Welvin & Kevin Pty Ltd (Migration)

[2023] AATA 104

Welvin & Kevin Pty Ltd (Migration) [2023] AATA 104 (3 January 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Welvin & Kevin Pty Ltd

REPRESENTATIVE:  Mr Gang Ren (MARN: 1279943)

CASE NUMBER:  1925429

HOME AFFAIRS REFERENCE(S):          BCC2019/1722749

MEMBER:Terrence Baxter

DATE:3 January 2023

PLACE OF DECISION:  Brisbane

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

Statement made on 03 January 2023 at 10:52am

CATCHWORDS
MIGRATION – application for approval of nomination of position – direct entry stream – café or restaurant manager – annual market salary rate – no current information or documentation provided after extension of time – no evidence provided of active operation of business – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 359(2), 359C(1), 360(3), 363(1)(b), 363A
Migration Regulations 1994 (Cth), rr 2.72(15)(c), 5.19(3)(b), (4)(a), (f), (9)(h)

CASES
Hasran v MIAC [2010] FCAFC 40
Huo v MIMA [2002] FCA 617            
Manna v MIAC [2012] FMCA 28
Re Drake and MIEA (No 2) [1979] AATA 179
Vishnumolakala v Minister for Immigration [2006] FMCA 1209

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 24 August 2019 to reject the applicant’s application for approval of the nomination of a position under reg 5.19 of the Migration Regulations 1994 (Cth) (the Regulations).

2. The applicant, Welvin & Kevin Pty Ltd, applied for approval on 8 April 2019. The applicant nominated Mr Qingxiang Meng (the nominee) in the position of Café or Restaurant Manager. The requirements for the approval of the nomination of a position in Australia are found in reg 5.19 of the Regulations, which contains general requirements for approval and additional requirements for approval set out in three alternative streams: a Temporary Residence Transition stream, a Direct Entry stream and a Labour Agreement stream. If the application meets the requirements for approval then the application must be approved: reg 5.19(3)(a). If any of the requirements are not met, then the application must be refused: reg 5.19(3)(b).

3. In this case, the applicant has applied for approval of a nomination, seeking to satisfy the criteria in the Direct Entry stream.

4. The delegate refused the application on the basis that the applicant’s nomination did not satisfy reg 5.19(4)(f) of the Regulations which required, for nominations relating to a visa in the Direct Entry stream, that the requirements of reg 5.19(9) be met. Regulation 5.19(9)(h) requires that the requirements of reg 2.72(15) (subject to a number of qualifications) be met. The delegate found that the applicant had not determined the Annual Market Salary Rate for the nominated occupation in accordance with the relevant legislative instrument (IMMI 18/033) as required by reg 2.72(15)(c). Accordingly, the delegate found that reg 5.19(9)(h) had not been met and consequently that reg 5.19(4) had not been met.

5. The applicant lodged an application for review of the delegate’s decision with the Tribunal on 10 September 2019.

6. On 24 October 2022, the Tribunal wrote to the applicant pursuant to s 359(2) of the Migration Act 1958 (Cth) (the Act) inviting it to provide current information addressing the relevant criteria under reg 5.19(4) and (9) of the Regulations. The Tribunal is satisfied that this invitation was properly dispatched to the applicant’s email address.

7. In that invitation, the Tribunal notified the applicant that the requested information should be received by 7 November 2022. On 4 November 2022, the applicant’s representative requested an extension of time of 28 days to respond to the Tribunal’s invitation. On 7 November 2022, the Tribunal notified the applicant that the request for extension of time had been allowed and that the information requested in the Tribunal’s invitation of 24 October 2022 should be provided by 5 December 2022.

8. The applicant failed to provide the information within the extended time for responding to the invitation. No response to that invitation has been received by the Tribunal at the time of this decision other than the request for extension of time dated 4 November 2022.

9. Where a review applicant is invited to provide further information in accordance with s 359(2) of the Act, and fails to do so within the prescribed period, the Tribunal may make a decision on the review without taking any further action to obtain the information, according to s 359C(1) of the Act. In these circumstances, the review applicant is not entitled to appear before the Tribunal, in accordance with s 360(3) of the Act. Of note, 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 the review applicant to appear before it, as outlined in the Full Federal Court authority in the matter of Hasran v MIAC [2010] FCAFC 40.

10. Although the applicant has not requested this, the Tribunal has also considered whether it would be appropriate to adjourn the application for review under s 363(1)(b) of the Act to allow the applicant additional time in which to provide evidence to support its application for review. In doing so, it has paid careful regard to the guidance in the decisions of Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617 and Manna v Minister for Immigration and Citizenship [2012] FMCA 28 where the Courts held that the Tribunal is not required to indefinitely defer its decision-making process.

11. The Tribunal has taken into account that the applicant has been aware since 24 August 2019 of the reasons for the nomination application being refused and also that the implications of not providing the information requested in the invitation from the Tribunal of 24 October 2022 were set out in that correspondence and the Tribunal’s notification of 7 November 2022 of the extension of time for responding to the invitation.

12. In these circumstances, the Tribunal considers that the applicant has had sufficient time in which to address the central issues arising in the application for review. Accordingly, the Tribunal has decided not to exercise its discretion under s 363(1)(b) of the Act to adjourn the review any further to allow the applicant more time in which to demonstrate that it meets the relevant criteria under reg 5.19(4) and (9) of the Regulations.

13. Following careful consideration, the Tribunal has decided to proceed to make a decision on this review without taking any further action to obtain the information referred to in the aforementioned invitation and having due regard to the documentary material before it.

14. The applicant was represented in relation to the review.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

16. The issue in this case is whether the applicant meets the general requirements for approval of the nomination set out in reg 5.19(4) and the stream specific requirements set out in reg 5.19(9), which are extracted in the attachment to this decision. For the nomination to be approved, all the requirements must be met.

    Evidence presented to the Department

17. The applicant produced to the Department of Home Affairs (the Department) documents including:

    a.Market salary evidence.

    b.An employment contract dated 8 March 2019.

    c.An ASIC Certificate of Registration of the applicant dated 14 September 2018.

    Evidence presented to the Tribunal

18. The applicant produced to the Tribunal a copy of the delegate’s decision.

    Actively and lawfully operating a business – reg 5.19(9)(a)

19. Regulation 5.19(9)(a) requires that the nominator is actively and lawfully operating a business in Australia.

20. The Tribunal has considered the Department’s policy on the issue of active operation. The Tribunal is not bound by the policy but the Tribunal notes the finding of Brennan J in Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179 that the Tribunal should adopt the following practice: “When the Tribunal is reviewing the exercise of a discretionary power reposed in a Minister, and the Minister has adopted a general policy to guide him in the exercise of the power, the Tribunal will ordinarily apply that policy in reviewing the decision, unless the policy is unlawful or unless its application tends to produce an unjust decision in the circumstances of the particular case”.

21. The Tribunal notes the comments of the Court in Vishnumolakala v Minister for Immigration [2006] FMCA 1209 at [27] that the policy is no more than an advisory administrative guide to delegates in relation to their application of the legislation, and that, as a matter of law, it could have no higher status. The Tribunal finds that the same rule applies to the Tribunal’s consideration of the policy. However, the Tribunal agrees that the matters set out in the policy for consideration when assessing this requirement are appropriate and considers that it is reasonably open to the Tribunal to assess the requirement having regard to those matters.

22. The policy states that a business that has been actively operating for a period of more than 12 months should be able to provide appropriate financial documentation to support their claims of active operation. The applicant stated in its nomination application that it had been established or commenced trading in Australia on 14 September 2018. The policy states that such businesses should be able to submit a balance sheet for the most recently concluded fiscal year (with comparative figures for the previous fiscal year) and a profit and loss statement (statement of performance) for the most recently concluded fiscal year, with comparative figures for the previous fiscal year or business tax returns for the most recently concluded fiscal year.

23. In the Tribunal’s invitation to provide information dated 24 October 2022, the applicant was advised as follows:           

    In order for the nomination of a position to be approved, the Tribunal must be satisfied that all of the relevant criteria in r.5.19 of the Regulations are met at the time of its decision. As the application for nomination was made under the Direct Entry nomination stream, the relevant criteria are in rr.5.19(4) and (9) of the Regulations.

24. In that invitation, the applicant was invited to produce its lodged tax returns for the last two full financial years, business activity statements for the last 24 months and financial statements for the most recent two financial years.

25. The applicant did not produce to the Department any financial statements, taxation returns or business activity statements. The applicant has not produced to the Tribunal any contemporary financial statements regarding its business activities, or taxation returns.

26. The nomination application and the application for review were lodged by the company Welvin & Kevin Pty Ltd. The Department’s policy states that, in assessing the requirement for lawful operation for a company, the decision maker should be satisfied that the registered name of the applicant as indicated in the nomination application is the name that is registered with ASIC. The information regarding the registration of the applicant that was provided to the Department was limited to evidence of registration of the company on 14 September 2018. The invitation issued pursuant to s 359(2) of the Act invited the applicant to provide current and historical evidence about the company, such as an ASIC current and historical extract. No such evidence has been provided to the Tribunal.

27. Having regard to the lack of contemporary evidence before the Tribunal, bearing in mind that the applicant has failed to respond to the invitation issued pursuant to s 359(2) of the Act, the Tribunal is not satisfied that at the time of this decision the applicant is actively and lawfully operating a business in Australia. The Tribunal finds that the applicant does not satisfy the requirements of reg 5.19(9)(a).

28. Given the above findings, the Tribunal is not satisfied that reg 5.19(9)(a) is met. Accordingly, reg 5.19(4)(f) is not met.

29. For these reasons, the Tribunal is not satisfied that the applicant meets the requirements of reg 5.19. Accordingly, reg 5.19(3)(b) requires that the nomination must be refused. The decision under review must be affirmed.

    decision

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

    Terrence Baxter
    Member

    
    

    Attachment – extracts from the migration regulations 1994

    5.19Approval of nominated positions—Subclass 186 (Employer Nomination Scheme) visa and Subclass 187 (Regional Sponsored Migration Scheme) visa

    Application

    (1)A person (the nominator) (including a partnership or unincorporated association) may apply to the Minister for approval of the nomination of a position in Australia.

    (2)The application must:

    (a)be made in accordance with approved form 1395 (Internet); and

    (b)identify the position; and

    (c)identify a person (the identified person) in relation to the position; and

    (d)identify an occupation in relation to the position; and

    (e)identify the subclass and stream to which the nomination relates, which must be one of the following:

    (i)a Subclass 186 (Employer Nomination Scheme) visa in the Temporary Residence Transition stream;

    (ii)a Subclass 187 (Regional Sponsored Migration Scheme) visa in the Temporary Residence Transition stream;

    (iii)a Subclass 186 (Employer Nomination Scheme) visa in the Direct Entry stream;

    (iv)Subclass 187 (Regional Sponsored Migration Scheme) visa in the Direct Entry stream;

    (v)a Subclass 186 (Employer Nomination Scheme) visa in the Labour Agreement stream; and

    (f)be accompanied by the fee mentioned in regulation 5.37; and

    (fa)be accompanied by any nomination training contribution charge the nominator is liable to pay in relation to the nomination; and

    (fb)identify the annual turnover (within the meaning of the Migration (Skilling Australians Fund) Charges Regulations 2018) for the nomination; and

    (g)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.

    Approval of nomination

    (3)The Minister must, in writing:

    (a)approve the nomination if the Minister is satisfied that the requirements set out in subregulation (4) are met; or

    (b)otherwise—refuse to approve the nomination.

    Requirements for approval—general

    (4)The requirements to be met for the nomination to be approved are as follows:

    (a)the application is made in accordance with subregulation (2);

    (b)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;

    (c)if it is mandatory, in the State or Territory in which the position is located, for a person to:

    (i)hold a licence of a particular kind; or

    (ii)hold registration of a particular kind; or

    (iii)be a member (or a member of a particular kind) of a particular professional body;

    to perform tasks of the kind to be performed in the occupation, the identified person is, or is eligible to become, the holder of the licence, the holder of the registration, or a member of the body, at the time of application;

    (d)the nominator has a satisfactory record of compliance with the laws of the Commonwealth, and of each State or Territory in which the nominator operates a business and employs employees in the business, relating to employment;

    (da)any debt due by the nominator as mentioned in section 140ZO of the Act (recovery of nomination training contribution charge and late payment penalty) has been paid in full;

    (e)if the nomination relates to a visa in a Temporary Residence Transition stream—the requirements set out in subregulation (5) are met;

    (f)if the nomination relates to a visa in a Direct Entry stream—the requirements set out in subregulation (9) are met;

    (g)if the nomination relates to a visa in a Labour Agreement stream—the requirements set out in subregulation (14) are met.

    …

    Direct Entry stream—additional requirements for approval

    (9)If the nomination relates to a visa in a Direct Entry stream, the following requirements must also be met:

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

    (b)if the nominator’s business activities include activities related 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;

    (c)the application identifies a need for the identified person to be employed in the position, under the direct control of the nominator;

    (d)there is a genuine need for the identified person to be employed in the position, under the direct control of the nominator;

    (e)the identified person will be employed on a full‑time basis in the position for at least 2 years;

    (f)the terms and conditions of the identified person’s employment will not include an express exclusion of the possibility of extending the period of employment;

    (g)the nominator’s business has the capacity to employ the identified person for at least 2 years and to pay the person at least the annual market salary rate for the occupation each year;

    (h)the requirements set out in subregulation 2.72(15) are met, applying subregulations 2.72(15) and (16) as if:

    (i)paragraph 2.72(15)(a) did not apply; and

    (ii)references to the nominee were references to the identified person; and

    (iii)references to the person were references to the nominator;

    (i)either:

    (i)there is no information known to Immigration that indicates that the employment conditions (other than in relation to earnings) that will apply to the identified person are less favourable than those that apply, or would apply, to an Australian citizen or an Australian permanent resident performing equivalent work at the same location; or

    (ii)it is reasonable to disregard any such information;

    (j)the requirements set out in subregulation (10) or (12) are met.

    Occupations for the Subclass 186 (Employer Nomination Scheme) visa in the Direct Entry stream

    (10)The requirements of this subregulation are as follows:

    (a)the tasks to be performed in the position will be performed in Australia and correspond to the tasks of an occupation specified in a legislative instrument:

    (i)made under subregulation (11); and

    (ii)in force at the time the application is made;

    (b)the occupation applies to the identified person in accordance with that instrument.

    (11)The Minister may, by legislative instrument, specify occupations for the purposes of subregulation (10) and, for each occupation, specify any matters for the purposes of determining whether the occupation applies to an identified person, including matters relating to any of the following:

    (a)the nominator;

    (b)the identified person;

    (c)the occupation;

    (d)the position in which the identified person is to work;

    (e)the circumstances in which the occupation is undertaken;

    (f)the circumstances in which the person is to be employed in the position.

    Occupations for the Subclass 187 (Regional Sponsored Migration Scheme) visa in the Direct Entry stream

    (12)The requirements of this subregulation are as follows:

    (a)the position is located at a place in regional Australia;

    (b)the business operated by the nominator is located at that place;

    (c)the position cannot be filled by an Australian citizen or an Australian permanent resident who is living in, or would move to, the local area concerned;

    (d)the tasks to be performed in the position correspond to the tasks of an occupation specified in a legislative instrument:

    (i)made under subregulation (13); and

    (ii)as in force at the time the application is made;

    (e)the occupation applies to the identified person in accordance with that instrument;

    (f)the Minister has been advised by a body that meets the requirements set out in paragraph (g) of this subregulation about matters relating to the following:

    (i)whether the identified person would be paid at least the annual market salary rate for the occupation;

    (ii)whether there is a genuine need for the identified person to be employed in the position, under the direct control of the nominator;

    (iii)whether the position can be filled by an Australian citizen or an Australian permanent resident who is living in, or would move to, the local area concerned;

    (g)the body must:

    (i)be specified in a legislative instrument made by the Minister for the purposes of this paragraph; and

    (ii)be located in the State or Territory in which the position is located; and

    (iii)have responsibility for the local area in which the position is located.

    (13)The Minister may, by legislative instrument, specify occupations for the purposes of subregulation (12) and, for each occupation, specify any matters for the purposes of determining whether the occupation applies to an identified person, including matters relating to any of the following:

    (a)the nominator;

    (b)the identified person;

    (c)the occupation;

    (d)the position in which the identified person is to work;

    (e)the circumstances in which the occupation is undertaken;

    (f)the circumstances in which the person is to be employed in the position.

    …

    Meaning of regional Australia

    (16)In this regulation:

    regional Australia means a part of Australia specified in legislative instrument made by the Minister for the purposes of this definition.