DLJ Holdings Pty Ltd (Migration)

DLJ Holdings Pty Ltd (Migration) [2021] AATA 1610 (1 April 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  DLJ Holdings Pty Ltd
CASE NUMBER:  1818003
HOME AFFAIRS REFERENCE(S):          BCC2016/1935635
MEMBER:Cathrine Burnett-Wake
DATE:1 April 2021
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Statement made on 1 April 2020 at 12:02pm

CATCHWORDS
MIGRATION – nomination of a position – Direct Entry Nomination stream – position of Restaurant Manager – tasks of the position correspond to the specified occupation – genuine need for the employment – nominee employed in the position – regional certifying body advice – terms and conditions of employment – position cannot be filled by an Australian citizen – actively and lawfully operating a business in Australia – decision under review set aside
LEGISLATION
Migration Act 1958, s 245
Migration Regulations 1994, rr 1.13, 5.19, 5.37

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 6 June 2018 to reject 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 applied for approval on 3 June 2016. 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 the applicant’s nomination did not satisfy r.5.19(4)(h)(ii)(D) of the Regulations because the tasks to be performed in the position did not correspond to the tasks of an occupation specified by the Minister in an instrument in writing.
Mr Tierney, the Director of DLJ Holdings Pty Ltd appeared before the Tribunal on 1 April 2021 to give evidence and present arguments.
The Tribunal has formed a different view to that of the Department. The Tribunal has had the opportunity to obtain substantially more evidence not available to the Department at the time of making its decision. Particularly persuasive was the oral evidence taken directly from Mr Tierney regarding the operation of his business and the genuine need to employ Ms Okumura, as he has done for the past 5 years.
The applicant was represented in relation to the review by its registered migration agent.
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.
Evidence of Mr Tierney at hearing
DLJ Holdings Pty Ltd operates as Sushi Wama, serving Japanese cuisine. The restaurant is in the suburb of Innaloo and is located next to the only IKEA in Perth.
The restaurant seats 80-100 patrons inside and another 30 outside. The restaurant is open 7 days per week between 11am and 9pm. Currently the restaurant caters for between 3000 to 3500 covers per week and is a fully sit-down service. Currently the restaurant employs approximately 40 staff with 10-11 of them full time and 25-30 casuals.
Mr Tierney told the Tribunal that Ms Okumura had been working with him for the last 5-years, full time, in the nominated role. He explained that he relied on her heavily and that she kept the restaurant and kitchen running smoothly. He said that Ms Okumura has been an asset to his business, and he would be devastated if she was not able to continue in her role.
Mr Tierney explained the duties Ms Okumura performed, which would be the duties she would continue to perform if the visa was granted. These duties included: Managing and overseeing the restaurant operation; Ensuring customer satisfaction; Overseeing quality; All human services aspects and staff management; Training of staff and managing performance; Managing functions and events.
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.
The Tribunal has reviewed the application and is satisfied that:
·The application was made on the approved form 1395 (Internet) and was accompanied by the fee prescribed in r.5.37;
·The application includes a written certification stating whether the nominator has engaged in conduct in relation to the nomination that contravenes s. 245AR(1); and
·The application 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.
Accordingly, the requirement in r.5.19(4)(a) is met.
Nominator is actively and lawfully operating a business in Australia: r.5.19(4)(b)
Regulation 5.19(4)(b) requires that applicant is actively, lawfully and directly operating a business in Australia.
The Tribunal is satisfied based on the material before it, including the business' registration documents, activity statements, payroll activity information and other information about the business' activities that the nominator is actively and lawfully operating a business in Australia.
Accordingly, the requirement in r.5.19(4)(b) is met.
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 nominator is not involved in labour hire activities.
Accordingly, the requirement in r.5.19(4)(c) does not apply.
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 Tribunal has had regard to the documents provided on review, including current financial statements and BAS.
On balance, the Tribunal is satisfied on the totality of the evidence that the nominator has the financial capacity to maintain the nominee's salary, including the fact that they have been paying the nominee for the last 5-years.
The Tribunal is satisfied on the material before it that the nominee will be employed on a full-time basis for at least two years on terms that do not exclude the possibility of extending the period of employment.
Accordingly, 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.
The evidence before the Tribunal indicates that the nominee's base salary is $55,000 plus superannuation. It was noted in the application form that there is no Australian performing equivalent work at the same location.
Salary surveys and other salary data, including from Payscale.com and Jobsoutlook.gov.au, indicate that the base salary for a Restaurant Manager, depending on experience, is between $47,000 and $68,000. The Tribunal is satisfied on the basis of the award and salary data information that the nominee's base salary is within the appropriate range of that normally paid to a Restaurant Manager in Perth.
The Tribunal is satisfied that the terms and conditions applicable to the nominated position will be no less favourable than those that 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: 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 information before the Tribunal to indicate that there is adverse information known to the Department about the nominator or an associated person.
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.
There is no evidence before the Tribunal, that Fair Work or any other government agency has taken action against the nominee in relation to workplace relation laws. As such, the Tribunal is satisfied that the nominee has satisfactorily complied with workplace relations laws.
Accordingly, the requirements of r.5.19(4)(g) 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. 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 in the relevant instrument, 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.
Mr Tierney in written submissions and through verbal evidence at hearing clearly articulated a genuine need to employ a paid employee to work in the position of Restaurant Manager under the nominator’s direct control. The Tribunal is satisfied of this, especially given the nominee has been working in the role for the last 5-years.
The Tribunal has evidence before it that the position of Restaurant Manager had been advertised. Evidence of the job being advertised is on file.
The Tribunal is satisfied that there are no other relevant people in the particular location that can fill the position and that Mr Tierney and made all reasonable attempts to find someone from the local area.
A detailed position description of the duties for the role of Restaurant Manager within DLJ Holdings Pty Ltd has been provided. For RSMS, r.5.19(4)(h)(ii)(D) specifies that the tasks of the nominated position must correspond to the tasks of an occupation at a skill level of ANZSCO skill level 1, 2 or 3 as specified by the Minister in the relevant instrument in writing. This means that for the nomination to be approvable, the skill level specified in the nomination for the nominated position must at least be equal to the skill level specified within the ANZSCO framework for that occupation. The Tribunal has examined the relevant instrument, and Cafe and Restaurant Manager is an occupation with an AZSCO skill level 2 for the purposes of r.5.19(4)(h)(ii)(D). The Tribunal is satisfied the information provided by the nominator, to the Tribunal, shows the tasks allocated to the nominated position correspond to the tasks of a Café and Restaurant Manager as per the relevant ANZSCO code for that occupation.
The nominator provided a signed Regional Certifying Body Advice Certificate from Skilled Migration WA as part of the Department of Training and Workforce Development. The legislative instrument in force at the time of application, lists Department of Training and Workforce Development as the relevant certifying body.
The Advice Certificate from the Department of Training and Workforce Development includes advice on the matters in relation to r.5.19(4)(e) and r.5.19(4)(h)(ii)(B) and r.5.19(4)(h)(ii)(C). The Advice Certificate addresses the following detail:
- the terms and conditions of employment will be no less favourable than those provided to an Australian citizen/permanent resident performing equivalent work in same workplace at the same location;
- there is a genuine need for the nominator to employ a paid employee to work in the position under the nominator's direct control; and
- the position cannot be filled by an Australian citizen/permanent resident who is living in the same local area as that place.
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 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.
Cathrine Burnett-Wake
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 1610

1 April 2021

Key Legal Topics

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Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Standing

Statutory Construction

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