Chefs of Tandoori Pty Ltd (Migration)
[2022] AATA 1047
•20 January 2022
Chefs of Tandoori Pty Ltd (Migration) [2022] AATA 1047 (20 January 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT: Chefs of Tandoori Pty Ltd
REPRESENTATIVE: Miss Vanessa De Pretis (MARN: 1388116)
CASE NUMBER: 2017109
HOME AFFAIRS REFERENCE(S): BCC2016/2411649
MEMBER:Amanda Mendes Da Costa
DATE:20 January 2022
PLACE OF DECISION: Melbourne
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.
Statement made on 20 January 2022 at 12.30pm
CATCHWORDS
MIGRATION – nomination – Cook – Direct Entry nomination stream – Federal Circuit Court remittal – applicant has a satisfactory record of compliance with workplace relations laws –no Australian citizen or permanent resident performing equivalent work at the same location – genuine need to employ a paid employee to work in the position under the nominator’s direct control – decision under review set asideLEGISLATION
Migration Act 1958, ss 65, 140GB, 245AR
Migration Regulations 1994, 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 15 March 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 20 July 2016. 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)(a)(ii) of the Regulations because the delegate was not satisfied that the applicant had identified a need for the nominator to employ a paid employee to work in the position under the nominator’s direct control.
This matter is before the Tribunal as a result of Orders made by the Federal Circuit Court at Adelaide on 16 November 2020, remitting the review application and directing it to determine the application in accordance with law. The original Tribunal decision in the matter was made on 2 April 2020 in Tribunal Case Number 1807753.
Mr Harpreet Singh and Mr Sandeep Behl, directors of the applicant, appeared before the Tribunal on 17 January 2022 to give evidence and present arguments on behalf of the company.
The applicant was represented in relation to the review by its migration agent who participated in the hearing.
The Tribunal exercised its discretion to hold the hearing by video. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by video, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal has taken into account that the applicant was prepared to participate in a video hearing and that the applicant was offered the opportunity to provide the Tribunal with further documentation and submissions following the hearing.
The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.
At the commencement of the hearing, the Tribunal advised the applicant that whilst it had viewed the original Tribunal decision in TCN 1807753 it was not bound by that decision and would make its own decision in the matter.
For the following reasons, the Tribunal has decided to set aside the decision under review and substitute a decision approving the nomination .
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant meets the requirements for approval of the nomination under the Direct Entry nomination stream set out in reg 5.19(4), which is extracted in the attachment to this decision. For the nomination to be approved, all the requirements must be met.
The application is compliant: reg 5.19(4)(a)
Regulation 5.19(4)(a) requires that the application for approval must be in the approved form, must be accompanied by the prescribed fee, and, where applicable, must include the required written certification relating to conduct that contravenes s 245AR(1). The application must also identify a need for the nominator to employ a paid employee to work in the position under their direct control.
From the Department’s file, the Tribunal is satisfied that the application was made on the approved form and accompanied by any prescribed fee as it relates to a regional employer. It is further satisfied as to the completion of a written certification relating to conduct that contravenes s.245AR(1) which was signed by the nominator.
The Tribunal further notes that the nomination application form identifies a nominee, Mr Chaudhary Vishal for the nominated occupation of Cook ANZSCO 315411, a paid position. The Tribunal is satisfied from the position description and information in the application form that the nominated position is under the direct control of the applicant.
Accordingly, the requirement in reg 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 Tribunal is satisfied from the detailed documents provided to it, including the applicant’s recent financial statements, its current ASIC and ABN registration and the oral evidence of Mr Singh and Mr Behl, that it is actively, lawfully and directly operating a business in Australia.
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.
The material before the Tribunal indicates that the applicant operates an Indian restaurant in Adelaide and there is no suggestion that its business activities include any relating to labour hire to an unrelated business.
Accordingly, the requirement in reg 5.19(4)(c) does not apply.
Term of employment of the visa holder: reg 5.19(4)(d)
Regulation 5.19(4)(d) requires the nominee to be employed in the nominated position for at least 2 years full time, and the terms and conditions of that employment do not expressly exclude the possibility of an extension.
Based on the evidence before it (including the up-dated contract of employment for the nominee (dated 17 January 2022)) and the oral evidence of Mr Singh and Mr Behl, the Tribunal is satisfied the nominated position will be an on-going one and the minimum proposed length of the nominee’s employment is two years and that the terms and conditions of employment do not expressly 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 updated contract of employment (dated 17 January 2022) provided to the Tribunal indicates that the nominee’s salary will be $47,426.08 per annum plus superannuation. The evidence before the Tribunal indicates that there is no equivalent position in the applicant’s business operations and that there is no equivalent Australian employee.
Accordingly, the Tribunal has considered the evidence put forward to determine whether the proposed salary and terms and conditions of employment would 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. Based on the evidence before it the Tribunal is satisfied that the terms and conditions relating to hours of work and leave and termination entitlements in the nominee’s contract of employment are in line with those contained in the National Employment Standards.
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.
There is no evidence before the Tribunal which suggests that there is any adverse information known to the Department about the applicant or person associated with the nominator. In making this finding, the Tribunal has taken into account the meanings for the terms ‘adverse information’ and ‘associated’ as given in regs 1.13A and 1.13B.
Accordingly the requirements of reg 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 notes that in the original Tribunal decision in TCN 1807753 the Member found that:
At the hearing, the applicant told the Tribunal that in 2019, wages of $18,500 were paid to each of the two working directors and $26,052 to each director’s spouse who were each working in the business approximately 25 hours per week. For these four persons the wages. In aggregate, amount to $89,104 for the year. The oral evidence is that a superannuation contribution of $6000 was paid on 27 July 2019 in respect of these wages relating to the 2018 financial year. The Tribunal put to the applicant that at the applicable Superannuation Guarantee rate of 9.5%, the superannuation payable under Commonwealth legislation relating to workplace relations is $8,464.88 and that therefore, the applicant appears to have underpaid superannuation entitlements to employees engaged in South Australia. The applicant’s response at hearing was that it would remedy any underpayment of superannuation forthwith[1].
and
… the required superannuation contribution of 9.5% of the applicant’s wages and salaries were not fully paid in 2018 and 2019 in respect of its applicable employees. Form this the Tribunal is not satisfied that the applicant has substantially complied with its superannuation contribution obligations under the (Superannuation Guarantee) laws of the Commonwealth relating to South Australian employees[2].
[1] At paragraphs 14 and 15 of the Tribunal’s decision.
[2] At paragraph 18 of the Tribunal’s decision.
The Member was not satisfied that the applicant met the requirements of reg 5.19(4)(g) because it did not have a satisfactory record of compliance with the laws of the Commonwealth and of the State in which the applicant operated a business.
The applicant’s written submissions to the Tribunal in this case regarding its reg 5.19(4)(g) obligations may be summarised as follows:
·There has been no workplace investigation, claim sanction or finding against the applicant over the 20 years the business has been operating.
·The term “satisfactory record” is not defined in legislation. The discretionary nature of reg 5.19(4)(g) along with the lack of legislative guidance, gives the Tribunal scope to consider relevant policy guidelines and to consider the term in accordance with its ordinary and natural meaning. The Oxford Dictionary provides for a lesser standard associated with the term ‘satisfactory’ as its meaning is synonymous with: “fulfilling expectations or needs; acceptable, though not outstanding or perfect”.
·The term is similarly defined by the Cambridge Dictionary as “good or good enough for a particular need or purpose”. In the context of this provision, the common and ordinary interpretation of ‘satisfactory’ clearly does not require an absolute or perfect letter of compliance.
·A fair and reasonable approach ought to be taken by the Tribunal in the assessment of this criterion. It is neither necessary for the Tribunal to consider whether the nominator has at some point ever breached any workplace relations law of the Commonwealth/State, nor is it a definitive factor.
·While an applicant’s prior breach of workplace laws may be considered it does not necessarily follow that the nominator cannot meet the requirement of satisfactory compliance.
·As previously conveyed by the Federal Court, a satisfactory record of compliance does not necessarily require an unblemished record and decision makers must have regard to the pertinent facts of the case.
·It was surely not a legislative intention for a nomination to be refused in circumstances where there has been an inadvertent, minor or single breach. Minor breaches or those that constitute a single and non-recurring breach should be reasonably disregarded in this assessment.
·A search of decisions on the Fair Work Commission and South Australian Employment Tribunal websites confirms that there are no results for the nominator. Nor have they issued any caution, infringement notice or implemented any enforcement actions against the applicant.
·There is no independent evidence to suggest the applicant has been found to be in breach of any of the laws of the Commonwealth or State in relation to workplace relations, award breaches or underpayment of wages.
·The underpayment of their personal superannuation arose due to the director’s lack of knowledge and misinformed understanding about how superannuation obligations applied to their employment in the business. This stemmed from erroneous advice they received.
·The directors mistakenly believed they could voluntarily withhold their own superannuation payments.
·The directors and their spouses all have self-managed superannuation funds. In early January 2016 the company sold an investment property and the directors made two large deposits (more than $185,000 in total) into their funds.
·Believing they had already deposited excess amounts into their superannuation funds, the directors did not make superannuation contributions for themselves in 2018-2019 despite earning a salary for the work performed.
·There was an unintentional shortfall in the superannuation expense for the 2018-2019 years due to a lack of superannuation paid to the directors.
·There was no shortfall in the superannuation paid by the applicant to its other employees.
·When the issue was brought to the attention of the directors, all outstanding superannuation contributions were promptly paid after their accountant conducted a reconciliation for the directors and spouses’ superannuation payments through MYOB Essentials (Accounting and Payroll software).
·Thereafter the directors have ensured that superannuation is paid promptly on their behalf.
·The directors have not only remedied their past oversight but have also implemented systems and practices to ensure that previous errors will not be repeated.
·Mr Singh regularly reviews and liaises with the company accountant in terms of payroll and superannuation. These actions make any further errors in relation to the applicant’s superannuation commitments extremely unlikely.
At the hearing Mr Singh and Mr Behl adopted the above submissions and reiterated that when the difficulties with their superannuation contributions arose, they had instituted changes which included a Single Touch payroll system and a new superannuation payment method which has resulted in the applicant’s superannuation payments being paid to its employees through the ATO’s Small Business Superannuation Clearing House.
The Tribunal notes that the term ‘satisfactory record of compliance with workplace relations’ is not defined in the Regulations although it appears to be a subjective test that does not contemplate or require a perfect record of compliance.
Dictionary definitions of ‘satisfactory’ vary from ‘fulfilling all demands or requirements’ to ‘acceptable though not outstanding or perfect’. In Nice Shoes Australia Pty Ltd v MIMIA[3] the Federal Court considered these competing definitions in the context of ‘satisfactory record’ as it arose in relation to the training requirement for standard business sponsors in the since repealed r.1.20D(2)(c)(ii). In that case, the Court observed that the difficulty with such a definition in that it provides no measure or standard against which to determine whether something is ‘satisfactory’. Looking to the broader context of r.1.20D, the Court held that a ‘satisfactory record’ of training is a record that demonstrates that the applicant provides training to a degree reasonably commensurate with the nature and extent of its business operations in Australia.[4]
[3] [2004] FCA 252.
[4] [2004] FCA 252 at [16]-[17].
The Tribunal is satisfied that the approach taken by the Court in the Nice Shoes case provides guidance to this Tribunal in considering the meaning of the term ‘satisfactory record of compliance with workplace relations’. The Tribunal finds that it refers to compliance with workplace relations laws which is not necessarily perfect but involves reasonable compliance with such laws.
The Tribunal accepts the applicant’s submissions, the financial statements and oral evidence of Mr Singh and Mr Behl. The Tribunal is satisfied that although there was a shortfall in the superannuation contributions made by the company for the financial year 2018-2019, this shortfall was inadvertent; not related to the contributions of any employees other than the directors and their spouses and not repeated by the applicant. The Tribunal further accepts that after the shortfall was brought to the attention of the applicant, steps were taken to remedy the situation and ensure that it does not reoccur. Accordingly, the Tribunal is satisfied that although the applicant does not have a perfect record of compliance with workplace relations laws in the location where it operates its business and employs staff, it does have a satisfactory one.
Accordingly the requirements of reg 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 the relevant 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.
The applicant company was registered with ASIC in 2000 and commenced its business in 2001. The applicant operates an Indian Restaurant, located in the suburb of Malvern in Adelaide, South Australia. The restaurant was located at another location until April 2021 when it moved to its current premises. The reason for the move was that the applicant’s previous landlord was not prepared to renegotiate the rent in the context of the Covid-19 pandemic and its effect on the applicant’s business.
During the past two years, government restrictions on trading and the reluctance of some patrons to eat meals within the restaurant, has led to the applicant increasing its sales of takeaway and home delivered meals and the use of popular home delivery platforms. These sales have compensated for the decrease in eat-in meals during periods when the Covid-19 pandemic has surged within the community or government restrictions have limited eat-in customers in the restaurant. The applicant has also been involved in developing a ‘virtual’ restaurant in conjunction with an online food ordering and delivery platform. This restaurant specialises in vegan cuisine with over 30 menu items, which were formulated with the contribution of the nominee and the other cook employed in the business.
The applicant employs seven employees (including the nominee) – four of whom work in the business on a full-time basis and three of whom are part-time employees. Until November 2021 the business employed a fulltime Chef in addition to two Cooks (including the nominee). The applicant intends to employ another Chef but in the meantime Mr Behl is assisting the Cooks in the kitchen.
The Tribunal notes that the organisational chart provided to the Tribunal in October 2021 is consistent with the oral evidence of Mr Singh and Mr Bedl concerning the staff employed in the business, save for the position of Chef which was then occupied by a fulltime staff member.
The Tribunal notes that the nominee has been employed in the nominated position on a fulltime basis since 2016. The Tribunal was provided with several payslips for the nominee which are supportive of his employment by the applicant.
The applicant’s business is located in the suburb of Malvern, Adelaide, South Australia. Although business was formerly located at another address, the Tribunal is notes that it was in the same suburb as it is currently located. The Tribunal is further satisfied that the nominated position is located in ‘regional Australia’.[5]
[5] See IMMI 16/045.
Having considered all of the available evidence, the Tribunal is satisfied that the applicant has a genuine need for the nominated position of Cook in the business. In this respect, the Tribunal has taken into account that the nominee has been employed in the nominated position for nearly six years and had contributed to the establishment of the applicant’s online vegan restaurant. Based on the organisational chart, position description and the oral evidence of Mr Singh and Mr Behl, the Tribunal is also satisfied 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 the relevant written instrument.
The Tribunal notes that although the applicant’s business provides takeaway and home delivered meals, it is based on its restaurant which provides eat-in meals with full table service to its customers. Accordingly, the Tribunal is satisfied that the business is not a fast food or takeaway outlet.
With regard to whether the position can be filled by an Australian citizen or permanent resident who is living in the same local area, the Tribunal has had regard to the information submitted on behalf of the applicant to the Department and the Tribunal. This information indicates that the applicant advertised the nominated position via a range of advertising platforms and interviewed two candidates, including the nominee. This evidence together with the oral evidence of Mr Singh and Mr Behl and the submissions provided, satisfy the Tribunal that the position was not able to be filled locally by the applicant.
Having considered all of the evidence before it, the Tribunal is satisfied that the position cannot be filled by an Australian citizen, or permanent resident who is living in the same local area.
The Tribunal has considered the Regional Certifying Body Advice (dated 22 December 2016) in respect of the nominated position, which was provided to both the Department and the Tribunal by the applicant. The Tribunal accepts this advice in relation to the matters contained in r.5.19(4)(e) and r.5.19(4)(h)(ii)(B)&(C).
Accordingly the requirements of reg 5.19(4)(h) 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.
Amanda Mendes Da Costa
MemberATTACHMENT - 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).
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