Bisa Hotels Pty Ltd (Migration)

Bisa Hotels Pty Ltd (Migration) [2022] AATA 2688 (1 June 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Bisa Hotels Pty Ltd
REPRESENTATIVE:  Mrs Bronwyn Anne Huntley
CASE NUMBER:  1904047
HOME AFFAIRS REFERENCE(S):          BCC2017/2685799
MEMBER:Joanne Bakas
DATE:1 June 2022
PLACE OF DECISION:  Adelaide
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Statement made on 01 June 2022 at 2:05pm
CATCHWORDS
MIGRATION–nomination – Direct Entry nomination stream – Conference and Event Coordinator –applicant has a satisfactory record of compliance with workplace relations laws – tasks to be performed in the position correspond to the tasks of an occupation specified in the relevant instrument –genuine need to employ a paid employee to work in the position– nominated position is based in regional Australia – decision under review set aside
LEGISLATION
Migration Act 1958, ss 65, 140GB, 245AR, 359
Migration Regulations 1994, rr 2.57, 2.72, 2.73, 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 19 February 2019 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 28 July 2017. 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 on the basis the applicant’s nomination did not satisfy reg 5.19(4)(h)(ii)(D) of the Regulations because they were not satisfied the nominator had demonstrated that the tasks of the nominated position correspond to the tasks of an occupation specified by the Minister in an instrument for this subparagraph.
The Tribunal received an application for review on 21 February 2019.
The applicant was represented in relation to the review.
On 17 February 2022, 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 in the period 2 March 2022 to 1 June 2022 to support the r.5.19 nomination and the Tribunal has given careful consideration to them.
The Tribunal, after considering all the documentary evidence before it, was able to make a positive decision on the papers and no hearing was required. The applicant had previously been invited to attend a hearing. The hearing was cancelled and the applicant was informed.
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.
The Tribunal finds that the application for approval:
·was made on the approved online form and was accompanied by the fee prescribed in r.5.37;
·includes a written certification stating whether the nominator has engaged in conduct in relation to the nomination that contravenes s. 245AR(1); and
·identifies a need for the nominator to employ a paid employee to work in the position under the nominator’s direct control.
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.
The documents before the Tribunal show the nominating business, Bisa Hotels Pty Ltd was first registered on 17 October 2011 with the ACN 153 780 333 and is currently active.
The information provided indicates that the applicant operates a hotel in Canberra, ACT, trading as East Hotel.
The applicant provided company tax returns for the 2020 and 2021 financial years and financial statements showing the company’s results for the 2019, 2020 and 2021 financial years as well as business activity statements (BAS) from October 2019 to January 2022.
Having considered all of the documents before it, the Tribunal is satisfied that the nominator is actively and lawfully operating a business in Australia and directly operates that business.
Accordingly, the requirement in r.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 information before the Tribunal that indicates the applicant is involved in labour hire activities or in the hiring of labour to other unrelated businesses.
Accordingly, the requirement in r.5.19(4)(c) does not apply.
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.
The applicant stated in the application form dated 28 July 2017 that they will provide full time employment for the nominee, Ms Tejal Narotam, for at least two years in the role of Conference and Event Organiser and pay a base salary of $57,000 per annum.
The applicant provided an employment agreement dated 3 July 2017 for the position of Conference and Event Organiser with the salary of $57,000 per annum which states that the position commences as soon as possible dependant on visa status for a period of no less than two years. There is no clause that excludes the possibility of an extension.
The Tribunal notes that the financial information before the Tribunal indicates that the company gross revenue over the last three years has been over three million dollars. The statements show the applicant made a profit in both 2019 and 2021 but suffered a loss in 2020. However, the balance sheet at 30 June 2021 shows retained profits of $133,510. Further, the BAS statements for the first two quarters of the 2021/2022 financial year indicate that sales are likely to surpass the previous year which were in excess of $5,000,000.
The Tribunal notes that the nominee has been employed by the applicant on a full time basis since 7 August 2017 in the role of Conference and Event Organiser which is almost a five year period since the application was lodged.
Based on all of the documentation before it, the Tribunal is satisfied that the applicant has the financial capacity to employ the nominee on a full time basis in the nominated position for two years full time and that the nominee will be employed in the nominated position for at least two years. The Tribunal has had regard to the employment agreement and is satisfied that the terms and conditions of the nominee’s employment does not include an express exclusion of the possibility of extending the period of employment.
Accordingly, the requirement in r.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.
The applicant’s submissions included a statutory declaration from Mr Todd Handy, General Manager of East Hotel, dated 2 March 2022. This details that the nominee’s salary has now increased to $65,000 (excluding superannuation). Another letter was submitted to the Tribunal on 1 June 2022. This letter is dated 18 May 2022 and is from Mr Handy and it states that the nominee’s salary increased in April of 2022 to $75,000 annually plus superannuation.
The applicant submitted market data (from 1 March 2022) from payscale.com, glassdoor.com.au and au.indeed.com which shows that the salary for a Conference and Event Organiser in Australia ranges on average from $55,414 to $68,395. A number of advertisements of available positions were also provided to demonstrate the range of salaries being offered.
The Tribunal also reviewed current job advertisements for the nominated position on au.indeed.com and found the range of salaries offered in Sydney are from $55,907 to $83,016. On payscale.com the salary range for Conference and Event Organiser positions in Sydney was $47,000 to $72,000 per year.
Advice was also provided by the Regional Certifying Body on 21 March 2018, confirming its satisfaction that the “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 equivalent work in the same workplace at the same location”.
Having considered all of the documentation before it, the Tribunal is satisfied that the terms and conditions of employment relating to the nominated position will be no less favourable than those that are provided or would be provided to an Australian citizen or permanent resident performing equivalent work in the same workplace at the same location.
Accordingly, the requirements of r.5.19(4)(e) are met.
No adverse information known to Immigration: 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.
There is no evidence before the Tribunal that suggests there is any adverse information known to the Department 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.
There is no evidence before the Tribunal that indicates the applicant does not have a satisfactory record of compliance with the laws of the Commonwealth or of, relevantly, the Northern Territory, relating to workplace relations.
Accordingly, the requirements of r.5.19(4)(g) are met.
Tasks of the position, genuine need for the position and training requirements 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 IMMI 17/080) 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.
The applicant applied for the nomination as a Regional Sponsored Migration Scheme position. They are therefore required to meet the second set of requirements stated above.
To meet the second set of requirements detailed in r.5.19(4)(h)(ii), all of the following must apply:
·the position is located in ‘regional Australia’ (r.5.19(4)(h)(ii)(A));
·there is a genuine need to employ a paid employee to work in the position under the nominator’s direct control (r.5.19(4)(h)(ii)(B));
·the position cannot be filled by an Australian citizen or permanent resident who is living in the same local area (r.5.19(4)(h)(ii)(C));
·the tasks to be performed in the position correspond to the tasks of an occupation specified by instrument (r.5.19(4)(h)(ii)(D));
·the business operated by the nominator is located at that place ((r.5.19(4)(h)(ii)(E)); AND
·a Regional Certifying Body located in the same State or Territory as the position has advised the Minister about the matters in r.5.19(4)(e) and r.5.19(4)(h)(ii)(B) & (C) - (r.5.19(4)(h)(ii)(F)).
The Tribunal is satisfied from the evidence before it that the nominated position and business is located in Canberra, Australian Capital Territory (ACT) which has the postcode 2603.
‘Regional Australia’ is defined in r.5.19(7) by reference to a written instrument by the Minister specifying which areas are considered to constitute ‘regional Australia’ for the purposes of r.5.19(4)(h)(ii)(F). At the time that the nomination was lodged, the relevant instrument was IMMI 16/045 which specified that all postcodes in ACT were in ‘regional Australia’. While there have been a new legislative instruments that have come into effect and revoked IMMI 16/045, they have continued to consider all of the postcodes in ACT as being in ‘regional Australia’.
Accordingly, the Tribunal finds that the nominated position is based in regional Australia, satisfying r.5.19(4)(h)(ii)(A).
The Tribunal now turns to consider whether the applicant satisfied the remainder of the criteria as set out in r.19.(4)(h)(ii)(B) to (F).
In regard to there being a genuine need to employ a paid employee to work in the position of Conference and Event Organiser under the nominator’s direct control, the Tribunal has considered the written submissions of the applicant and in particular notes that in mid-2017 their Conference and Event Organiser resigned. At the time they were advertising for a Banquet Coordinator and due to the needs of the organisation, they thought they could review their organisation structure and streamline some of the responsibilities. To this end they blended the two positions. At the time, the nominee was the only suitable applicant that had the skills and experience to undertake the role they required.
Submissions provided by the applicant include that the nominee is an asset to the business and has all the unique capabilities, qualifications , experience and personal traits required and valued by the applicant. Over the five years she has worked there, she has developed and maintained great relationships with the applicant’s stakeholders, clients and peak industry bodies. She has brought in repeat business and all the clients value her work, time and efforts.
In regard to being unable to fill the role with an Australian citizen or permanent resident living in the same local area, the applicant’s evidence included that they advertised the position in April 2017 on seek.com for an immediate start but it took some three months to find a suitable applicant. Further, in December 2020 and again in February 2022 they advertised for a Conference and Event Organiser but again were unsuccessful in identifying suitable applicants.
The applicant provided a large number of documents including correspondence with clients to illustrate the tasks that the nominee is engaged in while undertaking this position. These included daily task lists, calendars, client testimonials and feedback and stakeholder and client reference letters.
The Tribunal has had regard to the written submissions and documents provided in regard to the tasks already performed by the nominee and is satisfied that they correspond to the tasks of the occupation of Conference and Event Coordinator (ANZSCO 149311) (specified in the relevant instrument (IMMI 17/058)). A detailed summary of the tasks to be performed in the position as detailed in the submissions of the applicant, are consistent with the tasks for the position in ANZSCO (149311), which include:
a.promoting conferences, conventions and trade shows to potential customers
b.responding to inquiries concerning services provided and costs for room and equipment hire, catering and related services
c.meeting with clients to discuss their needs and outlining package options to meet these needs
d.arranging and coordinating services, such as conference facilities, catering, signage, displays, audiovisual equipment, accommodation, transport and social events, for participants
e.organising registration of participants
f.negotiating the type and costs of services to be provided within budget
g.overseeing work by contractors and reporting on variations to work orders
The position of Conference and Event Coordinator nominated by the applicant is recorded in ANZSCO as a Skill Level 2 position. The evidence before the Tribunal includes that the nominee overseas qualifications (Diploma in Hospitality Management) but also had five years relevant experience prior to commencing in the nominated position.
The Tribunal notes that a Regional Certifying Body Advice dated 21 March 2018, advised that the nominated position cannot be filled by an Australian citizen or Australian permanent resident who is living in the same local area as the nominated position. It also advises that it was 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.
Based on the evidence before it, the Tribunal is satisfied that there is a genuine need to employ a paid employee to work in the position under the nominator’s direct control, that the position cannot be filled by an Australian citizen or permanent resident who is living in the same local area, that the occupation is applicable to the nominee, that the business is located in regional Australia and that a regional certifying body, Treasury and Economic Development Directorate, ACT Government, located in the same State as the position, has advised the Minister about the matters in r.5.19(4)(e), 5.19(4)(h)(ii)(B),and 5.19(4)(h)(ii)(C) as is required by regulation 5.19(4)(h)(ii)(F).

Accordingly, the requirements of r.5.19(4)(h) are met.
Based on the findings above, the Tribunal is satisfied that the applicant meets the requirements of r.5.19 for approval of the nomination of the position in Australia.
DECISION
The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.
Joanne Bakas
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).

[2022] AATA 2688

1 June 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Statutory Construction

Procedural Fairness

Jurisdiction