GAURISH PTY LTD (Migration)

[2022] AATA 334

GAURISH PTY LTD (Migration) [2022] AATA 334 (3 February 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  GAURISH PTY LTD

REPRESENTATIVE:  Ms Karyn Anderson (MARN: 9685990)

CASE NUMBER:  1900700

HOME AFFAIRS REFERENCE(S):          BCC2018/1064536

MEMBER:Deputy President J.L Redfern PSM

DATE OF ORAL DECISION:  3 February 2022

DATE OF WRITTEN STATEMENT:         17 February 2022

PLACE OF DECISION:  Sydney

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

Statement made on 17 February 2022 at 10:05am

CATCHWORDS:

MIGRATION – Employer Nomination Scheme – Direct Entry stream – Restaurant Manager –whether the terms and conditions of employment for the applicant are no less favourable than the terms and conditions that apply to an Australian citizen or permanent resident – previous 6 month bar as a sponsor – consideration of whether it is reasonable to disregard this adverse information – whether the applicant has satisfactory compliance with Commonwealth and State workplace relation laws – whether there is a genuine need for the position of Restaurant Manager – decision under review set aside

LEGISLATION:

Migration Act 1958 (Cth), s 245AR
Migration Regulations 1994 (Cth), reg 5.19

SECONDARY MATERIALS:

Department of Home Affairs, PAM – Sponsorship applicable to Division 3A of Part 2 of the Act
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 December 2018 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 6 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. The approval sought is for the position of a Restaurant Manager and the person nominated is Mr Darshan Maheshkumar Nayak. In December 2016 and March 2018, Gaurish sought approval for two positions for Cooks and the persons nominated were Mr Parwinder Singh Pannu and Mr Aakash Chhabra respectively. All applications for approval were considered by the same delegate. The reasons for the refusal of the applications are in similar terms and were refused on the same date. Accordingly, all applications for review (and the related visa refusals) were considered by me following concurrent hearings, with consolidated submissions and evidence provided in support of the various applications.

4. The Tribunal gave its decision on the review at the conclusion of the hearing held on 3 February 2022. The following are the reasons for that decision, I decided to set aside the decision under review and substitute a decision approving the nomination. Given the similarities between the three nomination cases, my written reasons are necessarily similar and duplicate much of the evidence which was common to each application.

   BACKGROUND AND PROCEDURAL ISSUES

5. The delegate refused the application on the basis that Gaurish’s nomination did not satisfy reg 5.19 of the Regulations. Relevantly, the delegate was not satisfied that Gaurish had demonstrated it had a satisfactory record of compliance with the laws of the Commonwealth relating to workplace relations.

6. It is apparent from a review of the three nomination files that even though the nomination for the role of Mr Pannu was made in December 2016 (the Pannu nomination), the Department did not appear to commence processing the application until about August 2018, when it wrote to Gaurish raising issues of concern identified as ‘adverse information’.

7. While the letter was written to Gaurish in the course of processing the Pannu nomination, it is apparent the Department had broader concerns about all pending nomination applications lodged by Gaurish. The concerns raised related to the resignation of three permanent visa holders, each within a year from the date of the grant of their visas, and questions were raised about the whether the nomination applications relating to Mr Pannu on 2 December 2016 and Mr Aakash Chhabra and Mr Darshan Nayak on 14 and 6 March 2018 respectively complied with nomination requirements. By letter dated 9 August 2018, the Department invited Gaurish to comment on the adverse information.

8. The thrust of the information in relation to Mr Pannu was that Gaurish had provided a copy of the resignation from Surinder Singh dated 22 November 2016, effective from 28 February 2017. Mr Surinder Singh was a cook who was employed and sponsored by Gaurish, who had obtained his permanent residency visa on 28 August 2016.  The delegate noted that the employment contract for Mr Pannu was signed on 9 November 2016 which was before the resignation of Mr Singh. Mr Navish Kumar, the managing director of Gaurish, responded in writing dated 6 September 2018 to the effect Mr Surinder Singh had approached him earlier to advise about his personal issues and that he wanted to resign. Mr Kumar stated in his letter that he had “no other option than to let him go” but advised that he asked Mr Surinder Singh to stay as long as he could so that they could find a suitable replacement. It is not stated in the response when Mr Surinder Singh first advised Mr Kumar of his intention to resign but in the letter of response it is noted that Gaurish advertised for the role in the local paper in October 2016. According to the letter of response, Mr Pannu approached Mr Kumar about various options and this apparently led to the nomination application and the letter of offer. What is not explained in the response but later emerged from the evidence at the hearing before the Tribunal is that Mr Pannu could not take up the position at that time because of his commitments to another cafe. Mr Kumar explained in the letter that because of the shortages in staffing and the delays in Mr Pannu joining, he then was required to work as a cook in the kitchen to cover the work and arranged a few casual staff to assist him.

9. In relation to Mr Chhabra, the delegate noted that the application for the nomination cited the need for another cook because of the resignation of Mr Manpreet Singh. Mr Kumar responded that Mr Singh resigned in July 2017 and that because his position had become vacant, which was offered to Mr Chhabra, again after an advertising recruitment process.

10. The concern raised in relation to Mr Nayak was that his position became available due to the resignation of Parampreet Singh. The delegate raised concerns about the fact that Surinder Singh’s visa was granted on 29 August 2016, yet he resigned within three months, on 22 November 2016. The delegate also noted that Mr Parampreet Singh’s visa was granted on 20 June 2017, yet he ceased employment on 1 March 2018. The delegate noted the similarities between the resignation letters.

11. The concern raised in the letter of 9 August 2018 was that Gaurish had “provided the Department on more than one occasion with information that is either false and misleading, which brings into question its suitability to be a nominator under the employer-sponsored permanent visa programs”.

12. In my view, these matters alone would not compel such conclusion, although on their face the delegate’s concerns have some basis and require explanation. At the hearing before the Tribunal and in written statements, Mr Kumar and each of the visa applicants provided detailed explanations about these matters which is dealt with later in my reasons.

13. In his letter of response Mr Kumar also stated that he has a folder on his computer with a record of all resumes and resignations letters and he probably provided a resignation letter as a sample or a template for his employees to use. This is plausible and would not seem to be an unusual or improper practice.

14. Mr Kumar also responded to the following effect:

    I would like to request the officer to understand how hard it is to find staff in regional area (sic) as most of the people like to stay in big cities. Once they get their PR under subclass 186 visa, sometimes they tend to leave for personal reasons. I speak to them about the requirement to stay for two years and longer. However, at times, they do not feel bound to the position and I become helpless. I understand that for RSMS visa, I can contact the Department if someone leaves early.

    I had a difficult experience in the past… You can’t force the employee to stay back in those circumstances. Since that time I can only request 186 visa holders to stay, I can’t force them to stay. As they leave early, it’s a business loss as well. We have to train new staff to perfection for delivery of quality food and service. If they leave, I have to bear the loss. As the owner I have to go in the kitchen or front to fill in the gaps all the time then also train a new staff. I am filling in the gap for my staff, my young family also suffers as I seek help from my wife to fill in.

15. By letter dated 28 November 2018 the delegate requested information from Gaurish about employment records for its staff, which included a list of all current employees and details about all employers who had ceased employment in the last three years, including payroll advices and payslips bank statements, electronic fund transfers and cheque butts, records of the hours worked each week by all persons Gaurish had employed on a casual basis in the past three years, and a record of any paid or unpaid leave taken by all persons Gaurish had employed in the past three years. This information was requested to be provided within 14 days. Gaurish did not provide the information in the required period and requested an extension of time, after the due date, which was not given.

16. The delegate refused to approve the nomination. It is recorded that the delegate was not satisfied Gaurish complied with the workplace relations laws because it was inferred Gaurish could not comply with the recordkeeping obligations as provided by the Fair Work Ombudsman. The delegate did not otherwise assess the other requirements in reg 5.19(4).

17. It is also relevant to note, but this is not recorded in the decision record of the delegate, that the Department imposed a bar on Gaurish sponsoring individuals under work visas for a period of six months from 18 February 2020 because of concerns about compliance with the sponsorship obligations. The bar was based on the underpayment of one of its employees for the financial year ended 30 June 2019 and from 1 July 2019.

18. As already noted, in addition to the approval sought for Mr Nayak, Gaurish applied for approval of two nominations for the position of Cook, nominating Parwinder Singh Pannu in one role on 2 December 2016 and Mr Aakash Chhabra in another role on 14 March 2018. Mr Nayak is the employee identified as having been underpaid in 2019.

19. A similar process was followed for each nomination. In summary, all three nominations were refused by the same delegate on 21 December 2018 for similar reasons.

20. The related visa applications of Mr Pannu, Mr Nayak and Mr Chhabra were also refused on because they did not have an approved nomination. These refusals were made on 21 January 2019.

21. Gaurish sought review of all three decisions to refuse the nomination applications. Each of the visa applicants also sought review.

22. Gaurish was invited to provide information in support of the applications for review by letter dated 6 September 2021. In response, Gaurish, through its lawyer, provided the information sought, including financial records, contracts of employment for the relevant employees, documents relating to the sponsorship bar and payroll records for each of the employees who were the subject of the nominations.

23. Following a telephone directions hearing to discuss the conduct of the matter, it was agreed that all applications for review of the nomination refusals should be listed concurrently, with evidence in one proceeding to be taken as evidence of the other proceedings. The hearings were listed on 3 February 2022.

24. Gaurish was requested to provide updated information in relation to Mr Nayak and submissions addressing the relevant issues in dispute in relation to each application. Mr Kumar and his wife, Ms Ruchita Bhardwaj, who is also a director of Gaurish, appeared and gave evidence at the hearing. Mr Pannu, Mr Nayak and Mr Chhabra also gave oral evidence. Gaurish was represented in relation to the review by Ms Anderson from Clothier Anderson. Prior to the hearing, detailed statements were provided by Mr Kumar, Mr Pannu, Mr Nayak and Mr Chhabra. Ms Anderson also provided comprehensive submissions addressing each of the requirements of reg 5.19(4). These statements and submissions were extremely helpful to narrow the issues in dispute and explain some of the apparent inconsistencies or concerns that may have troubled the delegate.

    RELEVANT LAW AND ISSUES IN DISPUTE

25. The issue in this case is whether Gaurish 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.

26. 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) of the Migration Act (the Act). The application must also identify a need for the nominator to employ an identified paid employee to work in the position under their direct control.

27. The application was made on the relevant approved form and was accompanied by the fee prescribed in reg 5.37. The form included a written certification stating that Gaurish had not engaged in conduct in relation to the nomination that contravenes s 245AR(1) of the Act, which prohibits the nominator asking for or receiving a benefit in return for sponsoring a visa applicant. The application identified a need for Gaurish to employ an identified person, in this case Mr Nayak, as a paid employee to work in the nominated position under Gaurish’s direct control. As such, there is no dispute that the requirement in reg 5.19(4)(a) is met.

28. Regulation 5.19(4)(b) requires that the applicant is actively, lawfully and directly operating a business in Australia. Gaurish provided company searches from the Australian Securities and Investments Commission evidencing the company’s registration and continued registration since its incorporation in 2012, financial statements for each of the financial years ended 2015 to 2021 and business activity statements for the period October 2015 to June 2017 and October 2017 to March 2018. It is apparent from the information provided that Gaurish has operated a restaurant in Albury known as the Indian Chimney Restaurant since 2012. It is also apparent that the business has been profitable and has grown over time, with the following income, expenses and profit for each of the years ended 30 June 2017, 30 June 2018, 30 June 2019, 30 June 2020 and 30 June 2021.

Financial year (FY)	Income	Expenses	Profit
FY 2021	$1,0031942.00	$656,809.00	$122,942.00
FY 2020	$876,505.00	$615,636.00	$45,954.00
FY 2019	$458,196.00	$418,156.00	$40,040.00
FY 2018	$553.390.00	$491,988.00	$61,403.00
FY 2017	$753,154.16	$684,109.47	$70,544.69

1. Analysis of the financial statements for each of the years from 2016 to 2021 reveal that Gaurish has made a profit each year, it is recorded in its accounts as paying superannuation each year representing approximately 10% of wages and salaries and appears to be paying its tax liabilities, including goods and services tax, as they arise. Gaurish was also able to provide detailed payroll records and payslips for each of the employees who are the subject of the nominations.

2. These documents provide clear evidence that Gaurish is actively, lawfully and directly operating a business in Australia, being a restaurant operating from Albury, and has done so for at least the past seven years. This is not an issue that was raised by the delegate and is uncontroversial. I am therefore satisfied that the requirement in reg 5.19(4)(b) is met.

3. 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. Gaurish does not operate a labour hire business and, accordingly, the requirement in reg 5.19(4)(c) does not apply and is therefore met.

4. 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. 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. Compliance with these requirements was the subject of detailed written and oral evidence and was contentious.

5. 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. 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. Given the earlier sponsorship bar and concerns raised by the delegate about compliance with Commonwealth workplace relations laws, these requirements were also contentious matters that were the subject of evidence and submissions prior to and at the hearing.

6. Regulation 5.19(4)(h) contains a number of alternative requirements. These are set out in detail in the attachment to the decision. Gaurish claims to meet the requirements in reg 5.19(4)(h)(ii) which relevantly require that:

   ·the position and nominator’s business is located in regional Australia (subcl (ii)(A));

   ·there is a genuine need for the nominator to employ the person identified as a paid employee to work in the position in the position under the nominator’s direct control (subcl (ii)(B));

   ·the position cannot be filled by an Australian citizen or permanent resident who is living in the same local area (subcl (ii)(C));

   ·the tasks of the position correspond to those of an occupation specified in the relevant legislative instrument (subcl (ii)(D));

   ·the occupation is applicable to the person nominated in accordance with the specification of the occupation (subcl (ii)(DA));

   ·the business operated by the nominator is located in that place (subcl (ii)(E)); and

   ·a Regional Certifying Body has advised the Minister about certain matters relating to the position (subcl (ii)(F)).

7. The relevant legislative instrument is Migration (IMMI 17/058: Occupations for subclass 187 visas; skill, age and English language requirements for subclass 186 and subclass 187 visas) Instrument 2017 (IMMI 17/058), which commenced on 1 July 2017 and applies to nominations made after this date. Schedule 1 to IMMI 17/058 sets out the occupations for subclass 187 visas for the purposes of subparagraph 5.19(4)(h)(ii)(D) to the Regulations and, relevantly, certain paragraphs in cl 187 of Schedule 2 to the Regulations.

1. Relevant to the facts of this case, Schedule 1 includes the occupation of Café or Restaurant Manager, being ANZSCO code 141111. The ANZSCO code is the Australian and New Zealand Standard Classification of Occupations (2013) published by the Australian Bureau of Statistics. ANZSCO is a skill base classification used to classify all occupations and jobs in the Australian and New Zealand labour markets. ANZSCO is used by the Minister as a reference point for various work-related visas.

2. There is no dispute about the requirements in reg 5.19(4)(h)(ii)(A), (D), (DA), (E) and (F).

3. The restaurant operated by Gaurish is located in Albury, which is in regional Australia, the tasks of the position as set out in the job description for Mr Nayak (and confirmed by him in oral evidence at the hearing) correspond to those of the occupation of a Restaurant Manager, as specified in the instrument, and the business operated by Gaurish is located in Albury.

4. Gaurish also provided a Form 1404, being a Regional Sponsored Migration Scheme – Regional Certifying Body advice from the relevant certifying body, Regional Development Australia Murray (RDA Murray) dated 16 May 2018 to the effect that in the opinion of the author the nomination satisfied the requirement that there was a need for the position, the nominated position could not be filled by an Australian citizen or permanent resident living in the local area and the terms and conditions of employment were no less favourable than those that would be provided to an Australian citizen or permanent resident. 

5. Accordingly, I am satisfied the requirements of reg 5.19(4)(h)(ii)(A), (D), (DA), (E) and (F) are met.

6. The issues for consideration in relation to reg 5.19(4)(h)(ii) are whether there is a genuine need for Gaurish to employ Mr Nayak as a Restaurant Manager and whether or not this position can be filled by an Australian citizen who is living in the same local area (refer subcls (B) and (C).

7. As such, the determinative issues in the case are whether I am satisfied the requirements of reg 5.19(d) to (g) and (h)(ii)(B) and (C) are met.

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Outline of evidence

8. Mr Kumar stated that Gaurish operated a restaurant which was established in November 2012, operated from Dean Street Albury which was open all year round for lunch and dinner. The restaurant is fully licensed and offers dine in, takeaway and home delivery of traditional Indian food and sweets. According to Mr Kumar the popularity and success of the business is a direct result of the quality of the food and traditional ingredients and methods of cooking. The restaurant had a seating capacity of approximately 120 people. All food is prepared and cooked on site. According to Mr Kumar, the restaurant has a reputation for high quality authentic food and this requires highly skilled and experienced kitchen staff. In Mr Kumar’s view, qualified kitchen staff were important to the continued success and popularity of the restaurant. However, he had found it exceptionally difficult to find and keep skilled and qualified workers in a regional area. Many locals, including Australians, did not want to work in hospitality and if they grew up in the regional area, often wanted to move to the bigger cities.

9. Gaurish has sponsored a number of overseas workers in the past but he had found difficulties in retaining workers because they often wanted to move to capital cities for greater opportunities. Gaurish had sponsored Surinder Singh as a cook, Manpreet Singh as a cook and Parampreet Singh as restaurant manager. Mr Surinder Singh commenced employment with Gaurish in September 2013 and continue to work as a cook until 28 February 2017. He indicated that he wanted to resign to return to India to look after his father and so Mr Kumar advertised a position in the local newspaper, the border mail, on 5 October 2016. Mr Singh resigned on 22 November 2016 but continued to work in the restaurant at Mr Kumar’s request until 28 February 2017. Gaurish received two applications for the advertised position, one from Mr Pannu and the other from an overseas worker. There was no local interest from the local population in the advertised position. Mr Pannu had good experience and references and was therefore selected. At that time Mr Pannu was working for another employer under a temporary work visa. He was unable to start working at the restaurant until early September 2017. Mr Kumar decided that he was happy to hold the position until Mr Pannu could commence and after Mr Singh left Gaurish, Mr Kumar worked in the kitchen himself to cover the vacancy for six months. Mr Pannu holds Certificates III and IV in Commercial Cookery, an Advanced Diploma of Hospitality Management and has previously worked as a cook in an Indian café since 2015.

10. Mr Pannu commenced on 4 September 2017 and worked on a full-time basis until the end of January 2020, when he took a few months leave. By the time Mr Pannu returned to work, the business was impacted by the COVID 19 pandemic. The restaurant was closed for ‘dine in’ service but eventually it was able to operate with take-out and home delivery. According to My Kumar, it was difficult to find employment for Mr Pannu in the initial stages of the COVID-19 pandemic and he could not be retained through the financial support of Job Keeper because he was the holder of a temporary visa. Mr Pannu could not be re-employed until September 2020, when things improved. He recommenced on a part-time basis. To cover his living expenses, Mr Pannu found other work as a delivery driver. Mr Kumar said that he was initially concerned about whether Gaurish could provide full-time employment for Mr Pannu because of the uncertainty created by the COVID-19 pandemic. This was exacerbated because Albury is a border town and there were considerable difficulties experienced by all businesses given the various changes in restrictions during 2021. Mr Pannu worked in the restaurant on a part-time basis from September 2020 but recently increased his hours to full-time after the resignation of one of the other workers. Since September 2020 the restaurant has been able to function adequately with three full-time cooks/chefs and Mr Pannu as a part time cook. The employees working in the kitchen included Valencia Fernandes, Jaskaran Singh and Aakash Chhabra. Mr Kumar said that during the COVID-19 pandemic he had been required to spend much of his time working in the kitchen as well as managing the business, which had become increasingly difficult.

11. At the time of the application for the Pannu nomination, Gaurish had three cooks, including Mr Surinder Singh, who resigned effective from 28 February 2017. It is relevant to note that at this time, the turnover of the business was $753,154.16. After a fall in revenue during 2018 and 2019, the turnover increased during 2020 to 2021 to over $1 million and it is apparent that, despite the COVID-19 pandemic, Gaurish has been able to grow the business.

12. Mr Kumar also gave evidence about the circumstances leading to the employment of Mr Chhabra. Manpreet Singh had been employed with the business from August 2013 until he resigned in July 2017. Mr Singh decided that he wanted to return to Melbourne and Mr Kumar gave evidence that there was nothing that he could do. He was disappointed. After Mr Singh left the business in August 2017, Mr Kumar again advertised for his replacement through seek.com. Gaurish received 20 responses for the advertised position, most of which were from overseas applicants or candidates who he did not believe had the necessary skills or qualifications for the role. Mr Chhabra holds Certificates III and IV in Commercial Cookery and had worked part time as a cook between 2015 and 2017. According to Mr Kumar, Mr Chhabra was shortlisted and was ultimately chosen because the other shortlisted candidate decided he did not want to take up the role. Mr Chhabra started in March 2018. Mr Kumar again filled the vacancy by working in the kitchen. By the time Mr Singh left, Mr Pannu had started. In addition, there was a cook who had been working at the restaurant for some time on a part time basis and he worked more hours. This was sufficient until Mr Chhabra started in March 2018. Mr Chhabra has worked full-time since he first joined Gaurish. He says he wishes to continue working with Gaurish for at least two years. He has been living in Albury since September 2017, has made friends and enjoys living there.

13. Mr Kumar said that Parampreet Singh, who had been working at the Indian Chimney since 2013, resigned in February 2018 and left the in March. Gaurish advertised the position through seek.com and received 12 applications. According to Mr Kumar, Mr Darshan Nayak was the only candidate who was suitably qualified to undertake the role. He held an Advanced Diploma in Business Management conferred in 2010, he worked as the Food and Beverages Team Leader at the Sydney Cricket Ground from 2012 to December 2016 and was the Restaurant Manager of Zilch Restaurant, Wodonga from February 2017 to February 2018. He worked full time in the role of restaurant manager until February 2020, when he took leave for approximately one month.

14. When Mr Nayak returned from leave the COVID-19 pandemic was impacting business and restrictions were imposed on in house dining by late March, early April 2020. There were further restrictions and uncertainty after the NSW border was closed and then the Victoria border was closed. This caused considerable uncertainty for businesses in Albury. Gaurish moved to take away and home delivery and did not have such a need for a restaurant manager during this period. Because of the uncertainty and the fact the business could not maintain Mr Nayak’s employment through Job Keeper, Ruchita Bhardwaj took over the role. Mr Nayak found alternative employment as a picker and packer at Riverina Diary and as a delivery driver. He did this until January 2021, when he returned working for Gaurish for one day every fortnight so that Ms Bhardwaj could take a day off. Mr Kumar said that he was still reluctant to reinstate Mr Nayak because of the uncertainty about the pandemic.

15. Ms Bhardwaj, who had previously worked part time in the business and otherwise worked in the Veritas Institute of Australia in Albury, worked full time as the restaurant manager. There were two reasons for this. Firstly, the Veritas Institute of Australia, which was a college specialising in hospitality, was impacted by the COVID-19 pandemic border restrictions and Ms Bhardwaj was more available to work in the business. Secondly, Mr Kumar was concerned about the continued impact of the pandemic and while Gaurish had successfully moved to takeaway, online and home deliveries, he was concerned about committing to re-employing Mr Nayak. This was heightened by the onset of Omicron. However, business was recovering and he and Ms Bhardwaj wanted to reduce their work in the business so they could work towards establishing another training college in Albury to accommodate the expected return of international students studying hospitality. Mr Kumar stated that there were 52 restaurants in the Albury region and there had been long term difficulties in training and recruiting suitable staff. They also wanted to spend more time with their young family.

16. Mr Nayak said that he wanted to work full time at Gaurish rather than work in two casual lower skilled jobs. He wanted to advance his career.

17. Mr Kumar explained that the underpayment of Mr Nayak occurred during 2019 because his contract provided for an annual salary of $55,000 for a 38-hour week. When Mr Nayak worked more than 38 hours Gaurish did not pay him any additional amounts because he thought Mr Nayak was being paid above award rates in any event. However, the industrial award was increased in 2019. Mr Kumar was unaware of the changes and kept paying Mr Nayak at the same rate. In late 2019, when Gaurish received correspondence from Australian Border Force about the underpayment, Mr Kumar spoke to the office of the Fair Work Ombudsman, corrected the situation and explained to Mr Nayak about what had happened. He caused Gaurish to pay Mr Nayak the amount that had been underpaid, including superannuation and an additional 10% for interest. The net amount paid was approximately $5,000. Mr Nayak said he was not aware of this until Mr Kumar told him and he confirmed he was paid the additional amount.

18. Mr Pannu, Mr Nayak and Mr Chhabra gave evidence about their duties while working in the restaurant. Their evidence was consistent with their job descriptions and duties as outlined in their original offers of employment dated 9 November 2016 and 1 March 2018 respectively and with the updated contracts dated 18 September 2021.

19. The oral and written evidence of Mr Kumar, Mr Pannu, Mr Chhabra and Mr Nayak was detailed and cogent. Their evidence was consistent and plausible, and I accept them as witnesses of truth.

20. In response to the invitation by the Tribunal to provide certain information under s 359(2) of the Act, Gaurish’s lawyers provided over 600 pages of documents. The documents provided were clearly labelled, in chronological order and responded to each of the requests made by the Tribunal. It is also relevant to note that in addition to these documents, Gaurish provided documents to the Department in support of its application, some of which were again provided to the Tribunal in response to the invitation. The documents provided to the Department were extensive (over 500 pages) and included financial records, business activity statements, tax assessments, job advertisements, organisational charts, payroll records and contracts of employment. After the directions hearing, Gaurish’s lawyers also provided detailed submissions, in respect of each of the three nominations.

21. The documentary evidence provided by Gaurish to the Department and to the Tribunal was directed to the requirements of reg 5.19(4) and corroborates its claims about the recruitment processes undertaken for Mr Nayak and the other visa applicants, the moneys paid to each of the visa applicants during the relevant periods and its trading history and relevant financial statements.

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

22. To be satisfied about this requirement, I must be satisfied that Mr Nayak will be employed by Gaurish on a full-time basis in the nominated position of restaurant manager for a period of at least two years. I must also be satisfied that the employment contract does not expressly exclude the possibility of extending the employment.

23. In this case, there is an offer of full-time employment of 38 hours per week to Mr Nayak for a period of at least two years. The contract is not subject to any express exclusion for the possibility of renewal and comes into effect from the time of the approval of Mr Nayak’s visa.

24. Mr Nayak worked in full-time employment for Gaurish after he first joined Gaurish in May 2018 until late January 2020, then took of a few months and was unable to return full-time or at all because of the impact of the COVID-19 pandemic. The restaurant was closed for dining in service for an extended period and Mr Nayak was not required until January 2021. He has worked one day a fortnight to allow Mr Kumar and Ms Bhardwaj to have a day off each week. Ms Bhardwaj, who works in another business and has children, has been undertaking the duties of restaurant manager since the beginning of the COVID-19 pandemic. I am satisfied from the evidence of both Mr Kumar and Ms Bhardwaj that they do not wish to continue working so many hours in the restaurant and that the services of Mr Nayak are needed, particularly given the increased turnover and the prospect of a return to full dining service. I am therefore satisfied that there is sufficient work for Mr Nayak to be employed full-time in the role of Restaurant Manager and I am satisfied about the financial viability of Gaurish to be able to employ him in such a role. Its financial records demonstrate a strong financial position with increasing turnover and profitability.

25. I am therefore satisfied that this requirement is met.

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

26. I must be satisfied that the terms and conditions of employment for Mr Nayak are no less favourable than the terms and conditions that apply, or would apply, to an Australian citizen or permanent resident in the same position and in the same location.

27. According to the contract of employment for Mr Nayak, he is to be paid a base rate of salary of $61,700 per annum, excluding superannuation. This is said to be 25% over the relevant award, which is the Restaurant Industry Award 2020, Classification level 5.

28. The lawyers for Gaurish provided submissions and evidence about the market rate for a Restaurant Manager, citing data from Job Outlook, SEEK and PayScale, all of which are consistent with a market rate in the salary range of between $60,000 and $70,000 per annum, depending on the location and experience of the restaurant manager.

29. The evidence provided in respect of payments made to Mr Nayak and evidence directly from Mr Nayak about the payments received appear to be consistent with the claim that Mr Nayak has already been employed on terms and conditions of employment that are at least in accordance with or more favourable than the Award. Mr Nayak was underpaid for a short period during 2019 but this was rectified. I am satisfied that this was inadvertent and that Mr Kumar has taken steps to ensure this will not re-occur. Relevantly, under Mr Nayak’s current contract of employment he will be paid remuneration in excess of the Award, consistent with the current market salary as indicated by three independent sources for average wages, being PayScale, Job Outlook and SEEK.

30. Accordingly, I am satisfied that this requirement is met.

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

31. There is no dispute that there is adverse information known to the Department about Gaurish because it was barred from acting as a sponsor for a period of six months from February 2020 to August 2020. The ground for the suspension was the underpayment of Mr Nayak.

32. The question for consideration is whether it is reasonable to disregard this adverse information in the circumstances of the case.

33. It is submitted that this one instance of non-compliance should be disregarded. The submission refers to the Department policy[1] which notes that the question of whether it is reasonable to disregard the adverse information relevantly includes the nature of the adverse information, whether the applicant has taken any steps to ensure the circumstances that led to the adverse information did not recur and information about relevant findings made by a competent authority in relation to the adverse information.

    [1] PAM - Sponsorship applicable to Division 3A of Part 2 of the Act – Sponsorship – circumstances in which it may be reasonable to disregard the adverse information.

34. Correspondence provided by the applicant reveals that Australian Border Force (ABF) conducted a review on from December 2019 to February 2020 on whether Gaurish was complying with its obligations as a standard business sponsor. By letter dated 20 December 2019, the ABF requested a comprehensive list of documents relating to its sponsorship of visa holders, including details about all visa holder employees such as records to demonstrate what tasks are being performed by the sponsored persons, records of their gross and net salary and monies paid to them, including details of any non-monetary benefits provided. The ABF also sought specific details in relation to Mr Nayak.

35. Gaurish responded to this request for information. By letter dated 30 January 2020, the ABF indicated that a delegate of the Minister was considering taking action against Gaurish under s 140M of the Act, which included barring or cancelling its sponsor approval. The ground for the possible action was an identified underpayment of Mr Nayak in the sum of $5,374.50 for the financial year ended 30 June 2019 an additional $781.15 for 2020.

1. As already noted, Gaurish conceded the underpayment, corrected the breach and took action to ensure that this would not re-occur. By notice of decision dated 18 February 2020, the delegate found that Gaurish had failed to ensure Mr Nayak was paid under equivalent terms and conditions of employment but noted that Gaurish had been cooperative, had provided all required documentation within the legislated timeframes, had rectified the underpayment, had taken steps to ensure future compliance with the relevant Award and had complied with all other sponsorship obligations. The sanction of a six-month bar was considered to be appropriate in the circumstances of the case.

2. The appropriate payment of visa holders is an important sponsorship obligation, the policy principle being that vulnerable overseas workers should not be underpaid but more importantly that Australian citizens and permanent residents should not be disadvantaged by the competition of overseas workers being offered work on less favourable terms and conditions.

3. In this case, it is clear that the underpayment was from inadvertence and lack of understanding about an award system which can be complicated. A delegate of the Minister was satisfied, after what appears to be a comprehensive review of Gaurish’s compliance with sponsorship obligations. While the delegate found that there had been non-compliance, the non-compliance was narrow in scope and was quickly rectified when it was brought to the attention of the company. There is no reference in the findings to any other breaches. While the non-compliance could not be described as minor or trivial, it was nonetheless in the lower range of seriousness, particularly given that Gaurish employed a number of visa holders and there was no question of non-compliance in respect of those employees.

4. On balance, I am satisfied that this adverse information should be disregarded for the purposes of the requirement in reg 5.19(4)(f) and as such I am satisfied that this requirement is met.

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

5. To be satisfied about this requirement, I must satisfied be Gaurish has a satisfactory record of compliance with the laws of the Commonwealth, and of each State or Territory in which it operates a business and employs employees in the business, relating to workplace relations. The delegate relied on the fact that Gaurish did not provide the information requested in relation to its staff within the 14-day period nominated in the notice dated 28 November 2018.

6. The lawyers for Gaurish submit that it was unreasonable not to allow Gaurish an extension of time so close to the Christmas period and it was further unreasonable to infer this requirement was not met, simply because Gaurish had not provided the requested information within 14 days. It is further submitted that Gaurish has not been prosecuted for a breach of any workplace relations laws and that there was no indication of any concern or any request for information from the Department in its letter dated 28 November 2018.

7. There is force to these submissions. In addition, I note that the ABF conducted a review in late December 2019/early 2020 of Gaurish’s sponsorship obligations, which necessarily includes consideration of compliance with certain workplace laws, Gaurish provided the information sought, which related to payroll records and detailed records relating to its visa holder employees and the ABF found a limited breach relation to one employee which was rectified.

8. Accordingly, in the absence of evidence to the contrary, I am satisfied that Gaurish meets this requirement.

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

9. One of the contentious issues in this case is whether there is a need for the position of Restaurant Manager and whether or not this position can be filled by an Australian citizen or permanent resident. This was not the ground for the refusal, but it is clear from the request for information and the letter from the Department outlining adverse information, that this was a matter of considerable concern for the delegate. On its face, this concern is understandable given that three previous visa holders left the restaurant within the 12 months of obtaining their permanent visa. However, it is relevant to note that each of these visa holders had been employed by Gaurish for a considerable period prior to their visas being granted and were performing roles that were needed for the operation of the business. It is also relevant to note that Gaurish cannot stop visa holders from leaving after their visas have been granted.

10. The Subclass 494 (Skilled Employer Sponsored Regional (Provisional)) visas, which replaced Subclass 187 visas have a mandatory condition, 8579, which requires that visa holders live, work and study only in a part of Australia that was a designated regional area at the time the relevant nomination was made. If the visa holder were to move away from the designated regional area this would be a ground for cancellation. There is no such condition applying to Subclass 187 visa holders. There is force to Mr Kumar’s contention that little can be done if a visa holder decides to leave the employment of their nominator after their visa has been granted. As such, I accept the contention that if multiple nominated workers who were sponsored under the old subclass 457 or 187 visas leave the employment of the nominator within the two years following the grant of their visas, this does not necessarily lead to the inference that there was not a genuine need for the position. There may be a number of reasons why visa applicants decided to leave employment that are outside the control of the nominating business. In this case, Gaurish advertised for the positions of the workers who left at the time of soon after their resignations and Mr Kumar and Ms Bhardwaj increased their hours working in the restaurant.     

11. At the time Gaurish made an application for the nomination for Mr Nayak as a Restaurant Manager, its restaurant manager, Mr Parampreet Singh had resigned. Mr Nayak worked full-time in this role until the advent of the COVID-19 pandemic from February/March 2020. While Mr Nayak has not worked in a full-time position in this role since this time, I am satisfied that there is a need for such a position in the business, the current role being filled by one of the directors, Ms Bhardwaj. Her evidence and the evidence of Mr Kumar is that they do not wish this to continue and wish to employ Mr Nayak full-time in the position of Restaurant Manager.

12. The restaurant is open every day and it is open for lunch and dinner. It potentially seats 120 patrons and since the COVID-19 pandemic, it has expanded its operations into online sales through takeaway and home delivery. Relevantly, its turnover in 2021 was over $1 million. I accept the evidence of Mr Kumar and Ms Bhardwaj that there is a need for the role of Restaurant Manager and that Ms Bhardwaj has been covering this role since about March 2020. I accept that this has diverted Mr Kumar and Ms Bhardwaj from a more balanced family life and has the potential to divert her and Mr Kumar from pursuing the hospitality training business, which was able to be deferred pending the COVID-19 pandemic, but they now wish to pursue this.

13. I am also satisfied that the role of Restaurant Manager has been extensively advertised in the past and that there are shortages of Restaurant Managers prepared to work in regional Australia and, in this case, Albury. The evidence provided by Mr Kumar, the history of employees leaving and moving to the bigger cities and the evidence from the RDA Murray supports this contention.

14. Accordingly, I am satisfied that the requirements of sub-regs 5.19(4)(h)(ii)(B) and (C) are met.

    CONCLUSIONS

15. Based on the findings above, I am satisfied that Gaurish meets the requirements of reg 5.19 for approval of the nomination of the position in Australia.

    DECISION

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

17. J.L Redfern PSM
    Deputy President

    
    
    

    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).