Hamilton Island Enterprises Limited (Migration)

[2021] AATA 4865

Hamilton Island Enterprises Limited (Migration) [2021] AATA 4865 (9 December 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Hamilton Island Enterprises Limited

CASE NUMBER:  1900279

HOME AFFAIRS REFERENCE(S):          BCC2018/913558

MEMBER:Stephen Witts

DATE:9 December 2021

PLACE OF DECISION:  Melbourne

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

Statement made on 09 December 2021 at 1:04pm

CATCHWORDS

MIGRATION – approval of a nomination – tasks of nominated occupation correspond to its code – occupation of Hotel Service Manager – updated business information – actively and lawfully operating a business in Australia – pandemic skill shortage – terms and conditions of employment no less favourable – extensive training provided – decision under review set aside        

LEGISLATION

Migration Act 1958, s 245
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 20 December 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).

2. The applicant applied for approval on 26 February 2018. 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).

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 reg 5.19(4) of the Regulations because the delegate was not satisfied that the tasks of the nominated position of Hotel Services Manager corresponded with the tasks outlined as a position outlined in ANZSCO code 431411.

5. The Tribunal notes that evidence was provided prior to the hearing that allowed it to make a decision on the material before it without going to the scheduled hearing on 4 January 2022.

6. 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

7. 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.

8. The Tribunal, as noted above, has considered all the material before it including evidence provided prior to the hearing.

9. The Tribunal notes that the delegate’s decision was provided to it by the applicant. In this decision the delegate considered that the nominator, Hamilton Island Enterprises Pty Ltd, did not demonstrate that the tasks of the nominated position of the nominee, Francis Evangelista, corresponded with the tasks of ANZSCO skill level of Hotel Service Manager.

10. In its decision the delegate assessed the duties of the nominated position, as outlined in the position description and job advertisements provided in support of the application, against the tasks outlined in ANZSCO for the occupation of Hotel Service Manager.

11. According to the delegate it considered the key duties and responsibilities of a hotel service manager assessing such activities as:

    a)determining work requirements and allocating duties to commercial housekeepers, luggage porters and/or doorpersons

    b)conferring with managers to coordinate activities with other organisational units

    c)maintaining attendance records and rosters

    d)explaining and enforcing safety regulations

    e)overseeing the work of the unit and suggesting improvements and changes

    f)conferring with workers to resolve grievances

    g)may perform Front Office and hotel reception duties

12. According to the delegate it also considered the skill levels required and noted that two years of on-the-job training in these activities is necessary to indicate that the nominee can carry out these duties and responsibilities.

13. The Tribunal notes that on that basis the delegate made a decision that the activities of the nominee do not reflect the position description.

14. The Tribunal notes that evidence has been provided to it from the applicant’s representative.

15. This material includes a submission by the applicant’s representative on behalf of the nominator, financial extracts of the nominator, organisational charts, records of advertising for the position, position descriptions, including of food and beverage supervisors, and Asst restaurant manager positions, copies of awards, regional certifying body advice, nomination approvals, letters of support, payroll details, employment material, and other material.

16. In particular the Tribunal notes material outlined in the applicant’s representative’s submission stating that the Department refused the application because the evidence provided failed to demonstrate that the tasks to be performed in the position correspond to the tasks of an occupation specified in the relevant legislative instrument IMMI 17/058.

17. The Tribunal notes that the applicant’s business is located at Hamilton Island offshore resort in an area of regional Australia and that the applicant owns and operates an offshore island resort comprising of four hotels encompassing over 1000 hotel rooms, over 150 holiday homes and 16 food and beverage outlets. It was noted that when fully operational the company employs 1350 skilled and unskilled workers and that it has an annual revenue of more than $200 million and operates a 24-hour per day seven days per week business. It was stated that in 2020 and 2021 to date it had an occupancy rate of 58%, has had approximately 95,000 guests in 148,000 rooms, and has 178 kitchen staff, eight apprentices, services 780,000 meals, has an average manning level at any one given time of approximately 1200 employees, that 83% of its employees are Australian citizens, that it has recruited approximately 1300 staff during this time and has an annual staff turnover of 110%.

18. The Tribunal notes that evidence was provided that it is actively and lawfully operating a business in Australia under ABN 61009946909 and supporting documentation was provided including BAS statements, ASIC extracts, and other material including accountants’ reports. The Tribunal notes that the financial information provided supports the financial viability of the applicant’s business and its ability to support the nominated position on the stated terms and conditions.

19. The Tribunal notes that it was stated in the submission that recruitment and retention of skilled and unskilled staff is a major ongoing issue for the applicant, and that although 83% of the applicant’s employees are Australian citizens it is nevertheless the case that Australian citizens generally work on a casual and part-time basis and are reluctant to pursue a career in the hospitality industry for a number of reasons including  the need for evening and weekend work and  the stress of serving customers. The applicant provided further information regarding the difficulty of relying on Australian students who do complete hospitality qualifications noting that in 2019 there were over 100,000 enrolments in such courses with only 30,000 completions. It was also noted that employees are required to live in staff accommodation on the island as ferry services to and from the island are intermittent and that generally speaking the partners of staff and their children generally cannot be accommodated on the island.

20. It was also noted that COVID-19 has had a significant impact given the ongoing travel ban on international arrivals and departures however the applicant has benefited from a captive domestic tourism market. It was noted hotel occupancy has been limited to 70% and some food and beverage outlets have been closed due to a lack of staff.

21. The Tribunal notes that the applicant also provided evidence of the effects of the skill shortage being experienced by limiting its ability to trade at capacity and also resulting in a lower quality experience for its guests. Evidence was provided in regard to this in particular via social media platforms. The applicant stated that hospitality providers are struggling to recruit quality skilled hospitality staff and evidence was provided in regard to the 50% fewer applications that had been made by potential employees over the last 12 months or so.

22. The Tribunal notes in particular the evidence provided that the applicant has several restaurant managers positions vacant that has resulted in assistant managers, supervisors, and other staff having to step up and complete high-level duties such as the recruitment of staff and other duties and responsibilities that would fall within the definition of hotel service managers.

23. The Tribunal notes that in this submission it was outlined that the nominee was originally employed as a housekeeping supervisor in January 2017, and then promoted to assistant housekeeper, public areas, in June 2021 and that his duties continued to correspond to those of the occupation of a hotel service manager.

24. The Tribunal further notes evidence provided regarding a comparison of the tasks of a housekeeping supervisor and assistant executive housekeeper compared to the tasks of a hotel service manager outlined in ANZSCO code 431411.

25. The Tribunal notes that material was also provided including letters of offer, updated letters of offer, organisation charts, the list of duties and responsibilities required, and the skill and qualifications needed for the position.

26. The Tribunal notes the primary terms of employment for the nominee are $65,000 plus oncosts and compliances per year and that evidence was provided that the terms and conditions of employment for the nominated position are no less favourable than those that are provided to Australian citizens and permanent residents performing equivalent work in the same workplace at the same location. The Tribunal notes that applicable awards and pay guides dated from the 2021 have been provided.

27. The Tribunal notes that the material also indicates that the nominated position provides full-time employment for a term of at least two years.

28. The Tribunal notes the evidence provided regarding the level of training required for supervisory positions and the tasks and responsibilities for supervision, training and coordination of food and beverage staff, and the hotel and housekeeping service, where the position supervises and coordinates activities of hotel service workers, and that this includes determining the work requirements and allocating duties to commercial housekeepers, luggage porters and/or door persons, conferring with managers to coordinate activities, maintaining attendance records and rosters, explaining and enforcing safety regulations, overseeing the work of the unit, conferring with workers to resolve issues, and that it may on occasions require performing front-office and reception duties. The Tribunal notes the material provided comparing position descriptions deployed including beverage and food supervisory positions, and Asst restaurant manager positions, with the tasks allocated to a hotel service manager position.

29. The Tribunal also notes that comparable material was provided for those positions in the guest service area noting that an employee in a supervisory position needs the appropriate level of training including doing undertaking a training course to skill the employee to train and coordinate the work of other employees engaged in a housekeeping department, and that comparable material for food and beverage supervisors was also defined referring to employees who have the appropriate levels of training including undertaking a supervisory course and that have the responsibility for supervision, training and coordination of food and beverage staff, and/or stock control for a bar or series of bars. Material was also provided defining the role of a front office supervisor referring to an employee that has the appropriate level of training including undertaking a supervisory course and who supervises, trains and coordinates the work of front-office employees.

30. The Tribunal further notes that evidence was also provided that the service and guest care provided by the resort is an ongoing activity and is delivered by clearly defined standards both at the international and national level which have been adopted by the applicant and that are a requirement of the hotel service managers.

31. The Tribunal also notes the material provided in regard to previous positions in the food and beverage and housekeeping supervisory area which have been approved as hotel service managers in other hotels and resorts between 2013 and 2020, and also notes an assessment of ANZSCO definitions by the applicant’s representative referring to its assertion, that is ANZSCO’s assertion, that it should be allocated to a particular skill level which should be seen as indicative and not prescriptive.

32. Based on the material above which the Tribunal has considered very carefully, it finds that the duties and responsibilities of the nominated position correspond with that of a hotel service manager as outlined in the ANZSCO code 431411.

    The application is compliant: reg 5.19(4)(a)

33. 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.

34. The Tribunal notes that evidence was provided that the application for approval was made in the appropriate manner and that it identifies the need for the nominator to employ the identified person as a paid employee to work in a position under the nominator’s direct control.

35. 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)

36. Regulation 5.19(4)(b) requires that the applicant is actively, lawfully and directly operating a business in Australia.

37. As outlined above the that the applicant is actively lawfully operating a business in Australia and directly operates the business.

38. Accordingly, the requirement in reg 5.19(4)(b) is met.

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

39. 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.

40. The Tribunal notes that the nominator is not involved in labour hire activities.

41. Accordingly, the requirement does not apply.

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

42. 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.

43. The Tribunal notes evidence provided that the nominated position has been ongoing for some years and that it will continue for at least another two years.

44. Accordingly, the requirement in reg 5.19(4)(d) is met.

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

45. 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.

46. The Tribunal notes that evidence was provided that the terms and conditions of employment applicable to the position will be no less favourable than those that will be provided to an Australian citizen or permanent resident performing equivalent work in the same workplace at the same location.

47. Accordingly the requirements of reg 5.19(4)(e) are met.

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

48. 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.

49. The Tribunal notes that there is no evidence before it of any adverse information regarding the nominator or any party associated with the nominator.

50. Accordingly the requirements of reg 5.19(4)(f) are met.

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

51. 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.

52. The Tribunal notes that there is no evidence before it that the applicant does not have a satisfactory record of compliance with workplace relations laws.

53. 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)

54. 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 (see relevant legislative instrument) and 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.

55. The Tribunal notes that evidence has been provided that the tasks of the position correspond to the tasks of an occupation specified in the relevant instrument, that there is a genuine need for the applicant to employ the person identified as a paid employee to work under their control, and that the applicant meets the training requirements specified in the relevant instrument, that it has an auditable plan for meeting these training requirements, and that the business is located in regional Australia.

56. Accordingly the requirements of reg 5.19(4)(h) are met.

57. 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

58. 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 an identified person as 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).