CHARMINAR PTY LTD (Migration)

CHARMINAR PTY LTD (Migration) [2022] AATA 4340 (16 November 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  CHARMINAR PTY LTD
REPRESENTATIVE:  Mr Ireneusz LASOCKI (MARN: 0102034)
CASE NUMBER:  1921945
HOME AFFAIRS REFERENCE(S):          BCC2018/881353
MEMBER:Peter Emmerton
DATE:16 November 2022
PLACE OF DECISION:  Adelaide
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Statement made on 16 November 2022 at 12:20pm
CATCHWORDS
MIGRATION – nomination – Direct Entry nomination stream – Café or Restaurant Manager – business will be able to sustainably employ the nominee for the required 2-year minimum period – position associated with the nominated occupation is genuine – genuine need for the nominator to employ a paid employee – position located in regional Australia – actively and lawfully operating a business in Australia – decision under review set aside
LEGISLATION
Migration Act 1958, ss 140, 245, 376
Migration Regulations 1994, rr 1.13, 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 22 July 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 23 February 2018. The requirements for the approval of the nomination of a position in Australia are found in reg 5.19 of the Regulations which contains two alternative streams: a Temporary Residence Transition nomination stream (reg 5.19(3)) and a Direct Entry nomination stream (reg 5.19(4)). If the application is made in accordance with reg 5.19(2) and meets the requirements of either stream, then the application must be approved. If any of the requirements are not met, then the application must be refused: reg 5.19(5).
In this case, the applicant has applied for approval of a nomination, seeking to satisfy the criteria in the Direct Entry nomination stream.
The delegate refused the application on the basis the applicant’s nomination did not satisfy reg 5.19(4)(h)(ii)(B) of the Regulations because they were not satisfied that there was a genuine need to employ a paid full-time employee to work in the position under the nominator’s direct control.
The applicant represented by Mr Naveen Irkulla, sole Director, representing Charminar Pty Ltd, appeared before the Tribunal on 16 November 2022 in a combined hearing with MRT file ref. 1925864 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Vikkas Chhikara, the visa applicant.
The Tribunal informed the applicant that a valid ss.376 Certificate was on the Department file. In broad terms it covered anonymous allegations of the nominator accepting sums of money for fraudulent visa applications. The Tribunal has decided to disregard this unsubstantiated information, this was stated to the applicant during the hearing. It believes it is irrelevant because no concrete proof is provided in support of the allegations and as it is anonymous it can-not therefore be tested by the Tribunal.
The applicant was represented in relation to the review.
For the following reasons, the Tribunal has decided to set aside the decision under review and substitute a decision approving the nomination.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant meets the requirements for approval of the nomination under the Direct Entry nomination stream set out in 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.
In determining the applicant’s claims the Tribunal must first make findings of fact on material matters in dispute. This may involve an assessment of credibility and in so doing, the Tribunal is aware of the need and the importance of being sensitive to the circumstances and the difficulties applicants often face before the Tribunal in their individual circumstances.
The applicants rely on the evidence given before the Tribunal together with written submissions and supporting evidence provided to the Tribunal and previously to the Department.
The nominating entity runs a very well-known Indian cuisine styled restaurant. It does private catering and functions as well as home delivery and in-house dining.
The total number of employees is currently 11 however this is not a full staffing compliment due to the current hiring challenges. The Tribunal observes this is not the only restaurant owned by this Director in partnership, this was discussed during the hearing.
The visa applicant’s experience and qualifications are aligned with the role of Café or Restaurant Manager, as described by ANZSCO 141111, Skill level 2.
The visa applicant possesses a Diploma of Hospitality Management and a Bachelor of Management, both achieved in Australia.
The Tribunal is cognisant of the enormous challenges associated with recruiting and retaining suitably qualified and experienced Café or Restaurant Managers. This is made all the more difficult in relatively isolated locations, such as South Australia.
The Tribunal received and accepted evidence from the nominator, of the salary determination, recruitment processes and associated advertising across print media and electronic media in support of their recruitment for the position and the subsequent wage determination. It in addition accepts the substantial evidence supporting the claims that staff shortages in this industry are severely hampering growth and sustainability.
It notes and accepts as accurate the statement made by the nominator attesting to their recruitment activity and the genuine challenges of recruitment efforts.
The Tribunal perused a popular employment web site to ascertain the current state of the market in this field. The Tribunal observed a substantial number of related vacancies (more than 21,000 nationally), in a wide variety of locations and organisations currently under recruitment. Approximately 5% of the identified vacancies are in South Australia. The Tribunal is cognisant that many of the observed positions may appear to be equally or potentially more attractive environments to some candidates than the nominated position in this industry and relatively geographically isolated regional location. The Tribunal notes that the Eastern States appear to be offering higher remuneration packages which subsequently leads to a migration of talent to those States.
A “satisfied” RCB certificate has been issued by the relevant certifying body. It was issued on 14 June 2018.
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.
The Tribunal finds that the application was lodged electronically using the e-lodgement facility. The nomination was made under the RSMS Direct Entry stream (r.5.19(4)(h)(ii)) and consequently no fee is payable. The Tribunal finds the applicant meets r.5.19(2).
The Tribunal is satisfied that the application has identified a need for a paid employee to work in the position of Café or Restaurant Manager, ANZSCO 141111, Skill level 2, under the direct control of the nominator. The application has included the required written certification relating to conduct that contravenes s.245AR (1). 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 the applicant is actively, lawfully and directly operating a business in Australia.
The Tribunal has been provided with ATO Taxation Returns for FY 2020 and FY 2021. It in addition notes the statement from their Accountants attesting to their financial viability.
ASIC Registration details were observed by the Tribunal, on the official ASIC website. The ABN website data shows that the nominator was first registered on 12 February 1987 and is due for review on 1 March 2025.
The Tribunal checked the status of the listed ABN – 95 105 716 505. The ASIC website is indicating the ABN is currently active, was first registered 1 March 2004 and due for review on 1 March 2025. The Tribunal in addition checked the company web site. The Tribunal is satisfied that the applicant is actively, lawfully and directly, operating a business in regional Australia. 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. The Tribunal finds that r. 5.19(4)(c) is not relevant to the current nomination.
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 notes that this a very well-known South Australian business which is considered an institution in the provision of Indian cuisine. It appears to have substantial and growing revenues and an appropriately growing asset base and increasing retained earnings with a proportional level of profit. The long-term stability of the nominating entity in an ever increasingly diverse and complex market, further attests to its’ ability to employ the visa applicant. It was demonstrated by the nominating entity that the business continued regardless of the Covid-19 pandemic and the staffing challenges. Customer loyalty and the positive impact it had during the pandemic was discussed at the hearing.
The Tribunal has had regard to the most recent Employment Contract dated 20 February 2018 with a salary of $55,000, plus the Superannuation Guarantee, (10.5%). A total remuneration package of $63,250. These rates were confirmed by evidence provided by the nominator in the form of Pay Slips showing the relative remuneration of the visa applicant and a previous incumbent. The corresponding position description was also examined. The Tribunal is satisfied that the nominee will be appointed for a period of at least 2 years employment from grant of visa and the terms of employment do not include an express exclusion of the possibility of extending the period of employment.
The Tribunal has formed the view that one of the substantial challenges facing the nominator is recruiting and retaining suitably qualified, experienced and motivated people to fill the role undertaken by the visa applicant. Current media and business reports analysing consumer confidence and employment data, coupled with present time job vacancies and recruitment challenges demonstrate a substantial deficit of suitably qualified potential employees in many sectors. This is well known to be one such sector. The problem is exacerbated if an organisation is reliant upon temporary or permanent immigration as part of their labour source, as is self-evident in the hospitality services industry. Business, Media, and Government reports are being circulated which indicate this is an escalating drag upon business development. This was canvassed by the nominator in their submission to the Tribunal. The Tribunal has referenced the National Skills Commission Report which supports this conclusion, dated 21 July 2021.[1]
[1] National Skills Commission Vacancy Report, June 2021, Release date: 21 July 2021
The Australian Institute of Company Directors, (AICD), Sentiment Index Report, published 15 December 2021, also demonstrates a positive trajectory for the economy and employment.
‘More than two-thirds of directors are confident in Australia’s 12-month economic outlook. Nearly two thirds (64 per cent) believe business will be on sure footing in 12 months-time, with positive indicators like investment, turnover and profits expected to grow.
While the overall outlook from directors is positive, key challenges are emerging for the post-COVID era.
Directors have identified workforce shortages as the top economic challenge facing Australian businesses, above COVID-19, climate change and Australia’s relationship with China.’
The recent Australian Bureau of Statistics data released on 16 June 2022, shows that in May 2022 there were approximately 500,000 job vacancies nationwide, the number having increased by 13.8% in the 3 months to May 2022. This current level of vacancies is more than double the level experienced in February 2020, immediately prior to the Covid-19 pandemic. The Tribunal notes the Reserve Bank of Australia’s current Cash Rate level is in the ascendency which is designed to cool an overheating economy but is yet to achieve its stated aim, although interest rate increases are reducing.
The Tribunal notes the recent National Employment Summit undertaken by key stakeholders, including the Australian Government, Business leaders and Unions, in a concerted effort to improve substantial worker shortages being experienced nationally. It also observes the publicly stated aims of increased skilled migration to help support the skills deficits being experienced by a substantial number of businesses.
The Tribunal acknowledges that the current national unemployment rate has reached its lowest point in 48 years, at 3.4% according to the ABS figures for July 2022, released on 18 August 2022. This was updated to 3.5% for September 2022, data released on 20 October 2022, still a record low level of unemployment.
The Tribunal in addition notes the most recent modelling associated with unemployment in Australia released in the current Governments Budget on 25 October 2022. It further reinforces that low unemployment is expected to continue for some years into the forward estimates period of 4 years.
The Tribunal is aware that the associated workforce is highly mobile. The specialist skills associated with this type of operation are highly sought after and readily transferred between competing businesses. There is a strong network which operates within this industry which has the effect of making it easy to entice valuable staff to join a competitor’s organisation. This is magnified in regional areas.
The Tribunal is satisfied that the business will be able to sustainably employ the nominee for the required 2-year minimum period, therefore 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 Tribunal has been provided with the visa applicant’s employment contract and relevant ATO income statements. The Tribunal accepts that the nominee’s current contracted annual salary plus the Superannuation Guarantee is resulting in a minimum total package of $63,250. It is considered reflective of the size of the business, the value placed upon the visa applicant’s services and the visa applicant’s level of experience.
The Tribunal researched the salaries offered for similar positions and had regard for the substantial salary determination evidence provided by the applicant. It is satisfied that the terms and conditions of employment are equivalent to other employees with the same experience performing equivalent work in the same workplace or a similar workplace. The Tribunal accepts this level of remuneration appears to be in the bottom quartile of similar roles of similar size located in regional locations. It meets the relevant award conditions for such a role.
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.
The Tribunal notes the Notice of Decision – Warning issued on 15 August 2011 indicating a failure to satisfy sponsorship obligations. It appears based upon the statements that the decision to only issue a warning was based upon corrective action taken by the business and what seems to be the belief that the infringement was due to lack of knowledge rather than a deliberate contravention. The Department did not apply a Bar or Cancellation in this instance. This was raised with the applicant at the hearing.
There is evidence before the Tribunal that the applicant has had 1 instance of failing to have an entirely satisfactory record of compliance with the immigration laws of Australia. In this instance, based upon the 12 years which have passed since the contravention, the evidence before it and noting Border Force’s Decision, the Tribunal has formed a view it is reasonable to disregard any such information. 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. The Tribunal notes that other than the 1 instance which occurred in excess of a decade ago, detailed in paragraphs 46-47 in this Decision, which as stated the Tribunal has concluded is reasonable to disregard, there is no evidence before the Tribunal that the applicant has anything but a satisfactory record of compliance with workplace relations law in Australia. 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 alternative requirements. These are set out in detail in the attachment to the decision. As stated above the nomination was made under the RSMS Direct Entry stream and the Tribunal has proceeded to assess the application against the criteria in r.5.19(4)(h)(ii) which require that:
·the position and nominator’s business are located in regional Australia;
·there is a genuine need for the paid position under the nominator’s direct control which cannot be filled by an Australian citizen or permanent resident;
·the tasks of the position correspond to those of an occupation at the ANZCO skill level 1, 2 or 3; and
·a regional certifying body has advised the Minister about certain matters relating to the position.
The Tribunal is satisfied that the position and nominator’s business are located in regional Australia. 5.19(4)(ii)(A) is satisfied.
The Tribunal notes that the delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19(4)(h)(ii)(B) of the Regulations because there was insufficient evidence presented to support the claim that there was a genuine need to employ the nominee.
The Tribunal, following substantially more evidence being presented to it, than was afforded to the delegate, has subsequently formed a different view. It has had regard to the size and scope of the nominating entity’s long-standing substantial and growing enterprise. It acknowledges the evidence presented that the Covid-19 pandemic had impacted on the business but notes that current revenues have stabilised. This was corroborated by current financial documentation. This was cross referenced with verbal evidence provided to the Tribunal at the hearing.

The Tribunal also notes the fact that the nominator has a substantial, highly rated business which require his attention and a core element of his business is having sufficient qualified Management available and capable of maintain the high standards required to succeed in this industry. The Tribunal notes that adequate levels of staffing are key to the entire enterprise and the organisation is struggling to attract and retain staff. It is illogical to believe that this role could be absorbed into the other Managers responsibilities. This is a service industry in the tourism and hospitality which requires immediate response to customer requests. Insufficient Management and staff, results in lost business and lost capacity to progress whilst negatively impacting upon the existing staff. The Tribunal is again reminded of the fact that the sole Director of the nominating entity has additional restaurants plus a real-estate development business in which he is active.
The Tribunal once again notes that the current economic trends demonstrate a rapid rebound in the economy post Covid-19 in Australia, at a rate that has exceeded most economic analyst’s predictions. This has highlighted substantial deficits in some areas of the employment market. Not unsurprisingly fields which involve long lead times, require substantial investment in training and sophisticated or specialised levels of technical expertise or are not particularly attractive, appear to be within the cluster of careers showing clear signs of demand exceeding supply. The Tribunal notes this has in-fact been the case in this field for a substantial number of years prior to Covid-19 but the issue is being greatly accentuated under the current economic conditions. The Tribunal accepts that the nominator has other business interests under their control and must therefore operate at a Director level.
The Tribunal notes that there has been a substantial escalation in entertaining and social gatherings post Covid-19 isolation requirements being relaxed. It also notes this is a significant driver in this business. This is demonstrated by the financial documentation provided.
The challenging recruitment and retention trend as earlier stated, is also becoming apparent in areas where Australia has relied upon both temporary and permanent immigration to meet labour demands. This has long been the case in regional locations and this industry. The Tribunal anticipates the likelihood of this trend continuing and potentially accelerating for some time. This is invariably exacerbated in isolated or regional locations such as the location of the business currently under review.
The Tribunal notes that the visa applicant was originally employed approximately 4.5 years ago. He is clearly considered a valuable business asset. Staff excess to need are not kept in a business long-term.
The Tribunal is without doubt 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. Therefore, the requirements of r.5.19(4)(h)(ii)(B) are satisfied.
Evidence was presented to the Tribunal regarding the recruitment process and the subsequent lack of suitably qualified and experienced applicants other than the nominee. The Tribunal accepts that the nominator had sincerely tried to fill the role. It notes the multiple electronic job sites utilised in conjunction with an advertisement in print media, which was coordinated by a specialist in the field. It also accepts that personal and professional networks were utilised in the attempt to recruit for the visa applicant’s position. The Tribunal is satisfied that a fair and honest recruitment process was undertaken in a very limited talent pool. This was canvassed and corroborated by the applicants during the hearing.
The Tribunal has formed the view that the “Satisfied” RCB requirements and the issued Certificate provide some weight in favour of the applicant, however this is not within itself a definitive result which must be accepted by the Tribunal. It must make up its’ own mind as to the relevance of the advice proffered. In this instance it is accepted as sound advice that should be considered in support of the nominator’s claims.
The Tribunal observes that substantially more corroborative and relevant evidence was provided to it, than was presented to the delegate at the time of their decision. The Tribunal, as stated previously, acknowledges the current employment market distortions created by the Covid-19 pandemic followed by and coupled with the lowest unemployment rate in several decades. It is satisfied that the position cannot be filled by an Australian citizen or permanent resident and should the visa applicant no longer work in the business the nominator would likely find it very challenging to find a replacement. The Tribunal is satisfied that the nominator’s business is located in regional Australia. 5.19(4)(ii)(C) is satisfied.
Regulation r.5.19(4)(h)(ii)(D), requires that the tasks to be performed in the position correspond to those at ANZSCO skill level 1, 2 or 3. The Tribunal has reviewed both the relevant descriptors supplied in ANZSCO 141111 for Café or Restaurant Manager and the detailed duty statement attached for the visa applicant. It appears clear that the Duty Statement and the ANZSCO descriptors substantially align. The position of Café or Restaurant Manager, ANZSCO141111, nominated by the applicant is referred to in ANZSCO as a skill level 2 position and the Tribunal is satisfied that the visa applicant is operating at that level. 5.19(4)(ii)(D) is satisfied.
The Tribunal is satisfied that the occupation is applicable to the person identified under subparagraph (a)(ii) in accordance with the specification of the occupation and the business operated by the nominator is located at that place. 5.19(4)(ii)(DA) and 5.19(4)(ii)(E) are satisfied.
The Tribunal has had regard to the ‘Satisfied’ Form 1404 issued by an RCB, dated 14 June 2018 and is satisfied that the applicant has advised the Minister about matters relating to the terms and conditions of employment, the genuine need for the position and that the position cannot be filled locally. 5.19(4)(ii)(F) is satisfied.
The Tribunal is satisfied that the applicant meets 5.19(4)(h)(ii).
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.
Peter Emmerton

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 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 4340

16 November 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Natural Justice