BEYOND INDIA CAFE BAR AND RESTAURANT PTY LTD (Migration)

BEYOND INDIA CAFE BAR AND RESTAURANT PTY LTD (Migration) [2022] AATA 1674 (17 March 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  BEYOND INDIA CAFE BAR AND RESTAURANT PTY LTD
REPRESENTATIVE:  Mr Amber Gupta (MARN: 0533773)
CASE NUMBER:  1836470
HOME AFFAIRS REFERENCE(S):          BCC2018/778725
MEMBER:Justin Meyer
DATE:17 March 2022
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Statement made on 18 March 2022 at 9:22am

CATCHWORDS
MIGRATION – application for approval of nomination of position – direct entry stream – financial capacity to provide 2 years of full-time employment and terms of employment – current financial statements provided to tribunal – tasks of position, genuine need for position and training requirements – comparison of position and ANZSCO description – decision under review set aside
LEGISLATION
Migration Act 1958 (Cth), s 359(2)
Migration Regulations 1994 (Cth), r 5.19(4)(d), (h)
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 28 November 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).
The applicant applied for approval on 16 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: a 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).
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 because the nominator had not demonstrated that the business is financially viable to comply with the requirement to provide the nominee with at least 2 years of full-time employment. Since the nominator failed to satisfy that they have the financial capacity to employ the nominee for two years, the nominator did not meet Regulation 5.19(4)(d). Since Regulations 5.19(4)(d) and 5.19(4)(h) were not met, the nominator failed to meet Regulation 5.19(4).
On 22 July 2021, the Tribunal wrote to the applicant, through their representative, the authorised recipient for correspondence. The letter invited the applicant to provide information to the Tribunal pursuant to s.359(2) of the Act. Submissions and documents were provided by the applicant to support the r.5.19 nomination and the Tribunal has given consideration to them.
The applicant appeared before the Tribunal on 8 March 2022 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Pawan Kuma.
The applicant was represented in relation to the review.
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 reg 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: reg 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 an identified person as a paid employee to work in the position under their direct control.
Applications must be in the approved form and must be accompanied by the prescribed fee to be valid and acknowledged by the Department of Home Affairs. An acknowledgement dated 16 February 2018 was sent by the Department to the nominator as evidence of a valid application. The Department accepted a declaration made on the online form that the nominator had responded yes in the online form to the following: ‘the applicant certifies that they have not engaged in conduct in relation to this nomination that constitutes a contravention of subsection 245AR (1) of the Migration Act 1958’.
The Tribunal is satisfied that the application was made on the approved form 1395 (Internet) for post 23 March 2013 applications, accompanied by the prescribed fee and the nominator has included a written certification stating the nominator has not engaged in conduct in relation to the nomination that contravenes s.245AR(1) of the Act.
Regulation 5.19(4)(a)(ii) requires the nominator to identify a need for the nominator to employ a paid employee to work in the position under the nominator’s control. The assessment of the need for a paid employee comprises two parts: establishing the need for an employee (i.e. there exists a vacancy for the nominated position) and ascertaining that the relationship between the nominator and nominee is that of employer and employee.
The nomination does not have to specify the nominee but needs to identify a nominee before, or at the time, the associated visa application is made. Mr Pawan Kuma was identified in the nomination application.
Accordingly, the requirement in r.5.19(4)(a) is met.
Nominator is actively and lawfully operating a business in Australia: reg 5.19(4)(b)
Regulation 5.19(4)(b) requires that the applicant is actively, lawfully and directly operating a business in Australia.
Financial statements for financial years 2019 and 2020 and recent BAS statements demonstrate that the applicant is actively and lawfully operating a business in Australia.
Accordingly, the requirement in reg 5.19(4)(b) is met.
Position is not labour-hire: reg 5.19(4)(c)
Regulation 5.19(4)(c) applies to nominators whose business activities include those relating to labour hire to an unrelated business. In these cases, the nominated position must be within the business activities of the nominator. There is no evidence that the business uses labour hires. Accordingly, the requirement in reg 5.19(4)(c) is met.
Term of employment of the visa holder: reg 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.
Financial statements show:
- The business has made an operating profit in AUD13,193 before income tax in financial year 2018-2019.
- The business has made an operating profit in AUD4,170 after income tax in financial year 2019-2020.
- The business has made an operating profit in AUD12,450 after income tax in financial year 2012-2021. Wages and salaries were some 55% of total expenses of the business.
- Overall, the business presents as being on a sustainable financial footing.
- The business has a noticeable internet presence and appears to be functioning normally. The oral evidence from the applicant was that the business was receiving AUD18,000 in revenue per month but this has risen to up to AUD35,000. On a busier night 10-15 people are diners in the restaurant at any one time, but the bulk of work is for deliveries – perhaps 60 delivery orders per day.
- Noting that wages typically form a significant aspect of operating expenses for restaurants and also noting the after-tax income of the nominee at AUD3,000 per month (not full time), the wages involved are not seen as unsustainable in this case.
The Tribunal finds that the applicant has the financial capacity such that the nominee will be employed in the nominated position for at least two (2) years full time.
There is an employment contract which does not expressly exclude the possibility of an extension and the latest employment shows a salary of AUD50,000 (plus superannuation)per annum.
The nominee is the subject of a contract. He is employed as a cook and the duration of the contract states that he is to be employed for 24 months and does not include any provision which expresses an exclusion of the possibility of extending that period of employment.
Accordingly, the requirement in reg 5.19(4)(d) is met. 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.
Accordingly, the requirement in reg 5.19(4)(d) is met.
No less favourable terms and conditions of employment: reg 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.
Payscale analysis shows a cook salary range AUD40,086 to AUD56,205 per annum and a median of AUD53,161 so the latest salary of AUD55,000 per annum is no less favourable than the terms and conditions that would be provided to an Australian citizen or Australian permanent resident undertaking equivalent work in the same workplace at the same location.
Accordingly, the requirements of reg 5.19(4)(e) are met.
No adverse information known to Immigration: reg 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 regs 1.13A and 1.13B.
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 regs 1.13A and 1.13B.
The Tribunal has no information before it from the Department that would constitute adverse information and a search of the ASIC website finds no adverse information about the nominator or a person associated with the nominator.
Accordingly, the requirements of r.5.19(4)(f) are met.
Satisfactory compliance with workplace relations laws: reg 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 can find no unsatisfactory record of compliance for the applicant with the laws of the Commonwealth or state relating to workplace relations.
The applicant confirmed this to be the case.
Accordingly, the requirements of r.5.19(4)(g) are met.
Tasks of the position, genuine need for the position and training requirements reg 5.19(4)(h)
Regulation 5.19(4)(h) contains a number of alternative requirements. These are set out in detail in the attachment to the decision but can be briefly summarised as requiring either that:
·the tasks to be performed in the position will be performed in Australia and correspond to those of an occupation specified by the Minister (see legislative instrument IMMI12/096), the occupation is applicable to the proposed employee in accordance with any specifications made in that instrument, there is a genuine need for the nominee to be employed as a paid employee in the position, and certain specified training requirements are met; or
·the position and nominator’s business is located in regional Australia, there is a genuine need for the nominee to be employed as a paid employee in the position under the nominator’s direct control, the position 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.
Since July 2020, the applicant has employed the nominee as a chef in its restaurant Beyond India Cafe Bar and Restaurant Pty Ltd, in Torquay Victoria . The evidence provided by the applicant has satisfied the Tribunal that the nominee is undertaking the position of Cook. The tasks undertaken by the nominee are significantly of those tasks set out in ANZSCO 351411.
The nominee’s duties are aligned to those of a Chef it was submitted. The Tribunal discussed aspects of hr ANZSCO description and was satisfied that he undertakes these functions:
·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
·plan menus and estimate food requirements
·train other kitchen staff and apprentices
The Tribunal accepts that with a high number of orders, particularly for delivery meals, there is a need for the nominee’s position. This was discussed in detail in the hearing with the individuals. The nominee has suitable past experience having worked in a CBD restaurant.
The position was advertised nationally on Gumtree and Seek as evidenced. The nominee is the only cook but there is a casual chef who assists for certain limited periods. Genuine need exists for the position and it was not met from other responses, especially among Australian permanent residents and citizens.
The parties share a surname but are no relation.
The position and nominator’s business is located in regional Australia: i.e. Torquay, Victoria.
Nominated Applicants skills and qualifications
ANZSCO defines this occupation as a skill level 3, requiring:
NZ Register Level 4 qualification
AQF Certificate IV or
AQF Certificate III including at least two years of on-the-job training.
The applicant holds a Certificate IV in cookery and meets the requirement.
Based on the findings above, the Tribunal is satisfied that the applicant meets the requirements of reg 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.
Justin Meyer
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 an identified person, as 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).
''identifies a need for the nominator to employ an identified person, as a paid employee, to work in the position under the nominator’s direct control; and''

[2022] AATA 1674

17 March 2022

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Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

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