Kingu Sushi Pty Ltd (Migration)

Kingu Sushi Pty Ltd (Migration) [2023] AATA 551 (21 February 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Kingu Sushi Pty Ltd
REPRESENTATIVE:  Mr Xiao Wang (MARN: 1466166)
CASE NUMBER:  1920840
HOME AFFAIRS REFERENCE(S):          BCC2018/835468
MEMBER:Karen McNamara
DATE:21 February 2023
PLACE OF DECISION:  Sydney
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Statement made on 21 February 2023 at 12:49pm
CATCHWORDS
MIGRATION–nomination – Direct Entry stream– Cook –application is compliant –– 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 – business has the financial capacity to carry the cost of employing the nominee as a full-time employee over a full financial year – decision under review set aside
LEGISLATION
Migration Act 1958, ss 65, 140GB, 245AR
Migration Regulations 1994, rr 1.13, 5.19
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 13 July 2019 to reject the application by Kingu Sushi Pty Ltd (the applicant) 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 21 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 regulation 5.19(4)(h)(ii)(B) because the application did not identify a genuine need for the nominator to employ the nominee, in the position under the direct control of the nominator.
The applicant lodged an application for review with the Tribunal on 30 July 2019. The review application was accompanied by a copy of the delegate’s decision. The Tribunal also has before it the Department file containing all information before the delegate at the time of their decision.
On 10 January 2023, the applicant represented by Mr Liang Wang (referred to below as the applicant) appeared before the Tribunal via telephone, to give evidence and present arguments. The Tribunal also received oral evidence from Mr Zijian Huang (the nominee) in the related matter for the subclass 187 visa (AAT Case file 1923921). The related matters were heard concurrently in a combined hearing. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
The Tribunal exercised its discretion to hold the hearing by telephone. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant and nominee. 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 telephone. The Tribunal is satisfied that the applicant and nominee were given a fair opportunity to give evidence and present arguments.
The applicant was represented in relation to the review. The representative attended the Tribunal hearing.
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.
Background
The applicant operates a Japanese Cuisine restaurant trading as Shinobu Sushi Bar located at Coffs Harbour, New South Wales. The business was established in September 2016. On 21 February 2018, the applicant lodged an application for an employer nomination approval under the Regional Sponsored Migration Direct Entry stream for the position of Cook/Sushi Chef under the occupation of Cook (ANZSCO 351411). The nominated base rate of pay and guaranteed earnings is $56,000 per annum. The application identified Mr Zijian Huang.
The Tribunal notes that numerous evidence and submissions were lodged by or on behalf of the applicant. While the Tribunal has considered all of same, only that which was considered material to its decision has been expressly referred to herein.
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.
Based on the material in the Department’s file, the Tribunal is satisfied that the application was made on the approved form. As the position is located in regional Australia, no fee is payable (r5.37(2)(a)). The application also included written certification relating to conduct that contravenes s.245AR(1) of the Migration Act 1958, declared and signed by the applicant. Accordingly, the requirements of r.5.19(4)(a)(i) are met.
In considering whether the application for approval 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, the Tribunal has had regard to the evidence before it, including the oral evidence received at the hearing by the applicant and written submission (undated) provided to the Tribunal on 28 November 2022 attesting (inter alia) to the need for the nominator to employ the nominee in the position of Cook/Sushi Chef under the occupation of Cook.
The Tribunal is satisfied on the information before it, that the application for approval 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. Accordingly, the requirement in r. 5.19(4)(a)(ii) is met.
As the criteria in both r.5.19(4)(a)(i) and (ii) are satisfied, accordingly the requirements in r.5.19(4)(a) are 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 Tribunal accepts on the evidence before it that the applicant owns and operates a Sushi Bar providing Japanese cuisine, located at Coffs Harbour, NSW. Based on the material provided to the Tribunal, including financial statements, BAS returns, ASIC details and business bank statements, the Tribunal is satisfied the applicant is actively and lawfully operating a sushi bar restaurant in Australia and directly operates that business.
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.
There is no evidence before the Tribunal to suggest that the applicant’s business is involved in labour hire.
Accordingly, the requirement in r.5.19(4)(c) does not apply
Term of employment of the visa holder: 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.
In considering whether the nominee will be employed in the nominated position for at least two years, the Tribunal has considered the financial capacity of the business to pay the nominated full-time salary of $56,000 per annum, to the nominee for at least two years. In making its assessment, the Tribunal has afforded weight to information before it, including the applicant’s financial statements, BAS returns and bank statements, which show the applicant has met payroll and operating costs.
The Tribunal notes that the applicant’s most recent (2021/22) financial statements show that the business has reported revenue exceeding $AUD1 million with proportionally aligned profit, recording positive net equity and retained earnings. The submitted BAS returns (most recent 2022 FY), and financial statements indicate that the applicant’s revenue can sustain the ongoing employment of the nominee.
The Tribunal has also considered the totality of the applicant’s financial evidence before it, including bank account statements, company tax returns, financial statements and BAS returns, which show the applicant has continued to meet payroll and operating costs since 2016. Additionally, the Tribunal has taken into consideration the nominee has been employed by the applicant since February 2018 in the nominated position. The nominee’s bank account statements and PAYG’s/Income statements, support the nominee has received remuneration of the nominated salary of $56,000 per annum. The nominee’s superannuation statement provided to the Tribunal, supports that the applicant has met their superannuation obligations and paid the nominee superannuation.
Based on the evidence before it, the Tribunal is satisfied the applicant has the financial capacity to pay the nominee a full-time salary and maintain the employment of the nominee on a full-time basis for two years.
Accordingly, the requirement in r.5.19(4)(d)(i) is met.
The Tribunal has had regard to the nominee’s contract of employment signed and dated by the parties on 2 February 2018. The contract sets out the terms and conditions of employment and indicate that the period of employment is for 2 years effective from ‘the date of any approval from the Department of Immigration and Border Protection’. The contract stipulates the salary is $56,000 per annum exclusive of superannuation, with hours of work 38 hours per week. There is no term excluding an extension of the contract.
The Tribunal is satisfied based on the employment agreement dated 2 February 2018 and other material before it, that the nominee will be employed on a full-time basis for at least two years on terms that do not exclude the possibility of extending the period of employment.
Accordingly, the requirement in r.5.19(4) (d) (ii) is met.
As the criteria in both r.5.19(4)(d)(i) and (ii) are satisfied, accordingly the requirements in r.5.19(4)(d) are 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 agreement dated 2 February 2018, sets out the terms and conditions of employment and indicate that the nominee’s salary will be $56,000 per annum plus superannuation and hours of work 38 hours per week. The terms and conditions set out in the nominee’s contract appear consistent with the National Employment Standards.
The Tribunal has received copies of the nominee’s Income statements and bank statements confirming that the nominee has received regular salary payments from the applicant. Superannuation information provided to the Tribunal, support that the nominee is being paid superannuation. The Tribunal is therefore satisfied based on the evidence before it, that the nominee will be paid in accordance with the terms of employment.
The Tribunal is satisfied on the totality of the evidence before it that the terms and conditions applicable to the position will be no less favourable than those that would be provided to an Australian citizen or permanent resident performing equivalent work in the same workplace at the same location.
Accordingly, the requirements of r.5.19(4)(e) are met
No adverse information known to Immigration: 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.
There is no evidence before the Tribunal to indicate that there is adverse information as per the meaning given in rr.1.13A and 1.13B, known to the Department about the applicant or an associated person.
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.
There is no evidence before the Tribunal that indicates the applicant does not have a satisfactory record of compliance with the relevant Commonwealth and State workplace relations laws.
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 under the relevant legislative instrument, 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.
In this case, the applicant claims to meet the requirements in r.5.19(4)(h)(ii). The Tribunal has considered each of these requirements as follows;
The evidence before the Tribunal indicates that the applicant’s business, which is operated by the applicant and the position, are located in Coffs Harbour, NSW postcode 2450, which is a postcode specified in the relevant instrument as being in regional Australia, accordingly r.5.19(4)(h)(ii)(A) and (E) are met.
The Tribunal next considered whether there is a genuine need for the applicant to employ the nominee as a paid employee to work in the position of Cook/Sushi Chef under the occupation of Cook (ANZSCO 351411).
The delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19(4)(h)(ii)(B) of the Regulations because the delegate was not satisfied that there is a genuine need for the applicant to employ the nominee to work in the position under the direct control of the nominator.
The Tribunal has formed a different view and accepts the evidence presented by the applicant that there is a genuine need to employ the nominee in the position of Cook/Sushi Chef in the applicant’s business. The Tribunal notes that a more comprehensive suite of evidence was presented to it, than was given to the delegate in the original application and that the Tribunal has had the opportunity to discuss with the applicant at hearing, the genuine need to employ the nominee.
The Tribunal notes that the delegate, in undertaking their assessment of the evidence before them, noted ‘…The nominator has not clearly outlined the complete business structure and who performs what duties within their role in the organisation and how the position of the nominated occupation fits within the operation of the business. There is no vacancy for the nominated position listed on the organisation chart to demonstrate the need for a paid employee.
It is also unclear if this position is a new position, as the nominator has also not identified whether this is a newly created position or if it has become available through natural attrition.
I have no information before me that indicates that the nominee has commenced working for the nominator.
I have no information before me that any other person has been employed as a Cook in the intervening sixteen (16) months since this position was nominated.
The information before me indicates the business continues to operate without this position being filled either permanently or on a temporary basis.
That neither the nominee nor any other person has commenced employed in the position of cook in the sixteen (16) months since the nomination application was lodged and the business appears to still be operating successfully, I question the genuine need for this position.
Furthermore, the nominator has not provided a detailed explanation regarding their genuine need for this position, including why a position that may have previously been unfilled is now required nor the benefit the position being filled will bring to the business…’
At the hearing the Tribunal discussed with the applicant the delegate’s decision and the genuine need for the applicant to employ Mr Huang as a paid employee to work in the position under the applicant’s direct control. The applicant told the Tribunal that the nominee has been employed with the applicant since early 2018 and the applicant has undertaken numerous attempts to recruit Cooks to work in his business. The applicant noted that post COVID he has found it increasingly difficult to find and retain suitable staff to work in his business and has become reliant upon the nominee for his experience and commitment to the position.
The Tribunal is satisfied that the material and evidence provided by the applicant, including the applicant’s oral evidence, written submission (undated), organisation chart and position description, supports there is a genuine need for the nominator (applicant) to employ the nominee as a paid employee to work in the position under the nominator’s direct control. In reaching this conclusion, the Tribunal gives weight to the nature of the applicant’s operational requirements, its size and activities, the tasks to be undertaken in the position, the nominee's experience and qualifications and employment history with the applicant.
The Tribunal is satisfied on the evidence before it, that there is a business need for the position which supports the genuine need for the nominator (applicant) to employ the nominee as a paid employee to work in the position under the nominator’s direct control. Accordingly, the requirement of r.5.19(4)(h)(ii) (B) is met.

The Tribunal is satisfied that the material and evidence provided by the applicant, supports the applicant’s claims that they have made efforts to fill the position locally by an Australian citizen or an Australian permanent resident. The applicant provided evidence at the hearing that they have been unsuccessful in sourcing an experienced and qualified Australian citizen or an Australian permanent resident to the position and the challenges the applicant has faced in attracting and retaining staff to work at his business located at Coffs Harbour. The Tribunal also gives weight to the RCB’s advice that the position cannot be filled locally.
On the evidence before it, the Tribunal is satisfied that the position cannot be filled by an Australian citizen/permanent resident living in the same local area. Accordingly, the requirements of r.5.19(4)(h)(ii)(C) are met.
The Tribunal has reviewed the relevant descriptors stipulated under ANZSCO 351411 for the occupation Cook and the stated duties and responsibilities of the nominee. At the hearing the applicant and nominee provided comprehensive description of the daily duties and tasks carried out by the nominee. In undertaking its assessment as to whether the tasks to be performed in the position correspond to the tasks of an occupation specified in an instrument, the Tribunal has also afforded consideration to the environment in which the business operates, the size of the business and operational requirements, and how the tasks of a Cook (as undertaken in the nominated position) are relevant to meeting these requirements.
Having afforded consideration to the evidence before it, the Tribunal is therefore satisfied that the tasks to be performed in the position, correspond to the tasks of a Cook. Accordingly, the requirements of r.5.19(4)(h)(ii)(D) are met.
The occupation of Cook (ANZSCO 351411) is referred to in ANZSCO as a skill level 3 occupation. The Tribunal has considered evidence supporting the nominee’s suitability in so far as his experience and qualifications for the position. Department records show that the nominee holds relevant to the position a Diploma of Hospitality, Certificate III in Hospitality (Patisserie) and Certificate IV in Commercial Cookery. The nominee has worked approximately thirteen years in the restaurant sector as a Chef/Cook with approximately eight years as a Sushi Cook, including five years in the nominated position.
Having considered the evidence attesting to the nominee’s experience and qualifications the Tribunal is satisfied that he is suitably qualified for the position and that the occupation is applicable to the person identified under subparagraph (a)(ii) in accordance with the specification of the occupation. Accordingly, the requirements of r.5.19(4)(h)(ii) (DA) are met.
The Tribunal has before it, advice dated 20 February 2018, from the relevant RCB, Regional Development Australia, Mid North Coast, indicating that they are satisfied regarding the matters specified in r.5.19(4)(e) and r.5.19(4)(h)(ii)(B) & (C). On this basis, the Tribunal is satisfied that r.5.19(4)(h)(ii)(F) is met.
Given the above, the Tribunal finds that the requirements of r.5.19(4)(h)(ii) are met and accordingly r.5.19(4)(h) is met as a whole.
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.
Karen McNamara
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 551

21 February 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction