1404363 (Migration)

[2015] AATA 3443

1404363 (Migration) [2015] AATA 3443 (14 September 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Minh Dung Nguyen

CASE NUMBER:  1404363

DIBP REFERENCE(S):  BCC2013/1516855

MEMBER:Sue Raymond

DATE:14 September 2015

PLACE OF DECISION:  Adelaide

DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Statement made on 14 September 2015 at 7:08pm

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 on 21 February 2014 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 23 September 2013. 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 (r.5.19(3)) stream and a Direct Entry nomination (r.5.19(4)) stream. 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 Direct Entry Nomination stream.

4. The delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19 (4)(a)(ii) of the Regulations because the delegate was not satisfied that the nominator had identified a need for the nominator or to employ a paid employee to work in the nominated position. The delegate noted that it is generally expected that small and medium restaurants are often directly controlled, managed and operated by the owners. She further indicated that she appreciated that Mr Nguyen is expecting a newborn child, and may not be fully involved in the daily operation of his restaurant, it is not envisaged that all of his managerial duties will be taken over by the nominee on a permanent basis. The delegate also referred to the fact that as noted in the submission, the owner still takes responsibility for the strategic management and development of the business.

5. The applicant was represented in relation to the review by his registered migration agent, who also attended the hearing.

6. For the following reasons, the Tribunal has decided to set aside the decision under review and substitute a decision approving the nomination.

CONSIDERATION OF CLAIMS AND EVIDENCE

1. 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 r.5.19(4), which is extracted in the attachment to this decision. For the nomination to be approved, all the requirements must be met. The delegate was concerned as to the need for the position and the Tribunal identified at the hearing that it was also concerned in relation to the criterion which requires that 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.

Background

1. Mr Nguyen is the sole owner of the business, called Indochine Noodle Bar and has owned the business for approximately 15 years. It is a 160 seat restaurant at Glenelg in South Australia. The restaurant has a restaurant licence. The organisation chart provided with submissions dated 30 December 2014. There are approximately seven waiters/waitresses who work at the front of house and four staff who work in the kitchen-one of whom is the chef (full-time) and the others who are kitchen hands. The owner comes in to help from time to time.

2. The nominee originally worked as a waiter from about January 2013 and after about six months the owner trained him to be the manager. The nominee was not known to the owner before he came to work at the business. He is not related to the owner. The nominee has worked full-time in the position of Manager since August 2014. Mr Nguyen is not at the restaurant very often as his wife has had two children and he wants to expand his business. He goes into the restaurant for a couple of hours once or twice a week. When he goes there he checks that his cooks are doing the right thing and that the manager is doing the right thing. If the restaurant is busy he gives a hand, that is mostly cooking.  Mr Nguyen and his wife were both part of the business before the nominee worked as a manager. I asked what is different now that the nominee is working as a manager from when he and his wife worked at the restaurant. Evidence was given that the nominee does everything—the only thing he does not do is pay his and the staff’s wages.  The owner gave evidence that “the nominee is head of the whole restaurant now” and “runs the whole thing”. Sometimes he opens up or the nominee organises one of the staff to open for him. The nominee closes up. Mr Nguyen does the banking once per week. The nominee does the rostering of the staff. The nominee needs to report to the owner. He hires the workers if he needs them. Mr Nguyen does not interfere with that. If health inspectors come to the restaurant the nominee deals with them. The nominee deals with the suppliers. The nominee gives the owner suppliers bills and Mr Nguyen pays the bills once per month. They do not do a lot of advertising. If people want to have a function or there are complaints the nominee deals with those matters. If there is a menu change Mr Nguyen has to approve it.  If complaint from staff it would be raised with the nominee who may discuss with Mr Nguyen.

3. Following the hearing the representative made written submissions to the Tribunal dated 30 January 2015. The representative asserted that the position description provided and from the hearing, the duties carried out by the nominee cover all facets required for the independent day to day management of the restaurant, except for duties relating to payroll and bookkeeping. The representative submitted that payroll and bookkeeping are functionalities of many businesses that are quite often outsourced to a third party. The representative pointed out that in relation to the ANZSCO description for the duties of restaurant manager, when it comes to the financial duties, it only states “maintaining records of stock levels and financial transactions”. The representative pointed out that cash handling and management of EFTPOS payments are part of financial transactions and these duties are undertaken by the nominee in his daily work.

4. The representative also indicated that in terms of the qualifications required for the nominated position, the restaurant manager position requires the successful candidate to have a formal relevant diploma qualification and have hands-on experience in the operation of an Asian restaurant. The representative asserted that the nominee perfectly meets the requirements of qualifications, experience and specific industry knowledge.

5. Further information was provided to the Tribunal on 28 July 2015, to the effect that the nominee has taken on the payroll duties since May 2015. The owner submitted that the nominee has been working as a restaurant manager for 2 years including nearly one year on a subclass 457 visa. He reiterated that the nominee has demonstrated excellent leadership, management abilities and extremely high standard of customer service.

The application is compliant: r.5.19(4)(a)

1. Regulation 5.19(4)(a) requires that the application for approval must be in the approved form, must be accompanied by the prescribed fee and must identify a need for the nominator to employ a paid employee to work in the position under their direct control. My view is that this criterion does not call for a detailed inquiry about the need for the position as that is dealt with in subsection (h). It requires the “identification,” in a formal sense, of the need for a paid employee.

2. I am satisfied that:

   ·the application was made on an  approved form and that no fee is payable[1] as the application seeks approval in accordance with subparagraph 5.19(4)(h)(ii);

   ·it identifies a need for the nominator to employ a paid employee to work in the position of Restaurant Manager (ANZSCO Cafe or Restaurant Manager) in the business of Indochine Noodle Bar at Glenelg, South Australia.

   ·The position is under the nominator’s direct control.

   [1] By virtue of reg. 5.37 of the Migration Regulations

3. Accordingly, the requirement in r.5.19(4)(a) is met.

Nominator is actively and lawfully operating a business in Australia: r.5.19(4)(b)

1. Regulation 5.19(4)(b) requires that applicant is actively, lawfully and directly operating a business in Australia. Based on the oral and documentary evidence, including a letter from a firm of accountants, copies of business activity statements, financial statements and ABN registration, I accept that Minh Dung Nguyen is actively and lawfully operating a business in Australia and directly operates that business. The business operates under the trading name of Indochine Noodle Bar.

2. Accordingly, the requirement in r.5.19(4)(b) is met.

Position is not labour-hire: r.5.19(4)(c)

1. Regulation 5.19(4)(c) applies to nominators whose business activities include those relating to labour hire to an unrelated business.  In these cases, the nominated position must be within the business activities of the nominator. I am satisfied that the nominator is not involved in labour hire activities.

2. Accordingly, the requirement in r.5.19(4)(c) is not applicable.

Term of employment of the visa holder: r.5.19(4)(d)

1. Regulation 5.19(4)(d) requires the nominee to be employed in the nominated position for at least 2 years full time, and the terms and conditions of that employment do not expressly exclude extension of the employment. I find that the nominee has accepted an offer from the nominator to be employed in the position of Restaurant Manager for the business of Indochine Noodle Bar for a minimum of four years after “the RSMS visa” is approved[2]. The stated base salary of $54,000 per annum is based on a 38 hour week. I am satisfied that this constitutes full-time employment. The terms and conditions of the employment do not expressly exclude extension of the employment.

   [2] A letter dated Friday, December 5, 2014 which was provided to the Tribunal.

2. Accordingly, the requirement in r.5.19(4)(d) is met.

No less favourable terms and condition of employment: r.5.19(4)(e)

1. Regulation 5.19(4)(e) requires that the terms and conditions of employment applicable to the nominated position will be no less favourable than those that are, or would be, provided to an Australian citizen or permanent resident performing equivalent work in the same workplace at the same location.

2. I have had regard to the offer of employment referred to above, and note that it refers to terms and conditions of employment as being in an employment contract[3] and the Restaurant Industry Award 2010. Consequently, I am satisfied that the terms and conditions of employment applicable to the nominated position will be no less favourable than those that are, or would be, provided to an Australian citizen or permanent resident performing equivalent work in the same workplace at the same location. The review applicant gave evidence to the effect that there is no Australian citizen in the position performing equivalent work but the pay rate for any employee would depend on their skills and experience.

   [3] Employment letter dated 2 July 2013- folios 48 and 59 of the departmental file

3. Accordingly, the requirements of r.5.19(4)(e) are met.

No adverse information known to Immigration: r.5.19(4)(f)

1. Regulation 5.19(4)(f) requires that there is no adverse information known to Immigration about the nominator or person ‘associated with’ the nominator; or it is reasonable to disregard any adverse information known to Immigration about the nominator or a person ‘associated with’ the nominator. For these purposes, ‘adverse information’ and ‘associated with’ have the meaning given in r.2.57 (2) and (3): r.5.19(7).

Satisfactory compliance with workplace relations laws: r.5.19(4)(g)

1. Regulation 5.19(4)(g) requires that the applicant 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.

2. Based on the information before me, and in the absence of any contrary information, I am satisfied that the requirements of r.5.19(4) (f) and (g) are each met.

Tasks of the position and genuine need for the position: r.5.19(4)(h)

1. Regulation 5.19(4)(h) contains a number of alternative requirements.  These are set out in detail in the attachment to the decision. The second part of this criterion is the applicable one in this case and can be briefly summarised as requiring that:

   ·    the position and the 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 at the ANZSCO skill level 1, 2 or 3; and that a regional certifying body has advised the Minister about certain matters relating to the position.

2. Some aspects of this criterion are not controversial and I am satisfied that:

   ·    The position is located in Glenelg, in South Australia. I am satisfied that that fulfils the requirement for ‘regional Australia” by virtue of a legislative instrument[4]which specifies all postcodes in the State for this purpose.(R.5.19(4)(h)(ii)(A)).

   ·    The business operated by the nominator is located at that place. (R.5.19(4)(h)(ii)(E)).

   ·    A regional certifying body[5], namely, Department for Manufacturing, Innovation, Trade, Resources and Energy, located in the same State as the position, has advised the Minister about the matters in r.5.19(4)(e) and r.5.19(4)(h)(ii)(B) & (C). (R.5.19(4)(h)(ii)(F)).

   [4] IMMI 13/049

   [5] As referred to in IMMI 13/049 dated 30 July 2013 at folio 5 of the departmental file.

3. In terms of the skill level of the position I note that the owner is seeking at least diploma level qualifications in addition to relevant experience.

4. I referred to the ANZSCO description for the position of Restaurant Manager. I asked whether the nominee organised and controlled the operations of the restaurant, whether that control had been given over to the nominee. Mr Nguyen said that the nominee “runs the whole show” but he said that it is still his business. The owner pays bills and still is involved in the business and will indicate if he thinks the nominee is spending too much.

5. I am satisfied that Mr Nguyen is not spending as much time at the business as he was and that it does not amount to many hours in a week.

6. Based on the oral evidence of the owner’s absence from the business, and also the absence of his wife from the business, I am satisfied that there is a genuine need to employ a paid employee to work in the position under the nominator’s direct control.

7. The oral evidence of the review applicant and the nominee was given independently of each other and yet was broadly consistent in terms of the duties of the position. The nominee indicated that he would have to discuss the following types of matters with the owner, a change of strategy of the business, changing something about the food or, for example, if he wished to close down the business for a week but other than that he was responsible for the functioning of the restaurant. He organises staff on a daily basis, checks stock, liaises with the chef and kitchen staff as well as ensuring the front of house staff run smoothly. He orders the supplies, he deposits money into the bank periodically, deals with health inspectors, complaints and requests for functions. I am satisfied that he is regarded as the manager of the restaurant by those who deal with the restaurant and also its staff. Whilst the owner may come to the restaurant at weekends if it is busy the nominee does not usually deal much with him by telephone. The business is a restaurant of approximately 160 seats and I conclude that the tasks to be performed in the position correspond to those at ANZSCO skill level, one, two or three.

8. In terms of whether the position cannot be filled by an Australian citizen or permanent resident who is living in the same local area, I raised some questions about that issue at the hearing, in light of the time which had elapsed since the position was advertised and also since the certification was provided by the regional certifying body in July 2013.

9. In relation to recruitment the owner gave evidence that he advertised once and got a number of responses (15-20) but very few had skills in the area. He interviewed a few applicants. A few times he used a recruitment company and he was not happy with staff who were sent through that agency. That was some years ago.

10. Following the hearing, I was advised that the regional certifying body has finalised an application lodged by the nominator in relation to a recent local labour market test. I have had regard to a communication from the South Australian Department of State development to the agent which indicates that the regional certifying body has now completed an assessment of the nomination and has provided advice to the Department of Immigration and Border Protection. The advice is in the form of a form 1404 -regional certifying body advice, dated 23 February 2015, which confirms at that date that there is a need for a paid employee in the nominated position within the business and that the nominated position cannot be filled by an Australian citizen or Australian permanent resident who is living in the same local area as the nominated position. Despite some qualms I had about this aspect of the criterion, nevertheless I place considerable weight on the more recent advice from the relevant state certifying body. Consequently, based on that later advice, I am satisfied that the position cannot be filled by an Australian citizen or permanent resident who is living in the same local area as the nominated position.

11. Accordingly the requirements of r.5.19(4)(h) are met.

12. Based on the findings above, the Tribunal is satisfied that the applicant meets the requirements of r.5.19 for approval of the nomination of the position in Australia.

DECISION

The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Sue Raymond
Senior Member

ATTACHMENT - Extracts from the Migration Regulations 1994

5.19Approval of nominated positions (employer nomination)

…

1. The application must:

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

   (b)be accompanied by the fee mentioned in regulation 5.37.

…

Direct Entry nomination

1. 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;

   (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 at a skill level of ANZSCO skill level 1, 2 or 3;

   (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).