Jay Varahi Pty Ltd (Migration)

[2021] AATA 2084

Jay Varahi Pty Ltd (Migration) [2021] AATA 2084 (17 May 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Jay Varahi Pty Ltd

CASE NUMBER:  1913877

HOME AFFAIRS REFERENCE(S):          BCC2017/3938066

MEMBER:Karen McNamara

DATE:17 May 2021

PLACE OF DECISION:  Sydney

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

Statement made on 17 May 2021 at 1:51pm

CATCHWORDS

MIGRATION – approval of a nomination – Direct Entry Nomination stream – position of Restaurant Manager – financial capacity to employ the nominee for at least 2 years – Regional Certifying Body advice – actively and lawfully operating a business in Australia – terms and conditions of employment – genuine need for the position – decision under review set aside   

LEGISLATION

Fair Work Act
Migration Act 1958, ss 245, 359
Migration Regulations 1994, rr 1.13, 5.19, 5.37

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 May 2019 to reject the application by Jay Varahi Pty Ltd (the applicant) 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 25 October 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 5.19(4)(d)(i) of the Regulations because the delegate found that the business failed to demonstrate that it had the financial capacity to employ the nominee for at least two years.

5. The applicant applied to the Tribunal on 2 June 2019 for review of the delegate’s decision. The applicant submitted a copy of the primary decision record with the review application.

6. On 20 April 2021, the applicant represented by Mr Abhiram Thati (referred to below as the applicant) appeared before the Tribunal via telephone, to give evidence and present arguments. The Tribunal also received oral evidence from Ms Asmita Devang Brahmbhatt (the nominee) in the related matter for the subclass 187 visa (AAT Case file 1916501). The related matters were heard concurrently in a combined hearing.

7. The Tribunal exercised its discretion to hold the hearing by telephone. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant and nominee. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone. The Tribunal is satisfied that the applicant and nominee were given a fair opportunity to give evidence and present arguments.

8. At the conclusion of the hearing, the Tribunal invited the applicant to provide evidence of payment of superannuation to the nominee, advice from the relevant Regional Certifying Body, and evidence to support why the position cannot be filled by an Australian citizen or an Australian permanent resident. 

9. The aforementioned information was received by the Tribunal on 21 April, 3 and 10 May 2021.

10. The applicant was represented in relation to the review by its registered migration agent. The representative attended the Tribunal hearing.

11. 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

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.

    Background

13. The applicant owns and operates (under a lease agreement) a service station trading as BP Nhill Roadhouse located at Nhill, Victoria. BP Nhill Roadhouse sells fuel and provides maintenance and repairs for motor vehicles. The Roadhouse also has a dining facility which provides take away and dining in services. The restaurant is operated under the nominating entity whilst the fuel and vehicle maintenance services operate under a different entity.

14. On 25 October 2017, the applicant lodged an application for an employer nomination approval for the position of Restaurant Manager under the occupation of Café or Restaurant Manager (ANZSCO 141111) under the Regional Sponsored Migration Direct Entry stream. The nominated base rate and guaranteed earnings is $55,000 per annum.

15. The application to the Department, nominated the nominee to work at Half Way Restaurant & Café located at Tarcutta, NSW. The applicant told the Tribunal that he ceased operating the Tarcutta business following the renovation and sale of the premises by the lessor/owner. The applicant has leased and operated the Nhill business since 2017 under a separate entity. Following the dissolution of this entity in August 2019, he commenced operating the Nhill business under the entity Jay Varahi Pty Ltd. The nominee transferred to the Nhill business in December 2019.  ASIC records show the entity Jay Varahi Pty Ltd was registered on 18 January 2016.

16. The Tribunal notes that numerous evidence and submissions were lodged by or on behalf of the applicant. While the Tribunal has considered all of same, only that which was considered material to its decision has been expressly referred to herein.

    ADVERSE INFORMATION – Invitation to comment

17. On 30 March 2021, the Tribunal wrote to the applicant under s.359A of the Act. The invitation seeking comment and further information from the applicant, included the following;

    ‘  There is information before the Tribunal which suggests that since relocating the

    nominating business from NSW to Victoria you have not obtained advice from a
    body that is located in the same State as the location of the position (RCB advice).

    The above information is relevant because r.5.19(4)(h) (ii) (F) requires 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).

    If the Tribunal relies on the information currently before it in so far as you have not
    obtained advice from a body that is located in the same State or Territory as the
    location of the position, the Tribunal may find that you do not satisfy the requirements
    of r.5.19(4) and consequently the decision under review would be affirmed.’

18. The Tribunal sought response from the applicant by 13 April 2021.

19. On 8 April 2021, the applicant requested a postponement of the hearing scheduled for 20 April 2021.

20. On 9 April 2021, the Tribunal wrote to the applicant advising that after careful consideration of the request for a postponement the Tribunal in this instance had decided not to grant a postponement and that the hearing would proceed as scheduled on 20 April 2021.

21. The applicant responded to the Tribunal on 12 April 2021, by way of a written submission from their authorised representative, in which the representative advised that a RCB application had been lodged with Wimmera Development Association.

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

22. 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.

23. Based on the material in the Department’s file, the Tribunal is satisfied that the application was made on the approved form. As the position is located in regional Australia, no fee is payable (r5.37(2)(a)). The application also included written certification relating to conduct that contravenes s.245AR(1) of the Migration Act 1958, declared and signed by the applicant. Accordingly, the requirements of r.5.19(4)(a)(i) are met.

24. In considering whether the application for approval identifies a need for the nominator to employ a paid employee to work in the position under the nominator’s direct control, the Tribunal has had regard to the evidence before it, including written submissions and the oral evidence received at the hearing by Mr Abhiram Thati. In support of the need for the position, the applicant has provided evidence in the form of submission dated 28 December 2020 and supporting information provided to the Tribunal on 29 December 2020.

25. The applicant told the Tribunal, the need to employ a paid employee to work in the nominated position is essential to the operational and business needs of the service station’s restaurant business. The applicant told the Tribunal that he is not able to work as the manager of the restaurant as he may be a good owner but does not consider himself to be a good manager. The applicant in addition to having other business interests has a full-time job with Telstra and does not have the time to manage the restaurant business and is reliant upon employing, a paid employee to manage the restaurant on his behalf.

26. Accordingly, the requirement in r5.19(4)(a)(ii) are met.

27. As the criteria in both r.5.19(4)(a)(i) and (ii) are satisfied, accordingly the requirements in r.5.19(4)(a) are met.

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

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

29. The Tribunal accepts on the evidence before it that the applicant’s business interests include a franchise operated BP service station with a roadhouse restaurant and dining facilities located at Nhill, Victoria. Based on the material provided to the Tribunal, including; financial statements, BAS returns, ASIC details, payroll advice, and business bank statements the Tribunal is satisfied the applicant is actively and lawfully operating a restaurant business in Australia and directly operates that business.

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

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

31. 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. 

32. There is no evidence before the Tribunal to suggest that the applicant’s business is involved in labour hire.

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

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

34. 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. 

35. The delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19(4)(d) of the Regulations because the delegate was not satisfied that the application demonstrated that the business had the financial capacity to employ the nominee on a full time basis for at least two years.

36. The Tribunal has formed a different view and accepts the evidence presented by the applicant attesting to the business’ financial viability and capacity to employ the nominee for at least two years. The Tribunal notes that a more comprehensive suite of evidence was presented to it than was given to the delegate in the original application.

37. In considering whether the business has the financial capacity to pay a full-time salary of $55,000 per annum to the nominee for two years, the Tribunal has taken into consideration evidence before it including the business’s financial statements, bank statements and documents submitted to the ATO. The Tribunal has afforded weight to information before it including the applicant’s financial statements, business tax returns, BAS returns and bank statements, which show the applicant has met payroll and operating costs.

38. The Tribunal examined the financial information submitted by the applicant. The business’s 2019/20 financial statements record for the 2019 financial year the business reported sales of $137,403. In the 2020 financial year the business reported sales of $322,006. In 2020 the business recorded a net profit of $7,629. The applicant’s BAS returns for the 2021 financial year (1 July 2020 to 31 December 2020) record sales of $237,186 representing an 83% increase in sales from the 2019 corresponding period. The Tribunal notes that the current location commenced trading under the applicant in August 2019 which is reflected in the applicant’s financial reporting.

39. The Tribunal notes that the applicant’s most recent financial statements show that the business has reported modest revenue with proportionally aligned profit. The Tribunal has taken into consideration the financial evidence provided by the applicant which shows that the business as at 30 June 2020 reported no debt and net equity of $30,396.

40. At the hearing the Tribunal discussed with the applicant the impact of the COVID -19 pandemic on his business. The applicant told the Tribunal that the business (due to COVID 19 restrictions particularly border closures) ceased table service but remained open for takeaway services. Since the Victorian and South Australian border has remained open, the increase in travellers has contributed to increased revenue attributable to combination of takeaway and dining sales. Whilst the lockdown restrictions will have some immediate impact upon the applicant’s revenue and profit, the applicant is located on a main highway close to the SA and Victorian border. Stability in border openings will contribute to an increase in sales as more travellers are able to travel across the border. The applicant is confident the COVID- 19 restrictions will not impact materially in the medium to long term.

41. The Tribunal has also taken into consideration the nominee has been employed by the applicant since May 2018, commencing full time in January 2019. The business and nominee’s bank account statements, PAYG’s and applicant’s payroll records, support the nominee has received regular salary payments of the nominated salary of $55,000.

42. Based on the evidence before it, the Tribunal is satisfied on balance that the applicant has the financial capacity to maintain the nominee’s full-time employment as they have done since the nominee commenced full-time employment with the applicant in January 2019.

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

44. The Tribunal has had regard to the contract of employment dated 21 September 2017 and subsequent letter dated 11 December 2019. The contract, which sets out the terms and conditions of employment, indicate that the period of employment is for a minimum period of two years after the grant of the subclass 187 visa. The contract stipulates the base salary is $55,000 per annum exclusive of superannuation with hours of work 38 hours per week. There is no term excluding an extension of the contract.

45. The Tribunal is satisfied based on the employment contract dated 21 September 2017 and other material before it, that the nominee will be employed on a full-time basis for at least two years on terms that do not exclude the possibility of extending the period of employment. Accordingly, the requirement in r.5.19(4) (d) (ii) is met.

46. As the criteria in both r.5.19(4)(d)(i) and (ii) are satisfied, accordingly the requirements in r.5.19(4)(d) are met.

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

47. 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.

48. The contract of employment dated 21 September 2017, sets out the terms and conditions of employment and indicates that the nominee’s salary will be $55,000 per annum and hours of work 38 hours per week. The nominee’s leave entitlements include annual, personal, carers and compassionate leave in accordance with the Fair Work Act.

49. The Tribunal has received copies of the nominee’s PAYG’s, bank statements and payroll information confirming that the nominee has been paid by the applicant, the nominated salary amount of $55,000 per annum. Superannuation information provided to the Tribunal support that the nominee is being paid superannuation. The Tribunal is therefore satisfied based on the evidence that the nominee will be paid in accordance with the terms of employment.

50. The Tribunal is satisfied on the totality of the evidence before it that the terms and conditions applicable to the position 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. 

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

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

52. 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. 

53. There is no evidence before the Tribunal to indicate that there is adverse information as per the meaning given in rr.1.13A and 1.13B, known to the Department about the applicant or an associated person.

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

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

55. 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.

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

57. 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)

58. 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 the relevant 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 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.

    In this case, the applicant claims to meet the requirements in r.5.19(4)(h)(ii). The Tribunal has considered each of these requirements as follows;

1. The evidence before the Tribunal indicates that the applicant’s business, which is operated by the applicant and the position are located in Nhill, Victoria, postcode 3418, which is a postcode specified in the relevant instrument as being in regional Australia, accordingly r.5.19(4)(h)(ii)(A) and (E) are met.

2. The Tribunal next considered whether there is a genuine need for the applicant to employ a Café or Restaurant Manager (ANZSCO 141111) and for the tasks of that position.

3. In considering whether there is a genuine need for the nominator to employ the nominee as a paid employee, to work in the position under the nominator’s direct control, the Tribunal has had regard to the evidence before it, including written submissions and the oral evidence received at the hearing by Mr Abhiram Thati.

4. The applicant gave evidence at the hearing that the position is key to the operational requirements of the business, in so far as the position of Restaurant Manager is needed to oversee the management of the service station’s roadhouse dining facilities. The applicant told the Tribunal that the genuine need to employ a paid employee to work in the nominated position has arisen as the owner has a full-time job with Telstra and requires a paid employee to manage the restaurant functions of the business on his behalf.

5. The Tribunal discussed with the applicant and nominee at the hearing, the precise tasks and responsibilities associated with the position and has considered evidence supporting the nominee’s suitability in so far as her experience and qualifications for the position.

6. Department records show that the nominee attained an Advance Diploma of Management and Diploma of Management whilst studying in Australia and holds an MBA and Bachelor of Commerce from India. The nominee has held various management positions and has worked for the applicant in the nominated position, since May 2018. Having considered the evidence attesting to the nominee’s experience and qualifications the Tribunal is satisfied that she is suitably qualified for the position.

7. The Tribunal is satisfied that there is a genuine need for a paid employee to work in the position of Restaurant Manager (ANZSCO 141111) under the nominator’s direct control. The Tribunal is also satisfied that the tasks of the position to be performed correspond to the tasks of an occupation specified by the Minister in a relevant instrument in writing for this sub-subparagraph. Furthermore, the Tribunal is satisfied the occupation is applicable to the person identified under subparagraph (a)(ii) in accordance with the specification of the occupation. Accordingly, the requirements of r.5.19(4)(h)(ii) (B) and (D) and (DA) are met.

8. The Tribunal is satisfied that the material and evidence provided by the applicant, supports the applicant’s claims that they have made efforts to fill the position locally by an Australian citizen or an Australian permanent resident. The applicant provided evidence that they have been unsuccessful in sourcing an experienced and qualified Australian citizen or an Australian permanent resident to the position.

9. The Tribunal also gives weight to the RCB’s advice that the position cannot be filled locally. On the evidence, the Tribunal is satisfied that the position cannot be filled by an Australian citizen/permanent resident living in the same local area. Accordingly, the requirements of r.5.19(4)(h)(ii)(C) are met.

10. As discussed previously in this decision the Tribunal invited the applicant to provide evidence of obtaining RCB advice indicating that they are satisfied regarding the matters specified in r.5.19(4)(e) and r.5.19(4)(h)(ii)(B) & (C). The Tribunal notes that on 5 May 2021, the relevant RCB (Wimmera Development Association) indicated that they are satisfied regarding the matters specified in r.5.19(4)(e) and r.5.19(4)(h)(ii)(B) & (C). On this basis, the Tribunal is satisfied that r.5.19(4)(h)(ii)(F) is met.

11. Given the above, the Tribunal finds that the requirements of r.5.19(4)(h)(ii) are met and accordingly r.5.19(4)(h) is met as a whole.

12. 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

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

    Karen McNamara
    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).