Continental Foods Pty Ltd (Migration)
[2024] AATA 95
•18 January 2024
Continental Foods Pty Ltd (Migration) [2024] AATA 95 (18 January 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT: Continental Foods Pty Ltd
REPRESENTATIVE: Mr Vikram Jeet Singh (MARN: 1572276)
CASE NUMBER: 2005443
HOME AFFAIRS REFERENCE(S): BCC2018/1026141
MEMBER:P. Maishman
DATE:18 January 2024
PLACE OF DECISION: Perth
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.
Statement made on 18 January 2024 at 4:33pm
CATCHWORDS
MIGRATION – application for approval of nomination of position – direct entry nomination stream – restaurant manager – information provided after prescribed period – no entitlement to hearing – financial capacity to employ nominee – financial reports and tax returns – modest profits and ongoing employment – decision under review set asideLEGISLATION
Migration Act 1958 (Cth), ss 359, 359C, 360(3), 363A
Migration Regulation 1994 (Cth), r 5.19(4)(d)(i)CASES
Bharaj Construction Pty Ltd v MIBP [2016] FCCA 902
Hasran v MIAC [2010] FCAFC 40STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW
This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 26 February 2020 to reject the applicant’s application for approval of the nomination of a position in Australia under reg 5.19 of the Migration Regulations 1994 (Cth) (the Regulations).
The applicant applied for approval on 4 March 2018. The requirements for the approval of the nomination of a position in Australia are found in reg 5.19 of the Regulations which contains two alternative streams: a Temporary Residence Transition nomination stream (reg 5.19(3)) and a Direct Entry nomination stream (reg 5.19(4)). If the application is made in accordance with reg 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: reg 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 the applicant’s nomination did not satisfy reg 5.19(4)(d)(i) of the Regulations because the delegate was not convinced that the nominator had the financial capacity to employ the nominee.
On 11 August 2023 the Tribunal wrote to the review applicant pursuant to s 359 of the Act, inviting the review applicant to provide updated and current information about addressing the reg 5.19(2 and (4) criteria in writing.
The invitation was sent to the last address provided in connection with the review and advised that, if the information was not provided in writing by 25 August 2024, the Tribunal may make a decision on the review without taking further steps to obtain the information and the review applicant would lose any entitlement it might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.
The review applicant has not provided the information within the prescribed period and no extension has been granted. In these circumstances, s 359C applies and pursuant to s 360(3) the review applicant is not entitled to appear before the Tribunal. The effect of s 363A of the Act is that if a review applicant has no entitlement to a hearing, the Tribunal has no power to permit it to appear: Hasran v MIAC [2010] FCAFC 40. The Tribunal has decided to proceed to decision without taking into account the information that was provided on 28 and 29 August 2023.
The applicant was represented in relation to the review.
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 reg 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: reg 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 an identified person as a paid employee to work in the position under their direct control.
The Tribunal had regard to the documents on the Department’s file. The Tribunal is satisfied the applicant made an application online in accordance with the approved form 1395; the application included written certification confirming the applicant had not engaged in conduct in contravention of subsection 245AR(1) of the Act; and the nomination application was paid.
The application identifies a need for the nominator to employ Mr Kapil Bhatia as a paid employee to work in the position of Restaurant Manager (ANZSCO 141111) under the applicant’s direct control.
Accordingly, the requirement in reg 5.19(4)(a) is met.
Nominator is actively and lawfully operating a business in Australia: reg 5.19(4)(b)
Regulation 5.19(4)(b) requires that the applicant is actively, lawfully and directly operating a business in Australia.
ASIC records show the applicant is registered. The applicant declared it has traded as Café Canova and renamed to Sforno in October 2018. The Tribunal also had regard to the applicant’s Financial Statements and tax returns for the 2022 and 2023 financial years.
The Tribunal gives weight to the information contained in the financial reports and income tax returns and is satisfied the applicant is actively, lawfully and directly operating its business, Sforno at Munno Para, in Australia.
Accordingly, the requirement in reg 5.19(4)(b) is met.
Position is not labour-hire: reg 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 indicate that the applicant is involved in labour hire activities. The Tribunal is satisfied that the employment contract and organisational chart confirm that the nominee will work in the applicant's direct employ.
Accordingly, the requirement in reg 5.19(4)(c) does not apply.
Term of employment of the visa holder: reg 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 delegate was not satisfied the applicant’s financial position could sustain employment of the nominee for two years as provided by the employment contract.
The applicant’s 2022 and 2023 financial reports and tax returns indicate modest profits for those years. The tribunal observes the nominee’s payslips confirm his ongoing employment since, at least, 15 June 2020. The applicant’s employment contracts with the nominee dated 26 February 2018 and 3 April 2023 do not expressly exclude the possibility of the extending the nominee’s employment.
The Tribunal is satisfied the has the financial capacity to employ the nominee for at least two years and there is no express exclusion to the nominee’s employment being extended.
Accordingly, the requirement in reg 5.19(4)(d) is met.
No less favourable terms and conditions of employment: reg 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 applicant declared it does not have an Australian employee in its workplace undertaking the same work as the nominated person. The applicant’s organisation chart supports this. The applicant declared it would pay the nominee $65,000 per annum. The employment offer, subject to approval of the nominee’s visa, includes minimum terms and conditions as provided by the National Employment Standards. The employment offer clarifies the nominee would be paid $65,000 exclusive of superannuation.
The applicant provided information it obtained from salary survey site SEEK. The Tribunal also had regard to the publicly available information on sites such as Payscale and Job Outlook. The remuneration offered by the applicant is at the higher end of the salary range of $48,000 to $66,000 indicated on PayScale. Job Outlook indicates the median salary for the position is $46,800 and SEEK advertisements offered salary in the range $50,000 to $79,000.
The Tribunal is satisfied on the evidence that the terms and conditions offered would be no less favourable than those offered to an Australian citizen or permanent resident employee.
Accordingly, the requirements of reg 5.19(4)(e) are met.
No adverse information known to Immigration: reg 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 regs 1.13A and 1.13B.
There is no evidence before the Tribunal that there is adverse information known to Immigration about the nominator or a person associated with the nominator.
Accordingly, the requirements of reg 5.19(4)(f) are met.
Satisfactory compliance with workplace relations laws: reg 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 of the applicant having anything other than a satisfactory record of compliance with workplace relations laws in Western Australia where it operates its business and employs staff.
Accordingly, the requirements of reg 5.19(4)(g) are met.
Tasks of the position, genuine need for the position and training requirements reg 5.19(4)(h)
Regulation 5.19(4)(h) contains a number of alternative requirements. These are set out in detail in the attachment to the decision.
Relevantly to this matter the requirements of reg 5.19(4)(h)(ii) 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 that a regional certifying body has advised the Minister about certain matters relating to the position.
Location of the position and the business
The Tribunal first considered reg 5.19(4)(h)(ii)(A) and (E) which provide that the position is located in regional Australia and the applicant’s business is located at that place. Regulation 5.19(16) provides that 'regional Australia' is defined by the legislative instrument.
The nominated position is for a restaurant manager to work at the applicant’s restaurant located at Munno Para, South Australia. In this case, the position is located at the business premises in Munno Para, South Australia, 5115, and at the time of application, this location/postcode was considered regional Australia, as per Schedule 2 of IMMI 17/059.
Accordingly reg 5.19(4)(h)(ii)(A) and (E) are met.
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 Tribunal noted the applicant placed employment advertisements with the Northern Messenger; The Advertiser; JORA and SEEK in February 2018. The applicant submits it shortlisted three applicants and Mr Kapil Bhatia was the successful candidate as he held the appropriate qualifications. The Tribunal attributes weight to the opinion of the RCB provided on 24 September 2018 that the position cannot be filled by an Australian citizen or Australian permanent resident living in the same local area as the nominated position.
The Tribunal is satisfied the applicant has a genuine need to employ a paid restaurant manager under the director’s direct control. The Tribunal is also satisfied the position cannot be filled by a locally resident Australian citizen or permanent resident.
Accordingly reg 5.19((h)(ii)(B) and (C) is met.
Tasks of the position
The tasks of the nominated position must correspond to those of an occupation specified in the relevant legislative instrument. The occupation is required to be applicable to the nominee: reg 5.19(4)(h)(ii)(D) and (DA).
The Tribunal has had regard to evidence that has been provided detailing the tasks that will be performed and is satisfied that they correspond to the tasks of the occupation of Café or Restaurant Manager specified in the relevant instrument. The applicable instrument specified for this purpose is IMMI 17/058. The application is for a Café or Restaurant Manager, ANZSCO 141111. The ANZSCO classification of occupations identify a skill level of 2 (AQF Associate Degree, Advanced Diploma or Diploma.
A detailed summary of the tasks to be performed in the position are consistent with the tasks for the position in ANZSCO, which include:
• Recruiting, training and supervising staff
• Agreeing and managing budgets
• Planning menus in consultations with the chef.
• Ensuring compliance with licensing , hygiene and health and safety legislation/guidelines
• Overseeing stock levels. Ordering supplies, Producing staff rosters
• Managing the bar
• Handling customer inquiries and complaints
• Taking reservations and greeting customers
• Preparing and presenting staffing/sales rep orts
• Keeping statistical and financial records
• Assessing profitability
• Handling administration and paperwork
• Liaising with customers to assess their satisfaction with meals and service.
• Liaise with suppliers , licensing authorities , sales representatives, etc.
• Making improvements to the running of the business.
• Formulating and implementing policies and plans for advertising, public relations , sales and
marketing.
• Initiate marketing strategies and coordinate actions to influence the market.
Steering sales , marketing , operation teams.
• Set sales targets and define a strategy to achieve these targets and to follow the set strategy
punctually.
• Directing sales methods and arrangements by setting prices and credit arrangements.
• Manage product sales growth and individual sales effectiveness by reviewing sales activity
schedule.
• Built pricing opportunities to encourage repeat sales.
• Understands the customer's need and to build & maintain excellent relationships with
colleagues and clients.
• Pursue a long -term account strategy that maximized profits and assisted in cultivating long term
relationships with the appropriate decision makers.
• Planning and organise special functions, in-house or outdoor catering.
• Support marketing activities, website maintenance, handling queries, mailings etc.The Tribunal received updated documents including an organisation chart and job description. The nominated position reports to the director and oversees 2 casual/part-time staff.
The position is applicable to the nominee’s qualifications as the holder of a Diploma of Leadership and Management.
On the basis of the evidence before it, the Tribunal is satisfied that tasks associated with the position correspond sufficiently to those of the occupation of Café or Restaurant Manager, such that it is satisfied that the tasks expected to be performed by the nominee in the applicant’s business correspond to the tasks of a Café or Restaurant Manager at ANZSCO 141111 Skill Level 2.
Accordingly, the requirements of reg 5.19(4)(h)(ii)(D) and (DA) of the Regulations are met.
Regional Certification
Regulations 5.19.4(h)(ii)(F) requires that an authorised body has advised the Minister about matters in reg 5.19(4)(e), reg 5.19(4)(h)(ii)(B) and reg 5.19(4)(h)(ii)(C) of the Regulations.
The Tribunal has considered the Form 1404 Regional Sponsored Migration Scheme – Regional Certifying Body Advice, issued on 24 September 2018 by the South Australian Department of State Development, a body authorised by the Minister in IMMI 17/059.
On the basis of the advice set out in the Form 1404 Regional Sponsored Migration Scheme – Regional Certifying Body Advice provided, the Tribunal is satisfied that the regional certifying body has advised the Minister about the matters set out in reg 5.19(4)(e ) and reg 5.19(4)(h)(ii)(B) and (C) of the Regulations. The regional certifying body states that:
·There is a need for a paid employee in the nominated position within the business activities of the nominating employer;
·The nominated position cannot be filled by an Australian citizen or an Australian permanent resident who is living in the same local area as the nominated position; and
·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 the equivalent work in the same workplace at the same location.
Consistent with the decision of the Federal Circuit Court of Australia in Bharaj Construction Pty Ltd v MIBP [2016] FCCA 902, certification by a regional certifying body is not sufficient or determinative in relation to whether the nominator meets reg 5.19(4)(e) , reg 5.19(4)(h)(ii)(B) and reg 5.19(4)(h)(ii)(C) of the Regulations. Accordingly, the Tribunal notes that, whilst having regard to the advice provided by the regional certifying body, it has reached its own conclusions about the matters the subject of the regional certifying body’s advice.
Having considered the Form 1404 provided, the Tribunal is satisfied that the requirements of reg 5.19(4)(h)(ii)(F) are met by provision of the requisite Form 1404.
It follows the requirements of reg 5.19(4)(h) are met.
Based on the findings above, the Tribunal is satisfied that the applicant meets the requirements of reg 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.
P. Maishman
MemberATTACHMENT - 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 an identified person, as 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) all 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;
(AA)there is a genuine need for the nominator to employ the person identified under subparagraph (a)(ii), as a paid employee, to work in the position under the nominator’s direct control;
(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 the person identified under subparagraph (a)(ii), as 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).
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
Legal Concepts
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Judicial Review
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Procedural Fairness
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Statutory Construction
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Remedies
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