La Galleria Ristorante Pty Ltd (Migration)

[2021] AATA 445

La Galleria Ristorante Pty Ltd (Migration) [2021] AATA 445 (26 February 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  La Galleria Ristorante Pty Ltd

CASE NUMBER:  1811870

HOME AFFAIRS REFERENCE(S):          BCC2016/3041282

MEMBER:George Hallwood

DATE:26 February 2021

PLACE OF DECISION:  Adelaide

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

Statement made on 26 February 2021 at 10:21am

CATCHWORDS
MIGRATION – application for approval of nomination of position – direct entry stream – employment in nominated position for at least two years – most recent contract provided to tribunal – decision under review set aside

LEGISLATION
Migration Regulations 1994 (Cth), r 5.19(4)(d)

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 16 April 2018 to reject the applicant’s application for approval of the nomination of a position in Australia under r.5.19 of the Migration Regulations 1994 (the Regulations).

2. The applicant applied for approval on 13 September 2016. The requirements for the approval of the nomination of a position in Australia are found in r.5.19 of the Regulations which contains two alternative streams: a Temporary Residence Transition nomination stream (r.5.19(3)) and a Direct Entry nomination stream (r.5.19(4)). If the application is made in accordance with r.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: r.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 r.5.19(4) of the Regulations because they were not satisfied that the nominee would be employed on a full-time basis in the nominated position for at least two years.

5.    Mr Jaskrit Singh appeared before the Tribunal by video on behalf of the applicant on 24 February 2021 to give evidence and present arguments. The hearing was combined with the related subclass 187 visa application file 1815835 hearing and the Tribunal also received oral evidence via video from Ms Prety, the related subclass 187 visa nominee (the nominee).  

6.    The Tribunal exercised its discretion to hold the hearing by video. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by video, having regard to the nature of this matter and the individual circumstances of the applicant. 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. No concerns were raised by the applicant either to the hearing being combined or the hearing being held by video and the Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

7.    The applicant was represented in relation to the review by its registered migration agent.

8.    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

9. 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), 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)

1. Regulation 5.19(4)(a) requires that the application for approval must be in the approved form, must be accompanied by the prescribed fee, and, where applicable, must include the required written certification relating to conduct that contravenes s.245AR(1). The application must also identify a need for the nominator to employ a paid employee to work in the position under their direct control.

2. I have had regard to the Department’s records and I am satisfied that the application was compliant with the process set out in r.5.19(4)(a) as the application:

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

   ·the completed form includes a written certification stating that the nominator has not engaged in conduct in relation to the nomination that contravenes s. 245AR(1); and

   ·the completed form identifies a need for the applicant to employ a paid employee to work in the position under the applicant’s direct control and the Tribunal is satisfied that this meets the requirement of r.5.19(4)(a)(ii).

3. Accordingly, the requirement in r.5.19(4)(a) is met.

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

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

2. The applicant stated at the hearing that the business continues to be active and lawfully and directly operates their business in Australia. Mr Singh said that the business had grown during the COVID period. He said that the business had now operated as a restaurant for six years.

3. Information provided to the Tribunal in support of the applicant’s statements include:

   ·Business registration with ASIC (current and historical company extracts);

   ·Australian Taxation Office activity statements;

   ·Tax returns for 2019 and 2020 financial years;

   ·Externally prepared financial statements for 2017, 2018, 2019 and 2020 financial years.

4. The Tribunal is satisfied that the applicant is actively, lawfully and directly operating a business in Australia.

5. Accordingly, the requirement in r.5.19(4)(b) is met.

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

1. 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. 

2. In oral evidence Mr Singh confirmed to the Tribunal’s satisfaction:

   ·the applicant is not involved in labour hire activities; and

   ·the nominated position is employed wholly within the nominator’s business and is not for hire to unrelated businesses.

3. Accordingly, the requirement in r.5.19(4)(c) is met.

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

1. 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. 

2. The most recent contract of employment dated 22 September 2020 states: “The commencement date will be on the grant of your 187 visa approval” and goes on to state: “This position is available for at least 2 years with an option of further extension should you wish it”. The contract describes full time employment in the nominated position. Mr Singh confirmed at the hearing that the nominator intended to employ Mrs Prety in the nominated position for at least two years.

3. The Tribunal is satisfied that the nominee will be employed in the nominated position for at least two years and that the terms and conditions of the employment do not exclude the possibility of an extension. 

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

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

1. 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.

2. JobOutlook web site indicates the average weekly pay for cooks in Australia is $1,068 or $55,536 per annum. A number of advertised positions in Western Australia for cooks on the same website listed salaries at around $55,000. The base salary in the contract of employment is $55,000 per annum base salary. Mr Singh indicated that he checked online and also with his accountant when determining the salary for the position.

3. The Tribunal is satisfied that the terms and condition 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.

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

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

1. Regulation 5.19(4)(f) requires that there is no adverse information known to Immigration about the nominator or person associated with the nominator; or it is reasonable to disregard any such information. For these purposes, ‘adverse information’ and ‘associated with’ have the meaning given in rr.1.13A and 1.13B. 

2. There is no information before the Tribunal which suggests there is any adverse information known to the Department about the nominator or a person ‘associated with’ the nominator.

3. Accordingly, the requirements of r.5.19(4)(f) are met.

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

1. 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.

2. Mr Singh gave evidence that the applicant has complied with workplace relations laws.

3. There is no information before the Tribunal that suggests the applicant does not have a satisfactory record of compliance with relevant laws relating to workplace relations.

4. Accordingly, the requirements of r.5.19(4)(g) are met.

Tasks of the position, genuine need for the position and training requirements r.5.19(4)(h)

1. 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 (see legislative instrument IMMI 17/058), the occupation is applicable to the proposed employee in accordance with any specifications made in that instrument, and specified training requirements are met; or

   ·the position and nominator’s business is located in regional Australia, there is a genuine need for the paid position under the nominator’s direct control which cannot be filled by a locally resident Australian citizen or permanent resident, the tasks of the position correspond to those of an occupation specified in the relevant legislative instrument, the occupation is applicable to the proposed employee in accordance with the specification of the occupation and that a regional certifying body has advised the Minister about certain matters relating to the position.

2. Relevantly for this matter, as an application under the Regional Sponsored Migration Scheme visa under the Direct Entry nomination stream, the Tribunal has found:

   ·The instrument IMMI 16/045 was the instrument in force for nomination applications for determining ‘regional Australia” at the time this application was made;

   ·Consistent with the Department’s policy intention: that IMMI 17/059, which revoked IMMI 16/045 was to only apply to nominations made on or after it commenced, the instrument that was in force at the time the application was made is the instrument that applies to determining ‘regional Australia’ for the purposes of r.5.19.[1];

   ·Both the position (Cook) and the business (La Galleria Restorante Pty Ltd), being located in Morley, Western Australia, is located in ‘regional Australia’ as the entire state of Western Australia was included as regional Australia in IMMI 16/045;

   [1] See the Skilled Visa E news November 2017 publication which was published at the time IMMI 17/059 took effect, at: .

3. For these reasons the Tribunal is satisfied that the position is in regional Australia.

   ·The applicant provided oral and written evidence that the business is a 30 seat full-service restaurant offering BYO drinks and operating in Morley, Western Australia;

   ·As a full-service restaurant making food freshly for customers the business is dependent on the position of cook to operate;

   ·Mr Singh submitted that he also runs a transport business so is not available to work in the restaurant full time which means the business relies on the cook position to be open full time;

4. For these reasons the Tribunal is satisfied that there is a genuine need to employ a paid employee to work in the position under the nominator’s direct control.

   ·Mr Singh stated that he had advertised the position and was unable to find any suitable Australian citizen or permanent resident to fill the role. A written submission dated 10 September 2020 confirms this stating that the position had been advertised in Seek and Gumtree with no local responses. Evidence of the advertisements was provided.

5. 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 same local area.

   ·The Tribunal is satisfied that the tasks performed in the position as described in the position description provided and confirmed orally by Ms Prety closely resemble the tasks of the occupation Cook – ANZSCO Code 351411 contained in Schedule 1 of the instrument IMMI 17/058 and there are no additional applicability requirements for this occupation.

   ·File evidence demonstrates to the satisfaction of the Tribunal that Skilled Migration WA, Department of Training and Workforce Development, as the Regional Certifying Body described in the relevant instrument IMMI 16/045, located in the same State as the position has advised the Minister about the matters in r.5.19(4)(e) and r.5.19(4)(h)(ii)(B) & (C).

6. Accordingly, the requirements of r.5.19(4)(h) are met.

CONCLUDING PARAGRAPH

1. Based on the findings above, the Tribunal is satisfied that the applicant meets the requirements of r.5.19 for approval of the nomination of the position in Australia.

DECISION

1. 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)

…

1. 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

1. 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)       both 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 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).