Indoz Group Au Pty Ltd (Migration)

Indoz Group Au Pty Ltd (Migration) [2022] AATA 4502 (6 October 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Indoz Group Au Pty Ltd
REPRESENTATIVE:  Mrs Khatri Aarti (MARN: 1791220)
CASE NUMBER:  1913746
HOME AFFAIRS REFERENCE(S):          BCC2017/3353339
MEMBER:Stephen Witts
DATE:6 October 2022
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Statement made on 06 October 2022 at 12:28pm
CATCHWORDS
MIGRATION – Employer Nomination – approval of nominated position – Direct Entry Nomination – Café or Restaurant Manager – genuine need – regional Western Australia – ANZSCO descriptor – nominator has other businesses and ownership interests – nominee has been working in the business for some time under different ownerships – decision under review set aside
LEGISLATION
Migration Act 1958 (Cth), s 360
Migration Regulations 1994 (Cth), r 5.19
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 15 May 2019 to reject the applicant’s application for approval of the nomination of a position in Australia under reg 5.19 of the Migration Regulations 1994 (Cth) (the Regulations).
The applicant applied for approval on 14 September 2017. The requirements for the approval of the nomination of a position in Australia are found in reg 5.19 of the Regulations which contains two alternative streams: a Temporary Residence Transition nomination stream (reg 5.19(3)) and a Direct Entry nomination stream (reg 5.19(4)). If the application is made in accordance with reg 5.19(2) and meets the requirements of either stream, then the application must be approved. If any of the requirements are not met then the application must be refused: reg 5.19(5).
In this case, the applicant has applied for approval of a nomination, seeking to satisfy the criteria in the Direct Entry nomination stream in the nominated occupation of café or restaurant manager ANZSCO code 141111.
The delegate refused the application on the basis the applicant’s nomination did not satisfy reg 5.19(4) of the Regulations because the delegate was not satisfied that there was a genuine need for the nominator to employ the person identified as a paid employee to work in the position under the nominator’s direct control.
The applicant, Mr Chirag Patel from Indoz Group Pty Ltd, appeared before the Tribunal on 6 October 2022 to give evidence and present arguments.
The Tribunal also received oral evidence from the nominee Mrs Rina Vora.
The applicant was represented in relation to the review.
For the following reasons, the Tribunal has decided to set aside the decision under review and substitute a decision approving the nomination.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant meets the requirements for approval of the nomination under the Direct Entry nomination stream set out in reg 5.19(4), which is extracted in the attachment to this decision. For the nomination to be approved, all the requirements must be met.
The Tribunal has considered all the material before it including evidence provided prior to the hearing and evidence given at the hearing.
The Tribunal notes that it has been provided with a copy of the relevant delegate’s decision by the nominator where it was contended by the delegate that it was not satisfied that there was a genuine need for the nominator to employ the person identified as a paid employee to work in the position of café or restaurant manager under the nominator’s direct control. The delegate stated that the nominating business is located in Coolgardie, a regional location in Western Australia, and that the business was established in April 2013 and at that time it employed 4 Australian citizen employees and 1 visa holder, including a restaurant manager who is the nominee, an Australian citizen Cook, a student visa holder cook, a permanent resident kitchen hand, one full-time Australian citizen and a casual Australian citizen waiter. It was asserted by the delegate that no evidence was provided in regard to circumstances such as the identification and recruitment of the nominee or sufficient material to indicate how the position was filled. It was also asserted by the delegate that it was not satisfied that the size and scope of the restaurant business concerned warranted a full-time restaurant manager given the staffing levels and the size of the restaurant and that therefore the range and breadth of the duties that will be performed by somebody in this position would not be at the level of a café or restaurant manager. On that basis it made an assessment under regulation 5.19(4)(h) and made a finding that the position was not genuine.
The Tribunal notes that evidence has been provided to it prior to the hearing including an employment contract dated from 2016 and 2022, an organisation chart, a job advertisement from 2017, position descriptions, lease agreements, menu, some company documents and financial documents, payslips for the nominee, and other material.
The Tribunal notes that the financial material provided indicates that the organisation has an ACN number 163223078 and was registered in 2013, that the business also includes a café in Perth, a café in Kalgoorlie, and a burger business at that time.
The financial material provided indicates that the business in the June 2022 financial year had a total income of approximately $400,000, a loss of approximately $17,000 and wages expenses of approximately $186,000. It was also indicated that in the June 2021 financial year it had a total income of approximately $400,000, a loss of approximately $40,000, and a wages expense of approximately $200,000.
The Tribunal notes an organisation chart was provided for the café in which the nominee works which lists a director of the group, Mr Chirag Patel, the nominee as restaurant manager, a shift manager, 2 cooks, and 4 other employees as kitchen hands and “runner ups”.
The Tribunal notes that the employment contract in its latest version is dated 29 July 2022 and has a base salary of $65,000 per annum and was signed on that date.
The Tribunal further notes that a job description was provided for a restaurant manager reflecting that of the ANZSCO descriptor.
The Tribunal notes that the ANZSCO descriptor for café or restaurant manager code 141111 defines such as a manager who organises and controls the operation of the café, restaurant or related establishment to provide dining catering services; and that fast food managers or quick service managers are excluded from this occupation. It further describes the duties and responsibilities as:
“planning menus in consultation with Chefs
planning and organising special functions
arranging the purchasing and pricing of goods according to budget
maintaining records of stock levels and financial transactions
ensuring dining facilities comply with health regulations and are clean, functional and of suitable appearance
conferring with customers to assess their satisfaction with meals and service
selecting, training and supervising waiting and kitchen staff
may take reservations, greet guests and assist in taking orders”
The Tribunal further notes that prior to the hearing further material was provided including a relational company extract for the MAS Group, ACN number 644412519, a profit and loss summary for the Indoz Group Pty Ltd for the period January until June 2022 indicating that the total income for the café business in Kalgoorlie where the nominee is employed is approximately $250,000, wages expenses of approximately $100,000, and net earnings of approximately $30,000. A summary was also provided for the July 2021 to December 2021 indicating that the total income for the business was approximately $160,000, wages expenses of approximately $90,000, and a loss of approximately $50,000. The material for the MAS Group Pty Ltd indicating that there are two directors of the business including Mr Patel and Mr Jagtap, who resides in India, and that the business was registered in 2020.
The Tribunal notes a further submission was provided prior to the hearing from the nominator stating that the business structure and location of the business had changed in that the business that initially nominated the nominee to a franchisee business with a fuel and food outlet in Coolgardie in regional Western Australia and that the nominee was employed in this business as a café or restaurant manager. It was stated that when this business franchisee agreement came to an end in 2018 the previous owner sold the business to another party and that he then moved into a food in café business called Aurora café in Kalgoorlie to continue the business when Mr Patel took over the business in January 2022. It was stated that during this time the nominee continued in the same role. It was also stated that the current nominator took over the business again under the same ABN number and that the business remains active under which the initial nomination application was lodged. It was stated that the nominee continues to carry out the same duties in the same structure. The nominator also stated that he owns multiple stores and that he needs a reliable person to run the operations in Kalgoorlie and that after the pandemic the business has grown strongly but was having trouble maintaining its workforce.
It was further stated by the nominator that he has worked for the last 10 years or so in many roles including as a kitchen hand, store supervisor, store manager, and cook and chef and that he took over the Indoz Group in January 2022 and that he now runs the business in 2 locations in Kalgoorlie and Mount Hawthorne. He stated that he has a genuine need to employ the nominee.
The Tribunal notes that also provided was a letter from the nominee stating that she currently works as a café and restaurant manager at the Aurora café in Kalgoorlie and that she has been working with the company for the last four years or so. She stated that she has been living in Australia for 14 years with her husband and that she brought her kids to Australia so they can be raised here. She stated that she has been working in the food industry for 10 years, that she started as a kitchen hand then worked as a sandwich maker before working as a retail manager in a pizza shop. She stated that she has studied here, including at diploma level in business and hospitality management, and that she has now had seven years or so of experience in management. She stated that she has a son who is 18 years old and a daughter who is 22 years old and that her son is finishing year 12 and that her daughter is studying nursing. She stated that there are compassionate and compelling circumstances as she has not lived in India for many years, and it will be challenging for them to settle back in her home country.
At the hearing the Tribunal had a discussion with the nominator and the nominee regarding the application.
The nominator stated that he bought the café in Kalgoorlie where the nominee worked in January 2022 and that prior to that he had worked in the business for the previous owner for a few months. The Tribunal had a discussion with the nominator regarding this business and his other businesses and it was stated that the nominator owns this café as well as 2 bar/restaurants in other locations in or near Perth. He stated that the business in Kalgoorlie is an Australian food café which makes sandwiches and provides light meals, it has a children’s menu, and makes some breakfasts and burgers and steak sandwiches. He stated that it has 10 tables and that each table can seat up to 4 people. He stated that there are currently 8 people in the business, 1 of which being the nominee and also a shift manager, 2 cooks, 2 food waiters and 2 kitchen hands. He stated that one of the kitchen hands is an Australian citizen and one of the wait staff is a permanent resident and that all the other employees are temporary visa holders. He stated that he directs the business but is based in Perth which is 500 km from the café in Kalgoorlie and that the nominee coordinates front and back operations, maintains the café’s inventory, managers rosters and budgets, hygiene standards, and trains new employees, as the manager of the business. He stated that the business is open from 7 AM until 3 PM from Tuesday to Sunday. He stated that the shift manager in the business works as a manager when the nominee is not at the workplace but that the nominee makes most of the management decisions in the business.
He stated that there is a crisis of shortage of labour in regional Western Australia and that he needs the nominee in the business.
He also stated that the financial and ownership circumstances of the business is that he and his business partner as above are associated with the MAS Group which also owns other businesses as independent entities and that he runs the Indoz business as outlined above.
The nominee stated that she first came to Australia in 2009 on a student visa that she has had various jobs since that time mainly in the food and café industry and that she started in the original business in Coolgardie in May 2018 which was also a café/restaurant, but one that largely served Indian cuisine, and that she then took on this role working in Kalgoorlie in this Australian style café at the beginning of 2019. She stated that as a manager she plans the menu, functions, supervises staff, does the rosters and timesheets, does the stock-take on an ongoing basis, and trains new staff. She stated that she is hard-working and wishes to continue to work in this role and stay in Australia.
The applicant’s representative, on behalf of the parties, stated that the nominator is situated several hundred kilometres from Perth and so needs a café and restaurant manager in this business, that the nominee has survived changes in business ownership and still works in the business as a café or restaurant manager, and that it is important that she is able to continue in this role as it is a requirement for the nominator to continue to run this business.
The Tribunal has considered the above evidence carefully noting that the owner and director is not working in the business and has other business and ownership interests, and that the nominee has been working in the business for some time under different ownerships as a café or restaurant manager, as outlined by the evidence given by the parties, and therefore the Tribunal finds that in this case under these circumstances that the position is genuine.
The application is compliant: reg 5.19(4)(a)
Regulation 5.19(4)(a) requires that the application for approval must be in the approved form, must be accompanied by the prescribed fee, and, where applicable, must include the required written certification relating to conduct that contravenes s 245AR(1). The application must also identify a need for the nominator to employ an identified person as a paid employee to work in the position under their direct control.
The Tribunal finds that the application was made in the approved manner and that it identified a need for the nominator to employ an identified person to work as a café or restaurant manager under ANZSCO code 141111 under the nominator’s direct control.
Accordingly, the requirement in reg 5.19(4)(a) is met.
Nominator is actively and lawfully operating a business in Australia: reg 5.19(4)(b)
Regulation 5.19(4)(b) requires that the applicant is actively, lawfully and directly operating a business in Australia.
The Tribunal finds that the nominator is actively and lawfully operating a business in Australia and directly operates that business.
Accordingly, the requirement in reg 5.19(4)(b) is met.
Position is not labour-hire: reg 5.19(4)(c)
Regulation 5.19(4)(c) applies to nominators whose business activities include those relating to labour hire to an unrelated business. In these cases, the nominated position must be within the business activities of the nominator.
The Tribunal finds that the nominator is not involved in labour hire activities.
Accordingly, this requirement does not apply.
Term of employment of the visa holder: reg 5.19(4)(d)
Regulation 5.19(4)(d) requires the nominee to be employed in the nominated position for at least 2 years full time, and the terms and conditions of that employment do not expressly exclude the possibility of an extension.
The Tribunal, noting that the nominee has now worked in the business for some years on a full-time basis, finds that an extension beyond two years from now is not expressly excluded.
Accordingly, the requirement in reg 5.19(4)(d) is met.
No less favourable terms and conditions of employment: reg 5.19(4)(e)
Regulation 5.19(4)(e) requires that the terms and conditions of employment applicable to the nominated position will be no less favourable than those that are, or would be, provided to an Australian citizen or permanent resident performing equivalent work in the same workplace at the same location.
The Tribunal notes the evidence provided and finds that the terms and conditions applicable to the nominee will be no less favourable than those that would be provided to an Australian citizen or permanent resident performing equivalent work in the same workplace at the same location.
In particular the Tribunal notes that the applicant is being paid a rate of pay that is above the minimum income threshold for a temporary visa holder.
Accordingly the requirements of reg 5.19(4)(e) are met.
No adverse information known to Immigration: reg 5.19(4)(f)
Regulation 5.19(4)(f) requires that there is no adverse information known to Immigration about the nominator or person associated with the nominator; or it is reasonable to disregard any such information. For these purposes, ‘adverse information’ and ‘associated with’ have the meaning given in regs 1.13A and 1.13B.
The Tribunal finds that there is no adverse information known to the Department about the nominator or a person associated with the nominator.
Accordingly the requirements of reg 5.19(4)(f) are met.
Satisfactory compliance with workplace relations laws: reg 5.19(4)(g)
Regulation 5.19(4)(g) requires that the applicant has a satisfactory record of compliance with the laws of the Commonwealth, and of each State or Territory in which the applicant operates a business and employs employees in the business, relating to workplace relations.
The Tribunal finds that there is no evidence before it that the applicant does not have a satisfactory record of compliance with workplace relations laws in the locations in which it operates a business and employs staff.
Accordingly the requirements of reg 5.19(4)(g) are met.
Tasks of the position, genuine need for the position and training requirements reg 5.19(4)(h)
Regulation 5.19(4)(h) contains a number of alternative requirements. These are set out in detail in the attachment to the decision but can be briefly summarised as requiring either that:
·the tasks to be performed in the position will be performed in Australia and correspond to those of an occupation specified by the Minister, the occupation is applicable to the proposed employee in accordance with any specifications made in that instrument, there is a genuine need for the nominee to be employed as a paid employee in the position, and certain specified training requirements are met; or
·the position and nominator’s business is located in regional Australia, there is a genuine need for the nominee to be employed as a paid employee in the position under the nominator’s direct control, the position cannot be filled by a locally resident Australian citizen or permanent resident, the tasks of the position correspond to those of an occupation specified in the relevant legislative instrument, the occupation is applicable to the proposed employee in accordance with the specification of the occupation, and that a regional certifying body has advised the Minister about certain matters relating to the position.

The Tribunal finds that the tasks will be performed in Australia and correspond to the tasks of an occupation specified as above in the relevant instrument and that there is a genuine need for the nominator to employ the person identified as a paid employee to work in the position under the nominator’s direct control and that the position has not been able to be filled by an Australian citizen or permanent resident who is living in the same local area.
Accordingly the requirements of reg 5.19(4)(h) are met.
Based on the findings above, the Tribunal is satisfied that the applicant meets the requirements of reg 5.19 for approval of the nomination of the position in Australia.
DECISION
The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.
Stephen Witts
Member

ATTACHMENT - Extracts from the Migration Regulations 1994
5.19Approval of nominated positions (employer nomination)
…
(2)The application must:
(a)be made in accordance with approved form 1395…; and
(aa) include a written certification by the nominator stating whether or not the nominator has engaged in conduct, in relation to the nomination, that constitutes a contravention of subsection 245AR(1) of the Act; and
(b)be accompanied by the fee mentioned in regulation 5.37.
…
Direct Entry nomination
(4)The Minister must, in writing, approve a nomination if:
(a)the application for approval:
(i)       is made in accordance with subregulation (2); and
(ii)      identifies a need for the nominator to employ a paid employee to work in the position under the nominator’s direct control; and
(b)the nominator:
(i)       is actively and lawfully operating a business in Australia; and
(ii)      directly operates the business; and
(c)for a nominator whose business activities include activities relating to the hiring of labour to other unrelated businesses — the position is within the business activities of the nominator and not for hire to other unrelated businesses; and
(d)both of the following apply:
(i)       the employee will be employed on a full-time basis in the position for at least 2 years;
(ii)      the terms and conditions of the employee’s employment will not include an express exclusion of the possibility of extending the period of employment; and
(e)the terms and conditions of employment applicable to the position will be no less favourable than the terms and conditions that:
(i)       are provided; or
(ii)      would be provided;
to an Australian citizen or an Australian permanent resident for performing equivalent work in the same workplace at the same location; and
(f)either:
(i)       there is no adverse information known to Immigration about the nominator or a person associated with the nominator; or
(ii)      it is reasonable to disregard any adverse information known to Immigration about the nominator or a person associated with the nominator; and
(g)the nominator has a satisfactory record of compliance with the laws of the Commonwealth, and of each State or Territory in which the applicant operates a business and employs employees in the business, relating to workplace relations; and
(h)either:
(i)       all of the following apply:
(A)the tasks to be performed in the position will be performed in Australia and correspond to the tasks of an occupation specified by the Minister in an instrument in writing for this sub-subparagraph;
(AA)there is a genuine need for the nominator to employ the person identified under subparagraph (a)(ii), as a paid employee, to work in the position under the nominator’s direct control;
(AAA)the occupation is applicable to the person identified under subparagraph (a)(ii) in accordance with the specification of the occupation;
(B)either:
(I)the nominator’s business has operated for at least 12 months, and the nominator meets the requirements for the training of Australian citizens and Australian permanent residents that are specified by the Minister in an instrument in writing for this sub-sub-subparagraph; or
(II)the nominator’s business has operated for less than 12 months, and the nominator has an auditable plan for meeting the requirements specified in the instrument mentioned in sub-sub-subparagraph (I); or
(ii)      all of the following apply:
(A)the position is located in regional Australia;
(B)there is a genuine need for the nominator to employ the person identified under subparagraph (a)(ii), as a paid employee, to work in the position under the nominator’s direct control;
(C)the position cannot be filled by an Australian citizen or an Australian permanent resident who is living in the same local area as that place;
(D)the tasks to be performed in the position correspond to the tasks of an occupation specified by the Minister in an instrument in writing for this sub-subparagraph;
(DA)the occupation is applicable to the person identified under subparagraph (a)(ii) in accordance with the specification of the occupation;
(E)the business operated by the nominator is located at that place;
(F)a body that is:
(I)specified by the Minister in an instrument in writing for this sub-subparagraph; and
(II)located in the same State or Territory as the location of the position;
has advised the Minister about the matters mentioned in paragraph (e) and sub-subparagraphs (B) and (C).

[2022] AATA 4502

6 October 2022

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