Clear Pathway Pty Ltd (Migration)

[2021] AATA 1064

Clear Pathway Pty Ltd (Migration) [2021] AATA 1064 (25 March 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Clear Pathway Pty Ltd

CASE NUMBER:  1810021

HOME AFFAIRS REFERENCE(S):          BCC2016/2849923

MEMBER:Sheridan Lee

DATE:25 March 2021

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Statement made on 25 March 2021 at 12:38 pm

CATCHWORDS
MIGRATION – nomination – Direct Entry Nomination stream – Café or Restaurant Manager– genuine need for the nominator to employ a paid employee –  position located in regional Australia – actively and lawfully operating a business in Australia –financial capacity of the business to employ the nominee for at least 2 years full time – decision under review set aside

LEGISLATION
Migration Regulations 1994, rr 1.13, 5.19

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 23 March 2018 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).

2. The applicant applied for approval to nominate the occupation of Café or Restaurant Manager on 28 February 2016. The requirements for the approval of the nomination of a position in Australia are found in r.5.19 of the Regulations which contains two alternative streams: a Temporary Residence Transition nomination stream (r.5.19(3)) and a Direct Entry nomination stream (r.5.19(4)). 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).

3. In this case, the applicant has applied for approval of a nomination, seeking to satisfy the criteria in the Direct Entry nomination stream.

4. The delegate refused the application on the basis that the nomination did not meet the requirement set out in r.5.19(4)(h)(ii)(D) because they were not satisfied that the tasks to be performed in the position corresponded to the tasks of the nominated occupation.

5. The applicant was represented in relation to the review by its registered migration agent.

6. 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

7. 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)

8. 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.

9. Having reviewed the Departmental file, the Tribunal is satisfied that the application for approval:

   ·was made on the approved form 1395 and was accompanied by the fee prescribed in r.5.37

   ·includes a written certification stating that the nominator has not engaged in conduct in relation to the nomination that contravenes s. 245AR(1)

   ·identifies a need for the nominator to employ a paid employee to work in the position under the nominator’s direct control.

10. 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)

11. Regulation 5.19(4)(b) requires that the applicant is actively, lawfully and directly operating a business in Australia.

12. An Australian Securities and Investments Commission extract reports that Clear Pathway has been registered as an Australian Proprietary Company since December 2005. Mr Carlton Reginald Horn is the Director and Secretary.

13. In a statutory declaration dated 15 September 2020, Mr Horn gave evidence that the company operates The Raw Prawn, a fine-dining restaurant located in Cairns. The restaurant has operated since March 2006, with a capacity for 110 guests prior to the introduction of trading restrictions resulting from the COVID-19 pandemic. The restaurant also has a function room facility above the restaurant that can cater for 50 -75 guests.

14. The declaration went on to state that the restaurant was closed from 23 March to 15 May 2020 due to COVID-19 and registered for Jobkeeper. The restaurant previously employed up to 25 staff, and employed 16 at the date of the declaration. All Australian citizens and permanent residents had returned to work.

15. An internet search shows that the Raw Prawn has an active website.

16. On the basis of the above information, the Tribunal finds that the requirement in r.5.19(4)(b) is met.

    Position is not labour-hire: r.5.19(4)(c)

17. 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. On the available evidence, the company runs a restaurant with staff directly employed by the company. The Tribunal finds that the nominator is not involved in labour-hire activities and the requirement in r.5.19(4)(c) is met.

    Term of employment of the visa holder: r.5.19(4)(d)

18. 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.

19. The applicant supplied the Tribunal with a letter of engagement, dated 1 September 2020, offering Ms Taeko Kitamura the full-time position of ‘Japanese Client Manager/Function Co-ordinator’. The term of employment is for a minimum of two years from the date of the grant off the visa and further employment is not excluded.

20. Financial statements for the financial year ended 30 June 2019 report total sales of $4,046,262 and a net profit of $338,324. The profit level was consistent with the 2018 financial year. Total sales for the 2020 financial year were $3,385,000 as per the BAS lodged with the ATO. The Tribunal accepts that the company can financially support the position for at least two years going forward.

21. Accordingly, the requirement in r.5.19(4)(d) is met.

    No less favourable terms and conditions of employment: r.5.19(4)(e)

22. 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.

23. The Raw Prawn is covered by The Raw Prawn (Cairns) Collective Agreement 2008 and the nominee will receive terms and conditions of employment in accordance with the Agreement. On this basis, the Tribunal finds that the terms and conditions applicable to the position will be no less favourable than those that are/would be provided to an Australian citizen or permanent resident performing equivalent work in the same workplace at the same location.

24. Accordingly the requirements of r.5.19(4)(e) are met.

    No adverse information known to Immigration: r.5.19(4)(f)

25. 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. 

26. The documents available to the Tribunal contain no relevant adverse information and the Tribunal infers that is because the Department has no adverse information about the company.

27. Accordingly the requirements of r.5.19(4)(f) are met.

    Satisfactory compliance with workplace relations laws: r.5.19(4)(g)

28. 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.

29. The Tribunal has no information indicating that the applicant has had compliance issues with workplace laws. Furthermore, the terms and conditions of employment outlined in the contract of employment offered to the nominee do not raise any concerns.

30. 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)

31. Regulation 5.19(4)(h) contains a number of alternative requirements. These are set out in detail in the attachment to the decision and those relevant to this matter are as follows:

    ·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

    ·a regional certifying body has advised the Minister about certain matters relating to the position.

32. The position and business are located in Cairns, Queensland. Cairns is a designated regional area under Immigration Instrument 13/049.

33. The applicant operates a Restaurant on the Esplanade in Cairns. In his written statement, the Director outlined that he has a limited role within the day to day operations of the restaurant. The business requires two full-time managers to take responsibility for the management of the restaurant, functions and employees. The business has made multiple attempts to fill vacant positions with local employees.

34. The Tribunal is satisfied that a business of the size and nature of The Raw Prawn would require a paid employee to perform the tasks of a Café or Restaurant Manager as defined in the ANZSCO occupational dictionary (141111).

35. The Cairns Chamber of Commerce as provided certification about the matters in r.5.19(4)(e) and r.5.19(4)(h)(ii)(B) and (C).

36. Accordingly the requirements of r.5.19(4)(h) are met.

37. 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

38. The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

    Sheridan Lee
    Member

    
    

    ATTACHMENT  -  EXTRACTS FROM THE MIGRATION REGULATIONS 1994

    5.19Approval of nominated positions (employer nomination)

    …

    (2)The application must:

    (a)be made in accordance with approved form 1395…; and

    (aa) include a written certification by the nominator stating whether or not the nominator has engaged in conduct, in relation to the nomination, that constitutes a contravention of subsection 245AR(1) of the Act; and

    (b)be accompanied by the fee mentioned in regulation 5.37.

    …

    Direct Entry nomination

    (4)The Minister must, in writing, approve a nomination if:

    (a)the application for approval:

    (i)       is made in accordance with subregulation (2); and

    (ii)      identifies a need for the nominator to employ a paid employee to work in the position under the nominator’s direct control; and

    (b)the nominator:

    (i)       is actively and lawfully operating a business in Australia; and

    (ii)      directly operates the business; and

    (c)for a nominator whose business activities include activities relating to the hiring of labour to other unrelated businesses — the position is within the business activities of the nominator and not for hire to other unrelated businesses; and

    (d)both of the following apply:

    (i)       the employee will be employed on a full-time basis in the position for at least 2 years;

    (ii)      the terms and conditions of the employee’s employment will not include an express exclusion of the possibility of extending the period of employment; and

    (e)the terms and conditions of employment applicable to the position will be no less favourable than the terms and conditions that:

    (i)       are provided; or

    (ii)      would be provided;

    to an Australian citizen or an Australian permanent resident for performing equivalent work in the same workplace at the same location; and

    (f)either:

    (i)       there is no adverse information known to Immigration about the nominator or a person associated with the nominator; or

    (ii)      it is reasonable to disregard any adverse information known to Immigration about the nominator or a person associated with the nominator; and

    (g)the nominator has a satisfactory record of compliance with the laws of the Commonwealth, and of each State or Territory in which the applicant operates a business and employs employees in the business, relating to workplace relations; and

    (h)either:

    (i)       both of the following apply:

    (A)the tasks to be performed in the position will be performed in Australia and correspond to the tasks of an occupation specified by the Minister in an instrument in writing for this sub-subparagraph;

    (AAA)the occupation is applicable to the person identified under subparagraph (a)(ii) in accordance with the specification of the occupation;

    (B)either:

    (I)the nominator’s business has operated for at least 12 months, and the nominator meets the requirements for the training of Australian citizens and Australian permanent residents that are specified by the Minister in an instrument in writing for this sub-sub-subparagraph; or

    (II)the nominator’s business has operated for less than 12 months, and the nominator has an auditable plan for meeting the requirements specified in the instrument mentioned in sub-sub-subparagraph (I); or

    (ii)      all of the following apply:

    (A)the position is located in regional Australia;

    (B)there is a genuine need for the nominator to employ a paid employee to work in the position under the nominator’s direct control;

    (C)the position cannot be filled by an Australian citizen or an Australian permanent resident who is living in the same local area as that place;

    (D)the tasks to be performed in the position correspond to the tasks of an occupation specified by the Minister in an instrument in writing for this sub-subparagraph;

    (DA)the occupation is applicable to the person identified under subparagraph (a)(ii) in accordance with the specification of the occupation;

    (E)the business operated by the nominator is located at that place;

    (F)a body that is:

    (I)specified by the Minister in an instrument in writing for this sub-subparagraph; and

    (II)located in the same State or Territory as the location of the position;

    has advised the Minister about the matters mentioned in paragraph (e) and sub-subparagraphs (B) and (C).