Gillz Group Pty Ltd (Migration)

Gillz Group Pty Ltd (Migration) [2021] AATA 2799 (16 June 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Gillz Group Pty Ltd
CASE NUMBER:  1831344
HOME AFFAIRS REFERENCE(S):          BCC2017/2034243
MEMBER:Peter Emmerton
DATE:16 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 16 June 2021 at 1:24pm
CATCHWORDS
MIGRATION – Employer Nomination – approval of nominated position – Direct Entry nomination stream – Chef – term of employment – financial capacity – improved revenue and profitability – BAS statements – decision under review set aside
LEGISLATION
Migration Regulations 1994 (Cth), 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 Home Affairs on 8 October 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).
The applicant applied for approval on 8 June 2017. 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).
In this case, the applicant has applied for approval of a nomination, seeking to satisfy the criteria in the Direct Entry nomination stream.
The delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19(4)(d)(i) of the Regulations because they were not satisfied that it had not been demonstrated that the nominator had the financial capacity to ensure that the employee would be employed on a full time basis in the position for at least two years.
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.
In determining the applicant’s claims the Tribunal must first make findings of fact on material matters in dispute. This may involve an assessment of credibility and in so doing, the Tribunal is aware of the need and importance of being sensitive to the circumstances and the difficulties applicants often face before the Tribunal in their individual circumstances.
The applicants rely on the evidence given before the Tribunal together with written submissions and supporting evidence provided to the Tribunal and previously to the department.
The nominating entity runs a Texan cuisine themed Restaurant in a shopping complex in the suburbs of Perth, Western Australia. The restaurant is situated in Mandura, WA, the largest regional city in Western Australia, approximately 1 hours drive from the Perth CBD.
The Tribunal accepts the evidence tendered, that the revenues are earned through restaurant service activities.
The visa applicant’s substantial responsibilities, their formal qualifications, and attributes, align with the duties of a Chef, ANZSCO 351311, skill level 2.
The visa applicant possesses a Certificate lll and a Certificate lV in Commercial Cookery and a Diploma of Hospitality. All of these qualifications were attained in Australia.
The Tribunal is cognisant of the challenges associated with recruiting and retaining suitably experienced staff and management working in specialist cuisine restaurants, particularly in regional locations or less populous States.
The Tribunal notes a ‘Satisfied’, RCB Certificate issued by the relevant certifying body, (Skilled Migration WA Department of Training and Workforce Development). The date of the certificate is 21 June 2017.
The application is compliant: r.5.19(4)(a)
Regulation 5.19(4)(a) requires that the application for approval must be in the approved form, must be accompanied by the prescribed fee, and, where applicable, must include the required written certification relating to conduct that contravenes s.245AR(1). The application must also identify a need for the nominator to employ a paid employee to work in the position under their direct control.
The Tribunal finds that the application was lodged electronically using the elodgement facility. The nomination was made under the RSMS Direct Entry stream (r.5.19(4)(h)(ii)) and consequently no fee is payable. The Tribunal finds the applicant meets r.5.19(2).
The Tribunal notes that the business is operating on a moderate staffing ratio of 10-11 current personnel including the visa applicant. The Tribunal acknowledges that finding and subsequently retaining an individual with the visa applicant’s experience, qualifications and cuisine competencies may be challenging.
The Tribunal acknowledges that due to the extensive mandated operating hours across a 7-day week within a shopping precinct, it is necessary to have a Chef as well as multiple Cooks.
The Tribunal is satisfied that the application has identified a need for a paid employee to work in the position of Chef, ANZSCO 351311, under direct control of the nominator. The application has included the required written certification relating to conduct that contravenes s.245AR(1). 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)
Regulation 5.19(4)(b) requires that the applicant is actively, lawfully and directly operating a business in Australia.
The Tribunal has been provided with a substantial range of Financial documentation including Profit and Loss Statements, (FY 2019 and FY 2020), ATO Taxation Return for FY 2019, and current BAS statements, all of which correlated in an appropriate manner.
ASIC Registration details for this business entity were researched by the Tribunal. The Tribunal checked the status of the listed ABN, 52 605 604 162, and perused the company web site and the associated menus. It was first registered 1 May 2015 and is currently registered. It is due for renewal on 1 May 2022. The Tribunal is satisfied that the applicant is actively, lawfully and directly, operating a business in regional Australia. Accordingly, the requirement in r.5.19(4)(b) is met.
Position is not labour - hire: r.5.19(4)(c)
Regulation 5.19(4)(c) applies to nominators whose business activities include those relating to labour hire to an unrelated business. In these cases, the nominated position must be within the business activities of the nominator. The Tribunal finds that r. 5.19(4)(c) is not relevant to the current nomination.
Term of employment of the visa holder: r.5.19(4)(d)
Regulation 5.19(4)(d) requires the nominee to be employed in the nominated position for at least 2 years full time, and the terms and conditions of that employment do not expressly exclude the possibility of an extension.
The Tribunal notes that the delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19(4)(d)(i) as they were not satisfied that the nominator had demonstrated the nominee would be employed on a full-time basis for at least 2 years under the direct control of the nominator. The delegate formed the view that insufficient evidence was provided to demonstrate the financial capacity of the nominator to undertake the requirements of r.5.19(4)(d)(i).
The Tribunal has formed a different view having considered substantially more evidence that was presented to it, than was given to the delegate at the time of their decision. The Tribunal notes that 4 years have passed following the submission of the original application and the original associated financial documentation. There has been substantial revenue growth in that subsequent time-period. This is in part because the restaurant has matured and had only been in its’ infancy at the time it had submitted the nomination application in 2017. Minimal financial data was available to substantiate financial viability.
It also observes that the financial position for the nominator for FY 2019 and FY 2020 is relatively strong with an improved revenue and profitability post the impact of Covid-19 lockdowns in early 2020. The Tribunal notes revenues have increased greater than 100% between FY 2019 and FY 2020 and profit before tax increased 120% for the same period. The Tribunal observes that the current BAS documentation correlates with the assessment by the Tribunal and assertion made by the nominator’s accountant that FY 2021 will indicate substantial income growth, further building upon the increased income and profit in FY 2020.
The Tribunal notes that the nominator’s business was not unduly impacted by the pandemic other than 1 quarter. This is evidenced by the current BAS Returns. Even during the period of enforced closure, they maintained their business with the positive impact of the Government assistance programs, coupled with their customer base who utilised home delivery and take-away services.
The Tribunal observes that the financial documentation shows an increasingly profitable and stable business.
Whilst the Tribunal accepts as fact that the business was impacted as a direct result of Covid-19, as substantiated by the most recent 18 months of BAS statements. It demonstrates, as expected a drop in 1 quarter’s sales which quickly rebounds to normal revenue levels the following quarter. The Tribunal has formed a view that an organisation’s viability should not be judged solely upon the financial circumstances which resulted from the Covd-19 pandemic. It also observes that at no time has the organisation been unable to make a profit.
The relative financial stability of the nominating entity and its’ longevity in an ever increasingly competitive market, attests to its’ ability to employ the visa applicant. The niche market in which it operates combined with its’ product supply and service model potentially adds an additional level of resilience. The multiple revenue sources from in-house dining, external and internal functions, take away and home delivery also suggest a diverse and robust business model which is more likely to continue to succeed.
The Tribunal has had regard to the Employment Agreement and position description. It is satisfied that the nominee will be appointed for a period of at least 2 years employment from grant of visa and the terms of employment do not include an express exclusion of the possibility of extending the period of employment. It is again reminded of the passage of more than 4 years since the original application. The passage of time has within itself, shown that the reason for the delegate’s concerns has demonstrably dissipated.
The Tribunal observes that one of the potential challenges facing the business is retaining the visa applicant with their unique cultural cooking competencies and the nominator’s obvious reliance upon their services. This is particularly evident when considering the acknowledged challenges associated with recruiting and retaining similar individuals in this region of Australia.
Current media and business reports analysing consumer confidence and employment data, coupled with present time job vacancies and recruitment challenges demonstrate a deficit of suitably qualified potential employees in many sectors. This clearly appears to be one such sector. The problem is exacerbated in regional areas, particularly if an organisation is reliant upon temporary or permanent immigration as part of their labour source. Business, Media, and Government reports are being circulated which indicate this is starting to become a drag upon business development.
The Tribunal upon researching a popular employment website observes that there are currently 8,568 Cooks or Chefs roles on offer nationally and 900 of these roles are in Western Australia. The Tribunal also acknowledges the impact the substantial mining cycle has on employment in WA, further exacerbating staff shortages in many direct or indirect fields of endeavour.
The Tribunal is aware that the workforce is relatively mobile. The specialist skills associated with this type of operation are highly sought after and readily transferred between competing businesses. There is a strong network which operates within this industry which has the effect of making it easy to entice valuable staff to join a competitor’s organisation. The Tribunal is aware that there are numerous restaurants which operate within 10 kilometres of the nominator. They are therefore likely to be in direct competition for both customers and staff.
The Tribunal is satisfied that the business will be able to sustainably, employ the nominee for the required 2-year minimum period therefore 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.
The Tribunal has been provided with the visa applicant’s most current employment contract dated 1 February 2019, stating a salary of $55,000 plus Superannuation at the current rate of 9.5%. The Tribunal accepts that the nominee’s current annual salary of $55,000 as stated by the nominating entity, as reflective of their qualifications, the role they undertake and their experience.
The Tribunal researched the salaries offered for similar positions and accepted the salary research date presented by the nominator. The remuneration appears to fall within the mid to lower quartiles of similar positions on offer. It is satisfied that the terms and conditions of employment are equivalent to other employees with the same experience performing equivalent work in the same workplace or a similar workplace. Accordingly, the requirements of r.5.19(4)(e) are met.
No adverse information known to Immigration: r.5.19(4)(f)
Regulation 5.19(4)(f) requires that there is no adverse information known to Immigration about the nominator or person associated with the nominator; or it is reasonable to disregard any such information. For these purposes, ‘adverse information’ and ‘associated with’ have the meaning given in rr.1.13A and 1.13B. There is no evidence before the Tribunal that the applicant has anything but a satisfactory record of compliance with the immigration laws of Australia. 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. The Tribunal notes that there is no evidence before the Tribunal that the applicant has anything but a satisfactory record of compliance with workplace relations law in Australia. Accordingly, the requirements of r.5.19(4)(g) are met.
Tasks of the position, genuine need for the position and training requirements r.5.19(4)(h)
Regulation 5.19(4)(h) contains alternative requirements. These are set out in detail in the attachment to the decision. As stated above the nomination was made under the RSMS Direct Entry stream and the Tribunal has proceeded to assess the application against the criteria in r.5.19(4)(h)(ii) which require that:
·the position and nominator’s business are 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 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
·a regional certifying body has advised the Minister about certain matters relating to the position.
The Tribunal has had regard to the size, scope, and the design of the nominating entity’s business operation. It is self-evident that the nominator cannot operate this growing business without a substantial reliance upon the visa applicant and a considerable number of similarly highly experienced and skilled staff across the front and back of house operations. It is a “hands-on’ client focussed industry which ultimately requires customer facing employees and kitchen production operatives, regardless of skilful reliance upon technology such as Point of Sales systems to augment sales, product development, product production and positive customer service outcomes. The extensive mandated opening hours across 7 days per week further accentuates the need for the visa applicant. This is particularly relevant as one of their cooks has recently left their employ.
The Tribunal is satisfied that there is a genuine need for the nominator to employ a paid employee to work in the position under the nominator’s direct control.
The Tribunal received and accepted evidence from the nominator, of the salary determination and recruitment processes. The Tribunal notes the associated proof of advertising in support of their recruitment for the position using 2 popular major media solutions, coupled with professional and personal networks. The Tribunal accepts that the nominator finds it difficult to recruit staff and to that end he has been advertising regularly for 2 years on Gum Tree and Facebook. The Tribunal accepts that there were a relatively small number of applications generated via the 2 solutions, resulting in only the visa applicant being assessed as the most suitable.
The Tribunal acknowledges that there are a substantial number and range of similar roles readily available in Western Australia and throughout Australia. The relatively specialised skill set may also provide a negative recruitment circumstance. Additionally, Western Australia may not be perceived as the optimal location for employment and advancement in this vocation, further limiting the potential candidate pool available.
The Tribunal reiterates that substantially more comprehensive evidence was provided to it, than was presented to the delegate at the time of their decision, in part because of the passage of time since the original application was submitted in 2017.
The Tribunal is satisfied that the nominator’s business is, located in regional Australia.
Regulation r.5.19(4)(h)(ii)(D), requires that the tasks to be performed in the position correspond to those at ANZSCO skill level 1, 2 or 3. The Tribunal has reviewed both the relevant descriptors supplied in ANZSCO 351311 for Chef and the stated duties of the visa applicant. It has in addition perused the visa applicant’s Resume’ on the original visa application form.
The Tribunal acknowledges that the ANZSCO descriptors are a guide, not a mandatory definitive reference.
The position of Chef, ANZSCO 351311, nominated by the applicant is referred to in ANZSCO as a skill level 2 position and the Tribunal is satisfied that the visa applicant is operating at that level.
The Tribunal has had regard to Form 1404 issued by an RCB (Skilled Migration WA Department of Training and Workforce Development). The date of the certificate is 21 June 2017 and it is satisfied that the applicant has advised the Minister about matters relating to the terms and conditions of employment, the genuine need for the position and that the position cannot be filled locally.

The Tribunal is satisfied that the applicant meets 5.19(4)(h)(ii).
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.
Peter Emmerton

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).

[2021] AATA 2799

16 June 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Statutory Construction

Procedural Fairness

Jurisdiction

Remedies