EMIRATES HOTELS (AUSTRALIA) PTY LIMITED (Migration)

[2020] AATA 2487

EMIRATES HOTELS (AUSTRALIA) PTY LIMITED (Migration) [2020] AATA 2487 (17 March 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  EMIRATES HOTELS (AUSTRALIA) PTY LIMITED

CASE NUMBER:  1729459

DIBP REFERENCE(S):  BCC2016/1313614

MEMBER:Mr S Norman

DATE:17 March 2020

PLACE OF DECISION:  Sydney

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

Statement made on 17 March 2020 at 11:40am

CATCHWORDS
MIGRATION – nomination – Direct Entry Nomination stream – Commis Chef – position is located in regional Australia – genuine need for the nominator to employ a paid employee – 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 245, 359
Migration Regulations 1994, rr 1.13, 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 Immigration on 3 November 2017 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 Department delegate’s decision was lodged with the Tribunal.

2. The applicant applied for approval on 30 March 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 (r.5.19(3)) stream and a Direct Entry nomination (r.5.19(4)) stream. 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).

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 r.5.19(4)(a) of the Regulations.

5. The applicant was represented in relation to the review by its registered migration agent.

6. 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

7. 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.

8. On 30 March 2016, the applicant/nominator (Emirates Hotels (Australia) Pty Ltd) lodged a nomination application in the Direct Entry Stream. The nominated occupation was as a ‘Commis Chef’[1] (ANZSCO: 351311 – agent letter dated 12/02/2020[2]); and the base rate of pay per annum was $49,724.[3] The divorced[4] visa applicant/nominee was named as Miss Chutiporn THARASRISUTTHI.  

   [1] PDF – 13 (‘PDF’ refers to the merged Department file on the Tribunal CASEMATE database).

   [2] Tribunal – from folio 56.

   [3] PDF – p14.

   [4] PDF – p.20.

   The application is compliant: r.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 a paid employee to work in the position under their direct control.

10. Based on the evidence before the Tribunal, I am satisfied the application was lodged on the approved form and accompanied by the prescribed fee; and that it identified a need for the nominator to employ a paid employee to work in the position under the nominator’s direct control.

11. In their decision, the Department delegate said that on 10 April 2017, the applicant was provided an opportunity to lodge a written certification stating whether or not they had engaged in conduct, in relation to the nomination, that constituted a contravention of s.245AR(1) of the Act. The delegate noted the applicant was given 28 days within which to respond. Further, on 29 August 2017, the delegate said that a “message was left for the migration agent to provide a response to the aforementioned request”. However, at the time and date of the delegate’s decision, no material response had been received.

12. The delegate continued that as the applicant had not provided written certification stating whether or not they had engaged in conduct, in relation to the nomination, that constituted a contravention of s.245AR(1) of the Act, the delegate was not satisfied the applicant met 5.5.19(2)(aa), or r.5.19(2), of the Regulations. The delegate refused the nomination application lodged by Emirates Hotels (Australia) Pty Ltd.

13. With the Tribunal, the applicant lodged a written certificate stating they had not engaged in conduct in relation to the nomination that contravened s.245AR(1).[5]

    [5] Tribunal – folio 18,19, 57. 

14. 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)

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

16. With the Department and the Tribunal, the applicant lodged Current and Historical Company Extract[6]; ASIC extract[7], and substantial other evidence of business activity (referred to herein). 

    [6] PDF – from p.68; Tribunal – from folio 61.

    [7] Tribunal – from folio 130.

17. Accordingly, the requirement in r.5.19(4)(b) is met.

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

18. 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.

19. The Tribunal has no evidence the applicant’s business activities include those relating to labour hire to an unrelated business.

20. Accordingly, the requirement in r.5.19(4)(c) does not apply.

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

21. 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.

22. With the Department, the applicant lodged:

    ·     Organisation chart[8]

    [8] PDF – p.61; also see Tribunal – folio 64.

    ·     ATO Business Portal information (Activity Statement) dated 7 October 2016[9] - for the month of May 2016, total sales were $1,156,598 / total salaries, wages and other payments were $546,684

    ·     Activity statement - for the month of April 2016, total sales $1,334,371 / total salary, wages and other payments $535,514[10]

    ·     Activity statement - for the month of June 2016, total sales $950,054/ total salary, wages and other payments $519,167 [11]

    ·     a Forecast and Financial Summary for 2015 and 2016:

    ·     employees for 2015 (103); and for May 2016 (124)[12]

    ·     Financial statements for the year ending 31 March 2015

    ·     total comprehensive loss for the year 2015 ($8,208,231) / for 2014 ($9,056,250)[13]

    ·     net assets for 2016 $56,828,565 / for 2015 $65,036,796[14]

    [9] PDF – from p.62.

    [10] PDF – p.64.

    [11] PDF – p.66.

    [12] PDF – p.76.

    [13] PDF – 83.

    [14] PDF – p.85.

23. In response to the Tribunal s.359(2) letter, and amongst other things, the migration agent letter of 12 February 2020[15] stated “we refer you to Page 8 of The Emirates Group’s 2019 Annual Report, which shows that the Group made a profit of AED 3.925 billion for the 2019 financial year which is equivalent to AUD $1.6 billion”. The agent also said the evidence “clearly shows that the company’s immediate parent entity is Emirates Airlines[16] and it further states that "notwithstanding these results, the financial statements of the company have been prepared on a going concern basis as a result of the parent entity having accepted the responsibility of providing sufficient financial assistance to the company in order to satisfy its obligations as and when they fall due." The applicant/agent had also lodged:

    [15] Tribunal – from folio 56.

    [16] Tribunal – from folio 129; from folio 252.

    ·     Financial report for year ending 31 March 2018 - total comprehensive income or loss for the year 2018 ($2,205,949) - for the year 2017 ($2,607,396)[17]

    [17] Tribunal – folio 48.

    ·     Pay advice[18]

    [18] Tribunal – from folio 63; from folio 94.

    ·PAYG (visa applicant) – 30 June 2019 – gross payments $55,100[19]

    [19] Tribunal – folio 96 (reverse side).

    ·PAYG (visa applicant) – 30 June 2018 – gross payments $55,835[20]

    [20] Tribunal – folio 96

    ·PAYG(visa applicant) – 30 June 2017 – gross payments $53,011[21]

    [21] Tribunal – folio 97 (reverse side).

    ·PAYG (visa applicant) – 30 June 2016 – gross payments $11,916[22]

    [22] Tribunal – folio 97.

    ·     Financial report for year ending 31 March 2017 - total comprehensive income or loss for the year 2017 ($2,607,396) / for the year 2016 ($57,492,356)[23]

    [23] Tribunal – folio 147.

    ·     Activity statement – April to June 2017 – total sales $2,170,567 / total salary, wages and other payments $590,067[24]

    [24] Tribunal – folio 88

    ·     Activity statement – July to September 2017 – total sales $1,467,003 / total salary, wages and other payments $111,704[25]

    [25] Tribunal – folio 86.

    ·     Activity statement – October to December 2017 – total sales $2,627,259 / total salary, wages and other payments $957,886[26]

    [26] Tribunal – folio 84

    ·     Activity statement – January to March 2018 – total sales $2,293,475 / total salary, wages and other payments $603,908[27]

    [27] Tribunal – folio 81.

    ·     Activity statement - April to June 2018 – total sales $1,604,633 / total salary, wages and other payments $622,026[28]

    ·     Activity statement - July to September 2018 – total sales $1,440,340 / total salary, wages and other payments $593,483[29]

    ·     Activity statement - October to December 2018 – total sales $2,921,374 / total salary, wages and other payments $1,021,880[30]

    ·     Activity statement – January to March 2019 – total sales $1,974,608 / total salary, wages and other payments $619,786[31]

    ·     Activity statement – April to June 2019 – total sales $1,270,512 / total salary, wages and other payments $643,340[32]

    ·     Activity statement – July to September 2019 – total sales $1,512,831 / total salary, wages and other payments (not stated)[33]

    ·Activity statement   - February 2019 – total sales $2,057,884[34]

    ·Activity statement - January 2019 – total sales $2,367,149[35]

    ·     A letter dated 13 February 2020, from the applicant’s accountant

    [28] Tribunal – folio 75.

    [29] Tribunal – folio 73.

    [30] Tribunal – folio 71

    [31] Tribunal – folio 67.

    [32] Tribunal – folio 79.

    [33] Tribunal – folio 77 (reverse side).

    [34] Tribunal – folio 68 (reverse side).

    [35] Tribunal – folio 70.

24. The evidence lodged by the applicant, including that which related to the comprehensive network of Emirates business, and the nature of the nominating business, has satisfied the Tribunal the nominee will 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.

25. Accordingly, the requirement in r.5.19(4)(d) is met.

    No less favourable terms and condition of employment: r.5.19(4)(e)

26. 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 (Wolgan Valley, NSW 2970).  

27. In the nomination application form, the applicant said the business employed other persons in the workplace doing the same work as the nominated person; that there was a Collective/Enterprise agreement that applies to the Australian employees; and that there was a Award that applied to Australian employees (Hospitality Industry (Gen) Award).[36] As noted above, the base rate of pay per annum was $49,724,[37] which was said to be in accordance with an employment agreement in the Hospitality Industry Award with a Annualised Salary. Further there are no other terms and conditions applying only to Australian employees.

    [36] PDF – p13.

    [37] PDF – p14.

28. Also lodged with the Department was an employment contract dated 29 February 2016[38] (and a letter dated 1 July 2019 referring to salary being increased to $59,576.40 – and a promotion to Demi Chef); a Resort Management Agreement dated 1 February 2015[39]; publicity information[40]; booking information.[41]  Also lodged with the Tribunal was evidence of job advertisements, for the purposes of both establishing comparative wage and also evidence of job advertisements for the nominated position being unsuccessful.[42]

    [38] PDF – from p.21; Tribunal – from folio 105.

    [39] PDF – from p.38.

    [40] PDF – from p.43.

    [41] PDF – from p.46.

    [42] Tribunal – from folio 132 (reverse side).

29. Based on the evidence, the Tribunal is satisfied the terms and conditions of employment applicable to the nominated position are 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 (Wolgan Valley, NSW 2970).  

30. Accordingly the requirements of r.5.19(4)(e) are met.

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

31. 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. 

32. The Tribunal has no evidence of adverse information known to Immigration about the nominator or person associated with the nominator.

33. Accordingly the requirements of r.5.19(4)(f) are met.

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

34. 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.

35. Based on the evidence before it, the Tribunal accepts 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.

36. 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)

37. 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:

    ·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.

38. In the nomination application form, the applicant advised that the nomination had not been certified by a Regional Certifying Body.[43] However, a (approved) RCB (Regional Development Australia, Central West[44]) dated 11 November 2019 was lodged.

    [43] PDF – p13.

    [44] Tribunal – from folio 52.

39. By migration agent letter dated 12/02/2020,[45] it was also stated “the company decided to nominate the nominee in March 2016 due to the resignation of a former Chef. Since then the nominee has been continuously working there as a full time Chef. That is, the nominee has been working with the nominator for almost four years full time now, which indicates a genuine need for the nominated position”.[46]  

    [45] Tribunal – from folio 56.

    [46] Tribunal – folio 67.

40. A job description for the Demi Chef was provided. That stated (in part):[47]

    ·     ensure the quality and standards as per the (business) are kept and followed

    ·     the handbook with the rules and responsibilities are followed strictly

    ·     ensuring all important information is communicated with the direct supervisor

    ·     all HA CC P standards are followed and improve consistently

    ·     all requests will be handled with care and accommodated where possible

    ·     maintain highest levels of personal hygiene and grooming at all times

    ·     assist the chefs to lead the team and the assigned areas

    ·     consistently train the subordinates, to ensure the standards are maintained

    ·     take charge of section in absence of senior chefs

    [47] Tribunal – folio 66.

41. As  indicated above, also lodged with the Tribunal was evidence of job advertisements, for the purposes of both establishing comparative wage and also evidence of job advertisements for the nominated position being unsuccessful.[48] A undated letter by the applicant stated that inter alia “a job advert for Demi Chef was placed on the Job search website from 1 August 2019 to 1 September 2019. During this time we received 36 applications. A range of reasons have occurred [and were set out] why these applicants were not successful”.[49] Amongst other things it was claimed:

    ·     some applicants did not have the relevant qualifications or enough work experience

    ·     they were only available to work a minimum amount of hours due to other commitments

    ·     family commitments

    ·     unable to work flexible hours including weekends

    ·     no experience in working in remote location

    [48] Tribunal – from folio 132 (reverse side).

    [49] Tribunal – folio 139.

42. Also lodged was a letter dated 6 February 2020, from the General Manager of the applicant, stating:

    The business has a very high turnover of staff due to the nature of the work and the location of the business, being remote. Back in March 2016 we decided to employ Ms Tharasrisuthi and sponsor her for a 187 visa due to the resignation of a former Chef. This application was unfortunately refused in November 2017 due to insufficient documents provided to the Immigration Department, namely Position Description, Employer Certification Form and RCB Advice. It also turned out that the RCB application was never lodged.

43. Based on the evidence before the Tribunal, I accept the position is located in regional Australia (Wolgan Valley, NSW 2970); that there is a genuine need to employ a paid employee to work in the position under the nominator’s direct control, that the position cannot be filled by an Australian citizen or permanent resident who is living in the same local area, that the tasks to be performed in the position (‘Commis Chef’ - ANZSCO: 351311) correspond to the tasks of an occupation specified by an instrument (IMMI 17/058); and that a RCB located in the same State (Regional Development Australia, Central West[50]) has advised the Minister (ie) the applicant satisfies criteria.

    [50] Tribunal – from folio 52.

44. Accordingly the requirements of r.5.19(4)(h) are met.

45. 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

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

    Mr S Norman
    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).