Chinchilla (Australia) Enterprises Pty Ltd (Migration)

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 (ii) a statement from the First Applicant’s director dated 23 October 2015 and screenshots of job advertisements provided to the Minister’s delegate.’
Mr Surinder Singh Rattu, Director of the applicant appeared before the Tribunal as currently constituted on 10 February 2020 to give evidence and present arguments. The Tribunal also received oral evidence from the nominee, Sandeep Singh Bhullar.
The applicant was represented in relation to the review by its registered migration agent.
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 1^st 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
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.
The application is compliant: r.5.19(4)(a)
As at the date of the nomination application, r.5.19(4)(a) together with r.5.19(2) required that the application for approval must be in the approved form and must be accompanied by the prescribed fee (r.5.19(4)(a)(i)) and must also identify a need for the nominator to employ a paid employee to work in the position under their direct control (r.5.19(4)(a)(ii)).
Having regard to documentation in the file of the Department, the Tribunal is satisfied that the application was made on the relevant form. The application relates to a visa in a Direct Entry stream seeking to meet the requirements in the Regional Sponsored Migration Scheme and consequently no fee is payable (r.5.37(2)(a)). The requirements of r.5.19(2) and consequentially also r.5.19(4)(a)(i) are therefore satisfied.
The delegate was not satisfied that the application for approval identified a need to employ a nominated employee in the position of Cafe or Restaurant Manager under the applicant’s control for the purposes of r.5.19(4)(a)(ii).
It is unclear whether this requirement is directed just at a statement to this effect or something of a more qualitative nature. The wording ‘identifies a need’ arguably suggests more is required to meet this criterion than simply a statement or declaration that there is such a need. ‘Identify’ is defined as ‘to recognise or establish as being a particular person or thing; attest or prove to be as claimed or asserted.’[3] On that view, which is consistent with that reflected in Departmental policy,[4] a decision maker would need to be satisfied there is a genuine need on the part of the nominator to employ someone in the nominated position.[5] However, it could alternatively be argued that r.5.19(4)(a) as a whole is directed towards requirements for the application form/ process of a more administrative nature, such that r.5.19(4)(a)(ii) could be met by a simple statement or certification of need. Support for this view can also be found in the contrast between the wording of r.5.19(4)(a)(ii) and, for example, r.5.19(4)(h)(ii)(B) (for applications relating to positions in regional Australia), which requires that there be a genuine need for the nominator to employ a paid employee to work in the position under the nominator’s control – clearly requiring a qualitative assessment, and r.5.19(4)(d)(i), which requires satisfaction that the employee will be employed on a full-time basis in the position for at least two years. Given the uncertain scope of r.5.19(4)(a)(ii), and the requirement in relation to this application to also consider r.5.19(4)(h)(ii)(B), the Tribunal considers this issue is more appropriately considered under r.5.19(4)(h)(ii)(B) later in these Reasons.
[3] Macquarie Dictionary online
[4] PAM3: Migration Regulations – Divisions – Div 5.3 – General > Approval of nominated positions (employer nomination) > Part C - Criteria applicable to Direct Entry stream nominations > Need for a paid employee > Applicability and overview (reissued 12/05/17 – last reissue prior to 1 July 2017).
[5] In Bharaj Construction Pty Ltd v MIBP [2016] FCCA 902 (Judge Barnes, 28 April 2016), the Court considered a similarly worded provision in respect of a pre-1 July 2012 RSMS nomination, i.e. “the employer nomination is made by an employer in respect of a need for a paid employee”. Whilst on the one hand r.5.19(4)(a)(ii) does not appear to impose a different requirement beyond emphasising the requirement for an applicant to identify the need (unlike the pre-1 July 2012 version of r.5.19(2)(a) and (4)(a)), the wording of the criteria does differ slightly and the Tribunal therefore exercise cautions in applying the reasoning of Bharaj to a post-1 July 2012 nomination as is currently being considered.
For the purposes of r.5.19(4)(a)(ii), the Tribunal considers that r.5.19(4)(a)(ii) is more directed to the administrative process, consistent with the requirements of r.5.19(4)(a) as a whole.
The nomination application was accompanied by a statement of Mr Surinder Singh Rattu dated 23 October 2015, stating, among other things, that ‘We are in urgent need of a full-time restaurant manager to assist with the operation at Masala Hut … We have been seeking the local suitable candidate to fill in the position since September 2015 via advertisement. However, it is hard to find a suitable person. During the peak hours, our restaurant is always full and busy. We required our staffs are not only providing the quality service, but also can work efficient. Some of the candidates are not able to handle the high work pressure’.
The Tribunal is satisfied based upon this statement provided with the nomination application that the application for approval identifies a need to employ a nominated employee in the position of Restaurant Manager under the applicant’s control. Regulation 5.19(4)(a)(ii) is therefore satisfied.
Given the above findings that subparagraphs (i) and (ii) are met, the requirements in r.5.19(4)(a) overall are therefore met.
Nominator is actively and lawfully operating a business in Australia: r.5.19(4)(b)
Regulation 5.19(4)(b) requires that applicant is actively, lawfully and directly operating a business in Australia.
The evidence is that at the time of the nomination application and now, the applicant operated and operates a restaurant, Masala Hut, at Chinchilla, Queensland and has subsequently, in 2016 and 2019 respectively, opened and now also operates Masala Hut restaurants in Balmoral and Cashmere in suburban Brisbane, Queensland.
Based on documentation provided by the applicant, and searches undertaken by the Tribunal, including ASIC Company Searches, Business Name Searches, Business Activity Statements and Financial Statements, Tax Returns and other documentation such as social media reviews of the Masala Hut restaurant, in evidence, the Tribunal is satisfied that the applicant is actively, lawfully and directly operating a business in 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.
There is no evidence before the Tribunal to suggest that the applicant is involved in labour hire activities.
Accordingly, the requirement in r.5.19(4)(c) does not apply.
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 two years full-time and that the terms and conditions of that employment do not expressly exclude the possibility of an extension.
The applicant provided the Department with a copy of an employment contract between the applicant and the nominee dated 26 October 2015, which states, among other things, that the employment is to commence within six months of grant of a Subclass 187 visa. The terms and conditions of the contract do not expressly exclude the possibility of extension of employment.
Various documentation before the Tribunal, including payslips, payment summaries and tax returns, show that the nominee was employed as Restaurant Manager with the applicant on a casual basis for 20 hours per week from 26 September 2016 to 12 March 2017 and has, since 13 March 2017 to the present time, been employed in the position full-time working 38 hours per week.
The Financial Statements and tax records of the applicant over recent years in evidence before the Tribunal include the following information:

Year ended

30 June 2015

Year ended

30 June 2016

Year ended

30 June 2017

Year ended

30 June 2018

Year ended

30 June 2019

(draft)

Gross Profit on trading

$211,442

$197,489

$294,163

$416,445

$481,088

Net Profit before tax

($1,055)

$12,800

$10,226

$25,926

$90,144

A letter of support from a Tax Accountant from Taxation Services dated 7 February 2020 includes the following:
“We are the accountants and tax agents for Chinchilla (Australia) Enterprises Pty Ltd …
We have compiled the draft 2019 financial statements for Chinchilla (Australia) Enterprises Pty Ltd being the Profit and Loss Statement and the Balance Sheet and accompanying explanatory notes.
The business has operated profitability in the 2019 financial year generating a headlines profit of $90,144 which has more than doubled from the 2018 financial year.
Based on this performance, we believe that the business will be able to meet the salary of its employees and has the ability to meet its financial responsibilities including paying superannuation, PAYG tax withheld and workcover insurance.
We can further confirm that all compliance and lodgement obligation to the Australian Taxation Office for the company are up to date.”
The evidence therefore shows that the applicant has continued to successfully trade (now with three restaurants), increasing its profit, as its operations increase, for nearly 10 years. The Tribunal has also taken into account that notwithstanding current COV-19 restrictions, social media evidence suggests that the Chinchilla restaurant, and other restaurants, are continuing to trade via its takeaway sales. Given the longstanding ability of the applicant to continue its operations, the government assistance being offered to small businesses due to the impact of COV-19 and given the relatively favourable management of COV-19 in Australia at the time of decision, and having regard to the totality of the evidence and the matters discussed above, which demonstrate continuing and increasing business viability, the Tribunal is satisfied that the applicant possesses sufficient financial capacity to provide two years full-time employment to the nominee in accordance with the proposed terms and conditions of employment and that the nominee will be employed on a full-time basis in the position for at least two years. Regulation 5.19(4)(d)(i) is therefore satisfied.

The Tribunal is further satisfied, based on the employment contract referred to, that the terms and conditions of the nominee’s employment do not include an express exclusion of the possibility of extending the period of employment further (with, notably, the nominee’s employment still now continuing with the applicant over three years after the nomination application). Regulation 5.19(4)(d)(ii) is therefore satisfied.
Given the above findings that subparagraphs (i) and (ii) are met, the requirements in r.5.19(4)(d) overall are therefore 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 evidence before the Tribunal s that there is no Australian citizen or permanent resident performing equivalent work in the same workplace at the same location.
The applicant’s nomination application stated that the proposed salary to be paid to the nominee was $51,400 per annum bases salary plus 9.5% superannuation, as does the employment contract provided.
Information from suggests that full-time Café and Restaurant Managers earn around $900 per week (that is $46,800 per annum). Information from suggests an average salary of $54,557 per annum for a Restaurant Manager within the range $43,924 to $66,625. The nominee’s salary is within the range suggested by Taking these matters into account, the Tribunal is satisfied that the salary provided to the nominee is 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 also taken into account the certification provided by the Chamber of Commerce & Industry Queensland on 29 October 2015, which includes certification that the terms and conditions of employment that are applicable to the nominated position will be no less favourable than the terms and conditions that are or would be provided to an Australian citizen or Australian permanent resident for performing equivalent work int eh same workplace at the same location.
Accordingly, the requirement in r.5.19(4)(e) is 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.
There is no evidence before the Tribunal to indicate that there is any adverse information of the type described in the relevant definitions known to the Department about the applicant or an ‘associated person’.
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.
There is no evidence before the Tribunal to suggest that the applicant has an unsatisfactory record of compliance with the relevant workplace relations laws.
Accordingly, the requirement in r.5.19(4)(g) is met.
Tasks of the position, genuine need for the position and training requirements r.5.19(4)(h)
Regulation 5.19(4)(h) contains a number of alternative requirements. As the nominated position is located in Chinchilla, Queensland, and the postcode of 4413 is specified as regional in the relevant written instrument in force at the time the nomination application was made, IMMI 13/049,[6] r.5.19(4)(h)(ii) requires that:
(a) the position and nominator’s business is located in regional Australia (rr.5.19(4)(h)(ii)(A) and (E));
(b) there is a genuine need for the paid position under the nominator’s direct control (r.5.19(4)(h)(ii)(B));
(c) the position cannot be filled by an Australian citizen or permanent resident who is living in the same local area (r.5.19(4)(h)(ii)(C));
(d) the tasks of the position correspond to those of an occupation specified in the relevant legislative instrument (r.5.19(4)(h)(ii)(D)),
(e) a specified regional certifying body has advised the Minister about certain matters relating to the position (r.5.19(4)(h)(ii)(F)).
Position and business located in regional Australia: rr.5.19(4)(h)(ii)(A) and (E)
[6] The Tribunal notes that there is some uncertainty as to the applicable instrument given the most recent instrument IMMI 18/037 repealed previous instruments without any saving provisions and yet specifically states it only applies to applications made on or after 18 March 2018. In any event, for the purposes of this application the current instrument and its predecessors specify the postcode locality of 4413 as being regional.
The Tribunal is satisfied that the position and the nominator’s business is located in Chinchilla, Queensland, which, as already canvassed, given a postcode of 4413 is in regional Australia as specified in the relevant instrument.
Accordingly, the requirements in rr.5.19(4)(h)(ii)(A) and (E) are met.
Genuine need to employ a paid employee to work in the position under the nominator’s direct control: r.5.19(4)(h)(ii)(B)
The applicant has nominated the position of Cafe or Restaurant Manager (ANZSCO code 141111) for its business.
As canvassed at paragraphs 3 and 18 of these Reasons, the delegate was not satisfied that the applicant had demonstrated a need for the nominated position in its business operation or the purposes of r.5.19(4)(a)(ii). However, for the reasons canvassed in paragraphs 19 and 20 of these Reasons, the Tribunal has concluded that whether there is a genuine need to employ a paid employee to work in the position under the nominator’s direct control is more properly considered under r.5.19(4)(h)(ii)(B).
As to the underlying issue of whether there is such a need, the delegate was not satisfied that there was a need for a paid employee in the position, including because the director of the applicant had been working full-time as the manager of the applicant’s restaurant in Chinchilla since August 2015 and had not provided evidence to prove that the business was expanding elsewhere to support the proposal that the director’s attentions were required to be directed to those expansions meaning the need for a manager of the business in Chinchilla. The delegate suggested that, rather, the evidence demonstrated was that a shift or duty manager position was required by the applicant rather than a Café and Restaurant Manager.
Many years have now passed since the nomination application and the applicant has been able to employ the nominee full-time since part-time since September 2016 and full-time since March 2017. As planned, the applicant has subsequently expanded its business operations and now runs three Masala Hut restaurants including the original restaurant in Chinchilla and new restaurants at Balmoral and Cashmere in Brisbane. The Tribunal accepts that Mr Rattu’s evidence that employing the nominee, initially part-time and subsequently full-time, to mange the Chinchilla restaurant has enable him to successfully pursue his expansion plans. Further, the Tribunal is satisfied that given the long trading hours of the Chinchilla restaurant, the not insignificant distance of Chinchilla from Brisbane and the size of and proven viability and success of the Chinchilla restaurant.
The Tribunal is satisfied that the applicant now has a successful chain of Indian restaurants and, relevantly, in relation to this application, a proven successful Indian restaurant at Chinchilla, given the long trading hours, not insignificant turnover and requisite staff numbers, would understandably require the position of Restaurant Manager under the applicant’s direct control for the Chinchilla restaurant.
The Tribunal has also taken into account the certification provided by the Chamber of Commerce & Industry Queensland on 29 October 2015, which includes certification that there is a need for a paid employee in the nominated position within the business activities of the nominating employer.
Overall, having regard to the evidence, the Tribunal is satisfied that the applicant has a genuine need to employ a paid employee to work in the nominated position under the applicant’s direct control.
Accordingly, the requirements of r.5.19(4)(h)(ii)(B) are met.
The position cannot be filled by an Australian citizen or permanent resident who is living in the same local area (r.5.19(4)(h)(ii)(C))
The evidence before the Tribunal is that the position was advertised and that the applicants for the job were based in Brisbane and did not have relevant qualification. Further, Mr Rattu’s evidence was that potential employees in the Chinchilla area were usually looking for work in the gas and mining industry, rather than hospitality industry, making it difficult to recruit locally. The fact that the nominee is related to Mr Rattu by marriage, suggests that genuine efforts might not have been made to fill the position with an Australian citizen or permanent resident. Nonetheless, the Tribunal is satisfied that the position was advertised and accepts that applicants with the appropriate qualifications, skills and experience for the position in a rural Queensland town were not likely readily available.
The Tribunal has also taken into account the certification provided by the Chamber of Commerce & Industry Queensland on 29 October 2015, which includes certification that the position could not be filled by an Australian citizen or permanent resident living in the same local area.
Having had regard to these matters and Mr Rattu’s evidence, together with the evidence regarding recruitment, and evidence of the nominee’s prior education and skills in the restaurant industry, the Tribunal is satisfied that notwithstanding Mr Rattu’s and the nominee’s family connection, the nominee was a genuine and qualified applicant for the advertised position in circumstances where the position could not be filled by an Australian citizen or permanent resident living in the same local area.
Accordingly, the requirement in r.5.19(4)(h)(ii)(C) is met.
The tasks of the position correspond to those of an occupation specified in the relevant legislative instrument (r.5.19(4)(h)(ii)(D))
The ANZSCO occupation description states that a Cafe or Restaurant Manager (ANZSCO code 141111) ‘Organises and controls the operations of a cafe, restaurant or related establishment to provide dining and catering services.’
The tasks of the Unit Group 1411 Café and Restaurant Managers are shown within ANZSCO as including:
·planning menus in consultation with Chefs
·planning and organising special functions
·arranging the purchasing and pricing of goods according to budget
·maintaining records of stock levels and financial transactions
·ensuring dining facilities comply with health regulations and are clean, functional and of suitable appearance
·conferring with customers to assess their satisfaction with meals and service
·selecting, training and supervising waiting and kitchen staff
·may take reservations, greet guests and assist in taking orders
The tasks of Restaurant Manager with Malala Hut, Chinchilla, contained with the nominee’s contract of employment, are stated to be as follows:
·Maintaining a high level of customer satisfaction at all times
·Maintaining dining room order of service according to restaurant’s quality and service standards
·Ensuring all cleaning and maintenance of front house staff, customer areas and areas surrounding restaurant are complied with schedules
·Ensuring correct operation and balancing of cash registers and daily reporting
·Ensuring correct operation and balancing of cash registers and daily reporting
·Ensure that all customers are welcomed at the door and seated quickly in a courteous, polite and helpful manner and address all customers in the correct manner with the correct title and tend to their requirements promptly
·Recruiting, interviewing and providing training wait staff
·Maintaining high standard of morale and personal appearance of staff
·Assisting in planning and developing restaurant’s future facilities and service
·Controlling labour cost within budget
·Suggesting menus in consultation with director and cooks
·Supporting kitchen hands and cooks in creating harmonious environment between kitchen and floor
·Maintaining stock levels and communicate any stock shortages to Director prior to re-ordering
·Ensuring dining facilities comply with health regulations and are clean, functional and of suitable appearance
·Monitor accurate opening, serving and closing the restaurant
·Administer and action efficiently the daily mail, guest report lists, staff rosters, holiday forms and other paperwork that it required to ensure accurate notes are kept and are accessible
·Ensure the safety of staff and customers during service
·Maintain hygienic food handling practices and cleanliness of all cooks and waitressing staff
·Report and discuss with Director regarding any problems or changes required with service
·Handle any complaints according to guidelines ensuring consistent customer satisfaction
·Conduct performance reviews of all staff quarterly
·Hold weekly on-the-job training session to ensure the staff can perform their jobs correctly’
·Hold weekly basis meeting to impart information and briefing of important events to all employees
·Manage and conduct payroll weekly
·Promote and market the restaurant and functions to potential clients
These tasks are consistent with the tasks described by both Mr Rattu and the nominee as being undertaken by the nominee. The Tribunal is satisfied that these tasks correspond to those of the occupation of Cafe or Restaurant Manager (ANZSCO code 141111), an occupation specified by the Minister in an instrument in writing for this sub-subparagraph, in Schedule 1 of IMMI 17/083, which is as required an occupation listed in ANZSCO with a skill level of two.
Accordingly, the requirements of r.5.19(4)(h)(ii)(D) are met.
A specified regional certifying body has advised the Minister about certain matters relating to the position (r.5.19(4)(h)(ii)(F))
The Tribunal finds that the Chamber of Commerce & Industry Queensland (an approved Regional Certifying Body specified in the relevant instrument at that time, IMMI 13/049, certified on 29 October 2015 that there was a need for a paid employee in the nominated position within the business activities of the nominating employer, that it could not be filled by an Australian citizen or permanent resident living in the same local area, and that the terms and conditions of employment were no less favourable than those that are or would be provided to an Australian employee.
Accordingly, the requirements of r.5.19(4)(h)(ii)(F) are met.
It follows that the requirements of r.5.19(4)(h)(ii) and are met overall such that r.5.19(4)(h) is met.
Conclusion
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 Trotter
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
(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).

[2020] AATA 2913

17 April 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Remedies

Jurisdiction

Standing