A S Randhawa Holdings Pty Ltd as the trustee for A S Randhawa Investments Trust (Migration)
[2021] AATA 2311
•23 June 2021
A S Randhawa Holdings Pty Ltd as the trustee for A S Randhawa Investments Trust (Migration) [2021] AATA 2311 (23 June 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT: A S Randhawa Holdings Pty Ltd as the trustee for A S Randhawa Investments Trust
CASE NUMBER: 1812372
HOME AFFAIRS REFERENCE(S): BCC2016/3002867
MEMBER:De-Anne Kelly
DATE:23 June 2021
PLACE OF DECISION: Brisbane
DECISION:The Tribunal affirms the decision under review to refuse the nomination.
Statement made on 23 June 2021 at 12:04pm
CATCHWORDS
MIGRATION – application for approval of nomination of position – direct entry nomination stream – tasks of position – six associated position nominations and visa applications – six restaurants owned by two associated entities – position cannot be filled by Australian citizen or permanent resident living in same local area – local advertising for positions before and after decision to employ nominee – regional certifying body’s advice of known shortage of suitable local workers considered but not conclusive – staff turnover, COVID-19 restrictions and principal’s physical and mental health – consequences to business if nominations and applications refused – decision under review affirmedLEGISLATION
Migration Act 1958 (Cth), s 359AA
Migration Regulations 1994 (Cth), r 5.19(4)(h)(ii)(C), (D)CASES
Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27; [2009] HCA 41
Bharaj Construction Pty Ltd v MIBP [2016] FCCA 902STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW
This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 12 April 2018 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 9 September 2016. 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 stream (r.5.19(3)) and a Direct Entry nomination stream (r.5.19(4)). 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 the Direct Entry nomination stream.
The delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19(4)(h)(ii)(D) of the Regulations because the application did not demonstrate that the tasks of the nominated position correspond to the tasks of an occupation specified in the relevant instrument.
The applicant appeared before the Tribunal on 7 January 2021 to give evidence and present arguments. This was a dual hearing of both the employer nomination refusal reviews and the visa application refusal reviews for the following cases:
Employer nomination review Visa application review Nominee 1903700 1906067 Farheen Akhtar 1812372 1816511 Kajal 1832164 1836004 Manpreet Kaur 1832851 1835120 Lovepreet Kaur 1914270 1925075 Gurpreet Kaur 1906190 1909070 Jaspreet Kaur
The applicant was represented in relation to the review by its registered migration agent, Mr Benjamin Naday at the hearing and until 12 May 2021. Following authorisation by the applicant, Mr Troy Sanders became its representative as a registered migration agent from 13 May 2021.
For the following reasons, the Tribunal has decided to affirm the decision under review to refuse 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 applicant was represented by Mr Talwinder Randhawa the trustee and Mrs Nina Randhawa the General Manager.
The applicant operates two restaurants, Randhawa’s Indian Cuisine at Emerald Lakes, Carrara and Jimboomba. An associated entity operates Randhawa’s Indian Cuisine at Hope Island and Waterford and Coriander Thai Cuisine at Hope Island and Waterford.
Profit and loss statements and tax returns show the following profitable outcomes from 2017 to 2020 for the applicant:
Profit & Loss/ Tax Return 2020 2019 2018 2017 Sales 1,070,013 1,105,080 965,044 800,347 Super 37,699 48,571 32,858 18,723 Wages 421,681 513,530 350,030 199,389 Expenses 1,004,300 1,068,618 932,417 468,366 Profit & Loss 65,713 36,462 32,628 132,647
On 9 September 2016, the applicant A S Randhawa Holdings Pty Ltd as the trustee for A S Randhawa Investments Trust trading as Randhawa’s Indian Cuisine Emerald Lakes lodged a Regional Sponsored Migration Scheme employer nomination visa Subclass 187 in the Direct Entry stream for the position of Restaurant Manager on an annual salary of $54,250, located at the Boulevard, Carrara QLD 4211 in favour of Ms Kajal.
The Tribunal has collated, cross referenced and listed evidence comprising over 8,000 pages of documents across the six employer nomination application reviews in order to ensure all advertisements are carefully and fully considered.
Documents including the following were provided with the original application:
1)Extract from website Eat Now relating to the Emerald Lakes restaurant.
2)BAS 2014; 2015; 2016; 2017.
3)Extract from website showing menu.
4)Article from Gold Coast Bulletin dealing with skill shortages for chefs.
5)Employment agreement showing a commencement date of 1 July 2017 and signed by the employer representative on 1 July 2017.
6)Photos of the restaurant under construction and the completed interior.
7)Extract from Trip Advisor.
8)Letter from the migration agent dated 15 September 2017 dealing with market salary rate; profitability of the business and satisfactory record of compliance and supplementary letter dated 23 October 2017 dealing with similar matters.
9)Financial statements 2016; 2017.
10)Liquor and food licence.
11)Current and historical company extract dated 2016.
12)Letter to the Department advising inclusion of nominee’s newborn child.
13)ASIC registration dated 2009.
14)Acknowledgement of nomination application received dated 9 September 2016.
15)Letter from the employer dated 8 September 2016 regarding the quality of the restaurant; current staffing; need for two full-time managers to run the Emerald Lakes restaurant; no less favourable terms and conditions of employment and inability to fill the position locally where they state “we have and continue to offer employment opportunities to Australian citizens and permanent residents, however as with most other businesses in the hospitality industry we suffer from high staff turnover and unreliability. It has not been uncommon for staff to call us at 4 PM before a scheduled 5 PM start to advise that they are not coming in and terminating their employment with us”. The employer states that she is currently the manager for the Emerald Lakes restaurant but this is unsustainable and they require a restaurant manager who is punctual and can be trusted to run the busy restaurant at the earliest opportunity.
16)Employment agreement signed by both the applicant and nominee on 25 August 2016 with nominee paid $54,250 per annum and commencing on 10 November 2016.
17)Restaurant industry award 2010.
18)Lease for restaurant premises.
19)ABN look up.
20)Letter dated 23 November 2016 from the registered migration agent giving an overview of the restaurants and advising that attached is a statement from the business owner confirming the need for a paid employee and explaining why the nominated position cannot be filled locally along with a detailed organisation structure chart for the business. Notes that the business continues to offer employment for Australian employees and has trouble sourcing suitable individuals in the local area. It notes that the business regularly advertises and finds it difficult to locally source suitably qualified or experienced individuals. The business instructs that they have the same difficulty when it comes to hiring restaurant managers. Further, the business notes that they have a high staff turnover as do many other businesses in the hospitality sector, and thus they prefer to hire dedicated individuals from within the business as those persons will have been able to show that they are suitable for the positions having developed a thorough knowledge of the business systems and procedures.
21)Payroll report to 1 September 2016.
22)Regional certifying body approval including form 1404 dated 29 September 2016.
23)Online copy of employer nomination dated 9 September 2016.
24)Trust tax return 2014.
25)Discretionary trust deed.
Documents including the following were provided with the review application:
26)Notice of refusal of an employer nomination dated 12 April 2018 including notice of decision.
27)Letter from the employer dated 7 September 2020 giving an overview of their restaurants stating:
We have and continue to offer employment opportunities to Australian citizens and permanent residents, however as with most other businesses in the hospitality industry we suffer from high staff turnover and unreliability. It has not been uncommon for staff to call us at 4pm before a scheduled 5pm start to advise that they are not coming in and terminating their employment with us…
Further, as a fine-dining business, we require skilled individuals to take up our managerial roles as we require people with the right training and attitude to lead our restaurant teams. From our experience, not everyone can perform consistently in a demanding and busy hospitality environment, and when we find staff who are both capable and willing to undertake a leadership role in our business, we try to retain them for as long as possible.
Harry and I have regularly travelled to India to visit our elderly parents who live there (and we will be doing so once the COVID-19 pandemic eases). For example, there was one instance between February and July 2018 when I was in India as Harry’s father had a heart attack and a resurgence of his cancer which required someone to care for him. During this period I relied on the restaurant managers to ensure that the business ran smoothly whilst I tried to do the work I had to do
remotely. As such, we are regularly absent from the business and rely on our Restaurant Managers to act autonomously to successfully operate their respective restaurant. Even when we are in Australia, we are both busy managing the business and organising our busy family life and I do not attend the restaurants on a regular basis (and only if needed by the Restaurant Manager to discuss something). I act much like an operations manager would, arranging the overall management of the business whilst Harry only attends the restaurants to work in the kitchen during service and to oversee the preparation of the curries, gravies and sauces we use at each of our restaurants (through his role as our Executive Chef). Harry is constantly overworked due to the shortage of kitchen staff, and as a result has injured himself in the past – most recently he severely burnt himself in March as he was rushing to prepare food in the kitchen whilst trying to get out the door to pick up our kids from
school.
We have struggled consistently to find Australian employees to work in each of our restaurants as many Australians do not want to work in Indian or Thai restaurants, despite the effort we put in to make it a finer dining experience than many of our competitors and despite us offering annualised Award based wages to those people who wish to make a full-time commitment to the role. We have a number of roles constantly available in the business and have in the past regularly advertised for our cook and restaurant manager roles through various platforms but over the course of the last few years we have lost access to some of the advertising sites as we’ve lost passwords and emails, and we didn’t keep the old records as we didn’t think we had to. We have provided some advertisements recently undertaken for Restaurant Managers at our Waterford locations over the course of the last 12 months to demonstrate that we are still actively seeking applicants for Restaurant Manager positions in our organisation. We have attempted to hire Australian citizens and permanent residents to fill them, but we have had little to no success and largely applicants are overseas nationals looking for work.The hospitality industry on the Gold Coast and surrounding areas is also notorious for high turnover of staff and when we identify individuals who we feel can offer a lot to our business and who are willing to make a long-term commitment, Harry and I put our faith in them. As a fine-dining institution, we don’t look to hire any person who walks through our door either, as we require skilled individuals, as what sets us apart from our competition is our quality product and service. Unskilled individuals or those who are not looking to make a commitment damage this quality and therefore damage our reputation. We also do not hire just because of skill or ability, but also because of attitude and willingness to commit to the role.
The employer expressed their frustration with the department’s decisions stating it is a waste of time as business operators to have to pay the regional certifying body and go through all the effort we did to show we are doing everything genuinely then have the department dismissed their recommendation, especially when the regional certifying body in Queensland, being a local employer organisation, is a better understanding of the needs and demands of employers in the area.
28)Invitation to provide information from the Tribunal dated 26 August 2020 including “why the position cannot be filled by an Australian citizen or permanent resident living in the same local area… Local job advertisements for the nominated position were not successfully filled.”
29)Letter from the accountants dated 16 July 2020 attesting to financial viability.
30)Samples of work from the nominee.
31)Employment agreement signed by the applicant and nominee on 1 July 2019.
32)Letter dated 9 September 2020 from the registered migration agent and stating they have provided a selection of advertisements over the course of the last 12 months for the business for restaurant managers at their Waterford establishments. It canvassed concerns over the decision-making process of the delegate. It states that regional certifying bodies were more suitable to provide accurate and localised recommendations on relevant criteria for assessment rather than having the same assessed by a case officer with no localised knowledge of the area.
33)Tax return 2018 and 2019.
34)Photos of the interior and exterior of the restaurant.
35)Excerpts of the Restaurant Industry Award 2020.
36)Financial statements 2018 and 2019.
37)Movement records for the applicant representatives showing extensive travel from Australia.
38)PAYG payment summaries for the nominee.
39)Resignation letter from previous restaurant manager dated 25 January 2019.
40)Social media post wishing the retiring staff member well.
41)Job description dated 1 September 2020.
42)Profit and loss for 2020.
43)Social media extracts promoting the business.
44)Photo of the trustee Mr Talwinder Randhawa with burns to his arms from rushing to make gravies as he was running late to collect children from school and was understaffed.
45)Food licence.
46)BAS 2020, 2019, 2018.
47)Menu.
48)Employment agreement dated 1 September 2020 signed by the applicant and nominee.
49)Skills assessment for the nominee.
50)ABN lookup and ASIC company extract.
51)Advice from the RCB.
52)Infection control training certificate.
Documents including the following were received after the hearing:
53)Letter dated 4 January 2021 from a GP detailing Mr Randhawa’s health difficulties.
54)Letter from Currumbin hospital detailing similar health issues.
55)Letter dated 4 February 2021 “Post-Hearing submissions – Kajal”, from the registered migration agent covering documentation provided and addressing whether the position cannot be filled by an Australian citizen or an Australian permanent resident who was living in the same local area as that place.
56)Letter from the applicant dated 3 February 2021 “Further letter for Kajal” addressing financial circumstances and wages and whether the position cannot be filled by an Australian citizen or an Australian permanent resident who was living in the same local area as that place.
57)Letter from the applicant dated 7 September 2020 “Review of Nomination application for Kajal”.
58)Letter from the accountants dated 2 February 2021.
59)Tax return 2020.
60)Client integrated account.
61)PAYG payment summaries for all staff.
62)IAS August 2020 – for associated entity Randhawa’s Group.
63)IAS August 2020 – for nominating entity.
64)Salary increase letter dated 2 February 2021.
65)New provisions of restaurant industry award 2020.
66)Resignation letter from previous restaurant manager dated January 2019.
67)Payslips for retiring restaurant manager.
68)Social media post regarding retiring restaurant manager.
69)Advertisements on Seek dated 2015 for restaurant supervisor which is not the nominated position.
70)Payslips for Australian citizens who worked as restaurant supervisors.
71)Photographs of the interior and exterior of the Emerald Lakes restaurant at Carrara.
72)Skills assessment for the nominee dated October 2020.
73)Letter dated 25 February 2021 from the registered migration agent regarding the regional certifying body.
74)Email dated 23 February 2021 from the regional certifying body.
Adjournments, medical certificates
During the hearing the applicant requested brief adjournments which were granted.
The principal Mr Talwinder Randhawa provided a medical certificate dated 4 January 2021 which stated that he is suffering from “depression/excessive alcohol intake and went to hospitals 7 times including Currumbin Hospital (3 and ½ weeks duration) for the last 6 months”. At the commencement of the hearing, the Tribunal asked Mr Randhawa if he was well enough to attend the hearing and he acknowledged that he was able to attend. It was noted that he did not contribute to the proceedings but rather it was Mrs Randhawa that provided information and responses. She had previously written advising that she was best placed to answer operational questions regarding the restaurants.
Section 359AA of the Act
At the commencement of the hearing, the Tribunal explained that it may put information to the applicant, under s.359AA of the Migration Act 1958 (the Act), that would be the reason, or a part of the reason, for affirming the decision that is under review and that it would explain why this information was relevant to the decision and how it may be relied upon in reaching a decision. The Tribunal also advised that the applicant would be given an opportunity to respond to this information in one of three ways: they could request an adjournment and the hearing could be stopped for 15 or 20 minutes or whatever period of time they wished and they could seek advice from the registered migration agent; the applicant could make a written submission within 14 days or an extended period of time if it requested an extension; or they could respond in the hearing. If they responded in the hearing, it would not prevent them from making a written submission within 14 days or a longer period if they requested an extension of time.
Section 359AA provides as follows:
(a) The Tribunal may orally give to the applicant clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b) if the Tribunal does so—the Tribunal must:
(i)ensure, as far as is reasonably practicable, that the applicant understands why the information is relevant to the review, and the consequences of the information being relied on in affirming the decision that is under review; and
(ii)orally invite the applicant to comment on or respond to the information; and
(iii)advise the applicant that he or she may seek additional time to comment on or respond to the information; and
(iv)if the applicant seeks additional time to comment on or respond to the information—adjourn the review, if the Tribunal considers that the applicant reasonably needs additional time to comment on or respond to the information.
Tasks of the position, genuine need for the position and training requirements: 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 but can be briefly summarised as requiring either 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 in a legislative instrument; the occupation is applicable to the proposed employee in accordance with any specifications made in that instrument, and specified training requirements are 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 specified in the relevant legislative instrument, the occupation is applicable to the proposed employee in accordance with the specification of the occupation and that a regional certifying body has advised the Minister about certain matters relating to the position.
The applicant can choose to meet r.5.19(4)(h)(i) or r.5.19(4)(h)(ii) and has chosen to meet the latter.
The Tribunal needs to consider if the position cannot be filled by an Australian citizen or permanent resident who is living in the same local area.
The following documents are some of those material to a decision on this matter:
5) Employment agreement showing a commencement date of 1 July 2017 and signed by the employer representative on 1 July 2017.
16) Employment agreement signed by both the applicant and nominee on 25 August 2016 with nominee paid $54,250 per annum and commencing on 10 November 2016.
22) Regional certifying body approval including form 1404 dated 29 September 2016. There does not appear to be a summary of the actual reasons for the approval attached to the assessment, so the Tribunal is unclear on the reasoning behind the approval.
23) Online copy of employer nomination dated 9 September 2016.
31) Employment agreement signed by the applicant and nominee on 1 July 2019.
The Tribunal finds from the employment contracts signed by the employer that the intention to employ the nominee was made no later than 25 August 2016 as evidenced by the employment contract signed by both the applicant and nominee. It is further noted that the employer nomination was lodged on 9 September 2016 and the regional certifying body advice given on 29 September 2016.
The following table shows the chronology of the advertisements. The Tribunal has collated advertisements from across the six employer nominations to ensure that relevant material is given consideration:
Advertisements - Restaurant Manager No. Date Created Date expired Medium Location Candidates Rejected Restaurant 1) 17-Mar-17 1-May-17 Gumtree Logan, QLD No views 2) 1-May-17 4-May-17 Gumtree Gold Coast City ? ? 3) 7-Jan-20 ? Indeed Waterford 32 32 4) 10-Jan-20 9-Feb-20 Seek Brisbane, southern suburbs & Logan 28 5) 17-Jun-20 17-Jul-20 Indeed Waterford 28 27 6) 17-Jun-20 ? Seek Brisbane, southern suburbs & Logan ? ? Coriander Thai Cuisine 7) 11-Jan-21 11-Feb-21 Indeed Jimboomba QLD 10 0 Recruitment Summary
Mrs Randhawa’s letter of 3 February 2021 explains that they initially employed a restaurant manager for the Emerald Lakes, Carrara restaurant who left and later in December 2015 and February 2016 she advertised on Seek for restaurant supervisors and hired some Australian citizens for those positions, providing their payslips as evidence however found these were not the right roles for the position and they needed a Restaurant Manager who had “higher skills”. The Tribunal notes there were advertisements on Seek for the position of Restaurant Supervisor which falls under ANZSCO Retail Supervisor 621511, a skill level 4 position which cannot be nominated for the Regional Sponsored Migration Scheme employer nomination visa subclass since only skill level 1, 2 and 3 positions are eligible. As such these advertisements are not germane to the nominated position of Restaurant Manager which the applicant acknowledges requires “higher skills”.
In the hearing, the Tribunal put to the applicant under s.359AA of the Act that there appeared to be no advertisements (other advertisements were provided after the hearing but they did not pre-date the engagement of the nominee) that pre-dated the decision to employ the nominee on 25 August 2016. A further concern raised was that there was no recruitment summary which showed how many people may have applied for the position; how many resumes were received; whether the employer reviewed the resumes, shortlisted any candidates or interviewed candidates by phone or in person. The Tribunal stated that there was no definitive way it could say that the position of restaurant manager at Emerald Lakes, Carrara cannot be filled by an Australian citizen or Australian permanent resident because there was apparently no advertisement placed and no information on the recruitment process.
The applicant stated that she would prefer to make a written response to the Tribunal’s concerns.
The Tribunal also addressed in the hearing the written submissions made stating that the regional certifying body had assessed and approved all these applications as meeting the requirement in r.5.19(4)(h)(ii)(C) and that they were better qualified to make such an assessment and the decision maker should accept the RCB advice. The Tribunal advised that it considered the legislation clearly made this a two-step process whereby the RCB advice was considered but it was not binding on the decision maker.
The Tribunal has considered the positive assessment the regional certifying body gave and that it advised that the application satisfied r.5.19(4)(h)(ii)(B) and (C). It is not clear what evidence the RCB was relying upon for their assessment. However, it is clear from the construct of r.5.19(4)(h)(ii)(C) that the advice of the regional certifying body is not conclusive evidence and the decision maker must make a finding on this matter independent of the regional certifying body advice.
The Courts have found that to be the case in Bharaj Construction Pty Ltd v MIBP [2016] FCCA 902 at [81] where it considered a similar requirement in the pre-July 2012 version of r.5.19(4), and commented in obiter that the use of the word ‘advice’ undoubtedly puts beyond doubt the construction of r.5.19(4), i.e. the advice is to be considered by the Minister (or Tribunal) in determining whether those requirements are satisfied but it is not determinative.[1] In Bharaj (No 3) the Court confirmed that the judgment in Bharaj 2016 was correct in holding that there was nothing in the language, text or structure of r.5.19(4) to support the view that the advice given by a regional certifying body is conclusive evidence that the requirements in paragraphs (a) to (c) have been met.
[1] Bharaj Construction Pty Ltd v MIBP [2016] FCCA 902 at [81].
It is noted that policy as well as the legislation, also supports the Court’s view as seen in the Department’s Procedures Advice Manual[2] which states ‘10.7.2 Consideration of the advice - 10.7.2.1 Overview – The delegate must independently assess the nomination against all the criteria that have been assessed by the regional certifying body in providing their advice.’
[2] [Div5.3/reg5.19] Approval of nominated positions (employer nomination) - Regulation 5.19 (immi.gov.au)
The agent has submitted a number of arguments with the original application, subsequently and following the hearing to support the case and these are listed below and will be carefully considered:
a.Advertising is not required in the legislation unlike other visa subclasses which do require labour market testing. Policy was “quiet” on the means to satisfy the regulation and it was left to RCBs to provide guidance to the applicants. He states that the Chamber of Commerce and Industry Queensland (CCIQ) did not always require advertising to satisfy this criterion especially in 2016 and 2017.
b.The RCB gave consideration to factors beyond advertising such as local knowledge and recruitment difficulties being experienced by the hospitality industry.
c.The applicant regularly advertises and finds it difficult to source suitably qualified or experienced people from the local labour market.
d.The applicant has a high staff turnover, and this makes consistency a problem.
e.The applicant is dependent on the Regional Sponsored Migration Scheme employer nomination visa Subclass 187.
f.The applicant has provided considerable explanation as to what they have done to try and demonstrate that they could not fill the role.
g.Requiring advertising prejudices those genuine positions which may have been filled without advertising but were subject to a genuine skills shortage and could not be filled. It also prejudices those filled by way of recommendation or word of mouth which the applicant instructs is still the most reliable way to fill skilled positions with quality candidates.
h.Advertisements do not need to refer to the “Local area” but can cover a wider locality.
i.Advertising does not need to postdate the decision to employ the nominee but is a “time of decision” matter which can be assessed by the Tribunal.
j.The Tribunal must give consideration to the business’s circumstances and recent advertising demonstrates the difficulties of filling positions from the local labour market.
In a different case for this same applicant they submitted a further argument supporting a larger geographic area being used for their advertisements and the Tribunal considers it reasonable to allow that argument to be put forward despite the applicant not raising the matter in the documentation for this case.
The applicant stated that Seek automatically changes their settings to reflect a broader geographic area. This may all be so but it is noted that the Seek chat team advised the applicant in a screen shot of the chat exchange that although the platform automatically changes the geographic location to a wider location it does not prevent the applicant from including the desired location in the body of the advertisement. The Tribunal finds the applicant could have specified the location in the body or headline of advertisements, regardless of the platform automatically changing the advertisement menu to a wider geographic setting. This argument and rebuttal would equally apply to other advertising platforms such as Gumtree, Indeed and the like.
The Tribunal will carefully consider these arguments starting with a) which goes to whether advertising is required to satisfy the regulation.
The registered migration agent’s letter states that the business has provided considerable explanation as to what they have done to try and demonstrate that they could not fill the role. The agent addresses the interpretation of this provision and states there is no reference to advertising requirements in the legislation unlike other visa subclasses which do require labour market testing. He states that policy was silent on the means to satisfy the provision and it was left to the regional certifying bodies to provide guidance to the applicants and the Department on this provision. The agent advises that the CCIQ did not always require advertising to satisfy this criterion especially in 2016 and 2017 when the majority of these applications were lodged.
This was reiterated in another one of the agent’s letters where it states that the CCIQ provided positive recommendations for each case during the original processing time for same. He states the purpose of having regional certifying bodies provide recommendations is because they were more able to provide accurate and localised recommendations rather than having a case officer with no localised knowledge of the area. He states that the regional certifying body gave consideration to factors beyond advertising such as local knowledge and recruitment difficulties being experienced by the hospitality businesses in the area. The agent submits that this reinforces the view that advertising is not a stipulated requirement of the provision and other factors can be considered in determining whether the criterion is met.
The email dated 23 February 2021 from the regional certifying body states that their recollection of the decision-making process was based on results of advertising for the position; any other information supplied as to difficulties in recruitment and the regional certifying body officers’ own “local” knowledge of employment difficulties. They continue by stating regional certifying bodies will use their own judgement as to what constituted reasonable efforts to secure an employee as there were no strict rules at the time as to what was sufficient or acceptable as to advertising efforts. He notes that most cases they looked at included evidence of advertising with Gumtree and sometimes Indeed and that unfilled vacancies were running at over 25% across the region at the time. The Tribunal has considered the positive skills assessment of the RCB and notes that they place weight on advertisements, any other information and the officers own knowledge. While this may have sufficed for the RCB, the Tribunal cannot be satisfied that the position cannot be filled by an Australian citizen or Australian permanent resident in Carrara without more definitive evidence.
The agent submits in his letter that requiring advertising to satisfy this provision is imposing a requirement on the visa which does not exist in the legislation and prejudices those genuine positions which may have been filled without advertising but were subject to a genuine skills shortage and that could genuinely not be filled. He maintains it also prejudices positions filled due to recommendation or word of mouth which Mrs Randhawa instructs is still the most reliable way to fill skilled positions with quality candidates.
Both legislation and policy do not mention advertising so the Tribunal will consider the meaning of the regulation which states ‘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.’
Reliance was placed on the remarks of Hayne, Heydon, Crennan and Kiefel JJ in Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27; [2009] HCA 41 at [47] in support of the proposition that the task of statutory construction must begin with consideration of the text itself and that ‘[t]he language which has actually been employed in the text of legislation is the surest guide to legislative intention’, albeit it was acknowledged that the meaning of the text may require consideration of context, including the general purpose and policy of a provision.
The Tribunal notes the clear unequivocal language of the regulation anmely ‘the position cannot be filled’ and considers this requires sound evidence to support the finding that it cannot be filled.
The Tribunal notes the many submissions made by the applicant that they are in general unable to source skilled applicants from the local labour market. It is noted that the applicant states they have a high staff turnover and they are dependent on the Regional Sponsored Migration Scheme employer nomination visa Subclass 187. It is also noted that one of their restaurants is allegedly closed and cannot re-open due to skills shortages. While these are concerns raised by the applicant, it is the specific position of restaurant manager at the Emerald Lakes, Carrara restaurant that is under consideration in this case.
The Tribunal notes the argument that requiring advertising prejudices those genuine positions which may have been filled without advertising but were subject to a genuine skills shortage and could not be filled. It is stated that it also prejudices those positions filled by way of recommendation or word of mouth which the applicant instructs is still the most reliable way to fill skilled positions with quality candidates. These arguments are disingenuous because without some form of advertising it is not possible to definitely know that the position could not be filled by an Australian citizen or Australian permanent resident who is living in the same local area as that place, namely Carrara. These methods of recruitment do not result in corroborating evidence and do not provide evidence that Australian citizens or Australian permanent residents were given the opportunity to fill the position as they may not have been aware that a vacancy existed.
Advertisements pre-dating the decision to employ
There are no advertisements that pre-date the decision to employ the nominee on 25 August 2016.
The applicant’s letter of 7 September 2020 “review of nomination application for Kajal” advises that they operate two restaurants under the nominating entity namely at Emerald Lakes, Carrara and in Jimboomba. The Emerald Lakes restaurant is the flagship. Mrs Randhawa advises they have a genuine need for restaurant managers to ensure quality meals and service. Both Mr and Mrs Randhawa travel regularly to India to visit their elderly parents particularly when they suffer bouts of ill health and as a result they rely on restaurant managers to ensure the business runs smoothly while they do the work remotely. Mrs Randhawa works more as an operations manager. Mr Randhawa is constantly overworked due to the shortage of kitchen staff and recently in March 2019 he found himself rushing to prepare food in the kitchen whilst trying to get out the door to pick up the children from school and burnt himself badly.
She states they regularly advertise the restaurant manager roles on various platforms but over the course of the last few years they have lost access to some of the advertising sites as they have lost passwords and emails and did not keep the old records. They have provided some recent advertisements for restaurant managers at the Waterford location over the course of the last 12 months to demonstrate that they are still actively seeking restaurant manager positions in the organisation. They have attempted to hire Australian citizens and residents but have had little success and largely applicants are overseas nationals looking for work. The hospitality industry in the Gold Coast and surrounding areas is notorious for high turnover of staff. The applicant outlines the process of employing the nominee which is also explained in their letter of 3 February 2021. She expresses frustration with the Department’s decisions and believes it is a waste of time as business operators to pay a regional certifying body and go through all that is required to show they are doing everything genuine to then have the Department dismiss their recommendation especially when the regional certifying body in Queensland, being a local employer organisation, has a better understanding of the needs and demands of employers in the area.
The applicant’s letter of 3 February 2021 advises that the original employment agreement with the nominee was dated 25 August 2016 and she signed a new one on 1 July 2019. She states the Emerald Lakes restaurant at Carrara is the flagship restaurant and they have always struggled to have enough staff. She states that initially they thought they would need a restaurant supervisor in addition to their restaurant manager and as such in December 2015 and again in February 2016 she placed an advertisement on Seek for that role (restaurant supervisor). However, they found restaurant supervisor was not the right type of role and they needed an additional restaurant manager. The original restaurant manager left on 24 February 2019 and the nominee has been working full time since 4 November 2019. Mrs Randhawa advises that it is very likely they will not be able to replace the nominee with someone suitable for the role as for all these years they have struggled to find skilled restaurant managers across the business. She states this is not isolated to one of the restaurants but a systemic problem right across their operation. They advertised for restaurant managers in 2020 to highlight that even now they continue to try and recruit restaurant managers throughout the business as they suffer from constant staff shortages.
The applicant states they are more concerned with filling positions than worrying about meeting visa conditions. If this were the case then the applicant could have kept a recruitment summary complete with candidates, resumes, home locations, interview results and suitability for the Jimboomba location which would have enabled the decision maker to definitively determine whether 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, Carrara.
She states they do not discriminate against Australian workers and in fact prefer them as they do not need visas, do not have work conditions on visas and they do not have to worry about their visa expiry. She details PAYG data for the companies for the last three financial years to demonstrate that a high proportion of their employees are Australian citizens or Australian permanent residents and that they have a high turnover of staff. This may be the case but it does not address why, for this position as restaurant manager at Emerald Lakes, Carrara, prior to 25 August 2016, there was no advertisement and no recruitment summary.
The applicant states that they have over the years lost passwords and emails for advertisements they placed as they were not aware they needed to keep them for their records. The Tribunal notes their concerns but requires evidence to make a finding on the regulation.
Advertisements postdating the decision to employ
All the advertisements listed in the table above as 1), 2), 3), 4), 5), 6) and 7) postdate the decision to employ the nominee made on 25 August 2016.
The agent maintains that this provision, r.5.19(4)(h)(ii(C), is a time of decision provision and the Tribunal needs to be satisfied at the present time that the position could not be filled. The applicant, he states, has continued to instruct that they couldn’t fill the positions locally at the time the applications were lodged, and they continue to be unable to fill the position locally at present.
The Tribunal will carefully consider this argument.
The stipulation in r.5.19(4)(h)(ii)(C) is that the Minister must approve the nomination if the position cannot be filled by an Australian citizen or permanent resident who is living in the same local area as that place. In other words, if there is an Australian citizen or permanent resident who is suitably qualified and experienced for the position living in the same local area then the nomination must not be approved. The policy is clear that Australian citizens or permanent residents are to have precedence in the labour market over foreign skilled workers, other matters being equal.
If an advertisement postdates an appointment of a nominee to a vacant position by some period of time, any suitably qualified or experienced Australian citizen or permanent resident who could have filled the position at the time of appointment would have been denied the opportunity to apply for the position.
It is implausible that having filled a position with a nominee for some weeks, months or years that the employer would advertise the position and then dismiss the nominee in favour of a suitably qualified Australian citizen or permanent resident. They would be unlikely to do this for a number of reasons including the potential disruption to the smooth operation of their business and the risk of an unfair dismissal claim by the nominee.
The agent claims that simply because there were not suitable candidates for the position that again the timing of the advertisement is not determinative. The Tribunal considers this a disingenuous argument because having appointed the nominee to the position with all the deterrents of potential business disruption and unfair dismissal claims if the nominee is terminated in favour of a suitably qualified and experienced Australian citizen or permanent resident, the applicant is reasonably going to be cautious and disinclined to find an Australian citizen or permanent resident a successful candidate for the position. It was the intention of the regulation that applicants give precedence to suitably qualified and experienced Australian citizens or permanent residents not that applicants be cautious or disinclined to appoint them.
This is clear in the Explanatory Statement for Select Legislative Instrument 2012 No.82 which introduced the Regional Sponsored Migration Scheme employer nomination visa Subclass 187 Direct Entry stream at Item [41] – Regulation 5.19 which states “and whether the position could be filled by an Australian citizen or permanent resident… Subregulation 5.19(5) provides that unless subregulation 5.19(3) or (4) can be satisfied, the Minister must refuse an application for approval of a nomination of a position.”
There is also the conundrum that there is no longer a vacancy because the position is already filled by a foreign skilled worker which is plainly not in the spirit of the legislation or the Explanatory Statement. Advertising a position where there is no vacancy the Tribuanal considers is not a genuine recruitment process.
In the hearing Mrs Randhawa stated that the nominees were key employees and there would be consequences if the applications were refused.
Mrs Randhawa detailed the consequences of refusing the applications noting her husband is suffering from mental health issues as a result of him being unable to be with his mother when she died in April 2020 and the distress of his father’s failing health when travel restrictions do not allow him to travel to India. The stress of running the business is also taking its toll and he is struggling to go to the bathroom with the result his wife is his full-time carer while she looks after the youngest of four children. If the applications are refused, they may have to shut down restaurants which would cause financial losses and the need to let other employees go as the positions would no longer be viable. It has taken them 13 years to build a business and they are willing to have a further hearing if this would assist.
The agent states the applicant has continued to instruct that they couldn’t fill the positions locally at the time the applications were lodged and they continue to be unable to fill the position locally at present. Mrs Randhawa explained that they had closed one of the Coriander Thai Cuisine restaurants due to COVID-19 and now wanted to re-open it but could not find skilled employees. They had advertised extensively in southern capitals and elsewhere but could not find suitable skilled staff and the rent was costing them $9,000 per month.
The agent submits that since the provision is a time of decision provision consideration should be given to the business’s circumstances beyond what was relevant at the time of the application or when employment agreements were signed and the applicant has explained extensively that they continue to struggle to find individuals who were suitably skilled and reliable to work in the businesses. More recent advertising, the agent states, demonstrates these difficulties despite the applicant trying to encourage local labour markets to fill positions.
He states that the owners are experiencing substantial hardship as a result of Mr Talwinder Randhawa’s deteriorating mental health which requires Mrs Randhawa essentially to be a full-time carer while she seeks to manage the business at the same time. He claims they are more reliant on their staff than ever and the loss of these staff members will likely destroy the family business that they have been building for 13 years. He states that given the importance of the staff members and the desperate circumstances the business operators find themselves in if the Tribunal believes more information is required then the applicant should be afforded a further hearing.
The Tribunal notes that the applicant is apparently facing difficult challenges with filling skilled positions, and personal challenges with the health problems of Mr Randhawa, having four children and operating several restaurants and notes they may have to close restaurants with other employees losing their jobs if the nominees are unsuccessful with their review applications. This is unfortunate but the Tribunal is required to ensure the regulation is satisfied with regard to the position at Emerald Lakes, Carrara and requires definitive evidence to satisfy the regulation despite acknowledging the challenges both business and personal facing the applicant.
On 21 April 2021, the applicant provided a clipping dated 16 April 2021 from the Gold Coast Bulletin advising that the applicant had been chosen best Indian restaurant of the year by readers and shows a smiling Mr and Mrs Randhawa. They are planning to open a restaurant in Brisbane in addition to their existing restaurants. It is encouraging to see that Mr Randhawa appears to be in better health and the couple despite dire predictions are planning to further expand their restaurants.
The Tribunal has decided not to grant a further hearing, as requested, as the applicant has had the opportunity to be heard and provide evidence to support their case which has been carefully assessed by the Tribunal.
At the time of application, the employment contract had been signed on 25 August 2016 thus committing the employer to the nominee and all the advertisements postdate the appointment of the nominee and do not satisfy the Tribunal because the recruitment process was not genuine as there was no vacancy at the time of the advertisement because it had already been filled by a foreign skilled worker. As such the Tribunal is unable to find at the time of application, definitively as required by the text of the legislation, that the position of restaurant manager cannot be filled by an Australian citizen or permanent resident who is living in the same local area as Emerald Lakes, Carrara. The Tribunal finds that the applicant does not meet r.5.19(4)(h)(ii)(C).
Accordingly, the requirements of r.5.19(4) are not met.
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 the 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.
De-Anne Kelly
MemberATTACHMENT - 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
(aa) include a written certification by the nominator stating whether or not the nominator has engaged in conduct, in relation to the nomination, that constitutes a contravention of subsection 245AR(1) of the Act; 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;
(AAA)the occupation is applicable to the person identified under subparagraph (a)(ii) in accordance with the specification of the occupation;
(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 specified by the Minister in an instrument in writing for this sub-subparagraph;
(DA)the occupation is applicable to the person identified under subparagraph (a)(ii) in accordance with the specification of the occupation;
(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).
Key Legal Topics
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Immigration
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Administrative Law
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Judicial Review
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Procedural Fairness
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