GJA KALRA PTY LTD (Migration)

[2020] AATA 6085

GJA KALRA PTY LTD (Migration) [2020] AATA 6085 (22 December 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  GJA Kalra Pty Ltd

CASE NUMBER:  1829997

HOME AFFAIRS REFERENCE(S):          BCC2016/1704978

MEMBER:Wan Shum

DATE:22 December 2020

PLACE OF DECISION:  Sydney

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

Statement made on 22 December 2020 at 3:58pm

CATCHWORDS
MIGRATION – nomination – Direct Entry Nomination stream – Cook –adverse information disregarded – training benchmark commitments and obligations – genuine need for the nominator to employ a paid employee –  position located in regional Australia – actively and lawfully operating a business in Australia – no less favourable terms and conditions of employment – decision under review set aside

LEGISLATION
Migration Act 1958, s 245AR
Migration Regulations 1994, rr 1.13, 5.19

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 27 September 2018 to reject an application for approval of the nomination of a position in Australia under r.5.19 of the Migration Regulations 1994 (the Regulations).

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

3. In this case, the nominator has applied for approval of a nomination under the Direct Entry Nomination stream for the position of Cook (ANZSCO 351411), seeking to satisfy the criteria relevant to the Regional Sponsored Migration Scheme. The person identified for the position was Mrs Ramanndeep Kaur (formerly Ramandeep Kaur) who lodged an application for a Subclass 187 in connection with the nomination.

4. The delegate refused the application on the basis that the nomination did not satisfy r.5.19(4)(h)(ii)(D) of the Regulations because the delegate was of the view that the tasks to be performed in the position did not correspond to the tasks of a Cook and thus did not correspond to the tasks of an occupation specified by the Minister in an instrument in writing. The related visa application was refused because the nomination had not been approved.

5. Applications for review were lodged in respect of these decisions and each party was initially represented by the same registered migration agent.

6. Mr Kewal Kalra appeared before the Tribunal by phone on 12 August 2020 to give evidence and present arguments on behalf of the nominator. The Tribunal also received oral evidence from Mrs Ramanndeep Kaur by phone from Victoria.  Their migration agent was also in attendance. An interpreter in the Hindi (Indian) and English languages was made available for the nominee, however her assistance was not required.

7. The Tribunal has before it four other nominations made by the same nominator, three of them for the position of Cook and one for the position of Store Manager, with three different representatives. The matters were heard on different days, although those with the same representative were heard together. Following the hearings in these matters, the nominator changed representatives to a fourth representative who made further written submissions.

8. 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

9. 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.

10. The nominator is a business which currently operates four fuel service stations located in regional areas of NSW and Queensland. The nominated position will be based at the business trading as Caltex Yetholme Restaurant & Motel which is located on a highway in Yetholme, a regional town in NSW. The nominator claims to have been operating this business since April 2010. The site on which Caltex Yetholme Restaurant and Motel is situated measures approximately 560m² in size on which is situated a petrol station, convenience store and fuel shop; motel accommodation; a dine-in restaurant with a 100 seat capacity and a space which is used as a meeting room by truck drivers (with plans to convert the space into a function room for local businesses).

11. As background, according to the information provided on review, the company is part of a larger group of related and associated companies which operates similar businesses in NSW, Victoria, Queensland and Tasmania. A group organisation chart for ‘Kalra Group’ lists details of approximately 14 other entities and it is claimed that the total revenues of the group exceed $60 million per annum. It was submitted that Kalra Group is an autonomous, Australia based fuel and convenience corporation which offers elite quality fuels and competitive pricing. Since its establishment in 2009, the company has purchased and developed stores in various locations of Australia and currently has a network of service stations and related tenancies. The business model is to develop or renovate shut down/run down petrol station sites which it was submitted generates employment and enhances service to the local community. After taking over a site, the company constructs, renovates and modernises the sites which it then operates and may eventually sell. The Tribunal understands that many of these sites are in regional areas.

12. The Caltex Yetholme Restaurant and Motel site is one of their longest-held sites and is situated on the A32 highway between Bathurst and Lithgow. Mr Kalra explained in his statement of 14 September 2020 that on an average day, that stretch of road attracts 8,239 vehicles travelling westbound towards Bathurst, or eastbound towards Lithgow and Sydney, NSW and that, given their prime location, each of the above vehicles pass their business premises and can be considered potential customers.

13. By reference to records obtained from NSW Roads and Maritime Services, it appears that 78% of the traffic are smaller vehicles, whereas 22% are considered heavy vehicles including trucks and other such transportation. It is claimed that the vast majority of the motel accommodation guests and also restaurant diners are heavy vehicle drivers; and these customers opt for a hot, cooked meal rather than the take-away or fast food offerings available in nearby Bathurst or Lithgow.

14. The application form for the nomination under the Direct Entry stream was completed with ‘Cook’ as the position to be filled, and the same occupation which is ANZSCO code 351411. However, the delegate formed the view that the tasks of the position were of a less skilled position under ANZSCO, concluding that the menu and the purchases made by the nominator reflected little if any cooking was required, noting that pre-prepared food or pre-prepared items were used in the formulation and preparation of the items on the menu. The delegate formed the view that many of the tasks were skill level 5 (referring to the occupations of kitchenhand or fast food cook) and was not convinced that the duties performed by the nominee were those of a cook as described in the ANZSCO description. Accordingly, the delegate refused to approve the nomination finding that the position was not skill level 1 to 3 as required and r.5.19(4)(h)(ii)(D) was not met.

15. Based on the organisation chart provided for this matter, the nominator employs 15 staff at the Caltex Yetholme Restaurant and Motel site, with all of the positions reporting to the Store Manager who reports to the CEO. The chart reflects that there is one restaurant manager, four cooks, a kitchenhand and four others with unnamed positions, and then three names under a subheading ‘customer service assistants’. In submissions made prior to the hearing, it was submitted there was a genuine need for the services of four Cooks based on the size of the business, average number of customers, services being offered and the hours of operations of different segments of the business. This Tribunal is considering all four nominations for Cook, as well as the applications made for the positions of Store Manager and restaurant manager all situated at the Yetholme site.

16. In this case, the delegate considered that the application for approval had not identified a need for the nominator to employ another Cook. On reviewing these matters concurrently, the Tribunal raised other issues of concern which are addressed below.

17. In this matter, the Tribunal is focusing on the restaurant arm of the business. It had requested a breakdown of the income for each arm of the Yetholme business which was provided after the hearing. Initially, it was claimed that the split between each arm was, according to the letter that was provided from the external accountants dated 26 August 2020, as follows:

18. However, subsequently, it was claimed in a letter from SBX Accountants dated 1 September 2020 that sales breakdown for the site was as follows:

YEAR	Fuel & Shop sales ($)	Restaurant sales ($)	Motel sales ($)	TOTAL ($)
2017/18	7,956,090	902,926	30,894	8,889,910
2018/19	9,293,933	1,084,523	51,082	10,429,538
2019/20	7,098,377	1,052,998	37,401	8,188,776

1. The explanation for the amended figures was that “[t]he amounts of Restaurant Sales are now updated with recently identified relevant items which were incorrectly classified as 'Shop Sales' earlier, and now moved under Restaurant Sales” but that the correction does not change total sales amounts for each financial year. “Back-office” ledger reports, which breakdown sales under categories, were provided to substantiate the change.

2. The Tribunal notes that the sales for the restaurant on the amended figures increased by around $400,000 each year which is more than a 50% increase. The “back-office” ledger reports have headings of ‘shop sales’, ‘fuel sales’ and ‘motel’ under which various categories of sales appear. A category labelled ‘Restaurant’ appears under the heading ‘shop sales’. The categories that have been reattributed to restaurant sales in the latter table have been highlighted and bear the descriptions of “snack foods”, “sandwiches”, “instore bakery”, “beverages” and “hot beverages”. As there is a separate category of “restaurant”, and the other descriptions would appear to the Tribunal to be more consistent with sales in the service station shop rather than a sit-down restaurant, the Tribunal had concerns about the amended figures.

3. Additionally, the floorplans of the site indicate that the shop and restaurant occupy adjoining spaces in the main building, with no partition. Having regard to the photographs that were provided of customers in the restaurant section, the Tribunal notes that there are a large number of basic tables and seats on a tiled floor similar to McDonalds and KFC outlets. The Tribunal considers these outlets to be fast food establishments, even though they describe themselves as restaurants.[1] 

   [1] and (accessed on 26 November 2020)

4. In an email confirming the request for additional information discussed at the hearing, the Tribunal indicated that it had concerns as to whether the items which were now categorised as restaurant income instead of service station shop income (such as ‘snack foods’ and ‘sandwiches’) should be counted as income attributable to the restaurant and not the shop as originally claimed. In addition, the Tribunal referred to the floorplan and photographs of the inside of the building, which indicated that the shop and restaurant did not appear to be separated by a division such as a wall or similar. The Tribunal noted that the coffee machine appears to be located in between the cash register of the service station (shop) and the cash register of the restaurant on the floorplan and it had concerns as to whether the income from “hot beverages” was properly attributed to the restaurant instead of the service station as originally claimed.

5. Following that email, the Tribunal received notification that a new representative had been appointed by the nominator for the five matters for which hearings had been held. The newly appointed representative requested an extension to provide a response to which the Tribunal agreed. The response provided referred to the Department’s policy having changed over the years in respect of what a restaurant meant and was said to be relevant as the Member has previously raised concerns regarding the business’ sale of snack foods and their potential consumption in the restaurant area.

6. The submission emphasised that the business is a full-service restaurant, with patrons being served by wait staff. Reference was made to Mr Kalra’s statement that snack foods are only provided at the restaurant when such an accommodation is requested by a patron for their accompanying child/ren. It was submitted that this was done to provide a positive dining experience for the patron and is an exception and not the norm. It was submitted that snack foods which can be purchased at the store are not menu items.

7. While the submission on this point appears to have misconstrued the Tribunal’s initial concern, the Tribunal has proceeded to consider the nature of the establishment and whether it is properly described as a restaurant and thus whether the positions are for Cooks. According to ANZSCO, the occupation of Cook is for a person who “[p]repares, seasons and cooks food in a dining or catering establishment”, as compared to, for example, a Fast Food Cook being persons who “prepare a restricted range of foods in fast food establishments” which would be an occupation with a lower skill level and could not be approved under the RSMS. If the Tribunal accepted that it is a restaurant and the nominated positions are for Cooks, a further consideration is whether four cooks are appropriate for a restaurant of this size and nature.

8. In making an assessment as to the nature of the establishment, the Tribunal has considered the organisation chart provided, which reflects that there is a restaurant manager and four cooks as well as a kitchenhand employed to work in the ‘restaurant’, and four other staff. In a matter heard concurrently with this one for which a different organisation chart was provided, two of those staff were identified as waitstaff. While the position titles tend to support a view that the establishment is a restaurant, the floorplan, which indicates that the restaurant and shop are in the same building with no physical barrier between the two spaces, and the photographs of the seating area do not.

9. In Mr Kalra’s statement of 14 September 2020, he referred to there being a clear area on site for the “restaurant”, meeting room and convenience store on the floorplan and that, while no physical barrier exists, each facility has its own designated area. It was submitted that the “restaurant” facility is not aimed at customers who have purchased food and beverages through the convenience store, but instead caters to those who wish to enjoy a dine-in, full-menu experience. The meals are cooked to order and do not typically rely upon items pre-made or available in the convenience shop with regular users of the motel accommodation and restaurant services being heavy vehicle drivers, particularly those travelling in the evening.

10. It was submitted by the representative that items purchased in the convenience store are not to be consumed in the “restaurant” but that in some instances, for example where small children are present, snack foods may be purchased however these items do not ordinarily form part of the restaurant menu. It was submitted that the lack of barrier between each area is not indicative of a non-restaurant setting, nor does it demonstrate that they only serve pre-made fast-food or take away meals. The business’ restaurant offers a full dining experience to its patrons including cooked-to-order meals and these characteristics align with the expectations of PAM3 as to what is a qualifying restaurant employer nominated for migration purposes.

11. The Tribunal has also considered whether the duties of the position reflect that of a Cook in a restaurant by reference to the tasks of a “Cook” as set out in ANZSCO:

    ·examining foodstuffs to ensure quality

    ·regulating temperatures of ovens, grills and other cooking equipment

    ·preparing and cooking food

    ·seasoning food during cooking

    ·portioning food, placing it on plates, and adding gravies, sauces and garnishes

    ·storing food in temperature-controlled facilities

    ·preparing food to meet special dietary requirements

    ·may plan menus and estimate food requirements

    ·may train other kitchen staff and apprentices

12. The Tribunal took evidence from both Mr Kalra and the nominee in relation to the duties of the nominated position. Their evidence of their tasks was consistent with the above. The Tribunal was also provided with tables completed by the nominee and Mr Arun Tandon for two weeks in June 2020 recording temperatures of various kitchen equipment such as fridges and bain marie.

13. Given that similar tasks, although expressed in a more basic manner (such as washing, cutting, measuring and mixing foods for cooking; operating cooking equipment such as grills, microwaves and deep-fat fryers), are also undertaken by ‘Fast Food Cooks’ who are described in ANZSCO as food preparation assistants who “prepare a restricted range of foods in fast food establishments”, the Tribunal has also considered the nature of the food prepared and sold at the site in determining whether it is properly described as “a dining or catering establishment” or “a fast food establishment”. During the various hearings held for the nominations made by the same nominator and the associated visa applicants, the Cooks all gave evidence that they cooked food from scratch using fresh ingredients with a popular dish being the lamb cutlets.

14. The menu provided when the application for one of the positions of Cook was made included headings for salads, sandwiches and wraps, breakfast and a section for hot food which included chips, pies and chiko rolls. The invoices/receipts provided at the time suggested that a number of the menu items would be pre-made and merely reheated on-site. The menu prices did not exceed $13.99, which was for the ‘Big Aussie Breakfast’ which included sausages and eggs. On review, the nominator provided copies of the current menu, which no longer includes pies and chiko rolls. The menu includes a greater number and variety of dishes which include fast food items such as burgers but also extends to chicken dishes, fish dishes, and steak dishes which are charged between $25 to $33. The Tribunal was provided with further invoices/receipts for food items which includes invoices for pre-made items such as pies and chiko rolls from Blayney Wholesale Foods, but also receipts for fresh produce purchased from Bernadi’s Marketplace for vegetables and large quantities of meat from A+B Quality Meats, which appears to be a local butcher. The CEO claims that the Cooks prepare food from scratch using fresh ingredients and that while they still sell pies and chiko rolls to customers, their core customers of truck drivers prefer to sit down to a hot cooked meal. While the preferences of their core customers appears plausible, the preference for hot cooked meals does not by itself differentiate the food prepared by the Cooks from fast food items such as a hamburger, pizza or fish and chips which may also be prepared to order on-site from fresh ingredients. Notably, under ANZSCO, “preparing food such as hamburgers, pizzas, fish and chips” is the task of a ‘Fast Food Cook’.

1. The Tribunal has also considered the reviews from for Caltex Yetholme to see whether there are any comments about the food, which it considers would likely be opinions from third parties. The reviews include positive comments referring to the food available, although in comments where specific food items are mentioned those items are burgers and the egg and bacon rolls which are Fast Food items.

2. In relation to the evidence that the number of takeaway sales had increased this year, it is not clear whether this is predominately fast food items or other menu items. In addition, the Tribunal is cognisant that the hearings occurred during the COVID19 outbreak, a period in which various businesses have had to adapt their business model in order to deliver goods and services while complying with government directives on social distancing and lockdowns. During the hearing, the Tribunal queried whether the outbreak had any impact on the income from each business activity – being the fuel service station/store, restaurant and motel – and Mr Kalra stated that food sales had increased, whereas fuel sales had dropped due to less road traffic. Mr Kalra confirmed that the restaurant was still operating albeit with an increase in takeaway sales because the number of customers allowed to sit in the restaurant to dine had been reduced to ensure sufficient distance between tables, such that only every second row of tables could be occupied at any one time. The Tribunal accepts that this is a temporary measure due to the coronavirus outbreak and does not consider that it changes the nature of that arm of the business for the purposes of determining whether the nominated position is for a Cook.

3. The Tribunal has also had regard to the report of the monitoring investigation undertaken by an officer of the Department who had interviewed the nominee in 2017 following allegations of payment for visas (referred to in more detail below) and considered that she was working as a Cook.

4. On balance, the evidence suggests that both fast food and other food involving a higher level of skill in preparation and cooking is served at the site.

5. Therefore, while not without some doubt, the Tribunal is prepared to accept that the positions are located in an establishment that sells food and other meals that would distinguish it from an establishment that is generally accepted as a fast food outlet. Taking into account the duties of the nominee in the position to date, the Tribunal has formed the view that the duties of the nominated position align with the tasks of a Cook as described in ANZSCO.

6. As to whether four cooks are required for a dining establishment of this size which was the reason for refusal, the current opening hours of the restaurant are 6am to 10pm, 7 days per week. The evidence given to the Tribunal at the hearing was that only one Cook is rostered at any one time, which is consistent with the rosters that were subsequently provided. Based on a 38-hour working week for each Cook, the Tribunal calculated that the weekly hours of operation were 14 hours per day which would be a total of 98 hours per week and that three cooks working full-time would be sufficient to operate the restaurant with these operating hours.

7. In addressing the Tribunal’s concerns that the number of Cooks appeared excessive, Mr Kalra explained that it was necessary to have four Cooks as there were inevitably absences either from planned or unplanned leave, and that he was prepared to engage an additional/extra cook on a full-time basis to ensure the smooth running of the restaurant. He further added that when the cooks have less pressure on them to perform, they are able to maintain a high standard of food, whereas in the past when there has been a staff shortage, this has affected the quality of food prepared. Mr Kalra added that it was of utmost importance that the food was of a high standard to ensure repeat customers, as people are prepared to travel to eat at the restaurant if the food is good, which would have a flow on affect to the other business activities of selling fuel and providing motel accommodation. Mr Kalra also referred to plans for expansion including changing a space currently used as a rest area for truck drivers to a conference space for the purposes of local users and potentially increasing catering.

8. While the Tribunal has taken into account that leave taken by an employee, whether planned or unplanned, may lead to fewer staff present onsite to deliver the services, the CEO’s response suggested that there would be extra capacity and that there is not a current need for the nominator to employ four cooks full-time. It is further noted that at the time the RCB advised that it was satisfied that there was a genuine need, the restaurant was operating 24/7 whereas Mr Kalra advised that the restaurant opening hours are 6am to 10pm, 7 days per week, and that usually after 8 pm it was less busy. In calculating the number of hours per week, the Tribunal notes that 16 hours per day for 7 days would be a weekly total of 112 hours. Based on the evidence that the Cooks usually worked on their own, that would mean each Cook would be only required to work 28 hours per week which is less than the 38 hours per week set out in their employment contracts.

9. Following the hearing, the Tribunal requested further information about business expansion plans. The response included a breakdown by hour of the needs of the business, allowing for annual and sick leave and additional need during 8 weeks of the year for peak times such as during the first two weeks of October when the Bathurst car races are scheduled and school holidays. It was therefore claimed that the total hours required was 6736 hours and that the actual working hours of four cooks was 6992 hours such that there was approximately an allowance of an extra 0.7 hours per day. Due to unplanned absences, it was claimed that a minimum of four cooks were required to run the business smoothly. Mr Kalra also referred to plans to extend the restaurant hours and services and provided details of these plans in a document titled ‘Business Profile and Business Plan’ following the hearing. The plans are to extend the restaurant’s current trading hours from 6.00am to 10.00pm, to commence serving meals from 5.00am to 12.00am. This was based on the identification of a need from customers, particularly the late-night business patrons who prefer freshly cooked meals over fast food options when they sit down to eat. It was submitted that extended hours are put in place for peak traffic times, such as the race weekend and school holidays. It was emphasised that, to date, the nominator has not been able to extend trading hours to accommodate its truck driver patrons due to staffing issues, namely the inability to secure and retain cooks with the requisite skill level and commitment to developing the restaurant. The Tribunal understands based on the evidence that the COVID19 outbreak has also had an impact on opening hours with the restaurant, sometimes closing an hour or so earlier depending on whether there are customers to serve. Furthermore, the evidence at hearing was that the nominee in this matter had not returned to work after taking leave, as she had gone to Victoria where her family live, and the borders had closed due to COVID19. This suggests to the Tribunal that there is not a current need for four cooks as the workload was being shared amongst three Cooks, although the Tribunal notes that some of the evidence indicates that the Cooks appear to be working on average slightly more hours than 38 hours per week.

10. The claimed need for the four Cooks was summarised as follows:

    ·The company wishes to develop the revenues of its restaurant arm of the business;

    ·The restaurant’s turnover has the potential to grow;

    ·The restaurant has the capacity to provide extended hours of operation that will cater for night travellers;

    ·The business is located in a regional area which is not close to major centres;

    ·The company needs skilled and committed staff to provide it with the confidence it requires to invest heavily in the promotion of the restaurant as noted above;

    ·Without the support of the nominated four cooks the restaurant will not be able to extend its hours of operation and it will not be able to maintain the level of service it needs to meet the expectations of restaurant patrons;

    ·Recruitment and retention of staff particularly skilled staff has been a difficult matter for the company over the years;

    ·The RBC has acknowledged the need for these positions with positive endorsements;

    ·The business has the potential to grow with the support of the proposed four cooks. This growth will provide jobs and opportunities for current and future employees of the company.

11. In terms of the size of the restaurant, the Tribunal considered the overall sales generated by this arm of the business. The nominator initially claimed that “restaurant” sales for each of the past three financial years was approximately $550,447, $680,911 and $668,456. Subsequently, it was claimed that “restaurant” sales were $902,926, $1,084,523 and $1,052,998.

12. The Tribunal was provided with a more detailed explanation from Mr Kalra about the amended sales, where he states that due to the nature of the back office software, if a customer in the restaurant ordered, for example, a steak with hot chips, coke and a dessert with coffee, the only part of that order which would reflect as a ‘restaurant’ sale in the back-office reports would be the steak, while hot chips would be assigned to ‘snack foods’, coke to ‘coke products’, coffee to ‘hot beverages’ and cake to ‘inhouse bakery’. This is somewhat different to the explanations given earlier that when snack food is ordered in the restaurant it is for accompanying children and is the exception rather than the norm.

13. A further letter was provided from the accountant dated 15 September 2020, advising that in preparing the letter of 26 August 2020, some items such as sandwiches, snacks and beverages were not identified as part of the restaurant’s trade. The accountant stated that the error was due to the back-office reports of the business categorising these sales as part of the shop sales and as individual categories such as “beverages”. Having reviewed the back-office reports with the nominator, the accountant said that it became apparent that the revenues of the restaurant in the 26 August 2020 document were less than actual sales and that after consultation and further understanding of the back-office reports, the amended figures in the letter dated 1 September 2020 were compiled.

14. It remains unclear to the Tribunal how the business is able to differentiate sales of items described as ‘snack foods’, ‘sandwiches’, ‘instore bakery’, ‘hot beverages’ and 50% of ‘beverages’ as restaurant sales as opposed to shop sales given these general descriptions. While the Tribunal has doubts that all the ‘snack foods’ sales which amounted to $30,000 are restaurant sales as submitted, it is prepared to accept that total sales attributable to the restaurant part of the business are higher than originally claimed in the letter of 26 August 2020.

15. Having also taken into account the plans to extend operating hours and convert an existing space on site to be marketed to local businesses and the nearby correction centre for lunch meetings or work related dinners, the Tribunal is prepared to accept that there is a genuine need for four Cooks. It was confirmed that the nominee had returned to work after the NSW-Victoria border had reopened and the Tribunal considers that it is possible that the adjustments made for COVID19 could be further relaxed in the near future to enable the plans to be implemented.

16. The Tribunal will now proceed to consider the remaining requirements.

    The application is compliant: r.5.19(4)(a)

17. 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.

18. The material on the departmental file is that the application was made on form 1395, or 1395 (Internet) and accompanied by the fee prescribed in r.5.37. The application identified a need for the nominator to employ a paid employee to work in the position under the nominator’s direct control. The nominated position and occupation identified was Cook.

19. A written certification stating that the nominator has not engaged in conduct in relation to the nomination that contravenes s.245AR(1) of the Act was provided.

20. 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)

21. Regulation 5.19(4)(b) requires that the nominator is actively, lawfully and directly operating a business in Australia. Information before the Tribunal includes, business activity statements, financial reports, company tax returns, organisational chart, an ASIC current and historical company extract, and oral evidence given at the hearing. The Tribunal also requested, and was provide with, a letter from the accountant setting out the sales attributable to the Yelthome site.

22. The Tribunal finds that the nominator is actively and lawfully operating a business in Australia, with multiple fuel outlets in various locations in NSW and Queensland and directly operates that business.

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

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

24. 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 information before the Tribunal is that the nominator operates a number of fuel outlets located in various locations in NSW and Queensland. There is no information to indicate that it is involved in labour-hire activities to an unrelated business.

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

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

26. 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. According to the most recent employment contract provided, the nominee will be employed as a Cook on a full-time basis for a further period of two years upon grant of the Subclass 187 visa. There is nothing in the terms to exclude the possibility of extension.

27. The Tribunal has considered the financial statements provided and noting that the wages for the nominated position are already being paid to the nominee who has occupied the positions since 2016, the Tribunal accepts the claim that the employment will be full-time and provided for at least two years. Accordingly, the requirement in r.5.19(4)(d) is met.

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

28. 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.

29. The Tribunal has before it a copy of the contract provided with the nomination and an updated contract dated 2 March 2020 (signed 4 March) which sets out the location and salary of $56,316 plus superannuation of 9.5%.

30. In terms of whether the salary payable for this position would be no less favourable than those that are/would be provided to an Australian citizen or permanent resident performing equivalent work in the same workplace at the same location, the Tribunal was referred to the Vehicle Manufacturing Repair Services and Retail Award 2020, as well as the Restaurant Industry Award 2010 and Hospitality Industry (General) Award 2020. It was submitted that the proposed annual salary of $56,316 was determined by the company to be appropriate given the following considerations: the skills, experience and industry exposure of each review applicant; the employment history of each visa applicant; the lack of locally skilled and suitable Australian citizen or permanent resident workers; and the breadth of duties and tasks to be undertaken by each visa applicant. It was submitted that the determination of the Cook (Level 6, Grade 5) classification also takes into consideration a breakdown of the employees’ formal training, skills, experience as well as their overall exposure to the culinary industry.

31. It was submitted that when determining the Australian Market Salary Rate (AMSR) applicable to each of the visa applicants, the nominator had regard to the classification of Roadhouse Attendant (primarily cooking meals other than takeaway) under the Vehicle Manufacturing Repair Services and Retail Award, which gives a base weekly wage applicable of $818.50. However, this figure will increase depending upon the shifts worked and penalty rates paid out.

32. Further, the classification of Cook (Level 6, Grade 5) of the Restaurant Industry Award 2010 and Hospitality Industry (General) Award attracts a base weekly wage applicable of $941.10. Again, this figure will increase depending upon the shifts worked and penalty rates paid out.

33. It was submitted that a Cook earning a Level 6 (Grade 5) base weekly wage will earn approximately $48,937.20 per annum while a Roadhouse Attendant as outlined above will earn approximately $42,562.00.

34. In addition to the above, it was submitted that each nominee must also be paid in accordance with Instrument in Writing 18/033 which dictates that pay considerations are not less than the current Temporary Skilled Migration Income Threshold (TSMIT) which is set at $53,900.00.

35. It was submitted that the above weekly base Award wages fall beneath the current TSMIT, but that the nominator had also taken into consideration each of the nominee’s skills, experience and relevant employment history with the business to determine an appropriate rate of pay. The employer had also taken into consideration factors including the location of the Caltex Yetholme Restaurant and Motel, as well as the limited opportunities to recruit and employ locally skilled Australian workers in the nominated roles. It was submitted that in such circumstances the person could be paid above the Industry Award rate.

36. The contract for this position does not refer to the applicable Award but makes reference to the Fair Work Act 2009. The Tribunal was more concerned with whether the wages paid were below the Award rate and how the pay rates of other employees compared. Having regard to the terms of the contract, the Tribunal finds that the conditions applicable to the 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.

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

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

38. 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. 

39. The Tribunal was given information from the Department on 10 July 2020 that there were three allegations from 2015 and 2016, alleging that the business was being paid and/or requesting cash for visas. The allegations were anonymous but the 31 March 2015 allegation was claimed to have come from an ex-employee at Caltex Wallerawang, the 28 December 2015 allegation was from an individual who’s friend responded to a Gumtree advertisement and the 3 March 2016 allegation was received from a job applicant. In another RSMS matter before the Tribunal, the Department had also forwarded information from the Fair Work Ombudsman regarding an allegation that the agency received from 2017 regarding an unspecified workplace relations issue and a copy of the recommendation report from the monitoring that was undertaken by the Department in 2017 following the allegations. The monitoring period was for the 2016 calendar year and involved phone interviews with the two 457 visa holders employed at the time, who were sponsored for the positions of Cook and Restaurant Manager, and an examination of documents from these parties and the banks. The monitoring was finalised in May 2017 as satisfactory and included the following: “the allegation received… related to cash for visa activities, however, no evidence to support the allegation was uncovered during this monitoring event.”

1. The Tribunal referred to these matters at the start of the hearing and noted that the matters had already been discussed with Mr Kalra at an earlier hearing on 7 August 2020 regarding a nomination for a different position. Mr Kalra denied that any such activities had occurred.

2. While cash for visa activities would be adverse information, the allegations are anonymous and there is nothing before the Tribunal which corroborates the claims made in the allegations. Furthermore, the monitoring that was undertaken by the Department around the time of the allegations did not reveal any evidence to support the allegations. Given this, the Tribunal does not consider that the allegations amount to adverse information as defined and finds that there is no adverse information known to Immigration about the nominator or person associated with the nominator. It thus finds that the requirements of r.5.19(4)(f) has been met.

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

3. Regulation 5.19(4)(g) requires that the nominator has a satisfactory record of compliance with the laws of the Commonwealth, and of each State or Territory in which the nominator operates a business and employs employees in the business, relating to workplace relations.

4. It is claimed that the nominator complies with workplace relations laws. The Tribunal requested, and was provided with, a number of payslips for other employees at the Yelthome site. The payslips include the hourly rates which appear to be consistent with the relevant Award, and Job Keeper payments were relevant, as well as the correct rate of superannuation and reflects proper accrual of leave entitlements. While the Department had forwarded to the Tribunal, information from the Fair Work Ombudsman regarding a complaint received in 2017 in one of the other nomination applications made by the same nominator, the complaint does not appear to have been investigated. The Tribunal considers that, aside from a single complaint which did not result in any findings against the nominator, the nominator has a satisfactory record of compliance and the requirements of r.5.19(4)(g) are thus met.

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

5. Regulation 5.19(4)(h) contains a number of alternative requirements depending on the location of the nominator’s business. For a position in a business located in regional Australia, the requirements are that there is a genuine need for the paid position under the nominator’s direct control which cannot be filled by a locally resident Australian citizen or permanent resident. The tasks of the position correspond to those of an occupation specified in the relevant legislative instrument, the occupation is applicable to the proposed employee in accordance with the specification of the occupation and that a regional certifying body has advised the Minister about certain matters relating to the position.

6. The nomination was made on the basis that the position and business is in regional Australia. The Tribunal finds that Yelthome, 2795, which is a postcode of NSW, is a part of Australia specified as ‘regional Australia’, and that the business is located there. The requirements of r.5.19(4)(h)(ii)(A) are therefore met.

7. The Tribunal considers that the evidence presented supports a finding that there is a genuine need to employ a paid employee to work in the position under the nominator’s direct control. It notes that the nominee has been employed by the nominator at this site since 2016 and, for the reasons outlined above as to the nature of the position, the Tribunal accepts that the nominee has been responsible for the tasks listed for the occupation of Cook in ANZSCO at the Yelthome site. The Tribunal accepts that there is a genuine need to employ a paid employee to work in the position under the nominator’s direct control. Therefore, the requirements of r.5.19(4)(h)(ii)(B) are met.

8. Mr Kalra claimed at the hearing that it had been difficult to recruit and retain skilled staff over the years, referring to the Yetholme site as being “in the middle of nowhere”. The nominee herself said that the role was for the “needy” and elaborated that she herself needed sponsorship so was prepared to move there. There is limited corroborative evidence of attempts to recruit a local, but nonetheless, the Tribunal is prepared to accept on the oral evidence that the nominated position cannot be filled by an Australian citizen or permanent resident who is living in the same local area. The Tribunal finds that the requirements of r.5.19(4)(h)(ii)(C) are met.

9. As set out in detail above, having carefully considered the evidence before it, the Tribunal accepts that the nominee had previously carried out tasks which correspond to those of a Cook until her recent leave. These are the tasks to be performed in the position and, as Cook is a Skill Level 2 occupation, it corresponds to an occupation that is listed in the relevant instrument. There are no additional specifications made in the relevant instrument in relation to this occupation. Therefore, the requirements of rr.5.19(4)(h)(ii)(D) and (DA) have been met.

10. Finally, Regional Development Australia – Central West, which is a Regional Certifying Body (RCB) located in the same State as the position, advised the Minister on 5 July 2016 about the matters in r.5.19(4)(e) and r.5.19(4)(h)(ii)(B) & (C). There is no evidence before the Tribunal to indicate that the advice does not remain valid. The RCB was satisfied that there is a genuine need for the nominator to employ the visa applicant, that an Australian permanent resident or citizen cannot fill the position locally and that the terms and conditions of the employment will be no less favourable than that which would be provided to an Australian citizen or permanent resident. The Tribunal therefore finds that the requirements of r.5.19(4)(h)(ii)(F) have been met.

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

    Conclusion

12. Based on the findings above, the Tribunal is satisfied that the nominator meets the requirements of r.5.19 for approval of the nomination of the position in Australia.

    DECISION

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

    Wan Shum
    Member