1410468 (Migration)

[2015] AATA 3695

1410468 (Migration) [2015] AATA 3695 (17 November 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Dahab Cafe

CASE NUMBER:  1410468

DIBP REFERENCE(S):  BCC2014/345134, BCC2014/774452

MEMBER:Katie Malyon

DATE:17 November 2015

PLACE OF DECISION:  Sydney

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

Statement made on 17 November 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 26 May 2014 to reject the application by Mr Mohamed Khattab trading as Dahab Cafe (Dahab Cafe) for approval of the nomination of a position in Australia under r.5.19 of the Migration Regulations 1994 (the Regulations).

2. Dahab Cafe applied for approval on 5 February 2014. 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) of the Regulations 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) of the Regulations.

3. In this case, Dahab Cafe has applied for approval of a nomination on the position of Chef seeking to satisfy the criteria in Direct Entry nomination stream.

4. The delegate refused the application on the basis that Dahab Cafe’s nomination did not satisfy both r.5.19(3) and also r.5.19(4) of the Regulations. However, Dahab Cafe did not make application for approval of a nomination seeking to satisfy the criteria in r.5.19(3)of the Regulations: clearly, this aspect of the decision is incorrect and no further comment is made in relation to this aspect of the delegate’s decision. The delegate also refused Dahab Cafe’s nomination application on the basis that the nomination did not satisfy r.5.19(4) of the Regulations because, based on evidence provided, the application did not establish:

   ·     a genuine need for the nominated position of Chef at Dahab Cafe in Dubbo;

   ·     the nominee Mr Madhu Thapa Pulami will be employed on a full-time basis in the position of Chef for at least two years having regard to the absence of proof of financial capability of the nominator; and,

   ·     that the terms and conditions of employment applicable to the position will be no less favourable than the terms and conditions that are provided, or would be provided, to an Australian citizen or permanent residence for performing equivalent work in the same workplace at the same location.

5. Dahab Cafe was represented in relation to the review by registered migration agent Ms Mary Donnolly of Fresh Start Visas.  Ms Donnelly attended the Tribunal’s hearing together with her client. 

6. In response to a request to provide current information demonstrating Dahab Cafe meets the requirements of r.5.19(4) of the Regulations the Tribunal received extensive documentation and a detailed submission not available to the Department including: financial reports as well as Statement of Assets and Liabilities of Mohamed Khattab: Tax Returns for Mohamed Khattab for each of FY2012/13, 2013/14, 2014/15; Business Activity Statements (BAS) for the period 1 April 2014 to 30 September 2015; bank statements; PAYG for all employees including the nominee; a copy of an exchanged contract of purchase for the premises currently occupied by Dahab Cafe and loan approval from the Commonwealth Bank of Australia; a business plan for Dahab Cafe; organization chart; evidence of work rights status of all employees of the business; revised contract of employment with nominee Madhu Pulami; job advertisements and salary surveys; menus and multiple letters of support including a detailed letter from the CEO of Regional Development Australia Orana, that is, the organisation that signed the Form 1404 Regional Sponsored Migration Scheme – Regional Certifying Body advice.     

7. 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

8. The issue in this case is whether Dahab Cafe meets the requirements for approval of the nomination under the Direct Entry nomination stream set out in r.5.19(4) of the Regulations, which is extracted in the Attachment to this decision. For the nomination to be approved, all the requirements must be met.

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

9. 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.

10. On the basis of information in the Department’s file, the Tribunal is satisfied that the application was made on the approved form and was accompanied by the fee prescribed in r.5.37 of the Regulations. In addition, the Tribunal has considered the evidence provided by multi-award winning Dahab Cafe in relation to the position currently occupied by nominee Madhu Pulami in the role of Chef, the operation of the cafe including Mr Pulami’s supervision of the Cook employed by the business, multiple testimonials from customers and local residents as well as local businesses, and the continuing growth in the business since its establishment in November 2012 as confirmed by the Business Activity Statements provided to the Tribunal. The Tribunal is satisfied that the application has identified a need for Dahab Cafe to employ a paid employee to work in the position of Chef under the nominator’s direct control. Accordingly, the requirement in r.5.19(4)(a) of the Regulations is met.

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

11. Regulation 5.19(4)(b) requires that applicant is actively, lawfully and directly operating a business in Australia.  

12. On the basis of the financial, employment and other documents provided, the Tribunal is satisfied that the applicant is actively, lawfully and directly operating a business in Australia. Accordingly, the requirement in r.5.19(4)(b) of the Regulations is met.

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

13. 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. 

14. There is no evidence before the Tribunal to suggest that the nominator is involved in labour hire activities. Accordingly, the requirement in r.5.19(4)(c) of the Regulations does not apply.

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

15. 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.

16. The Tribunal notes that one of the reasons the Department refused the nomination application was the failure by Dahab Cafe to demonstrate its financial capability to continue the nominee’s employment beyond two years.  The Department had also undertaken a Google search of the premises indicating that the cafe was sharing the premises with an optometry business.  The Tribunal has been provided with a range of documents confirming the financial capability of the business including Tax Returns and Statement of Assets and Liabilities of Mohamed Khattab, Business Activity Statements as well as bank statements. The Tribunal also notes the representative has observed that the Google search shows the premises as it was in 2009, before it was occupied by the Dahab Cafe.  Recent photographic evidence of the premises has been provided together with an updated download from Google.  In addition, the Tribunal notes that the Principal of the Dahab Cafe exchanged contracts on 9 November 2015 to purchase the property where Dahab Cafe has been operating since November 2012.  Mr Khattab relied on his personal savings to fund the deposit: the Commonwealth Bank of Australia will advance funds to finalise the acquisition of the property and will take a mortgage over the property.  The Tribunal has been provided with a copy of the CBA’s loan approval.   Mr Khattab told the Tribunal that monthly repayments to the CBA will be less than the current rent.

17. The Tribunal has also considered the signed employment contract dated 16 October 2015 which confirms that nominee, Madhu Pulami, will be employed for a period of at least 2 years from grant of the visa and does not include an express exclusion of the possibility of extending the period of employment. Accordingly, the requirement in r.5.19(4)(d) of the Regulations is met.

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

18. 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.

19. There is no Australian citizen or permanent resident employed in a similar position in the business. The Tribunal has had regard to the nominee’s PAYG statement and current employment contract, which indicates that the nominee’s base salary is $52,166.40 plus per annum plus superannuation. It was submitted that the salary provided to the nominee is consistent with a person performing equivalent work in Dubbo. The Tribunal has also had regard to the salary documents provided, including Job Outlook data and advertisements for Sous Chefs and Chefs in rural New South Wales indicating salaries for persons performing equivalent work ranges from $50,000 to $56,000 per annum. On the evidence before it, the Tribunal is satisfied that the conditions of employment will be no less favourable than those that would be provided to an Australian citizen or permanent resident performing equivalent work in the same work place at the same location. Accordingly, the requirements of r.5.19(4)(e) of the Regulations are met.

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

20. 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) of the Regulations.

21. There is no evidence before the Tribunal to suggest that there is any adverse information known about the applicant. Accordingly, the requirements of r.5.19(4)(f) of the Regulations are met.

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

22. 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.

23. Dahab Cafe submits that it has complied at all times with immigration laws and workplace relation laws of the state of New South Wales and the Commonwealth. Furthermore, there is also no evidence before the Tribunal to suggest that the applicant does not have a satisfactory record of compliance with workplace relations laws in Australia. Accordingly, the requirements of r.5.19(4)(g) of the Regulations are met.

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

24. Regulation 5.19(4)(h) contains a number of alternative requirements.  These are set out in detail in the Attachment to this decision and can be briefly summarised as requiring either:

    ·the tasks to be performed in the position will be performed in Australia and correspond to those of an occupation specified by the Minister and certain specified training benchmarks will be 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 at ANZSCO Skill Level 1, 2 or 3, and a regional certifying body has advised the Minister about certain matters relating to the position.

25. The nominated position of Chef is located at Dahab Cafe’s premises in Dubbo NSW 2830.  Accordingly, the Tribunal is satisfied that the position and business is located in regional Australia.

26. In relation to the other matters in r.5.19(4)(h)(ii) of the Regulations, the Tribunal has carefully considered the evidence of Mr Khattab at the hearing as supported by extensive documentation not available to the Department including, amongst others, financial statements and BAS indicating that revenue has been growing consistently at 30% per annum and staff numbers have now grown to now 9 employees, including 2 Cooks (full-time cook Bikash Ranabhat and, when required, Mr Khattab himself) as well as new apprentice cook (Layela Nicholson) and the nominated occupation of Chef. The Tribunal also notes the support from many residents in Dubbo, travellers (many of whom are household names in Australia) who have passed through Dubbo and been delighted with their discovery of an award winning cafe the quality of Dahab in the bush, many local businesses and, in particular, the CEO of Regional Development Australia Orana (the organisation which signed the Form 1404 lodged with the Department).

27. Having considered all of the evidence before it, the Tribunal is satisfied that there is a genuine need for the paid position of Chef that cannot be filled by an Australian citizen or an Australian permanent resident who is living in the same local area.

28. The Tribunal is also satisfied that the tasks of the position involve planning and organising the preparation and cooking of food in a dining establishment, developing menus to suit the establishment’s unique high quality food offering to customers, demonstrating techniques and advising on cooking procedures, ordering food supplies, monitoring of food quality, supervising as well as selecting and training staff, ensuring compliance with relevant regulations.  The Tribunal is satisfied that the tasks of the position correspond to the occupation of Chef ANZSCO 351311, a Skill Level 2 occupation.

29. On the basis of the Form 1404 Regional Sponsored Migration Scheme – Regional Certifying Body advise lodged with the Department, the Tribunal is also satisfied that a Regional Certifying Body located in the same State or Territory 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) of the Regulations. The Tribunal also notes that in relation to the Department’s refusal of the nomination the CEO of Regional Development Australia Orana based in Dubbo has provided a detailed and impassioned letter justifying why, in her opinion, she believes the nomination has been rejected for reasons that are seriously questionable. In this regard, it is clear to the Tribunal that the delegate did not have the benefit of the extensive documentation provided by Mr Khattab and representative Ms Donnelly,

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

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

    DECISION

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

    Katie Malyon

    
    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

    (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;

    (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).

    
    oOOo