Baciamo Le Mani Pty Ltd (Migration)

[2021] AATA 4028

Baciamo Le Mani Pty Ltd (Migration) [2021] AATA 4028 (20 October 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Baciamo Le Mani Pty Ltd

CASE NUMBER:  1836902

HOME AFFAIRS REFERENCE(S):          BCC2018/858322  

MEMBER:Peter Emmerton

DATE:20 October 2021

PLACE OF DECISION:  Adelaide

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

Statement made on 20 October 2021 at 4:19pm

CATCHWORDS
MIGRATION – application for approval of nomination of position – direct entry stream – genuine need for position – challenges of recruiting and retaining staff in regional area – recruitment activity over 4 years – state of market and scope of applicant’s operations – decision under review set aside

LEGISLATION
Migration Regulations 1994 (Cth), r 5.19(4)(h)(ii)(B)

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 December 2018 to reject the applicant’s application for approval of the nomination of a position in Australia under reg 5.19 of the Migration Regulations 1994 (Cth) (the Regulations).

2. The applicant applied for approval on 22 February 2018. The requirements for the approval of the nomination of a position in Australia are found in reg 5.19 of the Regulations which contains two alternative streams: Temporary Residence Transition nomination stream (reg 5.19(3)) and a Direct Entry nomination stream (reg 5.19(4)). If the application is made in accordance with reg 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: reg 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 delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19(4)(h)(ii)(B) of the Regulations because they were not satisfied that the nominator had demonstrated a genuine need to employ a paid full time employee to work in the position under the nominator’s direct control.

5. The applicant was represented in relation to the review by its registered migration agent.

6. 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

7. 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.

8. 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 individual circumstances.

9. 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.

10. The nominating entity runs a substantial restaurant with 2 outlets, in regional Victoria. There are 19 staff in total, 6 of whom are Chefs or Cooks spread across the 2 outlets.

11. This restaurant is a family run business which has undertaken a regular and ongoing recruitment programme in-order to ensure successful business continuity and succession planning.

12. The visa applicant’s experience and qualifications are clearly aligned with the role of Chef as described by ANZSCO 351311.

13. The visa applicant possesses a Certificate lll and lV in Commercial Cookery and a Diploma of Hospitality, all awarded in Australia.

14. The Tribunal is cognisant of the enormous challenges associated with recruiting and retaining suitably qualified and experienced Chefs in relatively isolated locations, such as regional Victoria.

15. The Tribunal received and accepted evidence from the nominator, of the salary determination, recruitment processes and associated advertising in support of their recruitment for the position and the subsequent wage determination.

16. It also notes the statement provided by the nominator attesting to their recruitment activity and the genuine challenges of recruitment efforts over a 4-year period of time. A popular electronic job site was utilised as were local area and business networks and print media in addition to an industry specific Recruitment Agency. No Australian citizens or permanent residents were suitably qualified for the role at the time of employing the visa applicant.

17. The Tribunal perused popular employment web sites to ascertain the current state of the market in this field. The Tribunal observed a large number of related vacancies, in a wide variety of locations and organisations currently under recruitment. The Tribunal is cognisant that many of the observed positions may appear to be equally or potentially more attractive environments to some candidates than the nominated position in this industry and relatively geographically isolated regional Victorian location. It is noted that a popular employment website currently shows 19,000+ associated roles nationally and 5,000+ located in Victoria alone.

18. A “satisfied” RCB certificate has been issued by the relevant certifying body. It was issued on 1 October 2021.

    The application is compliant: r.5.19(4)(a)

19. 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.

20. 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).

21. The Tribunal is satisfied that the application has identified a need for a paid employee to work in the position of Chef, ANZSCO 351311, Skill level 2, under the direct control of the nominator. It notes this position was a replacement role. 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)

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

23. The Tribunal has been provided with a range of financial information including Profit and Loss Statements for FY 2018, FY 2019, FY 2020, ATO Tax Returns for FY 2019 and FY 2020. Recent BAS documents were also supplied.

24. ASIC Registration details were observed by the Tribunal, on the official ASIC website. The ABN website data shows that the nominator was first registered on 17 November 2016.

25. The Tribunal checked the status of the listed ABN – 50 607 792 049, researched the ATO taxation documentation, checked the company web site and perused substantial pictorial and photographic evidence. 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)

26. 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)

27. 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.

28. The Tribunal notes that the business appears to have substantial escalating revenues and an appropriate asset base with a proportionally growing level of profit. The stability and growth of the nominating entity in an ever increasingly complex market, further attests to its’ ability to employ the visa applicant. The Tribunal notes a spread of markets being serviced, a broad range of customers, dine-in, take-away, home delivery and substantial diverse product lines across the 2 outlets. It is observed that the nominator was able to make a profit in-spite of the severe Covid-19 adversity felt in Victoria in FY 2020.

29. The Tribunal has had regard to the most recent Employment Agreement dated 10 December 2017 with a salary of $59,850 plus Superannuation. This is now stated to be a $68,000 base plus Superannuation Guarantee. The corresponding position description was also examined. 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. It notes that the visa applicant has been employed for more than 4 years throughout which time his employment costs have been successfully incorporated into the Balance Sheet.

30. The Tribunal observes that one of the potential substantial challenges facing the organisation is retaining the visa applicant and the nominator’s obvious reliance upon their services, noting that there may not be an apparent replacement within the organisation should the visa applicant resign or be unable to continue in their employ. This could be perceived as a substantial stressor being faced by the business.

31. The Tribunal is aware that the workforce is relatively, mobile and the specialist skills associated with this type of operation may be highly sought after and readily transferred between competing businesses. It is also cognisant of competitors cannibalising competing businesses and targeting their staff to obtain a market advantage or simply trying to engage the workers they need.

32. Current media and business reports associated with the analysis of consumer confidence and employment data, coupled with present time job vacancies and recruitment challenges demonstrate a deficit of suitably qualified potential employees in many sectors. This industry appears to be one such sector. The problem is exacerbated in regional areas or smaller States, particularly if an organisation is reliant upon temporary or permanent immigration as part of their labour source. 

33. Business, Media, and Government reports are being circulated which indicate this is starting to be a drag upon business development. The Tribunal has referenced the National Skills Commission Report which supports this conclusion, dated 21 July 2021.[1]

    [1] National Skills Commission Vacancy Report, June 2021, Release date: 21 July 2021

34. 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)(d) is met.

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

35. 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.

36. The Tribunal has been provided with the visa applicant’s employment contract and relevant income statements. The Tribunal accepts that the nominee’s current contracted annual salary is $68,000 plus Superannuation Guarantee. This was demonstrated by the provision of relevant ATO Taxation documentation provided regarding the visa applicant. It is considered reflective of their level of experience and skill sets which are highly relevant to the nominated position.

37. The Tribunal researched the salaries offered for similar positions and had regard for the salary determination evidence provided by the applicant. 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. The Tribunal accepts this level of remuneration appears to be in the mid to upper quartiles of similar roles of similar size located in regional locations.

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

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

39. 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)

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. 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)

41. 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 an 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.

42. The Tribunal notes that the delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19(4)(h)(ii)(B) of the Regulations because there was insufficient evidence presented to support the claim that there was a genuine need to employ the nominee.

43. The Tribunal, following substantially more evidence being presented to it, than was afforded to the delegate, has subsequently formed a different view. It has had regard to the substantial size and scope of the nominating entity’s operations involving diverse products and services within a relatively isolated regional location. It notes the substantial levels of income and proportional profits. It acknowledges the evidence presented that the Covid-19 pandemic impacted for a short period of time however revenues have quickly rebounded. This was corroborated by current BAS statements and associated financial documentation.

44. The Tribunal notes that the current economic trends demonstrate a rapid rebound in the economy post Covid-19 in Australia, at a rate that has exceeded most economic analyst’s predictions. This has already highlighted deficits in some areas of the employment market. Not unsurprisingly fields which involve long lead times, require substantial investment in training and sophisticated levels of technical expertise appear to be within the cluster of careers showing early signs of demand exceeding supply. The Tribunal notes that this has in-fact been the case in this field for a substantial number of years prior to Covid-19 but the issue is being accentuated under the current conditions.

45. This trend is also becoming apparent in areas where Australia has relied upon both temporary and permanent immigration to meet labour demands. This has long been the case in regional locations. The Tribunal anticipates the likelihood of this trend continuing and potentially accelerating for some time, as Governments maintain border closures, (current Australian Budget predicts the national border opening in late 2021) and focus upon reducing unemployment whilst stimulating economic activity. This is invariably exacerbated in isolated regional locations such as the location of the business currently under review.

46. Once again, the Tribunal notes the long term, ongoing, multi-channel recruitment programme from the early days of the business start-up, to the current time. It also refers to the massive level of related, current vacancies both nationally and within Victoria. This is not anticipated to dissipate in the foreseeable future.

47. The Tribunal is without doubt 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. Therefore, the requirements of r.5.19(4)(h)(ii)(B) are satisfied.

48. Evidence was presented to the Tribunal regarding the recruitment process. It is satisfied that recruitment has been ongoing, has utilised a range of relevant local and national media, as well as recruitment agencies and that the recruitment process has been conducted in a fair and honest manner. 

49. The Tribunal once again refers to the large number of similar job vacancies locally and nationally. It 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.

50. 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.

51. The Tribunal has reviewed both the relevant descriptors supplied in ANZSCO 351311 for a Chef and the stated duties of the visa applicant. The Tribunal is satisfied that the visa applicant as 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.

52. The Tribunal has had regard to the “satisfied” RCB certification issued by a relevant RCB on 1 October 2021 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.

53. The Tribunal is satisfied that the applicant meets 5.19(4)(h)(ii).

54. 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

55. 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)       all 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;

    (AA)there is a genuine need for the nominator to employ the person identified under subparagraph (a)(ii), as a paid employee, to work in the position under the nominator’s direct control;

    (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 the person identified under subparagraph (a)(ii), as 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).