Arish & Aleesa Pty Ltd (Migration)

[2021] AATA 556

Arish & Aleesa Pty Ltd (Migration) [2021] AATA 556 (22 January 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Arish & Aleesa Pty Ltd

CASE NUMBER:  1831096

HOME AFFAIRS REFERENCE(S):          BCC2017/915599

MEMBER:Nicola Findson

DATE:22 January 2021

PLACE OF DECISION:  Perth

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

Statement made on 22 January 2021 at 3:23pm

CATCHWORDS

MIGRATION – nomination approval of a position – position of Cook – Direct Entry Nomination stream – nominated position could be filled by an Australian citizen or permanent resident – genuine need for the position – terms and conditions of employment – all candidates interviewed were deemed unsuitable – regional certification – decision under review set aside       

LEGISLATION

Migration Act 1958, s 245
Migration Regulations 1994, r 5.19

CASES

Bharaj Construction Pty Ltd v MIBP [2016] FCCA 902

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 4 October 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).

2. The applicant applied for approval on 8 March 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 stream (r.5.19(3)) ad a Direct Entry nomination stream (r.5.19(4)). If the application is made in accordance with r.5.19(2) and meets the requirements of either stream, then the application must be approved. If any of the requirements are not met then the application must be refused: r.5.19(5).

3. In this case, the applicant has applied for approval of a nomination, seeking to satisfy the criteria in the Direct Entry nomination stream.

4. The applicant trades as a Café – ‘Delicious Fingers’ – in Melville, Western Australia, 6156.  At the time of application, it nominated the position of Cook (ANZSCO 351411), for approval.

5. The delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19(4)(h)(ii)(C) of the Regulations, because the delegate was not satisfied that the applicant had demonstrated that the position could not be filled by an Australian citizen or an Australian permanent resident who is living in the same local area as that place.

6. On 9 October 2020, the Tribunal wrote to the applicant, inviting it to provide further information to demonstrate all the relevant requirements of r.5.19(2) and (4). The applicant responded by the due date and provided to the Tribunal additional and updated evidence in support of the application, including but not limited to:

   ·ASIC records confirming the applicant’s company registration and the ABN record;

   ·Company Tax Returns for the years ended 30 June 2018 and 2019;

   ·Profit and Loss Statements for the years ended 30 June 208 and 2019;

   ·Business Activity Statements (BAS) for the period 1 July 2018 to 30 June 2020;

   ·Current organisational structure chart;

   ·Job description for the nominated position;

   ·Current job advertisements for a Cook in Perth;

   ·Payroll records in relation to the nominee (including payslips, PAYG information and updated salary remuneration information);

   ·Regional Certifying Body advice.

7. On 17 December 2020, co-owner and Director, Ms Nanu Maya Timilsina Gurung appeared before the Tribunal, to give evidence and present arguments on behalf of the applicant. The applicant was represented in relation to the review by its registered migration agent. The migration agent also attended the Tribunal hearing.

8. 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

9. 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)

10. 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.

11. The Tribunal has had regard to the information of the Department’s file as to the nomination, and is satisfied that these requirements are met.  The application for approval was made on the approved form and was accompanied by the prescribed fee.  The relevant s.245AR(1) certification was also provided in the application form.

12. At the hearing, Ms Gurung outlined to the Tribunal that she and her husband had been successfully operating the applicant business since they purchased it in early 2016.  Ms Gurung’s evidence to the Tribunal was that the applicant needed to fill the nominated position from the outset.  She said that her husband – co-owner and Director, Mr Dil Gurung, who is also a Chef - was unable to work in the full time role not only because of on-going health issues preventing him from standing for long periods (which evidence is supported by material before the Tribunal), but also to allow him to give attention to other areas of the business.  She indicated to the Tribunal that the position had previously been filled by the previous owner, and he continued to work in the business, alongside her husband, until the position was able to be filled by the applicant.

13. The Tribunal has considered Ms Gurung’s oral evidence and the documentary evidence before it.  The Tribunal finds that the applicant’s reasons for wanting to employ a Cook are reasonable and that it is evident one is identifiably and justifiably needed in the business. It is also apparent that the business is in a financial position to afford to pay a salary for a Cook.

14. The Tribunal is satisfied, based on Ms Gurung’s oral evidence, along with the supporting information, that there is an identified a need for the nominator to employ a paid employee to work in the position under their direct control.  The tasks that the business needs the position to undertake are discussed in more detail below.

15. 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)

16. Regulation 5.19(4)(b) requires that the applicant is actively, lawfully and directly operating a business in Australia.

17. Having considered the material before it, including the nominator’s financial statements and business registration records, the Tribunal is satisfied that the nominator is actively and lawfully operating a business in Australia and directly operates that business.

18. Accordingly, the requirement in r.5.19(4)(b) is met.

    Position is not labour-hire: r.5.19(4)(c)

19. 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.

20. There is no evidence before the Tribunal to indicate that the applicant is involved in labour hire activities.  The Tribunal is satisfied that the employment contract and organisational chart confirm that the nominee will work in the applicant’s direct employ. 

21. Accordingly, the Tribunal finds that the position is not related to labour-hire and that the requirement in r.5.19(4)(c) is met.

    Term of employment of the visa holder: r.5.19(4)(d)

22. 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. 

23. The applicant has provided information and updated financial reports to the Tribunal that indicate the company has the financial capacity to employ the nominee at the specified salary, and the Tribunal accepts this evidence. 

24. It is now over two years since the delegate’s decision, and documents provided by the applicant show that the nominee has continued to be employed in the nominated position. 

25. The Tribunal has also had regard to the terms and conditions of employment as set out in the employment contract between the applicant and nominee, as well as other payroll information provided by the applicant.  The information indicates that the nominee will be employed as a Cook on a full-time basis for at least two years with a base salary of $58,000 plus superannuation.  There is nothing in the contract that expressly excludes the possibility of extending the employment period. 

26. Having regard to the totality of the evidence before it, the Tribunal is satisfied that the applicant has the financial capacity to provide the nominee with employment in the nominated position for at least two years full time and that the terms and conditions of that employment do not exclude the possibility of an extension.

27. Accordingly, the requirement in r.5.19(4)(d) is met.

    No less favourable terms and conditions of employment: r.5.19(4)(e)

28. 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.

29. The Tribunal has had regard to the terms and conditions of employment as set out in the (updated) contract of employment.  The contract provides for the nominee’s entitlements and indicates that the base salary will be $58,000 plus superannuation, for a 38-hour week.  The Tribunal has considered payscale.com.au information indicating that the annual salary for a Cook in Western Australia ranges from $37,000 to $56,000 per annum.  The information from joboutlook.gov.au records the average weekly pay for a Cook in Australia is $1,068 (an annual salary of $55,536). The Tribunal has considered that the nominee’s terms and conditions of employment are in accordance with the Fair Work Act 2009.

30. The Tribunal is satisfied that the nominee is being, and will continue to be, paid in accordance with the terms of the employment contract, and that the employment contract reflects current employment laws.

31. On the basis of the information before it, the Tribunal is satisfied that the base salary of the nominee is within the appropriate range of that normally paid to an experienced and valued Cook working in Western Australia. The Tribunal is accordingly satisfied that the terms and conditions applicable to the nominated 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.

32. Accordingly the requirements of r.5.19(4)(e) are met.

    No adverse information known to Immigration: r.5.19(4)(f)

33. 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. 

34. The Tribunal notes that on 25 September 2018, the Department issued a certificate pursuant to s.376 of the Act, purporting to cover ‘dob in’ information given to the Minister in confidence.  At the hearing, the Tribunal informed the applicant of the existence of the certificate and discussed the validity of the non-disclosure certificate with the applicant. When invited to do so, the applicant did not make any submission as to the validity of the certificate.  Notwithstanding the certificate, the applicant was advised of the gist of the information and given the opportunity to respond to adverse information that would be the reason or part of the reason for affirming the decision under review.   The Tribunal put to the applicant that information had been received from a source alleging that another employee (unsuccessfully) nominated by the applicant for a different position, had paid the restaurant $50,000 to secure sponsorship, and that he had paid his taxes and wages to get pay slips, but he did not work at the restaurant at all.

35. By way of response, Ms Gurung strongly refuted the ‘dob in’ information. She indicated that both she and her husband had worked extremely hard to purchase the applicant business and to make it a success.  She said that it did not make any sense that she or her husband would take a relatively small amount of money (in comparison to the profitability of the business) from an employee to secure a migration outcome for them, or jeopardize their livelihood.  Ms Gurung told the Tribunal that the allegations were simply untrue.  She did not seek additional time to respond to the adverse information.

36. The Tribunal decided that the s.376 was invalid because it was unsigned and unclear on its terms.  Rather, it merely describes the information covered by the certificate.  Notwithstanding that the Tribunal considered the certificate to be invalid, it ultimately decided not to release the allegation report in full to the applicant because it may have disclosed the identity of a person(s) who had an expectation of anonymity when providing an allegation(s) to the Department.

37. The Tribunal is of the view that the documentary (including financial documents) and oral evidence received by the Tribunal and which the Tribunal had regard to in conducting its review is inconsistent with the allegations received about the applicant. 

38. After careful consideration, the Tribunal is persuaded that it should not have regard to the adverse information the subject of the s.376 certificate.

39. Accordingly, the Tribunal finds it is reasonable to disregard the information, and the requirements of r.5.19(4)(f) are met.

    Satisfactory compliance with workplace relations laws: r.5.19(4)(g)

40. 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.

41. There is no evidence before the Tribunal to suggest that the applicant does not have a satisfactory record of compliance with workplace relation laws.

42. 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)

43. Regulation 5.19(4)(h) contains a number of alternative requirements. These are set out in detail in the attachment to the decision and those relevant to this matter are as follows:

    ·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.

    Location of the position and the business

44. The first consideration under r.5.19(4)(h)(ii) is whether the position is located in regional Australia. Regulation 5.19(16) provides that ‘regional Australia’ is defined by the legislative instrument.

45. The Tribunal has considered the current legislative instrument (IMMI18/037), however, Schedule 3 of IMMI 18/037 states that it applies only to applications lodged on or after 8 March 2018[1].  The Tribunal notes that IMMI 18/037 repealed the previous legislative instrument (IMMI 17/059)[2].

    [1] Relevantly, IMMI 18/037, Schedule 3 – Application of this Instrument states:  “(1)  This instrument applies in relation to the following: (a) an application for approval of a nomination in relation to the Subclass 187 (Regional Sponsored Migration Scheme) visa made on or after 18 March 2018…”

    [2] See Schedule 4 of IMMI 18/037

46. When IMMI17/059 commenced on 17 November 2017, it did not include any saving or transitional provisions and was silent on how applications that had been made and not finally determined on the date it came into effect were to be treated.  The Tribunal notes that the Department made a public statement in its Skilled Visa E-News November 2017 newsletter indicating that IMMI 17/059 only applied to nomination applications made on or after 17 November 2017.

47. Given that neither the current instrument nor its immediate predecessor can be relied upon, in order for the Tribunal to reach a finding in respect of whether the position is located in regional Australia, the Tribunal has considered the legislative instrument that applied at the time the applicant lodged the nomination application.  That legislative instrument is IMMI 16/045.

48. In this case, the position is located in Melville, Western Australia, 6156, and at the time of application, this location/postcode was considered regional Australia, as per Schedule B of IMMI 16/045.  Accordingly, the Tribunal finds that the requirements of sub-paragraph 5.19(4)(h)(ii)(A) and (E) are met.

    Genuine need for the paid position, which cannot be filled by an Australian citizen or an Australian permanent resident

49. Subparagraph 5.19(4)(ii)(h)(B) requires the Tribunal to be satisfied that there is a genuine need for the applicant, as the nominator, to employ a paid employee to work in the position under the nominator’s direct control.

50. In considering this issue, the Tribunal has taken into account the information provided to the Tribunal regarding the nature of the business and the explanation as to why there is a genuine need for a Cook in the business.  In particular, it takes into account the business operations of the applicant, and that the nominated position has previously been occupied by Australian citizen(s), namely the previous owner as well as Mr Dil Gurung. The Tribunal accepts that the applicant genuinely requires a position performing tasks corresponding to those of a Cook.  

51. Subparagraph 5.19(4)(ii)(h)(C) requires the Tribunal to be satisfied that 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.    

52. The delegate’s decision records the delegate was concerned that the nominee was engaged by the business before the expiry of the advertising period. The delegate ultimately found that the applicant had not demonstrated a reasonable effort to test the local labour market and fill the position by an Australian citizen or permanent resident. 

53. In considering this issue, the Tribunal has had regard to, and accepts, the additional material provided in support of the review application, including evidence that was not available to the delegate at the time of decision, as well as the further oral evidence provided to the Tribunal during the hearing regarding the applicant’s efforts to find a suitably qualified and experienced staff member to fill the nominated position, on a long-term basis.  The evidence before the Tribunal indicates that the role was advertised shortly after the business changed hands in early 2016 - the previous owner continued to work for the business until the role was filled - and candidates were interviewed and deemed unsuitable before Mr Subash Gurung was offered the position.

54. The Tribunal also takes into account the opinion(s) of the regional certifying body, which it notes to be the Government of Western Australia, advising the Minister among other matters that the nominated position cannot be filled by an Australian citizen or permanent resident living in the same local area as the nominated position.

1. The Tribunal is satisfied that the applicant has demonstrated a genuine need for a paid position under its direct control and that it cannot be filled by a local resident. Accordingly, r.5.19(4)(ii)(h)(B) and (C) are met

2. Accordingly the requirements of r.5.19(4)(h) are met.

   Tasks of the position

3. The tasks of the nominated position must correspond to those of an occupation specified in the relevant legislative instrument: r.5.19(4)(h)(i)(A).

4. The Tribunal has had regard to evidence that has been provided detailing the tasks that will be performed and is satisfied that they correspond to the tasks of the occupation of Personal Assistant specified in the relevant instrument.  The applicable instrument specified for this purpose is IMMI 15/083. 

5. A detailed summary of the tasks to be performed in the position are consistent with the tasks for the position in ANZSCO, which include:

   ·examining foodstuffs to ensure quality

   ·regulating temperatures of ovens, grills and other cooking equipment

   ·preparing and cooking food

   ·seasoning food during cooking

   ·portioning food, placing it on plates, and adding gravies, sauces and garnishes

   ·storing food in temperature controlled facilities

   ·preparing food to meet special dietary requirements

   ·may plan menus and estimate food requirements

   ·may train other kitchen staff and apprentices

6. On the basis of the evidence before it, the Tribunal is satisfied that tasks associated with the position correspond sufficiently to those of the occupation of Cook, such that it is satisfied that the tasks expected to be performed by the nominee in the applicant’s business correspond to the tasks of a Cook at ANZSCO Skill Level 3.

7. The Tribunal notes in passing that the nominee holds a Diploma of Hospitality Management from an Australian Education provider, and therefore satisfies the requisite level of relevant experience according to ANZSCO. The Tribunal also observes that the nominee now has over four years’ experience working as a Cook for the applicant.

8. Accordingly, the requirements of r.5.19(4)(h)(ii)(D) of the Regulations are met.

   Regional Certification

9. The Tribunal has considered the Form 1404 Regional Sponsored Migration Scheme – Regional Certifying Body Advice, issued on 28 March 2017 by Skilled Migration WA, Western Australian Department of Training and Workforce Development.

10. The Tribunal notes its earlier comments in relation to the current instrument IMMI 18/037, which only applies in respect of nomination applications made on or after 18 March 2018, and that it has therefore applied the provisions in the instrument that applied at the time the applicant lodged the nomination application, which was IMMI 16/045.

11. On the basis of the advice set out in the Form 1404 Regional Sponsored Migration Scheme – Regional Certifying Body Advice provided, the Tribunal is satisfied that the regional certifying body has advised the Minister about the matters set out in r.5.19(4)(e) and r.5.19(4)(h)(ii)(B) and (C) of the Regulations. The regional certifying body states that:

    • There is a need for a paid employee in the nominated position within the business activities of the nominating employer;
    • The nominated position cannot be filled by an Australian citizen or an Australian permanent resident who is living in the same local area as the nominated position; and
    • The terms and conditions of employment that are applicable to the nominated position will be no less favourable than the terms and conditions that are or would be provided to an Australian citizen or Australian permanent resident for performing the equivalent work in the same workplace at the same location.

12. Consistent with the decision of the Federal Circuit Court of Australia in Bharaj Construction Pty Ltd v MIBP [2016] FCCA 902, certification by a regional certifying body is not sufficient or determinative in relation to whether the nominator meets r.5.19(4)(e) , r.5.19(4)(h)(ii)(B) and r.5.19(4)(h)(ii)(C) of the Regulations. Accordingly, the Tribunal notes that, whilst having regard to the advice provided by the regional certifying body, it has reached its own conclusions about the matters the subject of the regional certifying body’s advice.

13. Having considered the Form 1404 provided, the Tribunal is satisfied that the requirements of r.5.19(4)(h)(ii)(F) are met by provision of the requisite Form 1404.

14. It follows that the Tribunal finds the applicant meets all the requirements of r.5.19(4)(h) of the Regulations.

15. 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

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

    Nicola Findson
    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).