, the Tribunal wrote to the applicant, pursuant to s.359(2) of the Act, and invited it to provide information to demonstrate all the relevant requirements of r.5.19(2) and (3). On 10 January 2020, the applicant responded and provided to the Tribunal additional and updated evidence in support of the application, including but not limited to:

    ·ASIC Current and Historical Company Extract in relation to United Group of Restaurants Pty Ltd, dated 5 January 2020;

    ·Company Tax Return lodged for the year ended 30 June 2018 (unsigned);

    ·Financial Statements for the years ended 30 June 2018 (unsigned);

    ·Business Activity Statement (BAS) declaration forms for the period July 2018 to June 2019 (unsigned);

    ·Payroll records in relation to the nominee, including PAYG Payment Summaries) for 2014, 2015, 2016, 2017, 2018 (incomplete and unsigned) and 2019 (incomplete and unsigned);

    ·Organisational structure chart;

    ·Job description for the nominated position;

    ·Evidence regarding expenditure incurred by the company on training in 2016, 2017 and 2018;

    ·Notice of approval as a Standard Business Sponsor dated 9 March 2018 (valid until 9 March 2023); and

    ·Information regarding the average salary for the nominated occupation, including from Payscale and Job Outlook.

13. During the course of the review, the Tribunal also independently made inquiries in relation to the applicant company.  The results of the Tribunal’s inquiries indicate that the ‘Fiery Flames Café & Restaurant’ no longer operates at the Gosnells address set out in the nomination application, or at all.  Specifically, information on social media websites indicates that the business is permanently closed, and the telephone number associated with the restaurant has been disconnected.  

14. On 20 August 2020, the Tribunal wrote to the applicant, pursuant to s.359A of the Act, and invited it to comment on or respond to the information that it appeared its business, the ‘Fiery Flames Café & Restaurant’, had ceased trading. The Tribunal’s letter set out that this information was relevant to the review because it may lead the Tribunal to find that the nominator, as the relevant business sponsor, is no longer actively and lawfully operating a business in Australia, as required by r.5.19(3)(b)(ii). The Tribunal set out in its letter that subject to the applicant’s comments or response, this would be the reason, or part of the reason, for the Tribunal affirming the decision under review.

15. On 3 September 2020, the applicant provided a response to the Tribunal’s s.359A letter.  In its response the applicant indicated that it had operated a restaurant business successfully for ten years.  It indicated that the ‘Fiery Flames Café & Restaurant’ had moved from its address in Gosnells to Pemberton, Western Australia in January 2018.  The applicant’s response stated: “Pemberton is a regional area and due to COVID-19 business is not operating as business is mostly dependant on travellers and all travel are restricted due to this pandemic.  But this is not permanently closed its only closed temporarily once the situation will change it will restart.  To reduce stand by costs, all utility services like electricity, water and landline phone are suspended till business resumes.” 

16. The applicant’s response does not allay the Tribunal’s doubt about whether the nominator is actively operating a business in Australia.  The Tribunal observes that the applicant has not provided any evidence to the Tribunal to demonstrate that its business has been trading since June 2019, which is several months before the World Health Organisation declared the coronavirus COVID-19 outbreak a pandemic in March 2020, resulting in public health measures to protect Australians being implemented by State and Commonwealth governments. The Tribunal also observes that even if the COVID-19 pandemic did result in the trade of the applicant business being restricted, on 18 May 2020 Phase 2 of the Western  Australian roadmap to ease COVID-19 restrictions came into effect, resulting in regional travel restrictions being relaxed and travel permitted throughout most of Western Australia (including Pemberton, in the South West region of Western Australia) as well as cafes and restaurants with meal service being permitted to open.  In addition, since that time, some residual restrictions in respect of cafes and restaurants have been relaxed even further.  The Tribunal is of the view that given Western Australia’s response to managing the impact of COVID-19, it would have been possible for the applicant’s business to recommence trading several months ago.   

17. The Tribunal, during the course of the review, invited the applicant to provide information in writing demonstrating that the nominating business meets all the requirements of the criteria in r.5.19(3) of the Regulations. Despite providing some additional information to the Tribunal, the applicant has failed to provide sufficient evidence to demonstrate it meets all of the r.5.19(3) requirements. In particular, there is very limited information before the Tribunal to demonstrate the financial capacity of the applicant post June 2018, or its current operations. In addition, the applicant did not avail itself of the opportunity to provide oral evidence at a hearing before the Tribunal.

18. Without further information from the applicant, the Tribunal is unable to be satisfied that the nominator, as the relevant standard business sponsor, is actively and lawfully operating a business in Australia as required by r.5.19(3)(b)(ii).

19. For the above reasons the Tribunal is not satisfied that the applicant meets the requirements of r.5.19(3). The applicant has not sought to satisfy the criteria in Direct Entry nomination stream, and as such has not met the requirements in r.5.19(4). Accordingly, the nomination of the position cannot be approved. Therefore, the Tribunal must affirm the decision under review.

    DECISION

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

    Nicola Findson
    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.

    Temporary Residence Transition nomination

    (3)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 person who holds a Subclass 457 … visa granted on the basis that the person satisfied the criterion in subclause 457.223(4) of Schedule 2; and

    (iii)     identifies an occupation, in relation to the position, that:

    (A)is listed in ANZSCO; and

    (B)has the same 4-digit occupation unit group code as the occupation carried  out by the holder of the Subclass 457 … visa; and

    (b)the nominator:

    (i)       is, or was, the standard business sponsor who last identified the holder of the Subclass 457 … visa in a nomination made under section 140GB of the Act or under regulation 1.20G or 1.20GA as in force immediately before 14 September 2009; and

    (ii)      is actively and lawfully operating a business in Australia; and

    (iii)     did not, as that standard business sponsor, meet regulation 1.20DA, or paragraph 2.59(h) or 2.68(i), in the most recent approval as a standard business sponsor; and

    (c)either:

    (i)       both of the following apply:

    (A)in the period of 3 years immediately before the nominator made the application, the holder of the Subclass 457 …visa identified in subparagraph (a) (ii) has:    

    (I)held one or more Subclass 457 visas for a total period of at least 2 years; and

    (II)been employed in the position in respect of which the person holds the Subclass 457 … visa for a total period of at least 2 years (not including any period of unpaid leave);

    (B)the employment in the position has been full-time, and undertaken in Australia; or

    (ii)      all of the following apply:

    (A)the person holds the Subclass 457 … visa on the basis that the person was identified in a nomination of an occupation mentioned in sub-subparagraph 2.72(10)(d)(iii)(B) or sub-subparagraph 2.72(10)(e)(iii)(B);

    (B)the nominator nominated the occupation;

    (C)the person has been employed, in the occupation in respect of which the person holds the Subclass 457 … visa, for a total period of at least 2 years in the period of 3 years immediately before the nominator made the application; and

    (d)for a person to whom subparagraph (c)(i) applies:

    (i)       the person will be employed on a full-time basis in the position for at least 2 years; and

    (ii)      the terms and conditions of the person’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)       the nominator:

    (A)fulfilled any commitments the nominator made relating to meeting the nominator’s training requirements during the period of the nominator’s most recent approval as a standard business sponsor; and

    (B)complied with the applicable obligations under Division 2.19 relating to the nominator’s training requirements during the period of the nominator’s most recent approval as a standard business sponsor; or

    (ii)      it is reasonable to disregard subparagraph (i); and

    Note Different training requirements apply depending on whether the application for approval as a standard business sponsor was made before 14 September 2009 or on or after that date.

    (g)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

    (h)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.