C Clerc & T.C Clerc (Migration)

C Clerc & T.C Clerc (Migration) [2022] AATA 2920 (3 March 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  C Clerc & T.C Clerc
REPRESENTATIVE:  Dr Jing Zeng (MARN: 0961417)
CASE NUMBER:  1900568
HOME AFFAIRS REFERENCE(S):          BCC2017/1272036
MEMBER:Ian Berry
DATE:3 March 2022
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision under review to refuse the nomination.

Statement made on 03 March 2022 at 2:56pm
CATCHWORDS
MIGRATION – Employer Nomination – approval of nominated position – Direct Entry Nomination – Office manager – French restaurant – tasks to be performed correspond with occupation – ANZSCO description – organisational chart – level of activity – number of employees – decision under review affirmed
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 Home Affairs on 21 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).
The applicant applied for approval on 4 April 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 position is located in a restaurant and retail environment rather than an office and consequently there are no office staff to manage, supervise or train. Some duties relate to bookkeeping and related administrative tasks but not at the level required of a manager in the applicant’s business setting the level of tasks as an office manager as described in ANZSCO are really or occasionally performed.
On 7 September 2021, the applicant advised the tribunal that they will not attend the hearing scheduled for 14 September 2021. Rather, the applicant wishes to rely on Mr Tierry Clerc’s statement dated 5 September 2021 and the CCIQ form 1404 confirming that to it is satisfied that the position is genuine. The Tribunal now proceeds to assess the applicant’s position
The applicant was represented in relation to the review.
For the following reasons, the Tribunal has decided to affirm the decision under review to refuse 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.
Tasks of the position: r. 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 15/109), the occupation is applicable to the proposed employee in accordance with any specifications made in that instrument; 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.
The applicant is a husband and wife partnership. Since 2003, the applicant has been operating the business of a licensed French restaurant with a seating capacity between 75 and 100 patrons; a tearoom of a capacity of 75 patrons; a gift shop and garden centre, a miniature English display village and a bed and breakfast accommodation. The number of beds is unknown, though photographs have been provided which does not assist in beds ready to accommodate patrons.
The nomination application was set for a hearing before the Tribunal, however the applicant elected to have the Tribunal decide the matter without the need for a hearing. The Tribunal was to decide the application on the evidence before it.
Both Mr and Mrs Clerc are chefs specialising in French cuisine. In 2016, the applicant decided to employ a restaurant manager. The applicant’s nomination application was refused by the Department, ultimately approved by this Tribunal on 25 October 2021[1] . The applicant has also nominated an accommodation and hospitality manager NEC[2] ANZSCO 141999. This application is the subject of review which has not yet been determined.
[1] Tribunal case number 1828631.
[2] not elsewhere [ ]
The applicant’s business is located in a regional area. The applicant’s business is located in or around Flaxton Queensland, purchased in 2003. Flaxton is located about 30 minutes from Noosa, 45 minutes from Caloundra, 25 minutes from Maroochydore and about 90 minutes from Brisbane. The applicant’s restaurant is modelled on it being a French cuisine restaurant. The nominee approved as the restaurant manager was fluent in French which emphasised that French connection.
The applicant provided evidence to the Department of the expected tasks, duties and responsibilities which will be undertaken by the office manager. The restaurant has an ‘Employee Handbook’ though appearing to be general in nature and not relating to any specific tasks.
The duties and responsibilities of the position of office manager are located in the employment agreement and as a separate job description. As set out as an attachment to the employment agreement, states[3]:
[3] departmental file folio 32 of 222.
·Managing and motivating a team to increase sales and ensure efficiency;
·Managing stock levels and making key decisions about stock control;
·Analysing sales figures and forecasting future sales;
·Analysing and interpreting trends to facilitate planning;
·Using information technology to record sales figures for data analysis & planning;
·Dealing with staff issues such as interviewing potential staff, conducting appraisals & performance reviews, as well as providing or organising training and development;
·Ensuring standards for quality, customer service and health and safety are met;
·Resolving health and safety, legal and security issues;
·Responding to customer complaints and comments;
·Organising special promotions, displays and events, attending and chairing meetings;
·Updating colleagues on business performance, new initiatives and other pertinent issues;
·Touring the sales floor regularly, talking to colleagues and customers, and identifying or resolving urgent issues;
·Maintaining awareness of market trends in the retail industry, understanding forthcoming customer initiatives and monitoring what local competitors are doing, initiating changes to improve the business, for example revising opening hours to ensure the retail can compete effectively in the local market;
·Promoting the organisation locally by liaising with local schools, newspapers and the community in general;
·Dealing with sales, as and when required.
The applicant’s 2^nd description of the office manager’s tasks (duties and responsibilities of the position description of the office manager) is in a submission document[4] which details those tasks as follows:
[4] Departmental file folio 198 of 222.
·Maintains office services by organising office operations and procedures; this will be for the debtors & creditors for the following businesses, and they must be separated: Retail Shop, Restaurant, Café, Nursery and the B & B Tourist Accommodation.
·Preparing payroll; controlling correspondence; designing filing systems; reviewing and approving supply requisitions; assigning and monitoring clerical functions and any other additional duties given by Thierry & Cindy Clerc.
·Bookkeeping – this is preferred on a weekly basis with regular correspondence with our Accountant.
·Maintains office efficiency and to ensure all files and invoices are co-related and all debtors & creditors are paid on time.
·Completes operational requirements by scheduling and assigning employees; following up on work results and maintenance on all billings are adhered by.
·Maintains office staff and ensures they are all inducted according to their sector.
·Ensure staff are aware of Health & Safety regulations and schedule quarterly progress with the owners on a one on one meeting.
·Ensure that our accounts are up-to-date, and payroll timesheets are collated weekly, all wages to be signed off by the owners.
·Saturday 8 – 12 PM is needed for Saturday delivery, inspect all goods and ensure that the charges are accurate – any damaged stock is to be reported immediately and ensure this is advised to the owners – Weekend work is necessary as this is a tourist complex.
·Tracking of inventory in the Retail Shop, any discrepancies is to be noted and advised.
·Ensure cameras are in working order and all tilting maintenance are up to standard.
The preface to the position description of office manager sets out the businesses’ context:
One of the Queensland Sunshine Coast Hinterlands, this was an ordinary restaurant in Flaxton in 2003. 15 years later it is a thriving profitable business run by Thierry & Cindy Clerc.
1.A licensed French Restaurant capacity of seating 75 people plus additional areas, which would accommodate 100 patrons. The kitchen is licensed as a commercial kitchen
2. A separate tearoom, capacity of 65 people.
3. Gift Shop & Garden Centre.
4. Miniature English Display village.
5. Separate Building B & B Tourist Accommodation
The applicant’s organisational chart[5] provides the following positions with the following nominees/employees and Mr and Mrs Clerc. At the nomination application date of 4 April 2017, the business employed 6 people all of whom were Australians with Australian citizenship with one foreign employee:
·The owners are Mr and Mrs Tierry & Cindy Clerc, in partnership.
·Responsible to the applicant are the office manager, the restaurant manager (front of house) and the chefs (back of house).
·Responsible to the restaurant manager are 2 casuals and possibly a retail assistant, the position of which has not yet been filled.
·At back of house there is the head chef Ms Cindy Clerc, Mr Thierry Clerc and chef Mr SM (name withheld).
[5] Departmental file folio 143 of 222.
in considering the applicant’s jobs description for the office manager, consideration must be given to the tasks and responsibilities as set out in ANZSCO, the salient details of which are:
·Contributing to the planning and review of office services and setting priorities and office service standards.
·Allocating human resources, space and equipment.
·Assigning work to and monitoring work performance of staff.
·Managing records and accounts of the office.
·Liaising with professionals to coordinate office business and to facilitate resolution of problems.
·Ensuring office equipment and supplies are maintained.
·Ensuring compliance with occupational health and safety regulations.
·Ensuring work complies with relevant government legislation, policies and procedures.
·Coordinating personnel activity such as hiring, promotions, performance management, payroll, training and supervision.
At the unit group 5121 office managers the skill level is 2 and Australian qualifications framework qualification of associate degree, advanced diploma or diploma are acceptable, though at least 3 years of relevant experience may substitute for the formal qualifications listed above. In some instances relevant experience and/or on-the-job training may be required in addition to the formal qualification. At the occupation level ANZSCO 512111, the office manager organises and controls the functions and resources of an office such as administrative systems and office personnel.
In the Department decision, the delegate specifically raised as an issue the variance of the tasks of the ANZSCO tasks and the job descriptions. The other issue raised is whether, in the context of the applicant’s business, it has the organisation and staff to require an office manager. The organisational chart confirms that staff employed would not exceed 10 employees and probably closer to the nomination application number of 6. The main activity of the business is that of the restaurant which would probably include functions.
The submission[6] dated 11 December 2019, refers to the seating capacity of the restaurant as well as its other activities, but does not provide evidence of the patronage of the restaurant and customer numbers relevant to the other facilities. This evidence would provide support the need for an office manager and a greater in the tasks which align to ANZSCO. Based on the information provided by the applicant, the office manager is not overseeing, controlling or supervising possibly 2 casuals employed at the front of house. This submission directs the Tribunal to refer to the organisational chart for further detail outlining the current structure of the business stating that it highlights the importance of the office manager’s role in the daily operations of the applicant’s business. While the submission is made, there is no evidence to support that submission.
[6] Tribunal file folio 564 of 786. Folio 7 of the index to the Tribunal book located at 563 of 786.
The next submission made is that the employment of an experienced office manager (such as the nominee) would only serve to increase the efficiency and profitability of the applicant’s business. The submission also states ‘involves a high level of responsibility to maintain compliance with all fair work and safety regulations, and to ensure clear communication with all staff employed’ in the business ‘regarding monitoring of payments, timesheets, rostered hours and other daily office administration are made’.
The applicant’s submission on the matter of tasks performed or to be performed by the nominee in her managerial position ‘which are outlined in her current position description, a highly relevant to the duties and tasks prescribed by ANZSCO for the nominated occupation of office manager for the following reasons’
Summarising the 6 reasons supporting the position of the office manager: -
·Firstly, there are many activities to be coordinated by the office manager including managing the restaurant, tearoom, gift shop and garden centre, the miniature display village in the bed-and-breakfast overnight accommodation.
·Secondly, the office manager continually monitors vital paperwork and information associated with the running an office such as records of hours worked by staff, payment of the correct staff wages in a timely and regular manner, by having the autonomy to setting control various office functions. As well as been involved in regular meetings with the applicant.
·Thirdly, the submission deals with the meetings ensuring the office manager meets her responsibilities which is to provide senior management with advice on matters requiring their attention. It involves the office manager in giving recommendations to assist the applicant in implementing strategic decisions which directly impact the administrative and financial running of the business.
·Fourthly, the office manager provides ongoing training and supervision to ensure the business objectives are met in relation to a productive office, retail and hospitality. The office manager has the responsibility to carry out training by performing induction process once the staff are hired.
·Fifthly, the office manager includes the provision of high standards of customer service to all patrons. The provision of high standards would increase the likelihood of repeat customers.
·Sixthly, the office manager can quickly respond to enquiries and assist other staff to resolve complex issues regarding services thus maintaining a good standing of the business the local community.
Reasoning and decision
Considering the applicant’s submissions, the 1^st reason has the office manager undertaking many activities. The main activity though not specifically mentioned, is the French restaurant. The applicant now has a restaurant manager who would assume all the responsibilities relating to that activity. The restaurant manager may not have been considered at the time the submission was made. However, it is expected that the restaurant manager would be responsible for all matters directly and indirectly relating to the restaurant.
For the level of activity, the number of employees, monitoring paperwork and information will effectively by a proficient person who was organised, efficient and effective at undertaking paperwork and entering data into computer systems. in the context business and its size and complexities, an office manager would be required.
There is no evidence as to the frequency or complexity of meetings ensuring the office manager meets her responsibilities. It is a business where meetings would be held from day-to-day in an informal arrangement. The Tribunal does not have the benefit of examples of minutes from meetings and assume they are informal and certainly not of the frequency at which the applicant represents.
The employees who would seem to require training and supervision would be the 2 casuals at front of house. These employees would be under the training and supervision of the restaurant manager.
While the applicant has a task of ensuring high standards are set, as the major activity, it would be expected that this role is within the operation of the restaurant, and therefore, would fall to the restaurant manager. Responding quickly to emergencies rests with the restaurant manager in the 1^st instance. It is a restaurant manager who would approach both the office manager, if there is one, and the applicant for direction if necessary.
Addressing the ANZSCO tasks, the office manager is to contribute to the planning and review of office services and setting priorities and office service standards. There is no evidence before the Tribunal that the office manager is involved in the planning and review of the business. There is no evidence of the office manager allocating human resources space and equipment. The applicant had the opportunity of submitting examples of the activities of the office manager as invited to do so in the s.359(2) letter of invitation dated 2 July 2021. Paragraph 5 stated: -
‘5.Information about the roles and duties of the nominated position and how they correspond to the nominated occupation is position description in ANZSCO.
·Job descriptions, work samples, emails, correspondence and other examples of the daily tasks performed in the nominated position, and also the nominated occupation is position description in ANZSCO…’

Most of the ANZSCO tasks equally match the job description and tasks of a restaurant manager. The tasks in job descriptions submitted by the applicant, while some are relevant, does not fit the context in which the office manager will be employed.
Accordingly, the requirements of reg 5.19(4)(h) are not met.
For the above reasons the Tribunal is not satisfied that the applicant meets the requirements of reg 5.19(4). The applicant has not sought to satisfy the criteria in Temporary Residence Transition Nomination stream, and as such has not met the requirements in reg 5.19(3). Accordingly, the nomination of the position cannot be approved. Therefore, the Tribunal must affirm the decision under review.
DECISION
The Tribunal affirms the decision under review to refuse the nomination.
Ian Berry
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)       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).

[2022] AATA 2920

3 March 2022

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Immigration

Administrative Law

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Judicial Review

Statutory Construction

Jurisdiction

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