Food and Beverages Enterprises Pty Ltd (Migration)

[2021] AATA 2788

Food and Beverages Enterprises Pty Ltd (Migration) [2021] AATA 2788 (11 June 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Food and Beverages Enterprises Pty Ltd

CASE NUMBER:  1816529

HOME AFFAIRS REFERENCE(S):          BCC2016/3370870

MEMBER:Mark O'Loughlin

DATE:11 June 2021

PLACE OF DECISION:  Adelaide

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

Statement made on 11 June 2021 at 1:54pm

CATCHWORDS

MIGRATION – Employer Nomination – approval of nominated position – Direct Entry Nomination – Café or Restaurant Manager – identification of need – genuine need – decision under review set aside

LEGISLATION
Migration Regulations 1994 (Cth), r 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 Home Affairs on 21 May 2018 to reject the applicant’s application for approval of the nomination of a position in Australia under r.5.19 of the Migration Regulations 1994 (the Regulations).

2. The applicant applied for approval on 11 October 2016. The requirements for the approval of the nomination of a position in Australia are found in r.5.19 of the Regulations which contains two alternative streams: a Temporary Residence Transition nomination stream (r.5.19(3)) and a Direct Entry nomination stream (r.5.19(4)). If the application is made in accordance with r.5.19(2) and meets the requirements of either stream, then the application must be approved. If any of the requirements are not met then the application must be refused: r.5.19(5).

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)(ii)] of the Regulations because the delegate was not satisfied that the nomination identifies the need for a paid employee to work in the position under the direct control of the nominator.

5. On considering the delegate’s decision, the Tribunal observes that the delegate’s reasoning appears to be directed to the question of whether such a need actually exists rather than whether such a need is identified in the application for approval of the nomination.  That being the case the Tribunal takes the view that the dispositive issue would be more accurately referred to as that contained in f.5.19(4)(h)(ii)(B).

6. The Tribunal has therefore treated that as the dispositive issue for the purposes of this decision.

7. The applicant was represented before the Tribunal by Mr. Harry Sou, the applicant’s director, secretary and shareholder.  He appeared at the hearing on 8 February 2021 to give evidence and present arguments. The Tribunal also received oral evidence from Ms Boyun Hwang.  

8. The applicant was represented in relation to the review by its registered migration agent. The representative attended the Tribunal hearing.

9. 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

10. 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)

11. 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.

12. The Tribunal has regard to the documents provided to it by the Tribunal and finds that the application was made on the approved form 1395 (Internet), and was accompanied by the fee prescribed in r.5.37; that it includes a written certification stating whether the nominator has engaged in conduct in relation to the nomination that contravenes s. 245AR(1); and identifies a need for the nominator to employ a paid employee to work in the position under the nominator’s direct control.

13. 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)

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

15. The Tribunal has regard to the evidence of Mr. Sou and finds that the applicant is actively, lawfully and directly operating a business in Australia.

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

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

17. 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. 

18. There is no evidence before the Tribunal that the nominator’s business activities include those contemplated.

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

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

20. 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.

21. The Tribunal has regard to the copy of the employment contract provided to it and observes that it is for a minimum term of 2 years and does not exclude the possibility of an extension.

22. The Tribunal further has regard to the evidence of Mr. Sou that he has no intention of terminating the nominee’s employment and indeed after the hearing he provided a statement that suggested that his health is declining slightly to the point that he expects her to be an even more important employee.

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

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

24. 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.

25. The Tribunal accepts the evidence of Mr Sou that there are no Australian citizens or permanent residents employed in comparable positions in his business.

26. The Tribunal further accepts that the nominee is employed on terms set by a relevant Australian award.

27. The Tribunal is satisfied that the terms and conditions applicable to the position are 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.

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

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

29. Regulation 5.19(4)(f) requires that there is no adverse information known to Immigration

30. 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. 

31. There is no evidence of relevant adverse information.

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

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

33. 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.

34. There is no evidence that the applicant’s record of compliance with the relevant laws is not satisfactory.

35. Accordingly, the requirements of r.5.19(4)(g) are met.

    Tasks of the position, the genuine need for the position and training requirements r.5.19(4)(h)

36. 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.

37. The position and business is located in Cairns Queensland which is in “regional Australia for the purposes of the regulation.

38. The Tribunal has regard to the evidence of Mr. Sou and is satisfied that there is a genuine need to employ a paid employee to work in the position under the nominator’s direct control.

39. The Tribunal has regard to the evidence of advertising undertaken in an effort to fill the position, evidence of Mr. Sou about the applicants who responded to that advertising, to evidence provided of articles in the local newspaper about the difficulty of finding employees with the nominee’s skills and is satisfied that the position cannot be filled by an Australian citizen or permanent resident who is living in the same local area.

40. The Tribunal has had regard to the evidence that has been provided about the duties performed by the nominee and to the relevant ANZCO definition 141111 relating to the position of Café or Restaurant Manager and is satisfied that the tasks to be performed in the position correspond adequately.

41. There is no evidence that the nominee is obliged to meet any additional applicability requirements to work in the position.

42. The Tribunal has been provided with a copy of a relevant advice from the Chamber of Commerce and Industry Queensland located in Cairns.

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

44. 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

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

    Mark O'Loughlin
    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).