Knead Patisserie Pty Ltd (Migration)

[2022] AATA 4509

Knead Patisserie Pty Ltd (Migration) [2022] AATA 4509 (4 October 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Knead Patisserie Pty Ltd

REPRESENTATIVE:  Mr Prasad Pahalawela

CASE NUMBER:  1918693

HOME AFFAIRS REFERENCE(S):          BCC2017/4067368

MEMBER:Antonio Dronjic

DATE:4 October 2022

PLACE OF DECISION:  Melbourne

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

Statement made on 04 October 2022 at 2:26pm

CATCHWORDS
MIGRATION – Employer Nomination – approval of nominated position – Direct Entry Nomination – Pastrycook – position cannot be filled locally – Skills Canberra (Treasury and Economic Development Directorate) certification – summary of domestic recruitment efforts – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), s 360
Migration Regulations 1994 (Cth), r 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 21 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 2 November 2017. 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. The nominating business is Knead Patisserie Pty Ltd ATF Bread and Bean Trust, and the nominated occupation is Pastrycook (ANZSCO 351112). The nomination was lodged in favour of Mr Devanshu Sharma.

4. The delegate refused the application on the basis the applicant’s nomination did not satisfy reg 5.19(4)(h)(ii)(C) of the Regulations because the delegate was not satisfied that 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.

5. The applicant applied to the Tribunal on 11 July 2019. On 26 July 2022, the Tribunal wrote to the applicant pursuant to s 359(2) of the Migration Act 1958 (the Act). The letter invited the applicant to provide information in writing that will demonstrate the applicant meets all of the requirements of reg 5.19(4).

6. On 8, 9 and 23 August 2022, the applicant submitted documentary evidence and submissions. The list of documents submitted to the Tribunal is attached to this decision record as Attachment A.

7. Under s.360(2)(a) of the Act the Tribunal considered that it should decide the review in the applicant’s favour based on the material before it.

   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 B 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. From the material on the Department’s and the Tribunal’s files, the Tribunal is satisfied that the nomination application was made on the approved form. The application relates to a visa in a Direct Entry stream seeking to meet the requirements in the Regional Sponsored Migration Scheme and consequently no fee is payable (r.5.37(3)(b)). The applicant provided the relevant s.245AR(1) certification.

11. The Tribunal is further satisfied that the nomination application identified a need for the applicant to employ a paid employee to work in the nominated position of Pastry Cook in the business, under its direct control.

12. Evidence has been given to the Tribunal that the nominee has been working in the nominated position since December 2017, which is sufficient to demonstrate the need for them to employ a paid employee to work in the position under their direct control.

13. The requirements of r.5.19(2) and consequentially r.5.19(4)(a)(i) are therefore satisfied.

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

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

15. The Tribunal is satisfied from the detailed documents provided to it, including the applicant’s recent financial statements, Business Activity Statements (BAS) and its current ASIC and ABN registration, that it is actively, lawfully and directly operating a business in Australia.

16. Accordingly, the Tribunal finds that the requirement in r.5.19(4)(b) is met.

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

17. 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.

18. There is no evidence before the Tribunal to suggest that the applicant is involved in labour-hire activities.

19. Accordingly, the requirement in r.5.19(4)(c) does not apply.

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

20. 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.

21. The Tribunal has had regard to the employment contract between the parties dated 4 January 2022. The contract confirms the nominee will be employed on a full-time basis for at least two years and that the employment contract does not expressly exclude the possibility of extending the period of employment. The annual salary was set to be $67,500 excluding superannuation

22. The Tribunal has had regard to the documents provided on review, including current financial statements. The Tribunal notes that the nominator traded with profit during the past two years. The Tribunal is satisfied on the totality of the evidence that the applicant has the financial capacity to maintain the nominee’s salary as they have been doing since 2017.

23. The Tribunal is satisfied on the 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.

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

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

25. 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.

26. Based on the employment agreement dated 4 January 2022, the Tribunal is satisfied that the nominee’s annual salary is $67,500. The applicant submitted that the business currently employs seven pastry chefs and cooks.

27. Mr McCormack stated in his letter of 17 August 2022 (provided in the related file no 1918600) that the business employs Ms Martin, who is an Australian citizen or permanent resident, as a pastry chef in the same workplace at the same location and that her base salary is $62,000 excluding superannuation.

28. Based on the evidence before it, the Tribunal is satisfied that the salary provided to the nominee is 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.

29. Accordingly, the requirement in r.5.19(4)(e) is met.

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

30. 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.

31. There is no evidence before the Tribunal to indicate that there is any adverse information of the type described in the relevant definitions known to the Department about the applicant or an ‘associated person’.

32. Accordingly, the requirements of r.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. There is no evidence before the Tribunal that Fair Work or any other government agency has taken action against the applicant in relation to workplace relations laws. As such, the Tribunal is satisfied that the applicant has satisfactorily complied with workplace relations laws.

35. 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)

36. 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 in the relevant instrument, 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 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.

37. The Tribunal is satisfied that the position and the nominator’s business are in regional Australia, as the postcode of 2617 in Belconnen, ACT was specified as regional Australia in the relevant written instrument. The applicant must therefore meet the requirements of the second dot point above. As the position and the applicant are in regional Australia, the Tribunal is satisfied that reg 5.19(4)(h)(ii)(A) and (E) are met.

38. The Tribunal is further satisfied that the applicant has a genuine need for the paid position, and that it is under the nominator’s direct control. The Tribunal accepts that the nominee commenced her employment in December 2017 and has been employed by the applicant as a Pastrycook for more than four years.

39. Overall, having regard to the available evidence, the Tribunal is satisfied that the applicant’s business has a genuine need for the nominated role, and is therefore satisfied that reg 5.19(4)(h)(ii)(B) is met.

40. The Tribunal finds that Skills Canberra (Treasury and Economic Development Directorate) certified on 18 March 2018 that there was a need for a paid employee in the nominated position within the business activities of the nominating employer, that it could not be filled by an Australian citizen or permanent resident living in the same local area, and that its terms and conditions of employment were no less favourable than those that are or would be provided to an Australian employee. It is therefore satisfied that reg 5.19(4)(h)(ii)(F) is met.

41. Based on the certification above, and the documentary evidence provided by the applicant in relation to its recruitment exercise that led to the hiring of the nominee, and in particular document headed ‘summary of domestic recruitment efforts’ dated 9 August 2022, the Tribunal accepts that the position cannot be filled by a locally resident Australian citizen or permanent resident. It is therefore satisfied that reg 5.19(4)(h)(ii)(C) is met.

42. The occupation proposed by the applicant was Pastrycook which has the six-digit Australian and New Zealand Standard Classification of Occupations (ANZSCO) code 351112, and which is specified in the relevant instrument.

43. The applicant submitted to the Tribunal comprehensive evidence regarding the tasks performed by the nominee in the position of Pastrycook. Based on the evidence before it, and in particular the detailed job description provided by the applicant, the Tribunal is satisfied that the majority of the tasks of the nominated position correspond with those of the ANZSCO occupation of a Pastrycook. This occupation is specified by the Minister in the relevant instrument for this sub-subparagraph.

44. The Tribunal is therefore satisfied that reg 5.19(4)(h)(ii)(D) is met.

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

46. 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

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

    Antonio Dronjic
    Member

    
    

    Attachment A: Document List

    ·Current & Historical Company Extract

    ·Company’s Financial Statements and Profit & Loss Statements for Year 2017, Year 2018, Year 2019, Year 2020, Year 2021 and Business turnover statement 01/07/2021 to 30/06/2022

    ·Copy of Payroll activity report 01/07/2020 to 30/06/2022

    ·Company Tax Returns for 2016 to 2021

    ·Notices of Assessment for 30/06/2017, 30/06/2018, 30/06/2019, 30/06/2020 and 30/06/2021

    ·Current Employment Contact

    ·Regional Certifying Body Advice

    ·Job advertisements for Pastry Cooks

    ·ANZSCO Job description for Bakers and Pastry Cooks

    ·Organisational Structure

    ·Business activity statements for year 2017, 2018, 2019, 2020 and 2021

    ·Applicant statement

    ·Payslips - 28/7/2022, 4/8/2022, 11/8/2022

    ·Summary of Domestic Recruitment Efforts of Knead Patisserie - 9/8/2022 

    Attachment B - 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 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).