M&SA Trading Pty Ltd (Migration)

[2023] AATA 4276

M&SA Trading Pty Ltd (Migration) [2023] AATA 4276 (11 December 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  M&SA Trading Pty Ltd

REPRESENTATIVE:  Mr Yashpal Erda (MARN: 0963835)

CASE NUMBER:  2000219

HOME AFFAIRS REFERENCE:               BCC2019/5320095

MEMBER:Terrence Baxter

DATE:11 December 2023

PLACE OF DECISION:  Brisbane

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

Statement made on 11 December 2023 at 11:09am

CATCHWORDS

MIGRATION – approval of a nomination – Temporary Residence Transition stream – position of Café or Restaurant Manager – financial capacity to employ the nominee for at least two years – tasks of the position correspond to nominated occupation – actively and lawfully operating a business in Australia – genuine need for the employment – updated financial information – terms and conditions of employment no less favourable – decision under review set aside     

LEGISLATION

Corporations Act 2001, s 95A
Fair Work Act 2009
Income Tax Assessment Act 1997
Migration (Skilling Australians Fund) Charges Act 2018
Migration (Skilling Australians Fund) Charges Regulations 2018
Migration Act 1958, ss 140, 245
Migration Regulations 1994, rr 1.03, 1.13, 2.57, 2.72, 2.73, 5.19, 5.37
Superannuation Guarantee (Administration) Act 1992

CASES

Bharaj Construction Pty Ltd v MIBP [2016] FCCA 902
MIBP v Jayshree Enterprises Pty Ltd [2017] FCA 264

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 18 December 2019 to reject the applicant’s application for approval of the nomination of a position under reg 5.19 of the Migration Regulations 1994 (Cth) (the Regulations).

2. The applicant, M&SA Trading Pty Ltd, applied for approval on 23 October 2019. The applicant nominated Mr Sumeet Kumar (the nominee) in the position of Café or Restaurant Manager. The applicant operates an Indian cuisine restaurant trading as New River Edge Indian Cuisine from premises situated at 6 Bowra Street, Nambucca Heads, New South Wales. The applicant has employed the nominee as Restaurant Manager on a full-time basis since November 2015.

3. The requirements for the approval of the nomination of a position in Australia are found in reg 5.19 of the Regulations, which contains general requirements for approval and additional requirements for approval set out in three alternative streams: a Temporary Residence Transition stream, a Direct Entry stream and a Labour Agreement stream. If the application meets the requirements for approval, then the application must be approved: reg 5.19(3)(a). If any of the requirements are not met, then the application must be refused: reg 5.19(3)(b).

4. In this case, the applicant has applied for approval of a nomination, seeking to satisfy the criteria in the Temporary Residence Transition stream. A nomination that relates to a visa in the Temporary Residence Transition stream must meet the requirements of reg 5.19(5): reg 5.19(4)(e).

5. The delegate refused the application on the basis that the applicant’s nomination did not satisfy reg 5.19(5)(l) of the Regulations because the delegate found that the applicant had not demonstrated that it had the financial capacity to provide full-time employment to the nominee for a minimum period of two years and that accordingly, the applicant had not demonstrated that the nominee would be employed on a full-time basis in the position for at least two years.

6. The applicant lodged an application for review of the delegate’s decision with the Tribunal on 6 January 2020.

7. Mr Ravi Saini, the sole director and shareholder of the applicant, appeared before the Tribunal by video conference on 11 October 2023 to give evidence and present arguments. The hearing was a joint hearing with the application for review of the decision to refuse the visa application of the nominee. The Tribunal also received oral evidence from the nominee by video conference.

8. The applicant was represented in relation to the review by its registered migration agent, Mr Yashpal Erda. The representative attended the Tribunal hearing by video conference.

9. 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

10. The issue in this case is whether the applicant meets the general requirements for approval of the nomination set out in reg 5.19(4) and the stream-specific requirements set out in reg 5.19(5), which are extracted in the attachment to this decision. For the nomination to be approved, all the requirements must be met.

    Evidence provided prior to the hearing

11. The applicant provided to the Department of Home Affairs (the Department) the following documents:

    a.The nomination application.

    b.ASIC evidence of registration of the applicant.

    c.A submission from the applicant’s accountant dated 15 October 2019.

    d.A resume, qualifications and bank statements of the nominee.

    e.Evidence of insurance policies effected by the applicant.

    f.Business activity statements for the period from July 2018 to September 2019.

    g.A financial report for the 2019 financial year.

    h.PAYG payment summaries of the nominee and other employees for the 2019 financial year.

    i.Evidence of the applicant’s tenancy of its business premises.

    j.Submissions from the applicant regarding the genuine need for the position, advertising for the position and the applicant’s financial position.

    k.A submission from the representative.

    l.An organisational chart.

    m.An employment contract dated 18 October 2019.

    n.Pay slips, taxation assessments and superannuation statements of the nominee.

    o.A cash flow projection of the applicant’s business with restaurant receipts and bank statements.

    p.Evidence of salaries paid by the applicant to its employees.

12. The applicant provided to the Tribunal the following documents in addition to documents previously provided to the Department:

    a.A copy of the delegate’s decision.

    b.A submission from the representative dated 17 August 2023.

    c.A current ASIC extract in respect of the applicant.

    d.Tax returns for the 2021 and 2022 financial years.

    e.Business activity statements for the period from July 2022 to June 2023.

    f.Financial statements for the 2021 to 2023 financial years.

    g.A current organisational chart.

    h.A copy of the nominee’s positive Skills Assessment for the nominated occupation.

    i.Evidence of the applicant’s approval of a nomination of the nominee for a Subclass 457 visa.

    j.A copy of the nominee’s Bridging visa granted in respect of an application for a Subclass 186 visa on 23 October 2019.

    k.An employment contract dated 14 August 2023 with a position description.

    l.A determination of the annual market salary rate for the nominated occupation with supporting evidence.

    m.The nominee’s taxation assessments and superannuation statements for the 2016 to 2022 financial years.

    n.Evidence of the applicant’s training expenditure.

    o.Evidence of a business award achieved by the applicant.

    Evidence regarding the applicant’s business operations

13. The applicant has been operating the New River Edge Indian Cuisine restaurant in Nambucca Heads since December 2013. The restaurant has a seating capacity of 80 and offers dishes originating from various regions of India. The restaurant is open for lunch and dinner six days per week.

14. Mr Saini is the sole shareholder and director of the applicant. He also works in the restaurant as Head Chef on a part-time basis. The restaurant currently has a staff of seven including Mr Saini and the nominee.

    Evidence provided after the hearing

15. After the hearing, the applicant provided to the Tribunal Australian Taxation Office income statements of the nominee for the 2021 to 2023 financial years.

    Application requirements – reg 5.19(4)(a)

16. Regulation 5.19(4)(a) requires that an application for approval be made in accordance with a number of requirements set out in reg 5.19(2). Regulation 5.19(2) requires that an application must:

    ·be made in accordance with approved form 1395 (Internet);

    ·identify the position;

    ·identify a person in relation to the position;

    ·identify an occupation in relation to the position;

    ·identify the subclass and stream to which the nomination relates;

    ·be accompanied by the fee mentioned in reg 5.37; and

    ·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 s 245AR(1) of the Migration Act 1958 (Cth) (the Act).

17. Applications made on or after 12 August 2018 must also be accompanied by any nomination training contribution charge the nominator is liable for, and identify the annual turnover for the nomination: regs 5.19(2)(fa), (fb). The liability is imposed by s 140ZM of the Act and the charge is imposed by the Migration (Skilling Australians Fund) Charges Act 2018 (Cth), with the amount specified in the Migration (Skilling Australians Fund) Charges Regulations 2018 (Cth) (Charges Regulations). ‘Annual turnover’ is defined in the Charges Regulations for liable persons operating a business in Australia as the total ordinary income (within the meaning of the Income Tax Assessment Act 1997 (Cth)) derived in the most recent income year (within the meaning of the Income Tax Assessment Act 1997 (Cth)) ending before the day on which the nomination application is made. In any other case, it is defined as the total income the person liable derived in the ordinary course of business in the most recent financial year ending before the day on which the nomination application is made.

18. Further, if the subclass identified in the application is Subclass 187, the application must be made before 16 November 2019, unless the exception in reg 5.19(2A) applies. The exception applies to an identified person who is a ‘transitional 457’ or ‘transitional 482’ worker at the time of application. This means, respectively, a person who on or after 18 April 2017 held a Subclass 457 visa, and a person who on 20 March 2019 held a Subclass 482 visa in the Medium-term stream or was an applicant for a Subclass 482 visa in the Medium-term stream that was subsequently granted: reg 1.03.

19. Having regard to the application and the information provided to the Department, the Tribunal is satisfied that the above requirements for nomination have been met.

20. Given the above findings, the Tribunal is satisfied that the application complied with the requirements in reg 5.19(2) and that reg 5.19(4)(a) is met.

    No adverse information known to Immigration – reg 5.19(4)(b)

21. Regulation 5.19(4)(b) requires that either there is no adverse information known to Immigration about the nominator or a person associated with the nominator, or it is reasonable to disregard any such information.

22. ‘Adverse information’ is defined by reg 1.13A as any adverse information relevant to the person’s suitability as an approved sponsor or a nominator. Regulation 1.13A sets out a non-exhaustive list of examples of the kinds of information which meet this definition, including information that the person:

    ·has contravened a law of the Commonwealth, a State or a Territory, or

    ·is under investigation, subject to disciplinary action or subject to legal proceedings in relation to a contravention of such a law, or

    ·has been the subject of administrative action (including being issued with a warning) for a possible contravention of such a law by a Department or regulatory body that administers or enforces the law, or

    ·has become insolvent (within the meaning of s 95A of the Corporations Act 2001 (Cth)), or

    ·has given, or caused to be given, to the Minister, an officer, the Tribunal or an assessing authority a ‘bogus document’ (as defined in s 5(1) of the Act), or ‘information that is false or misleading in a material particular’ (as defined in reg 1.13A(4)).

23. The term ‘associated with’ is also given a non-exhaustive definition for the purposes of this requirement, in reg 1.13B. It provides that two persons are associated with each other in a wide range of relationships and situations, including if:

    ·they are or were spouses or de facto partners or members of the same immediate, blended or extended family, or have or had a family-like relationship, or belong or belonged to the same social group, unincorporated association or other body of persons, or have or had common friends or acquaintances, or

    ·one is or was a consultant, adviser, partner, representative on retainer, officer, employer, employee or member of the other or any corporation or other body in which the other is or was involved (including as an officer, employee or member), or

    ·a third person is or was a consultant, adviser, partner, representative on retainer, officer, employer, employee or member of both of them, or

    ·they are or were related bodies corporate (within the meaning of the Corporations Act 2001 (Cth)) or,

    ·one is or was able to exercise influence or control over the other, or

    ·a third person is or was able to exercise influence or control over the both of them.

    Regulation 1.13B(2) provides that it does not matter if one of the persons mentioned has ceased to exist.

24. At the hearing, the Tribunal advised Mr Saini that the records of the Department included Client of Interest notes concerning the applicant. The Tribunal provided to Mr Saini details of those notes. The notes indicated that allegations had been made to the Department in 2016 that the applicant had received payment from visa applicants in exchange for sponsorship. Mr Saini stated that the applicant had not received such payments from visa applicants, that he was not previously aware of the allegations and that the applicant had not been investigated by the Department in relation to those allegations. The Tribunal notes the allegations were made over seven years ago, that they appear to be unsubstantiated and not investigated by the Department and that they were denied by Mr Saini.

25. The Tribunal is satisfied that the information referred to in the Department’s Client of Interest notes does not amount to adverse information as defined in the Regulations. There is no evidence before the Tribunal that there is any adverse information of the type described in the relevant definitions known to the Department about the applicant or any associated person.

26. Given the above findings, the Tribunal is satisfied that reg 5.19(4)(b) is met.

    Mandatory licensing, registration and memberships – reg 5.19(4)(c)

27. Regulation 5.19(4)(c) provides that if it is mandatory in the State or Territory in which the position is located for a person to hold a licence or a registration of a particular kind, or be a member (or a member of a particular kind) of a particular professional body, to perform tasks of the kind to be performed in the occupation, the identified person is, or is eligible to become, the holder of the licence, the holder of the registration, or a member of the body, at the time of application.

28. In this instance, the relevant State or Territory is New South Wales, the relevant occupation is Café or Restaurant Manager, and the date of application is 23 October 2019.

29. The Tribunal is satisfied that it is not mandatory for the nominee to hold a licence for the position of Café or Restaurant Manager.

30. Given the above findings, the Tribunal is satisfied that reg 5.19(4)(c) is met.

    Satisfactory compliance with employment laws – reg 5.19(4)(d)

31. Regulation 5.19(4)(d) requires that the nominator has a satisfactory record of compliance with the laws of the Commonwealth, and of each State or Territory in which the nominator operates a business and employs employees in the business, relating to employment.

32. There is no evidence before the Tribunal to suggest that the applicant has an unsatisfactory record of compliance with workplace relations laws of the Commonwealth or any State or Territory in which the applicant operates a business. The Tribunal is satisfied that the applicant does have a satisfactory record of compliance.

33. Given the above findings, the Tribunal is satisfied that reg 5.19(4)(d) is met.

    Training contribution debts – reg 5.19(4)(da)

34. Regulation 5.19(4)(da) applies to applications made on or after 12 August 2018. It requires that any debt due by the nominator as mentioned in s 140ZO of the Act, relating to recovery of nomination training contribution charges and penalties for underpayments, has been paid in full.

35. The records of the Department confirm that the nomination training contribution charge payable by the applicant has been paid in full. The Tribunal is satisfied that there is no debt due by the applicant relating to recovery of nomination training contribution charges or penalties for underpayment.

36. Given the above findings, the Tribunal is satisfied that reg 5.19(4)(da) is met.

    Visa held by identified person at time of application – reg 5.19(5)(a)

37. Regulation 5.19(5)(a) requires that the identified person holds a visa of a particular kind at the time the application for approval of the nominated position was made. There are several alternatives including:

    ·a Subclass 457 visa; or

    ·a Subclass 482 visa; or

    ·if the last substantive visa held was one of the above visa types, a bridging visa granted on the basis they are an applicant for one of those visa types or for a Subclass 186 or 187 visa.

38. The nomination application was made on 23 October 2019. The applicant has produced evidence that the nominee held a Subclass 457 visa, which was granted on 18 August 2017 and was in effect until 18 August 2019 and also a Bridging visa granted in respect of an application for a Subclass 186 visa which was granted on 23 October 2019. Accordingly, the Tribunal is satisfied that the nominee held the relevant visa on the date of the application.

39. Given the above findings, the Tribunal is satisfied that reg 5.19(5)(a) is met.

    Occupation requirements – regs 5.19(5)(b) and (d)

40. A number of requirements relating to the occupation identified in relation to the nominated position are set out in regs 5.19(5)(b) and (d). The occupation identified in this application is Café or Restaurant Manager.

41. Firstly, the occupation must be listed in the Australian and New Zealand Standard Classification of Occupations (ANZSCO) and have the same 4-digit ANZSCO occupation unit group code as the occupation in relation to which the identified person’s most recently held Subclass 457 or 482 visa was granted: reg 5.19(5)(b).

42. Secondly, the Tribunal must be satisfied either that there is no information known to Immigration that indicates that the identified person is not genuinely performing the tasks of the occupation as specified in the ANZSCO, or that it is reasonable to disregard any such information: reg 5.19(5)(d).

43. The occupation of Café or Restaurant Manager is listed in the ANZSCO and has the same 4-digit ANZSCO occupation unit group code (1411) as the occupation in relation to which the nominee’s most recently held Subclass 457 visa was granted.

44. The applicant provided comprehensive evidence of the tasks performed by the nominee in the position of Café or Restaurant Manager. The tasks specified in the ANZSCO for that occupation are as follows:

    ·planning menus in consultation with chefs

    ·planning and organising special functions

    ·arranging the purchasing and pricing of goods according to budget

    ·maintaining records of stock levels and financial transactions

    ·ensuring dining facilities comply with health regulations and are clean, functional and of suitable appearance

    ·conferring with customers to assess their satisfaction with meals and service

    ·selecting, training and supervising waiting and kitchen staff

    ·may take reservations, greet guests and assist in taking orders.

1. The nominee’s duties and responsibilities as recorded in the position description correspond with the tasks specified in the ANZSCO. The written evidence provided by the applicant described tasks performed by the nominee in the areas of reviewing sales performance in the restaurant, identifying strategies for retaining and attracting new customers, setting of price margins, motivating, coaching and training other staff members, attending to banking and financial duties, monitoring stock records and being responsible for the day-to-day operation of the restaurant.

2. Having regard to all the evidence, the Tribunal is satisfied that there is no information known to Immigration that the nominee is not genuinely performing the tasks of the occupation of Café or Restaurant Manager.

3. Given the above findings, the Tribunal is satisfied that regs 5.19(5)(b) and (d) are met.

   Visas and previous employment of identified person – regs 5.19(5)(e), (f), (g)

4. Regulations 5.19(5)(e), (f) and (g) set out requirements in respect of the identified person’s visa history and employment during certain periods immediately prior to the nomination application being made. The qualifying periods set out in these provisions can be modified for specified persons by legislative instrument: reg 5.19(6).

5. Firstly, reg 5.19(5)(e) requires that the identified person must have held one or more of the following visas for a total period of at least two years in the period of three years immediately before the nomination application was made:

   ·a Subclass 457 visa, or

   ·a Subclass 482 visa.

6. Secondly, unless the Subclass 457 or 482 visa held was granted in relation to an occupation specified in an instrument made under reg 2.72(13), reg 5.19(5)(f) requires that the identified person was employed in the position to which the Subclass 457 or 482 visa(s) were granted on a full-time basis, with the employment being undertaken in Australia, for a total period of at least two years during the period of three years immediately before the nomination application was made. The two years of employment cannot include any periods of unpaid leave.

7. If the Subclass 457 or 482 visa was granted in relation to an occupation specified in an instrument under reg 2.72(13), then reg 5.19(5)(g) must be satisfied instead of reg 5.19(5)(f). It requires that the identified person was employed in that occupation for a total period of at least two years (not including any periods of unpaid leave) during the periods of three years immediately before the nomination application was made.

8. As stated previously, the nominee was granted a Subclass 457 visa on 18 August 2017, which was in effect until 18 August 2019. The nomination application was made on 23 October 2019. Accordingly, the requirement in reg 5.19(5)(e) is met.

9. The applicant has provided evidence including PAYG payment summaries of the nominee that confirm that the nominee was employed on a full-time basis from November 2015 until the present date. The Tribunal is satisfied that the nominee was employed in the position of Café or Restaurant Manager, being the position in relation to which his Subclass 457 visa was granted, for at least two years during the period of three years immediately before the nomination application was made.

10. The nominee’s Subclass 457 visa was not granted in relation to an occupation specified in an instrument under reg 2.72(13). Accordingly, reg 5.19(5)(g) does not apply.

11. Given the above findings, the Tribunal is satisfied that regs 5.19(5)(e) and (f) are met.

    Status of the nominator – reg 5.19(5)(h)

12. Regulation 5.19(5)(h) requires that the nominator was the standard business sponsor or party to a work agreement who last identified the identified person in a nomination approved under s 140GB of the Act and is actively and lawfully operating a business in Australia.

13. The applicant has provided evidence that it was the standard business sponsor who last identified the nominee in a nomination under s 140GB of the Act.

14. The applicant produced ASIC evidence of its registration. The applicant also produced financial reports and tax returns for the 2022 and 2023 financial years and business activity statements for the 2023 financial year. The financial reports disclose that the applicant received total income of $451,423 and $529,414 in the 2022 and 2023 financial years respectively. The Tribunal is satisfied that the applicant is actively and lawfully operating a business in Australia, namely a restaurant.

15. Given the above findings, the Tribunal is satisfied that reg 5.19(5)(h) is met.

    Genuine need for employment – regs 5.19(5)(j) and (k)

16. Regulation 5.19(5)(j) requires the nomination application to identify a need for the identified person to be employed in the position, under the direct control of the nominator, and reg 5.19(5)(k) requires this need to be genuine. These requirements do not apply in relation to occupations specified in an instrument made under reg 2.72(13) (see legislative instrument LIN 19/212): reg 5.19(7).

17. The occupation of Café or Restaurant Manager is not specified in instrument LIN 19/212. Accordingly, the applicant is required to comply with regs 5.19(5)(j) and (k).

18. Regulation 5.19(5)(j) requires that the application identifies a need for the nominator to employ the nominee to work in the position under the nominator’s direct control. It is unclear whether this requirement is directed just at a statement to this effect or something of a more qualitative nature. The wording ‘identifies a need’ arguably suggests more is required to meet this criterion than simply a statement or declaration that there is such a need. ‘Identify’ is defined as ‘to recognise or establish as being a particular person or thing; verify the identity of.’[1] On that view, a decision‑maker would need to be satisfied there is a genuine need on the part of the nominator to employ someone in the nominated position.[2] However, it could alternatively be argued that reg 5.19(5)(j) is directed towards requirements for the application form/process of a more administrative nature, such that reg 5.19(5)(j) could be met by a simple statement or certification of need. Support for this view can also be found in the contrast between the wording of reg 5.19(5)(j)and reg 5.19(5)(k), which requires that there be a genuine need for the nominee to be employed in the position under the nominator’s direct control – clearly requiring a qualitative assessment, and reg 5.19(5)(l), which requires satisfaction that the employee will be employed on a full‑time basis in the position for at least two years. Given the uncertain scope of reg 5.19(5)(j), and the requirement in relation to this application to satisfy the following requirement under reg 5.19(5)(k), the Tribunal considers that this issue is more appropriately considered under reg 5.19(5)(k).

    [1] Dictionary.com (accessed October 2023).

    [2] In Bharaj Construction Pty Ltd v MIBP [2016] FCCA 902 (Judge Barnes, 28 April 2016), the Court considered a similarly worded provision in respect of a pre-1 July 2012 RSMS nomination, i.e. ‘the employer nomination is made by an employer in respect of a need for a paid employee’. Whilst on the one hand reg 5.19(4)(a)(ii) does not appear to impose a different requirement beyond emphasising the requirement for an applicant to identify the need (unlike the pre-1 July 2012 version of reg 5.19(2)(a) and (4)(a)), the wording of the criteria does differ slightly and the Tribunal exercises caution in applying the reasoning of Bharaj to a post-1 July 2012 nomination as is currently being considered.

19. The Tribunal considers that reg 5.19(5)(j) is more directed to the administrative process. The nomination application, on page 2 of that document, identifies that the position to be filled is that of Café or Restaurant Manager and on page 8 identifies the nominee. The Tribunal is therefore satisfied that the application for approval identifies a need for the nominee to be employed in the position of Café or Restaurant Manager under the applicant’s direct control such that reg 5.19(5)(j) is met.

20. Regulation 5.19(5)(k) requires that there is a genuine need for the nominee to be employed in the position under the direct control of the applicant. The Tribunal has referred previously in these Reasons to the evidence provided by the applicant regarding the tasks performed by the nominee in the position.

21. At the hearing, Mr Saini stated that the nominee had become known to him after he had advertised for the position in 2015. He said that the nominee was not previously known to him.

22. Mr Saini is described in the organisational chart as Head Chef. He said that he works in the business for approximately 20 hours per week. When asked why he could not personally perform the duties of Restaurant Manager, he said that he had decided to employ a Manager so that he could expand the business. He spoke of possibly opening a new restaurant in the future.

23. The nominee has been employed in the position on a full-time basis for approximately eight years. The Tribunal is satisfied that a business such as that operated by the applicant requires a full-time Restaurant Manager. The Tribunal is satisfied that there is a genuine need for the nominee to be employed in the position of Café or Restaurant Manager under the direct control of the applicant.

24. Given the above findings, the Tribunal is satisfied that regs 5.19(5)(j) and (k) are met.

    Future employment – regs 5.19(5)(l), (m), (n)

25. Regulations 5.19(5)(l), (m) and (n) contain requirements relating to the future employment of the identified person.

26. Firstly, reg 5.19(5)(l) requires that the identified person will be employed on a full-time basis in the position for at least two years. This requirement does not apply in relation to occupations specified in an instrument made under reg 2.72(13) (see legislative instrument LIN 19/212): reg 5.19(7).

27. Secondly, reg 5.19(5)(m) requires that the terms and conditions of the identified person’s employment will not include an express exclusion of the possibility of extending the period of employment.

28. Finally, reg 5.19(5)(n) requires that the nominator’s business has the capacity to employ the identified person for at least two years and to pay the person at least the annual market salary rate for the occupation each year. The ‘annual market salary rate’ is the earnings an Australian citizen or permanent resident earns or would earn for performing equivalent work on a full-time basis for a year in the same workplace at the same location: reg 1.03.

    Full-time employment for two years

29. As previously recorded in these Reasons, the occupation of Café or Restaurant Manager is not specified in instrument LIN 19/212. Accordingly, the applicant is required to comply with reg 5.19(5)(l).

30. The employment contract dated 14 August 2023 provides that the nominee is to work full-time for 38 hours per week. The document provides that the contract is to commence upon the grant of the nominee’s Subclass 186 visa and that the employment is for two years. The nominee is to be employed in the position of Restaurant Manager. The Tribunal finds that it is the intention of the applicant and the nominee that the nominee will be employed full-time for at least two years.

31. However, it is also open to the Tribunal to consider whether the applicant’s business has the financial resources to meet the wages costs for the nominee over the employment period (MIBP v Jayshree Enterprises Pty Ltd [2017] FCA 264).

32. The base salary payable to the nominee under the employment contract is $70,000 per annum.

33. Based on the information provided to the Department, the delegate was not satisfied that the applicant had the financial capacity to provide full-time employment, including superannuation, to the nominee for at least two years. The financial statement for the 2019 financial year produced to the Department disclosed that the applicant’s sales in that year were $294,148 and that the applicant recorded a net profit before tax of $15,450. The delegate noted that the total expenditure for wages in the profit and loss account was $109,459 and that a salary of $54,000 per annum was to be paid to the nominee. The delegate was not satisfied that the balance of the wage expenditure of $55,459 accounted for the salaries to be paid to the six other employees of the business disclosed in the organisational chart.

34. The applicant’s financial position has improved considerably since the date of the delegate’s decision. The applicant’s sales in the 2022 and 2023 financial years were $451,423 and $529,414 respectively. In those years, the applicant recorded net profits before tax of $84,437 and $70,672 respectively. In those years, the applicant paid to the nominee salaries of $57,922 and $60,452 respectively.

35. One worrying aspect of the applicant’s balance sheets was that its accumulated losses on 30 June 2021 were $146,796. Mr Saini stated at the hearing that the losses prior to June 2021 were attributable to lockdowns associated with the COVID-19 pandemic. The Tribunal notes that, based on the applicant’s trading profits in 2022 and 2023, the amount of the accumulated losses had been reduced to $22,532 on 30 June 2023. The Tribunal accepts that businesses in Australia, particularly in the hospitality industry, were adversely affected by the pandemic and the Tribunal accepts Mr Saini’s evidence that the accumulated losses in the 2021 balance sheet were attributable, at least in part, to the pandemic.

36. At the time of the nomination application, the applicant was leasing its business premises from a non-related third party. The applicant paid rent of $45,367 in the 2021 financial year. Mr Saini advised the Tribunal that he had purchased the freehold premises during 2021 and the Tribunal notes that the applicant’s liability for rent reduced to $28,819 in the 2022 financial year. This factor should weigh favourably on the applicant’s profitability in the future.

37. The salary to be paid to the nominee under the recent employment contract exceeds the salary that was paid in the 2022 and 2023 financial years. However, based on the applicant’s profitability in those years, the Tribunal is satisfied that the applicant has the financial capacity to meet its employment obligations to the nominee for at least two years. Accordingly, the Tribunal finds that the nominee will be employed on a full-time basis in the position for at least two years.

    Terms and conditions of employment not to include an express exclusion of the possibility of extension

38. The recent employment contract specifically provides that the nominee’s position will be available for two years with the possibility of further extension for two years. The contract does not exclude the possibility of extension of the original term.

    The applicant’s capacity to employ the nominee for at least two years and to pay the annual market salary rate for the occupation

39. As is recorded later in these Reasons, the applicant has determined the annual market salary rate at $70,000. The Tribunal has found that the applicant has the financial capacity to employ the nominee for at least two years and to pay him the nominated salary of $70,000 per annum. It therefore follows that the Tribunal is satisfied that the applicant has the financial capacity to pay the same annual market salary rate for that period of two years.

40. The Tribunal is satisfied that the applicant’s business has the capacity to employ the nominee for at least two years and to pay him at least the annual market salary rate for the occupation in each of those two years.

41. Given the above findings, the Tribunal is satisfied that regs 5.19(5)(l), (m) and (n) are met.

    Annual earnings – reg 5.19(5)(o)

42. Regulation 5.19(5)(o) provides that the requirements set out in reg 2.72(15) must be met, applying regs 2.72(15) and 2.72(16) as if reg 2.72(15)(a) did not apply and references to ‘the nominee’ and ‘the person’ were references to the identified person and the nominator respectively. Regulation 2.72(15) contains several requirements which must be met if the identified person’s annual earnings in relation to the occupation will not be at least the amount specified in the instrument IMMI 18/033. Regulation 2.57A provides for the meaning of ‘earnings’. Where reg 2.72(15) applies, it requires that:

    ·the annual market salary rate (the rate) for the occupation has been determined by the applicant by reference to instrument IMMI 18/033: reg 2.72(15)(c). The ‘annual market salary rate’ means the earnings an Australian citizen or an Australian permanent resident earns or would earn for performing equivalent work on a full-time basis for a year in the same workplace at the same location: reg 1.03;

    ·the rate, excluding any non-monetary benefits (as defined in reg 2.57A(3)), for the occupation is not less than the temporary skilled migration income threshold (TSMIT) specified in the instrument, unless the rate for the occupation is not less than the TSMIT, and it is reasonable in the circumstances to disregard this criterion: regs 2.72(15)(d) and 2.72(16)(a);

    ·the identified person’s annual earnings in relation to the occupation will not be less than the rate for the occupation, unless it is reasonable in the circumstances to disregard this criterion, and the criterion in reg 2.72(10)(b) in relation to the need for a full-time position is disregarded under reg 2.72(10A): regs 2.72(15)(e) and 2.72(16)(aa). However, in this case, the power under reg 2.72(10A) does not arise;

    ·the identified person’s annual earnings, excluding any non-monetary benefits (as defined in reg 2.57A(3)), in relation to the occupation will not be less than the TSMIT, unless it is reasonable in the circumstances to disregard this criterion: regs 2.72(15)(f) and 2.72(16)(b); and

    ·either there is no information known to Immigration that indicates the rate for the occupation is inconsistent with Australian labour market conditions relevant to the occupation, or it is reasonable to disregard any such information: reg 2.72(15)(g).

43. The nominee’s annual earnings will be $70,000. The specified amount of annual earnings in instrument IMMI 18/033 is $250,000. As the annual earnings in relation to the occupation will not be at least the specified amount, the requirements of reg 2.72(15) must be met.

    Regulation 2.72(15)(c) – has the applicant determined the rate for the occupation in accordance with the instrument?

44. The applicant does not have an Australian worker performing equivalent work to that to be performed by the nominee. The instrument provides that, in these circumstances, where there is no Fair Work instrument, State industrial instrument or transitional instrument applicable to the nominated occupation, the rate is the annual earnings that would apply to an equivalent Australian worker, which must be determined by reference to relevant information. The applicant has submitted that there is no award applicable to the nominated occupation. The Tribunal accepts that submission. ‘Relevant information’ is defined in the instrument as including job advertisements from a national recruitment website or remuneration surveys generated across relevant industry by a reputable organisation or body.

45. The applicant has determined the rate at $70,000.

46. The applicant provided evidence from Talent.com that the salary payable to a Restaurant Manager in Australia ranges from $60,000 to $85,000 per annum with an average of $65,000 per annum, from PayScale that Restaurant Manager salaries in Sydney range from $54,000 to $83,000 per annum with an average of $62,611 per annum, from Glassdoor that salaries for Restaurant Managers in New South Wales range from $65,000 to $91,000 per annum with an average of $76,555 per annum and from SEEK that salaries payable to Restaurant Managers in Australia range from $70,000 to $85,000 per annum. The applicant also produced job advertisements for the position at various locations in New South Wales with advertised salaries ranging from $60,000 to $80,000. The Tribunal is satisfied that the applicant has determined the rate in accordance with the instrument.

1. For these reasons the requirements of reg 2.72(15)(c) are met.

   Regulation 2.72(15)(d) – is the rate, excluding any non-monetary benefits, for the occupation, as determined, less than the TSMIT?

2. The TSMIT specified in IMMI 18/033 is $53,900 per annum. The rate of $70,000 as determined by the applicant in accordance with the instrument exceeds the TSMIT.

3. For these reasons the requirement of reg 2.72(15)(d) is met.

   Regulation 2.72(15)(e) – will the nominee’s annual earnings be less than the rate for the occupation as determined?

4. The nominee’s annual earnings will be $70,000. These annual earnings are equivalent to and not less than the rate of $70,000 as determined by the applicant.

5. For these reasons the requirement of reg 2.72(15)(e) is met.

   Regulation 2.72(15)(f) – will the nominee’s annual earnings, excluding any non-monetary benefits, be less than the TSMIT?

6. The nominee’s annual earnings, excluding any non-monetary benefits, of $70,000 exceed the TSMIT of $53,900.

7. For these reasons the requirement of reg 2.72(15)(f) is met.

   Regulation 2.72(15)(g) – is there information known to Immigration that indicates that the rate for the occupation as determined is inconsistent with Australian labour market conditions relevant to the occupation?

8. The applicant provided evidence that the rate is in accordance with relevant information as defined in the instrument. The rate is comfortably within the range mentioned in the remuneration surveys and job advertisements.

9. There is no evidence before the Tribunal to indicate that the rate for the occupation as determined is inconsistent with Australian labour market conditions relevant to the occupation.

100.   For these reasons the requirements of reg 2.72(15)(g) are met.

101. Given the above findings, the Tribunal is satisfied that reg 5.19(5)(o) is met.

No information to indicate less favourable employment conditions – reg 5.19(5)(p)

102.   Regulation 5.19(5)(p) requires that there is either no information known to Immigration that indicates the employment conditions (other than in relation to earnings) that will apply to the identified person are less favourable to those that apply, or would apply, to an Australian citizen or permanent resident performing equivalent work at the same location, or that it is reasonable to disregard any such information.

103.   The employment contract includes provisions regarding entitlements for annual leave, paid personal/carer’s leave, unpaid carer’s leave, compassionate leave, long service leave and unpaid parental leave. The contract provides that the National Employment Standards contained in the Fair Work Act 2009 (Cth) apply to the nominee’s minimum entitlements. The applicant is required to make superannuation contributions on behalf of the nominee in accordance with the Superannuation Guarantee (Administration) Act 1992 (Cth).

104.   There is no information before the Tribunal which indicates that the nominee’s employment conditions (other than in relation to earnings) are less favourable than those that apply, or would apply, to an Australian citizen or an Australian permanent resident performing equivalent work at the same location.

105. Given the above findings, the Tribunal is satisfied that reg 5.19(5)(p) is met.

Information required by the Minister – reg 5.19(5)(q)

106.   Regulation 5.19(5)(q) requires that the nominator has provided the information required by the Minister for the purposes of regs 5.19(k) to (n). Regulations 5.19(k) to (n) concern a genuine need for the identified person to be identified in the position under the nominator’s direct control; employment on a full-time basis for at least two years; the identified person’s terms and conditions not expressly excluding the possibility of extending the period of employment beyond this; and the nominator’s business having the capacity to employ the identified person for at least two years and pay them at least the annual market salary rate.

107.   The Tribunal has set out in these Reasons the Tribunal’s consideration of the information provided by the applicant for the purposes of regs 5.19(k) to (n). The Tribunal finds that the applicant has provided the information required by the Minister for the purposes of those Regulations.

108. Given the above findings, the Tribunal is satisfied that reg 5.19(5)(q) is met.

109. 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

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

Terrence Baxter
Member

ATTACHMENT – EXTRACTS FROM THE MIGRATION REGULATIONS 1994

5.19Approval of nominated positions—Subclass 186 (Employer Nomination Scheme) visa and Subclass 187 (Regional Sponsored Migration Scheme) visa

Application

(1)A person (the nominator) (including a partnership or unincorporated association) may apply to the Minister for approval of the nomination of a position in Australia.

(2)The application must:

(a)be made in accordance with approved form 1395 (Internet); and

(b)identify the position; and

(c)identify a person (the identified person) in relation to the position; and

(d)identify an occupation in relation to the position; and

(e)identify the subclass and stream to which the nomination relates, which must be one of the following:

(i)a Subclass 186 (Employer Nomination Scheme) visa in the Temporary Residence Transition stream;

(ii)a Subclass 187 (Regional Sponsored Migration Scheme) visa in the Temporary Residence Transition stream;

(iii)a Subclass 186 (Employer Nomination Scheme) visa in the Direct Entry stream;

(iv)Subclass 187 (Regional Sponsored Migration Scheme) visa in the Direct Entry stream;

(v)a Subclass 186 (Employer Nomination Scheme) visa in the Labour Agreement stream; and

(f)be accompanied by the fee mentioned in regulation 5.37; and

(fa)be accompanied by any nomination training contribution charge the nominator is liable to pay in relation to the nomination; and

(fb)identify the annual turnover (within the meaning of the Migration (Skilling Australians Fund) Charges Regulations 2018) for the nomination; and

(g)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.

Approval of nomination

(3)The Minister must, in writing:

(a)approve the nomination if the Minister is satisfied that the requirements set out in subregulation (4) are met; or

(b)otherwise—refuse to approve the nomination.

Requirements for approval—general

(4)The requirements to be met for the nomination to be approved are as follows:

(a)the application is made in accordance with subregulation (2);

(b)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;

(c)if it is mandatory, in the State or Territory in which the position is located, for a person to:

(i)hold a licence of a particular kind; or

(ii)hold registration of a particular kind; or

(iii)be a member (or a member of a particular kind) of a particular professional body;

to perform tasks of the kind to be performed in the occupation, the identified person is, or is eligible to become, the holder of the licence, the holder of the registration, or a member of the body, at the time of application;

(d)the nominator has a satisfactory record of compliance with the laws of the Commonwealth, and of each State or Territory in which the nominator operates a business and employs employees in the business, relating to employment;

(da)any debt due by the nominator as mentioned in section 140ZO of the Act (recovery of nomination training contribution charge and late payment penalty) has been paid in full;

(e)if the nomination relates to a visa in a Temporary Residence Transition stream—the requirements set out in subregulation (5) are met;

(f)if the nomination relates to a visa in a Direct Entry stream—the requirements set out in subregulation (9) are met;

(g)if the nomination relates to a visa in a Labour Agreement stream—the requirements set out in subregulation (14) are met.

Temporary Residence Transition stream—additional requirements for approval

(5)If the nomination relates to a visa in a Temporary Residence Transition stream, the following requirements must also be met:

(a)at the time the application is made, the identified person holds:

(i)a Subclass 457 (Temporary Work (Skilled)) visa; or

(ii)a Subclass 482 (Temporary Skill Shortage) visa; or

(iii) if the last substantive visa held by the identified person was a visa mentioned in subparagraph (i) or (ii)—a bridging visa granted on the basis that the person is an applicant for a visa mentioned in subparagraph (i) or (ii), a Subclass 186 (Employer Nomination Scheme) visa or a Subclass 187 (Regional Sponsored Migration Scheme) visa;

(b)the occupation:

(i)is listed in ANZSCO; and

(ii)has the same 4‑digit ANZSCO occupation unit group code as the occupation in relation to which the identified person’s most recently held Subclass 457 (Temporary Work (Skilled)) visa or Subclass 482 (Temporary Skill Shortage) visa was granted;

(d)either:

(i)there is no information known to Immigration that indicates that the identified person is not genuinely performing the tasks of the occupation as specified in ANZSCO; or

(ii)it is reasonable to disregard any such information;

(e)during the period of 3 years immediately before the application is made, the identified person held one or more of the following for a total period of at least 2 years:

(i)a Subclass 457 (Temporary Work (Skilled)) visa;

(ii)a Subclass 482 (Temporary Skill Shortage) visa;

(f)unless paragraph (g) applies—during the period of 3 years immediately before the application is made, the identified person was employed in the position in relation to which the visa, or visas, mentioned in paragraph (e) were granted:

(i)for a total period of at least 2 years (not including any periods of unpaid leave); and

(ii)on a full‑time basis, with the employment being undertaken in Australia;

(g)if the visa, or visas, mentioned in paragraph (e) were granted in relation to an occupation specified in an instrument made under subregulation 2.72(13)—during the period of 3 years immediately before the application is made, the identified person was employed in the occupation for a total period of at least 2 years (not including any periods of unpaid leave);

(h)the nominator:

(i)was the standard business sponsor or the party to a work agreement, who last identified the identified person in a nomination approved under section 140GB of the Act; and

(ii)is actively and lawfully operating a business in Australia;

(j)the application identifies a need for the identified person to be employed in the position, under the direct control of the nominator;

(k)there is a genuine need for the identified person to be employed in the position, under the direct control of the nominator;

(l)the identified person will be employed on a full‑time basis in the position for at least 2 years;

(m)the terms and conditions of the identified person’s employment will not include an express exclusion of the possibility of extending the period of employment;

(n)the nominator’s business has the capacity to employ the identified person for at least 2 years and to pay the person at least the annual market salary rate for the occupation each year;

(o)the requirements set out in subregulation 2.72(15) are met, applying subregulations 2.72(15) and (16) as if:

(i)paragraph 2.72(15)(a) did not apply; and

(ii)references to the nominee were references to the identified person; and

(iii)references to the person were references to the nominator;

(p)either:

(i)there is no information known to Immigration that indicates that the employment conditions (other than in relation to earnings) that will apply to the identified person are less favourable than those that apply, or would apply, to an Australian citizen or an Australian permanent resident performing equivalent work at the same location; or

(ii)it is reasonable to disregard any such information;

(q)the nominator has provided the information required by the Minister for the purposes of paragraph (k) to (n).

Minister may vary certain Temporary Residence Transition stream requirements

(6)The Minister may, by legislative instrument, determine different periods of time for the purposes of paragraphs (5)(e), (f) and (g) for persons specified in the instrument.

(7)Paragraphs (5)(j), (k) and (l) do not apply in relation to occupations specified in an instrument made under subregulation 2.72(13).