Flames (Aust) Pty Ltd (Migration)

Flames (Aust) Pty Ltd (Migration) [2018] AATA 1990 (24 May 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Flames (Aust) Pty Ltd
CASE NUMBER:  1707981
DIBP REFERENCE(S):  BCC2016/1303265
MEMBER:Karen McNamara
DATE:24 May 2018
PLACE OF DECISION:  Sydney
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Statement made on 24 May 2018 at 2:50pm
CATCHWORDS
Migration – Approval of nominated positions (employer nomination) – Nominated occupation – Chef – Need for a paid employee – Experience in the role – Financial statements – Contract of employment – Tasks of position – Regional Development Australia’s advice – Attempts to fill position locally – Decision under review set aside
LEGISLATION
Migration Act 1958, s 245AR
Migration Regulations 1994, rr 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 Immigration on 29 March 2017 to reject the application by Flames (Aust) Pty Ltd ( the applicant) 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 29 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).
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)(d)(i) of the Regulations because the delegate was not satisfied that the applicant demonstrated that the employee will be employed on a full time basis in the position for at least two years.
Background
On the 29 March 2016, the applicant lodged an application for an employer nomination approval for the position of Chef – ANZSCO 351311 under the Direct Entry stream. The proposed salary is $55,000 plus superannuation ($60,225 inclusive salary).
When considering the application, the delegate took into account the following:
·The business is trading as Tandoori Flames Indian Restaurant and commenced operating on 24 February 2015.
·The business supplied Business Activity Statements for the July to September 2015 period. The BAS provided was not shown as lodged with the ATO (at the time) and the delegate gave little weight as it was unverified. Also included in the application were business plans, a copy of the lease agreement, Director’s statement and profit and loss projections for the time of application up to and including 2018.
·The business had not provided a letter from their accountant attesting to the financial position of the business and its capacity to meet all employment obligations in regards to employing the nominee for a period of at least two years. The business did not provide a BAS or income tax return lodged with the Australian Taxation Office. The business did not provide a profit and loss statement beyond that provided for the July to September period of 2015, nor did they provide a balance sheet to verify income and expenditure. The business did not advise the Department of any liquefiable assets which may be utilised to cover the cost of salary for the proposed position.
·Whilst the delegate accepted the Director’s statement made in relation to the position has been made in good faith, the delegate was unable to give this great weight as it was not supported by externally verifiable documents.
Based on these considerations and the evidence provided by the applicant, the delegate was not satisfied that the applicant had demonstrated the financial capacity of the business to employ the nominee on a full time basis in the position for at least two years and therefore did not meet the criteria specified under Reg. 5.19(4) (D) (i) and refused the application
Information to the Tribunal
The applicant applied to the Tribunal on 12 April 2017 for review of the delegate’s decision.
On the 14 February 2018, the Tribunal wrote to the applicant pursuant to section 359(2) of the Act (dispatched by email to the authorised recipient), requesting the applicant to provide updated and current information that would assist to determine whether the criteria in r. 5.19(2) & (4) of the Regulations were met.
10.On the 6 March 2018 by email the applicant’s authorised representative provided further information to the Tribunal
11.Information provided included:
·PAYG 30 June 2016 –Mr Rajiv Walia
·PAYG 30 June 2016- Rajan Walia
·Numerous documents pertaining to Hannah (Aust) Pty Ltd ACN 605 168 670
·Business Activity Statements:
o25 February 2015 to 31 March 2015
oApril 2015 to June 2015
oJuly 2015 to September 2015
oOctober 2015 to Dec 2015
oJanuary 2016 to March 2016
oApril 2016 to June 2016
oJuly 2016 to September 2016
oOctober 2016 to December 2016
oJanuary 2017 to March 2017
oApril 2017 to June 2017
oJuly 2017 to September 2017
oOctober 2017 to December 2017
·Covering letter CB TAX dated 4 April 2017
·Financial Statements 30 June 2016, 30 June 2017
·Payslips Rajiv Walia 24/08/15 to 11/02/2018
·St George Bank Account transaction Listing 18/05/2016 to 4/04/2017
·Employment Contract dated 1 March 2016
·Letter Parish Patience Immigration Lawyers dated 5 April 2017
·Position Description- Restaurant Chef
·Payroll Activity summary 1/07/2016 to 31/03/2017
·Payroll Activity summary 1/07/2015 to 30/06/2016
·PAYG Kaur Kiranjit 30 June 2016
·PAYG Sumanish Kaur 30 June 2016
·Superannuation Payments date of lodgement 30/06/2016
·PAYG 30 June 2016 Poonam Walia handwritten unsubmitted
·Letter Parish Patience Immigration Lawyers dated 24 April 2017
·Letter via email to Tribunal from Parish Patience Immigration Lawyers dated 22 May 2017 with attachments
·Job advertisement Gumtree
·Tax Invoice SEEK limited 8 December 2017
·Letters dated 15 February 2017 from Poonam Walia version 1 and version 2
·Job advertisement and responses
·RCB advice 23/03/16
·Job Outlook Chef
·SEEK job advertisements
·PayScale Chef
·Orgnisational Chart
·Electricty Invoices
·Menu
·Receipts -Patel Trading
·Letter from CBTAX - Registered Tax Agent & Accountant 15/02/2018
·Rent payments
·Statements B&E Foods for supplies
·Lease documentation
·ASIC extracts
·Letter via email to Tribunal from Parish Patience Immigration Lawyers dated 22 February 2018 –with attachments
At hearing the applicant provided Newspaper articles relating to the Central Coast food industry.
Additional information was supplied following hearing including;
·Letter from CBTAX Accountant dated 26 April 2018 re: financial compliance
·Letter from CBTAX Accountant dated 26 April 2018 re: summary of superannuation payments to employees.
·Tax lodgements for Financial years 2016 and 2017
·Financial Statements Financial years 2016 and 2017
·Company bank statements 11 October 2015 to December 2017
·Tax returns and notice of assessments Mr Rajiv Walia for financial years 2016 and 2017.
Mrs Poonam Walia Director and owner appeared before the Tribunal on 24 April 2018 to give evidence and present arguments on behalf of the applicant. The Tribunal also received oral evidence from Mr. Rajiv Walia. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages. Both Mrs Poonam Walia and Mr Rajiv Walia chose not to utilise the services of the interpreter.
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.
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.
Based on the material in the Department’s file, the Tribunal is satisfied that the application was made on the approved form. As the position is located in regional Australia, no fee is payable (r5.37(2)(a)). The application also included written certification relating to conduct that contravenes s.245AR(1) of the Act, declared and signed by the applicant. Accordingly the requirements of r.5.19(4)(a)(i) are met.
In considering whether the application for approval identifies a need for the nominator to employ a paid employee to work in the position under the nominator’s direct control, the Tribunal has had regard to the evidence before it, including written submissions and the oral evidence received at the hearing by Mrs Poonam Walia and Mr Rajiv Walia.
The Tribunal accepts on the evidence before it that the nominator operates an Indian Cuisine restaurant in Wyong on the NSW Central Coast. The business’ annual turnover for the 2016/17 financial year was $220,455 with a net profit of $5,398; it employs 6 staff, including 2 fulltime and 4 part time with salary expense of $87,461 and superannuation $8,048.
Mrs Walia gave evidence at the hearing that she purchased the existing business for what she described as a reasonable price in May 2015. Initially she was working in the business full time as the Chef but this became more difficult for her as she has a young child and owns another business (a childcare centre in Western Sydney). She told the Tribunal of the difficulties she has experienced in recruiting qualified and experienced staff to work in an Indian restaurant located in Wyong on the NSW Central Coast.
Mr Rajiv Walia was working part time in her business from August 2015 to August 2016. Mrs Walia advertised for a fulltime Chef in SEEK and the Local newspaper (Central Coast Express Advocate). Mrs Walia told the Tribunal that the response to the advertisements was disappointing with not many applicants having experience in Indian cuisine. Mrs Walia said that this is a specialised cooking type and she needed someone with experience in this type of cuisine. She said that she got some responses but the majority of applicants with experience were based overseas looking for sponsorship.
Mrs Walia when asked by the Tribunal if she was related to Mr Rajiv Walia, told the Tribunal that he was her brother. She told the Tribunal that she employed him on the basis that after failing to find a suitable applicant, because he is experienced and qualified as an Indian Chef and that as children they grew up in their parent’s restaurant business in India, which exposed both her and Mr Walia to the industry. Mr Walia has been in his sister’s employ fulltime as the sole Chef for the business for the last 2 ½ years.
Mrs Walia told the Tribunal that she is totally reliant on Mr Rajiv Walia to perform the role as Chef as the business only has one position responsible for preparing meals. Without him, she is of the view the business would struggle, as she is no longer able to work fulltime as the Chef.
On the totality of evidence before it, the Tribunal is satisfied that the application has identified a need for the nominator to employ a paid employee to work in the position under the nominator’s direct control. Accordingly, the requirement in r.5.19(4)(a) (ii) are met.
As the criteria in both r.5.19(4)(a)(i) and (ii) are satisfied, accordingly the requirements in r.5.19(4)(a) are met.
Nominator is actively and lawfully operating a business in Australia: r.5.19(4)(b)
Regulation 5.19(4)(b) requires the applicant is actively, lawfully and directly operating a business in Australia.
Based on the material provided to the Tribunal, including, financial statements, Business Activity Statements, ASIC Company details, payroll advice and evidence from Mrs Poonam Walia about the operations of the business, the Tribunal is satisfied the applicant is actively and lawfully operating an Indian restaurant business in Australia and directly operates that business.
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.
There is no evidence before the Tribunal to suggest that the applicant’s business is involved in labour hire.
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 notes the delegate was not satisfied that this subparagraph was met, as the applicant had not demonstrated the business’ financial capacity to employ the nominee on a full time basis in the position for at least two years.
The Tribunal has had the benefit of updated financial information plus receiving oral evidence from Mrs Poonam Walia and Mr Rajiv Walia.
The Tribunal examined the financial information submitted by the applicant. The financial documentation confirmed that Mr Walia has been employed by the business since August 2015. Mr Walia’s Notice of Assessment from the ATO for the 2016/17 financial year and the business’ bank statements, support payment of the nominated salary since his full time employment in August 2016. Financial statements including evidence of BAS submitted to the ATO lodged via the ATO portal support the financial statements supplied by the applicant’s accountant Horton Associates for the 2016/17 financial period.
The Tribunal is satisfied the applicant can afford to pay a salary of $55,000 per annum to the nominee and is satisfied that the nominee will be employed on a full time basis in the position for at least 2 years. Accordingly, the requirement in r.5.19(4)(d)(i) is met.
The Tribunal has had regard to the signed Contract of Employment dated 1 March 2016, which sets out the terms and conditions of the nominee’s employment. The contract stipulates that the position is full time and will continue until terminated in accordance with the agreement. Accordingly, the requirement in r.5.19(4)(ii) is met.
As the criteria in both r.5.19(4)(d)(i) and (ii) are satisfied, accordingly the requirements in r.5.19(4)(d) are 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 contract of employment dated 1 March 2016 sets out the terms and conditions of employment and indicates that the nominee’s salary is $55,000 per annum excluding superannuation. The Tribunal has received recent payslips and copies of Mr Walia’s redacted bank statements and his 2016/17 ATO Notice of Assessment, confirming that the nominee is being paid in accordance with the terms of employment.
The Tribunal has also received documents regarding the rate of pay that would be provided to an equivalent worker including Payscale, (which indicates that the salary for Chefs in Australia is between $$49,183 and $79,745 with the average being $55,000 for experience commensurate with Mr Walia’s). A number of job vacancy advertisements were also provided for Chef positions located within the Central Coast region, indicating the salary is between $50,000 and $69,999.
The Tribunal also notes that on Form 1404 dated 23 June 2016, the relevant Regional Certifying Body, Regional Development Australia (Central Coast), has indicated they are satisfied that the terms and conditions of employment are no less favourable.
The Tribunal is satisfied on the totality of the evidence before it that the terms and condition applicable to the 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 evidence before the Tribunal to indicate that there is adverse information known to the Department about the applicant 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 indicates the applicant does not have a satisfactory record of compliance with the relevant Commonwealth and Territory 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, 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 evidence before the Tribunal indicates that the applicant’s business, which is operated by the applicant, and the position are located in Wyong, NSW 2259, which is a postcode specified in the relevant instrument as being in regional Australia, accordingly r.5.19(4)(h)(ii)(A) and (E) are met.
The Tribunal next considered whether there is a genuine need for the applicant to employ a Chef and for the tasks of that position. The evidence before the Tribunal indicates the applicant is the owner of an Indian cuisine restaurant located in Wyong on the NSW Central Coast. Mrs Walia gave evidence that the position of Chef is critical to the success of the business’ operations and viability in that Mr Walia is the only Chef employed in the business. Mrs Walia told the Tribunal tha she has advertised on numerous occasions to fill the position and decided to offer the position to her brother as she is confident of his ability and experience as a Chef and that she can rely on him to manage the kitchen operations on her behalf. The nominee has been employed full time in the position of Chef since August 2016 and remains to present in this position.
The Tribunal is satisfied that there is a genuine need for a paid employee to work in the position of Chef under the nominator’s control. The Tribunal is also satisfied that the tasks of the position to be performed correspond to the tasks of an occupation specified by the Minister in an instrument in writing for this sub-subparagraph. IMMI 17/059 provides that Chef is a specified occupation for the purposes of r.5.19(4)(h)(ii)(D). Chef with ANZSCO code 351311 is found in Schedule 1 of this Instrument. Accordingly the requirements of r.5.19(4)(h)(ii) (B) and (D) are met.
The Tribunal is satisfied that the material and evidence provided supports the applicant’s claims that they have made efforts to fill the position locally but have had considerable difficulty doing so. The Tribunal also gives weight to the RCB’s advice that the position cannot be filled locally. On the evidence, the Tribunal is satisfied that the position cannot be filled by an Australian citizen/permanent resident living in the same local area. Accordingly, the requirements of r.5.19(4)(h)(ii)(C) are met.
The Tribunal has received the completed form 1404 dated 23 March 2016 from the relevant RCB, Regional Development Australia, Central Coast, indicating that they are satisfied regarding the matters specified in paragraph (e) and sub subparagraphs (B) and (C). On this basis, the Tribunal is satisfied that r.5.19(4)(h)(ii)(F) is met.
Given the above, the Tribunal finds that the requirements of r.5.19(4)(h)(ii) are met and accordingly r.5.19(4)(h) is met as a whole.
Conclusion
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.
Karen McNamara
Member

ATTACHMENT - EXTRACTS FROM THE MIGRATION REGULATIONS 1994
5.19     Approval 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).

[2018] AATA 1990

24 May 2018

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Statutory Construction

Procedural Fairness

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Appeal