Ankit Goyal (Migration)

Ankit Goyal (Migration) [2018] AATA 3483 (29 August 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Ankit Goyal
CASE NUMBER:  1710730
DIBP REFERENCE(S):  BCC2016/1398362
MEMBER:Karen McNamara
DATE:29 August 2018
PLACE OF DECISION:  Sydney
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.
Statement made on 29 August 2018 at 11:43am

CATCHWORDS
Migration – Nomination refusal – Regional Sponsored Migration – Regional restaurant – Business growth – Direct entry scheme – Need for a paid employee – Nominated position of Cook – Favourable conditions – Nominees salary comparable to other Chefs – Difficulty in finding local staff – Decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 245AR, 359AA
Migration Regulations 1994 (Cth), rr 1.13A, 1.13B, 5.37
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration on 2 May 2017 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 8 April 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 (r.5.19(3)) stream and a Direct Entry nomination (r.5.19(4)) stream. If the application is made in accordance with r.5.19(2) and meets the requirements of either stream, then the application must be approved. If any of the requirements are not met then the application must be refused: r.5.19(5).
In this case, the applicant has applied for approval of a nomination, seeking to satisfy the criteria in the Direct Entry Nomination stream.
The delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19(4)(a)(ii) of the Regulations because the delegate was not satisfied that the applicant demonstrated a need for the nominator to employ a paid employee to work in the position of fulltime Cook under the nominator’s direct control.
Background
The applicant lodged an application for an employer nomination approval for the position of Cook – ANZSCO 351411 under the Regional Sponsored Migration Direct Entry stream. The proposed salary is $55,000 per annum.
On 20 April 2017, the applicant was asked to provide the department with evidence demonstrating a need to employ a paid employee to work in the nominated position in support of regulation 5.19 (4(a)(ii). The applicant was requested to provide current financials and a current organisational chart for the business. The applicant was provided seven days to respond
On 26 April 2017, the applicant provided the following information to the Department
·Financial statements for the year 2016
·Business Activity Statements for the year 2016
·Organisational Chart 2017 for Pinch of Spice Restaurant
The delegate noted that Department records indicate that a Pinch of Spice Restaurant have nominated four Cooks and had been approved four Cooks. These four Cooks were not shown on the Organisation Chart 2017 provided by the applicant. The applicant provided four resignation letters from employees of the Pinch of Spice Restaurant. These employees were not the four Cooks that have been recently nominated and approved in Cook positions for the restaurant.
Departmental checks were also undertaken in the Department’s systems as to whether the applicant had provided further documents and information. At time of the delegate’s decision no further documents were received by the Department.
The delegate found based on the evidence presented the application for approval failed to identify a need for the nominator to employ a paid employee to work in the position under the nominator’s direct control.
The applicant applied to the Tribunal on 19 May 2017 for review of the delegate’s decision.
Information to the Tribunal
On the 14 February 2018, the Tribunal wrote to the applicant pursuant to section 359(2) of the Act (dispatched by email to the authorised recipient), requesting the applicant to provide updated and current information that would assist to determine whether the criteria in r. 5.19(2) & (4) of the Regulations were met.
In response to this request the following information was provided to the Tribunal;
·            RCB advice form 1404
·            Tax invoices and tax receipts from Brighton Institute of Technology
·            Fairfax media receipt for advertising 25 November 2015
·            Advertisement appearing on Indeed on line for position of Cook 17 March 2016
·            Evidence position was advertised
·            Job advertisement listed in the Border Mail dated 5 April 2017
·Position description full-time Cook
·Contract of employment between Pinch of Spice and the nominee Sabina signed and dated 25 February 2018
·            Letter of support dated 12 February 2018 from Sire Professional Group
·            Letter of resignation Mohinder Singh dated 17 August 2015
·            Letter of resignation Tanvir Maru dated 10 March 2016
·            Letter of resignation Rohit Sharma dated 28 April 16
·            Letter of resignation Ranjit Kaur dated 4 April 2017
·            ASIC and ABN extract
·            Information on Albury City
·            BAS returns July 2015 to June 2017
·            Financial statements financial year ending 30 June 2016
·            Financial statements financial year ended 30 June 2017
·            Article from hospitality magazine dated 19^th of March 2015
·            Photographs of restaurant interior
·            Menu
·            Organisation chart
·            Email submission dated 28 February 2018 from Rodney M Calhaem
On 27 April 2008, the Tribunal received duplicates of the aforementioned from the applicant’s registered migration agent.
On 8 May 2018, the applicant sought to reschedule the hearing due to family illness. The hearing was rescheduled to the 6 June 2018, with the Tribunal subsequently rescheduling the hearing to 17 July 2018.
At hearing, the Tribunal requested the applicant to provide financial documentation including the businesses BAS returns as lodged via the ATO portal, the Company 2017 tax return and bank statements from July 2017 to July 2018 showing payment of wages to staff.
The Tribunal received the following documents on 6 August 2018;
·BAS returns not lodged with the ATO despite the Tribunal requesting lodged returns.
·Individual tax return 2017 from Mr Ankit Goyal also not submitted to the ATO.
·Business transaction account with the Commonwealth Bank from 4 July 2017 to 30 June 2018.
·National Australia bank personal account extract 6 September 2007 to 29 June 2018.
·PAYG payment summaries for numerous employees dated 20 July 2018
·Email submission dated 16 July 2018 Rodney Calhaem.
The applicant, Mr Ankit Goyal appeared before the Tribunal by video conference on 17 July 2018 to give evidence and present arguments.
The applicant was represented in relation to the review, by its registered migration agent. The representative attended the Tribunal hearing.
For the following reasons, the Tribunal has decided to set aside the decision under review and substitute a decision approving the nomination.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant meets the requirements for approval of the nomination under the Direct Entry nomination stream set out in r.5.19(4), which is extracted in the attachment to this decision. For the nomination to be approved, all the requirements must be met.
The application is compliant: r.5.19(4)(a)
Regulation 5.19(4)(a)(i) requires that the application for approval must be in the approved form, must be accompanied by the prescribed fee, and, where applicable, must include the required written certification relating to conduct that contravenes s.245AR(1). The application must also identify a need for the nominator to employ a paid employee to work in the position under their direct control. (r.5.19(4)(a)(ii)).
Based on the material in the Department’s file, the Tribunal is satisfied that the application was made on the approved form. As the position is located in regional Australia, no fee is payable (r5.37(2)(a)). The application also included written certification relating to conduct that contravenes s.245AR(1) of the Act, declared and signed by the applicant. Accordingly the requirements of r.5.19(4)(a)(i) are met.
In considering whether the application for approval identifies a need for the nominator to employ a paid employee to work in the position under the nominator’s direct control, the Tribunal has had regard to the evidence before it, including written submissions and the oral evidence received at the hearing by Mr Ankit Goyal.
The Tribunal accepts on the evidence before it that the nominator operates numerous food establishments in Albury NSW, including the Pinch of Spice Restaurant, Crav’n Dine and the Green Zebra Cafe. The business reported an annual turnover for the 2016/17 financial year of $2,406,754 with net assets of $103,128. BAS returns provided by the applicant for 2018 financial year show sales of $1,693,114; it employs approximately 23 staff, including 9 fulltime and 10 -12 casual staff and 2 part time, with payroll for the 2018 financial year as per the BAS returns provided by the applicant, of $467,619.
ASIC records provided by the applicant to the Tribunal show that the entity name Ankit Goyal was registered on 1 September 2008. Mr Goyal gave evidence at the hearing that he moved to Albury in 2009 and has owned and operated various food establishments since.
The applicant told the Tribunal that he has encountered problems in attracting and retaining suitably qualified and experienced people to work as Cooks in his food establishments in Albury. Competition from three other Indian Restaurants in the town, made it difficult to attract and retain staff. Three of the Cooks appearing on the current organisation chart hold 457 visa’s with the fourth application pending.
The applicant told the Tribunal the need for a fifth Cook is based on organisational requirements in fulfilling a rotational roster with two Cooks on duty at the one time. The financial statements provided by the applicant indicate a growth in sales over the last four financial years. At hearing the applicant advised that during the restaurant’s busiest times, approximately 140 dishes were prepared in one session.
On the totality of evidence before it, the Tribunal is satisfied that the application has identified a need for the nominator to employ a paid employee to work in the position under the nominator’s direct control. Accordingly, the requirement in r.5.19(4)(a) (ii) are met.
As the criteria in both r.5.19(4)(a)(i) and (ii) are satisfied, accordingly the requirements in r.5.19(4)(a) are met.
Nominator is actively and lawfully operating a business in Australia: r.5.19(4)(b)
Regulation 5.19(4)(b) requires the applicant is actively, lawfully and directly operating a business in Australia.
Based on the material provided to the Tribunal, including, financial statements, Business Activity Statements, ASIC Company details, payroll advice and evidence from Mr Goyal about the operations of the business, the Tribunal is satisfied the applicant is actively and lawfully operating a restaurant business in Australia and directly operates that business.
Accordingly, the requirement in r.5.19(4)(b) is met.
Position is not labour-hire: r.5.19(4)(c)
Regulation 5.19(4)(c) applies to nominators whose business activities include those relating to labour hire to an unrelated business. In these cases, the nominated position must be within the business activities of the nominator.
There is no evidence before the Tribunal to suggest that the applicant’s business is involved in labour hire.
Accordingly, the requirement in r.5.19(4)(c) does not apply
Term of employment of the visa holder: r.5.19(4)(d)
Regulation 5.19(4)(d) requires the nominee to be employed in the nominated position for at least 2 years full time, and the terms and conditions of that employment do not expressly exclude the possibility of an extension.
The Tribunal examined the financial information submitted by the applicant. The Tribunal notes that the BAS returns and 2017 Tax return do not show evidence of being submitted to the ATO, therefore the Tribunal provides little weight to these documents on their own. However, the applicant has provided evidence of regular payment of wages to staff through the provision of bank statements for the period 4/07/2017 to 30/06/2018 and PAYG issued to staff for the 2018 financial year. The Tribunal notes the total amount of the issued PAYG’s is $455,039, which is commensurate with the BAS returns provided by the applicant.
At Hearing Mr Goyal advised that Sabina is not working in the position, however he advised that he would keep the position open for 2 years for Sabina pending approval of her visa application.
The Tribunal is satisfied the applicant can afford to pay a salary of $55,000 per annum to the nominee and is satisfied that the nominee will be employed on a full time basis in the position for at least 2 years. Accordingly, the requirement in r.5.19(4)(d)(i) is met.
The Tribunal has had regard to the signed Contract of Employment dated 25 February 2018, which sets out the terms and conditions of the nominee’s employment. The contract stipulates that the position is full time commencing on approval of the nominee’s visa and will continue until terminated in accordance with the agreement. Accordingly, the requirement in r.5.19(4)(ii) is met.
As the criteria in both r.5.19(4)(d)(i) and (ii) are satisfied, accordingly the requirements in r.5.19(4)(d) are met.
No less favourable terms and condition of employment: r.5.19(4)(e)
Regulation 5.19(4)(e) requires that the terms and conditions of employment applicable to the nominated position will be no less favourable than those that are, or would be, provided to an Australian citizen or permanent resident performing equivalent work in the same workplace at the same location.
The contract of employment dated 25 February 2018 sets out the terms and conditions of employment and indicates that the nominee’s salary is $55,000 per annum excluding superannuation. The Tribunal has received PAYG’s of other Cooks within the business and bank statements confirming that Cooks are being paid $55,000 per annum. The Tribunal is satisfied the nominee will be paid in accordance with the terms of employment.
The Tribunal is satisfied on the totality of the evidence before it that the terms and condition applicable to the position will be no less favourable than those that would be provided to an Australian citizen or permanent resident performing equivalent work in the same workplace at the same location.
Accordingly the requirements of r.5.19(4)(e) are met.
No adverse information known to Immigration: r.5.19(4)(f)
Regulation 5.19(4)(f) requires that there is no adverse information known to Immigration about the nominator or person associated with the nominator; or it is reasonable to disregard any such information. For these purposes, ‘adverse information’ and ‘associated with’ have the meaning given in rr.1.13A and 1.13B.
In accordance with s.359AA, the Tribunal put to the applicant information before the Tribunal that suggests there is adverse information known to the Department about the nominee, Sabina. The particulars of the information being that Department movement records show that the nominee departed Australia on 21 March 2016 and that she was for a period of time, in Australia unlawfully. The applicant responded orally.
The applicant said that he was not aware of the nominee being in Australia unlawfully. He was made aware that she had some visa problems but was not aware of the specifics and that she had left Australia to sort out her visa. The applicant’s registered migration agent confirmed that his client had no knowledge of the specific’s regarding the nominee’s visa history or that she was for a period in Australia unlawfully.
Mr Goyal told the Tribunal that he employed the nominee after she submitted her resume to him and that she worked for him for one month on a trial basis then she returned to India. He told the Tribunal that despite advertising for the position of Cook he did not receive many applications and advised of the difficulties he has encountered in attracting suitably qualified applicants to work in his restaurant in Albury. The nominee was suitably qualified and was good with making the curries and sauces. He became aware that she did not hold a substantive visa at the time he employed her and that they mutually agreed that she should return to India to sort out her visa.
On the evidence before it, the Tribunal is satisfied that the applicant did not have knowledge of the nominee’s visa history, specifically in regard to the nominee being for a period in Australia unlawfully. The nominee left Australia on the 21 March 2016. Tribunal records indicate she has not lodged an application for review with the Tribunal. Accordingly, the Tribunal is satisfied it is reasonable to disregard the information.
Accordingly the requirements of r.5.19(4)(f) are met.
Satisfactory compliance with workplace relations laws: r.5.19(4)(g)
Regulation 5.19(4)(g) requires that the applicant has a satisfactory record of compliance with the laws of the Commonwealth, and of each State or Territory in which the applicant operates a business and employs employees in the business, relating to workplace relations.
There is no evidence before the Tribunal that indicates the applicant does not have a satisfactory record of compliance with the relevant Commonwealth and Territory workplace relations laws.
Accordingly the requirements of r.5.19(4)(g) are met.
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 an 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.
In this case, the applicant claims to meet the requirements in r.5.19(4)(h)(ii). The Tribunal has considered each of these requirements as follows;
The evidence before the Tribunal indicates that the applicant’s business, which is operated by the applicant and the position are located in Albury, NSW postcode 2640, which is a postcode specified in the relevant instrument as being in regional Australia, accordingly r.5.19(4)(h)(ii)(A) and (E) are met.
The Tribunal next considered whether there is a genuine need for the applicant to employ a Cook and for the tasks of that position. The evidence before the Tribunal indicates the applicant is the owner of an Indian Cuisine restaurant in Albury NSW. Mr Goyal gave evidence at the hearing that the business has experienced growth and to meet organisational requirements he requires five Cooks in order to maintain a roster of two Cooks per shift. Currently he is operating by utilising casual staff and himself to assist in the preparation of meals.

The nominee, Sabina has not been employed by the applicant full time in the position of Cook. The Tribunal has considered evidence supporting the nominee’s suitability in so far as her experience and qualifications for the position. The applicant told the Tribunal that, the nominee holds a Cert 4 in cooking and is obtaining further experience in India.
The Tribunal is satisfied that there is a genuine need for a paid employee to work in the position of Cook under the nominator’s control. The Tribunal is also satisfied that the tasks of the position to be performed correspond to the tasks of an occupation specified by the Minister in an instrument in writing for this sub-subparagraph. IMMI 17/058 provides that Cook is a specified occupation for the purposes of r.5.19(4)(h)(ii)(D). Cook with ANZSCO code 351411 is found in Schedule 1 of this Instrument. Furthermore, the Tribunal is satisfied the occupation is applicable to the person identified under subparagraph (a)(ii) in accordance with the specification of the occupation. Accordingly the requirements of r.5.19(4)(h)(ii) (B) and (D) and (DA) are met.
The Tribunal is satisfied that the material and evidence provided supports the applicant’s claims that they have made efforts to fill the position locally but according to the applicant’s evidence, he has had difficulty doing so. The applicant advised the Tribunal that he advertised the position as recently as February 2018 and received no applications. Prior to this, he advertised in the Border Mail on 5 April 2017 and previously online on 17 March 2016.
The Tribunal also gives weight to the RCB’s advice that the position cannot be filled locally. On the evidence, the Tribunal is satisfied that the position cannot be filled by an Australian citizen/permanent resident living in the same local area. Accordingly, the requirements of r.5.19(4)(h)(ii)(C) are met.
The Tribunal has received the completed Form 1404 dated 25 May 2016 from the relevant RCB, Regional Development Australia, Murray, indicating that they are satisfied regarding the matters specified in paragraph (e) and sub subparagraphs (B) and (C). On this basis, the Tribunal is satisfied that r.5.19(4)(h)(ii)(F) is met.
Given the above, the Tribunal finds that the requirements of r.5.19(4)(h)(ii) are met and accordingly r.5.19(4)(h) is met as a whole.
Conclusion
Based on the findings above, the Tribunal is satisfied that the applicant meets the requirements of r.5.19 for approval of the nomination of the position in Australia.
DECISION
The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.
Karen McNamara
Member

ATTACHMENT - Extracts from the Migration Regulations 1994
5.19Approval of nominated positions (employer nomination)
…
(2)The application must:
(a)be made in accordance with approved form 1395…; and
(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).

[2018] AATA 3483

29 August 2018

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Appeal