Gosavi Pty Ltd (Migration)

[2020] AATA 4512

Gosavi Pty Ltd (Migration) [2020] AATA 4512 (27 October 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Gosavi Pty Ltd

CASE NUMBER:  1804283

HOME AFFAIRS REFERENCE(S):          BCC2016/1903375

MEMBER:Susan Hoffman

DATE:27 October 2020

PLACE OF DECISION:  Perth

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

Statement made on 27 October 2020 at 11:03am

CATCHWORDS
MIGRATION – application for approval of nomination of position – direct entry nomination stream – genuine need for position – one director resides in another country, and the other has other business interests – tasks of position – attempts to recruit citizen or permanent resident – COVID-19 restrictions – decision under review set aside

LEGISLATION
Migration Regulations 1994 (Cth), r 5.19(4)(h)

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 29 January 2018 to reject the applicant’s application for approval of the nomination of a position in Australia under r.5.19 of the Migration Regulations 1994 (the Regulations).

2. The applicant applied for approval on 31 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 applicant has applied for approval of a nomination, seeking to satisfy the criteria in the Direct Entry nomination stream.

4. The delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19(4)(h) of the Regulations. The delegate was not satisfied that the applicant had shown there was a genuine need for a paid employee in the position nominated by the applicant which was that of an Office Manager (ANZSCO code 512111).

5. The applicant was represented in relation to the review by its registered migration agent.

6. The Tribunal invited the applicant to provide further information which was duly submitted on 14 April 2020 (about 180 pages) and also on 14 September 2020. A hearing invitation was issued on 21 September 2020 for a hearing to be held on 8 October 2020. The invitation was declined via the appropriate form. The option to not participate in the hearing and consent to a decision being made on the papers was ticked on that form. The Tribunal (via the registry) checked with the representative that the applicant did not want to attend a hearing and had consented to the decision being made on the papers. This was confirmed as being the case.

7. The Tribunal wrote to the applicant again on 6 October 2020 inviting it to provide further information and the applicant responded in a submission dated 20 October 2020, following which the Tribunal made its decision on the papers.

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

1. 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.  According to departmental records, Gosavi Pty Ltd operated three businesses, which were restaurants. There are two directors. Mr Kedar Gosavi is based in India and (at that time) travelled intermittently to Australia. The nominator is Mr Ghosavi Badri, who says he is a shareholder and director of another company which requires his time and focus. From this point on unless otherwise specified, a reference to Mr Badri is to Mr Ghosavi Badri.

11.  According to a business organisation chart and other evidence submitted to the Tribunal, the business now operates as the Bollywood Restobar as two of the three restaurants which used to operate, have been closed.

12.  The person nominated for the position of Office Manager is Ms Priyanda Sachdeva.

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

13.  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.

14.  The application form was included in the departmental file. Based on that document, the Tribunal was satisfied that application was made on the approved form and was accompanied by the prescribed fee.

15.  Unlike later versions of that form, the question pertaining to conduct contravening s.245AR(1) was not included in the form, and a separate form was sent to the applicant in relation to the s.245AR(1) declaration.

16.  Whereas the Department has no record of receiving that form at the time the application was made (31 May 2016), the applicant submitted to the Tribunal a copy of the form dated 31 May 2016.

17.  Given the time that has elapsed since the application was made, it is highly unlikely that it would be possible to ascertain whether or not the applicant did submit the form at the time of application and something went awry such that it was not included in his departmental file.

18.  The Tribunal concludes that it is appropriate to give the benefit of the doubt to the applicant as it is possible there was administrative error on the part of the Department, and finds that the certification pertaining to s.245AR(1) was provided to the Department at the time of application.

19.  The application identified the position of Office Manager (ANZSCO code 512111) who would work under the nominator’s direct control.

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 applicant is actively, lawfully and directly operating a business in Australia.

22.  The applicant submitted to the Tribunal various records including BAS covering the period January 2018 to September 2019, business tax returns and financial statements for 2017/18 and 2018/19, and an extract dated 15 July 2020 from the database of the Australian Securities and Investment Commission, showing that Gosavi Pty Ltd was registered as a company on that date.

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.

25.  The businesses operated by the applicant have been restaurants. There was no evidence of the applicant being involved in labour hire.

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

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

27.  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. 

28.  According to a submission dated 14 April 2020, the nominee, Ms Priyanka Sachdeva, joined the company in February 2020 as full-time office manager. (There are numerous records that show she has worked for the business since 2015 in other capacities on a part-time basis.) The documents included an employment contract dated 7 April 2020 which stated her employment would start within one month of her visa being approved, and was for a minimum of two years, and continuous thereafter until such time as either the employer or the employee terminated the employment.

29.  The contract specified that the employment was full-time.

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

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

31.  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.

32.  The position is based in the Perth suburb of Osborne Park. In an undated letter to the Tribunal, Mr Gosavi wrote that the salary offered to the nominee was consistent with the market rate obtained from payscale.com.

33.  The Tribunal accessed payscale.com on 16 September 2020. According to that, the average salary for an office manager was $60,914 and the range was from $47,000 to $82,000, with Perth office managers receiving 3% more than the national average which takes $60,914 to $62,741. A person with one to four years’ experience in the role would be paid about $56,876 ($58,582 if increased by 3%).

34.  The nominee’s salary is $55,000 plus superannuation which is broadly consistent with the payscale data.

35.  The terms and conditions as set out in the contract with regard to hours and leave are consistent with usual employment practice, for example, four weeks’ paid leave plus public holidays and up to ten days of paid sick leave. The provision of long service leave is in accordance with Western Australia (WA) state legislation.

36.  The Tribunal was satisfied that the terms and conditions applicable to the position are no less favourable than those that would be provided to an Australian citizen or permanent resident performing equivalent work in the same workplace at the same location.

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.  There was no evidence before the Tribunal of any adverse information known to the Department about the nominator or a person associated with him.

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

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

41.  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.

42.  There was no evidence before the Tribunal of the applicant not having a satisfactory record of compliance with workplace relations laws in the locations in which it operates a business and employs staff.

43. 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)

44.  Regulation 5.19(4)(h) contains a number of alternative requirements. These are set out in detail in the attachment to the decision but can be briefly summarised as requiring either that:

·(i) the tasks to be performed in the position will be performed in Australia and correspond to those of an occupation specified by the Minister, the occupation is applicable to the proposed employee in accordance with any specifications made in that instrument, and specified training requirements are met; or

·(ii) the position and nominator’s business is located in regional Australia, there is a genuine need for the paid position under the nominator’s direct control which cannot be filled by a locally resident Australian citizen or permanent resident, the tasks of the position correspond to those of an occupation specified in the relevant legislative instrument, the occupation is applicable to the proposed employee in accordance with the specification of the occupation and that a regional certifying body has advised the Minister about certain matters relating to the position.

45. In this case, r.5.19(4)(h)(ii) applies. The position and business, being based in Perth, are located in regional Australia and the Tribunal finds accordingly.

46.  The regional certifying body for WA is Skilled Migration WA, part of the Department of Training and Workforce Development. The departmental file includes form 1404 which is used by Skilled Migration WA as a regional certifying body make a declaration to the Minister that the nomination application has been assessed as satisfying the following:

• There is a need for a paid employee in the nominated position within the business activities of the nominating employer;

• The nominated position cannot be filled by an Australian citizen or permanent resident who is living in the same local area; and

• The terms and condition applicable to the nominated position are 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.

47.  The Tribunal needs to satisfy itself that these criteria have been met. It has already found that the terms and conditions applicable to the position are no less favourable than those that would be provided to an Australian citizen or permanent resident performing equivalent work in the same workplace at the same location.

48.  Mr Gosavi submitted that there is a genuine need to employ an office manager, because he has other business interests and does not have the time to manage the restaurant business on his own. He submitted that the other director, Mr Kedar Ghosavi, has only travelled intermittently to Perth. Based on departmental documents, the business used to operate three restaurants, Two Fat Indians, Bollywood Restobar and Thali Food Court. In recent submissions, Mr Badri stated that two had been closed and only the Bollwyood Restobar was still operating. According to its website - thebollywoodrestaurant.com.au - it can cater for corporate functions, staff parties, and all-day seminars. A wedding package is available for a minimum of 80 guests.

49.  Tasks for an office manager according to ANZSCO include the following:

·   contributing to the planning and review of office services, and setting priorities and office service standards

·   allocating human resources, space and equipment

·   assigning work to and monitoring work performance of staff

·   managing records and accounts of the office

·   liaising with Professionals to coordinate office business and to facilitate resolution of problems

·   ensuring office equipment and supplies are maintained

·   ensuring compliance with occupational health and safety regulations

·   ensuring work complies with relevant government legislation, policies and procedures

·   coordinating personnel activities such as hiring, promotions, performance management, payroll, training and supervision

50.  These are broadly consistent with the tasks set out in an advertisement placed on 13 March 2017, discussed further below. The Tribunal is satisfied that the business requires an office manager as clearly there is considerable administration involved in managing all aspects of a  restaurant that caters for corporate functions, weddings and all-day seminars. It is also satisfied that these are duties Ms Sachdeva is expected to undertake as office manager for the applicant business.

51.  As general background, and based on Mr Gosavi’s submission and that of his representative, Ms Sachdeva had been working for the company since September 2015 as wait staff at Two Fat Indians. She also assisted with administration-related work. After that restaurant was sold, she joined the Bollywood Restobar, where she worked front of house and also assisted with administration work.

52.  On 31 May 2016, the business lodged a nomination application naming Mr David Cameron as the sponsored employee for the position of office manager. In a submission to the Tribunal received 14 April 2020, Mr Gosavi wrote that they had made genuine attempts to fill the position of office manager by placing adverts on and They received seven applications and interviewed three people. They selected Mr Cameron and nominated him for the position. According to Mr Gosavi, there were restrictions on his work rights, and he could not join the company.

53.  On 15 March 2017, the applicant’s representative contacted the Department by email advising that Gosavi Pty Ltd wanted to nominate a different person for the same position and asked if such a change could be made using a particular form. The Department responded on 16 March 2017 that if the nominating employer wanted to sponsor a new employee, they would need to notify the Department in writing preferably using company letterhead.

54.  On 20 March 2017 Mr Gosavi wrote to the Department notifying a change of nominee, naming Ms Sachdeva. He stated that “As a company, we have continued to carry out efforts to find and employ the right candidate for our company”. Accompanying this letter was an employment contract signed by Mr Gosavi and Ms Sachdeva, stating that her employment would start within one week of her visa approval.

55.  Ms Sachdeva’s visa application was lodged on 24 March 2017 and named Mr Cameron as her partner.

56.  The Tribunal will now consider whether the position cannot be filled by an Australian citizen or an Australian permanent resident who is living in the same local area, which in this case is a Perth suburb.

57.  This criterion was addressed in a submission from the representative who wrote “The nominator has provided a letter of genuine intent to sponsor. This outlines the labour market testing that was carried out by the nominator.”

58.  Based on Mr Gosavi’s submission of 14 April 2020, the labour market was tested in early 2016 prior to Mr Cameron being offered the position and some internal advertising was undertaken the following year, but nothing since about March 2017.

59.  The Tribunal wrote to the applicant on 6 October 2020 inviting it to provide further information regarding market testing from, say, 1 January 2017. In response, the applicant submitted a copy of an online advertisement placed by Gosavi Pty Ltd with careerone for an Office Manager. The advertisement was placed on 13 March 2017 and expired on 12 April 2017.

60.  It was submitted that there were approximately 26 applications received in response to the advertisement, ten of which were shortlisted. Approximately five applicants attended an interview. None of them were offered the position.

61.  The submission stated that about 16 candidates were not shortlisted as they were overseas or interstate; the applications were invalid in that they did not include a resume or cover letter and/or lacked enough detail; and/or the candidates did not meet the selection criteria as they lacked relevant qualifications, skills or work experience.

62.  Of the five candidates who were interviewed, those who had the appropriate qualification lacked the experience, did not have the workplace skills, and lacked the enthusiasm and correct attitude required for the position.

63.  Others were not able to commit to working full-time. Some did not have good references supporting their application and some were not able to communicate effectively in English which was a requirement for the role.

64.  Mr Gosavi wrote that the availability of the position was made known to the-then current staff and Ms Sachdeva applied for it. She was interviewed, selected for the position and offered a full-time contract. She possessed the relevant qualifications which she had obtained in India, being a Bachelor’s degree and a Master’s degree in Business Administration. She had work experience in the industry having worked for Gosavi Pty Ltd since 2015. Her attitude to work and other attributes were known to Mr Gosavi as he had known her since then.

65.  Mr Gosavi wrote that the decision to sponsor Ms Sachdeva was based entirely on qualifications, work experience, and understanding of the hospitality industry.

66.  The applicant submitted, and the Tribunal accepts, that as this is now an old advertisement, candidates’ details were not stored on the careerone portal. The Tribunal accepts that the applicant cannot reasonably be expected to now provide corroborating evidence of the 26 replies to the advertisement and why none of the people who replied were suitable. This is because of the passage of time since the advertisement was placed in March 2017.

67.  The applicant submitted that Ms Sachdeva, who was restricted to working 20 hours a week because she held a student visa, started working full-time in the advertised position in February 2020. Between March 2015 and then, Mr Gosavi and his wife covered the shortfall in hours. It was also submitted that the difficulty in finding a full-time person to work as an office manager was a reason why he closed two restaurants.

68.  In his submission dated 20 October 2020, Mr Gosavi wrote that in the current situation because of Covid-19, it is very hard to find staff especially with the border restrictions into WA from interstate and the reduction in numbers of international students, working holiday visa holders, and other temporary visa holders who could otherwise take up casual, part-time or full-time positions. The Tribunal understands from this that the industry-wide staff shortages makes it harder for an employer to find Australian citizens or permanent residents who could fill a particular vacancy.

69.  The Tribunal accepts the applicant’s contention that the position cannot be filled by an Australian citizen or permanent resident who is living in the same local area.

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

CONCLUDING PARAGRAPH

71. 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

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

Susan Hoffman
Member

ATTACHMENT  -  EXTRACTS FROM THE MIGRATION REGULATIONS 1994

5.19Approval of nominated positions (employer nomination)

…

1. 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

1. 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).