K Chapman & M. M Singh (Migration)
[2022] AATA 1056
•19 January 2022
K Chapman & M. M Singh (Migration) [2022] AATA 1056 (19 January 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT: K Chapman & M. M Singh
REPRESENTATIVE: Mr Troy Matthew Sanders (MARN: 0319666)
CASE NUMBER: 1925561
HOME AFFAIRS REFERENCE(S): BCC2018/930211
MEMBER:George Hallwood
DATE:19 January 2022
PLACE OF DECISION: Adelaide
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.
Statement made on 19 January 2022 at 11:52am
CATCHWORDS
MIGRATION – nomination – Chef – Direct Entry nomination stream – no Australian citizen or permanent resident performing equivalent work at the same location – genuine need to employ a paid employee to work in the position under the nominator’s direct control – nominated position is based in regional Australia – no less favourable terms and condition of employment – applicant lawfully operating a business in Australia – decision under review set asideLEGISLATION
Migration Act 1958, ss 65, 245AR
Migration Regulations 1994, r 5.19STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW
This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 31 August 2019 to reject the applicant’s application for approval of the nomination of a position in Australia under reg 5.19 of the Migration Regulations 1994 (Cth) (the Regulations).
The applicant applied for approval on 27 February 2018. The requirements for the approval of the nomination of a position in Australia are found in reg 5.19 of the Regulations which contains two alternative streams: a Temporary Residence Transition nomination stream (reg 5.19(3)) and a Direct Entry nomination stream (reg 5.19(4)). If the application is made in accordance with reg 5.19(2) and meets the requirements of either stream, then the application must be approved. If any of the requirements are not met then the application must be refused: reg 5.19(5).
In this case, the applicant has applied for approval of a nomination, seeking to satisfy the criteria in the Direct Entry nomination stream.
The delegate refused the application on the basis the applicant’s nomination did not satisfy reg 5.19(4)(d)(i) of the Regulations because it had not been demonstrated that the employee would be employed on a full-time basis for at least two years.
Mr Mandeep Singh appeared before the Tribunal on behalf of the applicant on 19 January 2022 to give evidence and present arguments. This was a combined hearing with the related subclass 187 visa application of Mr Harwinder Singh (the nominee), case number 1928839, and the Tribunal also received oral evidence from this nominee.
The Tribunal exercised its discretion to hold the hearing using Teams video link. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by video link, having regard to the nature of this matter and the individual circumstances of the applicant (being in regional Australia). 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 videolink. The applicant raised no concerns in relation to the hearing being by video link and no issues that could impair the outcome of the hearing were apparent to the Tribunal. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.
The applicant was represented by a migration agent, Mr Troy Sanders, in relation to the review.
For the following reasons, the Tribunal has decided to set aside the decision under review and substitute a decision approving the nomination.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant meets the requirements for approval of the nomination under the Direct Entry nomination stream set out in reg 5.19(4), which is extracted in the attachment to this decision. For the nomination to be approved, all the requirements must be met.
The application is compliant: reg 5.19(4)(a)
Regulation 5.19(4)(a) requires that the application for approval must be in the approved form, must be accompanied by the prescribed fee, and, where applicable, must include the required written certification relating to conduct that contravenes s 245AR(1). The application must also identify a need for the nominator to employ an identified person as a paid employee to work in the position under their direct control.
I have had regard to the material provided and oral evidence and I am satisfied that the application was compliant with the process set out in r.5.19(4)(a) as the application:
·was made on the approved form and was accompanied by the fee prescribed in r.5.37;
·the completed form includes a written certification stating that the nominator has not engaged in conduct in relation to the nomination that contravenes s. 245AR(1); and
·the completed form identifies a need for the applicant to employ a paid employee to work in the position under the applicant’s direct control and the Tribunal is satisfied that this meets the requirement of r.5.19(4)(a)(ii).
Accordingly, the requirement in r.5.19(4)(a) is met.
Nominator is actively and lawfully operating a business in Australia: reg 5.19(4)(b)
Regulation 5.19(4)(b) requires that the applicant is actively, lawfully and directly operating a business in Australia.
The applicant submitted that K Chapman & MM Singh is a family partnership active since January 2015 and trading as Indian Flavour Authentic Indian Cuisine. The business is a licenced Indian cuisine restaurant. The applicant submitted that the position is not with an associated entity and that the nominating entity directly operates the business within which the nominee is located.
Information provided to the Tribunal in support of the applicant’s statements include:
·The application in relation to the nomination;
·ASIC Current and Historical Extract;
·A letter from the applicant’s accountant;
·Financial reports and taxation returns; and
·Business Activity Statements.
Based on the information provided the Tribunal is satisfied that the applicant is actively, lawfully and directly operating a business in Australia.
Accordingly, the requirement in reg 5.19(4)(b) is met.
Position is not labour-hire: reg 5.19(4)(c)
Regulation 5.19(4)(c) applies to nominators whose business activities include those relating to labour hire to an unrelated business. In these cases, the nominated position must be within the business activities of the nominator.
The position description and organisation chart indicate that the nominator is not involved in labour hire activity. A submission from the applicant dated 28 September 2021 confirms that the position is within the restaurant, Indian Flavour Authentic Indian Cuisine, in Coffs Harbour. Mr Mandeep Singh told the Tribunal that the position is solely working for the restaurant. The Tribunal accepts this evidence as correct and is satisfied that the nominated position of Chef is within the business activities of the nominator.
Accordingly, the requirement in reg 5.19(4)(c) is met.
Term of employment of the visa holder: reg 5.19(4)(d)
Regulation 5.19(4)(d) requires the nominee to be employed in the nominated position for at least 2 years full time, and the terms and conditions of that employment do not expressly exclude the possibility of an extension.
The employment contract between the applicant and Mr Harwinder Singh and the applicant dated 25 January 2018 includes that the employment as a Chef is full-time, permanent, and on-going “for at least two years” commencing from the date of the visa grant. A subsequent contract of employment dated 28 September 2021 does not include a statement about two years or the visa grant. A submission to the Tribunal dated 28 September 2021 states that the position is available for at least the next two years.
There is nothing in the latest contract that expressly precludes an extension beyond two years.
At the hearing Mr Manmeet Singh told the Tribunal that the nominee will be employed full time for at least 2 years from the date of visa approval.
The restaurant has shed staff and increased turnover and profitability since the delegate made their decision and the Tribunal is satisfied that based on its current financial position the applicant is now in a position to employ a Chef for at least the next two years.
The Tribunal is satisfied on the basis of this evidence that the nominee 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.
Accordingly, the requirement in reg 5.19(4)(d) is met.
No less favourable terms and conditions of employment: reg 5.19(4)(e)
Regulation 5.19(4)(e) requires that the terms and conditions of employment applicable to the nominated position will be no less favourable than those that are, or would be, provided to an Australian citizen or permanent resident performing equivalent work in the same workplace at the same location.
The employment contract between the applicant and Mr Harwinder Singh dated 28 September 2021 provides for remuneration of $60,060 per annum and contains the standard set of terms and conditions contained in the template from the Fair Work web site.
In the submission dated 28 September 2021 the applicant stated the position related to this application is the only Chef position with the applicant. The submission states that the average base salary for a Chef in Coffs Harbour, as identified on the web site Indeed.com (copy provided to the Tribunal), is $60,037. A Payscale survey (also provided to the Tribunal) shows the average kitchen chef wage rate in Australia is $41,000 to $60,000.
For these reasons the Tribunal is satisfied that the terms and condition applicable to the position will be no less favourable than those that are provided to an Australian citizen performing equivalent work in the same workplace at the same location.
Accordingly, the requirements of reg 5.19(4)(e) are met.
No adverse information known to Immigration: reg 5.19(4)(f)
Regulation 5.19(4)(f) requires that there is no adverse information known to Immigration about the nominator or person associated with the nominator; or it is reasonable to disregard any such information. For these purposes, ‘adverse information’ and ‘associated with’ have the meaning given in regs 1.13A and 1.13B.
At the hearing Mr Mandeep Singh told the Tribunal that the applicant had not been investigated by Immigration.
There is no information before the Tribunal which suggests there is any adverse information known to the Department about the nominator or a person ‘associated with’ the nominator.
Accordingly, the requirements of reg 5.19(4)(f) are met.
Satisfactory compliance with workplace relations laws: reg 5.19(4)(g)
Regulation 5.19(4)(g) requires that the applicant has a satisfactory record of compliance with the laws of the Commonwealth, and of each State or Territory in which the applicant operates a business and employs employees in the business, relating to workplace relations.
At the hearing Mr Mandeep Singh told the Tribunal that the applicant had not been in breach of workplace relations laws.
There is no information before the Tribunal indicating an unsatisfactory 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.
Accordingly, the requirements of reg 5.19(4)(g) are met.
Tasks of the position, genuine need for the position and training requirements reg 5.19(4)(h)
Regulation 5.19(4)(h) contains a number of alternative requirements. These are set out in detail in the attachment to the decision but can be briefly summarised as requiring either that:
·the tasks to be performed in the position will be performed in Australia and correspond to those of an occupation specified by the Minister (see legislative instrument IMMI 16/059), the occupation is applicable to the proposed employee in accordance with any specifications made in that instrument, there is a genuine need for the nominee to be employed as a paid employee in the position, and certain specified training requirements are met; or
·the position and nominator’s business is located in regional Australia, there is a genuine need for the nominee to be employed as a paid employee in the position under the nominator’s direct control, the position cannot be filled by a locally resident Australian citizen or permanent resident, the tasks of the position correspond to those of an occupation specified in the relevant legislative instrument, the occupation is applicable to the proposed employee in accordance with the specification of the occupation, and that a regional certifying body has advised the Minister about certain matters relating to the position.
The applicant’s business is an Indian cuisine restaurant in Coffs Harbour New South Wales. The applicant submitted that having a chef with Indian cuisine experience and qualifications was crucial to the business and that there is a genuine need to fill this position. The Tribunal is satisfied there is a genuine need for the nominator to employ the person identified under reg 5.19(4)(a)(ii) as a paid employee to work in the position under the nominator’s direct control.
The instrument IMMI 17/059 sets out the postcodes of places included in regional Australia. Coffs Harbour postcode, 2450, is included as regional Australia in this instrument.
The instrument IMMI 17/058 sets out the approved occupations for subclass 187 visas. The occupation Chef – ANZSCO code 351311 is contained in the instrument with a skill level of 2. ANZSCO describes skill level 2 as including qualifications at the diploma level and also indicates at least three years of experience may substitute for the formal qualification. The applicant provided a position description for the position of Chef in their business. Mr Harwinder Singh has a Certificate IV in Commercial Cookery, an Advanced Diploma of Leadership and Management and a Diploma of Hospitality under the Australian Qualification Framework. He also has more than three years’ experience working as a chef in Indian cuisine. The Tribunal is satisfied the position as described in the job description and by Mr Harwinder Singh correspond to the tasks of Chef – ANZSCO code 351311 and is set out in the instrument.
On 14 May 2018 Regional Development Australia, Mid North Coast Inc, who was the relevant Regional Certifying Body in accordance with the instrument IMMI 17/059 stated:
As the body approved by the Minister for Immigration and Border Protection (by Gazette Notice) for the purposes of regulation 5.19(4) I have assessed the nomination referred to in this document against the following requirements:
· there is a genuine need for the nominator to employ a paid employee to work in the position under the nominator’s direct control;
· the position cannot be filled by an Australian citizen or an Australian permanent resident who is living in the same local area where the nominated position exists; and
· the terms and conditions of employment applicable to the position will be no less favourable than the terms and conditions that are provided to, or would be provided to, an Australian citizen or Australian permanent resident for performing work in the person's workplace at the same location.
My advice is that the nomination satisfies the above requirements.
For these reasons the Tribunal is satisfied these Regional Entry requirements have been met.
Accordingly, the requirements of reg 5.19(4)(h) are met.
CONCLUDING PARAGRAPH
Based on the findings above, the Tribunal is satisfied that the applicant meets the requirements of reg 5.19 for approval of the nomination of the position in Australia.
DECISION
The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.
George Hallwood
MemberATTACHMENT - 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 an identified person, as 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).
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
Legal Concepts
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Judicial Review
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Statutory Construction
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Procedural Fairness
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