Collins Restaurants West Pty Ltd (Migration) - [2021] AATA 557

Collins Restaurants West Pty Ltd (Migration) [2021] AATA 557 (23 January 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Collins Restaurants West Pty Ltd
CASE NUMBER:  1800199
HOME AFFAIRS REFERENCE(S):          BCC2016/3666150
MEMBER:K. Chapman
DATE:23 January 2021
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Statement made on 23 January 2021 at 5:46pm

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 14 December 2017 to refuse 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 applicant, Collins Restaurants West Pty Ltd, applied for approval on 3 November 2016. The applicant nominated Mrs Nellinda Tibayan (‘the nominee’) in the occupation of Retail Manager (General) (ANZSCO Code 142111). The applicant operates Kentucky Fried Chicken (KFC) restaurants throughout various locations in Australia. The application for nomination was made in connection with the Regional Sponsored Migration Scheme. The nominated position is located in the KFC Butler restaurant in Western Australia, postcode 6036.
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). 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 that the applicant’s nomination did not satisfy r.5.19(4)(h)(ii)(D). In the view of the delegate, the tasks to be performed in the position do not correspond to the tasks of a Retail Manager (General) (ANZSCO Code 142111), which is an occupation specified by the Minister in instrument IMMI 15/083. Rather, in the view of the delegate, the tasks to be performed in the nominated position are more consistent with the occupation of Retail Supervisor (ANZSCO 621511). On 3 January 2018, the applicant applied to the Tribunal for review of the nomination decision. The applicant submitted a copy of the delegate’s decision with their application for review.
On 15 January 2020, the Tribunal Registry wrote to the applicant pursuant to subsection 359(2) of the Act inviting them to provide current information addressing the relevant criteria under r.5.19(2) and (4) of the Regulations. In response, the Tribunal received material including, but not limited to, written submissions, financial records, ASIC information, pay and shift records, Form 1404 Regional Certifying Body advice, organisational chart, an employment contract, recruitment advertising and company Annual Reports.
On 9 March 2020, the Tribunal wrote to the applicant pursuant to section 359A of the Act inviting them to comment on or respond to…

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: [2021] AATA 557
Decision Date: 23 January 2021

CaseChat Overview and Summary

The Administrative Appeals Tribunal reviewed a decision concerning Collins Restaurants West Pty Ltd's nomination approval for a Retail Manager (General) position under the Direct Entry stream. The core dispute revolved around whether the nominated position and the nominator met the requirements stipulated in regulation 5.19(4) of the Migration Regulations 1994.

The Tribunal was required to determine if Collins Restaurants West Pty Ltd satisfied all the criteria for nomination approval. Specifically, this involved assessing whether the application was compliant, if the nominator was actively and lawfully operating a business, if the position was not a labour-hire arrangement, and if the terms of employment met the regulatory standards. Furthermore, the Tribunal had to consider whether there was a genuine need for the nominee, if the position could not be filled by local candidates, if the tasks corresponded to the specified occupation, and if a Regional Certifying Body had provided the necessary advice.

In its reasoning, the Tribunal systematically addressed each subregulation of 5.19(4). It found that the application was in the approved form, that no fee was payable as the position was in regional Australia, and that the necessary certifications regarding conduct and a genuine need for the employee were provided. The Tribunal was satisfied that the nominator was actively operating a business and that the labour-hire exclusion did not apply. Crucially, regarding regulation 5.19(4)(h)(ii), the Tribunal accepted evidence that recruitment efforts had failed to identify suitable local candidates for the Retail Manager role in regional Western Australia, and that the tasks of the position corresponded to the specified occupation.

Consequently, the Tribunal set aside the original decision and substituted 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. CONSIDERATION OF CLAIMS AND EVIDENCE The issue in this case is whether the applicant meets the requirements for approval of the nomination under the Direct Entry nomination stream set out in r.5.19(4), which is extracted in the attachment to this decision. For the nomination to be approved, all the requirements must be met.The application is compliant: r.5.19(4)(a) Regulation 5.19(4)(a) requires that the application for approval must be in the approved form, must be accompanied by the prescribed fee, and, where applicable, must include the required written certification relating to conduct that contravenes s.245AR(1). The application must also identify a need for the nominator to employ a paid employee to work in the position under their direct control. Having regard to the evidence submitted to the Department, the Tribunal is satisfied that the nomination application was made using the approved form. Pursuant to r.5.37(4) of the Regulations, there is no fee payable in respect of a nomination where the position is located in regional Australia. The Tribunal is further satisfied that the application for nomination was accompanied by the appropriate written certification indicating the applicant had not engaged in any conduct that constituted a contravention of s.245AR(1) of the Act. Additionally, the Tribunal is satisfied that the application for nomination identified a need for the applicant/nominator to employ the nominee as a paid employee to work in the position under their direct control. Therefore, the requirements in r.5.19(4)(a) are met.Nominator is actively and lawfully operating a business in Australia: r.5.19(4)(b) Regulation 5.19(4)(b) requires that the applicant is actively, lawfully and directly operating a business in Australia. Having regard to the submitted ASIC information, financial documentation and the evidence provided at the review hearing, the Tribunal is satisfied that the applicant is actively, lawfully and directly operating a business in Australia. That business is concerned with operating KFC restaurants throughout Western Australia and the Northern Territory. Accordingly, the requirement in r.5.19(4)(b) is satisfied. Position is not labour-hire: r.5.19(4)(c) Regulation 5.19(4)(c) applies to nominators whose business activities include those relating to labour hire to an unrelated business. In these cases, the nominated position must be within the business activities of the nominator. The evidence before the Tribunal indicates that the applicant is not involved in labour hire activities. Therefore, the requirement in r.5.19(4)(c) does not apply in the circumstances of this review. Term of employment of the visa holder: r.5.19(4)(d) Regulation 5.19(4)(d) requires the nominee to be employed in the nominated position for at least 2 years full time, and the terms and conditions of that employment do not expressly exclude the possibility of an extension.

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.K. ChapmanMemberATTACHMENT - 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(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).

Ratio Decidendi

Legal Principle Established

Therefore, the requirements of r.5.19(4)(e) are satisfied. 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 of adverse information contained in the Department file, or before the Tribunal, about the applicant or a person associated with the applicant. 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. Following careful consideration of the evidence, the Tribunal is satisfied that the applicant has a satisfactory record of compliance with relevant workplace relations laws in Australia. Accordingly, the requirements of r.5.19(4)(g) of the Regulations are met. Tasks of the position, genuine need for the position and training requirements r.5.19(4)(h) Regulation 5.19(4)(h) contains a number of alternative requirements. The present review concerns an application for nomination in connection with the Regional Sponsored Migration Scheme, in the Direct Entry nomination stream. Accordingly, r.5.19(4)(h)(i) is not relevant to the review. Regulation 5.19(4)(h)(ii), as is relevant to this review, requires that:·the position and nominator’s business is located in regional Australia, there is a genuine need for the nominee to be employed as a paid employee in the position under the nominator’s direct control, the position 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 Tribunal is satisfied that both the nominated position, and the applicant’s business, are located in Butler, Western Australia at postcode 6036. Pursuant to instrument IMMI 16/045, as it pertains to the present review, both the nominated position, and the business operated by the applicant, are located in regional Australia. Therefore, the applicant satisfies the requirements contained in r.5.19(4)(h)(ii)(A) and r.5.19(4)(h)(ii)(E). During the review hearing, the Tribunal canvassed with Ms Starr, on behalf of the applicant, whether there is a genuine need for the applicant/nominator to employ the nominee as a paid employee, to work in the position under the nominator’s direct control. Ms Starr advised that the applicant operates multiple KFC restaurants throughout Western Australia and the Northern Territory. She explained that it was very difficult to recruit suitable individuals to take on the role of Restaurant General Manager in regional and remote locations.