Lentils and All Pty Ltd (Migration)

Lentils and All Pty Ltd (Migration) [2019] AATA 1332 (17 April 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Lentils and All Pty Ltd
CASE NUMBER:  1828844
HOME AFFAIRS REFERENCE(S):           BCC2017/2987457
MEMBER:Antonio Dronjic
DATE:17 April 2019
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to approve the nomination.
Statement made on 17 April 2019 at 2:55pm

CATCHWORDS
MIGRATION – Employer Nomination – approval of nominated position – Café or Restaurant Manager – genuine position – need for a full time manager – business open on Thursdays and Fridays during dinner and on weekends for lunch – intention to expand operating hours – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 140GB, 140GBA
Migration Regulations 1994 (Cth), rr 2.72, 2.73
CASES
Cargo First Pty Ltd v MIBP [2016] FCA 30

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 12 September 2018 to refuse to approve the applicant’s nomination under s.140GB of the Migration Act 1958 (the Act) and r.2.72 of the Migration Regulations 1994 (the Regulations).
The applicant applied for approval on 19 August 2017. A nomination of an occupation for a Subclass 457 visa is made under s.140GB of the Act and r.2.73 of the Regulations. Regulations 2.72(3) to (12) prescribe the criteria that must be satisfied for the Minister to approve a nomination by a person. These criteria are extracted in the attachment to this decision. For nomination applications made from 23 November 2013, additional criteria are specified in s.140GBA.
The delegate decided not to approve the nomination on the basis that the applicant did not satisfy r.2.72(10)(f) of the Regulations because the delegate was not satisfied that the position associated with the nominated occupation is genuine.
The applicant applied to the Tribunal on 2 October 2018 for review of the delegate’s decision. With its application, the applicant provided a copy of the primary decision record. The nominated occupation in the nomination application is Café or Restaurant Manager (ANZSCO 141111).
On 28 February 2019, the Tribunal sent a letter to the applicant which contained a request to provide information in writing demonstrating that the nomination meets all the requirements of the criteria in r.2.72 of the Regulations. The request was made pursuant to s.359(2) of the Act.
On 23 March 2019, after being granted an extension of time, the applicant’s representative submitted the following:
·A copy of the Australian Securities and Investments Commission (ASIC) extract for the sponsoring business;
·Financial statements for the year ending on 30 June 2017;
·Copies of business activity statements (BAS) from January 2017 to December 2018;
·A copy of the employment agreement dated 1 August 2017, indicating the proposed salary to the nominee to be $55,000 based on full-time employment and stating his employment address to be at King Street Melbourne; and
·A copy of the job description for the nominated position.
On 27 March 2019, the Tribunal wrote to the applicant advising that it had considered all the material before it relating to the application but that it was unable to make a favourable decision on that information alone. The Tribunal invited the applicant’s authorised person to give oral evidence and present arguments at a hearing scheduled for 16 April 2019.
On 15 April 2019, the applicant’s representative submitted the following:
·Copies of the nominee’s Payslips from 1 December 2018 to 31 March 2019;
·A copy of the position description for the nominated position;
·A copy of the Business portal;
·Financial statements for the year ending on 30 June 2018;
·Company’s Updated Organisational Chart as of April 2019;
·A copy of the ‘Genuine Position Statement, signed by Mr Vinod Kumar Balasubramaniam, the director of the sponsoring business stating inter alia that:
1.The nominated candidate is required to have a diploma and minimum six months experience in handling business affairs and managing a large team;
2.Lentils and All Pty Ltd owns two restaurants, one each in Wantirna and Melbourne CBD;
3.The nominee will be appointed to manage the company’s Wantirna restaurant;
4.The nominee has had 25 years of experience in sales and marketing;
5.The Wantirna restaurant was opened in May 2016 and later in the same year, Ms Meenakshi was appointed as a Restaurant Manager. She started in October, however, due to personal commitments she quit in December 2016;
6.The Wantirna Restaurant was closed in mid-March 2018 due to shortage of management staff;
7.The Wantirna Restaurant was re-opened to work on Thursdays and Fridays during dinner and on weekends for lunch;
8.Mr Randolph was appointed as Manager of the Wantirna branch on 21 December 2018; and
9.The second restaurant in the CBD was opened in May 2017 and In April 2018 and the business hired a full-time manager for the CBD Restaurant;
Mr Balasubramaniam appeared on behalf of the sponsoring business before the Tribunal on 16 April 2019 to give evidence and present arguments. The applicant was represented in relation to the review by its registered migration agent. The representative attended the Tribunal hearing.
In his evidence, he stated that he is employed by the sponsoring business as a Managing Director for which he draws a monthly salary of $7,000. His duties include overseeing the business operations, making decisions concerning the financial aspect of the business and hiring and firing employees. The other director, Mr Shekar Mani draws salary for a period of six months only (approximately $2,000 per month) and is involved with marketing side of the business.
Lentils and All Pty Ltd was registered in April 2015. The company shares are dived between Mr Balasubramaniam’s wife Ashwini Sundaram (19 shares), three companies located in Dubai and Mr Ramesh Mani who is Mr Shekar Mani’s brother.
Mr Balasubramaniam gave evidence that a business located in India (Saravana) started an international franchise. A company located in Dubai (Saravana Bhavan Holdings Limited) is managing Australian businesses including two restaurants operated by Lentils and All Pty Ltd. The sponsoring business pays 3%royallites to the business located in India and 3% management fees to Saravana Bhavan Holdings Limited located in Dubai.
The Financial statements of the sponsoring business indicate that all shareholders invested money by way of loan to Lentils and All Pty Ltd with the total value of $856,500 as of 30 June 2018.
Mr Balasubramaniam gave evidence that Wantirna restaurant was opened in May 2016 at which time the business identified need to employ a restaurant manager on a full time basis. He claims that the business advertised for this position in June 2016 on Gumtree.
He further stated that, apart from a short employment of a part time restaurant manager from October 2016 to December 2016; the Wantirna restaurant never employed a restaurant manager on a full-time basis.
The Wantirna restaurant was closed in March 2018 and re-opened in July 2018 for work on Thursday and Friday during dinner and on weekends for lunch. It currently employs seven eight part-time and one full-time employee (chef). The nominee is and has been working as a part time Restaurant Manager from 21 December 2018. Those opening hours remain the same as of the time of the hearing. Mr Balasubramaniam stated his intention to re-open Wantirna restaurant to work six or seven days per week in May 2019.
I noted that in the nomination application form, it was stated that the requirements for the nominated position were Bachelor degree and three years of relevant experience. I observed that, according to submissions provided to the Tribunal, those requirements were changed to diploma and six months experience in handling business affairs. I enquired why the business changed the requirements for the nominated position. Mr Balasubramaniam stated that the nominee has a degree (latter he remembered that it was an Accounting degree). He gave evidence that he interviewed the nominee on three occasions in July 2017 on recommendation made by a chef employed at the sponsoring business.
Mr Balasubramaniam remembers that the nominee was a holder of a visitors’ visa and was not allowed to work in Australia. He also remembers that the nominee did not claim to have any work experience as a restaurant manager but was involved in sales and marketing for over 25 years. In his evidence Mr Balasubramaniam stated that the nominee is not related to any of the company directors or shareholders and that he never declared any intentions to invest money in the sponsoring business.
I enquired as to why he offered employment to the nominee despite the knowledge that the nominee never worked as a restaurant manager and has no education relevant to the nominated position. Mr Balasubramaniam stated that he recognised nominee’s managerial qualities and was willing to train him for the nominated position.
Mr Balasubramaniam gave evidence that the nominee obtained unrestricted work rights in December 2018. I enquired as to why, if there is a genuine need for a full time restaurant manager at Wantirna restaurant, the nominee does not work on a full-time basis. He explained that the Wantirna restaurant is still open only on Thursday and Friday during dinner and on weekends for lunch time.
I observed that this evidence indicate that, at the time of my decision, there is no genuine need for a full-time restaurant manager. He conceded this to be correct but reiterated his intention to open Wantirna restaurant for business on a full- time basis in May 2019. I explained that criteria set out in r.2.72 must be satisfied at the time of the Tribunal’s decision.
The nominee was initially proposed to work as a restaurant manager at the CBD restaurant located at King Street. However, in March 2018, another restaurant manager, Mr Rohit Sharma, was employed at the CBD restaurant after he was granted a Subclass 457 visa.
I enquired as to whether the sponsoring business attempted to employ an alternate person to a position of a full-time restaurant manager since September 2018, when the Department refused the nomination application that is the subject of the current review. Mr Balasubramaniam stated that the business waited for the outcome of the current review application.
For the following reasons, the Tribunal has decided to affirm the decision under review to refuse the nomination.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present case is whether the applicant meets the criteria for approval of the nomination. The Tribunal must approve the nomination if the applicant is an approved sponsor and meets the requirements in r.2.72: s.140GB(2). The applicant must also have paid any nomination training contribution charge in relation to the nomination for which they are liable, but this liability only arises for nominations made from 12 August 2018. In addition, for nominations made from 23 November 2013, s.140GBA must be met.
Position must be genuine
Regulation 2.72(10)(f) requires that the position associated with the nominated occupation is genuine. This was considered in Cargo First Pty Ltd v MIBP [2016] FCA 30, where the Court (at [34]) upheld the Tribunal’s approach of qualitatively assessing the position and comparing this with the occupation nominated in order to determine whether it was genuine.
The Tribunal carefully considered the applicant’s evidence regarding the ongoing need for the position of a full-time chef at Wantirna restaurant.
In his evidence, Mr Balasubramaniam stated that the business identified a need to employ a chef on a full-time basis in May 2016. The nominee has held a bridging visa “A” since August 2017. This bridging visa is subject to an 8101 condition which effectively prevented the nominee from working in Australia. Condition 8101 was removed from the applicant’s visa on 21 December 2018 and from that time he was permitted to work on a full-time basis. Despite of that, the nominee continued to work as a on a part-time chef.
The evidence before Tribunal revealed that Wantirna restaurant was closed from March 2018 to July 2018. From July 2018, the restaurant was opened for business on Thursdays and Fridays during dinner and on weekends for lunch. This continues to be the case at the time of the Tribunal’s hearing. As such, there is no need, or for that matter even a possibility to employ a chef on a full-time basis. The nominee’s pay-slips provided to the Tribunal by the applicant evidence that in January, February and March 2019 the nominee worked for a total of 86.67 hours in each of these three months.
Based on the evidence before it, and in particular oral evidence from Mr Balasubramaniam, nominee’s payslips, financial statements for the sponsoring business and its organisational chart, the Tribunal is not satisfied that, at the time of its decision, there is a genuine need for the position of a full-time chef at the restaurant.
Accordingly, the Tribunal finds that the requirements of r.2.72(10)(f) are not met.
For the reasons given above, the Tribunal is not satisfied that the applicant meets the applicable criteria for the nomination to be approved. Accordingly, the decision under review must be affirmed.
Tribunal’s observations
The Tribunal observes that the nominee neither completed relevant education nor has past work experience as a restaurant manager. He holds a Bachelor of Accounting degree and some 25 years of work experience in sales and marketing. The Tribunal enquired as to why was the nominee offered employment. These concerns are not alleviated by Mr Balasubramaniam’s statement that he recognised nominee’s managerial qualities and was willing to train him for the nominated position.
As explained at the hearing, the purpose of granting a temporary work visa is to enable an Australian business to sponsor a skilled worker if it cannot find an appropriately skilled Australian citizen or permanent resident to fill a skilled position listed in the relevant list of occupations. The purpose is certainly not to train an overseas employee how to work in an occupation for which he or she neither has relevant qualifications nor work experience.
DECISION
The Tribunal affirms the decision not to approve the nomination.
Antonio Dronjic
Member

ATTACHMENT - EXTRACTS FROM THE MIGRATION REGULATIONS 1994
2.72 Criteria for approval of nomination — Subclass 457…
(1)This regulation applies to a person who is:
(a)is any of the following:
(i) a standard business sponsor;
(ii) a person who has applied to be a standard business sponsor;
(iii) a party to a work agreement (other than a Minister);
(iv) a party to negotiations to a work agreement (other than a Minister); and
(b)a party to a work agreement (other than a Minister);
who, under paragraph 140GB (1) (b) of the Act, has nominated an occupation in relation to a holder of, or an applicant or a proposed applicant for, a [Subclass 457 visa].
(2)For subsection 140GB (2) of the Act, the criteria that must be satisfied for the Minister to approve a nomination by a person are set out in subregulations (3) to (12).
(3)The Minister is satisfied that the person has made the nomination in accordance with the process set out in regulation 2.73.
(4)The Minister is satisfied that the person is:
(a)a standard business sponsor; or
(b)a party to a work agreement (other than a Minister).
(5)The Minister is satisfied that the person has identified in the nomination the visa holder, or the applicant or proposed applicant for the visa, who will work in the nominated occupation.
(6)If the person identifies a holder of a [Subclass 457 visa] (the visa holder) for subregulation (5), the Minister is satisfied that the person:
(a)has listed on the nomination each other holder of a visa of that kind who was granted the visa on the basis of having the necessary relationship with the visa holder as mentioned in clause 457.321 of Schedule 2; and
(b)if the Minister requires the visa holder to demonstrate that he or she has the skills necessary to perform the occupation — the visa holder demonstrates that he or she has those skills in the manner specified by the Minister.
(7)For paragraph (6) (a), the Minister may disregard the fact that 1 or more persons required to be listed on the nomination are not listed, if the Minister is satisfied it is reasonable in the circumstances to do so.
(7A)In addition to subregulation (6):
(a)if:
(i)       the person identifies a holder of a [Subclass 457 visa] (the visa holder) for subregulation (5); and
(ii)      the [Subclass 457 visa] was granted after the Minister had waived the requirements of paragraph 4006A (1) (c) of Schedule 4 on the basis of a written undertaking made by the current sponsor of the visa holder (as set out in subclause 4006A (2) of that Schedule);
the Minister is satisfied that the person has provided, in writing, an undertaking that is equivalent to the undertaking made by the current sponsor of the visa holder; and
(b)if:
(i)       the person identifies a holder of a [Subclass 457 visa] (the visa holder) for subregulation (5); and
(ii)      the person has listed on the nomination a person described in paragraph (6) (a); and
(iii)     the [Subclass 457 visa] was granted to the person described in paragraph (6) (a) after the Minister had waived the requirements of paragraph 4006A (1) (c) of Schedule 4 on the basis of a written undertaking made by the current sponsor of the visa holder (as set out in subclause 4006A (2) of that Schedule);
the Minister is satisfied that the person has provided, in writing, an undertaking that is equivalent to the undertaking made by the current sponsor of the visa holder.
(8)If the nomination was made before 1 July 2010 — the Minister is satisfied that the person has provided the following information as part of the nomination:
(a)if there is a 6‑digit ASCO code for the nominated occupation — the 6-digit ASCO code;
(b)if there is no 6-digit ASCO code for the occupation, and the person is a standard business sponsor — the name of the occupation as it appears in the instrument in writing made for the purposes of paragraph (10) (a);
(c)if there is no 6-digit ASCO code for the occupation and the person is a party to a work agreement — the name of the occupation as it appears in the work agreement;
(d)the location or locations at which the nominated occupation is to be carried out.
(8A)If the nomination is made on or after 1 July 2010 – the Minister is satisfied that the person has provided the following information as part of the nomination:
(a)if there is a 6-digit ANZSCO code for the nominated occupation - the name of the occupation and the corresponding 6-digit ANZSCO code;
(b)if:
(i)       there is no 6-digit ANZSCO code for the nominated occupation; and
(ii)      the person is a standard business sponsor;
the name of the occupation and the corresponding 6-digit code as they are specified in the instrument in writing made for paragraph (10)(aa);
(c)if:
(i)       there is no 6-digit ANZSCO code for the nominated occupation; and
(ii)      the person is a party to a work agreement;
the name of the occupation and the corresponding 6-digit code (if any) as they are specified in the work agreement;
(d)the location or locations at which the nominated occupation is to be carried out.
(8B)The Minister is satisfied that the person has, in writing, certified as part of the nomination whether or not the person has engaged in conduct, in relation to the nomination, that constitutes a contravention of subsection 245AR(1) of the Act.;
(9)The Minister is satisfied that either:
(a)there is no adverse information known to Immigration about the person or a person associated with the person; or
(b)it is reasonable to disregard any adverse information known to Immigration about the person or a person associated with the person.
(10)If the person is a standard business sponsor — the Minister is satisfied that:
(a)if the nomination was made before 1 July 2010 - the nominated occupation corresponds to an occupation specified by the Minister in an instrument in writing for this paragraph; and
(aa)if the nomination is made on or after 1 July 2010 – the nominated occupation and its corresponding 6-digit code correspond to an occupation and its corresponding 6-digit code specified by the Minister in an instrument in writing for this paragraph and the occupation is applicable to the person identified in the nomination in accordance with the specification of the occupation; and
(b)if required by the instrument mentioned in paragraph (a) or (aa) — the nomination of an occupation mentioned in the instrument is supported, in writing to the Minister, by an organisation specified by the Minister in an instrument in writing for this paragraph; and
(c)the terms and conditions of employment of the person identified in the nomination will be no less favourable than the terms and conditions (including, if applicable, the terms and conditions provided by an enterprise agreement under the Fair Work Act 2009) that are provided or would be provided to an Australian citizen or an Australian permanent resident for performing equivalent work at the same location; and
(cc)the base rate of pay, under the terms and conditions of employment mentioned in paragraph (c), that:
(i)       are provided; or
(ii)      would be provided;
to an Australian citizen or an Australian permanent resident, will be greater than the temporary skilled migration income threshold specified by the Minister in an instrument in writing for this paragraph; and
(d)if the nomination was made before 1 July 2010 - the person has certified as part of the nomination, in writing, that:
(i)       the tasks of the position include a significant majority of the tasks of:
(A)the nominated occupation listed in the ASCO; or
(B)the nominated occupation specified in an instrument in writing for paragraph (a); and
(ii)      if the person is lawfully operating a business outside Australia but does not lawfully operate a business in Australia:
(A)the nominated occupation is a position in the business of the standard business sponsor; or
(B)the nominated occupation is an occupation specified by the Minister in an instrument in writing for this sub-paragraph; and
(iii)     if the person lawfully operates a business in Australia:
(A)the nominated occupation is a position with a business, or an associated entity, of the person; or
(B)the nominated occupation is an occupation specified by the Minister in an instrument in writing for this sub-paragraph; and
(iv)     the qualifications and experience of the visa holder, or the applicant or proposed applicant for the visa, identified in relation to the nominated occupation are commensurate with the qualifications and experience specified:
(A)for the occupation in the ASCO; or
(B)if there is no ASCO code for the nominated occupation — for the occupation in the instrument in writing made for the purpose of paragraph (a); and
(e)if the nomination is made on or after 1 July 2010 – the person has certified as part of the nomination, in writing, that:
(i)       the tasks of the position include a significant majority of the tasks of:
(A)the nominated occupation listed in the ANZSCO; or
(B)the nominated occupation specified in an instrument in writing for paragraph (aa); and
(ii)      if the person is lawfully operating a business outside Australia but does not lawfully operate a business in Australia:
(A)the nominated occupation is a position in the business of the standard business sponsor; or
(B)the nominated occupation is an occupation specified by the Minister in an instrument in writing for this sub-subparagraph; and
(iii)     if the person lawfully operates a business in Australia:
(A)the nominated occupation is a position with a business, or an associated entity, of the person; or
(B)the nominated occupation is an occupation specified by the Minister in an instrument in writing for this sub-subparagraph; and
(iv)     the qualifications and experience of the visa holder, or the applicant or proposed applicant for the visa, identified in relation to the nominated occupation are commensurate with the qualifications and experience specified:
(A)for the occupation in the ANZSCO; or
(B)if there is no ANZSCO code for the nominated occupation - for the occupation in the instrument in writing made for paragraph (aa).
(f)the position associated with the nominated occupation is genuine; and
(g)if the person has identified in the nomination the holder of a Subclass 457 (Temporary Work (Skilled)) visa in relation to whom the requirements in subclause 457.223(6) of Schedule 2 were met—one of the following applies:
(i)       the requirements in subclause 457.223(6) of Schedule 2 continue to be met;
(ii)      if:
(A)the holder would be required to hold a licence, registration or membership that is mandatory to perform the occupation nominated in relation to the holder; and
(B)in order to obtain the licence, registration or membership, the holder would need to demonstrate that the holder has undertaken a language test specified by the Minister under subparagraph 457.223(4)(eb)(iv) of Schedule 2 and achieved a score that is better than the score specified for the test by the Minister under subparagraph 457.223(4)(eb)(v) of Schedule 2;
the holder demonstrates that he or she has proficiency in English of at least the standard required for the grant (however described) of the licence, registration or membership;
(iii)     the holder is an exempt applicant within the meaning of subclause 457.223(4) of Schedule 2;
(iv)     unless subparagraph (ii) applies—the holder:
(A)has undertaken a language test specified by the Minister under subparagraph 457.223(4)(eb)(iv) of Schedule 2; and
(B)achieved within the period specified by the Minister in a legislative instrument for this subparagraph, in a single attempt at the test, the score specified by the Minister under subparagraph 457.223(4)(eb)(v) of Schedule 2; and
(h)either:
(i)       the person will:
(A)engage the visa holder, the applicant for a visa or the proposed applicant for a Subclass 457(Temporary Work (Skilled)) visa only as an employee under a written contract of employment; and
(B)give a copy of that contract to the Minister; or
(ii)      the nominated occupation is an occupation specified by the Minister in an instrument in writing for sub-subparagraph (e)(iii)(B).
(10AA)For paragraphs (10) (c) and (cc), if no Australian citizen or Australian permanent resident performs equivalent work in the person’s workplace at the same location, the person must determine, using the method specified by the Minister in an instrument in writing for this subregulation:
(a)the terms and conditions of employment; and
(b)the base rate of pay, under the terms and conditions of employment;
that would be provided to an Australian citizen or an Australian permanent resident to perform equivalent work in the person’s workplace at the same location.
(10AB)Paragraphs (10) (c) and (cc) do not apply if the annual earnings of the person identified in the nomination are equal to or greater than the amount specified by the Minister in an instrument in writing for this subregulation.
(10A)The Minister may disregard the criterion in paragraph (10) (cc) for the purpose of subregulation (2) if:
(a)the base rate of pay will not be greater than the temporary skilled migration income threshold specified for that paragraph; and
(b)the annual earnings are equal to or greater than the temporary skilled migration income threshold; and
(c)the Minister considers it reasonable to do so.
(11)If the person is a party to a work agreement (other than a Minister) — the Minister is satisfied that:
(a)the nominated occupation is specified in the work agreement as an occupation that the person may nominate; and
(b)if the nomination was made before 1 July 2010 - the person has certified as part of the nomination, in writing, that:
(i)       the tasks of the position include a significant majority of the tasks of:
(A)if the nomination is made using an ASCO code - the nominated occupation listed in the ASCO; or
(B)if the nomination is not made using an ASCO code -the nominated occupation specified in the work agreement; and
(ii)      the qualifications and experience of the visa holder, or the applicant or proposed applicant for the visa, identified in relation to the nominated occupation are commensurate with the qualifications and experience specified for the occupation in the work agreement; and
(c)if the nomination is made on or after 1 July 2010 - the person has certified as part of the nomination, in writing, that:
(i)       the tasks of the position include a significant majority of the tasks of:
(A)if the nomination is made using an ANZSCO code - the nominated occupation listed in the ANZSCO; or
(B)if the nomination is not made using an ANZSCO code -the nominated occupation specified in the work agreement; and
(ii)      the qualifications and experience of the visa holder, or the applicant or proposed applicant for the visa, identified in relation to the nominated occupation are commensurate with the qualifications and experience specified for the occupation in the work agreement.
(12)If the person is a party to a work agreement and the work agreement specifies requirements that must be met by the party to the work agreement — the Minister is satisfied that the requirements of the work agreement have been met.

[2019] AATA 1332

17 April 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice