FN 63 Pigs PTY LTD (Migration) - [2017] AATA 664

FN 63 Pigs PTY LTD (Migration) [2017] AATA 664 (27 April 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  FN 63 Pigs PTY LTD
CASE NUMBER:  1606228
DIBP REFERENCE(S):  BCC2015/2611895
MEMBER:Glen Cranwell
DATE:27 April 2017
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Statement made on 27 April 2017 at 2:59pm
CATCHWORDS
Migration – Approval of nominated positions (employer nomination) – Direct Entry nomination stream – Genuine need for paid employee – Café or Restaurant Manager Identified need for paid employee – Position located in regional Australia

LEGISLATION
Migration Regulations 1994, r 5.19

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 13 April 2016 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 8 September 2015. 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 Direct Entry Nomination stream.
The delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19(4)(a)(ii) of the Regulations.
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 must identify a need for the nominator to employ a paid employee to work in the position under their direct control. The evidence before the Tribunal is that that the application for approval was made on the approved form and was accompanied by the prescribed fee.
The applicant operates a Hogs Breath restaurant in Mooloolaba, and the nominated occupation is that of Café or Restaurant Manager. The nominee has held this position during the 19 months since the nomination application was lodged. The applicant’s business operates at least 84 hours per week, and accordingly a minimum…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2017] AATA 664
Decision Date: 27 April 2017

CaseChat Overview and Summary

The matter before the Tribunal concerned an application by FN 63 Pigs PTY LTD for the approval of a nominated position under the Direct Entry stream of the employer nomination provisions. The applicant operates a Hogs Breath restaurant in Mooloolaba and had nominated a Café or Restaurant Manager. The core dispute revolved around whether the applicant met all the requirements stipulated in regulation 5.19(4) of the Migration Regulations 1994 for the approval of this nomination.

The Tribunal was required to determine if the applicant satisfied each of the criteria set out in regulation 5.19(4). These included whether the application identified a genuine need for a paid employee under the nominator's direct control, if the nominator was actively and lawfully operating a business in Australia, and if the nominated position was not a labour-hire arrangement. Further, the Tribunal had to assess whether the proposed employment term met the minimum duration and allowed for extension, if the terms and conditions of employment were no less favourable than those offered to Australian citizens or permanent residents, and if there was no adverse information known to Immigration concerning the nominator or associated persons. Finally, the Tribunal needed to consider the nominator's compliance with workplace relations laws and whether the tasks of the position met the genuine need and training benchmark requirements, particularly in light of the position being located in regional Australia.

In its reasoning, the Tribunal systematically addressed each subregulation of 5.19(4). It found that the application was in the approved form and fee, and that the business's operating hours necessitated at least two restaurant managers, thus establishing a genuine need. The Tribunal accepted that the applicant was actively and lawfully operating a business and that the position was not a labour-hire arrangement. The provided employment contract confirmed a full-time position for at least two years with no exclusion of extension. Regarding remuneration, the Tribunal considered salary data from various sources, concluding that the proposed salary of $53,500 per year was no less favourable than that provided to equivalent Australian workers. The Tribunal also noted the absence of adverse information and satisfactory compliance with workplace relations laws. Crucially, under regulation 5.19(4)(h)(ii), the Tribunal found that the position was located in regional Australia, there was a genuine need for the paid employee, and it could not be filled by a local Australian citizen or permanent resident, satisfying the alternative criteria for regional nominations.

Consequently, the Tribunal set aside the original decision and substituted a decision approving the nomination.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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 must identify a need for the nominator to employ a paid employee to work in the position under their direct control. The evidence before the Tribunal is that that the application for approval was made on the approved form and was accompanied by the prescribed fee. The applicant operates a Hogs Breath restaurant in Mooloolaba, and the nominated occupation is that of Café or Restaurant Manager. The nominee has held this position during the 19 months since the nomination application was lodged. The applicant’s business operates at least 84 hours per week, and accordingly a minimum of 2 restaurant managers are required. In the circumstances, the Tribunal accepts that the nominator has identified a need to employ a paid employee to work in the position under its 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) The evidence before the Tribunal indicates that the applicant is operating a commercial cleaning business. The Tribunal finds that the applicant is actively and lawfully operating a business in Australia and directly operates that business. The requirement in r.5.19(4)(b) is thus 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 nothing before the Tribunal to indicate that the applicant is involved in hiring of labour to other unrelated businesses. 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 extension of the employment. The applicant provided the Tribunal with a contract of employment. This specifies that the position is full-time for a period of 2 years with no exclusion of the possibility of extension. Accordingly, the requirement in r.5.19(4)(d) 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.

Decision

Reasons for decision

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.Glen CranwellMemberATTACHMENT - EXTRACTS FROM THE MIGRATION REGULATIONS 19945.19Approval of nominated positions (employer nomination)…(2)The application must:(a)be made in accordance with approved form 1395…; 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;(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;(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).

Ratio Decidendi

Legal Principle Established

The contract provided to the Tribunal indicates that applicant would be paid $53,500 per year. The Tribunal was also provided with reports from Payscale and Open Universities showing the range of salaries paid to Restaurant Managers as being between $48,805 and $65,437, and $47,500 and $75,000 (respectively). Information was also provided that the average salary paid to Hogs Breath restaurant managers was $51,377. The Tribunal considers that the terms and conditions of employment applicable to the nominated position will be no less favourable than those that are 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 adverse information known to Immigration about the nominator or a person ‘associated with’ the nominator. For these purposes, ‘adverse information’ and ‘associated with’ have the meaning given in r.2.57 (2) and (3): r.5.19(7). In this case, there is no known adverse information relevant to the applicant or a person associated with the applicant within the meaning of r.2.57(2) or (3). 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 to indicate that the applicant does not have a satisfactory record of compliance with workplace relations laws in the locations in which it operates a business and employs staff. In the circumstances, the requirements of r.5.19(4)(g) are met.Tasks of the position genuine need for the position and training benchmarks 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:· the tasks to be performed in the position will be performed in Australia and correspond to those of an occupation specified by the Minister, and certain specified training benchmarks will be 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 at the ANZCO skill level 1, 2 or 3; and that a regional certifying body has advised the Minister about certain matters relating to the position.