JOE Y K NG AND WOI Y W NG (Migration)

JOE Y K NG AND WOI Y W NG (Migration) [2019] AATA 3013 (30 May 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  JOE Y K NG AND WOI Y W NG
CASE NUMBER:  1612709
DIBP REFERENCE(S):  BCC2015/3182988
MEMBER:Jennifer Cripps Watts
DATE:30 May 2019
PLACE OF DECISION:  Sydney
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.
Statement made on 30 May 2019 at 3:38pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – Restaurant Manager – duties of nominated position align with ANZSCO description for Café or Restaurant Manager – genuine need for position – role cannot be filled locally by an Australian citizen or permanent resident – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth)
Migration Regulations 1994(Cth), rr 1.13, 5.19, 5.37(2)(b)

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 Immigration on 28 July 2016 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).
The applicant applied for approval on 30 October 2015. 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 (r.5.19(3)) stream and a Direct Entry nomination (r.5.19(4)) stream. 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).
In this case, the applicant has applied for approval of a nomination, seeking to satisfy the criteria in the Direct Entry Nomination stream.
The delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19(4)(h)(ii)(D) of the Regulations because the delegate was not satisfied that the tasks to be performed in the nominated occupation of Café and Restaurant Manager, 141111, corresponds to the tasks of an occupation as described in the Australian and New Zealand Standard Classification of Occupations (ANZSCO) at skill level 1, 2 or 3.
An authorised representative and co-owner of the applicant business, Ms Woi Yee Ng (the applicant), appeared before the Tribunal on 29 October 2018 to give evidence and present arguments. A combined hearing was held with the nominee (Tribunal matter number 1612954), Ms Xiaowei Wang. The Tribunal also received oral evidence from Ms Wang. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
The applicant was represented in relation to the review by its registered migration agent, Mr Ming Zhao, Migration Agent Registration Number 0105755.
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 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 nomination was refused on 28 July 2016 and reasons were given by the delegate explaining why they were not convinced that the task to be performed in the position correspond to the tasks of an occupation specified by the Minister in the relevant instrument. The applicant provided a copy of the decision to the Tribunal when the review application was made. Essentially, the delegate was not satisfied that the duties of the nominated position aligned with the ANZSCO description for a Café or Restaurant Manager and was inclined to the view that the actual duties aligned more closely to that of a Retail Supervisor, a lower skill level 4 occupation. For this reason, r.5.19(4)(h)(ii)D was not met and the nomination was refused.
The application is compliant: r.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) of the Act. The application must also identify a need for the nominator to employ a paid employee to work in the position under their direct control.
The Tribunal has had regard to the documents on the Department file and is satisfied that the application was made on the relevant form. The position is located in regional Australia and the requirement to pay the prescribed fee is not applicable: r.5.37(2)(b) of the Regulations.
The Tribunal has had regard to the documentary evidence provided to the Department and Tribunal, together with the oral evidence of the applicant and related nominee, Ms Wang, when 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 two witnesses at the hearing, Ms Ng (applicant) and Ms Wang (nominee), gave largely consistent oral evidence about the business and the position, Café and Restaurant Manager, at the New Cathay Chinese Restaurant (the restaurant) in Queanbeyan in regional New South Wales.
The restaurant is co-owned by Mr and Ms Ng. Its opening hours are Tuesday to Sunday 5:00pm to 10:00pm. The applicant has provided an organisation chart and also gave oral evidence at the hearing about who works at the restaurant and what they do. Mr Ng is the chef and Ms Ng does some work in the kitchen as well, organising the dishes. There are two other people who work in the kitchen performing duties including rice-stirring and deep-frying. The nominee is the part-time restaurant manager and there are also seven part-time local waiting staff who work varying hours each week. The nominee manages the waiting staff and their rosters. Ms Wang plans and supervises special occasions or events at the restaurant, such as birthday and Christmas parties. The applicant greatly values the nominee as an employee and is hopeful of the nomination being approved so Ms Wang can work full-time, allowing Ms Ng to work less hours.
The restaurant had a full-time manager, Mai Jiaming, up until July 2015. From around that time, the nominee has been working at the restaurant as a part-time restaurant manager, but the business has not employed a full-time manager. The two owners are effectively absorbing the additional work outside the remit of the nominee’s part-time hours until such time as the nomination for the position is approved. The applicant gave evidence at the hearing that she is finding this increasingly difficult in terms of finding a work/life balance looking after her children and performing the extra duties at work, and she needs to spend more time looking after her family and less hours working at the restaurant.
There was discussion at the hearing about how the applicant came to find the nominee and decide to employ her. Ms Ng said that she found Ms Wang in 2015 through an employment agency which, she said, placed an ad for the position. Ms Wang at that time held a student visa and, for that reason, could only work part-time. She was otherwise considered to be a qualified and suitable candidate for the position. Ms Ng said that another applicant was recommended in 2015 as well, after Mr Jiaming left, but they tried them and the person did not perform the duties of the role very well. That person was let go and Ms Wang has been working as a part-time manager since 2015.
From 2010 to 2015, Ms Wang completed a Master of International Business, Diploma of Tourism, Diploma of Hospitality and Diploma of Translating. During the same period, while she was studying, she worked part-time in retail sales and as an assistant manager in a noodle bar. Ms Wang also has an RSA certificate. The applicant said that the nominee is particularly useful in the front of house position as a manager and when dealing with suppliers because of her English language skills, which are at a much higher level than her own. The Tribunal observed at the hearing that the nominee’s English language skills are very good.
On the evidence, the Tribunal is satisfied that 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)
Regulation 5.19(4)(b) requires that applicant is actively, lawfully and directly operating a business in Australia.
The applicant has provided the Tribunal with an ASIC extract, financial statements of the business, including a partnership tax, ATO activity statements and PAYG statements for the nominee. The applicant was considered to be credible in her oral evidence at the Tribunal hearing.
The Tribunal, on the evidence, is satisfied that the applicant is actively and lawfully operating a business in Australia and that they directly operate the business.
Accordingly, the requirement in r.5.19(4)(b) is met.
Position is not labour-hire: r.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.
There is no evidence before the Tribunal that indicates the nominating business is involved in labour hire.
Accordingly, the requirement in r.5.19(4)(c) does not apply.
Term of employment of the visa holder: r.5.19(4)(d)
Regulation 5.19(4)(d) requires the nominee to be employed in the nominated position for at least two years full time, and the terms and conditions of that employment do not expressly exclude the possibility of an extension.
The Tribunal has been provided with an Offer of Employment, signed by both the Woi Yee Ng (owner/director) and the nominee, Xiaowei Wang, dated 15 September 2015. The terms and conditions in the agreement remain unchanged. The letter stipulates that the nominee is offered a:
‘2 years full time position of Restaurant Manager (ANZSCO 141111) employment contract with renewable options. Commencement: the day after your RSMS permanent residency visa is approved by the Department of Immigration and Border Protection.’
The Tribunal has considered this together with documents provided to support the claim that the applicant’s business has the capacity to provide the two years full time employment as specified in the Offer of Employment contract, on a base annual salary of $55,000.
The Tribunal was provided with a 2017 profit and loss and balance sheet, 2016 and 2017 business and depreciation worksheets, 2016 and 2017 partnership tax returns prepared by a taxation agent, and 2017 and 2018 ATO activity statements. The nominating business’ total income has increased from $448,849 in 2014, $497,214 in 2015 and $530,868 in 2016 to $591,596 in 2017. The applicant told the Tribunal that she estimates the 2018 figure will be around $650,000 because the business did very well in the last year. The Tribunal is inclined to accept this based on the income having increased in every year from 2014.
Having carefully considered the evidence, the Tribunal is satisfied that the nominee will 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 (or renewable options as they are referred to in the Offer of Employment contract).
Accordingly, the requirement in r.5.19(4)(d) is met.
No less favourable terms and condition of employment: r.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.
At present the applicant works part-time and is paid $506 per week. PAYG statements for 2017 and 2018 have been provided for Ms Wang. Referring to the Offer of Employment contract, she will be paid a base annual salary of $55,000, plus superannuation, not including overtime or penalty rates.
The Tribunal has satisfied itself that the base salary, on Payscale for example, in Canberra (a regional area for the purpose of this nomination), to be $55,937, and is satisfied that an equivalent worker in the same location would be paid about the same as the nominee. The Tribunal notes that the nomination was certified by Regional Development Australia, Southern Inland, on 21 October 2015.
The restaurant is located and lawfully operates in Queanbeyan in regional New South Wales.
The Tribunal is satisfied, on the evidence, 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.
Accordingly the requirements of r.5.19(4)(e) are met.
No adverse information known to Immigration: r.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 rr.1.13A and 1.13B of the Regulations.
There is no evidence before the Tribunal to indicate that there is any adverse information about the nominator or person associated with them.
Accordingly the requirements of r.5.19(4)(f) are met.
Satisfactory compliance with workplace relations laws: r.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.
There is no evidence before the Tribunal that the applicant does not have a satisfactory record of compliance, as specified above.
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)
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 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 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.
Evidence has been provided by the applicant that the nominating business, Joe Y K Ng & Woi Y W Ng, trading as New Cathay Chinese Restaurant, is operated at 9 Monaro Street, Queanbeyan, New South Wales, 2620, which is a postcode specified in the relevant instrument, IMMI 13/049, as being in regional Australia. Accordingly r.5.19(4)(h)(ii)(A) and (E) are met.
The Tribunal has then turned its mind to whether the evidence before the Tribunal supports the claim that there is a genuine need for the applicant to employ a Restaurant Manager.
The applicant has provided the Tribunal with a Job Description for the nominated position, Restaurant Manager (ANZSCO 141111), describing the tasks and duties of the position in detail.
The Tribunal has had regard to the nominated position as it is described in the ANZSCO. A Restaurant Manager would:
‘Organise and control the operations of cafes, restaurants and related establishments to provide dining and catering services.’
The ANZSCO specifies that the occupation is at Skill Level 2, requiring an Australian Qualifications Framework (AQF) degree, advanced diploma or diploma. At least three years of relevant experience may substitute for the formal qualifications. The ANZSCO describes the tasks for a Café and Restaurant Manager, 141111, to include:
a.planning menus in consultation with Chefs
b.planning and organising special functions
c.arranging the purchasing and pricing of goods according to budget
d.maintaining records of stock levels and financial transactions
e.ensuring dining facilities comply with health regulations and are clean, functional and of suitable appearance
f.conferring with customers to assess their satisfaction with meals and service
g.selecting, training and supervising waiting and kitchen staff
h.may take reservations, greet guests and assist in taking orders
The tasks or duties described in the ANZSCO are substantially the same as those in the Job Description provided by the applicant. There is evidence before the Tribunal that the nominee’s highest level of education is a master’s degree from the University of Newcastle. She also has Australian diplomas in translating, hospitality and tourism.
There is evidence before the Tribunal, which is accepted, that Ms Ng currently works more hours carrying out some of the management duties at the business than she can manage. The nominee has worked, since 2015, about 20 hours a week as a part-time restaurant manager for the applicant and, when the nomination is approved she will move to a full-time role as Restaurant Manager and Ms Ng will correspondingly reduce the amount of time she spends working in the business to focus on her family.
The Tribunal has considered all relevant evidence and is satisfied that there is a genuine need for a paid employee to work in the position of Restaurant Manager under the nominator’s control. The Tribunal is also satisfied that the tasks of the Skill Level 2 position described in the ANZSCO correspond with the tasks of the position described by the applicant and nominee.
The applicant requires a Restaurant Manager with relevant qualifications and experience, who can speak both English and Mandarin. This is required both for customers and also for the applicant to be able to fully communicate with the person they employ in the position. The Tribunal is satisfied that the applicant has made efforts to fill the position locally but that they were unable to find a suitable qualified and skilled candidate and that position cannot be filled locally by an Australian citizen/permanent resident.
Accordingly, the requirements of r.5.19(4)(h) are met.
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
The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.
Jennifer Cripps Watts
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
(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).

[2019] AATA 3013

30 May 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Remedies