BT Tavern Pty Ltd (Migration)
[2023] AATA 1581
•26 May 2023
BT Tavern Pty Ltd (Migration) [2023] AATA 1581 (26 May 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT: BT Tavern Pty Ltd
REPRESENTATIVE: Ms Carina Ford
CASE NUMBER: 1924553
HOME AFFAIRS REFERENCE(S): BCC2017/2505493
MEMBER:De-Anne Kelly
DATE:26 May 2023
PLACE OF DECISION: Brisbane
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.
Statement made on 26 May 2023 at 9.51AM
CATCHWORDS
MIGRATION – application for approval of nomination of position – direct entry stream – tasks of position – restaurant manager – combined hearing with reviews of two other nomination refusals – visa refused after department’s phone call found there was another ‘head honcho’ working for applicant – that person since resigned and employer now relies entirely on nominee in position – difficulty in attracting skilled staff – forthright and transparent oral evidence – no weight placed on adverse information about previous agent – decision under review set asideLEGISLATION
Migration Act 1958 (Cth), ss 362A, 375
Migration Regulations 1994 (Cth), r 5.19(4)(h)(ii)(D)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 16 August 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 14 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 the tasks to be performed in the position did not correspond to the tasks of an occupation specified in the instrument being restaurant manager based on the fact their was a “head honcho” employed as a result of the telephone conversation between the department and the applicant.
The applicant appeared before the Tribunal on 24 May 2023 to give evidence and present arguments. This was a combined hearing of employer nomination refusals for the same nominator being cases 1924309, 1924310 and 1924553 respectively for two cooks positions and a restaurant manager in favour of Mr Shyam Karki, Mr Najib Sadiq and Ms Manpreet Kaur.
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.
Procedural Matters
On 6 April 2023 the Tribunal invited the applicant to comment on the validity of a s 375 Certificate and they did so on 14 April 2023.
On 9 May 2023 the Tribunal gave the applicant the gist of information in the s375 Certificate which was that the Department investigated and found that the previous migration agent had likely engaged in systematic migration fraud on numerous cases. However, the applicants were not necessarily aware of, or a party to, this fraud. It is appropriate that the Department regards such behaviour as serious as does the Tribunal. However, some of the employers were unfamiliar with the migration process and may have genuinely fulfilled the requirements for this visa subclass. As such the Tribunal places no weight on the certificate in making a decision on this matter and will instead rely upon the material to hand and the veracity of the employer Mr Taylor.
At approximately 4.30PM on the day prior to the hearing 23 May 2023, the agent submitted a s362A request for access to documents for case number 1924553. This review application was lodged on 2 September 2019 or some four and a half years ago so the agent had adequate time to make such a request and the Tribunal considers it is unreasonable on the Tribunal registry and unprofessional for an agent to lodge such as request so late in the proceedings. It disadvantages the agent’s client since registry staff have insufficient time to respond to such a request. The Tribunal raised these points with the agent who corrected and advised she was a lawyer and then stated, “she had a right to put it in “and “did not need to be lectured” and asked to move on and when the Tribunal said they did not want to move on, the lawyer then asked the Member to “rescind” herself which was declined. The legal representative then asked for an adjournment in order to put the request to recuse in writing. The Tribunal asked Mr Taylor if he wanted an adjournment and he agreed to follow his lawyers lead and request an adjournment which was granted for some 15 minutes. When the hearing resumed the legal representative did not to raise the matter further and no written request for recusal has been received.
At the commencement of the hearing the Tribunal confirmed with the applicant that they were agreeable to material from all three files being aggregated for the purposes of weighing evidence and reaching a decision.
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.
On 14 July 2017, the applicant trading as Braidies Tavern lodged a Regional Sponsored Migration Scheme employer nomination visa subclass 187 in the Direct Entry Stream for the position of Restaurant Manager on $45,981 per annum to be employed in Strathfieldsaye Victoria 3551 in favour of Ms Manpreet Kaur.
Mr Tevena Taylor represented the applicant Braidies Tavern which they took over in 2016. Mr Taylor had worked for the previous owners as a chef and when the business was available for purchase, he arranged with another employee that worked as an accountant and also in the bar that the two of them would make an excellent team to own and operate the Tavern. They have 20 staff with 14 front of house and 6 kitchen staff including the nominees. They seat 120 people in the bistro a further 120 in a beer garden more somewhat pop, then 55 people in a sports bar with sports screen and in total are licensed for 320 people. It is very hard to find staff who are willing and competent, and they are very short chefs as well as front of house staff. Mr Taylor confirmed that all of the nominees have been working on a full-time basis for some 6 years although Ms Kaur had some issues and the COVID pandemic caused some disruption to the business.
They did takeaway during COVID and were helped by their location which is some 10 to 15 minutes outside Bendigo and there is only another pub and fish and chip shop in the radius where people were allowed to travel from their homes. This meant there was not a lot of competition, and they were able to embrace the pandemic and try to fulfill their obligations to their staff and their families. Bendigo has a population of some 120,000 people and is the third largest city in Victoria and has a significant tourism, gallery, easter fair and music festivals and the population in their area is predicted to grow by some 30 to 40,000 people so they have sound future prospects. Mr Trevena Taylor was a forthright and transparent with the Tribunal.
The application is compliant: reg 5.19(4)(a)
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 14 July 2017 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. Ms Manpreet Kaur was identified in the nomination application, and this indicates there is a need for the position.
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 applicant has provided financial statements for FY 2022 and 2021 as evidence of an active, lawful and directly operated business. BAS statements were also provided.
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 labour hires and the director confirmed this at the hearing.
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.
The financial statement and tax return for FY 2022 shows the business with a turnover of $1,358,057 for a net profit of $399,396.
The Tribunal considers the applicant has the financial capacity to meet their financial obligation and provide that the nominee is employed as a Cook for at least two years. The latest employment contract does not 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.
The hourly pay rate for the nominee in case 1924309 is $31.50 per hour for an annual salary of $62,244 and respectively for the nominee for case number 1924310 is $25 per hour for an annual salary of $49,400 and for the nominee in case number 1924553 is $30 per hour for a salary of $59,280. The first two nominated positions are cooks and the latter a restaurant manager. The cooks have different responsibilities in the kitchen and thus a slightly different pay scale.
The nominee’s pay is within the salary range for such positions which indicates the positions are no less favourable than the conditions that would be provided to an Australian citizen or Australian permanent resident.
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.
The Tribunal has no information before it from the Department that would constitute adverse information. The director confirmed this at the hearing.
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 relating to workplace relations. This was confirmed by the owner at the hearing.
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 in a legislative instrument, the occupation is applicable to the proposed employee in accordance with any specifications made in that instrument, and specified training requirements are met; or
·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 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.
Position in regional area – r.5.19(4)(h)(ii)(A)
The Tribunal needs to determine if the position is in regional Australia. The business is located in Strathfieldsaye Victoria 3551. The definition of ‘Regional Australia’ is found in IMMI 16/045. This postcode is included in the list of postcodes for designated regional areas (IMMI 16/045) therefore the position and business are located in regional Australia.
Accordingly, r.5.19(4)(h)(ii)(A) is met.
Genuine need for the position r.5.19(4)(h)(ii)(B).
The Tribunal needs to consider if there is a genuine need for the applicant to employ a paid employee to work in the position under the nominator’s control.
The Tribunal noted that the nominees have been working for the applicant since 2017 which indicates that there is a genuine need for the positions. Mr Taylor stated that they had difficulty in attracting skilled staff and in fact so dire is the shortage that a recent advertisement for a cook elicited no applicants and they had to prevail upon the retired father of another staff member who had previously been a chef to come and work for them. They did have an assistant restaurant manager who had been involved in the financial side of the business however that person has resigned and now they rely entirely upon the restaurant manager. The Tribunal finds there is a genuine need for the applicant to employ a paid employee to work in the position under the nominator’s control.
Accordingly, r.5.19(4)(h)(ii)(B) is met.
Cannot be filled. r.5.19(4)(h)(ii)(C)
The Tribunal needs to consider if the position cannot be filled by an Australian citizen or permanent resident who is living in the same local area.
The director provided information that the positions could not be filled despite advertisement these positions at the time and recently and that skilled staff are difficult to attract.The Tribunal accepts the position could not be filled by an Australian citizen or Australian permanent resident.
Accordingly, r.5.19(4)(h)(ii)(C) is met.
Tasks of the position correspond to ANZSCO. r.5.19(4)(h)(ii)(D)
The Tribunal has carefully considered the evidence and the Position Description provided and the advice of the director on the position’s tasks and responsibilities.
This was the reason the Department refused the application based on another assistant manager however Mr Taylor advised that this person had resigned and now they relied entirely upon Ms Kaur to manage the bistro and as such the Tribunal accepts that she is fulfilling the tasks of a restaurant manager.
The tasks to be performed in the position correspond to the tasks of occupation Restaurant Manager specified by the Minister in an instrument in writing for this sub-subparagraph.
Accordingly, r.5.19(4)(h)(ii)(D) is met.
Occupation applicable to nominee. r.5.19(4)(h)(ii)(DA)
The nominee provided a resume showing he has a Certificate IV in Leadership & Management, Certificate IV in Business, Diplomas is Computer Hardware, Computer Programming and Business and several years’ experience as a restaurant Manager The Tribunal finds that the occupation is applicable to the person, identified under subparagraph (a)(ii) in accordance with the specification of the occupation.
Accordingly, r.5.19(4)(h)(ii)(DA) is met.
Business operated at that place. r.5.19(4)(h)(ii)(E)
The business of the nominator is located at Strathfieldsaye Victoria 3551 and is in ‘that place’ that was specified in the employer nomination.
Accordingly, r.5.19(4)(h)(ii)(E) is met.
Regional certifying body r.5.19(4)(h)(ii)(F)
Regional Development Victoria - Bendigo as the regional certifying body RCB specified in the Ministerial instrument is responsible for assessing the application and on 19 December 2017 assessed and certified the application as meeting r.5.19(4)(e) and r.5.19(4)(h)(ii)(B) & (C) and has therefore advised the Minister about the matters mentioned in paragraph (e) and sub-subparagraph (B) and (C). Accordingly, r.5.19(4)(h)(ii)(F) is met.
Accordingly, the requirements of r.5.19(4)(h) and r.5.19(4) are met.
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
De-Anne Kelly
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).
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
Legal Concepts
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Judicial Review
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Procedural Fairness
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Statutory Construction
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Remedies
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Standing
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