Cosh Corp Pty Ltd ATF T.N and E.M Cosh Family Trust (Migration)

Cosh Corp Pty Ltd ATF T.N and E.M Cosh Family Trust (Migration) [2022] AATA 3041 (16 August 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Cosh Corp Pty Ltd ATF T.N and E.M Cosh Family Trust
REPRESENTATIVE:  Mrs Lingge Zhang (MARN: 1807001)
CASE NUMBER:  1911791
HOME AFFAIRS REFERENCE(S):          BCC2018/636091
MEMBER:Warren Stooke AM
DATE:16 August 2022
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Statement made on 16 August 2022 at 3:21pm

CATCHWORDS
MIGRATION – nomination – Direct Entry nomination stream – Chef – position located in regional Australia – actively and lawfully operating a business in Australia – proposed Chef duties are consistent with the ANZSCO descriptor for a Chef, under the direct control of the owner – no adverse information known to Immigration – decision under review set aside
LEGISLATION
Migration Act 1958, ss 65, 245AR, 360
Migration Regulations 1994, rr 1.13, 5.19

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 Home Affairs on 23 April 2019 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 7 February 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 that the applicant’s nomination did not satisfy reg 5.19(3) and 5.19(4) of the Regulations because the nomination application had not demonstrated that there was a full time need for a chef in the business while there is a full time Kitchen Manager, kitchen Supervisor and four cooks that oversees the kitchen operations.
The applicant appeared before the Tribunal on 10 August 2022 to give evidence and present arguments. The Tribunal also received oral evidence from Abhimanyu Sahni, the nominee for the position of Chef – ANZSCO Code: 351311.
The applicant advised the Tribunal that the applicant had received and read a copy of the delegate’s decision.
The applicant stated that he understood the application was refused because of the difference in understanding between the jobs of chef and cook.
The applicant was represented in relation to the review. The representative attended the Tribunal hearing.
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 applicant provided evidence that the business, Cosh Corp Pty Ltd (atf T.N. & E.M. Cosh Family Trust: ABN: 81 881 077 996) was registered with ASIC and assigned the ABN: 52 117 206 103 and was registered on 18 November 2005.
The applicant stated that the business has a turnover of $3.3m per year.
The accountant for the business, Brealey Quill Kenny, provided the following evidence concerning the financials for the business:
Financial Statements of T.N and E.M Cosh Family Trust - ABN: 81 881 077 996

2021FY 2020FY 2019FY 2018FY

Gross Wages $   1,242,795 $   1,133,888 $   1,281,315 $   1,247,809

Superannuation $     109,217 $       87,837 $     114,406 $     111,508

Sales (Excl. GST) $   3,796,964 $   2,724,588 $   3,358,668 $   3,405,277

Total Expenses $   2,286,756 $   1,990,136 $   2,335,981 $   2,207,862

Net Profit $     750,243 $     144,154 $       64,055 $     217,646

The applicant, Mr Trevor Cosh, is the owner and director of the business and works within the business over the 7 days of the week, performing all duties since the advent of covid and the impacting shortages of staff.
The applicant stated that the business traded as Dome Albany, in Western Australia under a franchise agreement, which was provided in the submitted evidence. It was stated that the town has a population of 23,000, who live 55kms within the district.
The applicant stated that the restaurant has seating for 187 people and has 30 employees. The business caters for lunch and the service of cakes and coffees for 7 days of the week.
The applicant provided evidence of an RSMS from the Government of WA Department of Training and Workforce Development that approved the nomination of Abhimanyu Sahni on 25 January 2018 in the nominated position of Chef – ANZSCO: 351311 on a salary of $54,000.
The applicant provided a signed contract of employment for full-time employment of the nominee, Abhimanyu Sahni, for the position of Chef de Partie on a salary of $54,000, plus superannuation, which was dated 23 January 2018. The nominee works 38 hours per week and has two rostered days off.
The applicant stated that the nominee had worked for the business since 2 January 2017 and is paid a current salary of $60,000, plus superannuation.
The applicant stated that Cosh Corp Pty Ltd has its own enterprise agreement 2006-2011, which is still in place and a 6 per cent increase has been applied to base rates.
The applicant stated that BT Superannuation is the default fund where employees do not elect a fund.
The applicant provided evidence that employees were provided with a Fair Work Information Statement at the time of employment
The applicant provided the Tribunal with an organisation chart, where the Chef position reports to the Kitchen supervisor and has cooks and kitchen hands reporting to the position of Chef.
The applicant provided evidence that the position of Chef was advertised in the Albany press on 30 November 2017 and on Job Active on 13 December 2017. It was further stated, that given the shortage of labour, the business advertises continuously on various platforms.
The applicant stated that the Chef co-ordinates everything in the kitchen and ensures that all prepared meals and offerings come out of the kitchen in a timely manner.
The applicant provided evidence that the nominated position of Chef undertakes the following duties:
 Monitoring and ensuring quality standards of all foods
 Preparing and cooking food
 Plan menu items
 Estimates food and labour costs in consultation with Senior Chefs and
Managers
 Receiving & storing food stocks, kitchen supplies and equipment
 Ordering and controlling of food stock and ingredients
 Discussing food preparation issues with Senior Chefs and Managers
 Participate in the planning, preparation and operation of all External
Catering
 Training and developing of Junior Chefs, Cooks and Kitchen Hands
 Implementing systems & procedures
 Implementing and Inspecting hygiene of workplace
 Maintaining & establishing safe & secure workplace
Essential Skills
 Enjoy cooking
 Able to lead and be part of the team
 Exceptional time management skills
 Good interpersonal, communication and customer service skills
 Great attention to detail
 Ability to multi-task
 High level of personal cleanliness
 Ability to work under pressure and stay calm in difficult situations
 Create and develop new dishes and menus
The applicant stated that the chef position does not produce the menu which is delivered through the franchisor, however, the chef does interpret the offering to the local circumstances of the season.
The applicant stated that in 16 years of operating the business he had not experienced such issues with procuring labour to operate the business.
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 a paid employee to work in the position under their direct control.
The applicant lodged the application to nominate the nominee for the position of Chef – ANZSCO Code: 351311 with the business on 7 February 2018 on Form 1395 (Internet) and the payment of the nomination application fee was acknowledged by the Department. The completed form included a response to the written certification stating whether the nominator has engaged in conduct in relation to the nomination that contravenes s. 245AR(1). In this regard, the Tribunal is satisfied that the applicant has provided confirmation of not engaging in conduct that would contravene s. 245AR(1).
The applicant has provided an organisation chart and declaration to the Tribunal that identifies a claim for a need for the nominee to fill the advised position under the nominator’s direct control.
Accordingly, the requirement in r.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.
The applicant provided evidence that the nominating business, Cosh Corp Pty Ltd (atf T.N. & E.M. Cosh Family Trust: ABN: 81 881 077 996) was registered with ASIC and assigned the ABN: 52 117 206 103 and was registered on 18 November 2005.
Further, the Tribunal is satisfied that the business, based upon the information presently before the Tribunal is actively operating lawfully and is directly operated by a principal shareholder.
Further, the business has demonstrated an economic capacity to support the employment of the nominee for a period exceeding two years.
Accordingly, the requirement in r.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.
The Tribunal finds that r.5.19(4)(c) is not relevant to the current nomination.
Accordingly, the requirement in r.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 having already been employed for more than five years on a full-time basis.
The applicant provided the Tribunal with evidence that the nominee has a contract of employment that commenced on 2 January 2017 and that the nominee has a contract of not less than 2 years. In this regard, the evidence identified that the nominee, at the time of appointment, had a salary of $54,000 and the position was designated as Chef on the organisation chart, reporting to the Kitchen Supervisor. The evidence provided by the applicant advised that the nominee is currently paid $60,000 per annum
Accordingly, the requirement in r.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 Tribunal is satisfied that the terms and conditions of employment are 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.
Accordingly the requirements of r.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 rr.1.13A and 1.13B.
The Tribunal is satisfied that there is no adverse information known to Immigration or the Tribunal about the nominator or a person associated with the nominator.
Accordingly the requirements of r.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.
The evidence before the Tribunal identifies that the applicant has a contract of employment with the nominee that is operative from 2 January 2017 and is in compliance with the Fair Work Act 2009 requirements in terms of conditions of employment and has a salary that exceeds the minimum award entitlement. In this regard, the applicant stated that the nominee was provided with a Fair Work Information Statement at the time of engagement.
Accordingly, the requirements of r.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 but can be briefly summarised as requiring either that:
·the tasks to be performed in the position will be performed in Australia and correspond to those of an occupation specified by the Minister (that applied at the time of application), the occupation is applicable to the proposed employee in accordance with any specifications made in that instrument, and specified training requirements are met; or
·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.
The Tribunal is satisfied on the basis of the evidence that the position and business is located in ‘regional Australia’ and that the applicant applied for Regional Certification, which was granted on 25 January 2018 by the relevant Regional Certifying Body (Government of WA – Department of Training and Workplace Development) and confirmed the position could not be filled locally for the occupation of Chef – ANZSCO Code: 351311. The Regional Body approved the nominee, Mr Sahni Abhimanyu, on a salary of $54,000 (at the time of application).
Further, the Tribunal is satisfied, based upon the evidence that there is a genuine need for the position of Chef to work under the direct control of the business owner/director and that the position was advertised both locally and regionally and could not be filled by an Australian citizen or permanent resident who is living in the same local area with the equivalent skills and competencies. The Tribunal is also satisfied that the applicant engaged in market testing of the position prior to appointment of the nominee.
Additionally, the Tribunal is satisfied that the scale of the business, with demonstrated profitability, in the Tribunal’s view, warrants the engagement of a Chef, given the scale of the business. As such, the proposed Chef duties are consistent with the ANZSCO descriptor for a Chef, under the direct control of the owner.
The Tribunal is satisfied, based upon the evidence of the applicant and the evidence of the nominee, that the position includes all of the tasks consistent with the position in the position descriptor for a Chef – ANZSCO Code: 351311. In this regard, the applicant confirmed in evidence to the Tribunal that the nominee possesses relevant skills and performs the following tasks:
 Monitoring and ensuring quality standards of all foods
 Preparing and cooking food
 Plan menu items
 Estimates food and labour costs in consultation with Senior Chefs and
Managers
 Receiving & storing food stocks, kitchen supplies and equipment
 Ordering and controlling of food stock and ingredients
 Discussing food preparation issues with Senior Chefs and Managers
 Participate in the planning, preparation and operation of all External
Catering
 Training and developing of Junior Chefs, Cooks and Kitchen Hands
 Implementing systems & procedures
 Implementing and Inspecting hygiene of workplace
 Maintaining & establishing safe & secure workplacekills
Accordingly, the requirements of r.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.
Warren Stooke AM
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 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).

[2022] AATA 3041

16 August 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Remedies

2021FY	2020FY	2019FY	2018FY
Gross Wages	$ 1,242,795	$ 1,133,888	$ 1,281,315	$ 1,247,809
Superannuation	$ 109,217	$ 87,837	$ 114,406	$ 111,508
Sales (Excl. GST)	$ 3,796,964	$ 2,724,588	$ 3,358,668	$ 3,405,277
Total Expenses	$ 2,286,756	$ 1,990,136	$ 2,335,981	$ 2,207,862
Net Profit	$ 750,243	$ 144,154	$ 64,055	$ 217,646