Guru's Food Temptation Pty Ltd (Migration)

Guru's Food Temptation Pty Ltd (Migration) [2022] AATA 28 (5 January 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Guru's Food Temptation Pty Ltd
CASE NUMBER:  1834833
HOME AFFAIRS REFERENCE(S):          BCC2017/1021473
MEMBER:Terrence Baxter
DATE:5 January 2022
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Statement made on 05 January 2022 at 10:03am
CATCHWORDS
MIGRATION – application for approval of nomination of position – direct entry nomination stream – tasks of position – restaurant manager – comparison of nominee’s tasks and ANZSCO description – active involvement of company director/chef in some tasks – consistent oral evidence given by director and nominee separately – decision under review set aside
LEGISLATION
Migration Regulations 1994 (Cth), r 5.19(4)(h)(ii)(D)
CASES
Bharaj Construction Pty Ltd v MIBP [2016] FCCA 902
MIBP v Jayshree Enterprises Pty Ltd [2017] FCA 264
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 9 November 2018 to reject the applicant’s application for approval of the nomination of a position in Australia under reg 5.19 of the Migration Regulations 1994 (Cth) (the Regulations).
The applicant, Guru’s Food Temptation Pty Ltd, applied for approval on 15 March 2017. The applicant nominated Mrs Parneet Kaur (the nominee) in the position of Restaurant Manager. The requirements for the approval of the nomination of a position in Australia are found in reg 5.19 of the Regulations which contains two alternative streams: a Temporary Residence Transition nomination stream (reg 5.19(3)) and a Direct Entry nomination stream (reg 5.19(4)). If the application is made in accordance with reg 5.19(2) and meets the requirements of either stream, then the application must be approved. If any of the requirements are not met, then the application must be refused: reg 5.19(5).
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 that the applicant’s nomination did not satisfy reg 5.19(4)(h)(ii)(D) of the Regulations because the delegate found that the tasks to be performed in the position do not correspond to the tasks of an occupation specified by the Minister in an instrument in writing.
The applicant lodged an application for review of the delegate’s decision with the Tribunal on 27 November 2018.
The sole director of the applicant company, Mr Gurvinder Singh, appeared before the Tribunal by video conference on 2 November 2021 to give evidence and present arguments. The hearing was a joint hearing with the application for review of a decision to refuse the visa application of the nominee. The Tribunal also received oral evidence from the nominee by video conference.
The Tribunal exercised its discretion to hold the hearing by video conference. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by video conference, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by video conference
The applicant was represented in relation to the review by Mr Vikram Bir of Benkins Migration Services. The representative attended the Tribunal hearing by video conference.
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 reg 5.19(4), which is extracted in the attachment to this decision. For the nomination to be approved, all the requirements must be met.
Evidence presented prior to the hearing
The applicant produced to the Department of Immigration and Border Protection (now the Department of Home Affairs) (the Department) the following documents:
a.An ASIC record of business name registration for Guru’s Star Café & Restaurant.
b.An ASIC current company extract of the applicant.
c.Business bank statements of the applicant for the periods from November to December 2016, July to September 2016 and August 2017 to April 2018.
d.A transfer of lease of the applicant’s business premises.
e.An ASIC certificate of registration of a company for the applicant.
f.Market salary research.
g.A current ABN Lookup form of the applicant.
h.A financial report for the period from July to December 2016.
i.Menus of the business.
j.A PTE Academic test report of the nominee.
k.Activity statements for the period from July 2016 to March 2018.
l.A job advertisement for the position accompanied by resumes of unsuccessful candidates for the position.
m.A SEEK invoice regarding an advertisement for the position dated 25 January 2017.
n.A record of results issued by Sunshine College of Management Pty Ltd for the nominee.
o.The nominee’s passport.
p.An employment reference from Mr Singh regarding the nominee, dated 13 February 2017.
q.A Diploma of Business awarded to the nominee.
r.Submissions from Mr Singh dated 13 February 2017.
s.An employment contract of the nominee dated 13 February 2017.
t.A business plan of the applicant.
u.A Form 1404 issued by the Regional Certifying Body (RCB), Regional Development Australia, Murray dated 9 May 2017.
v.A financial report for the 2017 financial year.
The applicant produced to the Tribunal the following documents:
a.A copy of the delegate’s decision.
b.Copies of documents previously produced to the Department.
c.A company tax return for the 2017 financial year.
d.Photos of the applicant’s business premises.
e.An updated ASIC record of business name registration of Guru’s Star Café & Restaurant.
f.An ASIC company summary and company details extract of the applicant.
g.A financial report and company tax return for the 2020 financial year.
h.Activity statements for the period from July 2019 to June 2021.
i.A business bank statements of the applicant for the period from June to July 2021.
j.An organisational chart signed by Mr Singh and dated 3 August 2021.
k.A position description dated 5 August 2021.
l.An employment contract of the nominee dated 5 August 2021.
m.A submission from Mr Singh regarding the remuneration of the nominee dated 5 August 2021.
n.An employment reference letter from Mr Singh regarding the nominee dated 3 August 2021.
o.Superannuation statements of the nominee for the 2018 and 2020 financial years.
p.Notices of taxation assessment of the nominee for the 2019 to 2021 financial years.
q.A submission from Mr Singh dated 27 October 2021.
r.Evidence of the expansion of the business, including a contract, quote and receipt.
Evidence presented at the hearing regarding the applicant’s operations
Mr Singh gave evidence regarding the business operations of the applicant. He stated that the company had been operating since July 2016 and that it operated only one business, a café and restaurant located at 1/449A Dean Street, Albury, New South Wales. Mr Singh stated at the hearing that the applicant company had acquired ownership of the business premises in approximately 2017. After the hearing, he corrected this evidence by confirming that he personally had purchased the business premises.
Mr Singh stated that the restaurant had a total seating capacity of approximately 100, with capacity to seat 75 diners inside and 25 outside the premises. He said that the applicant provided a Middle Eastern and Indian cuisine, although he had received approval to extend the premises by installing a wood-fired pizza oven with the intention of extending the businesses trading hours to include a night shift. He said that renovations were due to commence soon after the hearing and that he hoped to be operating to full capacity by Christmas 2021.
Mr Singh stated that the business had not suffered significantly during the COVID-19 pandemic. He said that they had provided a takeaway service only for a few months, but that generally local customers had spent their money locally and had continued to patronise the business.
The nominee gave evidence of her employment in the position and the tasks performed by her in that position.
Evidence presented after the hearing
After the hearing, the applicant produced to the Tribunal the following documents:
a.A title search regarding the business premises.
b.Submissions from Mr Singh dated 23 November 2021.
c.A financial report for the 2019 and 2020 financial years, and draft report for the 2021 financial year.
d.Company tax returns for the 2019 and 2020 financial years, and a draft tax return for the 2021 financial year.
e.A submission from the applicant’s accountant dated 19 November 2021.
f.PAYG payment summaries of the nominee for the 2017 and 2019 financial years.
g.Income statements of the nominee for the 2020 and 2021 financial years.
h.Bank statements of the nominee for the period from October 2017 to November 2021.
i.A draft individual tax return of Mr Singh for the 2021 financial year.
j.An updated submission regarding labour market testing.
The application is compliant: reg 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) of the Migration Act 1958 (Cth) (the Act). The application must also identify a need for the nominator to employ a paid employee to work in the position under their direct control.
Having regard to the documentation in the file of the Department, the Tribunal is satisfied that the application for approval was in the approved form. The application relates to a visa in the Direct Entry stream seeking to meet the requirements in the Regional Sponsored Migration Scheme (RSMS) and consequently no fee is payable (reg 5.19(2) and reg 5.37(4) of the Regulations). The application included a written certification stating that the applicant had not engaged in conduct in relation to the nomination that contravenes s 245AR(1) of the Act. The requirements of reg 5.19(2) and consequently of reg 5.19(4)(a)(i) are therefore met.
Regulation 5.19(4)(a)(ii) requires that the application identifies a need for the nominator to employ a paid employee to work in the position under the nominator’s direct control. It is unclear whether this requirement is directed just at a statement to this effect or something of a more qualitative nature. The wording ‘identifies a need’ arguably suggests more is required to meet this criterion than simply a statement or declaration that there is such a need. ‘Identify’ is defined as ‘to recognise or establish as being a particular person or thing; verify the identity of.’[1] On that view, which is consistent with that reflected in Departmental policy, a decision maker would need to be satisfied there is a genuine need on the part of the nominator to employ someone in the nominated position.[2] However, it could alternatively be argued that reg 5.19(4)(a) as a whole is directed towards requirements for the application form/process of a more administrative nature, such that reg 5.19(4)(a)(ii) could be met by a simple statement or certification of need. Support for this view can also be found in the contrast between the wording of reg 5.19(4)(a)(ii) and, for example, reg 5.19(4)(h)(ii)(B) (for applications relating to positions in regional Australia), which requires that there be a genuine need for the nominator to employ the nominee to work in the position under the nominator’s direct control – clearly requiring a qualitative assessment, and reg 5.19(4)(d)(i), which requires satisfaction that the employee will be employed on a full-time basis in the position for at least two years. Given the uncertain scope of reg 5.19(4)(a)(ii), and the requirement in relation to this application to satisfy reg 5.19(4)(h)(ii)(B), the Tribunal considers that this issue is more appropriately considered under reg 5.19(4)(h)(ii)(B) later in these Reasons.
[1] Dictionary.com (accessed November 2021).
[2] In Bharaj Construction Pty Ltd v MIBP [2016] FCCA 902 (Judge Barnes, 28 April 2016), the Court considered a similarly worded provision in respect of a pre-1 July 2012 RSMS nomination, i.e. ‘the employer nomination is made by an employer in respect of a need for a paid employee’. Whilst on the one hand reg 5.19(4)(a)(ii) does not appear to impose a different requirement beyond emphasising the requirement for an applicant to identify the need (unlike the pre-1 July 2012 version of regs 5.19(2)(a) and (4)(a)), the wording of the criteria does differ slightly and the Tribunal exercises caution in applying the reasoning of Bharaj to a post-1 July 2012 nomination as is currently being considered.
The Tribunal considers that reg 5.19(4)(a)(ii) is more directed to the administrative process, consistent with the requirements of reg 5.19(4) as a whole. The nomination application, on page 4 of that document, identifies that the position to be filled is that of Restaurant Manager. The Tribunal is therefore satisfied that the application for approval identifies a need to employ a paid employee in the position of Restaurant Manager under the applicant’s direct control such that reg 5.19(4)(a)(ii) is met. The Tribunal will consider later in these Reasons whether the applicant has established a genuine need for the applicant to employ the nominee to work in the position under the nominator’s direct control for the purposes of reg 5.19(4)(h)(ii)(B).
Having found that reg 5.19(4)(a)(i) and (ii) are met, accordingly, the requirement in reg 5.19(4)(a) is met.
Nominator is actively and lawfully operating a business in Australia: reg 5.19(4)(b)
Regulation 5.19(4)(b) requires that the applicant is actively, lawfully and directly operating a business in Australia.
The applicant produced to the Tribunal ASIC evidence in respect of the company and the registered business name Guru’s Star Café & Restaurant, recent financial statements and taxation returns and recent activity statements. Mr Singh gave evidence of the business conducted by the applicant.
The applicant’s financial statements reveal that it has recorded sales of $523,791, $566,712 and $971,457 in the 2019, 2020 and 2021 financial years respectively. Having regard to the evidence presented to the Tribunal, the Tribunal is satisfied that the applicant is actively, lawfully and directly operating a business in Australia, namely a café and restaurant.
Accordingly, the requirement in reg 5.19(4)(b) is met.
Position is not labour hire: reg 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.
Mr Singh gave evidence that the applicant does not provide labour hire to other businesses. There is no evidence before the Tribunal to suggest that the applicant is engaged in labour hire activities.
Accordingly, the requirement in reg 5.19(4)(c) does not apply.
Term of employment of the visa holder: reg 5.19(4)(d)
Regulation 5.19(4)(d) requires the nominee to be employed in the nominated position for at least two years full-time, and the terms and conditions of that employment do not expressly exclude the possibility of an extension.
The employment contract dated 5 August 2021 produced to the Tribunal provides that the nominee is to work full-time for 38 hours per week. The position description is Restaurant Manager. The document further provides that the agreement is to commence on the approval of the nominee’s Subclass 187 visa. The contract provides that the employment is for two years. The contract does not exclude the possibility of extension of the term of employment. Accordingly, the requirement in reg 5.19(4)(d)(ii) is met.
However, it is also open to the Tribunal to consider whether the applicant’s business has the financial resources to meet the wages costs for the nominee over the employment period (MIBP v Jayshree Enterprises Pty Ltd [2017] FCA 264). The Tribunal observed to Mr Singh at the hearing that, although the applicant had recorded net profits in the 2019 and 2020 financial years, those profits were modest, being $7,061 and $10,529 in those two financial years respectively. After the hearing, the applicant produced a draft financial statement for the 2021 financial year which discloses that the applicant’s sales had increased to $971,457 and that its net profit had increased to $210,556 in that year. The balance sheet for 2021 discloses that the applicant had net assets of $235,469 as at 30 June 2021.
The applicant has produced evidence that the nominee has been employed as a Restaurant Manager on a full-time basis throughout the 2019 to 2021 financial years and that she was paid salaries of $55,000, $57,349 and $55,000 in those years respectively. The salary payable to the nominee under the 2021 employment contract is $60,000 per annum. Although this salary represents a slight increase in the nominee’s salary compared to recent years, having regard to all the evidence, the Tribunal is satisfied that the applicant has the financial capacity to employ the nominee in the position of Restaurant Manager in accordance with the employment contract and that the nominee will be employed on a full-time basis in that position for at least two years. Accordingly, the requirement in reg 5.19(4)(d)(i) is met.
Accordingly, the requirement in reg 5.19(4)(d) is met.
No less favourable terms and conditions of employment: reg 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 employment contract provides that the applicant will pay to the nominee a salary of $60,000 per annum plus superannuation in accordance with the Superannuation Guarantee Scheme. The nominee is entitled to leave as specified in the contract.
The applicant produced to the Tribunal current evidence from the platform talent.com that the average salary payable to a Restaurant Manager in Australia is $60,000 per annum, with entry level positions starting at $56,125 per annum. The applicant also produced job advertisements for the position at various locations with advertised salaries in the range of $50,000 to $66,000 per annum.
The Tribunal also has had regard to the certificate of the RCB, being Form 1404 issued by Regional Development Australia, Murray dated 9 May 2017, that the nomination satisfies the requirements set out in reg 5.19(4)(e) and regs 5.19(4)(h)(ii)(B) and (C).
Based on the evidence available, the Tribunal is satisfied that the terms of employment applicable to the nominee are no less favourable than the terms and conditions which would be provided to an Australian citizen or Australian permanent resident for performing such work in that workplace at that location.

Accordingly, the requirements of reg 5.19(4)(e) are met.
No adverse information known to Immigration: reg 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 regs 1.13A and 1.13B of the Regulations.
At the hearing, the Tribunal notified Mr Singh that the records of the Department contain a Client of Interest Note referring to an allegation regarding possible employer/sponsor breach/illegal work. No further information has been provided to the Tribunal regarding that allegation. Mr Singh stated that he had no knowledge of the allegation. Having regard to the lack of any further details of the allegation, the Tribunal does not consider that information to be ‘adverse information’ for the purposes of the Regulations. The Tribunal advised Mr Singh accordingly at the hearing.
There is no evidence before the Tribunal that there is any adverse information of the type described in the relevant definitions known to the Department about the applicant or any associated person.
Accordingly, the requirements of reg 5.19(4)(f) are met.
Satisfactory compliance with workplace relations laws: reg 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.
There is no evidence before the Tribunal to suggest that the applicant has an unsatisfactory record of compliance with workplace relations laws of the Commonwealth or any state or territory in which the applicant operates a business. The Tribunal is satisfied that the applicant does have a satisfactory record of compliance.
Accordingly, the requirements of reg 5.19(4)(g) are met.
Tasks of the position, genuine need for the position and training requirements reg 5.19(4)(h)
Regulation 5.19(4)(h) contains a number of alternative requirements. These are set out in detail in the attachment to the decision but can be briefly summarised as requiring either that:
·the tasks to be performed in the position will be performed in Australia and correspond to those of an occupation specified by the Minister in the relevant legislative instrument, the occupation is applicable to the proposed employee in accordance with any specifications made in that instrument, and specified training requirements are met; or
·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 (see legislative instrument IMMI 15/083), 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.
The applicant indicated in the nomination application that it was applying under the RSMS in the Direct Entry nomination stream. The applicant indicated that the postcode where the position was to be filled was 2640. Based on the evidence, the Tribunal is satisfied that the position and the applicant’s business are located at 1/449A Dean Street, Albury, New South Wales 2640. As this postcode is specified in the relevant Instrument as being in regional Australia, the requirements of reg 5.19(4)(h)(ii) must be met by the applicant.
Regulation 5.19(4)(h)(ii)(A) – the position is located in regional Australia
For the reasons set out in the preceding paragraph, the Tribunal is satisfied that the position is located in regional Australia. Accordingly, the requirements of reg 5.19(4)(h)(ii)(A) are met.
Regulation 5.19(4)(h)(ii)(B) – genuine need to employ the nominee to work in the position under the applicant’s direct control
Mr Singh was asked at the hearing why the applicant needed to employ the nominee as Restaurant Manager. He stated that he is a qualified chef and that he is wholly focused on the kitchen side of the business. He said that the restaurant industry is extremely competitive, and that quality of service is important. He said that the nominee provides leadership for the front-of-house aspect of the business and that she had been doing so for several years.
Mr Singh stated that the business was already open for 70 to 75 hours per week, and that trading hours would increase to 100 hours per week when they commenced providing a dinner service. He said that the applicant presently employees 14 staff members, apart from himself and the nominee. He said that the business expected to employ at least five further staff members when they increased trading hours.
The Tribunal asked Mr Singh why, given that he was already working in the business, he could not handle the management role as well as the role as chef. He said that he was already very busy and that he could not manage the kitchen as well as front-of-house. He said that he was already working 50 hours per week in the business.
Mr Singh stated that the applicant had successfully applied to sponsor the nominee for a Subclass 457 visa in the position of Restaurant Manager.
The Tribunal notes that the nominee has been employed in the position of Restaurant Manager since early 2017. This supports a finding that there is a genuine need for the position.
The Tribunal also has had regard to the certificate of the RCB referred to in paragraph 38 above.
The Tribunal is satisfied that there is a genuine need for the applicant to employ the nominee to work in the position of Restaurant Manager at the location under the nominator’s direct control. Accordingly, the requirements of reg 5.19(4)(h)(ii)(B) are met.
Regulation 5.19(4)(h)(ii)(C) – the position cannot be filled by an Australian citizen or an Australian permanent resident who is living in the same local area
The applicant has provided evidence that the position was advertised in 2017 together with resumes of the job applicants and a comprehensive recruitment report. The evidence indicates that there were 10 applicants for the position and Mr Singh stated at the hearing that several of the applicants were interviewed. The recruitment report reveals that none of the applicants were suitably qualified for the position. Mr Singh and the nominee (who was not present in the hearing during the evidence of Mr Singh) confirmed that the nominee had been employed by the applicant as a waitress in 2016 and that she applied for the position when it was advertised.
The Tribunal also has had regard to the certificate of the RCB referred to in paragraph 38 above.
Having had regard to all the evidence, the Tribunal is satisfied that the position cannot be filled by an Australian citizen or an Australian permanent resident living in the same local area as the proposed workplace. Therefore, reg 5.19(4)(h)(ii)(C) is satisfied.
Regulation 5.19(4)(h)(ii)(D) and (DA) – 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 and the occupation is applicable to the proposed employee in accordance with the specification of the occupation
The occupation proposed by the applicant was Café or Restaurant Manager which has the six-digit Australian and New Zealand Standard Classification of Occupations (ANZSCO) code 141111, and which is specified in the relevant instrument, being IMMI 15/083. The tasks specified in ANZSCO for that occupation are as follows:
·planning menus in consultation with chefs
·planning and organising special functions
·arranging the purchasing and pricing of goods according to budget
·maintaining records of stock levels and financial transactions
·ensuring dining facilities comply with health regulations and are clean, functional and of suitable appearance
·conferring with customers to assess their satisfaction with meals and service
·selecting, training and supervising waiting and kitchen staff
·may take reservations, greet guests and assist in taking orders.
The nominee’s duties according to the job description are:
·Estimate food consumption, place orders with suppliers, and schedule delivery of fresh food and beverages.
·Resolve customer complaints about food quality or service.
·Direct cleaning of kitchen and dining areas to maintain sanitation standards and keep appropriate records.
·Monitor actions of staff and customers to ensure that health and safety standards and liquor regulations are obeyed.
·Maintain budget and employee records, prepare payroll, and pay bills, or monitor bookkeeping records.
·Check quality of deliveries of fresh food and baked goods. Meet with sales representatives to order supplies such as tableware, cooking utensils, and cleaning items.
·Arrange for maintenance and repair of equipment and other services.
·Total receipts and balance against sales, deposit receipts, and lock facility at end of day.
·Select or create successful menu items based on many considerations, and assign prices based on cost analysis.
·Recruit, hire, and oversee training for staff.
·Schedule work hours for servers and kitchen staff.
·Monitor food preparation and methods.
Based on the information provided to the Department, the delegate was not satisfied that this requirement had been met. The delegate had regard to the modest size of the business and the active involvement of Mr Singh in the business. The delegate found that any supervisory and managerial responsibilities of the nominee would be occasional in nature in the context of the applicant’s operating environment.
Mr Singh provided written submissions to the Tribunal regarding the tasks performed and to be performed by the nominee in the position of Restaurant Manager. He gave evidence of these tasks at the hearing. Dealing with some of the tasks specified in ANZSCO, his evidence to the Tribunal was as follows:
a.Planning menus – Mr Singh stated that the nominee is involved in the planning of menus. He said that she is on the floor and is aware of patrons’ reviews of the menu. He stated that he and the nominee conferred about regular changes to the menu on a quarterly basis and that the nominee offered her suggestions regarding items to be changed and patrons’ favourites to be retained.
b.Purchasing and pricing – Mr Singh stated that he, as chef, maintained a record of stocks which were required in the kitchen. He said that it was then the responsibility of the nominee to contact suppliers to arrange for purchase of the goods at the most favourable price. He stated that he and the nominee consulted on prices to be charged in the restaurant whenever the menu was discussed.
c.Staffing – Mr Singh stated that the nominee was responsible for the hiring of staff, both in the kitchen and front-of-house. He said that, if a vacancy arose, the nominee arranged to advertise the position and conducted interviews with job applicants. He said that the nominee then consulted with him to discuss the final appointment. He said that it was the nominee’s responsibility to determine whether a vacancy existed in the restaurant.
d.Customer complaints – Mr Singh stated that, thankfully, this was not a significant issue for the applicant. He stated that it was the nominee’s responsibility to handle such complaints if they were received. He said that the nominee had authority to offer refunds to patrons if she thought it appropriate. He said that it was the nominee’s job keep their customers happy.
e.Health and safety issues – Mr Singh stated that he and the nominee shared this responsibility. He said that the nominee looked after the training of staff and first-aid matters. He also said that he was not in the premises when the restaurant opened each morning and that it was the nominee’s responsibility to ensure that the premises were properly cleaned and ready to commence operations. He said that he was responsible for health inspections in the kitchen.
The nominee also gave evidence regarding the tasks performed by her in the position. As recorded previously in these Reasons, the nominee was not present when the evidence of Mr Singh was given. Her evidence was consistent with that of Mr Singh.
The applicant’s trading circumstances have changed significantly since the delegate’s decision. The most recent financial statement available at the time of that decision was for the 2017 financial year. The applicant’s turnover in that year was $491,536 and it has now risen to $971,457. The applicant’s net profit has increased from $26,793 to $210,556. According to the organisational chart submitted to the Department, the applicant then had six employees apart from Mr Singh and the nominee. The applicant’s staff has increased in size to 14 excluding Mr Singh and the nominee, and that number is likely to increase by at least five when the applicant commences to provide meals each evening. Although the nominee’s tasks may have been described as aligning closely to those of a Food and Beverage Attendant in 2017, as was suggested by the delegate, the Tribunal is satisfied that the tasks now to be performed in the position correspond to the tasks of the occupation of Café or Restaurant Manager specified by the Minister in the relevant instrument. Evidence has been provided to the Tribunal that the nominee holds a Diploma of Business. The Tribunal is satisfied that the occupation is applicable to the nominee. Accordingly, the requirements of reg 5.19(4)(h)(ii)(D) and reg 5.19(4)(h)(ii)(DA) are met.
Regulation 5.19(4)(h)(ii)(E) – the business operated by the applicant is located at the same place as the position
As set out in paragraph 49 above, the Tribunal is satisfied that the business operated by the applicant is located at 1/449A Dean Street, Albury, New South Wales 2640, which is the same location as the address of the position to be filled. Accordingly, the requirements of reg 5.19(4)(h)(ii)(E) are met.
Regulation 5.19(4)(h)(ii)(F) – a body specified by the Minister in an instrument in writing for this sub-subparagraph and located in the same state as the location of the position has advised the Minister about the matters mentioned in regs 5.19(4)(h)(ii)(B) and (C)
The certificate referred to in paragraph 38 above was submitted to the Tribunal. Accordingly, the Tribunal is satisfied that reg 5.19(4)(h)(ii)(F) is met.
Accordingly, the requirements of reg 5.19(4)(h) are met.
Based on the findings above, the Tribunal is satisfied that the applicant meets the requirements of reg 5.19 for approval of the nomination of the position in Australia.
DECISION
The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.
Terrence Baxter
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).

[2022] AATA 28

5 January 2022

Key Legal Topics

Areas of Law

Administrative Law

Immigration

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction