MAHABIR PTY LTD (Migration) [2021] AATA 4277 (30 October 2021)

DECISION RECORD
DIVISION:	Migration & Refugee Division
APPLICANT:	Mahabir Pty Ltd
CASE NUMBER:	1828926
HOME AFFAIRS REFERENCE(S):	BCC2017/1140699 
MEMBER:	Alison Mercer
DATE:	30 October 2021
PLACE OF DECISION:	Melbourne
DECISION:	The Tribunal affirms the decision under review to refuse the nomination.

Statement made on 30 October 2021 at 4:24pm

CATCHWORDS
MIGRATION – application for approval of nomination of position – direct entry nomination stream – genuine need for position – small business in regional location with director working part-time and full-time manager, and declining turnover – no updated and current information provided – no right to hearing – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 359(2)
Migration Regulations 1994 (Cth), r 5.19(4)(h)(ii)(B)

CASES
Hasran v MIAC (2010) 183 FCR 413
MIAC v Li (2013) 249 CLR 332

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 14 September 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, Mahabir Pty Ltd (trading as Bollywood Flavours), applied for approval of its position of Café or Restaurant Manager, on 24 March 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.
4.  	The delegate refused the application on the basis that the applicant’s nomination did not satisfy reg 5.19(4)(h)(ii)(B) of the Regulations, which required that the applicant had a genuine need for the nominated position within its business. The delegate noted that the applicant operated a small restaurant based within a pub/hotel in a small town in regional New South Wales (NSW), that it had a decreasing turnover, and that it already appeared to have a director who was involved in the business plus another Restaurant Manager.  Accordingly, the delegate was not satisfied that the applicant needed a specific Catering Manager (the position identified for the nominee in this case). The delegate therefore concluded that there was no genuine need for the position, and r.5.19(4)(h)(ii)(B) was not met, and thus r.5.19(4)(h) was not met as a whole and the nomination could not be approved.
5.  	The Tribunal received a review application from the applicant on 3 October 2018. It was signed on behalf of the applicant by its director, Mr Komal Sharma, and was accompanied by a copy of the delegate’s decision and an authority by which Mr Sharma appointed a registered migration agent, Mr Adam Khaze, as the applicant’s representative and authorised recipient for correspondence.
6.  	On 18 June 2021, the Tribunal wrote to Mr Sharma, via the agent, to invite him, pursuant to s.359(2) of the Act, to provide updated and current information demonstrating that the applicant met all of the r.5.19(4) criteria, not just the one that the delegate found was not met. The Tribunal provided examples of the kind of information that would assist it, and requested that this information be provided by 2 July 2021. It advised Mr Sharma that if the Tribunal did not receive the requested information, or a request for an extension of time to do so, by 2 July 2021, then the applicant would lose its entitlement to have a person appear on its behalf at a Tribunal hearing, and the Tribunal might proceed to make its decision on the available evidence.
7.  	On 6 July 2021, the Tribunal received a request for an extension of time to respond to the above request. The agent advised that Mr Sharma had not been able to meet with his accountant due to COVID19 lockdown restrictions. On the same date, the Tribunal wrote to Mr Sharma via the agent to advise that as the extension of time request had been received after 2 July 2021, the applicant had lost its hearing right and that they should provide any further information that they wished to have considered by 20 July 2021, after which a Tribunal Member would determine the matter.
8.  	On 20 July 2021, the agent requested an extension of time to provide additional information and reiterated that Mr Sharma had been unable to see his accountant during the COVID19 lockdown in order for the applicant to assemble the information requested. He asked that the Tribunal grant an extension of time until after the lockdown was lifted for the applicant to provide additional information.
9.  	On 21 July 2021, the Tribunal wrote to Mr Sharma via the agent to confirm that its preliminary view was that – as no information or request for extension of time had been received by 2 July 2021 – the applicant had lost its hearing right. However, the Tribunal granted the applicant until 18 August 2021 to provide any additional information, noting that after this date, the Tribunal might make a decision on the available evidence at any time.
10.  	The Tribunal did not receive any response or information by 18 August 2021, and has received no further communication from Mr Sharma or the agent to date on behalf of the applicant. 
11.  	As noted above, the Tribunal did not receive a response to its letter, or a request for an extension of time to provide the requested information, by 2 July 2021 (although it acknowledges that it received an extension of time request on 6 July 2021). The Tribunal is satisfied that its letter of 18 June 2021 was sent to the email address nominated for correspondence by the applicant in the review application, and there is no evidence in the Tribunal’s electronic records that the email was undeliverable or not delivered. Similarly, it is evident that the authorised recipient, the agent, received the Tribunal’s emails of 6 and 21 July 2021.
12.  	The Tribunal notes that it has no power to extend the period to respond to an invitation when a request for an extension is received after the initial prescribed period has passed: Hasran v Minister for Immigration and Citizenship (2010) 183 FCR 413 at [48].  Accordingly, the applicant has lost its entitlement to have a hearing: s.360(3). 
13.  	As noted above, an extension request was received after the prescribed period and was granted to 18 August 2021. However, the applicant did not provide the requested information in the extended period. 
14.  	The Tribunal has considered whether to make a further request for information from the applicant, but – in view of the fact that the Tribunal sent the applicant a s.359(2) letter about the need to provide updated and current criteria addressing all of the r.5.19(4) criteria, and provided 2 further extensions of time beyond the original due date to do so, and the fact that the applicant had had the assistance of a registered migration agent for the conduct of this review – the Tribunal has elected not to do so and instead has proceeded to make its decision on the available evidence. It considers it reasonable to do so in these circumstances, having regard to the principles set out in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332. On this issue, the Tribunal notes that while the applicant’s agent raised the issue of the COVID19 lockdown restrictions affecting Mr Sharma’s ability to consult his accountant to obtain the required information, the agent did not identify any barrier to Mr Sharma instructing his accountant by telephone or videoconference during lockdown, and or address the fact that much of the information that the Tribunal suggested that the applicant could provide did not involve preparation by an accountant.
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 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.
Tasks of the position, genuine need for the position and training requirements reg 5.19(4)(h)
17.  	Regulation 5.19(4)(h) contains a number of alternative requirements. These are set out in detail in the attachment to the decision but can be briefly summarised as requiring either that:
•	the tasks to be performed in the position will be performed in Australia and correspond to those of an occupation specified by the Minister in a written instrument, the occupation is applicable to the proposed employee in accordance with any specifications made in that instrument, and specified training requirements are met; or
•	the position and nominator’s business is located in regional Australia, there is a genuine need for the paid position under the nominator’s direct control which cannot be filled by a locally resident Australian citizen or permanent resident, the tasks of the position correspond to those of an occupation specified in the relevant legislative instrument, the occupation is applicable to the proposed employee in accordance with the specification of the occupation and that a regional certifying body has advised the Minister about certain matters relating to the position.
18.  	The Tribunal is satisfied that the applicant indicated that the position and applicant’s business is located in regional Australia (being Manilla, regional NSW, postcode 2346). Therefore, the requirements of the second dot point apply in this case.
19.  	As noted above, the delegate was not satisfied that the applicant had shown that it had a genuine need for the nominated position under the nominator’s direct control. This was on the basis that the restaurant operated by the applicant was a relatively small one based within a country pub/hotel, that it already had a director who worked (at least part of the time) in the business, as well as an existing Restaurant Manager, and that its turnover appeared to be declining (based on the 2015/16 and 2016/17 financial statements provided). The delegate found that this did not support a conclusion that there was a genuine need for a Catering Manager within the business.
20.  	The Tribunal has reviewed the information provided to the Department, which includes an undated letter from Mr Sharma identifying that catering for functions and events has increased and that the role of Catering Manager existed within the business already, and was held by a subclass 457 visa (not the nominee) who had recently left the role. The current nominee had been recruited to replace the previous Catering Manager, according to Mr Sharma.
21.  	As noted above, the Tribunal has not received any updated information to indicate what the current operations and structure of the applicant’s business are, whether it retains the roles identified by the delegate and/or Mr Sharma, what effect (if any) the COVID19 pandemic and associated lockdown periods have had on its operations (including its catering function) and turnover, and its current financial status. The most recent financial information provided to the Department consisted of the applicant’s 2016/17 financial statement, which is now some 4 years old. This showed that the applicant’s turnover had declined slightly from the previous financial year. No current submissions were provided as to the current, ongoing need for a Catering Manager in response to the Tribunal’s s.359(2) letter in July 2021.
22.  	In the absence of such information – particularly where the applicant was asked to provide it and given several extensions of time to do so, and the majority of it did not require preparation by an accountant – the Tribunal is not satisfied that there is a genuine need for the paid position under the nominator’s direct control.
23.  	As such, the Tribunal finds that r.5.19(4)(h)(ii)(B) is not met, and therefore r.5.19(4)(h) is not met as a whole. As r.5.19(4)(h) must be satisfied in order for the nomination to be approved, the Tribunal finds that the applicant does not meet 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
24.  	The Tribunal affirms the decision under review to refuse the nomination.

Alison Mercer
Member

ATTACHMENT  -  Extracts from the Migration Regulations 1994
5.19	Approval 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).