Chinchilla (Australia) Enterprises Pty Ltd (Migration) - [2020] AATA 2913

Chinchilla (Australia) Enterprises Pty Ltd (Migration) [2020] AATA 2913 (17 April 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Chinchilla (Australia) Enterprises Pty Ltd
CASE NUMBER:  1915370
DIBP REFERENCE(S):  BCC2015/3318142
MEMBER:Susan Trotter
DATE:17 April 2020
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Statement made on 17 April 2020 at 1:52pm
CATCHWORDS
MIGRATION – nomination of a position – Federal Circuit Court remittal – Direct Entry Nomination stream – position of Café or Restaurant Manager – identified need for the nominee – terms and conditions of employment – financial capacity – expansion of business operations – regional certifying body endorsement – decision under review set aside
LEGISLATION
Migration Regulations 1994, Schedule 1; rr 1.13, 5.19, 5.37
CASES
Bharaj Construction Pty Ltd v MIBP [2016] FCCA 902
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration on 26 July 2016 to reject the applicant’s application for approval of the nomination of a position in Australia under r.5.19 of the Migration Regulations 1994 (the Regulations).
The requirements for the approval of the nomination of a position in Australia are found in r.5.19 of the Regulations[1] which contains two alternative streams: a Temporary Residence Transition nomination (r.5.19(3)) stream and a Direct Entry nomination (r.5.19(4)) stream. If the application is made in accordance with r.5.19(2) and meets the requirements of either stream, then the application must be approved. If any of the requirements are not met, then the application must be refused: r.5.19(5).
[1] References in these Reasons are references to the applicable regulations as at the date of the applicant’s nomination application on 11 November 2015.
The applicant applied for approval on 11 November 2015 seeking to satisfy the criteria in the Direct Entry nomination stream, nominating the position of Café or Restaurant Manager (ANZSCO[2] code 141111) to be undertaken by Sandeep Singh Bhullar (the nominee) for its business, Masala Hut Indian Restaurant at Chinchilla, Queensland 4413.
[2] Australian and New Zealand Classification of Occupations
The delegate refused the application, on 26 July 2016, on the basis that the applicant’s nomination did not satisfy r.5.19(4)(a)(ii) of the Regulations because the applicant had not sufficiently demonstrated a need for the nominated position of Café or Restaurant Manager (ANZSCO: 141111).
On 12 August 2016, the applicant lodged an application for review of the delegate’s decision with the Tribunal.
On 21 August 2018, a differently constituted Tribunal affirmed the decision to refuse the nomination.
On 29 May 2019, the matter was remitted by consent orders of the Federal Circuit Court on the basis that ‘The Minister concedes that the decision of the AAT is affected by jurisdictional error on the basis that the AAT failed to consider evidence submitted by the Applicant in support of the review. Specifically, the AAT failed to consider: (i) submissions made to the AAT on 22 November 2017 and…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2020] AATA 2913
Decision Date: 17 April 2020

CaseChat Overview and Summary

The matter before the Tribunal concerned an application by Chinchilla (Australia) Enterprises Pty Ltd for approval of a nominated position under the Direct Entry Nomination stream. The dispute arose from a decision that did not approve the nomination of a Café or Restaurant Manager. The Tribunal was tasked with reviewing this decision.

The legal issues before the Tribunal included whether there was a genuine need for the nominee to fill the position of Café or Restaurant Manager, whether the terms and conditions of employment were appropriate, and whether the applicant had the financial capacity to support the employment and expansion of its business operations. The Tribunal also considered the requirement for endorsement from a regional certifying body.

The Tribunal's reasoning focused on the evidence presented, which demonstrated that the applicant, Mr. Rattu, had a clear plan for business expansion, including opening new restaurants in Brisbane. The previous manager's departure and the difficulty in finding suitable local candidates for the Chinchilla restaurant created a genuine need for the nominee. The Tribunal found that the nominee possessed the necessary qualifications and experience, and his relocation to Chinchilla facilitated Mr. Rattu's expansion plans. Documentary evidence, including financial statements, business activity statements, and employment contracts, supported the applicant's operational capacity and the terms of employment offered to the nominee. The Tribunal was satisfied that the applicant met the requirements of regulation 5.19 of the Migration Regulations 1994.

Consequently, the Tribunal set aside the original decision and substituted it with a decision approving the nomination.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

For the following reasons, the Tribunal has decided to set aside the decision under review and substitute a decision approving the nomination.EVIDENCE The documents provided by the applicant to the Department included as follows:(a) Restaurant menu, leasing agreement;(b) Regional Certifying Body certification form;(c) Business registration certificate;(d) Business organisation chart;(e) profit and loss statement for the period ended 30 June 2014;(f) advertisement from Gumtree; (g) an employment contract; (h) a statement from Mr Rattu dated 23 October 2015;(i) company tax return 2014; (j) Quarterly View Activity Statement period from 1 January 2015 to 30 June 2015; and(k) Quarterly Business Activity Statement period from July to December 2014. The documents provided by the applicant for the original Tribunal review included as follows:(a) Submissions from the representative dated 22 November 2017;(b) Gumtree ad for a full-time restaurant manager dated 15 September 2015;(c) Organisational Chart as at November 2017;(d) Lease for Lot 3 on SP 188934, dated 29 August 2016 for a period of 5 years, and an option period of another 5 years;(e) Emails relating to the expansion of the business;(f) Business profile for Masala Hut Chinchilla;(g) Business Profile for Masala Hut Balmoral;(h) Employment Contract dated 26 October 2015(i) Financial Statements (including Profit and Loss) for the financial years ending 2013, 2015, 2016 and 2017;(j) BAS Statements for the following periods:- Quarter ending 31 March 2014- Quarter ending 30 June 2014- Each Quarter ending from 30 September 2015 to 31 December 2017- Annual BAS Statement for 2016-2017 Financial Year;(k) Letter from AF Taxation Services dated 21 November 2017;(l) Payslips for the nominee;(m) VEVO Entitlement Check for the nominee;(n) Company Tax Returns for 2013, 2015, 2016 and 2017;(o) Organisational Chart as at 26 June 2018; and(p) PAYGs for the director – Surinder Singh Rattu – for the 2013/2014, 2014/2015, 2015/2016 and 2016/2017 financial years Further documents provided by the applicant for the current Tribunal review included as follows:(a) 2019 – Draft Financial Statements(b) 2020 – Organisational chart (c) BAS Statements from July 2018 to December 2019 (d) Group Certificate for Sandeep Singh Bhullar for year ending 2018 and 2019 (e) Pay Slips for Sandeep Singh Bhullar for 1st February 2019 to Current (f) Approval of Nomination for Chinchilla (g) Evidence of Operating business - Social media and Reviews (h) Letter from Taxation Services dated 7 February 2020 re applicant’s operations, profitability and ability to meet financial responsibilities The evidence and submissions before the Tribunal included as follows:(a) Mr Rattu moved to Chinchilla in 2011 and opened an Indian restaurant, Masala Hut, and it was doing well because of the boom of mining and the gas industry in the area. He sponsored a manager for the restaurant, Mr Gurteen Singh. However, Mr Singh asked to take six months leave (from August 2015) and then sought to return part-time in February 2016. Mr Rattu was sympathetic to Mr Singh’s request and agreed to the leave and Mr Rattu himself then worked in the restaurant undertaking managerial duties. However, he did not want to continue those duties himself indefinitely because he had plans to expand and open other restaurants. It became evident that Mr Singh had no intentions of returning to work as he was not reporting back to Mr Rattu of his health status and intentions, so Mr Rattu advertised the position in September 2015 and started exploring other options.(b) Mr Rattu was wanting to open another restaurant in Brisbane and wanted to devote his energies to that. He advertised on Gumtree for a restaurant manager. A few people applied but the applicants were all based in Brisbane and did not have the correct experience and the people already in Chinchilla preferred to work in the mines. The nominee, who is also his brother-in-law, was living in Brisbane but was prepared to work in Chinchilla full-time and he has the background and qualifications in the restaurant industry. The nominee moved to Chinchilla which enabled him (Mr Rattu) to move to Brisbane to open another restaurant, which he then did. (c) The nominee commenced working part-time for the applicant from 26 September 2016 and commenced working full-time from 13 March 2017 as he continues to do. This enabled Mr Rattu to proceed with his expansion plans with him since opening two further Masala Hut restaurants, in Balmoral (in 2016) and Cashmere (in 2019) in Brisbane, Queensland.(d) As restaurant manager, the nominee plays a key role in not only coordinating duties between front of house and the kitchen but also in being entirely responsible for all front of house operations, managing staff/allocating duties and providing service to customers. The nominee takes an authoritative role in the overall performance liaising only periodically with the owner/application (Mr Rattu) including by phone in cases of emergency. All major responsibilities of the day to day functions of the restaurant are undertaken by the nominee.(e) The Tribunal also took into account the evidence of Mr Rattu, supported by documentary evidence, that the applicant previously employed another person in the role of Restaurant Manager, Mr Gurneet Singh, but that Mr Singh applied for annual and personal leave in August 2015 for six months for health reason and then only came back to work in February 201 on a part-time basis. only (f) The nominee’s evidence included that he was aware of the position because of the advertisement on Gumtree but was also aware of the job advertisement because of discussions between his family. He told the Tribunal that there are now five employees of the business in Chinchilla although if there are extra functions like birthday parties, he has two other waitresses on call. The restaurant employs two cook/chefs, a kitchenhand, a kitchenhand/waitress and another waitress. CONSIDERATION

Decision

Reasons for decision

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.Susan TrotterMemberATTACHMENT - EXTRACTS FROM THE MIGRATION REGULATIONS 19945.19Approval of nominated positions (employer nomination)…(2)The application must:(a)be made in accordance with approved form 1395…; and(b)be accompanied by the fee mentioned in regulation 5.37.…Direct Entry nomination(4)The Minister must, in writing, approve a nomination if:(a)the application for approval:(i) is made in accordance with subregulation (2); and(ii) identifies a need for the nominator to employ a paid employee to work in the position under the nominator’s direct control; and(b)the nominator:(i) is actively and lawfully operating a business in Australia; and(ii) directly operates the business; and(c)for a nominator whose business activities include activities relating to the hiring of labour to other unrelated businesses — the position is within the business activities of the nominator and not for hire to other unrelated businesses; and(d)both of the following apply:(i) the employee will be employed on a full-time basis in the position for at least 2 years;(ii) the terms and conditions of the employee’s employment will not include an express exclusion of the possibility of extending the period of employment; and(e)the terms and conditions of employment applicable to the position will be no less favourable than the terms and conditions that:(i) are provided; or(ii) would be provided;to an Australian citizen or an Australian permanent resident for performing equivalent work in the same workplace at the same location; and(f)either:(i) there is no adverse information known to Immigration about the nominator or a person associated with the nominator; or(ii) it is reasonable to disregard any adverse information known to Immigration about the nominator or a person associated with the nominator; and(g)the nominator has a satisfactory record of compliance with the laws of the Commonwealth, and of each State or Territory in which the applicant operates a business and employs employees in the business, relating to workplace relations; and(h)either:(i) both of the following apply:(A)the tasks to be performed in the position will be performed in Australia and correspond to the tasks of an occupation specified by the Minister in an instrument in writing for this sub-subparagraph;(AAA)the occupation is applicable to the person identified under subparagraph (a)(ii) in accordance with the specification of the occupation;(B)either:(I)the nominator’s business has operated for at least 12 months, and the nominator meets the requirements for the training of Australian citizens and Australian permanent residents that are specified by the Minister in an instrument in writing for this sub-sub-subparagraph; or(II)the nominator’s business has operated for less than 12 months, and the nominator has an auditable plan for meeting the requirements specified in the instrument mentioned in sub-sub-subparagraph (I); or(ii) all of the following apply:(A)the position is located in regional Australia;(B)there is a genuine need for the nominator to employ a paid employee to work in the position under the nominator’s direct control;(C)the position cannot be filled by an Australian citizen or an Australian permanent resident who is living in the same local area as that place;(D)the tasks to be performed in the position correspond to the tasks of an occupation specified by the Minister in an instrument in writing for this sub-subparagraph;(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).

Ratio Decidendi

Legal Principle Established

The evidence and submissions before the Tribunal included as follows:(a) Mr Rattu moved to Chinchilla in 2011 and opened an Indian restaurant, Masala Hut, and it was doing well because of the boom of mining and the gas industry in the area. He sponsored a manager for the restaurant, Mr Gurteen Singh. However, Mr Singh asked to take six months leave (from August 2015) and then sought to return part-time in February 2016. Mr Rattu was sympathetic to Mr Singh’s request and agreed to the leave and Mr Rattu himself then worked in the restaurant undertaking managerial duties. However, he did not want to continue those duties himself indefinitely because he had plans to expand and open other restaurants. It became evident that Mr Singh had no intentions of returning to work as he was not reporting back to Mr Rattu of his health status and intentions, so Mr Rattu advertised the position in September 2015 and started exploring other options.(b) Mr Rattu was wanting to open another restaurant in Brisbane and wanted to devote his energies to that. He advertised on Gumtree for a restaurant manager. A few people applied but the applicants were all based in Brisbane and did not have the correct experience and the people already in Chinchilla preferred to work in the mines. The nominee, who is also his brother-in-law, was living in Brisbane but was prepared to work in Chinchilla full-time and he has the background and qualifications in the restaurant industry. The nominee moved to Chinchilla which enabled him (Mr Rattu) to move to Brisbane to open another restaurant, which he then did. (c) The nominee commenced working part-time for the applicant from 26 September 2016 and commenced working full-time from 13 March 2017 as he continues to do. This enabled Mr Rattu to proceed with his expansion plans with him since opening two further Masala Hut restaurants, in Balmoral (in 2016) and Cashmere (in 2019) in Brisbane, Queensland.(d) As restaurant manager, the nominee plays a key role in not only coordinating duties between front of house and the kitchen but also in being entirely responsible for all front of house operations, managing staff/allocating duties and providing service to customers. The nominee takes an authoritative role in the overall performance liaising only periodically with the owner/application (Mr Rattu) including by phone in cases of emergency. All major responsibilities of the day to day functions of the restaurant are undertaken by the nominee.(e) The Tribunal also took into account the evidence of Mr Rattu, supported by documentary evidence, that the applicant previously employed another person in the role of Restaurant Manager, Mr Gurneet Singh, but that Mr Singh applied for annual and personal leave in August 2015 for six months for health reason and then only came back to work in February 201 on a part-time basis. only (f) The nominee’s evidence included that he was aware of the position because of the advertisement on Gumtree but was also aware of the job advertisement because of discussions between his family. He told the Tribunal that there are now five employees of the business in Chinchilla although if there are extra functions like birthday parties, he has two other waitresses on call. The restaurant employs two cook/chefs, a kitchenhand, a kitchenhand/waitress and another waitress. CONSIDERATION