Karma Darwin Pty Ltd (Migration)

[2022] AATA 4935

Karma Darwin Pty Ltd (Migration) [2022] AATA 4935 (16 December 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Karma Darwin Pty Ltd

REPRESENTATIVE:  Mr Constantine Paxinos (MARN: 1460971)

CASE NUMBER:  1917724

HOME AFFAIRS REFERENCE(S):          BCC2018/374244

MEMBER:George Hallwood

DATE:16 December 2022

PLACE OF DECISION:  Adelaide

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

Statement made on 16 December 2022 at 9:49am

CATCHWORDS
MIGRATION–nomination – Direct Entry nomination stream – Café or Restaurant Manager – application is compliant –– genuine need to employ a paid employee to work in the position under the nominator’s direct control – no adverse information – position associated with the nominated occupation is genuine –no less favourable terms and condition of employment –applicant lawfully operating a business in Australia–– decision under review set aside

LEGISLATION

Migration Act 1958, ss 65, 245AR
Migration Regulations 1994, rr 1.13, 5.19

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 12 June 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).

2. The applicant applied for approval on 23 January 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).

3. In this case, the applicant has applied for approval of a nomination, seeking to satisfy the criteria in the Direct Entry nomination stream.

4. The delegate refused the application on the basis the applicant’s nomination did not satisfy reg 5.19(4) of the Regulations because they were not satisfied that the duties performed in the nominated position are not those expected of a Café or Restaurant Manager, ANZSCO Code 141111.

5. Mr Jason Hanna appeared before the Tribunal on behalf of Karma Darwin Pty Ltd on 18 November 2022 to give evidence and present arguments. As this was a combined hearing with the related nominee, Mr Derek Duffy case number 1922072 also appeared before the Tribunal to provide oral evidence.   

6. The applicant was represented in relation to the review.

7. 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

8. 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)

9. 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.

10. I have had regard to the material provided, in particular the nomination application form of 23 January 2018, and oral evidence and I am satisfied that the application was compliant with the process set out in r.5.19(3)(a) as the application:

    ·was made on the approved form and was accompanied by the fee prescribed in reg 5.37;

    ·includes a written certification stating whether the nominator has engaged in conduct in relation to the nomination that contravenes s 245AR(1); and

    ·identifies a need for the nominator to employ an identified person, Mr Duffy, as a paid employee to work in the position of Food and Beverage Manager under the nominator’s direct control.

11. Accordingly, the requirement in reg 5.19(4)(a) is met.

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

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

13. The applicant has provided current ASIC documents; financial statements; tax returns; BAS statements; and organisation chart; that demonstrate to the satisfaction of the Tribunal that the nominator is actively and lawfully operating a business in Australia, and that they directly operate that business.

14. Accordingly, the requirement in reg 5.19(4)(b) is met.

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

15. 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. 

16. The applicant’s submissions together with organisation chart, job description, employment contract, financial statements and business communications with suppliers and customers demonstrate to the satisfaction of the Tribunal that the nominator is not involved in labour hire activities and that the nominated position is within the nominator’s business and is not for hire to unrelated businesses.

17. Accordingly, the requirement in reg 5.19(4)(c) is met.

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

18. 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. 

19. A signed but undated contract of employment, stamped as a true and accurate copy on 30 November 2017, states that the position is full time, that it will “take effect as at the grant of the Regional Sponsored Migration Scheme visa or the day after the approval notice is issued by Workplace Authority (whichever is the later). This agreement is for a minimum period of two years on going from the said date”. There is no expressed exclusion of an extension of the employment agreement beyond two years.

20. After the hearing the applicant provided an updated “Offer of Full Time Employment” dated 18 November 2022 which inter alia stated ‘This employment contract is full time and ongoing for at least two years’. There is nothing in the contract that expressly excludes the possibility of an extension.

21. Accordingly, the requirement in reg 5.19(4)(d) is met.

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

22. 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.

23. Mr Hanna told the Tribunal that there is no Australian citizen or permanent resident performing equivalent work in the same workplace at the same location.

24. The applicant told the Tribunal at the hearing that they were going to update their employment contracts as they related to old legislation. The Tribunal allowed time for this to occur and subsequently received a submission including the updated employment contract.

25. The Tribunal is satisfied that the contract of employment dated 18 November 2022 contains a standard set of terms and conditions of employment that are 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.

26. Accordingly, the requirements of reg 5.19(4)(e) are met.

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

27. 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.

28. On 29 July 2016 a notice of decision of a formal warning was sent to the applicant. The formal warning was issued in relation to a failure to satisfy a number of sponsorship obligations. At the time the warning was issued the delegate of the Minister was satisfied that circumstances to bar or cancel the sponsor existed but having considered all of the relevant decision making criteria, the Department decided not to apply a bar or cancellation in that instance.

29. The Tribunal is satisfied that the decision not to apply a bar or cancellation was correct in July 2016.

30. The Tribunal is not aware of any further instances of adverse information known to Immigration about the nominator or person associated with the nominator.

31. Having considered the information before the Tribunal, I am satisfied that it is reasonable to disregard the adverse information for which the Department decided not to apply a bar or cancellation in July 2016.

32. Accordingly, the requirements of reg 5.19(4)(f) are met.

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

33. 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.

34. At the hearing, Mr Hanna told the Tribunal that the applicant had not breached Commonwealth or State or Territory laws relating to workplace relations in each of the locations in which the applicant operates a business and employs employees in the business.

35. There is nothing before the Tribunal that constitutes a breach of Commonwealth or State or Territory laws by the applicant relating to workplace relations in each of the locations in which the applicant operates a business and employs employees in the business.

36. 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)

37. 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 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.

38. The instrument IMMI 17/059 sets out the postcodes that are specified by the Minister as regional Australia. All postcodes in Northern Territory are certified as regional Australia and the position and business are located in Northern Territory. For these reasons the Tribunal is satisfied that the position and business are located in regional Australia.

39. The applicant has provided an organisation chart, evidence of the business turnover, statement from the director demonstrating that they are removed from the day-to-day management of the business, and duty statement all demonstrating that 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. A letter of support was also provided by Mr Kardirgamar, Manager – Migration NT, Department of Trade, Business and Immigration in the Northern Territory Government; stating that the related occupation was listed on the NT Skilled Occupation List as a high priority occupation. Evidence was also provided that the NT Government was sponsoring overseas recruitment campaigns to recruit for such positions. The applicant’s oral submission was that the position of Food and Beverage Manager was crucial to the business, a position which is responsible for the day to day running of the business dealing with staff and customers.

40. The applicant has provided evidence of their recruitment efforts and the difficulty in finding somebody that was both qualified and willing to work full time in the position.  The evidence from the NT Government and the Regional Certifying Body also support the difficulty in filling the position with an Australian. For these reasons the Tribunal is satisfied that the position cannot be filled by an Australian citizen or permanent resident who is living in the local area.

41. The instrument IMMI 17/058 contains the occupations certified by the Minister as suitable for subclass 187 visas. The applicant has nominated a position of Food and Beverage Manager with the related occupation of Café and Restaurant Manager ANZSCO code 141111. This occupation is listed in the instrument. The job description of the position provided by the applicant corresponds with the description contained in ANZSCO for the related occupation and the Tribunal is satisfied that the job description corresponds with the work performed in the job. For these reasons the Tribunal is satisfied that the tasks to be performed in the position correspond to the tasks of an occupation specified by instrument.

42. On 24 January 2018 the regional Certifying Body, Department of Trade, Business and Innovation NT, advised the Minister about the matters in reg 5.19(4)(e) and reg 5.19(4)(h)(ii)(B) & (C). This is the certifying body certified by the Minister in the relevant instrument, IMMI 17/059. For this reason, the Tribunal is satisfied that the certifying body requirements are met.

43. Accordingly, the requirements of reg 5.19(4)(h) are met.

    CONCLUDING PARAGRAPH

44. 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

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

    George Hallwood
    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).