DIWALI PTY LTD (Migration)

[2023] AATA 211

DIWALI PTY LTD (Migration) [2023] AATA 211 (23 January 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  DIWALI PTY LTD

REPRESENTATIVE:  Mr Ireneusz LASOCKI (MARN: 0102034)

CASE NUMBER:  1923548

HOME AFFAIRS REFERENCE(S):          BCC2018/801638

MEMBER:George Hallwood

DATE:23 January 2023

PLACE OF DECISION:  Adelaide

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

Statement made on 23 January 2023 at 3:04pm

CATCHWORDS
MIGRATION–nomination – Direct Entry nomination stream –application is compliant –– genuine need to employ a paid employee to work in the position under the nominator’s direct control – no adverse information – position associated with the nominated occupation is genuine –no less favourable terms and condition of employment –applicant lawfully operating a business in Australia– decision under review set aside

LEGISLATION
Migration Act 1958, ss 65, 140GB, 245AR, 359, 360
Migration Regulations 1994, rr 5.37, 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 15 August 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).

2. The applicant applied for approval on 19 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).

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 the applicant’s nomination did not satisfy reg 5.19(4)(h)(ii) of the Regulations because they found that that the nominator has not demonstrated that there is a genuine need for the nominator to employ the person identified in subparagraph 5.19(4)(a)(ii) to work in the position under the nominator’s direct control.

5. Mr Venekata Rama Sandeep Varma Dandu appeared before the Tribunal on behalf of the applicant on 23 January 2023 to give evidence and present arguments. As this was a combined hearing with that of the related nominee, file number 1928202, the Tribunal also received oral evidence from Mrs Parampreet Kaur Brar.

6. The applicant was represented in relation to the review.

7. 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

8. 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)

9. 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.

10. The Department file contains a copy of the “Application for Employer Nomination for a Permanent Appointment” Form 1395 (Internet) which was lodged by the applicant on 19 February 2018. The Tribunal is satisfied that this is the approved form for post 23 March 2013 applications of this type, and that it meets fee requirements – reg 5.37. The Tribunal is also satisfied that on page 7 of this application the nominator has certified that they have not engaged in conduct in relation to the nomination that contravenes s 245AR(1) of the Act.

11. The applicant’s nomination is directed at addressing their need as the nominator to employ the identified nominee, Mrs Brar, as a paid employee to work in the position of Restaurant Manager under their direct control. For this reason, the Tribunal is satisfied that the application is compliant.

12. 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)

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

14. The applicant has operated a restaurant, Diwali Restaurant, since 2017. The restaurant is now in Port Noarlunga South, South Australia and was previously in Seaford Meadows, South Australia. The applicant has provided the Tribunal with ASIC current and historical records dated 2 October 2022, various income tax returns including for the year ending 30 June 2022, and a Restaurant and Catering Licence (liquor licence). The Tribunal is satisfied that the applicant is actively operating a business in Australia and is lawfully registered with ASIC, the ATO and relevant licencing authorities.

15. Accordingly, the requirement in reg 5.19(4)(b) is met.

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

16. 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. 

17. At the hearing Mr Dandu told the Tribunal that the applicant is not involved in labour hire activities. For this reason, the Tribunal is satisfied this criterion is not applicable.

18. Accordingly, the requirement in reg 5.19(4)(c) does not apply

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

19. 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. 

20. Mr Dandu told the Tribunal that the current employment contract is the one on the Tribunal’s file dated 15 February 2018 and is related to the position of Restaurant Manager. The contract states inter alia:

    1.1  Your start date is immediate upon approval of your sponsored permanent visa.

    1.2 Your employment will be full time, ongoing and for a minimum of two years.

21. On the basis of this contract the Tribunal is satisfied the nominee is 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.

22. Accordingly, the requirement in reg 5.19(4)(d) is met.

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

23. 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.

24. The employment contract dated 15 February 2018 identifies a base salary remuneration of $55,000 per annum plus superannuation and a standard set of other terms and conditions. The applicant has provided market salary survey relating to advertised Restaurant Manager positions in Adelaide, South Australia which shows a range from $47,000 to $67,000 per annum (Payscale); and advertised positions in South Australia on Indeed $55,272 pa.

25. Based on the evidence the Tribunal is satisfied that the terms and conditions applicable to the 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.

26. Accordingly, the requirements of reg 5.19(4)(e) are met.

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

27. 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.

28. At the hearing Mr Dandu told the Tribunal that he was not aware of any investigations by the Department into Diwali Pty Ltd.

29. There is nothing before the Tribunal that suggests there is any adverse information known to Immigration about the nominator or person associated with the nominator.

30. Accordingly, the requirements of reg 5.19(4)(f) are met.

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

31. 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.

32. At the hearing Mr Dandu told the Tribunal that he was not aware of any breaches of compliance with workplace relations laws.

33. There is nothing before the Tribunal to suggest that the applicant has an unsatisfactory 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.

34. 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)

    35.      Regulation 5.19(4)(h) contains a number of alternative requirements. These are set out in detail in the attachment to the decision and the requirements relevant to a Direct entry stream nomination can be briefly summarised as requiring 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.

    36.      The nomination application states that the business and the position are situated in South Australia. The instrument IMMI 17/059 defines where is included in regional Australia. The instrument includes all postcodes in South Australia in regional Australia. For that reason, the Tribunal is satisfied the position and the nominator’s business are in regional Australia.

    37.      Mrs Brar was identified in the nomination application to work in the position of Restaurant Manager under the direct control of the nominator. The position is one of Restaurant Manager and the applicant runs a restaurant that turned over almost $600,000 in the year ended 30 June 2022. The business operates seven days a week.

    38.      At the hearing Mr Dandu told the Tribunal that the business was run with a lean staffing profile and that the role of Restaurant Manager is critical to the business’ success. Mr Dandu is the Company Secretary who has a full time job elsewhere. The other director, Mr Venkata Nageswara Rao Buragadda, also works full time elsewhere. The Tribunal is satisfied that the applicant has a genuine need for the nominee to be employed as a paid employee in the position under the nominator’s direct control.

    39.      Mr Dandu put to the Tribunal that the occupation of skilled Restaurant Manager is in high demand and that the restaurant depends on those skills. The applicant provided evidence of their recruitment campaign and described the ongoing skills shortages the industry faces in this area. Mr Dandu indicated there were several applications initially but that they were unsuitable mainly due to having no Restaurant Manager experience or wanting to only work during the day when the restaurant is usually closed. Mrs Brar told the Tribunal that her work day usually commenced at about 4pm. The Tribunal is satisfied that the position cannot be filled by an Australian citizen or permanent resident who is living in the same local area.

    40.      The applicant provided a copy of the Duty Statement for the position of Restaurant Manager. As the application was lodged on 19 February 2018 the instrument that relates to 5.19(4)(h)(ii)(D) is IMMI 17/058. The occupation of Café or Restaurant Manager is listed as an occupation specified by the Minister in the instrument which refers to ANZSCO code 141111. Ms Brar described her duties to the Tribunal. Based on the evidence provided, the Tribunal is satisfied the tasks of the position correspond to those of an occupation specified in the relevant legislative instrument.

    41. The instrument IMMI 17/059 specifies which Regional Certifying Bodies (RCB) in each State and Territory are to advise the Minister about the matters in reg 5.19(4)(e) and reg 5.19(4)(h)(ii)(B) & (C) and in this case the instrument specifies Department of State Development for South Australia.

    42. On 18 June 2018 the Department of State Development for South Australia advised the Minister that they were satisfied that the requirements of reg 5.19(4)(e) and reg 5.19(4)(h)(ii)(B) & (C) were met.

35. Accordingly, the requirements of reg 5.19(4)(h) are met.

    CONCLUDING PARAGRAPHS

36. 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

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

    George Hallwood
    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).