Bridelind Pty Ltd (Migration)

Bridelind Pty Ltd (Migration) [2019] AATA 490 (21 February 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Bridelind Pty Ltd
CASE NUMBER:  1618034
DIBP REFERENCE(S):  BCC2015/3732923
MEMBER:R. Skaros
DATE:21 February 2019
PLACE OF DECISION:  Sydney
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.
Statement made on 21 February 2019 at 8:37am

CATCHWORDS
MIGRATION – Employer Nomination – approval of nominated position – Direct Entry Nomination –Cook – genuine need – financial capacity – 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 Immigration on 12 October 2016 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 7 December 2015. 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 (r.5.19(3)) stream and a Direct Entry nomination (r.5.19(4)) stream. 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)(d)(i) of the Regulations. The delegate was not satisfied, based on the evidence provided, that the nominator had the financial capacity to employ the nominee on a full-time basis for at least two years.
The Tribunal received a copy of the delegate’s decision record with the application for review.
In response to a request for current information regarding the requirements in r.5.19(4) for approval of the nomination, the Tribunal received numerous supporting documents and submissions, to which it has had regard further below.
The Directors, Ms Cathy Kirkbride and Mr David Kirkbride, attended the hearing to give evidence and present arguments on behalf of the applicant. The Tribunal also received oral evidence from the nominee.
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.
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.
Based on the material in the Department’s file, the Tribunal is satisfied that the application was made on the appropriate form. As the position is located in regional Australia, no fee is payable.
In considering whether the application for approval identifies a need for the nominator to employ a paid employee to work in the position under the nominator’s direct control, the Tribunal has had regard to the evidence before it, including written submissions and oral evidence provided by the applicant’s directors.
In response to the Tribunal’s queries regarding the business’ need for a full time cook, Ms Kirkbride gave evidence that Roma, which is approximately six hours west of Brisbane, had experienced a mining boom in the oil and gas industry. She stated that this resulted in most of the town’s workers being absorbed by the industry, leaving few qualified people to work in any other industry in the town. Ms Kirkbride gave evidence that the applicant operates an 80-seat cafe, the Roma Grind, which provides a comprehensive breakfast and lunch menu. They employ four people in the kitchen, including the nominee, who fills the position of cook. Ms Kirkbride gave evidence about the tasks undertaken by the nominee in the position, including the types of dishes that are prepared and cooked. She stated that the Café has a comprehensive kitchen and that all the meals are prepared from scratch. They also employ a number of baristas and cafe all-rounders.
Ms Kirkbride gave evidence that they have tried on numerous occasions to attract local staff, including advertising in the local newspaper, online and at the Café but have been unsuccessful. The nominee, along with a number of other applicants, responded to one of their advertisements for the position. After conducting interviews, they decided to offer the nominee the job, as she was the most qualified and most suitable person for the position. Many of the other applicants were not qualified, unsuitable for the role or resided overseas. Ms Kirkbride stated that the nominee had a Certificate III in Commercial Cookery, a Diploma in Hospitality and over three years of post-qualification experience. They have employed the nominee in the position of cook since May 2015 and she has become an integral member of their staff.
On the totality of evidence before it, the Tribunal is satisfied that the application has identified 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: r.5.19(4)(b)
Regulation 5.19(4)(b) requires that applicant is actively, lawfully and directly operating a business in Australia.
On the basis of the evidence provided to the Tribunal, including the business’ activity statements, financial reports, certificate of registration, company tax returns, lease agreement, nominee’s PAYG payment summaries and written submissions from the applicant, the Tribunal is satisfied the applicant is actively and lawfully operating a Café in Australia and directly operated that business. 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.
There is no evidence before the Tribunal to suggest that the applicant’s business is involved in labour hire.
Accordingly, the requirement in r.5.19(4)(c) does not apply.
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 has had regard to the letter of engagement signed on 4 and 5 September 2018 by the employer and nominee respectively, which sets out the terms and conditions of the nominee’s employment. The contract stipulates that the position is full time for a period of two years from the date the permanent residence visa is granted by the Department.
The Tribunal has also considered whether the applicant has the financial capacity to provide the stated employment. The financial documents that have been provided to the Tribunal, including the 2014, 2015, 2016 and 2017 financial reports, business activity statements for years 2016, 2017 and 2018 and a letter from the applicant’s accountant dated 3 April 2018, indicate that the business has operated profitably. The applicant’s accountant provided the opinion that the applicant is in a position to meet the financial obligations as set out in the employment contract for a period of at least two years. The Tribunal is satisfied on the totality of the evidence that the applicant has the financial capacity to employ the nominee.
Given the above, the Tribunal is satisfied that the nominee will 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 r.5.19(4)(d) is met.
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 employment contract sets out the terms and conditions of employment and indicates that the nominee’s salary is $ $43,551.04, plus superannuation, and not including overtime or penalty rates. The Tribunal has received the nominee’s PAYG payment summaries for years ending 30 June 2016, 30 June 2017 and 30 June 2018. The Tribunal also received a letter dated 21 January 2019 from the applicant explaining that the nominee’s declined earnings for the year ending 30 June 2017 as shown on the corresponding PAYG payment summary, was due to her reduced workload following the birth of her son. The Tribunal is satisfied on the evidence provided that the nominee has been paid in accordance with the terms of employment.
The applicant has also provided a number of documents regarding the rate of pay that would be provided to an equivalent worker, including job vacancies, which indicate that the salary for Cooks in regional Australia is between $39,000 and $59,999. The applicant also provided the Fair Work Ombudsman pay guide, which indicates that weekly pay rates for employees in the hospitality industry is between $656.90 and $764.90.
The Tribunal also notes that on form 1404 the relevant Regional Certifying Body, the Chamber of Commerce and Industry Queensland, has indicated that they are satisfied that the terms and conditions of employment are no less favourable.
The Tribunal is satisfied on the totality of the evidence before it that the terms and condition applicable to the position will be no less favourable than those that would be provided to an Australian citizen or permanent resident performing equivalent work in the same workplace at the same location. 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 to indicate that there is adverse information known to the Department about the applicant or an associated person. 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.
There is no evidence before the Tribunal that indicates the applicant does not have a satisfactory record of compliance with the relevant Commonwealth and State workplace relations laws. 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 a number of alternative requirements.
In this case, the applicant claims to meet the requirements in r.5.19(4)(h)(ii), which requires that the following is satisfied: the position and nominator’s business is located in regional Australia, there is a genuine need for the paid position under the nominator’s direct control which cannot be filled by a locally resident Australian citizen or permanent resident, the tasks of the position correspond to those of an occupation at the ANZSCO skill level 1, 2 or 3 and that a regional certifying body has advised the Minister about certain matters relating to the position.
The Tribunal has considered each of these requirements as follows.
The evidence before the Tribunal indicates that the applicant’s business, which is operated by the applicant, and the position are located in Roma, QLD 4455, which is a postcode specified in the relevant instrument as being in regional Australia. Accordingly, r.5.19(4)(h)(ii)(A) and (E) are met.
The Tribunal has next considered whether there is a genuine need for the applicant to employ a cook and the tasks of that position. The applicant provided evidence that the nominee has been employed in the position of Cook since 2015. The tasks as outlined in the nominee’s job description include, planning preparing and producing a range of menu items, examining foodstuffs, preparing and using specialised kitchen equipment and assembling and preparing ingredients for menu items.
In considering the totality of the evidence, the Tribunal is satisfied that there is a genuine need for a paid employee to work in the position of Cook under the nominator’s control. The Tribunal is also satisfied that the tasks of the position correspond to the occupation of Cook, which is a skill level 3 occupation, as specified in the ANZSCO. Accordingly, the requirements of r.5.19(4)(h)(ii)(B) and (D) are met
The material and evidence provided supports the applicant’s submissions that they have made efforts to fill the position locally but have had considerable difficulty doing so. The Tribunal also gives weight to the RCB’s advice that there are known issues with employment in the region due to traditionally lower unemployment rates, high rents and competition from various employers. On the evidence, the Tribunal is satisfied that the position cannot be filled locally by an Australian citizen/permanent resident. Therefore, the requirements of r.5.19(4)(h)(ii)(C) are met.
The Tribunal has received the completed form 1404 dated 10 September 2018 from the relevant RCB, the Chamber of Commerce and Industry Queensland, indicating that they are satisfied regarding the matters specified in paragraph (e) and subparagraphs (B) and (C). On this basis, the Tribunal is satisfied that r.5.19(4)(h)(ii)(F) is met.
Given the above, the Tribunal finds that the requirements of r.5.19(4)(h)(ii) are met and accordingly r.5.19(4)(h) is met as a whole.
Conclusion
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.
R. Skaros
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
(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).

[2019] AATA 490

21 February 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Remedies