M Cenfi & A.M Cenfi (Migration)

M Cenfi & A.M Cenfi (Migration) [2022] AATA 3130 (8 September 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  M Cenfi & A.M Cenfi
REPRESENTATIVE:  Mr Trent Robert Pickup (MARN: 0638435)
CASE NUMBER:  1914293
HOME AFFAIRS REFERENCE(S):          BCC2018/1278611
MEMBER:Stephen Witts
DATE:8 September 2022
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Statement made on 08 September 2022 at 11:44am
CATCHWORDS
MIGRATION – application for approval of nomination of position – direct entry nomination stream – corporate general manager – four small businesses at same location with only owners, nominee and casual staff – tasks of position – oral and documentary evidence – ANZSCO description – role integral in business – decision under review set aside
LEGISLATION
Migration Regulations 1994 (Cth), r 5.19(4)(h)
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 15 May 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).
The applicant applied for approval on 17 March 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 in the nominated occupation of corporate general manager ANZSCO code 111211.
The delegate refused the application on the basis the applicant’s nomination did not satisfy reg 5.19(4)(h) of the Regulations because the delegate was not satisfied that the applicant has demonstrated that the tasks to be performed in the position correspond to the tasks of a corporate general manager.
The applicant, Mr Marco Cenfi and Mrs Anna Cenfi, appeared before the Tribunal on 8 September 2022 to give evidence and present arguments.
The Tribunal also received oral evidence from the nominee, Ms Elizaveta Valeeva.
The applicant was represented in relation to the review.
For the following reasons, the Tribunal has decided to set aside the decision under review and substitute 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.
The Tribunal has considered all the material before it including evidence given prior to the hearing and evidence given at the hearing.
The Tribunal notes that it has been provided with a copy of the relevant delegate’s decision record by the applicant. In this decision it was contended that the applicant had not demonstrated that the tasks to be performed by the nominee corresponded to the tasks of a corporate general manager. It was asserted by the delegate that the occupation of corporate general manager must conform to the definition under the above code and consists of duties and responsibilities such as planning, organising, directing, controlling and reviewing day-to-day operations and major functions of a commercial, industrial, governmental or other organisation through departmental managers and subordinate executives.
It was further noted by the delegate that the nominator operates three shops at the same location which consists of a fish and chip shop, a gelato premises and another food shop. The delegate noted that there appeared to be only three employees in the business including the two owners and the nominee. It was stated by the delegate that this business consists of shops that do not have departmental managers or executives and cannot provide the scope for a corporate general manager and that the tasks undertaken seem more aligned to those of a retail supervisor position, in particular, that the shops owned by the nominator do not have departmental managers nor executives.
The Tribunal notes that the applicant has provided it with a submission dated 4 July 2022. In this submission it was stated that the applicant is a partnership, Marco and Anna Cenfi, and that it operates four businesses including MC Design Pty Ltd, La Barrita, Piccolo Gelato, and Piccolo Mates Pty Ltd. It was further stated that the business is operating and does have the financial capacity to support the nominee; also included was an organisation structure indicating that there is no equivalent Australian employee, an employment contract, a statement that that the position is located in a regional area, that there is a genuine need for the nominee to work in the business in this capacity, and other material.
The Tribunal notes that in the financial material provided it was stated that the total trading income for the partnership component of the business in 2021 financial year was approximately $300,000 and in 2020 it was approximately $280,000; and that wages for those financial years were approximately $100,000 per annum and that in 2021 there was a loss of approximately $150,000 and in 2020 a profit of approximately $100,000.
The Tribunal notes information was also provided regarding the individual businesses. La Barrita Pty Ltd had a total trading income in 2020 financial year of approximately $840,000 and in 2019 approximately $850,000; its wages were approximately $300,000 in those years, and it made a profit of approximately $20,000 in 2020 and a loss of $50,000 in 2019. In 2021 it had a total trading income of approximately $1.2 million, wages of approximately $490,000 and a profit of approximately $117,000.
The Tribunal notes that in regard to the MC Design Pty Ltd business, it had a total trading income in 2020 of approximately $465,000 and in 2019 it was approximately $547,000, its wages expenses were approximately $42,000 and $145,000 respectively and it made a loss in those years of approximately $50,000 and $20,000 respectively. In 2021 total trading income was approximately $1.3 million, its wages were approximately $76,000 and its profit was approximately $160,000.
The Tribunal notes that in regard to the Piccolo Mates Pty Ltd business its total trading income in 2020 was approximately $120,000 and that its wages were $64,000 and approximately $45,000 respectively. In 2021 its total trading income was approximately $100,000, its wages were approximately $72,000, and it made a loss of approximately $50,000.
The Tribunal notes that an organisation chart was provided indicating that in the gelato business there were eight casual employees as of June 2022, in the Piccolo Mates business there were three casual employees, two of which were on student visas, in the La Barrita business there were 18 casual employees all of which were Australian citizens, and in the MC Design business there were two employees, being the managing director Mr Marco Cenfi and the nominee.
The Tribunal notes that there is an employment agreement for the nominee. The remuneration was stated as being $79,032.70 and that the position commenced on 4 June 2018. This employment agreement was signed by the managing director and the nominee on 2 June 2018.
The Tribunal notes that a list of duties and responsibilities was provided, as was pay scale information indicating that the average general manager salary in Australia as of 30 June 2022 was $115,849 per annum.
The Tribunal notes a submission was provided by the applicant stating the role of the nominee has become an integral one within the business, that the business continues to grow, and that formerly the business was operated solely by the two partners but that in 2018 they identified a need to establish a role to lead and support the business objectives of each individual business. It was stated that after advertising the role and reviewing applicants the nominee was the successful candidate as she had the best qualifications for it.
It was further stated that the principal owner in the business, Mr Marco Cenfi, is active across the different entities as a manager but that his predominant focus is the design work that he is involved in, in architecture design, and that he is involved in large-scale fit out projects and other construction design. It was stated that the nominee’s experience in hospitality businesses is useful in resolving administrative matters that allows the principal owner to concentrate on design works. It was further stated that the group was able to continue operations and minimise employment impacts during a pandemic and this is due to the strength of the business’s management team including the nominee.
The Tribunal notes that prior to the hearing witness statements were provided including one from one of the directors, Anna Cenfi, stating that she and her husband are unable to cover the role themselves and that they are busy looking after their three young children and that her husband’s time is spent completing design work in the design business as above; one from the other director, Marco Cenfi, stating that there is no Australian equivalent employee working at the business and that the salary was confirmed via market salary research, and that the partnership has not been monitored by the Department; and one from the nominee stating that at the time of application she was 22 years old and had competent English at the time of the application and that she possessed the relevant qualifications for the nominated occupation.
The Tribunal notes that it was also stated that in 2018 the partnership M Cenfi and AM Cenfi was audited for superannuation owing which needed to be paid and that it is currently being investigated again for superannuation payments, but that nominator is stating that the ATO is incorrect.
The Tribunal also notes that provided prior to the hearing were birth certificates for the three children of the nominator, some entity bank account statements it was stated indicates the nominee’s access, and some material regarding the nominator’s design and construction business.
The Tribunal notes that the descriptor for the role of corporate general manager in accordance with ANZSCO code 111211 describes such a role as a person who plans, organises, directs, controls and reviews the day-to-day operations and major functions of a commercial, industrial, governmental or other organisation through departmental managers and subordinate executives, and the tasks of such a role are:
·“Planning policy, and setting standards and objectives for organisations
·Providing day-to-day direction and management of organisations, and directing and endorsing policy to fulfil objectives, achieve specific goals, and maximise profit and efficiency
·Assessing changing situations and responding accordingly by issuing commands and directives to subordinate staff
·Consulting with immediate subordinates and departmental heads on matters such as methods of operation, equipment requirements, finance, sales and human resources
·Authorising the funding of major policy implementation programs
·Representing the organisation at official occasions, in negotiations, at conventions, seminars, public hearings and forums, and liaising between areas of responsibility
·Preparing, or arranging for the preparation of, reports, budgets and forecasts, and presenting them to governing bodies
·Selecting and managing the performance of senior staff
·May undertake responsibility for some or all of accounting, sales, marketing, human resources and other specialist operations”
At the hearing the Tribunal had a discussion with the applicants about their application.
The nominator, Mr Marco Cenfi, stated that he first employed the nominee as a front of staff employee in a restaurant he owned in 2015 and that she worked part-time for him for a year or so before assisting him starting up a new restaurant which he currently owns and is still trading, La Barrita, where the nominee continued to work part-time before becoming the restaurant manager and assisting in the business generally. He stated that the nominee showed great promise in the business and that in 2018 he appointed her as his general manager managing the four businesses that he owns. He stated that he did advertise at the time but could not find any quality candidates to manage his businesses and so decided to appoint the nominee.
The Tribunal had a detailed discussion with the nominator regarding the nature of his four businesses and the role that the nominee takes in managing those businesses. In particular, the nominator provided evidence in regard to the size and nature of his current design and contract construction business and how the nominee is actively involved in the day-to-day running of the business including project management and contractor management, as well as continuing to overview the other three retail businesses emphasising the financial and human resource overview and management on a day-to-day basis of those businesses.
The nominee stated that she first came to Australia as a student in 2014 and achieved a bachelor level qualification in business in 2017. She stated that she then went on a postgraduate visa for two years before making this current application. The nominee provided evidence in regard to the nature of the work that she has been undertaking since 2018 including the management of the three retail businesses in terms of employment, financial management, and other aspects of running the business and also her activities in the design business managed by the nominator and her day-to-day responsibility for overseeing the projects mainly based in Sydney, overseeing sales figures, managing the spending, and managing the contractors and clients.
The Tribunal has considered this matter very carefully noting that the nominator and the nominee have stated that the multiple businesses being managed by the nominee are of a smaller scale that would normally be associated with the role of a corporate general manager. However evidence was provided that the nominee does carry out the functions of a general manager of these businesses in all the aspects including selecting and managing the performance of the senior staff running those businesses as well as the staff in those businesses, that she is responsible for all of the accounting, sales and other specialist operations of these businesses, that she does prepare budgets and forecasts for the partners in all these businesses, and that she does manage immediate subordinates across these businesses and gets involved in finance, sales and human resource functions.
The Tribunal finds that on that basis the nominee is carrying out the functions of a corporate general manager in accordance with the above ANZSCO code.
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.
The Tribunal finds that the application was made in the approved manner and that it identified a need for the nominator to employ an identified person to work as a corporate general manager under ANZSCO code 111211 under the nominator’s direct control.
Accordingly, the requirement in reg 5.19(4)(a) is met.
Nominator is actively and lawfully operating a business in Australia: reg 5.19(4)(b)
Regulation 5.19(4)(b) requires that the applicant is actively, lawfully and directly operating a business in Australia.
The Tribunal finds that the nominator is actively and lawfully operating a business 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.
The Tribunal finds that the nominator is not involved in labour hire activities.
Accordingly, this requirement 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.
The Tribunal, noting that the nominee has now worked in the business for four years on a full-time basis and three years before that on part time basis, finds that an extension beyond two years from now is not expressly excluded.
Accordingly, the requirement in reg 5.19(4)(d) is 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 Tribunal notes the evidence provided and finds that the terms and conditions applicable to the nominee 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.
In particular the Tribunal notes that the applicant is being paid a rate of pay that is above the minimum income threshold for a temporary visa holder.
Accordingly the requirements of reg 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.
The Tribunal finds that there is no adverse information known to the Department about the nominator or a person associated with the nominator.
Accordingly the requirements of reg 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.
The Tribunal finds that there is no evidence before it that the applicant does not have a satisfactory record of compliance with workplace relations laws in the locations in which it operates a business and employs staff.
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)
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, 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.

The Tribunal finds that the tasks will be performed in Australia and correspond to the tasks of an occupation specified as above in the relevant instrument and that there is a genuine need for the nominator to employ the person identified as a paid employee to work in the position under the nominator’s direct control and that the position has not been able to be filled by an Australian citizen or permanent resident who is living in the same local area.
Accordingly the requirements of reg 5.19(4)(h) are met.
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.
Stephen Witts
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 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).

[2022] AATA 3130

8 September 2022

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Immigration

Administrative Law

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Judicial Review

Statutory Construction

Procedural Fairness