J & J Pty Ltd (Migration)

[2021] AATA 3327

J & J Pty Ltd (Migration) [2021] AATA 3327 (27 August 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  J & J Pty Ltd

CASE NUMBER:  1828818

HOME AFFAIRS REFERENCE(S):          BCC2017/1098013

MEMBER:De-Anne Kelly

DATE:27 August 2021

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decision under review to refuse the nomination.

Statement made on 27 August 2021 at 8:33am

CATCHWORDS
MIGRATION – application for approval of nomination of position – direct entry nomination stream – genuine need to employ nominee – restaurant manager spending more time as waiter – COVID-19 restrictions and closures – position cannot be filled by citizen or permanent resident in same local area – change of location within same region – position not re-advertised – reliance on advertising for original location – advice from regional certifying body not conclusive – sound evidence required to support finding that position cannot be filled locally – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 359AA
Migration Regulations 1994 (Cth), r 5.19(4)(h)(ii)(B), (C), (E)

CASES
Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27
Bharaj Construction Pty Ltd v MIBP [2016] FCCA 902
Chinchilla (Australia) Enterprises Pty Ltd (Migration) [2020] AATA 2913
V&B Holdings Pty Ltd (Migration) [2020] AATA 2904

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 14 September 2018 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 21 March 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 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 r.5.19(4)(h)(ii)(B) of the Regulations because the applicant had not demonstrated a genuine need to employ the nominee in the position for at least two years.

5. The applicant appeared before the Tribunal on 10 August 2021 to give evidence and present arguments.

6. The applicant was represented in relation to the review by its registered migration agent, Ms Athina Stephanou MARN: 0103975.

7. For the following reasons, the Tribunal has decided to affirm the decision under review to refuse the nomination.

   Postponements, adjournments and extensions of time.

8. The hearing was originally scheduled for 5 August 2021 however a request for postponement was received on the basis that the spouse of the director was also the head chef and a director of another legal entity Spice Garden Restaurant Pty Ltd with ABN 91 611 189 783 and that if the hearing could not be postponed then they would have to close both restaurants. The postponement was granted, and the hearing re-scheduled to 10 August 2021.

9. On 1 July 2021 the applicant requested an extension of time of 14 days to provide information which was granted.

   Section 359AA of the Act

10. At the commencement of the hearing, the Tribunal explained that it may put information to the applicant, under s.359AA of the Act, that would be the reason, or a part of the reason, for affirming the decision that is under review and that it would explain why this information was relevant to the decision and how it may be relied upon in reaching a decision. The Tribunal also advised that the applicant would be given an opportunity to respond to this information in one of three ways: they could request an adjournment and the hearing could be stopped for 15 or 20 minutes or whatever period of time they wished and they could seek advice from the registered migration agent; the applicant could make a written submission within 14 days or an extended period of time if it requested an extension; or they could respond in the hearing. If they responded in the hearing, it would not prevent them from making a written submission within 14 days or a longer period if they requested an extension of time.

11. Section 359AA provides as follows:

    (a)   The Tribunal may orally give to the applicant clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and

    (b)   if the Tribunal does so—the Tribunal must:

    (i)ensure, as far as is reasonably practicable, that the applicant understands why the information is relevant to the review, and the consequences of the information being relied on in affirming the decision that is under review; and

    (ii) orally invite the applicant to comment on or respond to the information; and

    (iii) advise the applicant that he or she may seek additional time to comment on or respond to the information; and

    (iv) if the applicant seeks additional time to comment on or respond to the information—adjourn the review, if the Tribunal considers that the applicant reasonably needs additional time to comment on or respond to the information.

    Evidence

    12.At the commencement of the hearing, the Tribunal advised that the evidence to be considered included documents provided with the original application to the Department and subsequently; the evidence at hearing and any documents provided up to 14 days following the hearing or within an extended period of time, if a reasonable request was made. Documents considered are in attached Schedule 1.

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. 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.

13. The applicant J & J Pty Ltd registered on 24 March 2014 and is operating under ABN: 35 168 713 219 with the sole director; Secretary and shareholder being Ms Rajni Arora who was unable to attend having given birth eight months ago.

14. On 21 March 2017, the applicant J & J Pty Ltd trading as Nanango Food Junction lodged a Regional Sponsored Migration Scheme employer nomination - Visa subclass 187 in the direct entry stream for the position of Restaurant Manager on $52,100 per annum to be located in Nanango QLD 4165 in favour of Mr Jagjit Singh. The nominee’s place of employment was listed as 77 Drayton Street, Nanango QLD 4165.

15. Mr Chetan Talwar, the spouse of the owner and director, represented the applicant and advised that he had knowledge of the business structure.

16. Ms Rajni Arora signed a lease on 19 August 2019 for another location in Toowoomba called Highfields Curry Garden until 31 August 2022 with “Nil options”. Both restaurants are under the same ABN: 35 168 713 219.

17. Mr Talwar advised that they acquired the Indian restaurant in 2017 and it was the only Indian restaurant in the Nanango area and was busy and they intended to employ a full-time manager. The lease expired and was not extended, and they tried to find another location in Nanango but found another in Highfields. So, they moved from Nanango and opened in Highfields, a suburb of Toowoomba. They employ, one chef, one cook, one kitchen hand, two waiters and the Restaurant Manager. The reason for moving was the high Indian population in the area and a chance to expand into catering.

18. Mr Talwar explained that the business means a lot to them. His wife started the business, and everything was fine and then they had a baby last year and it is very difficult. He is running one business and with an eight month old baby it is very difficult, and the nominee is the only person who is running the Highfields business. Mr Talwar is running another Indian restaurant and it would be a financial blow if the nominee’s application was refused. It is very hard to find staff and the only option would be to close the restaurant. 

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

19. 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 in a legislative instrument, 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.

20. The applicant can choose to meet r.5.19(4)(h)(i) or r.5.19(4)(h)(ii) and has chosen to meet the latter.

    Genuine need – r.5.19(4)(h)(ii)(B)

21. This regulation provides as follows.

    (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.

22. The Tribunal needed to determine from the evidence provided whether there is a genuine need for the nominator to employ a paid employee to work in the position of Restaurant Manager under the nominator’s direct control.

23. The Tribunal examined the PAYG payment summaries for the staff in the restaurant for FY 2021 and draw up the following table.

    Table 1 - Staff earnings, waiter earnings and FTE weeks worked

Position	Staff	FY 2021	Waiters
Rest. Mgr	Jagjit Singh	F/T	41,305
Chef	Manpreet K	F/T	41,957
Cook	Sandeep K	Casual	11,230
2 X Kit. Hand	S  Bhakta	Casual	11,230
P   Gautam	Casual	2370
Surya A	Casual	700
2 X Waiter	M Thompson	(Now Left)	475	475
Apsara N	2,496	2,496
Rajpreet K
Total earnings for waiters in FY 2021			2971
Total hours worked by waiters @ $25/hr			119
Total FTE weeks worked by waiters			3
Remainder of weeks worked by nominee			49
Exclude COVID-19 closure to 18 Oct 2020			18
Weeks worked by nominee as waiter			31
% of FY 2021 nominee worked as waiter			59

1. The Tribunal had originally taken Surya A as a waiter however the applicant corrected this in the hearing and advised that she had worked as a kitchen hand although it does not make a material difference to the calculations by the Tribunal.

2. As can be seen the total earnings for the two waiters in FY 2021 were $2,971. They are casual employees and taking the Restaurant Industry Award 2020 from 12 June 2020 onwards it is found that the lowest level of Food and beverage attendant grade 1 and level 1 is paid $20.06 per hour and the loading for a casual employee is 25% which equates to $25.07 per hour earnings or $25 per hour for ease of calculation. Dividing the total hours of $2,971 by the casual earning per hour for a waiter of $25 per hour gives an aggregate of 119 hours worked for FY 2021 and further dividing this by 35 hours per week gives an aggregate of 3 Full Time Equivalent (FTE) weeks worked by the waiters in FY 2021.

3. It is a dine in restaurant and requires table service, so the only reasonable conclusion is that the nominee being the only other non-kitchen based staff member was working as the sole waiter for the remaining 49 weeks of the year. If we allow that there was not a re-opening of restrictions due to COVID-19 until the 28 October 2020 or 18 weeks of the FY2021, then the applicant was still working as a waiter for 31 weeks of the FY 2021 or 59% of the time the restaurant was open in FY 2021 allowing for the period of closure due to COVID-19.

4. The Tribunal took the applicant through these calculations and put to him under s359AA of the Act that it seemed the nominee had been working as a waiter for some 31 weeks or 59% of the time they were open in FY 2021. If the Tribunal gave consideration to this information it may conclude that there is not a genuine need for a restaurant manager on a full time basis since the nominee has been spending 59% of his time as a waiter and reasonably only 41% of his time as a Restaurant Manager.

5. The applicant chose to respond in the hearing and said that it was difficult for all hospitality businesses and until October 2020 they could only do take-away and there was no need for waiters during the period to 28 October 2020. When they re-started it was only at half capacity in regional areas and the trend was away from dine-in. With increased Jobseeker payments available as part of the government’s COVID-19 response, it was difficult to hire waitresses as they were getting more from Centrelink and did not want to work. Lockdowns also had an impact on the business’ capacity to open. The applicant claimed that the nominee worked as a full time Restaurant Manager and he “stepped up” when there were difficulties. Regarding waitstaff, the nominee decides if a waitstaff is required and whether to run the restaurant without a waitstaff and how to fill a need when no staff are available.

6. The Tribunal has considered this carefully and notes that it has taken into account the period when the business would have been closed due to COVID-19 up to 28 October 2020.  It notes that Queensland had very limited lockdowns in FY 2021 namely one in March for some two to three weeks compared to other states. There was a further lockdown in August 2021 however this was not in financial year 2021. Lockdowns that have occurred at other times in Queensland during FY 2021 have not included the Toowoomba region. The Tribunal acknowledges that it may have been difficult to attract waitresses when Jobkeeper was paid however these increased payments have ceased. Even allowing for all these factors it is open to the Tribunal to find that the nominee worked 59% of his time as a waiter in FY 2021 and is only undertaking his duties as a Restaurant Manager some 41% of the time. Despite the arguments put forward by the applicant it seems that the nominee has chosen to fill the role of waiter himself rather than employ casual waiters for the restaurant for a good percentage of the time. The fact that this continued until 30 June 2021 or beyond, although evidence was not provided for later in 2021, suggests that it is more than a temporary arrangement.

7. It is noted that a selection of payslips for the nominee were provided following the hearing and demonstrate that at various times in FY 2021 he was paid for 38 hours work however scant evidence has been provided that the applicant is employing waiters and this does not satisfy the Tribunal that the nominee is working full time as  a Restaurant Manager rather then continuing to work part time as a Restaurant Manager while undertaking the full time role of a waiter in the restaurant,

8. It is noted that the agent refers to Chinchilla (Australia) Enterprises Pty Ltd (Migration) [2020] AATA 2913 (17 April 2020) as demonstrating the genuine need for the position however in that case the nominee was not found to be working as a waiter for a significant period of time instead of as restaurant manager as is the case here.

9. The agent referred to V&B Holdings Pty Ltd (Migration) [2020] AATA 2904 (1 June 2020) again as an example of the decision maker accepting there was a genuine need for the position however the concern in that case was the delay in the nominee commencing wotk rather then the concern that the Tribunal has raised here.

10. For the reasons given above the Tribunal can give limited weight to the pay slips and cases referenced.

11. It is open to find on the evidence that the nominee works only some 41% of his time as a Restaurant Manager working the remainder of time as a waiter and reasonably the Tribunal could find that there is not a genuine need for the nominator to employ a paid employee to work in the full time position of Restaurant Manager under the nominator’s direct control.

12. The Tribunal could find that the applicant therefore does not satisfy r.5.19(4)(h)(ii)(B).

13. However, there is a regulation more germane to a decision.

14. Accordingly, it finds that r.5.19(4)(h)(ii)(B) is neither met nor not met.

    Cannot be filled – r.5.19(4)(h)(ii)(C)

15. This regulation provides as follows.

    (C) the position cannot be filled by an Australian citizen or permanent resident who is living in the same local area as that place.”

16. The Tribunal will consider the meaning of the regulation which states, ‘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”.

17. Reliance was placed on the remarks of Hayne, Heydon, Crennan and Kiefel JJ in Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27; [2009] HCA 41 at [47] in support of the proposition that the task of statutory construction must begin with consideration of the text itself and that ‘[t]he language which has actually been employed in the text of legislation is the surest guide to legislative intention’, albeit it was acknowledged that the meaning of the text may require consideration of context, including the general purpose and policy of a provision.

18. The Tribunal notes the clear unambiguous wording of the regulation ‘the position cannot be filled’ and this has a definitive quality to it which requires sound evidence to support the finding that it cannot be filled.

19. The Regulation states ‘same local area as that place”.  For clarity a plain reading of the r. 5.19(4)(a)(i) and 5.19(2)(a) suggests that the Minister must, in writing, approve a nomination if the application for approval is made in accordance with sub regulation (2); and be made in accordance with approved form 1395. It is noted that approved form 1395 in these applications is an online internet form and on page 2 of the form it asks the applicant to “give details of the postcode where the nominated person will be employed” and allows for a four digit number to be typed into the form which in this case was 4165 being the postcode for Nanango which is repeated on page 4 where the applicant is required to give the “address where the nominated person will be employed” which in this case was given as “Australia, 77 Drayton Street, Nanango QLD 4165.

20. However, the applicant has now advised that the position is no longer available at Nanango QLD 4165 but is now located at Highfields QLD 4352. It was open to the Tribunal to find that the position did not satisfy r.5.19(4)(H)(ii)(E) because the business operated by the nominator is not located at that place, being Nanango QLD 4165, however it accepts the applicant’s advice that it satisfied this regulation and the business operated by the nominator is located at that place now being Highfields QLD 4352.

21. The question for the Tribunal is whether the applicant has met the requirement that 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 being now Highfields QLD 4352.

22. The applicant advised that they had not re-advertised the position for Highfields but to satisfy the labour market testing were relying on the advertisement for the Gumtree advertisement listed on 27 January 2017 stating as follows “Restaurant manager Nanango Queensland” listed as full time.

1. The question for the Tribunal is whether it is reasonable to expect that an Australian citizen or Australian permanent resident with the requisite qualifications and experience who was living in Highfields, would apply to fill an advertisement for a Restaurant Manager position advertised for Nanango.

2. In the hearing the Tribunal put this question to the applicant under s.359AA and said it had not made up its mind but if it gave consideration to this information it may find that the applicant could not state definitely that the position of Restaurant Manager cannot be filled by an Australian citizen or Australian permanent resident who was living in the same local area as that place being Highfields.

3. The applicant responded in the hearing and said that when they re-located it was very hard to find a local Australian citizen or Australian permanent resident, who had knowledge about Indian food and it was difficult to source people for the hospitality sector. He would have had to train a new person and the nominee was the most suitable person as he had knowledge of the business. They preferred the nominee as they had invested a lot in him, and it was in the business’ best interests rather than to trust someone new.

4. It is noted that the agent’s letter of 2 August 2021 stated that they asked the RCB if they needed to lodge a new application and were advised by Qld Chamber of Commerce and Industry CCIQ it was not necessary as the postcodes between the two locations were at the same region. It is also noted that the RCB assessment states that r.5.19(4)(h)(ii)(C) has been satisfied and that they found it could not be filled locally and there were known shortages across hospitality in the South Burnett region. While the Tribunal gives some weight to the RCB advice it, for obvious reasons, did not make a finding on whether an Australian citizen or Australian permanent resident was given a fair opportunity to apply for the position if they lived in Highfields although they referenced the South Burnett. The Tribunal is concerned over the very general and cursory assessment made by the RCB and can give little weight to their assessment. It is clear from the construct of r.5.19(4)(h)(ii)(C) that the advice of the regional certifying body is not conclusive evidence and the decision maker must make a finding on this matter independent of the regional certifying body advice.

5. The same reasoning applies to the advice given by the RCB that the applicant did not need to re-advertise.

6. The Courts have found that to be the case in Bharaj Construction Pty Ltd v MIBP [2016] FCCA 902 at [81] where it considered a similar requirement in the pre-July 2012 version of r.5.19(4), and commented in obiter that the use of the word ‘advice’ undoubtedly puts beyond doubt the construction of r.5.19(4), i.e. the advice is to be considered by the Minister (or Tribunal) in determining whether those requirements are satisfied but it is not determinative.[1] In Bharaj (No 3) the Court confirmed that the judgment in Bharaj 2016 was correct in holding that there was nothing in the language, text or structure of r.5.19(4) to support the view that the advice given by a regional certifying body is conclusive evidence that the requirements in subparagraphs (a) to (c) have been met.

   [1] Bharaj Construction Pty Ltd v MIBP [2016] FCCA 902 at [81].

7. It is noted that policy as well as the legislation, also supports the Court’s view as seen in the Department’s Procedures Advice Manual[2] which states “10.7.2 Consideration of the advice - 10.7.2.1 Overview – The delegate must independently assess the nomination against all the criteria that have been assessed by the regional certifying body in providing their advice.”

   [2] [Div5.3/reg5.19] Approval of nominated positions (employer nomination) - Regulation 5.19 (immi.gov.au)

8. It is noted that Highfields is 126 km and a one hour and 33-minute drive one way to Nanango. A return trip would take some three (3) hours per day and would necessitate having access to a vehicle. The Tribunal finds it would be unreasonable to expect that a suitably qualified and experienced Australian citizen or Australian permanent resident living in Highfields to have applied for the position advertised in Nanango because of the prohibitive amount of travel and time involved in going to and from work.

9. The Tribunal will consider the screenshot of the advertisement placed on Seek which was provided after the hearing and is inconsistent with the advice the applicant and agent gave at the hearing that they had not re-advertised the position. This screenshot shows an advertisement for a Restaurant Manager for a position with the applicant at Highfields QLD 4352 and states it was placed “today 4.49pm” but unlike other online recruitment dashboards it does not show the date the advertisement was created and the day it expired which is typically 30 days.  There is a note applied at the top of the screenshot which states 13/12/2019 however the fact that the information on the dashboard shows the advertisement was placed ‘today 4.49pm’ does not satisfy the Tribunal that it was placed for a sufficient period allowing candidates to apply for the position.

10. In addition, these dashboards for employers also show over the period of time the advertisement is placed the number of visits and names of candidates that applied on a daily basis with a total number of candidates.  Also shown are which candidates uploaded resumes, cover letters etc. None of this material from the Seek dashboard was provided in support of their contention that zero candidates applied. It is implausible that on a large recruitment website like Seek.com that an advertisement placed over 30 days would attract zero candidates and if in fact this was the case it would have bolstered the applicant’s case to show another screenshot of the dashboard with the summary of candidates shown as zero and the expiry date of the advertisement. The fact that he has not done so adds to concerns the Tribunal has that this advertisement was either not placed for a reasonable period of time or attracted a number of a candidates which the applicant did not consider. There is also the anomaly that with allegedly zero candidates, the nominee did not even apply for this position suggesting that the vacancy was not genuine as the nominee knew he was secure in the position and other candidates would not be considered.

11. The agent’s letter maintains that zero candidates applied for this position however there is scant evidence of this as discussed above and the Tribunal can give little weight to this argument. It is noted that the agent and applicant state the nominee is capable and essential to the role and that if the application is unsuccessful they will have to close the business, there will be a loss of other jobs and a financial detriment to them. If this is the case it would behove the applicant to have carefully retained the evidence to satisfy the Tribunal such as a screenshot of the number of candidates who applied if it were in fact zero or to have provided a recruitment summary of skills and qualifications and the results of interviews with candidates if, as it seems reasonable, a number of candidates did apply on a large recruitment website such as Seek.com

12. The Tribunal finds that the applicant cannot satisfy the requirement that the position of Restaurant Manager cannot be filled by an Australian citizen or Australian permanent resident who is living in the same local area as that place Highfields because they initially  advertised the position as located in Nanango rather than Highfields and which would deter residents of Highfields from applying for the position. It is claimed the subsequent advertisement for Highfields placed in 2019 had zero candidates but even if the Tribunal accepts the implausible argument that an advertisement run for 30 days or a reasonable period of time on a large recruitment website such as Seek.com would attract zero candidates there is scant evidence of this since the applicant did not show the recruitment efforts such as a dashboard summary from Seek.com of how many candidates did apply for the position. Based on the evidence the Tribunal cannot be satisfied that an Australian citizen or Australian permanent resident who was suitably qualified and experienced cannot fill the position of Restaurant Manager in that place Highfields.

13. Accordingly, r.5.19(4)(h)(ii)(C) is not met.

14. For the above reasons the Tribunal is not satisfied that the applicant meets the requirements of r.5.19(4). The applicant has not sought to satisfy the criteria in Temporary Residence Transition Nomination stream, and as such has not met the requirements in r.5.19(3). Accordingly, the nomination of the position cannot be approved. Therefore, the Tribunal must affirm the decision under review.

DECISION

1. The Tribunal affirms the decision under review to refuse the nomination.

   De-Anne Kelly
   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).

   Schedule 1

   Documents including the following were provided with the original application.

   1)Regional certifying body advice including form 1404 including following information “RSMS postcode: Nanango 4615”, “Can’t be filled locally: recruitment efforts: gumtree 270117. Copy of listing provided. Five applicants but they lacked knowledge et cetera. RCB local knowledge: South Burnett region about 200 km north west of Brisbane. Population 3800. Known shortages cross hospitality if seeking Quals. Manager needs to know about the food so Indian makes this that that much harder. Little if any labour pool of qualified hospitality staff… No local available acceptable; known difficulties so except.”

   2)Organisation chart for Nanango Food Junction showing owners; restaurant manager (nominee); 2 x front of house; 1x cook (full-time); 1 x casual cook and 1 x kitchen hand.

   3)Labour market testing/recruitment summary showing advertisement on gumtree Australia as at 27 January 2017 with geographical target audience listed as Nanango Queensland with five applications received.

   4)Selection of supplier invoices.

   5)ASIC and ABN registration.

   6)Market salary analysis.

   7)Menu or Nanango food junction.

   8)Lease agreement, business plan, projected cash flow for Nanango food junction.

   9)Employment dated 20 March 2017 stating, “you will be required to perform your duties at 77 Drayton Street, Nanango QLD 4165”, signed by both employer and nominee.

   10)Gumtree advertisement listed on 27 January 2017 stating as follows “Restaurant manager Nanango Queensland” listed as full time.

   11)Online application and acknowledgement dated 21 March 2017 stating, “address where nominated person will be employed-Australia 77 Drayton Street, Nanango, Queensland, postcode 4165.”

   12)BAS statements for FY 2017, 2018.

   13)Photographs of the premises.

   14)Financial report or FY 2017.

   15)Support letter from accountants.

   16)Overview of the position from the agent dated 1 March 2017.

   Documents including the following were provided with and after the review application.

   17)Invitation from the Tribunal dated 18 June 2021 to provide updated information.

   18)ASIC and ABN registration dated 2019 showing business name as Highfields Curry Garden.

   19)Supporting letter from accountant dated 22 January 2020.

   20)Photos of and menu for Highfields curry Garden restaurant.

   21)Lease agreement for Highfields premises.

   22)Financial report 2018, 2019, 2020 and 2021.

   23)Company tax return 2019

   24)BAS statements FY 2020 and FY 2021.

   25)Organisation chart for Highfields curry Garden.

   26)Payroll the applicant for FY 2018 to 2021.

   27)PAYG payment summaries and notice of assessments for the nominee FY 2019 to 2021.

   28)Assorted documents for the nominee including passport and qualifications.

   29)Employment contract dated 4 July 2021 with requirement to perform duties at Highfields Plaza QLD 4352 & by applicant and nominee.

   30)Market salary analysis.

   31)Menu for Highfields curry Garden.

   32)Letter from the agent dated 2 August 2021.

   33)Screenshot of advertisement on Seek.

   34)Payslips for the nominee for July 2021.

   35) Letter from the agent dated 26 August 2021.