Kajoku Pty Ltd (Migration)

Kajoku Pty Ltd (Migration) [2023] AATA 2088 (4 July 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Kajoku Pty Ltd
REPRESENTATIVE:  Mr Jeffrey Sohn
CASE NUMBER:  1925780
HOME AFFAIRS REFERENCE(S):         BCC2018/762786
MEMBER:Warren Stooke AM
DATE:4 July 2023
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Statement made on 4 July 2023 at 11:42am

CATCHWORDS
MIGRATION – application for approval of nomination of position – direct entry nomination stream – cook – financial capacity to employ nominee for two years – COVID restrictions and new fit-out – evidence from director and nominee – financial information. declaration by accountant and submission by representative – director’s other duties in business – attempts to recruit locally for specialised cuisine restaurant – decision under review set aside
LEGISLATION
Migration Regulations 1994 (Cth), r 5.19(4)(d)(i)

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 Home Affairs on 26 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 15 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 the nominator has not provided any evidence that would demonstrate the business can continue to operate without the added financial support of the Director. The nominator has not stated if they have access to any further funds to support the business. The documentation provided is not adequate to demonstrate that the business has the financial capacity to carry the cost of employing the nominee as a full-time employee over a full financial year as well as pay all the other financial commitments of the business. Additionally, the weight of evidence does not demonstrate that the nominating business has the financial capacity to provide full-time paid employment to the nominee for a minimum period of two years as required by the regulations.
The applicant appeared before the Tribunal on 19 April 2023 to give evidence and present arguments. The Tribunal also received oral evidence from Hyun Lee, the nominee for the position of Cook – ANZSCO Code: 351411.The Tribunal hearing was conducted with the assistance of an interpreter in the Korean and English languages.
The applicant was represented in relation to the review. The representative attended the Tribunal hearing.
The applicant advised the Tribunal that the applicant had received a copy of the delegate’s decision, which was provided to the Tribunal with the application for review.
The applicant stated that he understood the application was refused because the delegate considered there was concern about ongoing employment of the nominee after approval.
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 applicant provided evidence of registration with ASIC dated 27 November 2013 and assigned ABN 85 166 982 538.
The applicant provided evidence of an organisation chart that demonstrated the business has the positions of Director; General Manager; Restaurant Manager; Head Chef; Chef; Cook; Wait staff and Kitchen hand.
The applicant stated that the trading name was registered on 22 August 2014.
The applicant stated that he was a director of the business and had a background in the film industry.
The applicant provided evidence of an approved RSMS dated 6 April 2018 by the Chamber of Commerce and Industry Queensland for the position of Cook - ANZSCO Code: 351411 for Hyun Lee on a salary of $54,000.
The applicant provided evidence of a contract of employment dated 29 January 2018 with a start date of two weeks after approval of an RSMS 187 visa with a salary of $54,000 plus superannuation, which was signed on 5 February 2018.
The applicant provided evidence that the business advertised the position on 21 January 2016 on Gumtree for the position of Chef/Cook. The business also advertised the position on the notice board and by word of mouth.
The applicant provided evidence that the business is a full-service restaurant providing Korean and Japanese cuisine with table service that facilitates 80 people in the main dining room plus 40 in a adjoining room.
The applicant stated that the business currently has 12 employees that included two full-time employees; ten casuals working 4 to 35 hours per week and the complement included 5 Australian citizens and 7 Visa holders.
The business employees are covered by the Restaurant Industry Award 2010 and employees were provided with a Fair Work Information statement at the time of employment.
The applicant stated that the nominated position of Cook, includes the performance of the following duties:
a.Working with Head Chef and other kitchen staff in portioning, preparing and cooking food.
b.Using stove, oven, deep-fryer or plating during service as required.
c.Storing food and ensuring quality, temperature and hygiene requirements are met.
d.Ensuring cleanliness of assigned station during service, and of kitchen and storage areas at other times.
e.May assist Head Chef in planning menus or special dishes.
f.May train, or assist in training, other junior kitchen staff.
The applicant confirmed that the nominee performs the duties that are provided in the job descriptor for Cook – ANZSCO Code: 351411, as follows:
UNIT GROUP 3514 COOKS
COOKS prepare, season and cook food in dining and catering establishments.
Chefs, Fast Food Cooks and Kitchenhands are excluded from this unit group. Chefs are included in Unit Group 3513 Chefs. Fast Food Cooks and Kitchenhands are included in Minor Group 851 Food Preparation Assistants.
Indicative Skill Level:
Most occupations in this unit group have a level of skill commensurate with the qualifications and experience outlined below.
In Australia:
AQF Certificate III including at least two years of on-the-job training, or AQF Certificate IV (ANZSCO Skill Level 3)

In New Zealand:
NZ Register Level 4 qualification (ANZSCO Skill Level 3)

At least three years of relevant experience may substitute for the formal qualifications listed above. In some instances relevant experience and/or on-the-job training may be required in addition to the formal qualification.
Tasks Include:
oexamining foodstuffs to ensure quality
oregulating temperatures of ovens, grills and other cooking equipment
opreparing and cooking food
oseasoning food during cooking
oportioning food, placing it on plates, and adding gravies, sauces and garnishes
ostoring food in temperature controlled facilities
opreparing food to meet special dietary requirements
omay plan menus and estimate food requirements (this activity is undertaken once per month)
omay train other kitchen staff and apprentices

Occupation:
351411 Cook

351411 COOK
Prepares, seasons and cooks food in a dining or catering establishment.
Skill Level: 3
The applicant stated that the nominee is working full-time for a minimum of 38 hours per week and works overtime.
The applicant stated that the nominee commenced employment on 29 January 2018 and has a current salary from 1 October 2022 of $61,000. It was stated that the nominee has worked continuously since being employed and that the business closed temporarily in 2020 due to the Covid pandemic and transitioned to delivery and take-away.
The applicant stated that superannuation is paid into the Australian Retirement Trust.
The applicant stated that the position required a Certificate III and Certificate IV in Commercial Cookery
The applicant provided the following financial information pertaining to the operation of the business:

2017

2018

2019

2020

2021

Total Income

$532,941

$412,690

$631,712

$456,821

$535,793

Total Expenses

$599,135

$618,081

$770,227

$530,591

$705,262

Profit/Loss

($66,194)

($205,391)

($132,515)

($74,441)

($167,748)

Wages

$298,969

$319,327

$314,609

$268,280

$319,072

Superannuation

$26,050

$29,244

$27,312

$24,653

$29,249

The applicant stated that the business has $190,000 in the bank and that recently he had an injection of cash from his parents to support a new fit-out and that the business is managing central waste previously incurred by over preparation and is reducing stress on the business by set menus and new staff.
The applicant stated that the business was impacted by Covid and is now in good operation and has good projections.
The applicant stated that he has stock valued at $200,000 and a gin collection, which is an asset.
The business has additional tenancies that include a cocktail bar, which is paying rent of $45,000 per annum.
The applicant stated that the fit-out was delayed because of the shortage of supplies and tradesmen and the overall investment in the fit-out was $75,000.
The accountant for the applicant, Sanders Partners, provided a declaration that the business is capable of meeting its financial obligations and employing the nominee for a period of 2 years, as follows:
“We confirm the following details regarding Kajoku Pty Ltd:
·     We act as the Tax Agent and Accountant for Kajoku Pty Ltd and have done so since 2015.
·     We confirm that from the perspectives of a professional Accountant, the business is fulfilling it's obligations under taxation and reporting regime.
·     We confirm that despite the Covid -19 pandemic and its effects on Regional Queensland, the business has been successful and recently, it is conspicuous that their business is prudent and viable to support the nomination of their overseas cook.
·     This information is true to the best of our knowledge and has been confirmed from independent enquiries with our customer and our own records.
Please do not hesitate to contact us if you require any further information.”
Witness Evidence – Mr Hyun Lee (nominee for the position of Cook)
The witness provided evidence that he has a Bridging Visa A that was granted on 15 February 2018, which has permission to work and study but no travel.
The witness provided evidence of a PTE English language test undertaken on 4 December 2017 with a score of 63.
The witness provided evidence of qualifications from the Victorian College of Vocational Excellence of a Certificate IV in Commercial Cookery issued 18 May 2017 in Hobart, TAS.
The witness stated that he follows what the chef requires and prepares for the chef; cooks chicken and performs most pre-cuttings; undertakes platting; prepares salads and vegetables; sauces and deserts.
The witness stated that he is on a salary of $61,000 and works 38 hours per week.
The witness provided evidence of a Civil Partnership Certificate dated 1 August 2017.
Representative
The Representative provided detailed submissions to the Tribunal in support of the application that included the following extracted content:
“The nominator’s business, ever since its opening, has grown into a popular location for countless customers. Kajoku has become a well-known dining attraction in Toowoomba. Korean-Japanese style cuisine is not an abundantly available or common restaurant genre in Toowoomba, and with that, it comes as an unfortunate reality that there are not many individuals who possess the set of knowledge and skills required to properly work at a restaurant such as Kajoku. Despite the nominator’s genuine attempts to recruit a suitable cook at the time in 2018, such attempts failed to bear any fruit in the form of local employment. As such, the nominator had no choice but to turn to the RSMS visa program to benefit from the foreign skilled workforce.
JEFFERSON BRADY(“the director”), having direct control of all employees within the business, is an authoritative figure within the organisation and is fully and completely invested in the front and back of house operations. As such, the director is unable to engage every dish the restaurant serves, and he had to hire and delegate cooking to capable kitchen staff including chefs and cooks. please refer to Annexure C which illustrates the director’s statement as to the genuine need for a cook.
Succeeding as a business owner, especially in an incredibly competitive industry such as the restaurant industry, comes with immense pressure and stakes. The nominator’s need for a cook is real and genuine, and this need has been supported and materialised through the business’s development since its opening. Upon entrusting the nominee as the most capable and suitable candidate to undertake the position of a cook at Kajoku, the prosperity of the business has increased and improved. Even throughout the peak of the COVID-19 Pandemic, which proved to be devastating for countless businesses across the country, the nominator’s business remained resilient.
Also, we kindly draw the member’s attention to the Total Trading Income in the financial statements Annexure D. The Total trading income is steadily growing as in FY2020 it was $681,067 and in FY2021 it was $836,636. The Total Trading Income in FY2022 was $848,788. Based on the Business Activity Statements of the calendar year 2022, Annexure E, we submit that the projected Total trading income would be around between $900,000 and $1,000,000, which is another steady increase in sales.
Therefore, we submit that this business is going to be financially viable and the nominee will be employed on a full-time basis in the position for at least 2 years.
It is submitted that the nominee will be employed on a full-time basis in the position for at least 2 years and the terms and conditions of the employment do not include an express exclusion of extending the period of employment.”
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 a paid employee to work in the position under their direct control.
The applicant lodged the application to nominate the nominee for the position of Cook – ANZSCO Code: 351411 with the business on 15 February 2018 on Form 1395 (Internet) and payment of the nomination application fee was acknowledged by the Department. The completed form included a response to the written certification stating whether the nominator has engaged in conduct in relation to the nomination that contravenes s. 245AR(1). In this regard, the Tribunal is satisfied that the applicant has provided confirmation of not engaging in conduct that would contravene s. 245AR(1).
The applicant has provided an organisation chart and statement to the Tribunal that identifies a claim for a need for the nominee to fill the advised position of Cook under the nominator’s direct control.
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 provided evidence that the nominating business, Kajuko Pty Ltd, was first registered with the ASIC on 27 November 2013, and was assigned a registered Australian business number of ABN: 85 166 982 538.
Further, the Tribunal is satisfied that the business, based upon the information presently before the Tribunal, is actively operating lawfully and is directly operated by a Director of the business.
In addition, the business has demonstrated an economic capacity to support the employment of the nominee for a period of more than 5 years and based on the financial information, including the expansion of the business with further investment, has projected income to be profitable and capable of supporting the employment of the nominee. This was supported by the business’s accountant, Sander Partners. The business provided evidence that the nominee is currently paid $61,000, plus superannuation.
Accordingly, the requirement in r.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 Tribunal finds that r.5.19(4)(c) is not relevant to the current nomination.
Accordingly, the requirement in r.5.19(4)(c) does not apply.
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 having already been employed on a full-time basis.
The applicant provided the Tribunal with evidence that the nominee has a contract of employment that commenced on 29 January 2018 and that the nominee has a contract of not less than 2 years from the grant of a 187 visa. In this regard, the evidence identified that the nominee, currently has a salary of $61,000 and the position was designated as Cook on the organisation chart, reporting to the Director/owner of the business.
Accordingly, the requirement in r.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 Tribunal is satisfied that the terms and conditions of employment are no less favourable than those that are/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: 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 rr.1.13A and 1.13B.
The Tribunal is satisfied that there is no adverse information known to Immigration or the Tribunal about the nominator or a person associated with the nominator.
Accordingly the requirements of r.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.
The evidence before the Tribunal identifies that the applicant has a current contract of employment with the nominee that is operative from 29 January 2018 and is in compliance with the Fair Work Act 2009 requirements in terms of conditions of employment and has a salary of $61,000 that exceeds the minimum award entitlement.
Further, evidence was provided that the business contributes superannuation payments to an eligible fund in accordance with the legal requirements.
Accordingly, the requirements of r.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 (that applied at the time of application), 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.
The Tribunal is satisfied on the basis of the evidence that the position and business is located in ‘regional Australia’ and that the applicant applied for Regional Certification, which was granted on 6 April 2018 by the relevant Regional Certifying Body: Chamber of Commerce and Industry Queensland and confirmed the position could not be filled locally for the occupation of Cook – ANZSCO Code: 351411. The Regional Body approved the nominee Hyun Lee on a salary of $54,000 (at the time).
Further, the Tribunal is satisfied, based upon the evidence that there is a genuine need for the position of Cook to work under the direct control of the business Director/owner and that the position was advertised on Gumtree and could not be filled by an Australian citizen or permanent resident who is living in the same local area with the equivalent skills and competencies. The Tribunal is also satisfied that the applicant engaged in market testing of the position prior to appointment of the nominee.
Additionally, the Tribunal is satisfied that the business has the financial capacity to employ the nominee in the full-time position of Cook. In the Tribunal’s view, the business warrants the engagement of a Cook and the position is genuine. As such, the proposed Cook duties are consistent with the ANZSCO descriptor for a Cook, under the direct control of the Director/owner.
The Tribunal is satisfied, based upon the evidence of the applicant and the evidence of the nominee, that the position includes all of the tasks outlined in the position descriptor for a Cook – ANZSCO Code: 351411.
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 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.
Warren Stooke AM
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 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).

[2023] AATA 2088

4 July 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Natural Justice

Remedies

2017	2018	2019	2020	2021
Total Income	$532,941	$412,690	$631,712	$456,821	$535,793
Total Expenses	$599,135	$618,081	$770,227	$530,591	$705,262
Profit/Loss	($66,194)	($205,391)	($132,515)	($74,441)	($167,748)
Wages	$298,969	$319,327	$314,609	$268,280	$319,072
Superannuation	$26,050	$29,244	$27,312	$24,653	$29,249