FOUR BIRDS DARWIN PTY LTD (Migration)

[2023] AATA 2258

FOUR BIRDS DARWIN PTY LTD (Migration) [2023] AATA 2258 (10 July 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  FOUR BIRDS DARWIN PTY LTD

REPRESENTATIVE:  Miss SAEMI SEON (MARN: 1679394)

CASE NUMBER:  1932529

HOME AFFAIRS REFERENCE(S):          BCC2018/1263539

MEMBER:George Hallwood

DATE:10 July 2023

PLACE OF DECISION:  Adelaide

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

Statement made on 10 July 2023 at 1:58pm

CATCHWORDS

MIGRATION – approval of a nomination – Direct Entry nomination stream – position of Cafe Manager – actively and lawfully operating a business in Australia – financial capacity to employ the nominee for at least two years – updated financial information – terms and conditions of employment no less favourable – genuine need – tasks of the position – decision under review set aside     

LEGISLATION

Migration Act 1958, s 245
Migration Regulations 1994, rr 1.13, 5.19, 5.37

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 28 October 2019 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).

2. The applicant applied for approval on 16 March 2018. 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).

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 reg 5.19(4)(b) of the Regulations because they were not satisfied that the applicant was actively and lawfully operating a business in Australia.

5. Mr Philip Elsegood appeared before the Tribunal on behalf of the applicant on 8 June 2023 to give evidence and present arguments. As this was a combined hearing the Tribunal also received oral evidence from Mr Jeehun Chang, the related nominee, and Mrs Sugyeong Kim, a member of the nominee’s family unit. 

6. The applicant was represented in relation to the review.

7. 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

8. 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 reg 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: reg 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 an identified person as a paid employee to work in the position under their direct control.

10. Based on the nomination application and supporting documents the Tribunal finds that the application for approval:

    ·     was made on the approved form and was accompanied by the fee prescribed in reg 5.37;

    ·     includes a written certification stating that the nominator has not engaged in conduct in relation to the nomination that contravenes s 245AR(1); and

    ·     identifies a need for the nominator to employ an identified person, Mr Chang, as a paid employee to work in the position, Café Manager, under the nominator’s direct control

11. Accordingly, the requirement in reg 5.19(4)(a) is met.

    Nominator is actively and lawfully operating a business in Australia: reg 5.19(4)(b)

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

13. The nominator is an Australian proprietary company limited by shares registered with ASIC. The applicant provided the Tribunal with an ASIC current and historical company extract showing that Four Birds Darwin Pty Ltd with the ABN 53621654386 was registered on 12 September 2017 and the next review is not due until 12 September 2023. Mr Elsegood is recorded as the sole director of the nominator currently.

14. The nomination application dated 16 March 2018 lists the nominator as Four Birds Darwin Pty Ltd with the ABN 53621654386 trading as Cyclone Café.

15. The applicant provided the Tribunal with a Record of Registration of the business name ‘Cyclone Café’ with a registration date of 20 April 2023. Mr Elsegood explained, and the Tribunal is satisfied, that a prior owner of the business had not registered the name and that as soon as he discovered this error, he re-registered the business name. Mr Elsegood took over the business and directorship in February 2019 as a walk-in walk-out sale and the business never stopped operating.

16. The applicant also provided to the Tribunal copies of financial statements, tax returns and business activity statements demonstrating business activity and payment of taxes.

17. Based on the evidence before the Tribunal I am satisfied that the nominator is actively and lawfully operating a business in Australia and that they are directly operating that business.

18. Accordingly, the requirement in reg 5.19(4)(b) is met.

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

19. 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. 

20. Mr Elsegood told the Tribunal that the nominator’s business activities do not include activities relating to the hiring of labour to unrelated businesses. There is no evidence before the Tribunal that the nominator is involved in labour hire activities.

21. Accordingly, the requirement in reg 5.19(4)(c) is met.

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

22. 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. 

23. Post hearing the applicant provided the Tribunal with an Employment Contract dated 13 June 2023. The employment contract in the form of correspondence confirming employment between the applicant and the nominee dated 19 April 2023 states:

    The parties agree that the employee will be employed by Four Birds Darwin Pty Ltd
    t/a The Cyclone Cafe in the position of Cafe Manager (ANZSCO 141111) commencing within 1 week of the grant of Subclass 187 Visa application. This position is full-time and ongoing for at least 2 years.

24. The Tribunal is satisfied that the terms and conditions of that employment do not expressly exclude the possibility of an extension.

25. Mr Elsegood told the Tribunal that the nominee would be employed in the nominated position for at least 2 years full time.

26. Accordingly, the requirement in reg 5.19(4)(d) is met.

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

27. 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.

28. The Organisation Chart provided to the Tribunal shows that there is only one Café Manager position within the nominator’s business, the one that is the subject of this application.

29. The nomination application identifies that the base rate of pay of $50,000 had been determined by reference to Job Outlook and Payscale average [salary] figures. More recent information from the applicant refers to the Restaurant Industry Award 2020 level 5 receives $53,391.52 per annum.

30. The employment contract provides for a salary of $65,000 plus superannuation. The contract also includes a standard set of terms and conditions in accordance with Australian Workplace Laws.

31. For these reasons the Tribunal is satisfied 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.

32. Accordingly, the requirements of reg 5.19(4)(e) are met.

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

33. 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 regs 1.13A and 1.13B.

34. At the hearing Mr Elsegood told the Tribunal that the applicant or a person associated with the applicant had not contravened a Commonwealth, State or Territory law, and is not, as far as he is aware, subject to investigation or action for any such contravention. He also told the Tribunal that the applicant or a person associated with the applicant had not become insolvent, nor given or caused to be given false or misleading information or a bogus document.

35. There is nothing before the Tribunal that suggests there is adverse information known to Immigration about the nominator or a person associated with the nominator.

36. Accordingly, the requirements of reg 5.19(4)(f) are met.

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

37. 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.

38. Mr Elsegood told the Tribunal that the applicant has a satisfactory record of compliance with workplace relations laws.

39. There is nothing before the Tribunal that suggests the applicant has not complied with workplace relations laws in locations in which it operates and employs staff.

40. Accordingly, the requirements of reg 5.19(4)(g) are met.

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

41. 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 (see legislative instrument IMMI 18/043), the occupation is applicable to the proposed employee in accordance with any specifications made in that instrument, there is a genuine need for the nominee to be employed as a paid employee in the position, and certain specified training requirements are met; or

    ·the position and nominator’s business is located in regional Australia, there is a genuine need for the nominee to be employed as a paid employee in the position under the nominator’s direct control, the position 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.

42. The nomination application states that the position and business are located in Northern Territory. The instrument IMMI 17/059 sets out the postcodes that the Minister has identified as in regional Australia. All of the postcodes in Northern Territory are specified in the instrument. Therefore, the Tribunal finds that the position and business is located in ‘regional Australia’.

43. Mr Elsegood described the business as operating five and a half days a week and serving up to 200 customers a day. The organisation chart provided indicates there are 12 people working for the business including the owner and the Café Manager position.

44. The applicant provided evidence of advertising for the position to be filled through Career One. Mr Elsegood told the Tribunal that it was very difficult to find anybody with suitable qualifications and experience to fill such positions in Northern Territory. The Regional Certifying Body declared that they were satisfied on 2 May 2018 that the nominated position cannot be filled by an Australian citizen or permanent resident who is living in the same local area. For these reasons the Tribunal finds that the nominated position cannot be filled by an Australian citizen or permanent resident who is living in the same local area.

45. The instrument 17/058 specifies the occupation Café or Restaurant Manager – 141111. The tasks set out in the position description provided by the applicant correspond with the tasks identified for the occupation in ANZSCO and with the broad description of the level 5 position in the Award. For these reasons the Tribunal is satisfied that the tasks to be performed in the position correspond to the tasks of an occupation specified by instrument.

46. The instrument IMMI 17/059 sets out the relevant Regional Certifying Body for each State and Territory. On 2 May 2018 the Regional Certifying Body for Northern Territory advised the Minister in relation to the required matters relating to the position.

47. Accordingly, the requirements of reg 5.19(4)(h) are met.

    CONCLUDING PARAGRAPH

48. Based on the findings above, the Tribunal is satisfied that the applicant meets the requirements of reg 5.19 for approval of the nomination of the position in Australia.

    DECISION

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

    George Hallwood
    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).