ANNILAX ENTERPRISES PTY LTD (Migration)

ANNILAX ENTERPRISES PTY LTD (Migration) [2020] AATA 251 (31 January 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  ANNILAX ENTERPRISES PTY LTD
CASE NUMBER:  1816108
DIBP REFERENCE(S):  BCC2017/2207793
MEMBER:Mr S Norman
DATE:31 January 2020
PLACE OF DECISION:  Sydney
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Statement made on 31 January 2020 at 10:53am
CATCHWORDS
MIGRATION – Nomination – Direct Entry Nomination stream – term of employment – inconsistencies in organisation chart – resignation of staff – financial capacity – genuine need to employ – applicant to replace current chef – nomination approved upon review – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 245AR(1), 359(2), 359AA
Migration Regulations 1994 (Cth), r 5.19

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 17 May 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 Department delegate’s decision was lodged with the Tribunal.
The applicant applied for approval on 22 June 2017. 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)(d) of the Regulations.
The applicant (represented by its Director, Mr Anand GOPINATH) appeared before the Tribunal on 21 January 2020 to give evidence and present arguments. The Tribunal also received oral evidence from the associated visa applicant (Mr Manpreet SINGH). The applicant was represented in relation to the review by its registered migration agent.
For the following reasons, the Tribunal has decided to set aside the decision under review and substitute a decision approving the nomination.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant meets the requirements for approval of the nomination under the Direct Entry nomination stream set out in r.5.19(4), which is extracted in the attachment to this decision. For the nomination to be approved, all the requirements must be met.
The applicant/nominator (Annilax Enterprises P/L - trading as Namaste Indian Cuisine) lodged a nomination approval application under the Direct Entry Stream on 22 June 2017; the nominated occupation was for a Cook (ANZSCO: 351411); and the visa applicant/nominee was Mr Manpreet SINGH. The position is at Young NSW, and the visa applicant was to be employed for at least two years, with a salary of $54,500 per annum[1] (total package - $59,677.50[2]).
[1] PDF – p.5 (‘PDF” refers to the merged Department file in the Tribunal CASEMATE database).
[2] PDF – p.43.
The application is compliant: r.5.19(4)(a)
Regulation 5.19(4)(a) requires that the application for approval must be in the approved form, must be accompanied by the prescribed fee, and, 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.
Based on the evidence before it, the Tribunal accepts the application was made on the approved form, and accompanied by the fee prescribed in r.5.37; that it contained a written certification stating whether the nominator had engaged in conduct in relation to the nomination that contravenes s. 245AR(1)[3]; that it identified a person who was proposed as the visa applicant; that it identified an occupation in relation to the position that is listed in ANZSCO and has the same 6 digit code; and that it claimed a genuine need for the nominator to employ the person, as a paid employee, to work in the position under the nominator’s direct control.
[3] PDF – p.8.
Accordingly, the requirement in r.5.19(4)(a) is met.
Nominator is actively and lawfully operating a business in Australia: r.5.19(4)(b)
Regulation 5.19(4)(b) requires that applicant is actively, lawfully and directly operating a business in Australia.
With the application, it was said the applicant operated an Indian restaurant chain, the business consists of six (now five) restaurants located at Campbelltown (closed May 2018/9), Jindabyne, Young, Cooma, Camden and Goulburn in New South Wales. The information provided in the application included that the business employed 19 Australians/Permanent Residents and 27 foreign employees at the time of lodgement.[4] Also lodged was ASIC extracts[5]; Certificate of Registration on Change of Name[6]; and financial statements.
[4] PDF – p.5.
[5] PDF – from p. 15.
[6] PDF – p.25.
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.
The Tribunal has no evidence the nominator’s business activities include those relating to labour hire to an unrelated business.
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.
In their decision, the delegate noted the applicant had lodged:
·     Financial Statements for the period 1st July 2015 – 30th June 2016[7] (Profit from Ordinary Activities before income tax 20,066.32[8])
·     Financial Statements for the period 1st July 2016 – 30 June 2017[9] (Profit from Ordinary Activities before income tax 13,845.36[10])
·     Financial Statements for the period 1st July 2017 – 31 December 2017[11] (Profit from Ordinary Activities before income tax 21,159.45[12])
·     BAS[13]
·     organisation charts[14] (including for Young)
·     Employment contract[15]
[7] PDF – from p.17.
[8] PDF – p.19.
[9] PDF – from p.130.
[10] PDF –p.131.
[11] PDF – from p.141.
[12] PDF –p.143.
[13] PDF – from p.27; from p.55.
[14] PDF – p.82.
[15] PDF - from p.38.
The delegate also noted this nomination application was (then) one of 17 of Direct Entry nomination applications lodged by the nominator that were before the Department. In a Department letter of 11 April 2018, it was stated (in part):
Dividing the annual wage expenditure of $658,359 between the [then] 13 full-time employees, gives an average annual earnings of $50,643 per staff member. I note this figure is lower than the majority of proposed annual wages the business intends to pay the nominated positions … I also note that this does not take into account the wages of the additional 34 part-time staff members that the business purported to employ during that time.
In addition, based on the organisational charts submitted, of the 17 pending nominations 12 nominees are already working in the business part-time. Therefore, the business is also proposing to support these persons in a full-time capacity, along with an additional five fulltime positions.
As it does not appear that the business currently has financial capacity to support its current declared workforce, it is put to you, the nominator, that you do not have the ability to support the additional guaranteed annual earnings of $54,500 for a period of two years as required by regulation 5.19(4)(d).
Therefore regulation 5.19(4)(d) may not be met.
By response of 9 May 2018, the applicant lodged:
·     Submission letter from the business/company Director (Mr Gopinath) dated 7 May 2018[16]
·     Accountant letter dated 16 April 2018[17]
·     Updated organisation charts for the business - Campbelltown, Jindabyne, Young, Camden, Cooma and Goulburn restaurants
·     PAYG payment summaries for five former employees[18]
·     Resignation letters for seven former employees
·     Financial Statements for the period 1st July 2016 – 30th June 2017
·     Interim Financial Statements for the period 1st July 2017 – 31st December 2017
[16] PDF – from p.109.
[17] PDF – from p.116.
[18] PDF – from p.124.
On 17 May 2018, further documents were lodged with the Department:
· Selection of documents titled ‘Evidence of director’s experience in hospitality industry’
· Documents titled ‘Evidence of ownership of property of Young Branch’
The delegate noted the applicant’s (Mr Gopinath) submission dated 7 May 2018. In the submission, it was claimed inter alia the restaurant chain needs to employ persons in the role of Cooks. It was claimed that seven former employees had left the organisation and one staff member had passed away. This claim was corroborated by seven resignation letters.[19] However, of the seven (now former) employees listed in the submission, only two were included in the organisation charts provided on 8 November 2017 and considered as part of the delegate’s aforementioned wages calculation (see following):
·     Kamalpreet Singh, full-time Chef – Camden Branch (annual salary $54,500 per PAYG payment summary provided)
·     Cheand Sukhchain Juara, full-time Cook – Campbelltown Branch (annual salary $40,875 per PAYG payment summary provided)
[19] PDF – from p.134.
The delegate continued that because of such inconsistencies between the detailed organisation charts and the response to the Department letter, they only gave ‘little weight’ to the Director’s statement that ‘the salaries that were being paid to the employees that have left the organisation will be used to pay the new nominees who will be replacing them’. If taken at face value, the resignation of seven employees had only freed up capacity to employ another five full-time staff. Neither did this appear to support the future wage cost of the 17 (now 22) pending nominations or the 34 part-time staff shown on the detailed organisation charts provided. The delegate then placed little weight on the seven resignation letters and five PAYG payment summaries of the former employees provided.
The applicant had also referred to the potential for more employees to leave the business during the time it may take the Department to process the current nomination applications, and this would free up further wages to pay the nominated employees, once their visas had been granted. However, after noting their concern about the capacity of the business to pay the additional wages, the delegate was satisfied (words to the effect) this was little more than speculation[20], and they placed little weight on the submission.
[20] See PDF – from p.112.
Next, the applicant also referred to plans for the business in terms of future revenue generation but again this did not address the delegate’s concerns regarding the ability of the business to support the additional wages should any of the nomination applications be approved.
Further, the delegate was not satisfied that ‘we are ready to invest AUD $200,000.00 in the next 24 months, with a milestone based further injection of AUD $500,000.00’ was supported by any material evidence and therefore little weight was placed on this claim. The delegate also found the projected cash flow information and table provided, which referred to future predicted sales, did not reflect the business’ current financial position, or its ability to support its current stated workforce.
The delegate continued that in their submissions, the applicant referred to a contingency plan to support the additional wages of the nominees, which includes reference to the equity in his own home, personal bank account and the sale of part of the Young property. However, no material evidence supporting the claims regarding his personal equity had been provided and therefore the delegate placed little weight on same. That being said, the applicant did say the following:
- I have reasonable equity 1,040,000.00 (approximately) in my house and the restaurant at Young (owned by the company).
- Besides I have reasonable personal cash holding 34,184.00 in the bank.
- My company is financially strong … [21]
The delegate acknowledged the provision of pre-sale correspondence from Laliotis Lawyers regarding the contract of sale of land for property at 67 Lynch Street in Young. However, the delegate then noted this was not an actual contract of sale or evidence of property ownership. Furthermore, this property was claimed to be an asset of Annilax Enterprises Pty Ltd, but did not appear on the balance sheet in the interim Financial Statements for the period 1 July 2017 – 31 December 2017. Therefore, the delegate also placed little weight on this correspondence as evidence of the nominating businesses financial capacity. When discussed at hearing, the applicant conceded the Young property had not yet been sold and neither had monies from that, or his personal equity, been provided to the business.
The delegate also considered the updated organisation charts lodged with the Department. Per the information provided on these documents the business then employed 49 employees, consisting of 11 full-time and 38 part-time personnel. Further, as there was not apparently any significant change in the staffing composition of the business at the time of the delegate’s decision, to that which was used in the calculations in the Department letter dated 11 April 2018 (13 full-time and 34 part-time), the delegate placed little weight on the updated organisation charts lodged.
The delegate also considered the interim Financial Statements provided for the period 1 July 2017 – 31 December 2017. The profit and loss statement in this report indicated a gross profit from trading of $679,774.00 and total expenses of $658,614.56, resulting in a profit of $21,159.45 before income tax. As there has been no significant increase in the profits of the business that would allow it to support the additional annual salary costs of the nominated positions, little weight was place on the interim Financial Statements.
The delegate also considered the letter from the businesses external accountants, Taxwave, dated 16 April 2018 which stated the “company is making steady growth. The financial results of each period are better than the previous one”. The delegate acknowledged the business had recorded a better profit in the interim financial statements lodged, when compared to the Financial Statements for the period 1 July 2016 – 30 June 2017 ($21,159.45 before income tax compared to $0 profit before income tax in 2016/2017), this figure was not considered sufficient to cover the additional wage cost. Therefore, little weight was placed on the Accountant letter dated 16 April 2018.
Though relevant to the immediately above discussion, the external accountants also provided a similar letter dated 2 February 2017, which believed the business ‘should be able to pay wages and meet all obligations required under the RSMS application’.[22]
[22] PDF – p.58.
The delegate also considered a selection of documents titled ‘Evidence of director’s experience in hospitality industry’. While the delegate acknowledged the Director had experience in the industry within which his business operated, this did not satisfy the delegate the business had or would necessarily have, the financial capacity to support the additional wages of the nominees and therefore little weight was placed on these documents.
The delegate concluded the applicant did not mitigate their concerns the business did not have the financial capacity to meet the nominated salary[s] for a period of at least two years. This concern was compounded by the fact the nominee is one of 17 nominated visa applicants for the applicant’s business. On the basis of the evidence before the delegate, they were not satisfied the business had demonstrated the financial capacity to be able to pay the full-time salary for the nominated position for at least two years. Therefore, the nominator had not demonstrated the appointment will provide the nominee with full-time employment for at least two years. Therefore sub-regulation 5.19(4)(d)(i) had not been met, and the nominator did not meet regulation 5.19(4)(d). The delegate then found that r.5.19(4) did not apply to the nomination.
Next, the delegate stated the applicant had only provided claims against r.5.19(4). Since insufficient claims or evidence had been submitted against r.5.19(3), the applicant had failed to demonstrate that they met r.5.19(3).
Since neither r. 5.19(3) nor r.5.19(4) applies to the nomination, the Department refused the nomination approval lodged by ANNILAX ENTERPRISES PTY LTD’s on 22 June 2017.
By s.359(2) letter dated 17 September 2019, the Tribunal requested further information. By emailed submissions on 15 October 2019, the applicant lodged:
·     BAS (01/07/2017-01/09/2017) – PAYG withheld - $22,500 / Total sales - $491,910 / Total of salary, wages and other payments - $182,661
·     BAS (01/10/2018-31/12/2018) – PAYG withheld - $18,500 / Total sales - $410,589 / Total of salary, wages and other payments - $171,302
·     BAS (01/04/2018 – 30/06/2018) – PAYG withheld - $115,931 / Total sales - $609,848 / Total of salary, wages and other payments - $438,363
·     BAS (Jul 2018 – Sep 2018) – PAYG withheld - $18,500 / Total sales - $462,860 / Total of salary, wages and other payments - $171,302
·     BAS (01/10/2017-31/12/2017) – PAYG withheld - $22,500 / Total sales - $430,589 / Total of salary, wages and other payments - $168,003
·     Activity Statement (Apr 2019-Jun 2019): Total sales - $154,657 / Total salary, wages and other payments $8,894
·     BAS (01/01/2019-31/03/2019) – PAYG withheld - $15,516 / Total sales - $310,679 / Total of salary, wages and other payments - $81,720
·     Company Tax Return 2019 – Taxable net income $219,735 (also identified in the Detailed Profit and Loss Statement for the year ended 30 June 2019)
·     Employment agreement dated 3 June 2017
At hearing, the applicant explained that he now operated five restaurants (having closed the Campbelltown restaurant in May 2018/9), and that the closure of that restaurant resulted in the improved profitability of the business in the 2018/2019 financial year. However, it may also be that the two new restaurants the applicant is considering starting (in early 2020), may have (at least initially) a detrimental impact on the business profitability; something conceded by the applicant at hearing.
At hearing, the applicant also explained the restaurant in Young has two full time cooks and one part time cook. One of the full time cooks had been employed at the restaurant since 2017. The other full time cook had worked in the restaurant for around seven years. The most experienced cook had provided notice wishing to cease his employment in November 2019 (to start his own restaurant). However, the applicant had persuaded him to remain at the restaurant until he could be replaced (hopefully by the visa applicant). It was also explained that the visa applicant had entered Australia on a Student visa and had worked as a part time cook at the applicant’s Camden restaurant from May 2017 to December 2018 (at which time he ceased his employment). He had then returned to India on a number of occasions, in order to finalise his divorce proceedings from his former wife. That process had recently been finalised and the visa applicant now wished to commence work (replacing the aforementioned long term cook who had recently resigned).

Be that as it may, at hearing the Tribunal put information to the applicant pursuant to s.359AA of the Act. Amongst other matters, the Tribunal noted the delegate referred to 17 nominations then before the Department, and that the Tribunal was now aware of 22 merits review applications by the same nominator, before the Tribunal. Ten of these nominations had now been withdrawn. Given that each nomination may cost up to $500, and that each merits review application may cost up to $1,800, and that each nomination was lodged with the assistance and cost of a migration agent, the Tribunal said it would consider whether this impacted the credibility of the process (in its entirety) and also whether this impacted the Tribunal’s findings about the applicant’s credibility.
In response, the applicant said he believed inter alia that he could offer full time employment to the visa applicant for a two year period. That being said, the Tribunal accepts that until 2018/2019, the business did enjoy modest profit, and that the increased profitability in 2018/2019, may be in large part attributable to the closure of the Campbelltown restaurant.
Further, the Tribunal accepts the visa applicant was engaged part time as a cook at the Camden restaurant, between May 2017 to December 2018, and that a full time Cook position has now become available to him (given the aforementioned resignation of the most experienced full time cook).
In the circumstances, the Tribunal believes it should extend to the applicant the benefit of the doubt and find that the applicant has the ongoing capacity to employ the visa applicant 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.
Accordingly, the requirement in r.5.19(4)(d) is met.
No less favourable terms and condition of employment: r.5.19(4)(e)
Regulation 5.19(4)(e) requires that the terms and conditions of employment applicable to the nominated position will be no less favourable than those that are, or would be, provided to an Australian citizen or permanent resident performing equivalent work in the same workplace at the same location.
After having considered the contract of employment and other material information, the Tribunal accepts the proposed 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.
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.
The Tribunal has no evidence of any adverse information known to Immigration about the nominator or person associated with the nominator.
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.
The Tribunal has no evidence the nominator does not have 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.
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:
·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.
On 1 August 2017,[23] the applicant lodged evidence from a Regional Certifying Body (Regional Development Australia, Southern Inland see IMMI 17/059) advised the nomination satisfies the requirements. The Tribunal accepts the position is located in regional Australia.
[23] PDF – from p.46.
Regarding ‘domestic recruitment efforts, it was claimed:
Two methods of recruitment were employed to find a suitable candidate:
·     advertising on the Internet – the position was advertised on Jobsearch.com.au on 5 May 2017 AND on Seek.com.au on 4 May 2017[24]
·     the position was also listed with MBC Employment Services, Young
A total of seven responses were received in response to the advertisements.
·     The visa applicant was professionally qualified, had experienced Indian cooking at the commercial level, and therefore was offered the position after a trial and reference check (Manpreet Singh)
·     another applicant was professionally qualified and offered the position after a trial and reference check (Ravisher Singh Cheema)
·     Another applicant had no Australian/relevant qualification
·     another three applicants were said to have no relevant qualifications and no relevant experience
·     another applicant had no relevant Australian qualification
MBC Employment Services, Young could not provide any suitable candidate. As a result we decided to hire [the abovementioned candidates]
[24] PDF – from p.66.
After discussing it with the applicant at hearing, the Tribunal accepts the applicant made genuine attempts to fill the nominated position with an Australian citizen or permanent resident living in the same local area.
The position of Cook is described in ANZSCO as follows:
UNIT GROUP 3514 COOKS
COOKS prepare, season and cook food in dining and catering establishments.
Chefs, Fast Food Cooks and Kitchenhands are excluded from this unit group. Chefs are included in Unit Group 3513 Chefs. Fast Food Cooks and Kitchenhands are included in Minor Group 851 Food Preparation Assistants.
Indicative Skill Level:
Most occupations in this unit group have a level of skill commensurate with the qualifications and experience outlined below.
In Australia:
AQF Certificate III including at least two years of on-the-job training, or AQF Certificate IV (ANZSCO Skill Level 3)
In New Zealand:
NZ Register Level 4 qualification (ANZSCO Skill Level 3)
At least three years of relevant experience may substitute for the formal qualifications listed above. In some instances relevant experience and/or on-the-job training may be required in addition to the formal qualification.
Tasks Include:
oexamining foodstuffs to ensure quality
oregulating temperatures of ovens, grills and other cooking equipment
opreparing and cooking food
oseasoning food during cooking
oportioning food, placing it on plates, and adding gravies, sauces and garnishes
ostoring food in temperature controlled facilities
opreparing food to meet special dietary requirements
omay plan menus and estimate food requirements
omay train other kitchen staff and apprentices
Occupation:
351411 Cook

351411 COOK
Prepares, seasons and cooks food in a dining or catering establishment.
Skill Level: 3
In response to the Tribunal’s s.359(2) letter, the job description was said to include:
·Storing system of foodstuffs in different temperatures, Food storage-freezer and fridge content monitoring and stock rotation cooling and chilling food and using of them
·Baking (to bake all types of breads such as Roti, Naan, Paratha (stuffed bread) etc.
·Roasting (in Clay-oven(Tandoor); some of the famous entree dishes include Tandoori chicken, chicken tikka, Seekh Kabab and lamb cutlets etc)
·Frying (various vegetarian entree items like pakoras, samosas, pappadums, koftas, Vegetables, various vegetable dumplings etc.)
·Steaming (saffron basmati rice and various biryani’s(rice cooked with vegetable, chicken, lamb and variety of spices)
·Cutting vegetables, different herbs, preparing garnishes, preparation of the basic gravies and marination
·Preparing/cooking dishes using a variety of ingredients as per the requirements of the menu/day.
·Ensuring the quality of food at all times of preparation of food
·Proper Storage of raw and cooked food in different refrigerators and freezers to avoid cross contamination,
·Using different methods of cooking such as baking, deep frying, steaming, boiling, roasting and pan frying.
·Maintaining correct temperature of clay oven(Tandoor), deep fryer, refrigerators, freezers, cool room and other cooking equipment’s
·Using cooking equipment’s such as fryer, blenders, slicer, rice cooker, knives, chopping boards, microwaves, burners, clay oven(Tandoor) and food processors etc
·Storing cooked food at correct temperature
·Maintaining occupational health and safety procedures
·Ensuring FIFO (First in first out) procedures and supervising kitchen hand
·North and South Indian and Tandoori dishes
·Other specialisations may include entrées or desserts.
·Prepare stocks, soups, sauces, dips and accompaniments for Asian cuisines on daily basis
·Prepare salads, meat, poultry, seafood and vegetables items as on the menu
·Prepare, cook and serve, organise and prepare food
·Receive and store kitchen supplies
·Clean and maintain kitchen premises
·Prepare foods according to dietary and cultural needs
·Follow health, safety and security procedures and workplace hygiene procedures
Submissions also stated inter alia, the position (in Young) is in a steadily growing business; that the restaurant was recently opened; that the position will help strengthen operational structure; the restaurant required a good cook. At hearing, the applicant also explained the restaurant in Young has two full time cooks and one part time cook. One of the full time cooks had been employed at the restaurant since 2017. The other full time cook had worked in the restaurant for around seven years. The most experienced cook had provided notice wishing to cease his employment in November 2019 (to start his own restaurant). However, the applicant had persuaded him to remain at the restaurant until he could be replaced (hopefully by the visa applicant).
As noted above, the visa applicant had entered Australia on a Student visa and had worked as a part time cook at the applicant’s Camden restaurant from May 2017 to December 2018. He had then returned to India on a number of occasions, in order to finalise his divorce proceedings from his wife. That process had recently been finalised and the visa applicant now wished to commence work (replacing the aforementioned long term cook who had recently resigned).
The country information before the Tribunal indicates a scarcity of chefs/cooks in rural NSW.[25] After then discussing the work with the applicant and visa applicant, the Tribunal accepts there is a genuine need to employ the visa applicant to work under the applicant’s direct control. After considering the ANZSCO description and the work undertaken, the Tribunal accepts the tasks to be performed correspond to the tasks of the occupation specified by instrument (IMMI 12/096).
[25] See ‘Skill Shortages’, Department of Employment, Skills, Small and Family Business, , accessed 16 January 2020.
Accordingly the requirements of r.5.19(4)(h) are met.
Based on the findings above, the Tribunal is satisfied that the applicant meets the requirements of r.5.19 for approval of the nomination of the position in Australia.
DECISION
The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.
Mr S Norman
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).

[2020] AATA 251

31 January 2020

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Immigration

Administrative Law

Legal Concepts

Judicial Review

Statutory Construction

Procedural Fairness

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