Baba Tung Pty Ltd (Migration)

Baba Tung Pty Ltd (Migration) [2020] AATA 4944 (6 October 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Baba Tung Pty Ltd
CASE NUMBER:  1807028
HOME AFFAIRS REFERENCE(S):          BCC2016/2029721
MEMBER:Peter Emmerton
DATE:6 October 2020
PLACE OF DECISION:  Adelaide
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Statement made on 06 October 2020 at 1:43pm

CATCHWORDS
MIGRATION – Employer Nomination – approval of nominated position – Direct Entry nomination stream – Café or Restaurant Manager – terms and conditions of employment – salary determination evidence provided – mid-to upper quartiles of similar positions on offer in a regional location – position cannot be filled locally – evidence of recruitment process – proof of advertising – issues associated with attracting suitable talent to roles in regional Western Australia – decision under review set aside
LEGISLATION
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 Home Affairs on 6 March 2018 to reject the applicant’s application for approval of the nomination of a position in Australia under r.5.19 of the Migration Regulations 1994 (the Regulations).
The applicant applied for approval on 13 June 2016. The requirements for the approval of the nomination of a position in Australia are found in r.5.19 of the Regulations which contains two alternative streams: a Temporary Residence Transition nomination stream (r.5.19(3)) and a Direct Entry nomination stream (r.5.19(4)). If the application is made in accordance with r.5.19(2) and meets the requirements of either stream, then the application must be approved. If any of the requirements are not met, then the application must be refused: r.5.19(5).
In this case, the applicant has applied for approval of a nomination, seeking to satisfy the criteria in the Direct Entry nomination stream.
The delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19(4)(e) of the Regulations because they were not satisfied that the nominator had demonstrated that the terms and conditions of employment applicable to the position will be no less favourable than the terms and conditions that are provided or would be provided to an Australian citizen or an Australian permanent resident for performing equivalent work in the same workplace at the same location. Nor 5.19(4)(h)(ii)(C) because they were not satisfied that the nominator had demonstrated that the position cannot be filled by an Australian citizen or an Australian permanent resident who is living in the same local area.
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.
In determining the applicant’s claims the Tribunal must first make findings of fact on material matters in dispute. This may involve an assessment of credibility and in so doing, the Tribunal is aware of the need and importance of being sensitive to the circumstances and the difficulties applicants often face before the Tribunal in their particular circumstances.
The applicants rely on the evidence given before the Tribunal together with written submissions and supporting evidence provided to the Tribunal and previously to the department.
The nominating entity runs a substantial restaurant retail operation in regional, Western Australia providing dine-in, take-away, catering, functions and home delivery services. The total number of staff including the visa applicant is 8, all 7 staff members report directly to the visa applicant. The visa applicant in turn reports to the sole Director of the company. He is actively involved in, owns and manages another unrelated business based in Perth. During the Covid-19 pandemic, travel restrictions over a period of several months meant that he was unable to travel to the regionally based restaurant and the visa applicant was left to operate the business with only scant electronic interactions with the Director.
The Tribunal notes that the total number of operational hours in the restaurant is substantial and like most multi-service delivery restaurants, they operate 7 days per week for extended trading hours from 5pm until late, plus functions during additional non-core hours.
The visa applicant’s substantial responsibilities, previous experience, current years of management responsibilities, formal qualifications and attributes, clearly align with the duties associated with a café or Restaurant Manager, ANZSCO 141111.
The visa applicant possesses an Advanced Diploma of Business gained in Australia.
The Tribunal is cognisant of the challenges associated with recruiting and retaining suitably experienced management and staff working in retail businesses with limited opportunities for advancement. This is particularly evident in regional locations, Busselton is located 230 kilometres south of Perth, Western Australia. The Tribunal accepts the statement made by the nominator that it has become even more difficult to obtain qualified and experienced staff and managers during the current Covid-19 restrictions as the demand for staff has increased but the supply has become more limited.
The Tribunal received and accepted evidence from the nominator, of the salary determination and recruitment processes. The Tribunal acknowledges the associated proof of advertising, in support of their recruitment for the position in both May 2016 and April 2018. The Tribunal accepts and notes the statements provided by the nominator attesting to their recruitment efforts and associated challenges of finding and retaining someone in the regions well outside of Perth. The Tribunal notes that nearly four and a half years have transpired since the original nomination application was submitted.
The Tribunal accepts that the employment contract does not include an express exclusion of the possibility of extending the period of employment beyond the initial 2-year minimum period with the provision for extension. The current contract of employment dated 24 September 2019 stated the salary as $60,000 plus 9.5% Superannuation.
The Tribunal perused popular employment web sites in order to ascertain the current state of the market in this field. The Tribunal observed a very large number of related vacancies, in a wide variety of locations and organisations currently under recruitment. The Tribunal is not without understanding of the specialist knowledge required in this unique area of Indian cuisine restaurants. The Tribunal is cognisant that many of the observed positions may appear to be equally or more attractive environments to some candidates than the nominated position in this relatively geographically isolated regional, WA location.
The Tribunal notes that a ‘Satisfied’, RCB Certificate issued by the relevant certifying body. The date of the certificate is 1 August 2016.
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.
The Tribunal finds that the application was lodged electronically using the elodgement facility. The nomination was made under the RSMS Direct Entry stream (r.5.19(4)(h)(ii)) and consequently no fee is payable. The Tribunal finds the applicant meets r.5.19(2).
The Tribunal notes that the restaurant and catering business is operating on a moderate staffing ratio of approximately 7 front-of-house and kitchen staff reporting directly to the visa applicant. Once again, the Tribunal notes the extended working hours associated with the mandated 7 day per week dine-in, delivery and take-away operation combined with the catering and function aspects of the business. The number of employees and the complexity of tasks associated with a retail operation of this size would in the experience of the Tribunal, strongly suggest the need for a General Manager. This was evidenced by the successful functioning of the business in the absence of the Director during the Covid-19 pandemic isolation requirements. The relevant BAS Statements demonstrate a not insubstantial revenue during this period.
The Tribunal notes that the Director states in writing that his focus is upon the higher-level duties associated with a Director level role, whilst running his other business based in Perth. The Tribunal accepts this statement as fact. The challenging logistical requirements of such a structure are self-explanatory.
It would appear logical that regardless of the skilful utilisation of technology, the Director is unable to undertake the daily duties of a Restaurant Manager unless present for the substantial operating hours. Nor is it likely that the operation could successfully sustain itself, maintain quality outputs or meet its’ legal responsibilities in relation to OH&S, safe food handling, and general HR matters without a relatively autonomous, locally employed Restaurant Manger ultimately overseeing the entire operation.
The Tribunal is satisfied that the application has identified a need for a paid employee to work in the position of Café or Restaurant Manager, under direct control of the applicant. The application has included the required written certification relating to conduct that contravenes s.245AR(1) 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 the applicant is actively, lawfully and directly operating a business in Australia.
The Tribunal has been provided with a range of Business Tax Returns, and Profit and Loss Statements, including those produced for FY 2019, FY 2018 and FY 2017 plus the current BAS Statements, all of which correlated. ASIC Registration details were also researched by the Tribunal for this business entity. The Tribunal checked the status of the listed ABN and perused the company web site. The Tribunal is satisfied that the applicant is actively, lawfully and directly, operating a business in regional Australia. 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 finds that r. 5.19(4)(c) is not relevant to the current nomination.
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 notes that the business appears to have substantial growing revenues, (300% over a 5-year period) and proportionally aligned profit. This supports the claim that the Director has been able to focus on other aspects of the operations and his larger business portfolio as a direct result of the visa applicant’s engagement in the restaurant she manages. It was also acknowledged by the nominator, that the visa applicant brings additional skills to the business which have increased turnover, even during unprecedented turbulent health and economic times.
The stability of the nominating entity in an ever increasingly competitive market, further attests to its’ ability to employ the visa applicant. Additional resilience is provided by business diversification across a number of product categories and delivery modes. The Tribunal is satisfied that the business will be able to sustainably, employ the nominee for the required 2-year minimum period therefore r.5.19(4)(h)(i) is met.
The Tribunal has had regard to the Employment Agreement and position description. It is satisfied that the nominee will be appointed for a period of at least 2 years employment from grant of visa and the terms of employment do not include an express exclusion of the possibility of extending the period of employment.
The Tribunal observes that one of the potential challenges facing the business is retaining the visa applicant and the nominator’s obvious reliance upon their services. This is particularly critical, as the nominator is not working in the restaurant under the visa applicant’s management but overseeing it from a considerable distance as a Director of the overall business whilst actively operating another unrelated business over a 2-hour drive away, in Perth WA.
The Tribunal is aware that the workforce is highly mobile, the specialist skills associated with this type of operation are highly sought after and are readily transferred between competing businesses. It is also cognisant of competitors cannibalising competing businesses and targeting their key staff in order to obtain a market advantage. The Tribunal also notes the ongoing distortion of the employment market associated with the mining industry cycles and the net migration from WA to the eastern States.
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 Tribunal notes that is one of the reasons stated by the delegate as to why they were not satisfied that the nominator had complied with the requirements of the r.5.19(4)(e). The Tribunal has formed another view.
The Tribunal has been provided with the visa applicant’s employment contract. The Tribunal accepts that the nominee’s stated annual salary of $60,000 plus Superannuation at the rate of 9.5% as reflective of their qualifications and experience.
The Tribunal researched the salaries offered for similar positions and had regard for the salary determination evidence provided by the applicant. It notes the information provided by Pay Scale. The remuneration appears to fall within the mid-to upper quartiles of similar positions on offer in a regional location. It is satisfied that the terms and conditions of employment are equivalent to other employees with the same experience performing equivalent work in the same workplace or a similar workplace. 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. There is no evidence before the Tribunal that the applicant has anything but a satisfactory record of compliance with the immigration laws of Australia. 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 notes that there is no evidence before the Tribunal that the applicant has anything but a satisfactory record of compliance with workplace relations law in Australia. 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 alternative requirements. These are set out in detail in the attachment to the decision. As stated above the nomination was made under the RSMS Direct Entry stream and the Tribunal has proceeded to assess the application against the criteria in r.5.19(4)(h)(ii) which require that:
·the position and nominator’s business are 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 Australian citizen or permanent resident;
·the tasks of the position correspond to those of an occupation at the ANZCO skill level 1, 2 or 3; and
·a regional certifying body has advised the Minister about certain matters relating to the position.
The Tribunal has had regard to the size and scope of the nominating entity’s business operations and the extended staffing hours required due to the mandated operating hours of the restaurant, function and catering business across multiple delivery modes. It is self-evident that the nominator cannot operate this growing combined business entity without a substantial and self-contained general management structure in place. This is need is accentuated by the need for the Director to be located in Perth, whilst operating his other business.
The Tribunal is satisfied that there is a genuine need for the nominator to employ a paid employee to work in the position under the nominator’s direct control.
The Tribunal notes that the other reason the delegate refused the application was that the applicant’s nomination did not satisfy r.5.19(4)(h)(ii)(C). This is because they were not satisfied that the nominator had demonstrated that they had made adequate attempts to recruit suitably qualified and experienced Australian citizens or Australian permanent residents to the position who live in the same local area as that place. The Tribunal has formed a different view based upon the written evidence submitted by the nominator.
Evidence was presented to the Tribunal regarding the recruitment process and the subsequent lack of suitably qualified and experienced applicants other than the nominee, who was initially found as a result of the nominators recruitment efforts in 2016. Summaries of each applicant were provided for the 2 recruitment rounds. The first recruitment rounds took place via Seek. In May 2016 there were 12 applicants. There were only 2 suitable applicants, the visa applicant and another who owned his own Indian restaurant. The Tribunal accepts that there was a substantial potential conflict of interest should they have him manage both their restaurant and his own. The visa applicant was selected for the role.
The role was again advertised in April 2018 to test the status of the market. There were no applicants meeting the requirements other than 1 person who was offshore, seeking sponsorship and 2 local people, (also seeking sponsorship), whom did not possess the relevant experience.
In addition, the applicant tendered evidence supporting the issues associated with attracting suitable talent to roles in regional Western Australia. The Tribunal accepted the articles quoting members of Parliament and local business leaders associated with the south-west region of WA as substantial evidence demonstrating the impact of staff shortages upon local businesses, particularly those associated with hospitality. The Tribunal acknowledges the “satisfied” RCB and also notes that whilst this may be taken as an indication supporting the employment of the visa applicant and the recruitment challenges associated with this specific role in this location, it is a guide only and the Tribunal must be independently satisfied.

The Tribunal acknowledges that there are a large number and range of hospitality management roles readily available in Perth, regional WA and throughout Australia. The demands of the job, regional location and hours of this role may not have proven overly attractive to some candidates. The relatively isolated location in Busselton, Western Australia may also provide a negative employment circumstance, further substantially limiting the potential candidate pool.
The Tribunal again observes that a substantially more comprehensive evidence base was provided to it, than was presented to the delegate at the time of their decision. The Tribunal once again notes that nearly four and a half years have transpired since the original nomination application was submitted.
The Tribunal once again acknowledges the employment market distortions created by the mining industry cycles in Western Australia, Eastern States population drift and the current impacts associated with Covid-19. The Tribunal is satisfied that the position cannot be filled by an Australian citizen or permanent resident. The Tribunal is satisfied that the nominator’s business is located in regional Australia.
Regulation r.5.19(4)(h)(ii)(D), requires that the tasks to be performed in the position correspond to those at ANZSCO skill level 1, 2 or 3. The Tribunal notes that the delegate did not reject the application on the basis of this regulation.
The Tribunal has reviewed both the relevant descriptors supplied in ANZSCO 141111 for Café or Restaurant Manager and the stated duties of the visa applicant. It again notes that the business owner appears to occupy the role of Director in relation to this restaurant. The Tribunal is also acutely aware of the revenues of the business, the complexity of the systems and the diversity of the product offerings necessary for a successful specialty restaurant in regional Western Australia.
Additionally, the substantial opening hours of the business coupled with the number of staff across multiple functions, clearly indicates the need for a Restaurant Manager to operate and manage this business. This would by necessity most likely lead to a substantial degree of autonomy being associated with the role, as is reasonably expected of a General Manager in an ANZSCO level 2 designated position.
Whilst the visa applicant, would most likely report performance in all KPI areas via established systems and seeks input from the Director of the business, this coincides with the Tribunal’s expectations of a café or Restaurant Manager directly reporting to the Director of a business.
The Tribunal acknowledges that this is a mid-sized and relatively complex service operation with a relatively substantial and consistently growing annual turnover. It is in no doubt the visa applicant requires a degree of flexibility performing the many and varied work duties, as you might expect in such an operation. The Tribunal has concluded that a Café or Restaurant Manager is required to oversee the business and does operate largely in-line with the ANZSCO 141111 specifications in order to meet logistic and work health and safety requirements whilst satisfying customer service, product quality expectations, safe food handling requirements and responsible service of alcohol legislation.
The Tribunal notes the diverse range of business-related documents, which acknowledge the visa applicant’s Restaurant Manager designation. It also observes the written statements regarding the importance of role she occupies which were provided by the Director of the business.
The position of Café or Restaurant Manager, ANZSCO 141111, nominated by the applicant, is referred to in ANZSCO as a skill level 2 position and the Tribunal is satisfied that the visa applicant is operating at that level.
The Tribunal is satisfied that the applicant meets 5.19(4)(h)(ii).
The Tribunal has had regard to the satisfied Form 1404 issued by an RCB (WA Department of Training and Workforce Development), dated 1 August 2016 and is satisfied that the applicant has advised the Minister about matters relating to the terms and conditions of employment, the genuine need for the position and that the position cannot be filled locally.
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.
Peter Emmerton

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 4944

6 October 2020

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