Messineo Holdings Pty Ltd (Migration)

Messineo Holdings Pty Ltd (Migration) [2023] AATA 298 (16 February 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Messineo Holdings Pty Ltd
REPRESENTATIVE:  Ms Valentina Segreto (MARN: 1281543)
CASE NUMBER:  1911098
HOME AFFAIRS REFERENCE(S):          BCC2017/4661162
MEMBER:Nicola Findson
DATE:16 February 2023
PLACE OF DECISION:  Perth
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Statement made on 16 February 2023 at 7:56pm
CATCHWORDS
MIGRATION – application for approval of nomination of nomination – direct entry stream – café or restaurant manager – tasks of position – delegate considered tasks more akin to lower-level retail supervisor – documentation and written submissions provided to tribunal – directors no longer actively involved and nominee primarily responsible for day-to-day operations – decision made without hearing necessary – decision under review set aside
LEGISLATION
Migration Act 1958 (Cth), s 360(2)(a)
Migration Regulations 1994 (Cth), r 5.19(4)(h)(ii)(D)
CASE
Bharaj Construction Pty Ltd v MIBP [2016] FCCA 902
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 April 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 7 December 2017. The requirements for the approval of the nomination of a position in Australia are found in reg 5.19 of the Regulations which contains two alternative streams: a Temporary Residence Transition nomination stream (reg 5.19(3)) and a Direct Entry nomination stream (reg 5.19(4)). If the application is made in accordance with reg 5.19(2) and meets the requirements of either stream, then the application must be approved. If any of the requirements are not met then the application must be refused: reg 5.19(5).
In this case, the applicant has applied for approval of a nomination, seeking to satisfy the criteria in the Direct Entry nomination stream for the position of Café or Restaurant Manager (ANZSCO 141111). The person identified for the position is Mr Giovanni Paterniti.
The delegate refused the application on the basis the applicant’s nomination did not satisfy reg 5.19(4)(h)(ii)(D) of the Regulations. The delegate was of the view that the tasks of the position did not correspond to the skill level 2 occupation of Café or Restaurant Manager nominated. Instead, the delegate considered that the nominated occupation was closer to a skill level 4 Retail Supervisory position. The delegate therefore found that the tasks to be performed in the position did not correspond to the tasks of an occupation specified by the Minister in an instrument in writing, and therefore did not meet reg 5.19(4)(h)(ii)(D), and therefore reg 5.19(4)(h) as a whole.
The applicant was represented in relation to the review.
In reaching its decision, the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the applicant on the basis of the material before it, pursuant to section 360(2)(a) of the Act.
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
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.
During the review process, on 28 March 2022, the Tribunal wrote to the applicant, inviting it to provide further information to demonstrate all the relevant requirements of reg 5.19(2) and (4). The applicant responded and provided to the Tribunal additional and updated evidence in support of the application, including but not limited to:
·ASIC and ABN records;
·Financial material, including Financial Statements and Business Tax Returns, for the years ended 30 June 2020 and 2021;
·Letter of support from the applicant’s accountant dated 30 June 2021, setting out that the applicant is well capitalised, and trading at a level that will meet its sponsorship obligations;
·Current Organisational Chart;
·Position Description for the nominated position;
·Updated contract of employment between the nominator and nominee dated 17 June 2021;
·Evidence of tasks performed by the nominated position;
·Advertising material in relation to the nominated position;
·Market rate information relevant to the nominated position;
·Photographs and menu;
·Statutory Declarations of Directors, Mr Damien and Mr Julian Messineo as well as a statement of Director, Mrs Rosa Messineo, setting out, among other things, background to the operation of the applicant business; the reasons why there is a need for the nominated position; and attempts made to fill the nominated position;
·Evidence relevant to the applicant’s recent approval of a Subclass 482 Nomination, in relation to the nominee;
·Evidence of the skills and experience of the nominee.
The applicant’s representative also provided a written submission to the Tribunal. The submission provides a focused response to the concerns set out by the delegate in the decision record, as well as addresses the relevant requirements for the approval of the nomination.
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 has had regard to the information on the Department’s file as to the nomination, and is satisfied that these requirements are met. The application for approval was made on the approved form and was accompanied by the prescribed fee. The relevant s.245AR(1) certification was also provided in the application form.
The Tribunal is further satisfied that the nomination application identified a need for the applicant to employ a paid employee (Mr Giovanni Paterniti) to work in the nominated position of Café or Restaurant Manager (ANZSCO 141111), under its direct control.
Accordingly, the requirement in r.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.
Having considered the material before it, including the nominator’s financial records and business registration records, the Tribunal is satisfied that the nominator is actively and lawfully operating a business in Australia and directly operates that business.
Accordingly, the requirement in r.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.
There is no evidence before the Tribunal to indicate that the applicant is involved in labour hire activities. The Tribunal is satisfied that the employment contract and organisational chart confirm that the nominee will work in the applicant’s direct employ.
Accordingly, the Tribunal finds that the position is not related to labour-hire and that the requirement in r.5.19(4)(c) is met.
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 applicant has provided information and updated financial reports to the Tribunal that indicate the applicant has the financial capacity to employ the nominee at the specified salary, and the Tribunal accepts this evidence.
It is now almost four years since the delegate’s decision, and documents provided by the applicant show that the nominee has continued to be employed in the nominated position.
The Tribunal has also had regard to the terms and conditions of employment as set out in the updated employment contract, signed by the applicant and nominee on 17 June 2021. The information indicates that the nominee will be employed as Café or Restaurant Manager on a full-time basis for at least two years with a base salary of $60,999 plus superannuation. There is nothing in the contract that expressly excludes the possibility of extending the employment period.
Having regard to the totality of the evidence before it, the Tribunal is satisfied that the applicant has the financial capacity to provide the nominee with employment in the nominated position for at least two years full time and that the terms and conditions of that employment do not exclude the possibility of an extension.
Accordingly, the requirement in r.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 has had regard to the terms and conditions of employment as set out in the updated employment contract. The contract provides for the nominee’s entitlements and indicates that the base salary will be $60,999 plus superannuation, for a 38-hour week. The Tribunal is satisfied that the nominee is being, and will continue to be, paid in accordance with the terms of the employment contract, and that the employment contract reflects current employment laws.
The Tribunal has also considered payscale.com.au information provided by the applicant, indicating that the current annual salary for a Café or Restaurant Manager in Western Australia ranges from $51,000 to $73,000 per annum.
On the basis of the information before it, the Tribunal is satisfied that the base salary of the nominee is within the appropriate range of that normally paid to an experienced Café or Restaurant Manager working in Western Australia. The Tribunal is accordingly satisfied that the terms and conditions applicable to the nominated position will be no less favourable than those that would be provided to an Australian citizen or permanent resident performing equivalent work in the same workplace at the same location.
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 is not aware of any adverse information known to Immigration about the nominator or 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.
There is no evidence before the Tribunal to suggest that the applicant does not have a satisfactory record of compliance with workplace relation laws.
Accordingly, the requirements of r.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 and those relevant to this matter are as follows:
·the position and nominator’s business is located in regional Australia, there is a genuine need for the paid position under the nominator’s direct control which cannot be filled by a locally resident Australian citizen or permanent resident, the tasks of the position correspond to those of an occupation specified in the relevant legislative instrument, the occupation is applicable to the proposed employee in accordance with the specification of the occupation and that a regional certifying body has advised the Minister about certain matters relating to the position.
Location of the position and the business
The first consideration under r.5.19(4)(h)(ii) is whether the position is located in regional Australia. Regulation 5.19(16) provides that ‘regional Australia’ is defined by the legislative instrument.
In this case, the position is located in Mandurah, Western Australia, 6210, and at the time of application, this location/postcode was considered regional Australia, as per Schedule 2 of IMMI 17/059. Accordingly, the Tribunal finds that the requirements of sub-paragraph 5.19(4)(h)(ii)(A) and (E) are met.
Genuine need for the paid position, which cannot be filled by an Australian citizen or an Australian permanent resident
Subparagraph 5.19(4)(h)(ii)(B) requires the Tribunal to be satisfied that there is a genuine need for the applicant, as the nominator, to employ a paid employee to work in the position under the nominator’s direct control.
In considering this issue, the Tribunal has taken into account the information provided to the Tribunal regarding the nature of the business and the explanation as to why there is a genuine need for a paid Restaurant Manager in the business. In particular, it takes into account the location of the business and the service it provides.
The Tribunal has had regard to the evidence provided by the applicant describing the need for the business to employ a paid employee to work in the position under the nominator’s direct control. The evidence indicates that the applicant business was established in 2002 and is a family-owned Italian restaurant, operating 7 days per week for lunch, dinner, events and functions. Directors, Mrs Rosa Messineo, Mr Damien Messineo and Mr Julian Messineo, describe in written statements to the Tribunal that the applicant business requires a Restaurant Manager to consistently oversee operations, including ensuring an efficient and safe environment for staff and a trusted venue for patrons. It is submitted that while family members previously shared the duties and responsibilities of the nominated position, these family members are no longer actively involved on a day-to-day basis within the business, because they have either retired, suffer health issues, or live too far away from the business premises. However, the nominated position, it is submitted, remains integral to the success of the applicant business. The Tribunal has considered the evidence before it and is satisfied that a Restaurant Manager is identifiably and justifiably needed in the applicant business.
The Tribunal has also had regard to, and accepts, the evidence regarding the applicant’s efforts to find a suitably qualified and experienced staff member to fill the nominated position, on a long-term basis. The evidence before the Tribunal indicates that the role was advertised, and applicants were deemed unsuitable before Mr Paterniti was offered the position. The Tribunal acknowledges information before it that the applicant has taken the position to the local labour market again, by advertising in 2019, with no success. The Tribunal also notes that, relevantly, since this nomination was refused, the applicant has been successful in applying for approval of a nomination for a Temporary Skill Shortage visa (Subclass 482) in relation to Mr Paterniti.
The Tribunal also takes into account the opinion of the regional certifying body, which it notes to be the Government of Western Australia, advising the Minister among other matters that the nominated position cannot be filled by an Australian citizen or permanent resident living in the same local area as the nominated position.
The Tribunal is satisfied that the applicant has demonstrated a genuine need for a paid position under its direct control and that it cannot be filled by a local resident. Accordingly, r.5.19(4)(h)(ii)(B) and (C) are met.
Tasks of the position
The tasks of the nominated position must correspond to those of an occupation specified in the relevant legislative instrument.
In considering this requirement, the delegate was not satisfied that the nominee would have the level of responsibility and decision-making power for the nominated position, and considered the majority of the tasks to be performed in the role to be more akin to a Retail Supervisor, at a lower skill level.
As to whether the tasks for the particular position nominated by the applicant corresponds with the occupation of Café or Restaurant Manager, the Tribunal has had regard to the material provided in support of the review application, including evidence that was not previously available to the delegate at the time of decision.
ANZSCO sets out that Café or Restaurant Manager organises and controls the operations of cafes, restaurants and related establishments to provide dining and catering services, at Skill Level 2, requiring an AQF Associate Degree, Advanced Diploma or Diploma or at least three years of relevant experience. The following tasks are described:
·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
In written submissions, the applicant has sought to establish that the nominee is undertaking the tasks of the nominated position and that he has independent and overarching responsibility for higher level decision making associated with the role. Within the written submissions there are references between tasks associated with the Café or Restaurant Manager occupation and particular key performance criteria from the applicant’s job description documentation, which the Tribunal found to be persuasive. The material reflects that the hours of operation of the restaurant require a person with experience and independence in the nominated position, to ensure growth and stability of the business and satisfaction of staff and patrons. It is submitted that the nominee is primarily responsible for managing the day-to-day operations of the restaurant.
The Tribunal has given careful consideration to the evidence before it and is persuaded that the nominated position has a great deal of managerial responsibility and performs an important role in the applicant business, at a skill level that is aligned with the ANZSCO description of a Café or Restaurant Manager.
The Tribunal has before it information about the nominee’s qualifications and experience working in the nominated position, both for the applicant as well as overseas, as evidence of meeting the skill requirements. The Tribunal accepts that the nominee has the relevant experience to undertake the nominated position.

The Tribunal has considered the totality of the evidence before it, including written submissions and documentation and evidence relating to the nature of the business, and is satisfied that the majority of the nominee’s tasks are consistent with the higher-level tasks associated with the nominated position of Café or Restaurant Manager at Skill Level 2.
Accordingly, the requirements of r.5.19(4)(h)(ii)(D) of the Regulations are met.
Regional Certification
The Tribunal has considered the Form 1404 Regional Sponsored Migration Scheme – Regional Certifying Body Advice, issued on 31 October 2017 by Skilled Migration WA, Western Australian Department of Training and Workforce Development.
On the basis of the advice set out in the Form 1404 Regional Sponsored Migration Scheme – Regional Certifying Body Advice provided, the Tribunal is satisfied that the regional certifying body has advised the Minister about the matters set out in r.5.19(4)(e) and r.5.19(4)(h)(ii)(B) and (C) of the Regulations. The regional certifying body states that:
- There is a need for a paid employee in the nominated position within the business activities of the nominating employer;
- The nominated position cannot be filled by an Australian citizen or an Australian permanent resident who is living in the same local area as the nominated position; and
- The terms and conditions of employment that are applicable to the nominated position will be no less favourable than the terms and conditions that are or would be provided to an Australian citizen or Australian permanent resident for performing the equivalent work in the same workplace at the same location.
Consistent with the decision of the Federal Circuit Court of Australia in Bharaj Construction Pty Ltd v MIBP [2016] FCCA 902, certification by a regional certifying body is not sufficient or determinative in relation to whether the nominator meets r.5.19(4)(e) , r.5.19(4)(h)(ii)(B) and r.5.19(4)(h)(ii)(C) of the Regulations. Accordingly, the Tribunal notes that, whilst having regard to the advice provided by the regional certifying body, it has reached its own conclusions about the matters the subject of the regional certifying body’s advice.
Having considered the Form 1404 provided, the Tribunal is satisfied that the requirements of r.5.19(4)(h)(ii)(F) are met by provision of the requisite Form 1404.
It follows that the Tribunal finds the applicant meets all the requirements of r.5.19(4)(h) of the Regulations.
Based on the findings above, the Tribunal is satisfied that the applicant meets the requirements of r.5.19 for approval of the nomination of the position in Australia.
DECISION
The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.
Nicola Findson
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 an identified person, as 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).

[2023] AATA 298

16 February 2023

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