Dtown Pty Ltd (Migration)

Dtown Pty Ltd (Migration) [2021] AATA 4696 (2 December 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Dtown Pty Ltd
CASE NUMBER:  1836164
HOME AFFAIRS REFERENCE(S):          BCC2017/3827251
MEMBER:Peter Emmerton
DATE:2 December 2021
PLACE OF DECISION:  Adelaide
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Statement made on 02 December 2021 at 12:20pm
CATCHWORDS
MIGRATION – application for approval of nomination of position – direct entry nomination stream – position cannot be filled by citizen or permanent resident in same area – written evidence of recruitment process provided – long-term employee in isolated regional area with high staff turnover – size and scope of business’s operations – decision under review set aside
LEGISLATION
Migration Regulations 1994 (Cth), r 5.19(4)(h)(ii)(C)
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 22 November 2018 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 18 October 2017. 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 r.5.19(4)(h)(ii)(C) of the Regulations. This is because they were not satisfied that the nominator had adequately demonstrated that they had made sufficient attempts to recruit suitably qualified and experienced Australian citizens or Australian permanent residents to the position who live in the same local area.
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.
In determining the applicant’s claims the Tribunal must first make findings of fact on material matters in dispute. This may involve an assessment of credibility and in so doing, the Tribunal is aware of the need and importance of being sensitive to the circumstances and the difficulties applicants often face before the Tribunal in their individual circumstances.
The applicants rely on the evidence given before the Tribunal together with written submissions and supporting evidence provided to the Tribunal and previously to the department.
The nominating entity runs a substantial hospitality business located in Darwin, Northern Territory. The total number of staff employed is currently 26.
The visa applicant’s responsibilities, their previous and current experience, formal qualifications and attributes clearly align with the duties associated with a Café or Restaurant Manager, ANZSCO 141111, Skill level 2.
The Tribunal notes that the visa applicant has a Bachelor of Business, International Tourism and Hotel Management and a Diploma of Hospitality Management. Both qualifications were gained in Australia.
The Tribunal perused popular employment web sites to ascertain the current state of the market in this field. The Tribunal observed a very large number of related vacancies, in a wide variety of locations and organisations currently under recruitment. The Tribunal is not without understanding of the specialist knowledge required in this hospitality and service profession. The Tribunal is cognisant that many of the observed positions may appear to be equally or more attractive environments to some candidates than the nominated position in a geographically remote location which experiences challenging climatic conditions.
The Tribunal notes a ‘Satisfied’, RCB Certificate issued by the relevant certifying body. The date of the certificate is 5 December 2017.
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 finds that the application was lodged electronically using the elodgement facility. The nomination was made under the RSMS Direct Entry stream (r.5.19(4)(h)(ii)) and consequently no fee is payable. The Tribunal finds the applicant meets r.5.19(2).
The Tribunal accepts that this is not a role that would suit all individuals. It is a large operation with a very substantial annual turnover and a large permanent and casual/part-time workforce. This role is made substantially more difficult by the extensive staffing requirements in a small city that has a disproportionately high transient population. Darwin has a relatively young population. It is frequented by a substantial number of young travellers who use it as a working holiday for a season and frequently leave once the climatic conditions become oppressive during the “wet-season”.
Replacing such an individual would be challenging at the best of times, even more so in the high employment environment which has resulted from the Covid-19 pandemic and the subsequent lack of international temporary migrants, who make up a very substantial portion of workers in this industry under normal Covid-19 free times. The Tribunal additionally acknowledges the distorting effect of the energy extraction industry in the region. They draw upon the same candidate pool with few limitations to remuneration.
The Tribunal is satisfied that the application has identified a need for a paid employee to work in the position of Café or Restaurant Manager, under direct control of the applicant. The application has included the required written certification relating to conduct that contravenes s.245AR(1) 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 the applicant is actively, lawfully and directly operating a business in Australia.
The Tribunal has been provided with a range of documents including the Business Tax Return for FY 2020, Profit and Loss Statements, produced for FY 2018, FY 2019 FY 2020 and current BAS documentation for FY 2020 and FY 2021. All of which correlated.
ASIC Registration details have been researched by the Tribunal for this business entity. The Tribunal checked the status of the listed ABN 19 167 208 540. The nominator commenced operation 26 October 2015 and is due for review by ASIC on 26 October 2022.The Tribunal is satisfied that the applicant is actively, lawfully and directly, operating a business in regional 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 Tribunal finds that r. 5.19(4)(c) is not relevant to the current nomination.
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 notes that the business appears to have substantial growing revenues and proportionally aligned profit. The Tribunal observes that revenues dropped substantially for 1 financial quarter due to the impact of Covid-19 but quickly rebounded after that point. This is clearly an anomaly, not an indicator of the health of the business long-term.
The Tribunal observes that one of the potential challenges facing the business is retaining the visa applicant and the nominator’s obvious reliance upon their services. The recruitment and retention challenges associated with similar roles in the current marketplace are substantial and appear to be growing. The Tribunal perused a well-known employment web site. It is currently advertising more than 55,000 relevant associated roles nationally with more than 500 available in the Northern Territory. Many of them may have more attractive work environments with less climatic challenges and associated stress than the visa applicant’s current role.
The Tribunal is aware that the workforce is highly mobile, the specialist skills associated with this type of operation are highly sought after and readily transferred between competing businesses. It is also cognisant of competitors cannibalising competing businesses and targeting their key staff to obtain a market advantage or fill outstanding vacancies. The Tribunal is aware of the fact that some similar businesses have had to restrict operating hours due to an inability to employ adequate staff to service their normal opening hours. This is clearly an undesirable economic and social impost.
Current media and business reports associated with the analysis of consumer confidence and employment data, coupled with present time job vacancies and recruitment challenges demonstrate a deficit of suitably qualified potential employees in many sectors. This industry clearly appears to be one such sector. The problem is exacerbated in regional areas or smaller States and Territories, particularly if an organisation is reliant upon temporary or permanent immigration as part of their labour source. This has long been the case in the Northern Territory.
Business, Media, and Government reports are being circulated which indicate this is starting to be a drag upon business development. The Tribunal has referenced the National Skills Commission Report which supports this conclusion, dated 21 July 2021.[1]
[1] National Skills Commission Vacancy Report, June 2021, Release date: 21 July 2021
The Tribunal reflects positively upon the fact that the nominee has been employed by the nominator for a substantial number of years (4), well in excess of the industry average.
The stability and growth of the nominating entity in an ever increasingly competitive and complex market, further attests to its’ ability to employ the visa applicant.
The Tribunal is satisfied that the business is viable and will be able to sustainably, employ the nominee for the required 2-year minimum period therefore r.5.19(4)(h)(i) is met.
No less favourable terms and condition 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 Tribunal has been provided with the visa applicant’s most recent employment contract. It is dated 17 June 2021. The Tribunal accepts that the nominee’s current stated annual salary of $58,000 plus Superannuation at the rate of the current Superannuation Guarantee, (10%) is appropriate.
The Tribunal researched the salaries offered for similar positions and had regard for the salary determination evidence provided by the applicant. The remuneration appears to fall within the mid quartiles of similar positions on offer. It is satisfied that the terms and conditions of employment are equivalent to other employees with the same experience performing equivalent work in the same workplace or a similar workplace. 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 evidence before the Tribunal that the applicant has anything but a satisfactory record of compliance with the immigration laws of Australia. 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. The Tribunal notes that there is no evidence before the Tribunal that the applicant has anything but a satisfactory record of compliance with workplace relations law in Australia. 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 alternative requirements. These are set out in detail in the attachment to the decision. As stated above the nomination was made under the RSMS Direct Entry stream and the Tribunal has proceeded to assess the application against the criteria in r.5.19(4)(h)(ii) which require that:
·the position and nominator’s business are 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 Australian citizen or permanent resident;
·the tasks of the position correspond to those of an occupation at the ANZCO skill level 1, 2 or 3; and
·a regional certifying body has advised the Minister about certain matters relating to the position.
The Tribunal has had regard to the substantial size and scope of the nominating entity’s expanding business operations. It is self-evident that the nominator cannot operate this growing business entity without a substantial and relatively self-contained management structure in place and the visa applicant is clearly 1 important member of that multi-person team. Hospitality whilst utilising technology remains a face-to-face customer transactional business. By its very nature it requires a large number of staff needed to attend to many relatively small transactions of an individual nature with multiple customers. The management of staff, rostering, food production, ordering of raw materials, liquor licensing requirements, safe food handling practices Work Safety and Covid-19 compliance matters makes an on-site manager imperative.
The Tribunal is satisfied that there is a genuine need for the nominator to employ a paid employee to work full-time in the position under the nominator’s direct control.
The Tribunal notes that the delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19(4)(h)(ii)(C) of the Regulations. This is because they were not satisfied that the nominator had adequately demonstrated that they had made sufficient attempts to recruit suitably qualified and experienced Australian citizens or Australian permanent residents to the position who live in the same local area.
The Tribunal has formed a different view resulting from the additional written evidence submitted to the Tribunal upon its’ request.
Evidence was presented to the Tribunal regarding the recruitment process and the subsequent lack of suitably qualified and experienced applicants other than the nominee.
Written evidence has been presented to the Tribunal to demonstrate that advertising took place on 2 separate occasions. This evidence included receipts for advertising and copies of the advertisements and dated emails with the advertising entity. It also accepts that personal and professional networks were utilised as an earlier attempt to recruit for the visa applicant’s position.
A total of 13 applications were received and 12 were deemed unacceptable. Reasons were provided to the Tribunal. This lack of suitable applicants has further served to demonstrate the ongoing recruitment challenges in the NT. It is recognised that this work is regional and isolated, in harsh climatic conditions. This makes recruitment and long-term retention even more difficult. It is accepted by the Tribunal that the written evidence of applications provided in part demonstrates the challenge of filling this role at that point in time.
The Tribunal has formed the view that the “Satisfied” RCB requirements and the issued Certificate provide some weight in favour of the applicant, however this is not within itself a definitive result which must be accepted by the Tribunal. It must make up its’ own mind as to the relevance of the advice proffered. In this instance it accepts the local knowledge and appreciation of the unique recruitment challenges faced by small businesses in the NT, provided by a local RCB as highly relevant.
The nominator maintains the view that the visa applicant was the best fit for the job both technically and experiencedly due to her broad spread of experience and complimentary technical skills.
The Tribunal again states that it perused a well-known employment web site. It is currently advertising more than 55,000 relevant associated roles nationally with more than 500 available in the Northern Territory. Many of them may have more attractive work environments with less climatic challenges and associated stress than the visa applicant’s current role.
The Tribunal is aware that recruitment and associated retention have become considerably more challenging in the Northern Territory since this application was made over 4 years ago.
The Tribunal observes that more corroborative evidence was provided to it, than was presented to the delegate at the time of their decision. The Tribunal, as stated previously, acknowledges the current employment market distortions created by the Covid-19 pandemic coupled with the Talent pool drain to the Eastern States. It is satisfied that the position cannot be filled by an Australian citizen or permanent resident. The Tribunal is satisfied that the nominator’s business is located in regional Australia. The Tribunal is satisfied that the requirements of r.5.19(4)(h)(ii)(C) have been met.
Regulation r.5.19(4)(h)(ii)(D), requires that the tasks to be performed in the position correspond to those at ANZSCO skill level 1, 2 or 3. The Tribunal notes that the delegate did not reject the application upon the basis of this regulation. Nor did they raise it as a concern in their decision.
The Tribunal has reviewed both the relevant descriptors supplied in ANZSCO 141111 for Café or Restaurant Manager and the detailed duty statement attached for the visa applicant. It appears clear that the Duty Statement and the ANZSCO descriptors substantially align.
Whilst the visa applicant, would likely report performance in all KPI areas via established systems and seek input from the Director of the business, this coincides with the Tribunal’s expectations of a Café or Restaurant Manager directly reporting to the senior management or Director of a business.

The position of Café or Restaurant Manager, ANZSCO 141111, nominated by the applicant is referred to in ANZSCO as a skill level 2 position and the Tribunal is satisfied that the visa applicant is operating at that level.
The Tribunal has had regard to the satisfied Form 1404 issued by an RCB (NT Department of Trade Business and Innovation), dated 5 December 2017 and is satisfied that the applicant has advised the Minister about matters relating to the terms and conditions of employment, the genuine need for the position and that the position cannot be filled locally.
The Tribunal is satisfied that the applicant meets 5.19(4)(h)(ii).
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.
Peter Emmerton

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).

[2021] AATA 4696

2 December 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Statutory Construction

Procedural Fairness

Jurisdiction