IRFAN TOKMAK ATF THE TOKMAK TRUST (Migration)

[2019] AATA 4016

IRFAN TOKMAK ATF THE TOKMAK TRUST (Migration) [2019] AATA 4016 (26 August 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  IRFAN TOKMAK ATF THE TOKMAK TRUST

CASE NUMBER:  1719374

DIBP REFERENCE(S):  BCC2017/2290126

MEMBER:Andrew McLean Williams

DATE:26 August 2019

PLACE OF DECISION:  Brisbane

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

Statement made on 26 August 2019 at 3:15pm

CATCHWORDS
MIGRATION – Employer Nomination – approval of nominated position – Direct Entry Nomination stream – Café or Restaurant Manager – genuine need – transition towards retirement – no suitable candidates locally – decision under review set aside

LEGISLATION
Migration Regulations 1994 (Cth), r 5.19

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 9 August 2017 to reject the applicant’s application for approval of the nomination of a position in Australia under r.5.19 of the Migration Regulations 1994 (the Regulations).

2. The applicant applied for approval on 28 June 2017. The requirements for the approval of the nomination of a position in Australia are found in r.5.19 of the Regulations which contains two alternative streams: a Temporary Residence Transition nomination stream (r.5.19(3)), and a Direct Entry nomination stream (r.5.19(4)). If the application is made in accordance with r.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: r.5.19(5).

3. In this case the applicant has applied for approval by 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 r.5.19(4)(a)(ii) of the Regulations because the delegate was not satisfied that on the evidence accompanying the application the applicant had managed to identify a need to employ a paid employee to work in the nominated position under the nominator’s direct control.

5. The applicant appeared before the Tribunal on 14 June 2019 to give evidence and make submissions. During the hearing of the Application for Review before the Tribunal the applicant produced more evidence than had been previously submitted to the delegate.  The Tribunal also received direct oral evidence from both Mr Irfan Tokmak as well as from the visa applicant, Ms Emel Altinok.  

6. The applicant was represented in relation to the review by its registered migration agent, Mrs  Susan Battistin, of Visa & Immigration Solutions Australia Pty Ltd.  Mrs Battistan was invited to make brief oral submissions on the evidence heard before the Tribunal at the conclusion of the giving of that evidence, and had assisted the applicant in the preparation of written submissions.  These were considered by the Tribunal before the hearing, and then again after the hearing, in light of the oral evidence received by the Tribunal during the hearing.

7. All of the oral evidence heard before the Tribunal is accepted.  Mr Irfan Tokmak informed the Tribunal that he had arrived in Australia from Turkey in about 1995 and has owned and operated a number of restaurants in Toowoomba since 1998.  In 2012, Mr Tokmak says that he briefly closed his then restaurant in order to undergo renovations thereby transforming it to its current guise as ‘Sofra’, a licensed restaurant with Turkish Cuisine.  Sofra has operated continuously and successfully since that time.  In about June 2017, Mr Tokmak says that he was starting to consider a transition towards retirement, and hence sought to employ the services of a restaurant manager in order that he personally might spend less time operating the business.  Unable to secure the services of a suitable restaurant manager locally he was able to locate Ms Emel Altinok via a colleague who operates a Turkish restaurant in Sydney.  Although having had considerable prior experience in managing restaurants in Turkey, at that time Ms Altinok was working for a hairdresser in Sydney, yet was known socially to Mr Tokmak’s business associate who was then able to make an introduction.  Importantly, Ms Altinok was willing to move north to Toowoomba, to resume work in the restaurant industry. 

8. 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

9. 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 r.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: r.5.19(4)(a)

10. 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.

11. The Application for Employer Nomination for a Permanent Appointment was lodged with the department on 28 June 2017, in the approved form, by means of the on-line portal.  Therein, the applicant has identified a need to employ a paid employee to work in the nominated position under their direct control.  The approved form itself contains provision for the making of a declaration relating to s.245AR(1), and the applicant has thereby certified that they have not engaged in conduct in contravention of subsection 245AR(1). The letter of acknowledgement of lodgement as generated by the Department in response to the Application indicates that any relevant fee was also paid by the applicant at the time of lodgement. 

12. Accordingly, the requirement in r.5.19(4)(a) is met.

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

13. Regulation 5.19(4)(b) requires that the applicant is actively, lawfully and directly operating a business in Australia.  On the basis of evidence produced before the Tribunal at the hearing, including ABN details, recent tax records and restaurant menus and advertising, the Tribunal is satisfied that the applicant is actively, lawfully and directly operating a business in Australia.  The applicant, Tokmak Pty Ltd (as the Trustee for the Tokmak Trust) owns and operates the ‘Sofra’ Turkish Cuisine Restaurant, from premises at 164 Margaret Street, Toowoomba.

14. Accordingly, the requirement in r.5.19(4)(b) is met.

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

15. 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.  In this instance, there is no evidence, nor any suggestion, that the applicant is engaged in labour hire activities. 

16. Accordingly, the requirement in r.5.19(4)(c) does not apply.

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

17. 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.

18. Evidence received before the Tribunal under oath from Mr Tokmak  indicates that Ms Altinok has already been employed as the Restaurant Manager at Sofra for a period exceeding two years undertaking all of the tasks that might be expected of a restaurant manager, and that in the process she has proven herself to be a capable and reliable employee. Her employment has enabled Mr Tokmak to spend far less time at the restaurant and has enabled him to pursue other business opportunities that have become open to him more recently.  The effect of Mr Tokmak’s evidence was that he wished to retain the services of Ms Altinok as his restaurant manager indefinitely.  The applicant has also provided the Tribunal with a ‘letter of engagement’ for Ms Emel Altinok indicating that she will be made an offer of employment for a minimum period of at least two years upon the granting of a class 187 visa.  That letter of offer does not preclude further employment beyond the initial two year offer referred to in the letter of engagement.

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

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

20. Regulation 5.19(4)(e) requires that the terms and conditions of employment applicable to the nominated position 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. Ms Altinok is paid an annual salary of $55,000, together with superannuation.  Comparative market research for restaurant managers undertaken by the applicant reveals an average salary range of between $47,679.14 and $68,676.14, with the mid-point in that range being $54,801.18, meaning that Ms Altinok is paid an annual salary slightly above the average.  The Tribunal now accepts that evidence as being in satisfaction of the requirement specified in regulation 5.19(4)(e).

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

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

22. Regulation 5.19(4)(f) requires that there be no adverse information known to Immigration about the nominator or person associated with the nominator; or that 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. 

23. There is no evidence before the Tribunal of any adverse information about either the nominator, or any person associated with the nominator.

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

    Satisfactory compliance with workplace relations laws: r.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 the applicant has an unsatisfactory record of compliance with the workplace relations laws of either the Commonwealth, and of any State or Territory in which the applicant operates a business and employs employees.

27. 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)

28. In this instance the applicant seeks to meet the requirements of regulation 5.19(4)(h)(ii), on the basis that the nominated position is one located in regional Australia.  In order to meet the requirements of regulation 5.19(4)(h)(ii), each of the following must apply:

    (A)The position must be located in regional Australia;

    (B)There is a genuine need for the nominator to employ 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;

    (DA)The occupation is applicable to the person identified under subparagraph 5.19(4)(a)(ii) in accordance with the specification of the occupation;

    (E)The business operated  by the nominator is located at that place; and

    (F)A regional certifying body has advised the Minister about the matters mentioned in paragraph 5.19(4)e and in subparagraphs 5.19(4)(h)(ii)(B)&(C).

29. In relation to each of the matters identified in the immediately preceding paragraph, the Tribunal notes on the basis of the evidence that it has received and considered that:

    ·The position is located at Toowoomba, which qualifies as a location in regional Australia and that, for purposes of sub-regulation 5.19(4)(h)(ii)(E), the business operated  by the applicant is located at Toowoomba;

    ·On the basis of the oral evidence received before the Tribunal from Mr Irfan Tokmak, there is a genuine need for the applicant to employ a paid employee to work in the nominated position under Mr Tokmak’s direct control.  The evidence from Mr Tokmak was that the nominated position had been advertised by means of the ‘Career One’ website between 13 June and 27 June 2017, yet the advertisement had not produced any suitable applicants.  On this basis, the Tribunal is satisfied that the nominated position could not be filled by either an Australian citizen or an Australian permanent resident living in the same local area.

    ·The nominated position is one as Café or Restaurant Manager (ANZSCO Category 141111).  Having heard evidence from the Applicant regarding Ms Altinok’s duties, and having considered these in light of the requirements mentioned in ANZSCO Category 141111; and having heard evidence regarding Ms Altinok’s antecedents managing her own restaurant for a number of years in Turkey prior to her arrival in Australia, the Tribunal is satisfied that the tasks of the nominated position do meet those required by that ANZSCO Category, and that this occupation is the one that is most applicable to Ms Altinok, as the person identified for purposes of sub-regulation 5.19(4)(a)(ii).

    ·That on 27 June 2017 the Queensland Chamber of Commerce and Industry (‘CCIQ’) as a Regional Certifying Body specified by the Minister by an instrument in writing had advised the Minister of each of the matters mentioned in paragraph 5.19(4)9e) and sub-paragraphs (B) and (C) in paragraph 5.19(4)(h)(ii).

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

31. Based on the findings above, the Tribunal is satisfied that the applicant meets the requirements of r.5.19 for approval of the nomination of the position in Australia.

    DECISION

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

    Andrew McLean Williams
    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)       both 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;

    (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 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).