H Chander & L.N D'Souza (Migration)

H Chander & L.N D'Souza (Migration) [2022] AATA 3295 (6 September 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  H Chander & L.N D'Souza
REPRESENTATIVE:  Mr Troy Sanders (MARN: 0319666)
CASE NUMBER:  1914452
HOME AFFAIRS REFERENCE(S):          BCC2017/3135340
MEMBER:Stephen Witts
DATE:6 September 2022
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Statement made on 06 September 2022 at 11:17am
CATCHWORDS
MIGRATION – application for approval of nomination of position – direct entry stream – café or restaurant manager – tasks of position – size and scope of business and level of day-to-day involvement of owners – documentary evidence and oral evidence from owners and nominee – skills assessment – comparison of tasks of position and ANZSCO description – position unable to be filled by citizen or permanent resident in local area – decision under review set aside
LEGISLATION
Migration Regulations 1994 (Cth), r 5.19(4)(h)
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 17 May 2019 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 applied for approval on 30 August 2017. 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 in the nominated occupation of café or restaurant manager ANZSCO code 141111.
The delegate refused the application on the basis the applicant’s nomination did not satisfy reg 5.19(4) of the Regulations because the delegate was not satisfied that the applicant had demonstrated that the tasks to be performed in the position correspond to the tasks of a café or restaurant manager as defined under ANZSCO code 141111.
The applicants, Mr Harish Chander and Mr Lynford D’Souza, appeared before the Tribunal on 6 September 2022 to give evidence and present arguments.
The Tribunal also received oral evidence from the nominee, Mr Sandeep Singh.
The applicant was represented in relation to the review.
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.
The Tribunal has considered all the material before it including evidence provided prior to the hearing and evidence given at the hearing.
The Tribunal notes that it has been provided with a copy of the relevant delegate’s decision by the applicant. In this decision it was asserted that the applicant has not demonstrated that the tasks to be performed in the position correspond to the tasks of a café or restaurant manager. The delegate stated that the business commenced trading in 2005 and that at that time it employed three Australian employees and four temporary visa holders. It was asserted by the delegate that café and restaurant managers organise and control the operation of café’s, restaurants and related establishments to provide dining and catering services and that considering the context of the business setting, and its financial profile and staffing structure, that the scale of those activities would demonstrate that the nominee is not carrying out the full duties and responsibilities of a café or restaurant manager. The delegate stated that the nominee is more accurately carrying out the duties and responsibilities of a supervisor noting that both roles are responsible for staff management, stock, product control, and customer service but that the café or restaurant manager is more responsible for high level management activities. It was further asserted by the delegate that the nominated position seemed to be focused on front of house operations.
The Tribunal notes that the applicant has provided it with material prior to the hearing including menus, bank statements, payslips, sections of the Restaurant Industry Award 2010, a business website, ABN details, employment confirmation material, PAYG material, an employment agreement, and accountants letter of support, lease material, advertising material, financial statements, tax returns, and other material.
The Tribunal notes that an agent’s submission was provided on 23 March 2020 stating that the nominee has completed a diploma level qualification in leadership and management and that the business operates two Indian restaurants with one based on the Gold Coast and the other in Kings Cliff in New South Wales and the restaurants offer menus with a focus on traditional Indian foods. It was stated that the business has stated it is it is unable to fill the restaurant manager position from the local labour market and that it is genuine.
The Tribunal notes a further submission was provided by the applicant’s representative on 13 August 2020 and referred to the skills assessment that the nominee has participated in via VETASSESS and stating that such an assessment indicates that the nominee is carrying out the full duties of a café and restaurant manager.
The Tribunal notes that another submission was provided on 13 July 2022 by the applicant. In this submission it stated that the business continues to operate in the same manner as when submissions were provided as noted above. It was further stated that the nominee continues to fill the position in the Kings Cliff restaurant which has been in operation since 2014, that there is still a genuine need for the position which the nominee commenced in December 2017 and that he is still employed full-time in the business.
It was stated that the Kings Cliff restaurant has been busier since lockdowns and border closures were instigated by the government and that the business relied on providing takeaway services and that the two owners of the business, Lynford D’Souza and Harish Chander, continue to actively involve themselves in the business including preparing and cooking meals and that therefore they need to devote the majority of their time to working in the kitchen in each of the restaurants thereby needing experienced managers in each restaurant. It was further stated that due to the pandemic lockdowns, noting that the two businesses are in different states, provided challenges in operating the business but that both owners plan to continue operating the restaurant into the future until they both reach retirement age and that the owners are 59 and 56 years of age and that the position will remain available to the nominee for at least two years.
It was further stated that the business was a sole source of income for the owners, that one of the owners has a wife who is unable to work and that the position is genuinely needed as both owners must actively work physically in the business as above. It was stated that the nominee has full operational control of the restaurant leaving the owners to fill their core roles as chefs and to handle bookkeeping and other matters. It was further stated that the owners are in the process of nominating a restaurant manager for the other restaurant.
In regard to the financial information provided it was asserted that the business had sales of approximately $600,000 from 2017 until 2020 and that in 2021 its sales were approximately $900,000. It was also asserted that the payroll for the business has increased from approximately $180,000 in 2017 to approximately $300,000 in 2021 and that the net profit in the business has increased from approximately $60,000 to approximately $100,000 in those years.
It was also stated that the nominee is engaged in accordance with the above and that he currently earns $62,133.50 per annum.
The Tribunal notes it was also stated that the position was advertised but that all the applicants were unqualified or inexperienced and that qualified applicants were either based overseas or in Australia but that they require sponsorship. Records of advertisements were provided including in the print media and online including with JobActive and newspaper advertisements, and other material.
It was also stated that the nominee and his wife do not have family in Australia and that there was a period of time when he travelled overseas during this period of employment and that he was also hospitalised for two weeks during this period.
It was also stated that the owners have not advertised the position again in Kings Cliff as the nominee has filled the position but that it has advertised in the other location in respect of a nomination made in late 2021 as referred to above and that no suitable applicants applied.
The Tribunal notes that an organisation chart was provided for the business indicating that the two owners are partners and chefs and Australian citizens and that the Kings Cliff restaurant lists the nominee as restaurant manager, two cooks on temporary visas, and two wait staff who are Australian citizens; and the second business lists a restaurant manager who is a temporary visa holder who commenced employment in July 2022, two wait staff that are Australian citizens, and three cooks, one of which is a permanent resident and two are temporary visa holders.
The Tribunal notes that the ANZSCO descriptor for café or restaurant manager code 141111 defines such as a manager who organises and controls the operation of the café, restaurant or related establishment to provide dining catering services; and that fast food managers or quick service managers are excluded from this occupation. It further describes the duties and responsibilities as:
“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”
At the hearing the Tribunal had a discussion with the parties regarding the application.
The nominator Mr D’Souza, stated that he and the other owner are still running the two restaurants as their business but that they are increasingly not actively involved in the business from day-to-day noting that he only now occasionally cooks in the business but that he sometimes attends the restaurant in the morning and involves himself in some form of food preparation but he then leaves the premises and the restaurant manager, the nominee, attends the restaurant in the late afternoon, opens it, and then the cooks attend the workplace and engage in food preparation activities for the evening’s shift which usually starts at about 5 o’clock and continues through till after 10 o’clock. He stated that his other role consists of continuing to do some of the bookkeeping work including the tax office accounts, monthly PAYG responsibility and some banking but that the nominee is engaged in all the sales and cash handling, purchasing, ordering, as well as the other duties of menu planning, training, supervision, and other areas including some front of house responsibilities.
The nominee stated that he first came to Australia in 2014 on a student visa, that he studied a leadership and business management course as referred to above, and that he then started work in the restaurant in December 2017 and that he has worked in the restaurant for approximately five years. He stated that he is here with his wife and that they have an 18-month-old infant son.
The Tribunal had a detailed discussion with both the nominator and the nominee in regard to the extent of the duties and responsibilities of the nominee, and in particular the management responsibilities of the nominee, noting that the two clear issues of concern expressed by the delegate was the size and scope of the business, that being a relatively small business, and also that the owners of the business seemed active on a day-to-day basis in the business.
The Tribunal has considered this very carefully noting that it would appear that at this time the owners are not necessarily very actively involved in the business other than doing some food preparation and also actively managing the banking and tax responsibilities of the business but that the nominee is carrying out all the other duties and responsibilities associated with being a restaurant manager, and that he meets weekly with Mr D’Souza, to liaise with him about the status of sales and cash handling aspects of the business, and ordering and purchasing, and employing staff and maintaining staff levels and training, and that therefore the nominee is carrying out the duties and responsibilities of a café and restaurant manager in accordance with the ANZSCO descriptor.
Based on these discussions and by the evidence given at the hearing and prior to the hearing the Tribunal finds that in this case due to the individual circumstances of the nature of this business and the degree of actual involvement that the owners have in the business at this time that the nominee, who has been employed in the business for five years and is still employed, is carrying out the duties and responsibilities of a café or restaurant manager, and that therefore the position is genuine.
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). The application must also identify a need for the nominator to employ an identified person as a paid employee to work in the position under their direct control.
The Tribunal finds that the application was made in the approved manner and that it identified a need for the nominator to employ an identified person to work as a café or restaurant manager under ANZSCO code 141111 under the nominator’s direct control.
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 Tribunal finds that the nominator is actively and lawfully operating a business in Australia and directly operates that business.
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.
The Tribunal finds that the nominator is not involved in labour hire activities.
Accordingly, this requirement 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 2 years full time, and the terms and conditions of that employment do not expressly exclude the possibility of an extension.
The Tribunal, noting that the nominee has now worked in the business for several years on a full-time basis, finds that an extension beyond two years from now is not expressly excluded.
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 Tribunal notes the evidence provided and finds that the terms and conditions applicable to the nominee will be 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.
In particular the Tribunal notes that the applicant is being paid a rate of pay that is above the minimum income threshold for a temporary visa holder.
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.
The Tribunal finds that there is no adverse information known to the Department about the nominator or a person associated with the nominator.
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.
The Tribunal finds that there is no evidence before it that the applicant does not have a satisfactory record of compliance with workplace relations laws in the locations in which it operates a business and employs staff.
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, the occupation is applicable to the proposed employee in accordance with any specifications made in that instrument, there is a genuine need for the nominee to be employed as a paid employee in the position, and certain specified training requirements are met; or
·the position and nominator’s business is located in regional Australia, there is a genuine need for the nominee to be employed as a paid employee in the position under the nominator’s direct control, the position 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.
The Tribunal finds that the tasks will be performed in Australia and correspond to the tasks of an occupation specified as above in the relevant instrument and that there is a genuine need for the nominator to employ the person identified as a paid employee to work in the position under the nominator’s direct control and that the position has not been able to be filled by an Australian citizen or permanent resident who is living in the same local area.

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.
Stephen Witts
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)       all of the following apply:
(A)the tasks to be performed in the position will be performed in Australia and correspond to the tasks of an occupation specified by the Minister in an instrument in writing for this sub-subparagraph;
(AA)there is a genuine need for the nominator to employ the person identified under subparagraph (a)(ii), as a paid employee, to work in the position under the nominator’s direct control;
(AAA)the occupation is applicable to the person identified under subparagraph (a)(ii) in accordance with the specification of the occupation;
(B)either:
(I)the nominator’s business has operated for at least 12 months, and the nominator meets the requirements for the training of Australian citizens and Australian permanent residents that are specified by the Minister in an instrument in writing for this sub-sub-subparagraph; or
(II)the nominator’s business has operated for less than 12 months, and the nominator has an auditable plan for meeting the requirements specified in the instrument mentioned in sub-sub-subparagraph (I); or
(ii)      all of the following apply:
(A)the position is located in regional Australia;
(B)there is a genuine need for the nominator to employ the person identified under subparagraph (a)(ii), as a paid employee, to work in the position under the nominator’s direct control;
(C)the position cannot be filled by an Australian citizen or an Australian permanent resident who is living in the same local area as that place;
(D)the tasks to be performed in the position correspond to the tasks of an occupation specified by the Minister in an instrument in writing for this sub-subparagraph;
(DA)the occupation is applicable to the person identified under subparagraph (a)(ii) in accordance with the specification of the occupation;
(E)the business operated by the nominator is located at that place;
(F)a body that is:
(I)specified by the Minister in an instrument in writing for this sub-subparagraph; and
(II)located in the same State or Territory as the location of the position;
has advised the Minister about the matters mentioned in paragraph (e) and sub-subparagraphs (B) and (C).

[2022] AATA 3295

6 September 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Statutory Construction

Procedural Fairness

Jurisdiction