1505743 (Migration)

1505743 (Migration) [2015] AATA 3915 (22 December 2015)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Heathstar Pty Ltd
CASE NUMBER:  1505743
DIBP REFERENCE(S):  BCC2014/3322611
MEMBER:Bruce Henry
DATE:22 December 2015
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Statement made on 22 December 2015 at 1:45pm
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration on 11 April 2015 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).
The applicant applied for approval on 1 November 2014 for the nomination of an Executive Chef, whose duties were said to equate to those of a Head Chef (ANZSCO 3322-01).
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).
In this case, the applicant has applied for approval of a nomination, seeking to satisfy the criteria in Direct Entry Nomination stream.
The delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19(4)(a) of the Regulations because he was not satisfied that there is a genuine need for the applicant to nominate a paid employee to work in the nominated position under its direct control.
Ms Lindy Yuan appeared before the Tribunal on behalf of the applicant on 13 October 2015 to give evidence and present arguments.
The applicant was represented in relation to the review by its registered migration agent.
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
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 application is compliant: r.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. As noted above, the delegate found that the second of these requirements was not met.
The applicant provided to the Tribunal a copy of the decision record of the delegate in which he said (errors in original):
A.     On 1 November 2014, the business-nominator, Heathstar Pty Ltd, lodged an Employer Sponsored Nomination (EN 186) under the direct entry stream for the position of Executive Chef (ANZSCO: 351311). The business-nominator is a Chinese cuisine restaurant in Queensland which has been operating since 2002.
B.     The organisational structure shows that the nominator already employs 2-Restaurant Managers, 4-Chefs, 4-Cooks, 2-Trainee Cooks/Kitchen Hands and 3-Kitchen Hands. There are also 2-Cashiers, 5-Waiters/Waitresses and 6-8 casual Waiters/Waitresses.
C.     The business-nominator submitted that it is, 'facing staff shortage issues in restaurant manager and someone who can manage the kitchen and be in charge of the overall produce of the restaurant." The overall-in-charge of the restaurant produce are shared responsibilities of the 2-directors who double as the Head Chefs. [sic]
D.     The business-nominator submitted the job description of the nominee which is assessed to be plain combination of the functions of a Chef and a Restaurant Manager.
E.     The nominee is being offered a total annual remuneration package of $202,575 per annum (inclusive of superannuation). The nominated salary will be approximately 35% of the total wage that was paid in the financial year 2014, just for the one proposed employee. In comparison, the online database revealed that the 2-Chefs sponsored by the business-nominator back in 2012 were paid @ $50,000/year each. Further, the 2-sponsored Restaurant Managers are being paid an average of $57,500 each per year.
F.     Based on the above assessments, I am not satisfied that there is a genuine need for another Chef to act as Head Chef. I have no detailed and confirmed information how there is a problem with the 2-Restaurant Managers and the 4-Chefs, for the business to claim 'facing staff shortage' . The 2-Restaurant Managers are business-sponsored staffs and have long term contracts with the business. The 4-Chefs are more than sufficient to the business' needs given that there are 6-Cooks to assist in the kitchen.
G.     Additionally, I am not satisfied that the nominated salary is an accurate reflection of the salary likely to be paid for the nominated position: It raises questions why such a significant investment is being made relative to the current organisational structure, as well as the salary history of the business.
H.     From the foregoing, I am not satisfied that there is a genuine need for Heathstar Pty Ltd to nominate a paid employee to work in the nominated position under its direct control. I find that the business-nominator, Heathstar Pty Ltd, failed to meet the criteria at subregulation 5.19(4)(a).
During the course of the review the representative made written submissions to the Tribunal dated stating:
Organisation Structure & Staff Shortage — Finding A, B, C, F
Finding A simply stated the fact that the company has applied to nominate an Executive Chef under ENS direct entry, and the restaurant has operated since 2002.
On Armando's Finding B, he mentioned the restaurant already employs 4 Chefs and 4 Cooks; on Finding C he further distorted the fact and said "The overall-in-charge of restaurant produce are shared responsibilities of the 2 directors who double as the Head Chef" !!!
I would like to question from where on earth he got the above information and base on what documents we submitted he came to the conclusion of Lindy & Ricky were the Head Chefs?!
On the Organisation Chart we submitted with the Nomination on 01 November 2014, we clearly marked 2 out of the 4 Chefs were Part Time, 2 out of the 4 Cooks are Part Time. The company has two directors — Lindy & Ricky who are managing the restaurant's overall operation, neither of them work in the kitchen!
I would like to say Top One Chinese Restaurant is the biggest Chinese restaurant on the Gold Coast. It is not a small mum & dad restaurant where one of them is chef and the other one look after the front. In fact either Ricky or Lindy has never worked in the Kitchen before and they don't know cooking at all! I think everyone one who are regular customers of the restaurant know that. They are not even husband & wife, they are simply business partners. The case officer then came to a conclusion in his Finding F saying he think the restaurant has enough Chefs and Cooks and there is no need for another Head Chef!
For better understanding of the business, I suggest the review office to have a look at their website I have also enclosed a link to their menu and a video for their 10 years anniversary event. …
Executive Chef's Responsibilities and his remuneration package — Finding D, E, G, H, I
On Mr. Mojica's Finding D he further said the Executive Chef's is a plain combination of the functions of a Chef and a Restaurant Manager which again shows the case officer does not have the basic understanding of restaurant operation and didn't read the material we submitted. An Executive Chef is someone who is responsible for the entire kitchen, anything & everything to do with the kitchen, efficiency, food production, quality and presentation. He works together with the floor manager to ensure fluent operation of the restaurant. He might occasionally come out from the kitchen to greet the customers and get some feedbacks about the food however he will never serve client at the floor like a floor manager.
On the organisation structure we submitted, there are two full time restaurant managers Ben & Frankie, they serve as floor managers whose responsibilities are managing the operation of the floor, more customer service orientated.
An Executive Chef is at the top of the hierarchy in a traditional fine-dining restaurant, as this person is the soul of the kitchen and represents the reputation and food standard of a restaurant. Therefore an Executive Chef earns many more times than a normal Chef or Cook. Same as a company Executive Officer, who earns top dollars and big percentage of the company's overall payroll expenses.
Therefore in Mr. Mojica's Finding E & G, he concluded paying for an Executive Chef an annual package of $202,575 was unrealistic simply based on his own narrow understanding of a restaurant operation and the historical information.
His conclusions at H & I are full of bias and have no ground. We object to the refusal decision that Mr. Armando Mojica made and request a fresh consideration on all documents we submitted to the department and subsequent documents we are submitting to the Review Tribunal.
It is clear from documents on the departmental file that the application for approval was made on the approved form 1395 (Internet) and was accompanied by the fee prescribed in r.5.37.
The Tribunal is satisfied on the basis of the documents provided by the applicant that the restaurant currently employs 10 chefs and cooks in the kitchen, including two trainees. The Tribunal notes that the restaurant employs two restaurant managers, but accepts the evidence of Ms Yuan at the hearing that the nominated position is for an executive chef to oversee the kitchen operations at the restaurant to enable her and her business partners to concentrate on the development and marketing of the business.
The Tribunal is also satisfied based on the information provided in the application, job description, employment contract and other documents on the departmental file that the application identifies a need for the nominator to employ a paid employee to work in the position under the nominator’s direct control.
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)
Regulation 5.19(4)(b) requires that applicant is actively, lawfully and directly operating a business in Australia.
Documents on the Department’s file and as provided to the Tribunal demonstrate that the applicant is registered with the relevant authorities, and retains an active Australian Business Number (ABN) status and ongoing registration for Goods and Services Tax (GST).
Documents before the Tribunal, such as profit and loss statements and other documents, confirm the applicant’s ongoing business activity and the Tribunal is satisfied that the applicant is actively and lawfully operating a business in Australia and finds that the requirements in r.5.19(4)(b) are met.
Position is not labour-hire: r.5.19(4)(c)
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.
There is no evidence that the nominator is involved in labour hire activities, and the Tribunal is satisfied that the requirement in r.5.19(4)(c) does not apply.
Term of employment of the visa holder: r.5.19(4)(d)
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. A copy of the employment agreement for the nominee appears on the departmental file and the Tribunal is satisfied that it provides for full time employment for a period of at least 2 years and that an extension beyond 2 years is not expressly excluded.
Accordingly, the requirement in r.5.19(4)(d) is met.
No less favourable terms and condition of employment: r.5.19(4)(e)
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.
The applicant acknowledged in the documents accompanying the application that there were no Australian citizens or permanent residents performing equivalent work in the same workplace at the same location. The evidence establishes that the business employs a number of other Chefs and Cooks, but the nominated position is for an Executive Chef with additional supervisory responsibilities in the kitchen.
The Tribunal must therefore consider what would be provided to such an employee. As noted above, the departmental file contains copies of job description and employment contract for the position, which indicate that the salary to be paid is $185,000, with the conditions of employment governed by the National Employment Standards 2010 and the Hospitality Industry Award.
On the basis of this material the Tribunal is satisfied that the terms and conditions of employment applicable to the position will be no less favourable than the terms and conditions that would be provided to an Australian citizen or an Australian permanent resident for performing equivalent work in the same workplace at the same location.
Accordingly, the Tribunal finds that the requirements of r.5.19(4)(e) are met.
No adverse information known to Immigration: r.5.19(4)(f)
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).
There is no evidence before the Tribunal that any adverse information (as defined in r.2.57(3)) is known to the Department about the nominator or a person ‘associated with’ the nominator, and the requirements of r.5.19(4)(f) are therefore met.
Satisfactory compliance with workplace relations laws: r.5.19(4)(g)
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.
There being no evidence to the contrary, the Tribunal is satisfied that the requirements of r.5.19(4)(g) are met.
Tasks of the position genuine need for the position and training benchmarks r.5.19(4)(h)
Regulation 5.19(4)(h) contains a number of alternative requirements. These are set out in detail in the attachment to the decision. As far as is relevant to this application they require 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 (see legislative instrument IMMI 15/092), and certain specified training benchmarks will be met.
The Tribunal is satisfied that the nominated position is for an Executive Chef, and that the nomination identifies the ANZSCO occupation Chef (ANZSCO 3513-11). The Tribunal is satisfied that the application itself and the job description and employment contract provided with the application establish that the tasks to be performed in the position will be performed in Australia and correspond to those of a Chef, which is an occupation specified by the Minister in the relevant instrument, albeit with additional supervisory responsibilities.
The relevant training benchmarks are found in IMMI 13/130[1]:
[1] F2013L01236, Specification of Training Benchmarks and Training Requirements (Paragraphs 2.59(d), 2.68(e), subregulations 2.87B(2) and 2.87B(3) and sub-sub-subparagraph 5.19(4)(h)(i)(B)(I)), 28 June 2013, commenced 1 July 2013
B) Recent expenditure, by the business, to the equivalent of at least 1% of the payroll of the business, in the provision of training to employees of the business.
Expenditure that can count towards this benchmark includes:
·   paying for a formal course of study for the business’s employees who are Australian citizens and Australian permanent residents or for TAFE or University students, as part of the organisational training strategy
·   funding a scholarship in a formal course of study approved under the Australian Qualifications Framework for the business’s employees who are Australian citizens and Australian permanent residents or, for TAFE or University students, as part of the organisational training strategy
·   employment of apprentices, trainees or recent graduates on an ongoing basis in numbers proportionate to the size of the business
·   employment of a person who trains the business’s Australian employees who are Australian citizens and Australian permanent residents as a key part of their job
·   evidence of payment of external providers to deliver training for Australian employees
·   on-the-job training that is structured with a timeframe and clearly identified increase in the skills at each stage, and demonstrating:
·the learning outcomes of the employee at each stage;
·how the progress of the employee will be monitored and assessed;
·how the program will provide additional and enhanced skills;
·the use of qualified trainers to develop the program and set assessments; and
·the number of people participating and their skill/occupation
Expenditure that cannot count towards this benchmark includes training that is:
·delivered on-the-job, other than on the job training which meets the requirements outlined above under the heading ‘expenditure that can count towards this benchmark’
·confined to only one or a few aspects of the businesses broader operations, unless the training is in the primary business activity
·only undertaken by persons who are not Australian citizens or permanent residents
·only undertaken by persons who are principals in the business or their family members
·only relating to a very low skill level having regard to the characteristic and size of the business.
Documents produced to the Tribunal by the applicant included the 2014 and 2015 PAYG payment summary statements for the business which shows wages expenditure of $589675 and $521457 respectively, copies of receipts for the provision of training totalling $4940 and $7150 during those years, and evidence of the training program and materials used by the providers.
After the hearing the applicant also provided to the Tribunal documents, including evidence of citizenship or residence of the employees who attended the relevant training, that the training was provided to Australian citizen or permanent resident employees of the business.
The Tribunal accepts that these documents show recent expenditure by the applicant in excess of 1% of payroll on training to external providers to deliver training for its Australian employees, and that the training provided complies with training benchmark B in IMMI 13/130.
Accordingly, the Tribunal is satisfied that the requirements of r.5.19(4)(h) are met.
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 affirms the decision under review to refuse the nomination.
Bruce Henry
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).

[2015] AATA 3915

22 December 2015

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Statutory Construction

Jurisdiction

Natural Justice

Procedural Fairness