KAREN AND ELIZABETH FINES (Migration) - [2019] AATA 944

KAREN AND ELIZABETH FINES (Migration) [2019] AATA 944 (15 March 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Karen Fines and Elizabeth Fines
CASE NUMBER:  1700253
DIBP REFERENCE(S):  BCC2016/1272622
MEMBER:Katie Malyon
DATE:15 March 2019
PLACE OF DECISION:  Sydney
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Statement made on 15 March 2019 at 3:47 pm
CATCHWORDS
MIGRATION – Employer Nomination – approval of nominated position – Direct Entry Nomination stream – Cafe and Restaurant Manager – genuine need – tasks of the position – responsibility for day-to-day operations and management of business – role and involvement of business owners – son’s business on the Gold Coast – health issues – decision under review set aside
LEGISLATION
Migration Regulations 1994 (Cth), r 5.19
CASES
Bharaj Construction Pty Ltd v MIBP (No. 3) [2019] FCCA 3
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 16 December 2016 to reject the application for approval of the nomination of a position made by sisters Karen Fines and Elizabeth Fines T/A OTZ Food ABN 74 899 822 991 (the Partnership) under r.5.19 of the Migration Regulations 1994 (the Regulations).
The Partnership applied for approval on 24 March 2016. The requirements for the approval of the nomination of a position for permanent employment in Australia are found in r.5.19 of the Regulations which contains 2 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) of the Regulations and meets all the requirements of either stream, then the application must be approved. However, if any of the requirements are not met then the application must be refused: r.5.19(5) of the Regulations.
In this case, the Partnership 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 Partnership’s nomination did not satisfy r.5.19(4)(a)(ii) of the Regulations because the delegate found that both of the two business owners, Karen Fines and Elizabeth Fines, will continue to perform the tasks of the nominated position of Cafe and Restaurant Manager ANZSCO 141111 rather than the nominee, Ms Rajbir Kaur.
The delegate was not satisfied with the evidence provided that Karen Fines is stepping away from her day-to-day responsibilities of running the business of OTZ Food. Further, the delegate found that, instead of undertaking the duties of a Café and Restaurant Manager, the nominee would undertake front-of-house tasks and ‘help assist’ with day-to-day operations. A copy of the delegate’s decision was provided to the Tribunal.
As noted in the delegate’s letter, Elizabeth Fines is the Head Chef and Karen Fines indicated that she has been responsible for day-to-day operations of the cafe. In documentation lodged with the Department, Karen Fines stated that, in her role as one of the business owners, she would now like to step away from day-to-day operations to concentrate instead on other areas of the business. At the time, the cafe opened for dinner only 2 nights per week but the Partnership would like to meet demand opening up 7 nights per week.
The delegate notes that the job advertisement for the position in SEEK expressly states that the role is to help “assist the owners” with day-to-day operations, that is, it is not one of overall organisation and control. Further, the nominated role reports to both business owners. In addition, the Organisation Chart indicates that the nominated position is responsible for 3 floor staff, of which 2 positions are vacant and the third is only part-time. On this basis, the delegate observed that it appeared the front of house at OTZ Food Café comprises the nominated position plus one part-time employee and, when that part-time employee is not at work, it appeared the full-time (nominated) position would be required to perform front of house tasks in the absence of other staff. Having regard to evidence provided, the delegate concluded that the 2 active owners of the cafe will continue to perform their tasks.
The Partnership was represented in relation to the review by its registered migration agent.
Background
The Partnership began operations in November 2003 and runs its business OTZ Food in Port Douglas, North Queensland. OTZ Food is a gourmet delicatessen and café that also provides catering services. As at the date of this decision, the Australian citizen owners of the Partnership employ 3 full-time staff and 3 part-time staff. Of the Partnership’s 6 current employees, only 2 – including the nominee Mrs Kaur - are temporary residents.
On 2 November 2018 and again on 28 February 2019, the Tribunal wrote to the Partnership pursuant to s.359(2) of the Act inviting it to provide a range of documents in support of the nomination application.
Having reviewed documentation provided in response to the Tribunal’s requests for information, the Tribunal did not hold a hearing in this matter because it determined it was able to make a favourable decision on the papers. 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) of the Regulations, 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: 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.
Having regard to documentation in the Department’s file, the Tribunal is satisfied that the Partnership’s nomination application was made using the approved internet form. Consistent with r.5.37(2)(a) of the Regulations, there is no fee payable in respect of a nomination where the position is located in regional Australia. The Partnership has identified in the application form itself a need to employ a paid employee to work in the position of Café Manager in Port Douglas under its direct control. The Tribunal’s assessment of the genuineness of this identified need is discussed below at para [41] – [49].
Accordingly, the requirement in r.5.19(4)(a) of the Regulations 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.
In response to the Tribunal’s invitation to provide information and documentation to address legislative criteria, the Partnership provided assorted documentation including, relevantly, the following:
·ASIC historical details for the Partnership and business name registration;
·financial reports (profit and loss, balance sheet) for years ending 20 June 2010 to 30 June 2018;
- copies of all Business Activity Statements (BAS) lodged by the Partnership for FY 2016/17 and FY 2017/18 as well as FY 2018/19 to date using either the Australian Taxation Office (ATO) Business Portal or Tax Agent Portal and confirming the date of lodgement;
- copies of the Annual Partnership Return for the Partnership lodged with the ATO for FY 2016/17 and FY 2017/18;
- copies of acknowledgements from the ATO confirming lodgement of the Annual Partnership Return for the Business for FY 2016/17 and FY 2017/18;
- copies of PAYG Payment Summaries provided by the Partnership to all employees for FY 2016/17 and FY 2017/18;
- letter from Accountant Gerard Walsh FCPA dated 5 November 2018 confirming the financial position of the Partnership and its ability to fund the nominated position for a period of at least 2 years;
·Food Business Licence issued by Douglas Shire Council under the Food Act 2006 (Qld) to Elizabeth Fines and Karen Fines for OTZ Food valid to 30 September 2019;
·On Premises Licence issued by the Queensland Office of Liquor and Gaming Regulation to Elizabeth Fines and Karen Fines for OTZ Food;
·copies of OTZ Food’s 2016 and 2018 menu;
·photographs, website extracts and comments from social media as well as Trip Advisor about OTZ Food;
·copies of recent (February/March) payslips provided by the Partnership to its employees;
·evidence of Karen Fines’ 9 flights from August 2017 to December 2018 made between Cairns and the Gold Coast where Karen Fines is involved in the business run by Investment Holdings Australia 88 Pty Ltd T/A Milky Lane Gold Coast (IHA). Together with her son, Karen Fines is a director of IHA; and,
·written submission from Natasha Markotich, Manager of Regional Employment Services based in Cairns, in relation to recruitment activities by the Partnership in 2016 and 2018 to fill various positions including the nominated position at OTZ Food, the results of those efforts and why, in her opinion, there are no suitably qualified Australian citizen / permanent resident employees able to fill the nominated position and, more generally, why it is difficult to fill full-time position in Port Douglas in the food and hospitality industry.
On the basis of documentation provided, the Tribunal is satisfied that the Partnership is actively, lawfully and directly operating a business in Australia.
Accordingly, the requirement in r.5.19(4)(b) of the Regulations 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.
The Tribunal has considered the terms of the Letter of Engagement made between the Partnership and Ms Rajbir Kaur dated 5 November 2018 provided to the Tribunal which will come into effect when nominee Mrs Kaur is granted a Subclass 187 visa. The contract provides for Mrs Kaur’s direct employment by the Partnership.
The Tribunal is satisfied that the nominated position is a permanent full-time position within the business of the Partnership and that it does not involve the nominee being on-hired to any other entity.
Accordingly, the requirement in r.5.19(4)(c) of the Regulations 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 2 years full time, and the terms and conditions of that employment do not expressly exclude the possibility of an extension.
The Tribunal has regard to the signed Letter of Engagement dated 5 November 2018. Based on the terms of the Letter of Engagement, the Tribunal is satisfied the nominee will be employed on a permanent and ongoing basis in the position of Café Manager. The Tribunal has also had regard to the financial documentation referred to above at para [17] and the letter from FCPA Gerard Walsh dated 5 November 2018 confirming the financial position of the business and its ability to fund the nominated position for a period of at least 2 years. In the circumstances, the Tribunal finds that the nominee will be employed in the nominated position on a full-time basis for at least 2 years on terms that do not expressly exclude the possibility of an extension
Accordingly, the requirement in r.5.19(4)(d) of the Regulations 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.
The Tribunal has regard to the Letter of Engagement dated 5 November 2018 which indicates that nominee Mrs Kaur’s salary will be $46,540 p.a. plus superannuation. The Tribunal has received PAYG Payment Summaries confirming that she is currently being paid this amount. In addition, the Tribunal has had regard to the hourly rate of pay of all 6 staff employed by the Partnership. Evidence provided indicates that she is the most highly paid employee.
Information regarding the market salary rate for the nominated position of Café or Restaurant Manager has also been provided to the Tribunal. Included is a current extract from the website of Fair Work Ombudsman (FWO) in relation to an employee’s pay rate for a Level 5 Food and Beverage Supervisor as set out in the Hospitality Industry (General) Award 2010. The extracts provided confirm a salary level as at the date of this decision of $46,274.80 per annum.[1]
[1] >
Having regard to documentation provided, including the Letter of Engagement and the extract from the FWO’s website, the Tribunal is satisfied that the terms and conditions of employment will be no less favourable than those that would be provided to an Australian citizen or permanent resident performing equivalent work in the same work place at the same location.
Accordingly the requirements of r.5.19(4)(e) of the Regulations 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 r.1.13A and r.1.13B of the Regulations.
There is no evidence before the Tribunal to suggest that there is any adverse information known about the Partnership or either Elizabeth Fines and Karen Fines
Accordingly, the requirements of r.5.19(4)(f) of the Regulations 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 to suggest that the Partnership does not have a satisfactory record of compliance with workplace relations laws in Australia. Accordingly, the requirements of r.5.19(4)(g) of the Regulations are met.
Tasks of the position, located in regional Australia, genuine need for the position r.5.19(4)(h)(ii)
Regulation 5.19(4)(h) contains a number of alternative requirements. These are set out in full in the Attachment to this decision. As noted above, the delegate refused the Partnership’s nomination on the basis that the application failed to demonstrate there is a genuine need for another full-time Café/Restaurant Manager in the business as required by r.5.19(4)(ii) of the Regulations.
The nominated position in this case is located in Port Douglas (far north Queensland) where the postcode is 4877. Port Douglas is specified as ‘regional Australia’ in the written instrument in force at the time the nomination was made on 24 March 2016: IMMI 13/049.[2] Accordingly, r.5.19(4)(h)(ii) of the Regulations applies in this case. This requires that:
(a)the position and the nominator’s business is located in ‘regional Australia’;
(b)there is a genuine need to employ a paid employee under the nominator’s direct control;
(c)the position cannot be filled by an Australian citizen or permanent resident who is living in the same local area;
(d)the tasks of the position correspond to those of an occupation specified in the relevant legislative instrument;
(e)any additional applicability requirements for that occupation are met; and,
(f)a body specified by the Minister and located in the same State/Territory as the position has confirmed the matters as set out in r.5.19(4)(h)(ii)(F) of the Regulations.
Position is located in regional Australia: r.5.19(4)(h)(ii)(A) and r.5.19(4)(h)(ii)(E)
[2] The Tribunal notes that there is some uncertainty as to the applicable instrument given the most recent instrument, IMMI 18/037, repealed previous instruments without any saving provisions and yet specifically states that it only applies to nomination applications made on or after 18 March 2018. In any event, for the purposes of this application, the current instrument and all of its predecessors specify the postcode locality of 4877 is ‘regional Australia’.
The nominated position of Cafe Manager with the Partnership is located at its only premises in far north Queensland at Port Douglas Qld 4877.
Accordingly, the Tribunal is satisfied that the position and the business operated by the Partnership are located in regional Australia and the requirements in r.5.19(4)(h)(ii)(A) and r.5.19(4)(h)(ii)(E) of the Regulations are met.
Genuine need to employ a paid employee to work in the position under the nominator’s direct control: r.5.19(4)(h)(ii)(B)
The Tribunal has considered whether there is a genuine need for the Partnership to employ a Café Manager and the tasks of that position as outlined in the Letter of Engagement.
Evidence before the Tribunal indicates that the Partnership operates a gourmet delicatessen and Café together with catering services. It is open 7 days a week from 7:00 am to 5:00 pm as well as opening again for dinner from 6:00 pm – 10:00 pm on Wednesday, Thursdays and Fridays. In addition to its Café business, OTZ Food offers a catering service which caters for local businesses and events. Evidence has been provided of the cafe’s menu, its liquor license and assorted email communications regarding catering for a range of local businesses and events.
In a signed statement from Karen Fines dated 15 November 2018, the Partnership has advised the Tribunal that business owners Karen Fines and Elizabeth Fines are not responsible for the day-to-day management of OTZ Food. Since establishing the cafe more than 15 years ago, they have cut down on working hours to reduce the large amount of time spent at work so that they may engage in other businesses and personal activities including overseas travel. In particular, Karen Fines states that she now commutes between Cairns and the Gold Coast - where she is involved in her son’s business, Milky Lane Gold Coast, a franchisee of Milky Lane Franchising Pty Ltd. Ms Fines provided the Tribunal with a copy of Milky Lane Gold Coast’s Licence to Occupy signed by her and her son as guarantors. Pursuant to the Licence to Occupy, Milky Lane Gold Coast’s lease of premises on Cavill Avenue – the main street in Surfers Paradise – which runs from 10 March 2018 to 9 March 2023.
Karen Fines states that, since 2016, she has been cutting back her involvement with OTZ Food and, essentially, is no longer involved in the business in Port Douglas - apart from some bookkeeping - as her focus has shifted to her son’s business on the Gold Coast. Evidence of 9 flights by Ms Fines between the Gold Coast and Cairns (a one hour drive south of Port Douglas) in the 18 months since August 2017 has been provided to the Tribunal together with details of the purpose of these flights. In addition, Ms Fines has provided details of a flight to Sydney for discussions with the main Milky Lane franchisee to discuss business operations.

In addition, Karen Fines has also provided a letter from her Medical Practitioner based in Port Douglas, Dr Ron Bleier, dated 9 March 2019 confirming 65 year old Ms Fines has had problems with her feet (peripheral neuropathy, bilateral plantar fasciitis and fractured toes) for a long time which has meant that she cannot stand for prolonged periods. As Ms Fines confirms, this condition has caused her to switch roles and she now undertakes work from home which allows her to be seated: this involves her bookkeeping for both OTZ Food and Milky Lane Gold Coast. It meant that nominee Mrs Kaur has had to step up to the role of Cafe Manager in her place.
Further, Karen Fines states that her sister Elizabeth Fines still continues to work full-time 40 – 50 hours per week as the Chef at OTZ Food in Port Douglas. Ms Fines notes OTZ Food has a full-time permanent resident Cook Anwar Bilal to support her sister and, when required, the business uses Sylvie Fox, an Australian citizen Cook, who will start working full-time in April 2019. The Partnership submits that the growth of the business to date is such that it needs a full-time Cafe Manager who can take over responsibility for the day-to-day operations and management of business of OTZ Food from Karen Fines. Ms Fines states the seasonal fluctuations in the operations of the business mean that extra staff have to be engaged and managed at the peak tourist season.
In her signed statement, Karen Fines observes that the nominee has been with the business of OTZ Food for 3 years, having moved to Port Douglas from Melbourne. She adds that the nominee is integral to OTZ Food’s business operations now and will continue to be so in the future. Ms Fines concludes her statement noting that Mrs Kaur has the relevant skills, experience and qualifications to fill the position, a role that she has occupied since March 2016.
The Tribunal accepts that a café/catering business with a full-time Chef, a full-time Cook, 2 full-time floor staff and 2 part-time floor staff as well as another Cook who will start working full-time in April 2019, all of whom generate turnover in the order of $560,000 per annum would require a Manager to organise and control the operations of the business. Based on evidence provided, Karen Fines has wound down her involvement in the business of OTZ Food in Port Douglas and now divides her attention between her son’s business on the Gold Coast and OTZ Food. The Tribunal accepts that Elizabeth Fines continues to work as the Chef at OTZ Food supported by 6 staff as indicated in the most recent organisation chart. Based on the PAYG Payment Summaries provided for years ended 30 June 2017 and 2018, many of the employees have been with the business for a number of years.
Having regard to the evidence provided, the Tribunal is satisfied the nomination identifies a need for the Partnership to employ a paid employee to work full-time in the position of Café Manager under the nominator’s direct control. Accordingly, the requirements in r.5.19(4)(h)(ii)(B) of the Regulations are met.
Position cannot be filled by an Australian citizen/permanent resident living in same local area: r.5.19(4)(h)(ii)(C)
The Tribunal gives some weight to the RCB’s advice dated 21 March 2016 that employers in the region of Port Douglas find it difficult to employ and retain suitable and qualified staff due to the climate, lack of facilities and limited health services. The RCB advice indicates that suitable and qualified locals are already engaged in the work of this position due to the intense local demand in this profession.
Since 2016, the Partnership has been working with Regional Employment Services - a job search and recruitment services business based in Cairns - to assist with recruitment. The Manager of Regional Employment Services, Ms Natasha Markotich, provided a signed statement dated 11 March 2019 to the Tribunal outlining recruitment efforts undertaken on behalf of the Partnership over the last 3 years.
Ms Markotich confirms that she placed advertisements on Seek on behalf of the Partnership from February 2016 for 30 days and again in January 2018 after other recruitment techniques (such as word of mouth, referral, direct contacting and database research) failed to identify a local available to fill the position. Thereafter, the position of Cafe Manager was advertised on Seek. A total of 39 applicants applied for the position: only one came from the Port Douglas area, 19 were from other parts of North Queensland with the remaining 19 applicants from interstate, overseas, or applicants on Working Holiday visas. Of the applicants in North Queensland, none had the relevant qualifications or experience, or were only suitable for food and beverage positions. Some did not attach their resume. The sole applicant from Port Douglas had a phone interview and was deemed suitable but did not turn up for the job interview. Out of the 39 applicants, nominee Mrs Kaur was successful because not only was she was willing to relocate from Melbourne to Port Douglas but she also had relevant qualifications and the right attitude.
The more recent advertising for the position of Cafe Manager resulted in 24 applications. Only 2 of the 24 applicants were from the Port Douglas area: however, neither of these applicants had suitable qualifications for the advertised position. One suitable applicant, who was located in Cairns, accepted another job offer more aligned to his background having worked in a five-star facility. There were 8 other applicants from far North Queensland but they either did not have suitable qualifications or experience, and others were not prepared to make the one hour drive commuting from Cairns to Port Douglas each day to work. Ms Markotich observes that remaining applicants were from interstate or overseas, or holders of Working Holiday visas.
Evidence was provided to the Tribunal of invoices paid by OTZ Food to Employment Regional Services for recruitment activities undertaken by Ms Markotich’s business.
Based on evidence provided, the Tribunal is satisfied the nominated position cannot be filled by an Australian citizen or permanent resident living in same local area and, accordingly, the requirements of r.5.19(4)(h)(ii)(C) are met.
Tasks to be performed correspond to the task of an ANZSCO Skill Level 1, 2 or 3: r.5.19(4)(h)(ii)(D)
The ANZSCO occupation description states that Café or Restaurant Managers ANZSCO 141111 organise and control the operations of cafes, restaurants and related establishments to provide dining and catering services. ANZSCO identifies the tasks as including:
·planning menus in consultation with Chefs
·planning and organising special functions
·arranging the purchasing and pricing of goods according to budget
·maintaining records of stock levels and financial transactions
·ensuring dining facilities comply with health regulations and are clean, functional and of suitable appearance
·conferring with customers to assess their satisfaction with meals and service
·selecting, training and supervising waiting and kitchen staff
·may take reservations, greet guests and assist in taking orders
Documentation provided to the Tribunal includes a Letter of Engagement dated 5 November 2018 with attached detailed job description. By way of overview, the tasks of the nominated position require the Café manger to be responsible for the for the day-to-day management and operation of the Café as well as ensuring OTZ Food is running efficiently, customer service is of a high standard and the business is operating at a profit.
The position description requires the nominee Mrs Kaur to:
·managing the day-to-day;
·be responsible for the overall café operations and services;
·provide supervision and training to all staff, including in aspects of food handling, work place health and safety, barista services and customer service;
·prepare and manage staff rosters and oversee employees’ work;
·supervise preparation, cooking, and presentation of food;
·serve customers, perform barista duties, and prepare, cook and present food s required;
·participate in promotion and marketing of the business;
·ensure customer satisfaction;
·manage business cash flow;
·prepare reports for owners as required, maintain employment files and records;
·manage employee performance;
·manage complaints of customers;
·order stock and maintain stock level;
·be responsible for quality control;
·develop retentions and growth strategies, ensure financial targets and budgets are met, and create and implement annual business plan and targets;
·ensure compliance with local working regulations; and,
·carry out any other reasonable request within the range of competence as required by management.
The Tribunal also received evidence of Mrs Kaur’s work to date including: statements from Karen Fines; signed letter from Toni Day, the Customer Service Manager with Bendigo Bank in Port Douglas attesting to Mrs Kaur’s handling of the Partnership’s daily banking; emails to and from a number of customers, especially those seeking catering services; and, reference letters from customers of the Partnership.
Based on evidence provided and having regard to the tasks of a Cafe or Restaurant Manager as set out in ANZSCO, the Tribunal is satisfied that the tasks of the nominated position with the Partnership correspond to the occupation of Café or Restaurant Manager. This is a Skill Level 2 occupation as specified in the ANZSCO.
Accordingly, the requirements of r.5.19(4)(h)(ii)(D) of the Regulations are met.
The occupation is applicable to the person identified in r.5.19(4)(a)(ii): r.5.19(4)(h)(ii)(DA)
Nominee Mrs Kaur holds qualifications in business management and marketing. She has a range of qualifications including an AQF Advanced Diploma of Marketing and an AQF Advanced Diploma of Business. In addition, she has worked with the Partnership in the nominated position since March 2016. Karen Fines states that, over this time, Mrs Kaur has demonstrated that she has the necessary skills, qualifications and employment experience to fill the nominated position. Further, Mrs Kaur’s high level of professionalism has positively engaged new customers through her successfully promoting and organising special events. As well, she has managed the business of OTZ Food to ensure exceptional service delivery.
Based on evidence provided and having regard to nominee Mrs Kaur’s qualifications and experience in the role of Cafe Manager, the Tribunal is satisfied that the occupation is application to her.
Accordingly, the requirements of r.5.19(4)(h)(ii)(DA) of the Regulations are met.
Regional certifying body advice about matters specified in r.5.19(4)(e), r.5.19(4)(ii)(B) and r.5.19(4)(ii)(C): r.5.19(4)(h)(ii)(F)
On the basis of the Form 1404 Regional Sponsored Migration Scheme – Regional Certifying Body Advice dated 21 March 2016 provided, the Tribunal is satisfied that a RCB located in Queensland has advised the Minister about the matters set out in in r.5.19(4)(e) and r.5.19(4)(h)(ii)(B) & (C) of the Regulations. The RCB’s Form 1404 has been issued by the Chamber of Commerce and Industry Queensland based in Cairns. It states that:
·     there is a need for a paid employee in the nominated position within the business activities of the nominating employers;
·     the nominated position cannot be filled by an Australian citizen or permanent resident who is living in the same local area as the nominated position; and,
·     the terms and conditions of employment that are applicable to the nominated position will be no less favourable than the terms and conditions that are, or would be, provided to an Australian citizen or permanent resident for performing equivalent work in the same workplace at the same location.
Consistent with the decision of the Federal Circuit Court of Australia in Bharaj Construction Pty Ltd v MIBP (No. 3) [2019] FCCA 31, certification by a RCB is not sufficient or determinative in relation to whether the nominator meets r.5.19(4)(e), r.5.19(4)(ii)(B) and r.5.19(4)(ii)(C) of the Regulations. Accordingly, the Tribunal notes that, whilst having regard to the advice provided by the RCB, it has reached its own conclusions about the matters the subject of the RCB’s advice for the reasons set out above.
Having considered the Form 1404 provided, the Tribunal is satisfied that the requirements of r.5.19(4)(h)(ii)(F) of the Regulations are met by provision of the requisite Form 1404.
Summary
It follows that the Tribunal finds that the Partnership meets all of the requirements of r.5.19(4)(h)(ii) of the Regulations.
Conclusion
Based on the findings above, the Tribunal is satisfied that the Partnership meets the cumulative requirements of r.5.19(4) of the Regulations 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.
Katie Malyon

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)     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;
(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 at a skill level of ANZSCO skill level 1, 2 or 3;
(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).

oOOo