Collins Restaurants West Pty Ltd (Migration)

Collins Restaurants West Pty Ltd (Migration) [2021] AATA 603 (18 January 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Collins Restaurants West Pty Ltd
CASE NUMBER:  1800582
HOME AFFAIRS REFERENCE(S):          BCC2016/2500723
MEMBER:K. Chapman
DATE:18 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 18 January 2021 at 8:53pm

CATCHWORDS
MIGRATION – Employer Nomination – approval of nominated position – Direct Entry Nomination – Kentucky Fried Chicken (KFC) stores – Retail Manager (General) – tasks and duties of nominated position – whether more consistent with the occupation of Retail Supervisor – recruitment process – duties and responsibilities of the nominees – report to an Area Coach – high level of managerial responsibility – decision under review set aside
LEGISLATION
Migration Regulations 1994 (Cth), r 5.19
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 and Border Protection on 19 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 28 July 2016. The applicant nominated Mr Syed Mahmood Majaaz (‘the nominee’) in the occupation of Retail Manager (General) (ANZSCO Code 142111). The applicant operates Kentucky Fried Chicken (KFC) stores 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 Palmerston restaurant in the Northern Territory, postcode 0830.
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 8 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 information pertaining to the occupation performed by the nominee whilst holding a Subclass 457 visa. The applicant provided written submissions and documentary material in response, detailing that the nominee was initially engaged by the applicant in the occupation of Retail Supervisor (ANZSCO 621511), before achieving promotion to the position of Retail Manager (General) (ANZSCO Code 142111). The Tribunal notes that it had far greater relevant documentary evidence before it than was available to the delegate. All material received has been duly considered by the Tribunal.
The Tribunal, with the consent of the applicant, initially scheduled a combined review hearing on 27 March 2020 for the matters of 1800199, 1800410, 1800581, 1800582, 1800583, 1800584, 1800585, 1800586, 1800588 and 1800590. These matters all pertain to nominations made by the applicant for nominees in the occupation of Retail Manager (General) (ANZSCO Code 142111). However, due to the COVID-19 pandemic, this hearing was unable to proceed. The applicant also requested a further deferral of the hearing due to the operational issues posed by the pandemic. In the circumstances, the Tribunal agreed to the applicant’s request.
The applicant, through its Employee Relations Manager Ms Renee Starr, appeared by telephone before the Tribunal on 16 December 2020 to give evidence and present arguments. Ms Starr, on behalf of the applicant, confirmed that she was comfortable participating in the hearing by telephone. The applicant was represented in relation to the review by its registered migration agent. The Tribunal notes that it found Ms Starr to be an articulate witness, who provided her evidence in a direct and comprehensive fashion. The Tribunal has no hesitation in accepting that Ms Starr provided truthful evidence and accordingly high weight is placed upon it.
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.
The documentary evidence before the Tribunal, including correspondence confirming ongoing employment and an employment contract, confirm that the nominee will be employed in the nominated position for at least two years full time. The applicant is a large company, significantly involved in the restaurant industry, and its financial records confirm that it has the financial capacity to employ the nominee on a full time basis for at least two years.
Therefore, the requirement in r.5.19(4)(d) is met.
No less favourable terms and conditions 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.
Ms Starr, on behalf of the applicant, outlined that each KFC restaurant has only one Restaurant General Manager. This is consistent with the submitted documentary evidence, including the organisational chart, rosters and pay records. Accordingly, the Tribunal is satisfied that there is no Australian citizen or permanent resident performing equivalent work in the same workplace at the same location as the nominee.
The nominee’s employment contract provides for remuneration consistent with the applicant’s arrangements for other employees across Australia. The submitted letter of appointment dated 20 March 2020 confirms the nominee’s current remuneration to be $64,376 per annum. Having regard to the submitted evidence, the Tribunal is satisfied that the remuneration of the nominee is appropriate. Additionally, Ms Starr confirmed that if an Australian citizen or permanent resident performed equivalent work to the nominee in the workplace, they would receive the same terms and conditions. The Tribunal accepts this evidence.
Following careful consideration of the evidence, the Tribunal finds 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.
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 Palmerston, Northern Territory at postcode 0830. 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.
Ms Starr advised that the ten nominees relevant to the combined review hearing were first employed on Subclass 457 visas, as there was a shortage of suitable Assistant Managers in the recruitment market. The ten nominees had relevant experience at KFC restaurants offshore. Initially, the ten nominees were employed as Assistant Managers reporting to the Restaurant General Manager in their respective location.
Ms Starr confirmed to the Tribunal that none of the ten nominees were promised promotion or nomination in the position of Restaurant General Manager at the time they were initially employed. Indeed, these nominees were part of a larger batch of Subclass 457 visa holders recruited by the applicant, with Ms Starr outlining that many of the original intake are not suitable to be promoted and have not been offered nomination for permanent residence. She explained that the ten nominees are highly experienced and very suitable to be Restaurant General Managers. It was only in 2016 that the ten nominees were offered promotion and nomination, following exceptional performance in the workplace in Australia over some years.
The Tribunal canvassed with Ms Starr the particulars of how the ten nominees came to be offered nomination. She outlined that they were identified from an operations perspective to move into Restaurant General Manager positions. The applicant made various attempts to recruit Australian citizens into these roles, however, given their regional locations they only received applications from unsuitable candidates. Many options were considered by the applicant, including Fly In Fly Out (FIFO) managers, however suitable candidates were not identified. According to Ms Starr, many domestic applicants are not willing to undertake Restaurant General Manager employment in regional and remote locations, often due to the higher salaries available in the resources sector. Ms Starr advised that given the locations of some of the restaurants, it would be under consideration whether they might close if the nominees could not continue in their Restaurant General Manager roles. This would result in the loss of employment for some Australian citizens in lower skilled roles. Ms Starr confirmed that the positions of the ten nominees were genuinely available to Australian candidates, as confirmed by the recruitment advertising, however no suitable candidates were identified.
Ms Starr confirmed to the Tribunal that none of the ten nominees are related by family to anyone in a management position with the applicant company. She maintained that there is a genuine need to employ the nominees, as it has not been possible to fill the positions with domestic candidates. Ms Starr outlined the duties and responsibilities of the nominees, as Restaurant General Managers, to include overall responsibility for running the restaurant, engagement and termination of staff, attention to profit creation, implementing all policies and procedures, and local marketing. Her description was consistent with the duties of a Retail Manager (General) as outlined in the ANZSCO. Ms Starr also informed the Tribunal that the nominees are effectively responsible for running multi-million dollar businesses, citing various financials for KFC restaurants. According to Ms Starr, all nominees have the same duties and they report to an Area Coach. Ms Starr’s evidence is consistent with the submitted documentary material.
Ms Starr contended that up until December 2016 the Department processed Restaurant General Manager nominations in a favourable way, however they then appeared to adopt a negative outlook. Ms Starr advised that prior to the relevant ten nominations being refused, the Department approved several other nominations from the applicant for the exact same roles. She also noted that in Queensland, several KFC restaurants had identical nominations approved after these refusals. The most recent approval was at the start of 2020 according to her. Ms Starr confirmed the recent approvals were for exactly the same roles as the relevant ten nominations. Ms Starr submitted that the ten nominees are performing the occupation of Retail Manager (General) (ANZSCO Code 142111) to a high standard and are performing duties at a higher level than that of a Retail Supervisor (ANZSCO 621511). It is apparent from the submitted documentary material that the applicant is a large company that is financially viable.
The Tribunal had the benefit of assessing the evidence provided by Ms Starr at the review hearing and finds her to be a highly credible witness, given the manner in which she gave her evidence. Having regard to the submitted evidence, the Tribunal is satisfied that the nominated position cannot be filled by a locally resident Australian citizen or permanent resident. Therefore, the applicant meets the requirements of r.5.19(4)(h)(ii)(C).
Further, the Tribunal is satisfied that the ten nominees are performing the occupation of Retail Manager (General) (ANZSCO Code 142111). The Tribunal makes this determination given the highly persuasive evidence of Ms Starr, in combination with the large body of submitted documentary material demonstrating that the Restaurant General Manager positions have a high level of managerial responsibility. The Tribunal notes that the relevant instrument with respect to r.5.19(4)(h)(ii)(D) is IMMI 15/083. This instrument contains the occupation of Retail Manager (General) (ANZSCO Code 142111), which is a skill level 2 occupation. Additionally, the Tribunal is satisfied that 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. This is because it is apparent that the applicant requires a Restaurant General Manager to run the relevant restaurant which is located in a regional area. Therefore, the applicant meets the requirements of r.5.19(4)(h)(ii)(B) and r.5.19(4)(h)(ii)(D).

The Tribunal notes that the nominee possesses several years of experience and training in the nominated occupation. It is apparent that the nominee has successfully advanced through the management training program offered by the applicant in the same fashion as a domestic candidate. The Tribunal accepts Ms Starr’s assessment that the nominee is performing the occupation of Retail Manager (General) to a high standard. The Tribunal also notes that the nominee is identified in the application for nomination to perform the occupation of Retail Manager (General) (ANZSCO Code 142111). Accordingly, the Tribunal is satisfied that the occupation of Retail Manager (General) is applicable to the nominee, who is identified in the nomination application. Therefore, the applicant meets the requirements of r.5.19(4)(h)(ii)(DA).
The applicant submitted Form 1404 dated 18 July 2016, from the Department of Business and Employment (NT), which is a Regional Certifying Body (RCB) pursuant to instrument IMMI 16/045. The Tribunal is satisfied that a RCB located in the Northern Territory has advised the Minister about the matters set out in r.5.19(4)(e), r.5.19(4)(h)(ii)(B) and r.5.19(4)(h)(ii)(C). Accordingly, the applicant satisfies the requirement in r.5.19(4)(h)(ii)(F). For the sake of completeness, the Tribunal notes that the Court authority of Bharaj Construction Pty Ltd v MIBP (No. 3) [2019] FCCA 31 indicates RCB certification is not sufficient or determinative of the requirements outlined in r.5.19(4)(e), r.5.19(4)(h)(ii)(B) and r.5.19(4)(h)(ii)(C). Rather, the Tribunal must perform its own assessment of these requirements. The Tribunal records that it has done so, as reflected in its relevant reasons above.
Therefore, the requirements of r.5.19(4)(h) are satisfied by the applicant.
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. Chapman
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).

[2021] AATA 603

18 January 2021

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Immigration

Administrative Law

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Judicial Review

Statutory Construction

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