1411472 (Migration)

[2015] AATA 3046

1411472 (Migration) [2015] AATA 3046 (8 July 2015)

DECISION RECORD

DIVISION:  Migration & Refugee Division

APPLICANT:  QUICK N FRESH PTY LTD

MRT CASE NUMBER:  1411472

DIBP REFERENCE(S):  BCC2014/664546

TRIBUNAL MEMBER:  Mary-Ann Cooper

DATE:8 July 2015

PLACE OF DECISION:  Melbourne

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

Statement made on 08 July 2015 at 12:33pm

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 11 June 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 7 March 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) 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 she was not satisfied that the business, which is a small shop in a food court and which, according to departmental records, already employed two cooks on subclass 457 visas, needed an additional cook.

5. On 12 January 2015 the applicant’s director, and authorised recipient, wrote to the Tribunal advising that he would be overseas for 2 months, returning in mid-March 2015 and provided an email address on which he could be contacted. On 19 January 2015 the Tribunal responded to him, at the email address he provided, advising that it was not prepared to wait that long to process the application and sought that he provide the contact details of his migration agent (if one was appointed) or another director of the business. No response to this correspondence was received.

6. On 25 February 2015 the Tribunal wrote to the applicant pursuant to s.359(2) of the Act, inviting it to provide information in writing that demonstrated the applicant met the requirements of r.5.19(4).

7. The invitation was sent to the applicant’s nominated authorised recipient (its director) at the last email address provided in connection with the review and advised that, if the information was not provided in writing by 11 March 2015, the Tribunal may make a decision on the review without taking further steps to obtain the information and the review applicant would lose any entitlement it might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments. On 11 March 2015 the applicant’s director advised that he was in India for his marriage ceremony and would be back in 2 weeks. He sought that an extension of time be provided until 27 March for the provision of the information. On the basis that a request for an extension of time does not constitute a response for the purposes of s.359(2) of the Act (Singh v MIAC [2014] FCCA 1403) the Tribunal advised him that consequently ss359C(1) and s360(2)(c) were activated and the applicant had lost its right to a hearing.

8. The review applicant has not provided the information within the prescribed period and no extension has been sought or granted. In these circumstances, s.359C applies and pursuant to s.360(3) the review applicant is not entitled to appear before the Tribunal. 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 him or her to appear: Hasran v MIAC [2010] FCAFC 40.

9. In the circumstances the Tribunal advised the applicant’s director that it would not proceed to finalise its review until 28 March 2015 and invited him to provide any further information in support of the application before that date. On 27 March 2015 further materials were provided as follows:

   ·     Submission from the nominee’s director stating that the applicant runs an Indian food outlet in Geelong that operates from mid-morning for lunch and dinner and, due to increased business, needed the services of a third cook. He claimed that the demand for Indian food was rising in Geelong but that it was ‘next to impossible’ to find qualified cook for this cuisine. He said the business required two distinct methods of cooking, one of which was Tandoor and that, as the tandoor oven needed to remain lit for long periods to retain high temperature, a fulltime person was needed to maintain temperature control. He claimed that the cooks work 38 hour weeks and weekends and also cater for private functions. The submission stated conversely that the application is for a second cook who is in charge of cooking the sauces and gravies as well as cooking the main dishes.

   ·     Organisation chart demonstrating two fulltime and one part-time cook positions, one casual waitress, a part-time kitchen hand and a casual ‘F&B’ attendant.

   ·     Payslips for the nominee showing an annual salary of $39,803.40 at 27/12/2014 and an hourly rate of $21.87.

   ·     Payroll activity summaries for 1/4/14 – 30/6/14, 1/7/14 – 30/9/14 and 1/10/14 – 30/12/14.

   ·     Staff roster for 5/1/2015 to 22/3/2015 indicating that the nominee works fulltime as a Tandoori cook and that the director works occasionally as a Tandoori cook.

   ·     BAS statements for 1 October 2014 to December 2014 and 1 July to 30 Sep 2014.

10. The Tribunal was unable to make a favourable decision on the material before it and provided the applicant with a further opportunity to provide specific information relating to its financial position, the contract of employment with the nominee and evidence supporting its claims of increased business by 22 May 2015. Further documentation was provided by that date. It included:

    ·     Profit and Loss statement for the business for 2013/14.

    ·     Letter from its accountants providing figures for its gross income and wages to March 2015 stating that they had increased from the full year figures for 2013/14. The correspondence also stated that the position held by the nominee was integral to the operation of the business and that the company has the financial capacity to sustain it.

    ·     Docket from the restaurant which the applicant claimed to show that the business served 1106 customers in the week of 17 May 2015.

    ·     The company tax return for the year ended 30 June 2014 indicating a loss of $72,828.

    ·     Employment contact for the nominee dated 21 May 2015

    ·     Payroll Activity summary for 1 July 2013 to 30 June 2014.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. 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.

    Identification of need for a paid employee: r.5.19(4)(a) and Genuine need to employ a paid employee in the position r.5.19(4)(h)(ii).

13. 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 its direct control.

14. 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:

    ·     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 the relevant instrument, and certain specified training benchmarks will be met (r.5.19(4)(h)(i)); 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 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 (r.5.19(4)(h)(ii)).

15. The relevant provision in respect of the applicant, which is based in regional Australia, is r.5.19(4)(h)(ii).

16. For the reasons set out below, the Tribunal is not satisfied that the applicant has identified a need for it to employ a paid employee to work in the position under its direct control as set out in r.5.19(4)(a)(ii) nor is the Tribunal satisfied that there is a genuine need for the nominator to employ a paid employee to work in the position under the nominator’s direct control as required by r.5.19(4)(h)(ii)(B).

17. The Department’s file demonstrates that the application for approval was made on the approved form. No fee is prescribed for the application. It indicates that the position is for a Cook at the applicant’s Indian food outlet at Westfield Shopping centre Geelong, Victoria with an annual salary/guaranteed earnings of $50,000 per year.

18. Material provided, including an organisation chart, demonstrated that the applicant operates the outlet and the director works there and directly controls its staff.

19. In relation to the requirements of r.5.19(4)(a)(ii), the Tribunal notes that Departmental policy (PAM3) states that the assessment of “the need for a paid employee” involves two steps. Firstly, establishing the need for an employee, in terms of a genuine vacancy for the nominated position and, secondly, ascertaining whether the relationship between the nominator and the nominee is that of employer and employee.

20. The Tribunal notes that whilst PAM3 may provide guidance, it is not bound to follow it[1] and the Tribunal has been careful not to raise the policy to the level of legislative requirement. Nevertheless, the Tribunal considers that consideration as to whether there is a genuine vacancy for the nominated position is a reasonable starting point when assessing the applicant’s ‘need’ for a ‘Cook’ for the purposes of paragraph 5.19(4)(a).

    [1]     See Brennan, J. in Re Drake (No. 2) (1978-1980) 2 ALD 634

21. In undertaking this assessment, the Tribunal is aware that the concept of onus of proof is not appropriate to administrative inquiries and decision-making. On the other hand, the Courts have held that an applicant is required to supply the relevant facts of the individual case, in as much detail as is necessary, to enable a decision maker to establish the relevant facts. As a result, a decision maker is not required to make the applicant’s case for it. Nor is the Tribunal required to accept uncritically any and all the claims an applicant puts forward.[2]

    [2]     See MIEA v Guo & Anor (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169‑70

22. The applicant included with its nomination application copies of the employment contract it signed with the nominee on 30 January 2014 to employ him in the position of a fulltime ‘Cook’ in its business. It also provided documentation related to its search for a person for the position, and a certification from the Regional Certifying Body in geelong (dated 14 February 2014) confirming, amongst other things, that there was a need for a paid employee in the nominated position.

23. As recorded in the delegate’s decision, a copy of which was provided with the review application, the delegate noted that the applicant operated a small shop in a shopping centre and it shared chairs and tables with other businesses in the food court. The hours of opening were (and as confirmed by the applicant’s submissions to the Tribunal) 9-5.30 Monday to Thursday, 9 am - 9 pm on Friday, 9 am - 5 pm on Saturday and 10 am - 5 pm on Sunday. The delegate’s decision further records that the business already employed two fulltime cooks on 457 visas and, while the business operates 7 days a week, did not accept that three cooks were required to maintain the flow of food. The delegate was not satisfied that there was a need for a third cook and determined that the applicant did not meet r.5.19(4)(a)(ii).

24. The evidence before the Tribunal in this regard is confusing. The organisation chart provided to the Tribunal indicates that there are two fulltime cooks employed in the business and that the nominee works part-time as a cook however the 2015 staff roster indicates, and the applicant claims, that he works fulltime and has done so since March 2014.

25. In addition the Payroll Activity summaries for 2012/13 and 2013/14 provided by the applicant indicate that one of the other cooks listed as a fulltime employee ( a 457 visa holder),  Sonia Kapoor, earned $15,408 in 2012/13 and $6072 in 2013/14 which appears to demonstrate that she did not work fulltime in either period. In the 2013/14 period the nominee is stated to have earned $20,663.70, indicating that he also worked part-time for this period (although this is not inconsistent with the claim that he worked full-time from March 2014). Only one of the salaries, on the payroll activity summary for 2013/14, indicates that an employee cook worked fulltime, and that is the position of the other listed 457 visa holder. On the basis of this information the Tribunal infers that the business has maintained its operations with the services of only one fulltime employee cook in the period from 1 July 2013 to 30 June 2014. Even if it accepts the applicant’s claims that business is increasing, this might demonstrate a need for a second fulltime cook but nothing on the material currently before the Tribunal persuades it that a third fulltime cook is necessary.

26. In this context, acknoweldging the claim that a third cook is needed specifically for the Tandoori oven, the Tribunal notes that, according to the staff roster provided for January to March 2015, the applicant’s director also works at the tandoor on occasion. The menu provided to the Department further indicates that production from the Tandoor is limited to Indian breads such as naan and roti and pappadums. While the director’s submissions also stated that chicken tikka is produced, no current menu was provided which supports this claim and the Tribunal therefore affords the claim little weight. Furthermore, in contradiction to the claims made regarding the need for a fulltime tandoor cook, the submission provided to the Tribunal stated in conclusion “the application is for a second cook who is in charge of cooking the sauces and gravies as well as cooking the main dishes. This is a genuine requirement for the business to develop and flourish.”  The Tribunal considers that, at best, the submission indicates confusion (or a lack of care in the submissions provided) about the staff required by the applicant’s business. Because of the applicant’s failure to provide the information requested in the Tribunal’s s.359(2) invitation it lost its right to a hearing and consequently the Tribunal has been unable to question it regarding the apparent contradictions and confusion generated by the material and submissions it has subsequently provided.

27. Therefore, on the evidence available, given the apparently limited tandoori cooking undertaken at the venue, the nature of the applicant’s business as a relatively small food outlet in a shopping centre with shared seating and limited operating hours, the director’s capacity and engagement as a tandoor cook, and the contradiction in the applicant’s submission as to what type of cook it requires, the Tribunal is not persuaded that the applicant needs a third  fulltime cook. Although the applicant’s submissions claimed that the cooks also cater for private functions, no evidence of in support of this claim as provided and consequently the Tribunal gives it very little weight. Therefore, again on the basis that the food is produced in a relatively small operation in a shopping centre food court, that the payroll summaries provided indicate that only one fulltime cook was engaged in the period 2013/14, or, if the Tribunal is wrong on drawing this inference, that the cooking has previously been satisfactorily undertaken by two fulltime cooks (on 457 visas) with the nominee working part-time, the Tribunal is not satisfied that there is a genuine vacancy or a genuine need for another cook.

28. The Tribunal has had regard to the certification by the certifying regional body in February 2014, but has given this limited weight in light of the above evidence and that fact that the certification is now 15 months old.

29. Overall, based on the above information, some of which appears contradictory, the Tribunal is not satisfied  that the applicant has identified a need for it to employ another paid employee to work in the position of cook or that there is a genuine need for it to employ another paid cook to work at its food outlet. 

30. Accordingly, the Tribunal is not satisfied that the requirements in r.5.19(4)(a)(ii) and r.5.19(4)(h)(ii)(B) are met.

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

31. 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. 

32. As noted above, the applicant has provided its “Offer of Employment and Contract” with the nominee, the latest being dated 25 May 2015. That contract provides for ongoing employment for a minimum of 2 years from the time permanent residency is granted, with an option to extend. The contract does not expressly state that it is for fulltime employment however it does state that the usual hours of work are 38 hours per week, which the Tribunal accepts is fulltime employment. The Tribunal is therefore satisfied that the terms and conditions of employment provide for at least 2 years employment and do not expressly exclude extension of that employment.

33. In considering whether the employee will be employed on a full-time basis in the position for at least 2 years as required by r.5.19(4)(d), the Tribunal also needs to be satisfied that the nominating business has the capacity to sustain the employment for at least two years. As noted above, the Tribunal sought additional material from the applicant, in particular financial information. It received a letter from its accountant in which he stated that he believed the business had the financial capacity to sustain the nominated position. He provided a similar statement to the Department on 28 May 2014. These statements are not supported by the financial information provided. The Profit & Loss statement provided to the Department for 2012/2013 indicated a loss of $17,304. According to the company tax return and the profit & loss statement provided to the Tribunal for the financial year 2013/14, the business operated at an increased loss of around $72,828. The accountant provided a figure indicating that to 31 March 2015 the sales figures had increased however the Tribunal gives this limited weight in the context of the other official documents, which demonstrate increasing losses. The Tribunal has had regard to the BAS provided for the July to December 2014 period and notes that, when wages, capital expenditure and tax are taken into account, they do not indicate an operating profit. In this context the Tribunal also notes that the nominee’s annual salary as a fulltime employee, as indicated on his payslips to 27 December 2014 provided to the Tribunal, shows it to be $39,803.40, which is significantly less than the guaranteed annual earnings claimed in the nomination application. On the financial figures provided to the Tribunal it is not satisfied that the business has the capacity to absorb this additional cost imposition. Therefore, based on all the above material, the Tribunal is not persuaded that the applicant has the financial capacity to maintain the nominated position as fulltime for two years.

1. It follows that the requirements in r.5.19(4)(d) are not met.

2. Accordingly, the Tribunal is not satisfied that the requirements in r.5.19(4)(a)(ii), r.5.19(4)(h)(ii)(B) and r.5.19(4)(d) are met. Therefore the application must be refused: r.5.19(5).

   CONCLUSION

3. 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

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

   Mary-Ann Cooper
   Member

   ATTACHMENT  -  EXTRACTS FROM THE MIGRATION REGULATIONS 1994

   5.19    Approval of nominated positions (employee 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).