Ambrosia Indian Restaurant Pty Ltd (Migration)

[2023] AATA 2848

Ambrosia Indian Restaurant Pty Ltd (Migration) [2023] AATA 2848 (14 August 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ambrosia Indian Restaurant Pty Ltd

REPRESENTATIVE:  Mr Joseph Chan

CASE NUMBER:  1927893

HOME AFFAIRS REFERENCE(S):          BCC2019/2490199

MEMBER:Terrence Baxter

DATE:14 August 2023

PLACE OF DECISION:  Brisbane

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

Statement made on 14 August 2023 at 11:31am

CATCHWORDS
MIGRATION – nomination – Temporary Residence Transition stream – Cook – position located in regional Australia– nominee was employed in the nominated position in a full time capacity – no less favourable terms and conditions of employment – no adverse information known to Immigration – genuine need for the nominator to employ a paid employee to work in the position – decision under review set aside 

LEGISLATION
Migration Act 1958, ss 140, 245
Migration Regulations 1994, rr 2.72, 5.19

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 Home Affairs on 19 September 2019 to reject the applicant’s application for approval of the nomination of a position under reg 5.19 of the Migration Regulations 1994 (Cth) (the Regulations).

2. The applicant, Ambrosia Indian Restaurant Pty Ltd, applied for approval on 11 May 2019. The applicant nominated Ms Damanpreet Kaur (the nominee) in the position of Cook. The applicant operates a restaurant providing Indian cuisine in Gympie, Queensland. The applicant has employed the nominee as a Cook since 2013.

3. The requirements for the approval of the nomination of a position in Australia are found in reg 5.19 of the Regulations, which contains general requirements for approval and additional requirements for approval set out in three alternative streams: a Temporary Residence Transition stream, a Direct Entry stream and a Labour Agreement stream. If the application meets the requirements for approval, then the application must be approved: reg 5.19(3)(a). If any of the requirements are not met, then the application must be refused: reg 5.19(3)(b).

4. In this case, the applicant has applied for approval of a nomination, seeking to satisfy the criteria in the Temporary Residence Transition stream. A nomination that relates to a visa in the Temporary Residence Transition stream must meet the requirements of reg 5.19(5); reg 5.19(4)(e).

5. The delegate refused the application on the basis the applicant’s nomination did not satisfy reg 5.19(5)(n) of the Regulations because the delegate found that the applicant had not demonstrated that it had the capacity to employ the nominee for at least two years and to pay her at least the annual market salary rate (AMSR) for the occupation in each year. Consequently, the delegate found that the requirements of reg 5.19(4)(e) had not been met.

6. The applicant lodged an application for review of the delegate’s decision with the Tribunal on 3 October 2019.

7. Mr Lovedeep Singh and the nominee, the directors of the applicant, appeared before the Tribunal by video conference on 26 July 2023 to give evidence and present arguments. The hearing was a joint hearing with the application for review of a decision to refuse the visa application of the nominee.

8. The Tribunal exercised its discretion to hold the hearing by video conference. The Tribunal determined it was reasonable to hold a hearing by video conference, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by video conference.

9. The applicant was represented in relation to the review by its registered migration agent, Mr Joseph Chan. The representative attended the Tribunal hearing by video conference.

10. 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

11. The issue in this case is whether the applicant meets the general requirements for approval of the nomination set out in reg 5.19(4) and the stream specific requirements set out in reg 5.19(5), which are extracted in the attachment to this decision. For the nomination to be approved, all the requirements must be met.

    Evidence presented prior to the hearing

12. The applicant produced to the Department of Home Affairs (the Department) the following documents:

    a.A position description.

    b.The nominee’s PAYG payment summary for the 2018 financial year.

    c.Evidence of superannuation contributions paid by the applicant in the 2019 financial year.

    d.An undated submission from the applicant including market salary evidence.

    e.An employment contract dated 24 May 2017.

    f.An ABN Lookup report in respect of the applicant’s ABN.

    g.Evidence of the applicant’s occupation of its business premises.

    h.An organisational chart.

    i.A submission from the representative dated 15 April 2019.

    j.Correspondence by the applicant’s accountant to the applicant dated 19 March 2019.

    k.Business activity statements for the period from July 2018 to December 2018.

    l.A financial statement for the 2018 financial year.

13. The applicant produced to the Tribunal the following documents in addition to documents provided to the Department:

    a.A copy of the delegate’s decision.

    b.An undated submission from the representative, received on 21 June 2023.

    c.An ASIC current and historical company extract in respect of the applicant.

    d.ASIC evidence of registration of the business name Ambrosia Indian Restaurant.

    e.A copy of the passport of a previous director of the applicant.

    f.Financial statements and tax returns of the applicant for the 2021 and 2022 financial years.

    g.Statements of the applicant’s Australian Taxation Office Income Tax and Integrated Client Accounts for the period from 1 July 2020 to 9 June 2023.

    h.A current organisational chart and position description.

    i.A submission from the applicant dated 20 May 2022.

    j.A submission from the applicant’s accountant dated 13 March 2019.

    k.An employment contract, the passport, a Visa Entitlement Verification Online system (VEVO) search and payslips of the applicant’s employee Mr Robin Singh.

    l.The nominee’s taxation returns and assessments for the 2015 to 2022 financial years.

    m.The nominee’s passport and VEVO search.

    n.A VETASSESS assessment of the nominee.

    o.A Department notice in respect of the issue of the nominee’s Subclass 457 visa.

    Evidence regarding the applicant’s operations

14. The applicant company was registered on 16 January 2013. It has operated a restaurant providing Indian cuisine at 1-5 Woolgar Road, Gympie since that time. The applicant first employed the nominee in 2013 when she was still a student and later successfully sponsored her for a Subclass 457 visa in 2015.

15. Mr Singh and the nominee became the sole shareholders and directors of the applicant in August 2022. They paid approximately $20,000 to acquire the shares in the applicant.

16. The applicant’s restaurant has a seating capacity of over 50 and is presently open 6 nights per week and is open for lunch on Wednesday to Friday each week. The restaurant is open between 11:30 am and 2 pm for lunch and from 4 pm each evening.

17. The restaurant was forced to close for dine-in patrons during lockdowns associated with the COVID-19 pandemic. The restaurant continued to provide takeaway meals and meals via delivery service during lockdowns and has since returned to full trading. The applicant’s sales have increased significantly in the 2023 financial year.

    Further evidence provided by the applicant

18. During and after the hearing, the applicant provided to the Tribunal the following documents:

    a.Business activity statements for the period from July 2017 to March 2023.

    b.An undated submission from the representative.

    c.The passport, a current payslip and a VEVO search in respect of the applicant’s employee Mr Robin Singh.

    d.An employment contract of the nominee dated 31 July 2023.

    Application requirements – reg 5.19(4)(a)

19. Regulation 5.19(4)(a) requires that an application for approval be made in accordance with a number of requirements set out in reg 5.19(2). Regulation 5.19(2) requires that an application must:

    ·be made in accordance with approved form 1395 (Internet);

    ·identify the position;

    ·identify a person in relation to the position;

    ·identify an occupation in relation to the position,

    ·identify the subclass and stream to which the nomination relates;

    ·be accompanied by the fee mentioned in reg 5.37; and

    ·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 s 245AR(1) of the Migration Act 1958 (Cth) (the Act).

20. Applications made on or after 12 August 2018 must also be accompanied by any nomination training contribution charge the nominator is liable for, and identify the annual turnover for the nomination: regs 5.19(2)(fa), (fb). The liability is imposed by s 140ZM of the Act and the charge is imposed by the Migration (Skilling Australians Fund) Charges Act 2018 (Cth), with the amount specified in the Migration (Skilling Australians Fund) Charges Regulations 2018 (Cth) (Charges Regulations). ‘Annual turnover’ is defined in the Charges Regulations for liable persons operating a business in Australia as the total ordinary income (within the meaning of the Income Tax Assessment Act 1997 (Cth)) derived in the most recent income year (within the meaning of the Income Tax Assessment Act 1997 (Cth)) ending before the day on which the nomination application is made. In any other case, it is defined as the total income the person liable derived in the ordinary course of business in the most recent financial year ending before the day on which the nomination application is made.

21. Further, if the subclass identified in the application is Subclass 187, the application must be made before 16 November 2019, unless the exception in reg 5.19(2A) applies. The exception applies to an identified person who is a ‘transitional 457’ or ‘transitional 482’ worker at the time of application. This means, respectively, a person who on or after 18 April 2017 held a Subclass 457 visa, and a person who on 20 March 2019 held a Subclass 482 visa in the Medium-term stream or was an applicant for a Subclass 482 visa in the Medium-term stream that was subsequently granted: reg 1.03.

22. Having regard to the application and the information provided to the Department, the Tribunal is satisfied that the above requirements for nomination have been met. The application relates to a position located in regional Australia and consequently no fee is payable (reg 5.19(2) and reg 5.37(2) of the Regulations). The records of the Department confirm that the required nomination training contribution charge has been paid by the applicant.

23. Given the above findings, the Tribunal is satisfied that the application complied with the requirements in reg 5.19(2) and that reg 5.19(4)(a) is met.

    No adverse information known to Immigration – reg 5.19(4)(b)

24. Regulation 5.19(4)(b) requires that either there is no adverse information known to Immigration about the nominator or a person associated with the nominator, or it is reasonable to disregard any such information.

25. There is no evidence before the Tribunal that there is any adverse information of the type described in the relevant definitions known to the Department about the applicant or any associated person.

26. Given the above findings, the Tribunal is satisfied that reg 5.19(4)(b) is met.

    Mandatory licencing, registration and memberships – reg 5.19(4)(c)

27. Regulation 5.19(4)(c) provides that if it is mandatory in the State or Territory in which the position is located for a person to hold a licence or a registration of a particular kind, or be a member (or a member of a particular kind) of a particular professional body, to perform tasks of the kind to be performed in the occupation, the identified person is, or is eligible to become, the holder of the licence, the holder of the registration, or a member of the body, at the time of application.

28. In this instance, the relevant State or Territory is Queensland, the relevant occupation is Cook and the date of application is 11 May 2019.

29. The Tribunal is satisfied that it is not mandatory for the nominee to hold a licence for the position of Cook.

30. Given the above findings, the Tribunal is satisfied that reg 5.19(4)(c) is met.

    Satisfactory compliance with employment laws – reg 5.19(4)(d)

31. Regulation 5.19(4)(d) requires that the nominator has a satisfactory record of compliance with the laws of the Commonwealth, and of each State or Territory in which the nominator operates a business and employs employees in the business, relating to employment.

32. There is no evidence before the Tribunal to suggest that the applicant has an unsatisfactory record of compliance with workplace relations laws of the Commonwealth or any State or Territory in which the applicant operates a business. The Tribunal is satisfied that the applicant does have a satisfactory record of compliance.

33. Given the above findings, the Tribunal is satisfied that reg 5.19(4)(d) is met.

    Training contribution debts – reg 5.19(4)(da)

34. Regulation 5.19(4)(da) applies to applications made on or after 12 August 2018. It requires that any debt due by the nominator as mentioned in s 140ZO of the Act, relating to recovery of nomination training contribution charges and penalties for underpayments, has been paid in full.

35. The records of the Department confirm that the nomination training contribution charge payable by the applicant has been paid in full. The Tribunal is satisfied that there is no debt due by the applicant relating to recovery of nomination training contribution charges or penalties for underpayment.

36. Given the above findings, the Tribunal is satisfied that reg 5.19(4)(da) is met.

    Visa held by identified person at time of application – reg 5.19(5)(a)

37. Regulation 5.19(5)(a) requires that the identified person holds a visa of a particular kind at the time the application for approval of the nominated position was made. There are several alternatives including:

    ·a Subclass 457 visa granted on the basis of satisfying the Standard Business Sponsorship stream (cl 457.223(4)); or

    ·a Subclass 482 visa in the Medium-term stream; or

    ·for persons specified in a legislative instrument, a Subclass 482 visa in the Short-term stream; or

    ·if the last substantive visa held was one of the above three visa types, a bridging visa granted on the basis they are an applicant for one of those visa types (for a Subclass 482 in the Short-term stream, only those persons specified in the legislative instrument), or for a Subclass 186 or 187 visa.

38. The nomination application was made on 11 May 2019. The applicant has produced evidence that the nominee held a Subclass 457 visa which was granted on 13 May 2015 and was in effect until 13 May 2019.

39. Given the above findings, the Tribunal is satisfied that reg 5.19(5)(a) is met.

    Occupation requirements – regs 5.19(5)(b), (c), (d)

40. A number of requirements relating to the occupation identified in relation to the nominated position are set out in regs 5.19(5)(b), (c) and (d). The occupation identified in this application is Cook.

41. Firstly, the occupation must be listed in ANZSCO (the Australian and New Zealand Standard Classification of Occupations) and have the same 4 digit ANZSCO occupation unit group code as the occupation in relation to which the identified person’s most recently held Subclass 457 or 482 visa was granted: reg 5.19(5)(b).

42. Secondly, the occupation must be an occupation specified in a legislative instrument made under reg 5.19(8) and in force at the time the application is made, and apply to the identified person in accordance with that instrument, unless identified as exempt by an instrument made under that subregulation: reg 5.19(5)(c).

43. Finally, the Tribunal must be satisfied either that there is no information known to Immigration that indicates that the identified person is not genuinely performing the tasks of the occupation as specified in ANZSCO, or that it is reasonable to disregard any such information: reg 5.19(5)(d).

44. The occupation of Cook is listed in ANZSCO and has the same four-digit ANZSCO occupation unit group code (Cooks 3514) as the occupation in relation to which the nominee’s most recently held Subclass 457 visa was granted.

45. The nominee, as the holder of a Subclass 457 visa on 18 April 2017, is a “specified person” as defined in instrument LIN 22/038 and is exempt from the operation of reg 5.19(5)(c).

46. The Tribunal spoke with Mr Singh at the hearing regarding the requirement that the nominee is genuinely performing the tasks of the occupation of Cook. The Tribunal noted that, according to the applicant’s most recent organisational chart, the applicant employs another full-time Cook as well as an Assistant Cook in addition to the nominee. Mr Singh described the tasks performed by the nominee, which he said included preparing meals and sauces and assisting the other Cooks. The Tribunal enquired how many hours per week the nominee was presently working in the restaurant. The nominee stated that she did not work fixed hours and that she had another job. She said that she often started work in the Ambrosia Indian Restaurant at 6 am or 7 am and worked until she had to go to the other employment. She said that she returned to work in the restaurant when she was able to do so and estimated that she worked from 4 to 5 hours per day in the restaurant. The Tribunal is satisfied that there is no information known to Immigration to indicate that the nominee is not genuinely performing the tasks of the occupation of Cook.

47. Given the above findings, the Tribunal is satisfied that regs 5.19(5)(b), (c) and (d) are met.

    Visas and previous employment of identified person – regs 5.19(5)(e), (f), (g)

48. Regulations 5.19(5)(e), (f) and (g) set out requirements in respect of the identified person’s visa history and employment during certain periods immediately prior to the nomination application being made. The qualifying periods set out in these provisions can be modified for specified persons by legislative instrument: reg 5.19(6).

49. Firstly, reg 5.19(5)(e) requires that the identified person must have held one or more of the following visas for a total period of at least three years in the period of four years immediately before the nomination application was made:

    ·a Subclass 457 visa in the Standard Business Sponsorship stream, or

    ·a Subclass 482 visa in the Medium-term stream, or

    ·for a person specified in a legislative instrument made under reg 5.19(5)(a)(iii), a Subclass 482 visa in the Short-term stream.

50. Secondly, unless the Subclass 457 or 482 visa held was granted in relation to an occupation specified in an instrument made under reg 2.72(13), reg 5.19(5)(f) requires that the identified person was employed in the position to which the Subclass 457 or 482 visa(s) were granted on a full-time basis, with the employment being undertaken in Australia, for a total period of at least three years during the period of four years immediately before the nomination application was made. The three years of employment cannot include any periods of unpaid leave.

51. If the Subclass 457 or 482 visa was granted in relation to an occupation specified in an instrument under reg 2.72(13), then reg 5.19(5)(g) must be satisfied instead of reg 5.19(5)(f). It requires that the identified person was employed in that occupation for a total period of at least three years (not including any periods of unpaid leave) during the periods of four years immediately before the nomination application was made.

1. In this case, the nomination application was made on 11 May 2019. The relevant instrument made under reg 5.19(6) is LIN 22/038. Having regard to the terms of that instrument, the Tribunal finds that it is applicable and has applied the modified time periods as set out in the instrument, so that the periods of three years and four years respectively in regs 5.19(5)(e) and (f) are to be replaced by the periods of two years and three years respectively.

2. As stated previously, the nominee was granted a Subclass 457 visa on 13 May 2015 which was in effect until 13 May 2019. The nomination application was made on 11 May 2019. Accordingly, the requirement in reg 5.19(5)(e) is met.

3. The applicant has provided taxation returns of the nominee for the 2017 to 2019 financial years which disclose the source of the nominee’s income during those years. Both Mr Singh and the nominee gave evidence that the nominee was employed full time by the applicant from 2016 in the position of Cook. The taxation returns are consistent with that evidence. Accordingly, the requirement in reg 5.19(5)(f) is met.

4. The nominee’s Subclass 457 visa was not granted in relation to an occupation specified in an instrument under reg 2.72(13). Accordingly, reg 5.19(5)(g) does not apply.

5. Given the above findings, the Tribunal is satisfied that regs 5.19(5)(e) and (f) are met.

   Status of the nominator – reg 5.19(5)(h)

6. Regulation 5.19(5)(h) requires that the nominator was the standard business sponsor who last identified the identified person in a nomination approved under s 140GB of the Act and is actively and lawfully operating a business in Australia.

7. The records of the Department confirm that the applicant was approved as a standard business sponsor from 6 March 2015 for three years. The nominee’s Subclass 457 visa grant notice establishes that the applicant was the standard business sponsor who last identified the nominee in a nomination under s 140GB of the Act.

8. The applicant produced ASIC evidence of registration of the applicant and its business name together with financial reports and tax returns for the 2021 and 2022 financial years and business activity statements for the 2023 financial year. The financial reports disclose that the applicant recorded sales of $511,384 and $532,194 in the 2021 and 2022 financial years respectively. The Tribunal is satisfied that the applicant is actively and lawfully operating a business in Australia, namely a restaurant.

9. Given the above findings, the Tribunal is satisfied that reg 5.19(5)(h) is met.

   Genuine need for employment – regs 5.19(5)(j) and (k)

10. Regulation 5.19(5)(j) requires the nomination application to identify a need for the identified person to be employed in the position, under the direct control of the nominator, and reg 5.19(5)(k) requires this need to be genuine. These requirements do not apply in relation to occupations specified in an instrument made under reg 2.72(13) (see legislative instrument LIN 19/212): reg 5.19(7).

11. The occupation of Cook is not specified in instrument LIN 19/212. Accordingly, the applicant is required to comply with regs 5.19(5)(j) and (k).

12. Regulation 5.19(5)(j) requires that the application identifies a need for the nominator to employ the nominee to work in the position under the nominator’s direct control. It is unclear whether this requirement is directed just at a statement to this effect or something of a more qualitative nature. The wording ‘identifies a need’ arguably suggests more is required to meet this criterion than simply a statement or declaration that there is such a need. ‘Identify’ is defined as ‘to recognise or establish as being a particular person or thing; verify the identity of.’[1] On that view, a decision‑maker would need to be satisfied there is a genuine need on the part of the nominator to employ someone in the nominated position.[2] However, it could alternatively be argued that reg 5.19(5)(j) is directed towards requirements for the application form/process of a more administrative nature, such that reg 5.19(5)(j) could be met by a simple statement or certification of need. Support for this view can also be found in the contrast between the wording of reg 5.19(5)(j)and reg 5.19(5)(k) which requires that there be a genuine need for the nominee to be employed in the position under the nominator’s direct control – clearly requiring a qualitative assessment, and reg 5.19(5)(l), which requires satisfaction that the employee will be employed on a full‑time basis in the position for at least two years. Given the uncertain scope of reg 5.19(5)(j), and the requirement in relation to this application to satisfy the following requirement under reg 5.19(5)(k), the Tribunal considers that this issue is more appropriately considered under reg 5.19(5)(k).

    [1] Dictionary.com (accessed June 2023).

    [2] In Bharaj Construction Pty Ltd v MIBP [2016] FCCA 902 (Judge Barnes, 28 April 2016), the Court considered a similarly worded provision in respect of a pre-1 July 2012 RSMS nomination, i.e. ‘the employer nomination is made by an employer in respect of a need for a paid employee’. Whilst on the one hand reg 5.19(4)(a)(ii) does not appear to impose a different requirement beyond emphasising the requirement for an applicant to identify the need (unlike the pre-1 July 2012 version of reg 5.19(2)(a) and (4)(a)), the wording of the criteria does differ slightly and the Tribunal exercises caution in applying the reasoning of Bharaj to a post-1 July 2012 nomination as is currently being considered.

13. The Tribunal considers that reg 5.19(5)(j) is more directed to the administrative process. The nomination application, on page 2 of that document, identifies that the position to be filled is that of Cook and on page 8 identifies the nominee. The Tribunal is therefore satisfied that the application for approval identifies a need for the nominee to be employed in the position of Cook under the applicant’s direct control such that reg 5.19(5)(j) is met.

14. Regulation 5.19(5)(k) requires that there is a genuine need for the nominee to be employed in the position under the direct control of the applicant. The Tribunal spoke with Mr Singh regarding this requirement at the hearing. He said that sales in the restaurant were increasing regularly and that the applicant needed to employ the nominee on a full-time basis to meet the demand. Mr Singh said that the restaurant had previously been open seven nights per week and had opened for lunch five days per week. He said that the nominee had taken full-time employment with another employer and that the applicant had been required to cut back its trading hours because of staff shortages. He said that the applicant would revert to its former trading hours if the nomination was approved and the nominee returned to full-time work.

15. Mr Singh also stated that the nominee was required to work full time because the other Cook needed two days off per week and that it was necessary to roster the nominee to work in conjunction with the other Cook.

16. The 2023 business activity statements provided by the applicant during and after the hearing confirm that the applicant’s sales have increased to $684,789 inclusive of GST in the 2023 financial year. Given this increase in sales, the intended increase in the applicant’s opening hours and the requirement to employ Cooks for preparation of meals prior to the restaurant’s opening hours, the Tribunal is satisfied that there is a genuine need for the nominee to be employed in the position of Cook under the direct control of the applicant.

17. Given the above findings, the Tribunal is satisfied that regs 5.19(5)(j) and (k) are met.

    Future employment – regs 5.19(5)(l), (m), (n)

18. Regulations 5.19(5)(l), (m) and (n) contain requirements relating to the future employment of the identified person.

19. Firstly, reg 5.19(5)(l) requires that the identified person will be employed on a full-time basis in the position for at least two years. This requirement does not apply in relation to occupations specified in an instrument made under reg 2.72(13) (see legislative instrument LIN 19/212): reg 5.19(7).

20. Secondly, reg 5.19(5)(m) requires that the terms and conditions of the identified person’s employment will not include an express exclusion of the possibility of extending the period of employment.

21. Finally, reg 5.19(5)(n) requires that the nominator’s business has the capacity to employ the identified person for at least two years and to pay the person at least the AMSR for the occupation each year. The AMSR is the earnings an Australian citizen or permanent resident earns or would earn for performing equivalent work on a full-time basis for a year in the same workplace at the same location: reg 1.03.

    Full-time employment for two years

22. As previously recorded in these reasons, the occupation of Cook is not specified in instrument LIN 19/212. Accordingly, the applicant is required to comply with reg 5.19(5)(l).

23. The employment contract dated 31 July 2023 produced to the Tribunal provides that the nominee is to devote substantially the whole of her time and attention during ordinary business hours of the applicant to the discharge of her duties. Mr Singh stated at the hearing that the nominee’s employment was on a full-time basis and the nominee stated that she would work full-time for the applicant if the nomination was approved. The period of employment is two years, to commence within one week of the grant of the nominee’s permanent visa. The nominee’s position is described in the contract as Cook and the duties listed in the schedule to the contract are consistent with those of a Cook.

24. On the face of it, this contract appears to indicate that the nominee will be employed on a full-time basis in the position for at least two years. However, the nominee’s current visa status has caused the Tribunal to consider this requirement further.

25. The nominee’s VEVO search discloses that she is currently the holder of a Subclass 494 visa, issued on 28 April 2022. The nominee stated at the hearing that her nominator for that visa was ALH Group and that she was employed by that nominator as a Cook at the Phoenix Hotel in Gympie. She agreed that the visa had been issued on 28 April 2022. The nominee further stated that she was aware that her Subclass 494 visa was subject to a condition that she would work only in a position in the business of the nominator or an associated entity of the nominator.

26. The Tribunal enquired from the nominee whether she would continue to work for ALH Group or for the applicant in the event that this nomination was approved. She said she would resign from her employment with ALH Group and would work full time for the applicant. She said that she was aware that such action would render her ineligible to continue to hold the Subclass 494 visa.

27. The Tribunal then enquired regarding the visa status of Mr Singh, noting that he was a secondary visa applicant under the nominee’s Subclass 494 visa but was not a secondary applicant in the nominee’s visa application related to this nomination. Mr Singh stated that he and the nominee had not been relationship when the related visa application was lodged in May 2019 and that he was therefore not a secondary applicant to that visa application. He thought that, if this nomination was approved and the nominee’s visa application was remitted to the Department for reconsideration, he may be able to apply to be added as a secondary applicant to that application. The representative expressed his view that such an application may not be possible.

28. The Tribunal does not intend to speculate on what action the nominee and Mr Singh may take if this nomination is approved. Having alerted the nominee and Mr Singh to the consequences of the nominee’s resigning from her employment with ALH Group and returning to work full time for the applicant, both Mr Singh and the nominee stated that the nominee would adopt that path. The Tribunal therefore finds that the nominee will be employed on a full-time basis in the position for at least two years.

    Terms and conditions of employment not to include an express exclusion of the possibility of extension

29. The employment contract does not contain an exclusion of the possibility of extension of the term of employment. Accordingly, the Tribunal finds that the terms and conditions of the nominee’s employment do not include an express exclusion of the possibility of extending the period of employment.

    The applicant’s capacity to employ the nominee for at least two years and to pay the AMSR for the occupation

30. As is recorded later in these Reasons, the applicant has determined the AMSR at $54,984.80 per annum. This is equivalent to a package including superannuation of $61,033.13 per annum.

31. Based on the information provided to the Department, the delegate was not satisfied that this requirement had been met. The information provided to the Department was limited to a financial statement for the 2018 financial year (with comparative figures for the 2017 financial year) and various business activity statements. The financial statement disclosed that the applicant had recorded a modest profit of only $4,391 in the 2018 financial year.

32. The applicant’s trading record has improved significantly since the date of the delegate’s decision. The applicant recorded profits of $70,970, $46,154 and $24,835 in the 2020 to 2022 financial years. The applicant’s business activity statements for the 2023 financial year record sales of $684,789 including GST, representing a substantial increase over the applicant’s total sales of $532,194 in the 2022 financial year. According to the applicant’s 2022 balance sheet, it had a substantial surplus of assets over liabilities on 30 June 2022.

33. The Tribunal is satisfied that the applicant’s business has the capacity to employ the nominee for at least two years and to pay her at least the AMSR for the occupation each year.

34. Given the above findings, the Tribunal is satisfied that regs 5.19(5)(l), (m) and (n) are met.

    Annual earnings – reg 5.19(5)(o)

35. Regulation 5.19(5)(o) provides that the requirements set out in reg 2.72(15) must be met, applying regs 2.72(15) and 2.72(16) as if reg 2.72(15)(a) did not apply and references to ‘the nominee’ and ‘the person’ were references to the identified person and the nominator respectively. Regulation 2.72(15) contains several requirements which must be met if the identified person’s annual earnings in relation to the occupation will not be at least the amount specified in the instrument IMMI 18/033. Regulation 2.57A provides for the meaning of ‘earnings’. Where reg 2.72(15) applies, it requires that:

    ·the AMSR for the occupation has been determined by the applicant by reference to instrument IMMI 18/033: reg 2.72(15)(c). The AMSR means the earnings an Australian citizen or an Australian permanent resident earns or would earn for performing equivalent work on a full-time basis for a year in the same workplace at the same location: reg 1.03.

    ·the AMSR, excluding any non-monetary benefits (as defined in reg 2.57A(3)), for the occupation is not less than the temporary skilled migration income threshold specified in the instrument (TSMIT), unless the AMSR for the occupation is not less than the TSMIT, and it is reasonable in the circumstances to disregard this criterion: regs 2.72(15)(d) and 2.72(16)(a);

    ·the identified person’s annual earnings in relation to the occupation will not be less than the AMSR for the occupation, unless it is reasonable in the circumstances to disregard this criterion, and the criterion in reg 2.72(10)(b) in relation to the need for a full-time position is disregarded under reg 2.72(10A): regs 2.72(15)(e) and 2.72(16)(aa). However, in this case, the power under reg 2.72(10A) does not arise;

    ·the identified person’s annual earnings, excluding any non-monetary benefits (as defined in reg 2.57A(3)), in relation to the occupation will not be less than the TSMIT, unless it is reasonable in the circumstances to disregard this criterion: regs 2.72(15)(f) and 2.72(16)(b); and

    ·either there is no information known to Immigration that indicates the AMSR for the occupation is inconsistent with Australian labour market conditions relevant to the occupation, or it is reasonable to disregard any such information: reg 2.72(15)(g).

36. The Tribunal is satisfied that the nominee’s annual earnings are $60,051. The specified amount of annual earnings in instrument IMMI 18/033 is $250,000. As the annual earnings in relation to the occupation will not be at least the specified amount, the requirements of reg 2.72(15) must be met.

    Regulation 2.72(15)(c) – has the applicant determined the annual market salary rate for the occupation in accordance with the instrument?

37. The applicant has provided evidence that it does have an Australian worker performing equivalent work to the nominee. The instrument provides that, in these circumstances, where there is a fair work instrument, a state industrial instrument or transitional instrument applicable to the nominated occupation, the AMSR is the annual earnings of an Australian worker contained in those instruments. The applicant has provided evidence that there is an award applicable to the nominated occupation, namely the Restaurant Industry Award (the Award). The applicant has produced evidence that the earnings of the equivalent Australian worker, calculated by reference to the relevant provisions of the Award for a Level 5/Grade 4 Cook, amount to $1,057.40 per week or $54,984.80 per annum. The Tribunal is satisfied that the applicant has determined the AMSR in accordance with the instrument at $54,984.80 per annum.

38. For these reasons the requirements of reg 2.72(15)(c) are met.

    Regulation 2.72(15)(d) – is the AMSR, excluding any non-monetary benefits, for the occupation, as determined, less than the TSMIT?

39. The TSMIT specified in IMMI 18/033 is $53,900 per annum. The AMSR as determined by the applicant in accordance with the instrument exceeds the TSMIT.

40. For these reasons the requirements of reg 2.72(15)(d) are met.

    Regulation 2.72(15)(e) – will the nominee’s annual earnings be less than the AMSR for the occupation as determined?

41. The nominee’s annual earnings will be $60,051. These annual earnings are not less than the AMSR of $54,984.80 as determined by the applicant.

42. For these reasons the requirements of reg 2.72(15)(e) are met.

    Regulation 2.72(15)(f) – will the nominee’s annual earnings, excluding any non-monetary benefits, be less than the TSMIT?

43. The nominee’s annual earnings, excluding any non-monetary benefits, will be $60,051. These annual earnings exceed the TSMIT of $53,900.

44. For these reasons the requirements of reg 2.72(15)(f) are met.

    Regulation 2.72(15)(g) – is there information known to Immigration that indicates that the AMSR for the occupation as determined is inconsistent with Australian labour market conditions relevant to the occupation?

45. The applicant provided evidence that the AMSR is in accordance with the relevant Award. There is no evidence before the Tribunal to indicate that the AMSR for the occupation as determined is inconsistent with Australian labour market conditions relevant to the occupation.

46. For these reasons the requirements of reg 2.72(15)(g) are met.

47. Given the above findings, the Tribunal is satisfied that reg 5.19(5)(o) is met.

    No information to indicate less favourable employment conditions – reg 5.19(5)(p)

48. Regulation 5.19(5)(p) requires that there is either no information known to Immigration that indicates the employment conditions (other than in relation to earnings) that will apply to the identified person are less favourable to those that apply, or would apply, to an Australian citizen or permanent resident performing equivalent work at the same location, or that it is reasonable to disregard any such information.

100.   The employment contract provides that the applicant will make superannuation payments on behalf of the nominee as required by law. The contract further provides that the nominee is entitled to annual leave and sick leave as specified in the contract. Other leave entitlements are contained in relevant legislation. There is no information before the Tribunal which indicates that the nominee’s employment conditions (other than in relation to earnings) are less favourable than those that apply, or would apply, to an Australian citizen or an Australian permanent resident performing equivalent work at the same location.

101. Given the above findings, the Tribunal is satisfied that reg 5.19(5)(p) is met.

Information required by the Minister – reg 5.19(5)(q)

102.   Regulation 5.19(5)(q) requires that the nominator has provided the information required by the Minister for the purposes of regs 5.19(k) to (n). Regulations 5.19(k) to (n) concern a genuine need for the identified person to be identified in the position under the nominator’s direct control; employment on a full-time basis for at least two years; the identified person’s terms and conditions not expressly excluding the possibility of extending the period of employment beyond this; and the nominator’s business having the capacity to employ the identified person for at least two years and pay them at least the AMSR.

103.   The Tribunal has set out in these Reasons the Tribunal’s consideration of the information provided by the applicant for the purposes of regs 5.19(k) to (n). The Tribunal finds that the applicant has provided the information required by the Minister for the purposes of those regulations.

104. Given the above findings, the Tribunal is satisfied that reg 5.19(5)(q) is met.

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

DECISION

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

Terrence Baxter
Member

ATTACHMENT – EXTRACTS FROM THE MIGRATION REGULATIONS 1994

5.19Approval of nominated positions—Subclass 186 (Employer Nomination Scheme) visa and Subclass 187 (Regional Sponsored Migration Scheme) visa

Application

(1)A person (the nominator) (including a partnership or unincorporated association) may apply to the Minister for approval of the nomination of a position in Australia.

(2)The application must:

(a)be made in accordance with approved form 1395 (Internet); and

(b)identify the position; and

(c)identify a person (the identified person) in relation to the position; and

(d)identify an occupation in relation to the position; and

(e)identify the subclass and stream to which the nomination relates, which must be one of the following:

(i)a Subclass 186 (Employer Nomination Scheme) visa in the Temporary Residence Transition stream;

(ii)a Subclass 187 (Regional Sponsored Migration Scheme) visa in the Temporary Residence Transition stream;

(iii)a Subclass 186 (Employer Nomination Scheme) visa in the Direct Entry stream;

(iv)Subclass 187 (Regional Sponsored Migration Scheme) visa in the Direct Entry stream;

(v)a Subclass 186 (Employer Nomination Scheme) visa in the Labour Agreement stream; and

(f)be accompanied by the fee mentioned in regulation 5.37; and

(fa)be accompanied by any nomination training contribution charge the nominator is liable to pay in relation to the nomination; and

(fb)identify the annual turnover (within the meaning of the Migration (Skilling Australians Fund) Charges Regulations 2018) for the nomination; and

(g)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.

Approval of nomination

(3)The Minister must, in writing:

(a)approve the nomination if the Minister is satisfied that the requirements set out in subregulation (4) are met; or

(b)otherwise—refuse to approve the nomination.

Requirements for approval—general

(4)The requirements to be met for the nomination to be approved are as follows:

(a)the application is made in accordance with subregulation (2);

(b)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;

(c)if it is mandatory, in the State or Territory in which the position is located, for a person to:

(i)hold a licence of a particular kind; or

(ii)hold registration of a particular kind; or

(iii)be a member (or a member of a particular kind) of a particular professional body;

to perform tasks of the kind to be performed in the occupation, the identified person is, or is eligible to become, the holder of the licence, the holder of the registration, or a member of the body, at the time of application;

(d)the nominator has a satisfactory record of compliance with the laws of the Commonwealth, and of each State or Territory in which the nominator operates a business and employs employees in the business, relating to employment;

(da)any debt due by the nominator as mentioned in section 140ZO of the Act (recovery of nomination training contribution charge and late payment penalty) has been paid in full;

(e)if the nomination relates to a visa in a Temporary Residence Transition stream—the requirements set out in subregulation (5) are met;

(f)if the nomination relates to a visa in a Direct Entry stream—the requirements set out in subregulation (9) are met;

(g)if the nomination relates to a visa in a Labour Agreement stream—the requirements set out in subregulation (14) are met.

Temporary Residence Transition stream—additional requirements for approval

(5)If the nomination relates to a visa in a Temporary Residence Transition stream, the following requirements must also be met:

(a)at the time the application is made, the identified person holds:

(i)a Subclass 457 (Temporary Work (Skilled)) visa granted on the basis that the person satisfied the criterion in subclause 457.223(4) of Schedule 2 as in force before 18 March 2018; or

(ii)a Subclass 482 (Temporary Skill Shortage) visa in the Medium‑term stream; or

(iii)for a person specified in a legislative instrument made by the Minister for the purposes of this subparagraph—a Subclass 482 (Temporary Skill Shortage) visa in the Short‑term stream; or

(iv)if the last substantive visa held by the identified person was a visa mentioned in subparagraph (i), (ii) or (iii)—a bridging visa granted on the basis that the person is an applicant for a visa mentioned in subparagraph (i) or (ii); or

(v)if the last substantive visa held by the identified person was a visa mentioned in subparagraph (i), (ii) or (iii)—for a person specified in a legislative instrument made under subparagraph (iii), a bridging visa granted on the basis that the person is an applicant for a visa mentioned in subparagraph (iii); or

(vi)if the last substantive visa held by the identified person was a visa mentioned in subparagraph (i), (ii) or (iii)—a bridging visa granted on the basis that the person is an applicant for a Subclass 186 (Employer Nomination Scheme) visa or a Subclass 187 (Regional Sponsored Migration Scheme) visa;

(b)the occupation:

(i)is listed in ANZSCO; and

(ii)has the same 4‑digit ANZSCO occupation unit group code as the occupation in relation to which the identified person’s most recently held Subclass 457 (Temporary Work (Skilled)) visa or Subclass 482 (Temporary Skill Shortage) visa was granted;

(c)unless a legislative instrument made under subregulation (8) exempts the identified person from the operation of this paragraph—the occupation must:

(i)be an occupation specified in an instrument made under subregulation (8) and in force at the time the application is made; and

(ii)apply to the identified person in accordance with an instrument made under that subregulation;

(d)either:

(i)there is no information known to Immigration that indicates that the identified person is not genuinely performing the tasks of the occupation as specified in ANZSCO; or

(ii)it is reasonable to disregard any such information;

(e)during the period of 4 years immediately before the application is made, the identified person held one or more of the following for a total period of at least 3 years:

(i)a Subclass 457 (Temporary Work (Skilled)) visa granted on the basis that the person satisfied the criterion in subclause 457.223(4) of Schedule 2 as in force before 18 March 2018;

(ii)a Subclass 482 (Temporary Skill Shortage) visa in the Medium‑term stream;

(iii)for a person specified in a legislative instrument made under subparagraph (a)(iii)—a Subclass 482 (Temporary Skill Shortage) visa in the Short‑term stream;

(f)unless paragraph (g) applies—during the period of 4 years immediately before the application is made, the identified person was employed in the position in relation to which the visa, or visas, mentioned in paragraph (e) were granted:

(i)for a total period of at least 3 years (not including any periods of unpaid leave); and

(ii)on a full‑time basis, with the employment being undertaken in Australia;

(g)if the visa, or visas, mentioned in paragraph (e) were granted in relation to an occupation specified in an instrument made under subregulation 2.72(13)—during the period of 4 years immediately before the application is made, the identified person was employed in the occupation for a total period of at least 3 years (not including any periods of unpaid leave);

(h)the nominator:

(i)was the standard business sponsor who last identified the identified person in a nomination approved under section 140GB of the Act; and

(ii)is actively and lawfully operating a business in Australia;

(j)the application identifies a need for the identified person to be employed in the position, under the direct control of the nominator;

(k)there is a genuine need for the identified person to be employed in the position, under the direct control of the nominator;

(l)the identified person will be employed on a full‑time basis in the position for at least 2 years;

(m)the terms and conditions of the identified person’s employment will not include an express exclusion of the possibility of extending the period of employment;

(n)the nominator’s business has the capacity to employ the identified person for at least 2 years and to pay the person at least the annual market salary rate for the occupation each year;

(o)the requirements set out in subregulation 2.72(15) are met, applying subregulations 2.72(15) and (16) as if:

(i)paragraph 2.72(15)(a) did not apply; and

(ii)references to the nominee were references to the identified person; and

(iii)references to the person were references to the nominator;

(p)either:

(i)there is no information known to Immigration that indicates that the employment conditions (other than in relation to earnings) that will apply to the identified person are less favourable than those that apply, or would apply, to an Australian citizen or an Australian permanent resident performing equivalent work at the same location; or

(ii)it is reasonable to disregard any such information;

(q)the nominator has provided the information required by the Minister for the purposes of paragraph (k) to (n).

Minister may vary certain Temporary Residence Transition stream requirements

(6)The Minister may, by legislative instrument, determine different periods of time for the purposes of paragraphs (5)(e), (f) and (g) for persons specified in the instrument.

(7)Paragraphs (5)(j), (k) and (l) do not apply in relation to occupations specified in an instrument made under subregulation 2.72(13).

(8)The Minister may, by legislative instrument, specify:

(a)occupations for the purposes of paragraph (5)(c); and

(b)persons who are exempt from the operation of that paragraph; and

(c)for each occupation, any matters for the purposes of determining whether the occupation applies to an identified person, including matters relating to any of the following:

(i)the nominator;

(ii)the identified person;

(iii)the occupation;

(iv)the position in which the identified person is to work;

(v)the circumstances in which the occupation is undertaken;

(vi)the circumstances in which the person is to be employed in the position.