Hitihami Appuhamilage (Migration)

[2018] AATA 1804

Hitihami Appuhamilage (Migration) [2018] AATA 1804 (1 May 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

NOMINATOR:  Mr Chamith Swarna Dissanayake Hitihami Appuhamilage

CASE NUMBER:  1729177

DIBP REFERENCE(S):  BCC2016/1585454

MEMBER:Warren Stooke AM

DATE:1 May 2018

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for a Regional Employer Nomination (Permanent) (Class RN) visa for reconsideration, with the direction that the nominator meets the following criteria for a Subclass 187 (Regional Sponsored Migration Scheme) visa:

·cl.187.212 of Schedule 2 to the Regulations; and

·cl.187.233 of Schedule 2 to the Regulations.

Statement made on 01 May 2018 at 6:28pm

CATCHWORDS
Migration – Regional Employer Nomination (Permanent) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – Cook – Whether nomination meets requirements for approval – Whether there is a genuine need for the position – Where there is a demonstrated business need – Where applicant has relevant qualifications and experience – Other requirements of nomination complied with – Decision remitted with direction

LEGISLATION
Migration Act 1958 (Cth), ss 65, 245AR(1)
Migration Regulations 1994 (Cth), rr 1.13A, 1.13B, 5.19(4), Schedule 2, cls 187.212, 187.233

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 Immigration and Border Protection to refuse to grant the nominator a Regional Employer Nomination (Permanent) (Class RN) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 29 April 2016. At the time of application, Class RN contained one subclass: Subclass 187 (Regional Sponsored Migration Scheme).

3. The criteria for a Subclass 187 visa are set out in Part 187 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The primary criteria must be satisfied by at least one nominator. Other members of the family unit, if any, who are nominators for the visa need satisfy only the secondary criteria. Nominators seeking to satisfy the primary criteria must meet the 'Common criteria', as well as the criteria of one of three alternative visa streams: the Temporary Residence Transition stream, the Direct Entry stream, or the Agreement stream.

4. In the present case, the applicant is seeking the visa in the Direct Entry stream, to work in the nominated position of Cook (ANZSCO 351411). This stream is designed for persons who have never, or have only briefly worked in the Australian labour market and are applying for the visa outside Australia, or are applying from inside Australia but are not eligible for the Temporary Residence Transition stream.

5. The delegate refused to grant the visa because the application did not meet cl.187.233 of Schedule 2 to the Regulations because the nominator was refused the nominated position.

6. The nominee appeared before the Tribunal on 19 April 2018 to give evidence and present arguments. The Tribunal also received oral evidence from Mr. Konanapanny (the nominator) and Mr. Peter Francis, Bass Coast Manager for Economic Development and Tourism

7. The nominee was represented in relation to the review by his registered migration agent.

8. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

9. The issue in the present case is the validity of the nomination to an approved position and the capacity for the nominee to meet the requirements of the position in satisfaction of ANZSCO 351411.

   Employment will be provided

10. Clause 187.212 requires that the nominated position will provide the nominee with the employment referred to the related nomination application.

11. The nominating employer provided the Tribunal, in evidence, with an outline of the business, which included the following basic information:

    a.The chocolate factory manufactures chocolate and it also operates a restaurant for the visitors, given that the factory is remote from alternative food outlets. The provision of in-house food services, at lunch-time, enables people to enjoy the amenity of the factory for longer than would be otherwise possible, if food could not be sourced;

    b.The factory introduced curries, which has proved to be very popular with the patrons, having operated the business since 2005;

    c.The business has grown to support a gross turnover of $600,000 per annum and that in the absence of an ability to provide meals the business is likely to suffer a reduced gross income of $200,000;

    d.The owner has renovated the facilities and the business is now attracting 185,000 tourists per annum and is one of the key tourist attractions on Phillip Island;

    e.The owner has previously endeavoured to hire competent cooks however the experience has been that it is difficult to prepare authentic curries given the need for specific knowledge. The nominee in this respect is originally from Sri Lanka and understands the cuisine;

    f.The business used to provide dinners; however, this service has been stopped because of not being able to secure an additional competent cook, which is proving to be difficult. In this regard, the business currently has a need for a second cook and has not been able to fill the position. As such, the owner has to periodically relieve in this area;

    g.To be able to service both lunch and dinners on the opening days, the business would require three cooks, which would enable relief and 7 day roster coverage;

    h.Several of the Australian nominators for the position did not turn-up for interview, did not have appropriate qualifications or could only cook fish and chips;

    i.The nominee has qualifications as a cook together with a Diploma and is well qualified and experienced;

    j.The owner is over 64 years old and has health issues and cannot continue to work in this area , as well as manage the business;

    k.The business has 30 employees and the opening hours are from 9.30am to 6.00pm for seven days of the week;

    l.If the business was able to secure the nominee and another cook, the opening hours could be extended to 10.00 pm and dinners could be provided;

    m.The incumbent nominee currently works 38 hours per week and is paid a wage of $21.78 per hour;

    n.The owner initially had a bank loan of $4.5m and currently pays $55,000 per month to reduce the loan, which has a current outstanding balance of $1.5m. As such, the owner has $3.0m equity in the business and the business has been recently valued at $5.5m. It is also conceivable that the market value is in the vicinity of $10m, which, in this case, would mean the owner has $7.0m equity.

12. For the following reasons, the Tribunal decided to set aside the decision under review and substitute a decision approving the nomination.

    CONSIDERATION OF CLAIMS AND EVIDENCE

    13.The issue in this case is whether the nomination met the requirements for approval of the nomination under the Direct Entry nomination stream set out in r.5.19(4). For the nomination to be approved, all the requirements must be met and were met to the satisfaction of the Tribunal.

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

    14.Regulation 5.19(4)(a) requires that the application for approval must be in the approved form, must be accompanied by the prescribed fee, and, where applicable, must include the required written certification relating to conduct that contravenes s.245AR(1). The application must also identify a need for the nominator to employ a paid employee to work in the position under their direct control.

    15.From the material on the Department file, the Tribunal is satisfied that the application was made on the approved form and accompanied by the prescribed fee. It is further satisfied that the nominator identified the need to employ a paid employee in the nominated position of Web Administrator/Director (Australian and New Zealand Standard Classification of Occupation) (ANZSCO) code 351411, a position specified as being under the nominator’s direct control.

    16.Accordingly, the requirement in r.5.19(4)(a) are met in the nomination.

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

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

    18.The Tribunal is satisfied from the material on the Tribunal’s file that the nominator’s business was incorporated on 8 August 2000 (ACN 092 742 482) and commenced trading. The Tribunal is satisfied from the above information that the nominator is directly, actively and lawfully operating a business in Australia; which is specifically the Phillip Island Chocolate Factory.

    19.Accordingly, the requirement in r.5.19(4)(b) are met.

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

    20.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. 

    21.The Tribunal is satisfied from the evidence before it that the nominator’s business activities do not include labour hire to an unrelated business (or businesses).

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

    22.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 is satisfied that the contract of employment signed on 1 January 2016 provides for a market competitive wages and conditions and ongoing terms of employment, which will exceed two years.

    23.Accordingly, the requirement in r.5.19(4)(d) are met.

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

    24.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.

    25.The remuneration contained in the contract of employment for the nominee and the general terms of employment meet and/or exceed the terms of the relevant award, being the Hospitality Industry Award 2010.

    26.The Tribunal was satisfied that proposed pay scale is not inconsistent with the market rate for the position of cook, as prescribed in the underpinning award.

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

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

    28.Regulation 5.19(4)(f) requires that there is no adverse information known to Immigration about the nominator or person associated with the nominator; or it is reasonable to disregard any such information. For these purposes, ‘adverse information’ and ‘associated with’ have the meaning given in rr.1.13A and 1.13B.

    29.The Tribunal has reviewed the Department’s records, including its Integrated Client Services Environment (ICSE) and has found nothing to indicate that there is any adverse information known to Immigration about the nominator or person associated with the nominator.

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

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

    31.Regulation 5.19(4)(g) requires that the nominator has a satisfactory record of compliance with the laws of the Commonwealth, and of each State or Territory in which the nominator operates a business and employs employees in the business, relating to workplace relations.

    32.There is no evidence in the Department’s records, or otherwise before the Tribunal, suggesting that the nominator does not have a satisfactory record of compliance with Commonwealth and Victorian laws relating to workplace relations.

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

    Tasks of the position genuine need for the position and training requirements r.5.19(4)(h)

    34.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 18/043), the occupation is applicable to the proposed employee in accordance with any specifications made in that instrument, and specified training requirements are met; or

    ·the position and nominator’s business is located in regional Australia, there is a genuine need for the paid position under the nominator’s direct control which cannot be filled by a locally resident Australian citizen or permanent resident, the tasks of the position correspond to those of an occupation specified in the relevant legislative instrument, 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.

    35.The Specification of Occupations for subclass 187 visas includes at Item 330 for Regional Employment, the position of cook. The ANZSCO descriptor is as follows:

    “UNIT GROUP 3514 COOKS

    
    COOKS prepare, season and cook food in dining and catering establishments.

    Chefs, Fast Food Cooks and Kitchenhands are excluded from this unit group. Chefs are included in Unit Group 3513 Chefs. Fast Food Cooks and Kitchenhands are included in Minor Group 851 Food Preparation Assistants.

    Indicative Skill Level:
    Most occupations in this unit group have a level of skill commensurate with the qualifications and experience outlined below.

    In Australia:

    AQF Certificate III including at least two years of on-the-job training, or AQF Certificate IV (ANZSCO Skill Level 3)

    
    In New Zealand:

    NZ Register Level 4 qualification (ANZSCO Skill Level 3)

    
    At least three years of relevant experience may substitute for the formal qualifications listed above. In some instances relevant experience and/or on-the-job training may be required in addition to the formal qualification.

    Tasks Include:

    §examining foodstuffs to ensure quality

    §regulating temperatures of ovens, grills and other cooking equipment

    §preparing and cooking food

    §seasoning food during cooking

    §portioning food, placing it on plates, and adding gravies, sauces and garnishes

    §storing food in temperature controlled facilities

    §preparing food to meet special dietary requirements

    §may plan menus and estimate food requirements

    §may train other kitchen staff and apprentices

    Occupation:

    351411 Cook

    
    351411 COOK

    
    Prepares, seasons and cooks food in a dining or catering establishment.

    Skill Level: 3”

    36.The nominator provided evidence of the scope of duties undertaken by the incumbent in the nominated position, which includes the application of the nominee’s skills and competencies obtained through studies in Commercial Cookery, at the Certificate IV level and at the level of Diploma in Hospitality, together with formal on-the-job experience of seven years. This was supported by formal evidence from the nominee, who confirmed his qualifications, experience and described his duties in preparing for the lunchtime meals, including the pre-preparation work and that his preparation will support up to 180 meals in a lunch time session. The incumbent will be under the direct control of the nominator. Further, the Tribunal is satisfied that the nominee meets the language skills expected in approving an application with an EILS score of 7.0.

    37.Further, the nominee gave evidence that he works 5 days per week between the hours of 9.30 am and 5.30 pm. His duties also include health and hygiene with the cleaning of the kitchen after each meal preparation period. Accordingly, the Tribunal is satisfied that the nominee has the appropriate skills and competencies to fulfil the requirements of ANZSCO 351411 and the attendant tasks. Further, the magnitude of the scope of work was confirmed by the nominator with a summary of a typical day’s takings between 1 July 2016 and 30 June 2017, identifying the meal preparations. This data demonstrated that 15,869 meals were prepared in this one year period for consumption.

    38.The nominee has been provided with an employment contract as a full-time employee and there is an ongoing commitment from the nominator to extend the contract beyond two years, particularly given the difficulty in recruiting suitable candidates for the position in the regional area of the Bass Coast.

    39.The submissions provided by the nominator confirmed that the net profit for the period 1 July 2016 and 30 June 2017 was $459,460.96, which demonstrated a financial capacity to support the engagement of a cook for the near future.

    40.The nominator provided the Tribunal with material supporting the extent of Labour Market Testing to support the employment of the nominee. As such, the Tribunal is satisfied with the rigor of the process and the intent was focussed upon securing the most suitable candidate. This data includes relevant Payscale analysis and job advertising media. The nominee is paid a salary of $41,000 per annum plus superannuation of 9.5%.

    41.The nominator gave evidence regarding the organisational structure and submitted a detailed business plan, which indicated an expansion of the business into the future.

    42.The Tribunal was also provided with oral evidence from Mr. Peter Francis, the Bass Coast – Manager for Economic Development and Tourism, who stated that he had known the nominator (business owner) since 2007 and that he had written to Mr. Kondanapanny on 20 October 2018. He stressed that the Phillip Island Chocolate Factory is a significant regional attraction for tourism and the only attraction that is not effected by seasonal conditions. He described the nominator as a “reliable and good operator” and that the operation was a serious part of Phillip Island’s tourism.

    43.Accordingly the requirements of r.5.19(4)(h) are met and the nomination was remitted to the Department for consideration of approval.

    44.Therefore, cl.187.212 is met.

    45.Given these findings, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.

    DECISION

    46.The Tribunal remits the application for a Regional Employer Nomination (Permanent) (Class RN) visa for reconsideration, with the direction that the nominator meets the following criteria for a Subclass 187 (Regional Sponsored Migration Scheme) visa:

    §cl.187.233(3) of Schedule 2 to the Regulations; and

    §cl.187.212 of Schedule 2 to the Regulations.

    Warren Stooke AM

    Member