Henrys Echuca Pty Ltd ATF The Henrys Echuca Trust (Migration)

[2024] AATA 323

Henrys Echuca Pty Ltd ATF The Henrys Echuca Trust (Migration) [2024] AATA 323 (17 February 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Henrys Echuca Pty Ltd ATF The Henrys Echuca Trust

REPRESENTATIVE:  Ms Carina Ford (MARN: 9802862)

CASE NUMBER:  1923913

HOME AFFAIRS REFERENCE(S):          BCC2018/918802

MEMBER:Susan Reece Jones

DATE:17 February 2024

PLACE OF DECISION:  Melbourne

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

Statement made on 17 February 2024 at 4:48pm

CATCHWORDS
MIGRATION – application for approval of nomination of position – direct entry nomination stream – café or restaurant manager – tasks of position – size and scope of operations, and plans for expansion – comparison of position description and ANZSCO classification – limited response to advertising from Australian residents – COVID restrictions and nominee’s return to home country – recent new employee agreement – adverse information – departmental investigation of agent engaged in good faith by applicant – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 359(2), 375A
Migration Regulations 1994 (Cth), rr 1.13A(1)(d)-(h), (2), (3), 13B, 2.57(1), 5.19(4)(h)(ii)(D)

CASE
El Jejieh v Minister for Home Affairs (No 2) [2019] FCCA 840

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 9 August 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).

2. The applicant applied for approval on 26 February 2018. The requirements for the approval of the nomination of a position of Cafe or Restaurant Manager (ANZSCO 141111) 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)(h)(ii)(D) of the Regulations because the nominated tasks do not correspond to the tasks of an occupation specified in the relevant instrument.

5. The applicant lodged an application for review with the Tribunal on 27 August 2019. The review application was accompanied by a copy of the delegate’s decision.

6. On 20 September 2022, the Tribunal wrote to the applicant’s representative, Ms Carina Ford of Carina Ford Immigration Lawyers, pursuant to s359(2) of the Migration Act 1994 (the Act), inviting the applicant to provide the Tribunal with further information in support of this application by 4 October 2022.

7. On 30 September 2022, the representative requested the Tribunal grant an extension of time which was granted and on 4 November 2022 the representative submitted the following:

   • Representatives’ submission
   • ASIC Business Name details, ABN Lookup
   • ASIC Certificate of Registration of a Company
   • ASIC Current and Historical Company Extract dated 28 September 2022
   • Henry’s Echuca Trust – Trust Deed
   • Henry’s Echuca Trust – ATO Activity Statement
   • Business Activity Statements (BAS): October to December 2019, January to December 2020, January to December 2021, January to June 2022
   • Financial Statements for 2020 & 2021
   • Trust Return 2020 & 2021
   • Financial Statement for 2022
   • Organisation Chart
   • Evidence of Labour Market Testing, Menus, Photographs, advertisements, work samples, salary survey, Restaurant Industry Award 2020 (MA000119)
   • Job Description
   • Updated Contract of Employment
   • Evidence of Genuine Need and the Position: Letter of support from the applicant
   • Nominees’ Individual Tax Returns for years ending 2018, 2019, 2020, 2021 & 2022
   • Nominees’ ATO Notice of Assessments for years ending 2018, 2019, 2020 & 2021
   • Nominees’ payslips
   • RSMS Form 1404
   • Nominees’ Qualification

8. On 14 March 2023, following a request for updated evidence from the Tribunal, the representative submitted the following additional documents:

   ·     Lodged ATO Tax Return 2020, 2021

   ·     Lodged BAS: July-September 2022; October - December 2022  

   ·     Draft Financial Statement for the Applicant

   ·     Proof of payment for LMT related to advertisements: October 2021, September 2022

   ·     Nominee – PAYG Payment summary for year ending 2018

   ·     Nominee – PAYG Payment summary for year ending 2019

   ·     Nominee – Notice of Assessment for year ending 2020

   ·     Nominee – VETASSESS Skills Assessment dated 4 April 2022, outlining qualifications and experience in nominated occupation of Cafe or Restaurant Manager (ANZSCO Code: 141111)

   ·     Applicant – ATO Portal of outstanding lodgements.

9. On 26 September 2023, the Tribunal wrote to the applicant to invite the applicant to a hearing on 19 October 2023.

10. On 5 October 2023, the applicant appeared before the Tribunal in related case 1924280. In that hearing, the Tribunal received oral evidence from Mr Paul Jarman (director of the applicant).

11. On 12 October 2023, the applicant requested an extension and accordingly, on 12 October 2023, the Tribunal postponed the hearing.

12. On 3 November 2023, the Tribunal wrote to the applicant to inform the applicant about the certificate (a copy of which was provided to the applicant) issued pursuant to s s.375A of the Migration Act 1958 (the Act), which is on the Department’s file about potentially adverse information. The applicant was invited to respond to the Tribunal by 17 November 2023.

13. On 17 November 2023 the applicant provided the following submissions and documents, namely:  

    ·ABN Look Up and Historical Search, dated 15 November 2023

    ·ASIC Current and Historical Company Extract, dated 28 Sept 2022

    ·Profit and Loss Statement for June 2023

    ·Financial Statements for year ending 30 June 2022

    ·ATO Tax Returns FY2022

    ·ATO BAS Statement, for the period of Oct 2022 to June 2023

    ·Updated Organisational Chart, dated 3 October 2023

    ·Statement of genuine need, dated 16 November 2023

    ·Position Description for nominated position of Cafe or Restaurant Manager

    ·ANZSCO - UNIT GROUP 1411 CAFE AND RESTAURANT MANAGERS

    ·AMSR – Restaurant Manager – PayScale and Labour Market Insights

    ·AMSR – Restaurant Manager – SEEK Job Advertisements

    ·AMSR – Restaurant Manager – Workforce Australia Job Advertisements

    ·PayScale and Labour Market Insights

    ·LMT Seek for the nominated position  

    ·LMT Workforce Job Advertisements  

    ·SEEK Job Advertisements

    ·Various Job Advertisements

    ·Director submissions

    ·Employee Agreement: dated 12 October 2023, salary $58, 304 (plus superannuation)

    ·Evidence of Genuine Need and the Position: Letter of support from the applicant

    ·RSMS Form 1404, Loddon Mallee Region, Bendigo, dated 11 May 2018

    ·Henrys’ Echuca Pty Ltd – Letter of need for travel exemption

    ·Bridging Visa B – Grant notification

    ·Nominees’ Qualification

    ·Restaurant Industry Award 2020

    ·Liquor Licence

    ·Nominee Payroll Advice, for the period of Nov 2017 to Apr 2020

    ·Travel Exemption Refusal Decisions

    ·Emails: Senator Nick McKim

14. The Tribunal has had regard to the additional evidence and submissions which have been lodged by the applicant. 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

15. 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 application is compliant: reg 5.19(4)(a)

16. 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.

17. The applicant’s business was established on 23 December 2016. The applicant owns and operates Henry’s Bridge Hotel in Echuca, (regional) Victoria 3564.  The Tribunal was advised that the applicant - which is a family business - operates a café and bistro in the tourism precinct in Echuca - and has a license for 500 patrons at the Echuca site. The peak tourism time for the applicant is September to May each year and according to applicant director Mr Jarman, the applicant’s business is located in the largest tourism area in the Murray River area. The applicant operates 5 days a week and operates extended hours each Friday and Saturday. Both the head office and the nominated position are located in Echuca.

18. Director Mr Jarman submitted to the Tribunal that the Group collectively has a turnover of approximately $5 million per annum. In addition, the applicant operates multiple businesses across 5 locations across regional Victoria and employs over 100 staff. Whilst the applicant business in this case, specialises in pub and bistro style food, it also supplies food, produce and pastries to its other sites.

19. The applicant submitted that ‘…….the scale of the business operations (including its food, beverage and functions businesses), the applicant requires a full-time and dedicated Restaurant Manager in the business to run the day-to-day operations of the business including onsite management of staff in different areas of the business (kitchen, restaurant, and bar), front- end customer services, menu planning along with the Chefs and Directors, staff compliance with occupational health and safety, point of sale, inventory management, scheduling, amongst other duties.…

20. The application was lodged by the applicant and was is made in accordance with the approved Form 1395 (Internet).

21. The nomination was made on 26 February 2018 for the position of Cafe or Restaurant Manager (ANZSCO 141111) under the Regional Employer Nomination Scheme.

22. The nomination identified the nominee and the Tribunal is advised that the nominee commenced employment in the position in November 2017, initially on a part-time basis after which the nominee commenced in the role on a full-time basis.  

23. The applicant provided the Tribunal with an updated statement explaining the genuine and continuing need for the nominee and the nominated position. The statement explained that due to an increase in demand at the site in Echuca, the position of Cafe or Restaurant Manager was created to manage the range of activities undertaken by the applicant.

24. The applicant advised the Tribunal that its business is located in one of Echuca’s oldest establishments (1859). The applicant together with the Campaspe Shire Council, has invested in excess of $1 million refurbishing the Hotel. According to applicant director Mr Jarman, the applicant’s business is one of the largest hospitality venues in Echuca and also caters for functions/events. In addition, the applicant’s business to which this application relates, forms part of the Jarman Group, which consists of several hospitality venues in Echuca and Bendigo, including:

    ·Henrys’ Bridge Hotel, Echuca VIC 3564

    ·Star Hotel, Echuca VIC 3564

    ·Murray River Providore, Echuca VIC 3564

    ·Stella, Bendigo VIC 3550

    ·Kennington Tavern Kennington VIC 3550

25. The Tribunal is in receipt of additional material in support of the application upon review, including a detailed statement outlining the genuine need to employ the nominee in the nominated position. In addition, the applicant has provided the Tribunal with an overview of its business operations, its most recent Organisation chart and a submission as to why the nomination is essential to the applicant’s business operations in the future. The Tribunal is satisfied on the information before it, that the application for approval identifies a need for the applicant to employ an identified person, as a paid employee, to work in the position under the nominator’s direct control.

26. Accordingly, the requirements in r. 5.19(4)(a) are met.

    Nominator is actively and lawfully operating a business in Australia: reg 5.19(4)(b)

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

28. The Tribunal has had regard to the applicant’s BAS, which show as follows:

Sales income $	Salaries $
Jan – Mar 2020	399, 564	35, 061
Apr – Jun 2020	62, 227	15, 752
Jul – Sept 2020	151, 127	22, 165
Oct – Dec 2020	531, 825	46, 873
TOTAL	1,144,743	119,851
Jan - Mar 2021	550, 662	54, 664
Apr – Jun 2021	392, 508	42, 119
Jul - Sept 2021	149, 653	7, 880
Oct - Dec 2021	387, 395	33, 834
TOTAL	1,480,218	138,497
Jan - Mar 2022	424, 914	32, 313
Apr - Jun 2022	270, 143	30,932
Jul – Sept 2022	323,499	25,219
Oct – Dec 2022	172, 536	26,433
TOTAL	1,191,092	114,897
Jan- Mar 2023	335,932	32,236
Apr – June 2023	233,314	23,614

1. The Tribunal has assessed the applicant’s Financial Statements

2020	2021	2022	2023** Preliminary Financial Statements
Total income	975, 607	1, 654, 390	1,124,189	966,979
Wages	382, 476	560, 749	382, 406	353,715
Superannuation	31, 790	49, 292	36, 282	34,805
Total assets	299, 866	415, 628	388, 652	Not available
Total liabilities	538, 073	352, 660	- 53, 484	Not available

1. The Tribunal notes that the applicant’s Financial Statements (refer above) show that the applicant’s business regularly achieves sales revenue of close to or exceeding, $1,000,000 per annum. The Tribunal notes that the applicant’s business has over the past few years, been impacted by significant adverse weather events (floods etc).

2. Having assessed all submissions in regard to this case and related cases 1924006 and 1924280, and as noted in by the financial data set out in paragraphs 28 and 29 above, the Tribunal considers that the applicant operates a large and successful enterprise.

3. The applicant submitted that the applicant’s financial performance has remained strong ‘… despite the tough economic climate with rising costs of goods and skills shortages…’.

4. The Tribunal has considered material provided by the applicant upon review, including Financial Statements, BAS and ATO returns. The Tribunal is satisfied that the applicant is actively and lawfully operating a restaurant business in Australia and directly operates the business.

5. On the basis of all the evidence provided upon review, the Tribunal finds that the applicant is actively, lawfully and directly operating a business in Australia.

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

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

7. 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. 

8. There is no evidence before the Tribunal to suggest that the applicant operates a labour hire business.

9. Accordingly, the requirement in reg 5.19(4)(c) is met.

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

10. 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. 

11. The applicant submitted that the nominee commenced employment as Cafe or Restaurant Manager in November 2017, initially on a part-time basis, after which the nominee worked on a full-time basis until April 2020 when he had to return to Sri Lanka as the holder of a Bridging Visa B. The nominee has therefore been restricted in his ability to return to Australia as a consequence of the COVID-19 pandemic and border closures.

12. The Tribunal is in receipt of a submission from the applicant in support of the continuing nomination of the nominee despite his long absence from Australia. The applicant submitted that the nominee worked for the applicant for three years as the applicant’s Restaurant Manager prior to COVID-19. The applicant submitted that this application is based on the applicant’s assessment of the nominee’s past performance and the applicant’s ongoing need for the nominated role. The applicant maintains that the business requires a Restaurant Manager who is experienced in its operations and can undertake the tasks and duties that align with the scale of the business, particularly given its plans to increase functions and events. The applicant submitted copies of its plans which will increase the size and range of the restaurant’s services so as to meet the demands of the applicant’s patrons.

13. The nominee’s most recent Employee Agreement is dated 12 October 2023 with a salary of $58,304 (plus superannuation). Further, the Employee Agreement specifies that the terms and conditions of the nominee’s employment are as set out in the Restaurant Industry Award 2023, and the National Employment Standards in the Fair Work Act 2009. The Employee Agreement specifies that the employment will be full time, ongoing and permanent for at least 2 years. The Employee Agreement also specifies that the nominee will be required to perform the duties at Henry’s Bridge Hotel, 1 Hopwood Street Echuca.

14. Based on the evidence before it, the Tribunal is satisfied the applicant has demonstrated the financial capacity to pay the nominee a full-time salary and to maintain the employment of the nominee on a full-time basis for two years and the terms and conditions of that employment do not expressly exclude the possibility of an extension.

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

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

16. 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.

17. The nominated position falls within the Hospitality Industry (General) Award 2010 (a copy of which was provided to the Tribunal). The applicant submitted that the salary is also aligned with the applicant’s capacity to support the position and that it is within the scope and scale of the applicant’s business.

18. The nominee was employed as a Restaurant Manager from 2018, however returned to Sri Lanka and could not return to Australia due to COVID-19 (Bridging Visa-B). The nominee’s PAYG and Notice of Assessment whilst employed by the applicant show as follows:  

$	2018	2019	2020*
PAYG	15,206	40, 210
Notice of Assessment	35, 981

*impacted by COVID-19

1. The applicant’s most recent Organisation Chart shows approximately 15 employees of whom 12 are Australian Citizens or Permanent Residents. 7 of the current roles are full time, with the remaining positions being casual or part-time. In addition, the Tribunal notes that the applicant has at least 5 vacant positions. The applicant submitted that the terms and conditions applicable to the nominated position will be no less favourable than the terms and conditions that would be provided to an equivalent Australian citizen or Australian Permanent Resident in the role.

1. The applicant submitted evidence in support of the proposed salary for the nominated position of Restaurant Manager on the basis that it is consistent with market rates for the position.  In determining the contracted salary, the applicant advised the Tribunal that it has had regard to relevant job advertisements and remuneration surveys, significant evidence of which was provided to the Tribunal. Further, the Tribunal notes that the employment contract does not expressly exclude the possibility of extending the period of employment.

2. The Tribunal has also had regard to salary surveys and other salary data, including from:

   • the Payscale website (accessed February 2023) indicates that a Restaurant Manager in Australia earns between $51,000 to $76,000 per annum: Salary
   • The Tribunal could not find any advertisements for a Restaurant Manager in the Echuca region listed on Seek.com.au.  

3. The applicant submitted that ‘Labour Market Insights’ states that the median salary for a Restaurant Manager in Australia is $1,268 per week, or $65,936 per annum. However, this estimate is based on the median salary of around 75,100 workers around Australia. Importantly, salaries depend upon a range of factors such as location and the required skills and experience. The nominated position is in a regional location over 200km from the nearest urban centre and hence, the contracted salary is at the lower end of the salary range.

4. The Tribunal has had regard to all of the applicant’s evidence provided upon review, including the nominee’s Employment Agreement dated October 2023 with a salary of $58,304 (plus superannuation). The Tribunal is satisfied that the applicant has the financial capacity to pay the contracted salary and that the contracted salary is within an acceptable range for the nominated role located in a regional area. In addition, the Tribunal is satisfied that there is no Australian citizen or permanent resident currently performing equivalent work to the nominee in the same workplace and location. The Tribunal is also satisfied that the terms and conditions contained in the nominee’s Employment Agreement 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.

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

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

6. 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.

7. 'Adverse information' includes any adverse information relevant to a person's suitability as an approved sponsor or nominator, including having been the subject of administrative action (including being issued with a warning) by a competent authority (defined in r.2.57(1)), for a possible contravention of the law, found guilty by a court of an offence under a Commonwealth, State or Territory, law, being under investigation, subject to disciplinary action or subject to legal proceedings in relation to an alleged contravention of such a law or having become insolvent. The matters listed in r.1.13A(2) include immigration law, industrial relations and occupational health and safety, discrimination, people smuggling and related offences, slavery, sexual servitude and deceptive recruiting, taxation, terrorism and trafficking in persons and debt bondage. The definition also specifies that the 'conviction, contravention, administrative action, investigation, disciplinary action, legal proceedings or insolvency mentioned in paragraphs (1)(d) to (h) must have occurred within the last 3 years' – see r.1.13A(3). Regulation 2.57(1) provides that a 'competent authority' means a department or regulatory authority that administers or enforces a law that is alleged to have been contravened.

8. On 3 November 2023, the Tribunal wrote to the applicant to inform the applicant about the certificate (a copy of which was provided to the applicant) issued pursuant to s.375A of the Migration Act 1958 (the Act), which is on the Department’s file about potentially adverse information.

9. The Tribunal advised the applicant that the certificate was signed and dated, as required by El Jejieh v Minister for Home Affairs (No 2) [2019] FCCA 840. Having reviewed the certificate and the material sought to be protected from disclosure, the Tribunal considers that the certificate was validly made in relation to the relevant information.

10. The Tribunal further advised the applicant that there is potentially adverse information on the Department’s file and the Tribunal invited the applicant to comment on or respond to information set out below, and that the Tribunal would consider, subject to the applicant’s comments or response, be the reason, or a part of the reason, for affirming the decision under review. 

11. The applicant was advised that the relevance of this information might cause the Tribunal to find that there is adverse information pursuant to r 5.19(4)(f) and that there is no genuine need for the position and for the nominee to be employed by the applicant pursuant to r5.19(9)(d).

12. The Tribunal disclosed the information behind the certificate so that the applicant could provide a response, noting that the there is an allegation that the business received payment for the nominee’s sponsorship and nomination. The information covered by the certificate states that the applicant has received payment for the nominee’s sponsorship and nomination. The particulars of the information are that:

    ·     A Department investigation found that the migration agent employed by the applicant to lodge the nomination application had likely engaged in systematic migration fraud for numerous nominators and nominees, including provision of bogus employment contracts and resumes, fake job advertisements and related invoices.

    ·     The investigation also identified concerns that nominees represented by the migration agent employed by the applicant to lodge the visa application have paid for preparation of nomination applications.

    ·     The investigation also found there was anecdotal evidence to suggest that the applicant’s director may be involved in the fraudulent activity and may have used generic advertisement in its recruitment process for the nominated position and that the payments for the advertisements may not be genuine.

13. The applicant in response, provided written submissions to the Tribunal on 17 November 2023, denying all the allegations and asserting that the allegations are false. In addition, the applicant confirmed to the Tribunal that no money was ever unlawfully received by the applicant or Mr Jarman in exchange for the nominee’s sponsorship. The representative submitted that Mr Jarman made the payments on behalf of the business in relation to the nomination, and any concerns that the Department may have had in relation to this, could not therefore be considered adverse information.

14. Applicant director Mr Jarman advised the Tribunal in written submissions, that he does not know where these allegations have come from. The applicant’s representative noted that the allegations were submitted to the Department after the nomination had been initially refused by the Department. To that end, the applicant’s representative submitted that the allegations should be disregarded as they are not subject to any independent review.

15. The applicant also submitted ‘…… that Mr Jarman strongly refutes that he has been involved in any fraudulent activity……The applicant’s representative further stated that ‘….any allegations against Mr Jarman have evidently stemmed from his engagement with Nikee Migration Services. There is nowhere that specifies Mr Jarman himself as an individual subject to any Department investigations.’

16. The applicant also submitted that the Tribunal can be satisfied that:

    ·      Mr Jarman is a genuine businessman who operates several successful businesses in the regional Victoria; and

    ·      The nominee has the skills required for the position and has been employed by the applicant 2017 and would have remained employed had COVID-19 pandemic not intervened, demonstrating the applicant’s continuing genuine need for the position.

17. The applicant also noted to the Tribunal, that despite the Department investigation and strong findings against the applicant’s initial agent (Nikee Migration Services), that representative is still operating, and its Director continues to be registered as a migration agent with the Office of Migration Agents Registration Authority (OMARA). The applicant queried the Tribunal as to why no further actions or sanctions imposed by the Department based on the adverse findings stemmed from the Department’s own investigations have occurred.

18. In relation to the advertisements, Mr Jarman advised that he engaged Nikee Migration Services in good faith to provide legal advice at the time and did not engage them with the primary purpose of advertisement for staff on the business’ behalf. Prior to and during the engagement with Nikee Migration Services, there was – and remains - a genuine need for the nominated position within the business according to the applicant’s submissions. 

19. The Tribunal has had careful regard to all the information contained on the applicant’s file, including the applicant’s submissions at hearing and also those received from the applicant’s representative. In consideration of whether the information currently before the Tribunal is ‘adverse’, the Tribunal turns to the definition of ‘adverse information’ and ‘associated with’ as defined in rr.1.13A and 1.13B as at the time the application was lodged on 20 February 2018.

20. As there is no evidence before the Tribunal to demonstrate that there has been an unlawful payment of money between any of the parties in regard to the nomination, the Tribunal has disregarded the assertions.

21. The Tribunal notes that neither Mr Jarman or the applicant or the nominee, have been subject to any ongoing Department investigations. Further, it appears that the allegations were made some time after of application had been lodged (February 2018). In addition, the Tribunal notes that the applicant has had other applications for its related businesses set aside and approved by the Tribunal. 

22. In summary, the Tribunal has considered whether the information relating to the applicant falls within the definition of ‘adverse information’ and notes that there is no evidence before the Tribunal to indicate that there is adverse information known to Immigration within the meaning provided in r.1.13A and r1.13B.

23. Having consideration to all the information and evidence provided in support of this application upon review, the Tribunal has formed the view, there is no evidence before the Tribunal to indicate that there is adverse information as per the meaning given in rr.1.13A and 1.13B, known to the Department about the nominator or an associated person.

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

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

25. 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.

26. There is no evidence before the Tribunal that indicates the applicant does not have a satisfactory record of compliance with the relevant workplace relations laws.

27. Accordingly, the requirements of r.5.19(4)(g) are met.

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

28. 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 legislative instrument IMMI 17/058), 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.

29. The applicant operates a business in Echuca, Victoria. Therefore, the applicant meets the requirements set out in the second dot point above as the nominated position and business are located in Echuca, Victoria, postcode 3564, which constitutes regional Australia.

30. The applicant submitted its Form 1404 from the Regional Certifying Body (RCB), Department of Economic Development, Jobs, Transport and Resources, Loddon Mallee Region, Bendigo, Victoria (dated 11 May 2018), noting that it had assessed the nomination and certified that the nomination satisfies the regulations.

31. The Department held in its decision that the tasks to be performed in the position did not correspond to the tasks of an occupation specified in ANZSCO 141111 for the occupation of Cafe or Restaurant Manager.  The Department did accept that the applicant’s business may have a need for a position with the title of Manager, however assessed that the nominated position was not at a Skill Level 2 Restaurant Manager, as prescribed by ANZSCO.

32. The applicant provided the nominee’s Job Description and Position Description, with accompanying submissions, all of which in the Tribunal’s assessment, are consistent with the requirements set out in the Australian and New Zealand Standard Classification of Occupation (ANZSCO) description of Cafe or Restaurant Manager. The tasks to be performed by the nominee in the position, also correspond in the Tribunal’s assessment, to the tasks of an occupation specified by for a Restaurant Manager (ANZSCO 141111).

33. The nominated position of Restaurant Manager as defined in ANZSCO 141111, is responsible for organising and controlling the operations of cafes, restaurants and related establishments to provide dining and catering services. A Restaurant Manager is required to hire, train and supervise staff, plan menus with chefs, supervise the purchase and storage of food, maintain financial records and coordinate the activities of the kitchen, dining room and bar. Importantly, the role carries a scope of influence and authority to organise and control the operations of the business.

34. The Tribunal has reviewed the nominee’s Position Description and the nominee’s job description and role and how it aligns with ANZSCO 141111, namely: 

    ·     The role has full responsibility for the running and the day-to-day operations of the Restaurant.

    ·     The nominee as Restaurant Manager takes full responsibility and ownership for managing, planning and budgeting all costs in successfully running the restaurant on a roster ensuring hot meals are available as set out in the menu

    ·     In liaison with the Owner, undertakes staff selection, training and development in all the duties required at the restaurant.

    ·     Prepare staff rosters, attendance and appraisals.

    ·     Ensure that all menu items are well catered for at different times of the day such as full lunch and dinner menu.

    ·     Plan, outline and prepare the daily menu, specials menu and weekend  menu  as  required  as  per customer patterns and in regular discussion with the cooks and Owner.

    ·     Ensure cooks are aware of the range of lunch and dining options available and all cooks are well trained to cover the wide and varied range of main courses offered

    ·     Oversee and ensure all areas of food production and kitchen area are operating in accordance with the Health and Safety regulations as required within the local laws.

    ·     Regularly liaise with customers regarding service issues, disputes and resolve any problems that arise ensuring the customer satisfaction is the key to our business model.

    ·     Undertake all customer orders and phone and walk in bookings and ensure customers are seated with minimal time.

    ·     Oversee that the restaurant is neat and clean at all times ensuring that staff procedures are followed at the start and end of each shift, across all shifts and set up a procedure for work to be done

    ·     Ensuring that the customer lounge facilities are well maintained and customers are served hot meals in the lounge and ensure a staff member looks after the lounge facilities

    ·     Oversee all stock is maintained and re-ordered in accordance with procedures  so  as  to  maintain adequate stock levels at any given times and ensure cross  checking  with  budget  to  ensure  optimum savings.

35. The applicant also confirmed to the Tribunal that the nominee was / will be also be responsible for the additional duties set out below:

    oEfficient financial operation and management of the Restaurant

    oHuman Resource Management of the Restaurant

    oAssist the Operations Manager Recruitment of all front of house staff

    oTraining of all front of house staff

    oGuest Service Delivery

    oOperating within the VCGLR (Victorian Gambling Control) guidelines

    o(Alcohol) Licencing Responsibilities

    oOccupational Health & Safety

    oOperating Restaurant at agreed budget settings.

    oMaintain detailed records and prepare regular reports for management as required

    oMaintain and update the Restaurant’s website and Facebook Page

36. Applicant director Mr Jarman also advised the Tribunal that the nominee’s duties consist of the day-to-day management of the business, running lunch and dinner services and taking care of functions from enquiries through to delivering the functions. The nominee is also responsible for rostering, product ordering, staff training, marketing and social media management.

37. The applicant submitted that the skill level of duties performed by the nominee and in particular, his responsibilities for the management of staff and rosters, organising dining events and overseeing restaurant operations and enforcing health and hygiene practices, appropriately align with the nominated occupation of a Restaurant Manager. Upon assessment of all the evidence provided upon review, the Tribunal agrees with the applicant’s submission in this regard.   

38. The Indicative Skill Level for this position in ANZSCO specifies that most occupations in this unit group have a level of skill commensurate with the qualifications and experience of Skills Level 2 (AQF Associate Degree, Advanced Diploma or Diploma). The Tribunal notes that the nominee has a Diploma of Management, evidence of which was provided to the Tribunal. The nominee therefore has the commensurate qualifications required in ANZSCO at Skills Level 2 for the nominated position.

39. The applicant confirmed and provided evidence to demonstrate, that it has conducted advertising for the nominated role through various platforms (print, online) in an attempt to fill its continued need for skilled workers within the business, including this role. Mr Jarman also outlined the applicant’s LMT activities to the Tribunal at the hearing for related case 1924280. Mr Jarman also told the Tribunal at hearing for related case 1924280, that since acquiring the business in December 2016, the applicant has been actively advertising for qualified staff for multiple positions via social media, the restaurants own Facebook page and local newspapers (Riverine Herald (Echuca), Shepparton News (Shepparton) and Bendigo Advertiser (Bendigo). The applicant provided copies of the advertisements, dates the advertisements ran and supporting tax invoices. The applicant advised that it has had limited response to these employment positions from Australian residents.

1. According to the applicant’s submissions, the position of Restaurant Manager was advertised by the applicant prior to the time of application to find a suitable skilled and qualified Restaurant Manager to work within the applicant’s Group of businesses. In response to the advertisements, few applications were received.

2. The Tribunal was provided with details and evidence to support the applicant’s recruitment efforts post receipt of the Department’s decision, including a review of seven candidates that applied for the nominated position. The applicant further submitted to the Tribunal that whilst the applicant could once hire apprentices, it is now particularly challenging to get apprentices or trainees to complete the training required and even harder to have the apprentice or trainee work with one business for a long term in regional areas. The applicant posited that regional locations are treated for work experience where candidates improve skills whilst looking for employment opportunities in metropolitan locations. The Tribunal accepts the applicant’s submission that it is located in an area and it is challenging for businesses to recruit and retain suitable qualified employees. The Tribunal also accepts that the applicant operates in the hospitality sector where there has been a shortage of employees.

3. The applicant submitted that the nominee remains the most suitably skilled, qualified and experienced for the position, having worked in the business for nearly three years prior to having to leave Australia due to the pandemic. The Tribunal notes that the nominee also has over three years prior employment experience in the restaurant business. According to the applicant’s submissions, the nominee understands not only the requirement of the nominated position, but also the operational requirements of the applicant given his prior work experience at the applicant. The nominee according to the applicant’s submissions, was selected and after an extensive interview and testing, thus the applicant committed to employing the nominee for the following reasons:

   •    The nominee exceeds the requirements of ANZSCO for the nominated position

   •    The nominee was interviewed, trialled and employed

   ·    The nominee was found to be a strong fit for their operations, having previously worked for over 6 months as an Assistant Manager at restaurant in Ballarat before coming to the applicant’s site in Echuca.

   ·     The nominee was willing to move and did relocate to Echuca

4. In written submissions, Mr Jarman confirmed to the Tribunal that in relation to this case, the applicant’s efforts and continuation of this nomination despite the nominee being located overseas due to COVID-19, outlines the extent of the applicant’s efforts to employ appropriate staff, and reinforces the genuine need for the nominee. The Tribunal notes that the nominee commenced working in the nominated position in November 2017 until his departure due to COVID-19 in April 2020. Mr Jarman submitted that due to the mandated shutdowns in the hospitality sector and the severe restrictions on trading, the applicant was unable to operate the business. The nominee had no family support or back up income and he was not entitled to any government assistance and had nowhere to live. The applicant did provide the nominee with short-term accommodation, but with no consistent income, the nominee had no other option but to return to his home country and his family.

5. The applicant’s Organisation Chart states, and the applicant director confirmed in submissions, that there is no other full-time Restaurant Manager employed by the applicant. The position is undertaken currently internally in an ad hoc manner by management staff, including by director Mr Jarman. The applicant confirmed to the Tribunal that at present, the applicant does not have a full time Restaurant Manager and nor has the applicant been able to fill the role of bar supervisor or café supervisor either. In addition, the Tribunal was advised that the applicant’s supervisory positions are casual employees only and cannot take on the day-to-day restaurant management and operations. The applicant also submitted – and the Tribunal accepts - that the nominee’s role as Restaurant Manager is integral to the operations of the applicant’s size of business because without a full-time Restaurant Manager, it cannot increase its business or expand its range of services or offers to customers.

6. The Tribunal acknowledges that a hospitality business is challenging to operate, particularly in a remote location. The applicant in the Tribunal’s view, operates a large business as evidenced by its Financial Statements, and it has a turnover that would justify and require a Restaurant Manager. The fact that the applicant director may also undertake the tasks of the nomination position on occasion or would confer with the nominee, is entirely feasible given it is his business. This also does not mean in the Tribunal’s assessment, that the tasks of the nominee in the role are ‘low skilled’ tasks commensurate with the skill level of a Retail Supervisor. The Tribunal acknowledges that the applicant’s business faces challenges in being regionally based. In addition, over the past four years, the applicant’ business has been impacted by the COVID-19 pandemic and various extreme weather events, all of which have adversely impacted an ability to source and retain staff. 

7. The applicant advised the Tribunal that its business operations, including provision of food services, are significant to and in, the local community and the regional area.  Due to its regional location, the applicant reiterated to the Tribunal that it has had considerable difficulty in securing employees who are suitable for the role and are willing to work at the remote location. Mr Jarman submitted that given the nominee’s work experience prior to joining the applicant and whilst working for the applicant, the nominee’s skills and demonstrated ability to perform duties, and willingness to reside in a remote regional location, the nominee remains considered to be an ideal candidate for the role.

8. The applicant also submitted the following to the Tribunal in support of this application:

   ‘ …………The business currently has plans to expand ..., which includes building a brewery onsite at Henry’s Bridge Hotel, and a pergola to their courtyard with a retractable roof. Significant investments have already been allocated to the expansion. With the increase in space, they plan to be able to employ more people and generate more sales, which will be beneficial to the local economy……….

   ……….even with the shortage of staff, we are currently turning over more than they previously did. We refer you to the enclosed BAS statement demonstrating the increase in revenue. Unfortunately, with the skills shortage, we cannot fully operate and each day they are opened, there are significantly missed opportunities to do more business……….

   …….The Hotel has had to consider many eventual possibilities if the nomination applications are refused. At times they have considered giving up and closing down their business, like so many other restaurants and cafes in the last 24 months. As a business in regional Victoria that employs close to 2 dozen local employees, the closure of such a business will reverberate across the surrounding areas. The effect will be devastating in such a small community, as a small business-like Henry’s Bridge Hotel that supports the ongoing employment, to support many families, as well as other Australian businesses in the surrounding areas, such as farmers, vegetable growers, meat wholesalers, kitchen equipment wholesalers, waste and recycling services companies, printing companies, electricians, and plumbers, just to name a few, that rely on their restaurant. The closure of a “small” business like the Hotel, means that thousands of dollars in revenue for other businesses and business opportunities will no longer be there. We refer you to selections of receipts from the various Australian vendors used by Henry’s Bridge Hotel Pty Ltd in the past few months…….’

9. The applicant reiterated to the Tribunal that the nominated position of Restaurant Manager is essential to the applicant’s future and that given that the nominee knows the applicant’s business and the local market, there remains a genuine need for the nominated position and the nominee to undertake the role. The Tribunal is satisfied that all the evidence provided by the applicant including the applicant’s Organisation chart, nominee position description and evidence regarding employment vacancies, collectively support there is a genuine need for the applicant to employ the nominee as a paid employee to work in the position under the applicant’s direct control. In reaching this conclusion, the Tribunal has given weight to the nature of the applicant’s business and its requirements, its size and activities, the tasks to be undertaken in the position, the nominee's experience and qualifications and the prior employment history with the applicant.

10. In summary, the Tribunal is satisfied on all the evidence before it, that there is a business need for the position which supports the genuine need for the applicant to employ the nominee as a paid employee to work in the position under the nominator’s direct control. 

11. In accordance with the requirements set out in Regulation 5.19(4)(h), the Tribunal is satisfied that in accordance with: 

    ·r 5.19(4)(h)(ii)(A) and (E), the position and nominator’s business is located in regional Australia;

    ·r 5.19(4)(h)(ii)(B), that as noted in paragraphs 80 to 96 above, the applicant has a genuine need for the nominee to be employed as a paid employee in the position under the nominator’s direct control;

    ·r5.19(4)(h)(ii)(C), the position cannot be filled by a locally resident Australian citizen or permanent resident;

    ·r5.19(4)(h)(ii)(D), the tasks of the position of Cafe or Restaurant Manager (ANZSCO: 141111) correspond to those of an occupation specified in the relevant legislative instrument;

    ·r5.19(4)(h)(ii)(DA), the occupation is applicable to the proposed employee in accordance with the specification of the occupation Café or Restaurant Manager (ANZSCO: 141111); and

    ·r5.19(4)(h)(ii)(F), that a regional certifying body, Bendigo, Victoria, is located in the same State or Territory as the location of the position.

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

13. 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.

    p's submission to 359 lette

    DECISION

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

    Susan Reece Jones
    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).