1405408 (Migration)

[2015] AATA 3080

1405408 (Migration) [2015] AATA 3080 (10 July 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  The trustee for Kwon & Chung Family Trust

CASE NUMBER:  1405408

DIBP REFERENCE(S):  BCC2013/1834102

MEMBER:Sue Raymond

DATE:10 July 2015

PLACE OF DECISION:  Adelaide

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

Statement made on 10 July 2015 at 3:33pm

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 28 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 11 November 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.

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) as the delegate was not satisfied that there is a need for the nominated position in the business. The delegate noted that the restaurant currently had two active owner/ managing directors and a full time restaurant manager.

5. The applicant, via its directors Mr Sung Sub Chung and Ms Gumsook Kwon, appeared before the Tribunal on 27 February 2015 to give evidence and present arguments. The Tribunal also received oral evidence from Ms Choi, the nominee. The Tribunal hearing was conducted with the assistance of an interpreter in the Korean and English languages.

6. The Tribunal received submissions and evidence following the hearing, in March and April respectively.

7. The applicant was represented in relation to the review by its registered migration agent who also attended the hearing.

8. For the following reasons, the Tribunal has decided to affirm the decision under review to refuse 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 essence of the issue before the delegate was whether there is a need for the nominated position. The delegate dealt with it under reg.5.19(4)(a). 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.

2. Regulation 5.19(4)(h) contains a number of alternative requirements.  Regulation 5.19(4)(h)(ii) is relevant in the current circumstances. The requirements are set out in detail in the attachment to the decision but can be briefly summarised as requiring:

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

3. The Tribunal prefers to deal with the issue under r.5.19(4)(h)(ii) as the former provision appears to be dealing with matters of form whereas the latter provision appears to be dealing with matters of substance. The live issue is as to whether there is a genuine need for the paid position. The relevant subparagraph of that provision is (B) which provides; “there is a genuine need for the nominator to employ a paid employee to work in the position under the nominator’s direct control”.

4. The Tribunal is satisfied that the issue before the delegate and the Tribunal is essentially the same.

Background and nature of the business

1. The applicant is Koba SA Pty Ltd (Koba), as trustee for Kwon and Chung Family Trust. The two directors of the trustee company appeared representing the applicant. They are Mr Sung Chung and Ms Gumsook Kwon. The restaurant is a 150-160 seat Korean restaurant in the centre of Adelaide. The restaurant has a restaurant licence and has table service. The applicant also owns another Korean restaurant called Seoul Express.

2. Mr Chung gave evidence that he spends from about 7:30 am until approximately    5:30 pm at Seoul Express. After that time he goes to Koba. Consequently, he is there approximately 5 hours each day from Monday to Saturday. The restaurant is open six days per week from Monday to Saturday. Ms Kwon is the head chef at Koba and works 14 hours per day every day.

3. In addition to the two directors there is another chef who is full time and an assistant chef who works full-time. There is one manager, Mrs Lee, who works full-time. There are then three or four waiters and waitresses who work either casual or part-time.

4. Mrs Lee has been working full time but was away for the whole of February. Ms Choi, the nominee, has been working 20 hours per week.

5. Ms Choi was a student and was doing a placement at the restaurant and did that for approximately five or six months. Miss Kwon requested Ms Choi to stay because she needed her assistance.

6. The Tribunal asked why there was a need for two restaurant managers given that Mrs Lee already worked as a restaurant manager. The response was to the effect that Mrs Lee worked 4 pm to 10 pm six days per week and they would engage Ms Choi to work from 9:30 am to 3:30 pm to cover the lunch shift.

7. Mr Chung gave evidence that when he is present at Koba he stays at the counter receiving payments at reception. He explained that he is physically very tired. In response to a question as to who employs the staff he indicated that the primary decision is his. In answer to the question of who decides upon the food and drink he indicated that he would discuss the matter with his wife and that beverages he would discuss with the manager. Miss Kwon signs the cheques for any payment to the suppliers.

8. The Tribunal accepts that Ms Choi has helped the owners in the business in the following ways; has conducted ordering and dealing with suppliers, she can do design or photograph work and help organising things if there are functions, which there are approximately once or twice per month. The Tribunal also accepts that Ms Kwon particularly found Ms Choi helpful as Miss Kwon explained that she has difficulty with her English and Ms Choi can help communicate and that she can help in many areas. Miss Kwon described it as frustrating for her.

9. It was clear that Ms Kwon and Mr Cheong found Ms Choi to be honest and reliable. Ms Choi did her placement at the business from approximately February to June 2013. She worked thereafter in the cooking side of the business and commenced working in the nominated position from April 2014.

10. Ms Choi explained a list of things that she undertakes when she comes to work including, turning on the computer and cashier machine, briefing staff if any other person is expected at the premises such as a supplier, she instructs people to mop the floor, prepare charcoal for the barbecue and talks with the kitchen staff and head chef, checks cutlery and basically makes sure things are in order. Ms  Choi gave an example of being able to choose which supplies of beef and that she can decide which supplier they obtain the beef from. She said that she had managed three different restaurants in Korea. When the Tribunal asked Ms Choi what would be the difference between her duties and those of Mrs Lee she said there would be some overlap but would be a difference. Currently while Mr Choi has been working part-time, she has been assisting Mrs Lee with the staff roster and given ideas to promote events.

11. The Tribunal noted from newspaper articles submitted by the applicants at the hearing that in one article from the news refers to David Chung, 19, the son of owner and head chef Grace Chung. In another news article David Chung is described as a chef and in that article Koba is described as a family affair run by husband and wife Grace Kwon and Paul Chung, sons Joshua and chef David. At the hearing the Tribunal raised the fact that the article suggested that essentially the business was run by family members and that Mr David Chung was described as ‘manager’ in one of them. Ms Kwon indicated words to the effect that in dealing with the journalists for the article this is how they had described him. Essentially the Tribunal understood from evidence given at the hearing that Mr David Chung was not a manager. Based on the evidence given the Tribunal finds that the sons are currently students but are present some of the time, helping at the restaurant, and Mr Chung suggested that one of the sons would be manager of a third business, if it was obtained.

12. The Tribunal has regard to the ANZSCO definition of cafe and restaurant manager 141111, and although not bound by it, ANZSCO is specifically referred to elsewhere in the 5.19(4) criteria. The Tribunal notes that the general description of a cafe and restaurant manager is “organise and control the operations of… restaurants… to provide dining and catering services”.

13. The Tribunal finds that Ms Kwon is present at the restaurant 14 hours a day, six days a week. One of the other owners Mr Chung, is there approximately 5 hours per day. In addition the owners’ sons, Joshua and David, are there some of the time helping in the restaurant. It is a family run business. The Tribunal accepts that Ms Kwon wishes to reduce the hours she works and to do this they would obtain the services of a chef. [Evidence was given that they have worked long hours for 10 years now and want a break]. In addition, and of significance, is the fact that there is another person, [in addition to the owners], Mrs Lee, who works as a manager in the restaurant. The restaurant only has three or four waiting staff and two other kitchen staff (other than Ms Kwon).

14. The representative made submissions to the effect that the owners are trying to carry on the business, that they are looking for a third restaurant, that there was no problem with the food and providing a quality service but for the smooth operation, they require someone in a key role. He further indicated that 80 to 90% of nomination applications are granted and that this one has been held up. He also indicated that some of the regional certifying bodies thoroughly check out the nominations and actually contact or attend the premises. He did not indicate that that had occurred in this case. He indicated that Ms Kwon and Mr Chung are mentally and physically tired and that he does feel for them.

15. The Tribunal has had regard to the written statement of Mr Chung received following the hearing. It sets out reasons why the applicant asserts that the need for securing a second restaurant manager is a genuine one:

• With the securing of a second full-time restaurant manager the restaurant will be much better organised and all employees would perform more efficiently. This would in turn improve the standard of service which was desired by the critics since the opening of the restaurant.

• If the nomination is approved the duties and responsibilities of Ms Choi would be almost tripled to what she currently performs.

• She is the most senior person, in terms of age, amongst both owners and the workers in the restaurant. In Korean culture this is an important factor and the owners believe it is respected in their restaurant.

• Given trust, proven reliability and experience the nominee has in the industry, it is an obvious long-term choice for the owners to have the nominee manage their restaurant in higher, key roles compared with the current “457” manager.

• Ms Choi will be directed to make most of the daily, weekly, and yearly long-term decisions in taking the restaurant to a higher level in many years to come. The owners expect her to play a vital role in the setting up of another restaurant.

• The owners have no issue with Ms Choi handling many key financial related decisions and she has their full trust.

• Ms Choi will be largely engaged in promoting and marketing of the business in coordination with the seasonal changes in dishes and with special events such as parties/functions.

• She will be obtaining feedback from clients and have strong suggestions in developing and deciding menus with the head chef.

• She will have the authority to manage current and future staff, interviewing and deciding employment of new staff as well as training them.

• She will be given permission to choose and decide which major food, meat suppliers will be used.

• She will have to take a bigger part in executing some accounting duties and banking and payment duties.

  In the written statement Mr Chung reiterated that the reason for Ms Choi’s current limited work is because she is only able to work limited hours and the fact that they do have another full-time manager who can cover for that. Mr Chung also mentioned that Ms Choi was able to relieve some of the pressure by giving assistance in the business.

1. Prior to finalising this matter, the Tribunal caused a written communication to be sent to the representative on 8 July 2015, apologising for the delay in finalising the matter and requesting them to indicate whether there had been any change of circumstances, in relation to the evidence given at, and following the hearing, in relation to the application for review. In a communication received on 8 July 2015 the representative advised that nothing significant had changed.

Consideration of genuine need to employ paid employee in the position

1. The Tribunal has taken into account the fact that the regional certifying body has provided a certificate[1], which relates to the job title of cafe or restaurant manager. In that document the authorised certifying body representative indicates that she is satisfied about a number of factors, including that there is a need for a paid employee in the nominated position within the business activities of the nominating employer. Nevertheless, in light of other evidence, in particular that another person occupies the position of cafe and restaurant manager, the Tribunal does not regard the declaration in the regional certifying body advice as determinative in this matter.

   [1] at Folio 11 of the departmental file

2. The Tribunal has also noted the BAS statements, which were provided to the Tribunal following the hearing. The Tribunal has not placed any particular weight on these documents in reaching its decision but nothing contained within them leads the Tribunal to reach a different conclusion.

3. On the evidence before the Tribunal, it is not satisfied that there is a genuine need for the nominating employer to employ a paid employee to work in the position of restaurant manager. Consequently, the requirement of reg. 5.19(4)(h)(ii)(B) is not satisfied. In reaching this finding, the Tribunal accepts that Ms Choi is a valuable employee to the employer but that is not the relevant criterion. Essentially the main reason for its decision is there is also another restaurant manager, Ms Lee, already employed at Koba. To a lesser extent, the involvement of other family members in the business, namely Joshua and David, and the description of David as manager in the newspaper article supplied to the Tribunal, also raise issues as to the need for another restaurant manager to be employed in the nominating business.

4. In reaching its decision the Tribunal acknowledges that the focus is on the skill level of the position in r.5.19(4)(h)(ii) rather than the duties of the position matching a particular occupation.

5. As each of the requirements of r.5.19(4)(h)(ii) must be met, in the circumstances, to satisfy the requirement, and as I have determined that r. 5.19(4)(h)(ii)(B) is not satisfied then the requirements in r.5.19(4)(h) are not met.

6. For the above reasons the Tribunal is not satisfied that the applicant meets the requirements of r.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 r.5.19(3). Accordingly, the nomination of the position cannot be approved. Therefore, the Tribunal must affirm the decision under review.

DECISION

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

Sue Raymond
Senior Member

ATTACHMENT  -  EXTRACTS FROM THE MIGRATION REGULATIONS 1994

5.19    Approval of nominated positions (employee 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).