MK Jess Pty Ltd (Migration)

[2022] AATA 2066

MK Jess Pty Ltd (Migration) [2022] AATA 2066 (10 May 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  MK Jess Pty Ltd

REPRESENTATIVE:  Mr John Kotsifas (MARN: 0323893)

CASE NUMBER:  1833022

HOME AFFAIRS REFERENCE(S):          BCC2018/708885

MEMBER:Danielle Galvin

DATE:10 May 2022

PLACE OF DECISION:  Melbourne

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

Statement made on 10 May 2022 at 3:17pm

CATCHWORDS
MIGRATION–nomination – Direct Entry stream – Hotel or Motel Manager – Nominator is actively and lawfully operating a business in Australia –genuine need to employ a paid employee to work in the position under the nominator’s direct control – no adverse information –– no less favourable terms and condition of employment – decision under review set aside

LEGISLATION

Migration Act 1958, ss 65, 140GB, 245AR
Migration Regulations 1994, rr 1.13, 5.19

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 22 October 2018 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).

2. The applicant, MK JESS PTY LTD, applied for approval on 12 February 2018. The nominee is named as Khurshid Alan in the role of Hotel or Motel Manager (ANZSCO 141311).

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 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).

4. In this case, the applicant has applied for approval of a nomination, seeking to satisfy the criteria in the Direct Entry nomination stream.

5. The delegate refused the application on the basis the applicant’s nomination did not satisfy reg 5.19(4)(a)(ii) of the Regulations because, based on the information before them, the applicant had failed to identify a need to employ an identified person as a paid employee, to work in the position under the nominator’s direct control and that the position would be full time.

6. The delegate had access to the following documents:

   ·The application for Regional Sponsored Migration Scheme-visa subclass 187-direct entry by the applicant to work at the Albion Motel Hotel as Motel Manager. The application states that the Regional Certifying Body has not been certified. The salary proposed is $55,000. The application claims that there are 6 Australian employees, 2 foreign employees and 2 others;

   ·Genuine position statement signed by the applicant’s director, Tanjil Ahmed, stating that the Albion Motel Hotel is located in Castlemaine. The job description states that the main job responsibilities are

   -    Planning and coordinating operations day to day

   -    Manage and monitor stock levels

   -    Deal with customer issues such as queries and complaints

   -    Prepare monthly financial reporting for owners and stakeholders

   -    Ensure the monthly financial outlooks for rooms, food and beverage, admin and general, on target and accurate

   -    Recruit, train, supervise and manage and motivate teams to increase sales an ensure efficiency

   -    Fully account for cash control and customer service for the store

   -    Account for all operations criteria including food, rosters, cash handling

   -    Direct and oversee reservation, reception, room service and housekeeping activities

   -    Ensure all team members comply with food safety regulations, policies and standards

   -    Ensure all team members comply with operation safety such as cleanliness, putting appropriate signs when store floor is wet, keeping the store floor neat and dry at all times

   -    Ensure all team members comply with occupational health and safety regulations

   -    Collect customer feedback and address issues with the management, and provide suggestions to improve the operation of the business

   -    Complete week end paper work relating to matters such as sales, rosters and submitting to the management

   -    Updating the management with stock levels and estimating the operational budget of the store per week/per month

   -    Designing and implementing advertisement and marketing strategies for the business

   -    Act honestly and ethically to deal with product, money, staff and customers

   -    May provide guests with local tourism information, and arrange tours and transportation

   In relation to the claimed need for a paid employee it is claimed that the business operates 7 days a week and the previous person in the position had left and the nominee had the right qualifications (diploma of Hospitality management, bachelors of Business Administration and a masters of business administration) to fill the role and has been working in the role since December 2016. It claims that the turnover of the business in 2017 was low $13,279 paid in salaries as in December 2016 the staff were casual and in the following year staff were paid $29,900. It suggests that this shows that the business is improving

   The Tribunal notes that this document also states that the business has been run under current ownership since December 2016. It claims that the business advertised in local papers but received “limited response” and when the business was taken over some staff did not stay. It claims that the nominee is the nephew of the applicant’s director.

   ·Organisational chart as at 1/2/18, showing under 2 directors (one of whom is the head chef and uncle of nominee) there is the nominee and under the nominee are, a casual restaurant manager, a casual bar employee, a casual maintenance employee and a casual housekeeper. The position of cook is vacant but under them are 2 casual kitchen hands.

   ·ABN Lookup and ASIC search for the applicant as at 12/2/18 showing the applicant holds the ABN for the Albion Motel Hotel

   ·Applicant’s draft financial statements FYE 2017 showing income as $89,384.55 and salaries as $13,276;

   ·Fairfax Media Publications P/L invoice dated for 4/11/17-4/11/17 (1 day) in Bendigo Advertiser ($150) and 4/10/17-4/10/17 (1 day) ($150) and extract from Bendigo Advisor 4/10/17 and 21/10/17

   ·Market research document attaching similar job advertisements and extract from Industry award;

   ·Employment contract between the applicant and nominee on a base salary of $55,000 listing duties undated but signed;

   ·Nominee’ resume 21/10/17-21/10/17;

   ·Summary of applicants for role claiming 5 applicants without dates or detail;

   ·Applicant’s BAS FOR Jul-Sep 2017 showing sales as $99,238 and salaries as $29,900;

   ·Form 1404 dated 7/3/18 claiming there is a need for a paid employee that cannot be filled by an Australian citizen and the terms and conditions are no less favourable.

7. On 16 December 2020 the Tribunal received the following from the agent for the applicant;

   ·     BAS for the applicant

   -  Jul-Sep 2019 showing sales as $81,298 and salaries as $18,832

   - Oct-Dec 2019 showing sales as $72,002 and salaries as $8501

   ·     Draft tax return of the nominee for FYE 2020 showing a gross payment for salary of $24,584 from the applicant and $35,821 for Melbourne Inner city services. This period is during the COVID-19 crisis when the business was not able to remain open;

   ·     Letter from the applicant to the Tribunal dated 16/12/20 stating that nominee’s income was less in 2020 due to Covid 19.

8. On 8 July 2021 the Tribunal wrote to the applicant at the address provided in the review application inviting them to provide updated and current information in support of the review application. A written response was required by 22 July 2021.

9. A response was provided on 22 July 2021. The following documents were attached :

   ·     Agent’s submissions that the application complies with the required criteria;

   ·     ASIC co extract as at 21/7/21;

   ·     ASIC business name search for the business showing applicant is the owner;

   ·     applicant’s liquor licence

   ·     applicant’s tax return for FYE 2020 showing income as $192636, salaries as $62969 and that the applicant suffered a loss of $23235;

   ·     BAS for the applicant

   - Jul-Sep 2020 showing sales as $9144 and salaries as $11275

   - Oct-Dec 2020 showing sales as $8049 and salaries as $9818

   ·     Applicants draft tax return FYE 2019 showing income as $407,847 and salaries as $105,323 (“sensitive when complete”);

   ·     Applicants draft tax return FYE 2018 showing income as $407393 and salaries as $129,407  (“sensitive when complete”);

   ·     Organisational chart showing under 1 director the nominee oversees a cook (who oversees a kitchen hand), 1 staff person, 2 housekeepers, 1 maintenance person

   ·      Employment contract dated and signed 23/1/20 and 19/7/21;

   ·     executive summary of the business;

   ·     letter to the Tribunal from the applicant’s director dated 16/12/20;

   ·     genuine position statement dated 19/7/21’

   ·     Nominee’s PAYG-

   -    FYE 2020 showing gross payments were $24,584

   -    FYE 2019 showing gross payments were $55080

   -    ATO assessment for nominee for FYE 2019 stating income as $54266

   -    ATO assessment for nominee for FYE 2018 stating income as $54572

   -     ATO assessment for nominee for FYE 2017 stating income as $23648

   -    Draft tax return FYE2020 showing 2 sources on income

   ·     Open letter from the applicants accountants, Safe Accountants, advising that supporting application and providing a summary of earnings.

10. On 14 March 2022 the applicant submitted the following documents:

    ·     An undated statement by Tanjil Ahmed stating that at the time that the nomination was made the business had been operating since 2/12/16 and that the nominee runs the business day to day which has been upgraded since his involvement and that COVID 19 had a negative impact on the business due to travel bans. He also states that as he operates a business else where he needs the nominee in place;

    ·     Partial ASIC extract for the applicant;

    ·     Open letter from the applicant’s accountants, Safe Accountants, dated 10/3/22 stating that the business is profitable and attaching draft tax returns for 2021 and BAS for Jul-Sep 2021, showing income as $66,390 and wages as $17,750 and Oct-Dec 2021 showing income as $73,800 and wages as $19,500;

    ·     Email dated 5/3/21 from Business Victoria to the applicant re Covid relief;

    ·     Organisational chart showing under the director is the nominee and under the nominee is a cook, a receptionist, a house keeper and maintenance and under the cook is a kitchen hand.

11. Mr Tangil Ahmed, the current sole director of the applicant appeared on its behalf, before the Tribunal on15 March 2022 to give evidence and present arguments. The nominee attended but did not give evidence.

12. The applicant was represented in relation to the review by Mr John Kotsifas.

13. At the hearing Mr Ahmed stated that he purchased the business from the previous director in December 2018 having become involved as a director of the company in 2017. The nominee came with the business and is the nephew of the previous director/owner. Mr Ahmed stated that he is not involved in the day to day activities of the applicant’s business and defers to the nominee for information as to how the business is going. He receives or instigates fortnightly conversations with the nominee who otherwise manages the business as Mr Ahmed is involved in another business elsewhere and relies on the nominee to manage the business in Castlemaine. Mr Ahmed was not involved in historic recruiting efforts as he was not yet the purchaser of the business.

14. He stated that the business suffered lengthy closures due to the COVID 19 lockdowns in 2020 and 2021 which is reflected in the business’ income. He stated that he received Government support and for the most part was able to pay the salary of the nominee. However, he stated that business is picking up now, that the COVID 19 restrictions have eased and anticipates the losses suffered will be remedied. Mr Ahmed expressed the difficulty faced in current recruitment in the area and further expressed the need to retain the nominee to run the business. The remaining staff are currently working on a casual basis on a needs be basis.

15. Mr Kotsifas submitted that the business is located at the historic and culturally significant Albion Hotel in Castlemaine and is frequented by tradesmen as their local hotel. Prior to COVID-A9 the business had improved its operations under the directorship of Mr Ahmed and will in time prove to be profitable again.

16. The Tribunal allowed the applicant until 5 April 2022 in which to provide any further documents upon which it relies and any further submissions to be made in writing.

17. On 5 April 2022 the Tribunal received the following documents from the applicant’s agent:

    ·Letter to the Tribunal dated 4/4/22 from Safe Accountants stating that in their view the business is more than able to meet its employment obligations for a minimum of 2 years and beyond. The accountants provided an explanation as to the impact of COVID-19 and the ATO’s available methods by which the small losses sustained can be managed. They attached ATO portal tax returns for 2019, 2020 and 2021 which confirmed that in 2020the applicant suffered a loss of $23235 described as a relatively small loss and of $1,738 in 2021;

    ·A statement made by Tanjil Ahmed dated 30 March 2022 stating that 4 advertisements were placed in the Bendigo advertiser for 1 week on 4/10/17, 21/10/17, 4/11/17 and 23/12/17 (copies of which were attached) and stating that as he was not the director at the time cannot comment on applications received and was advised by the previous director that few were received and as the nominee was already working there was deemed the most suitable. The reference to “teams” in the job description meant staff in the kitchen, housekeeping, reception, bar and maintenance;

    ·Stocktake, room allocations and roster extract;

    ·Hotel marketing extracts;

    ·Form 1404 dated 7/3/18 declaring that under r.5.19(4) there is a need for a paid employee in the nominated position of Hotel and Motel manager, the position cannot be filled by an Australian citizen or permanent resident living in the local area and the terms and conditions of employment are no less favourable;

    ·Accountant’s business projection;

    ·Updated duties list dated 30/3/22;

    ·Bundle of email exchanges between the nominee and director;

    ·PAYG for the nominee FYE 30/6/21 showing gross payments of $46,343, FYE 30/6/20 showing gross payments of $24584, FYE 30/6/19 showing gross payments of $55,000

18. 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

19. 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 application is compliant: reg 5.19(4)(a)

20. 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.

21. The Tribunal finds that the application was in the approved form and the relevant fee paid with the required certification under s.245AR(1). The application identified the nominee and that there is a need for the nominator to employ the named nominee as a paid employee to work under its direct control. Whilst there was a period in 2019-2020 where the nominee had 2 sources of income, the effects of the COVID 19 pandemic forced the closure of the business for a period and this was an unexpected interruption to the normal employment of the nominee.

22. 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)

23. Regulation 5.19(4)(b) requires that the applicant is actively, lawfully and directly operating a business in Australia. The Tribunal has no information before it to suggest that the business is not actively and lawfully operating in Australia and refers to the financial material submitted and letters from the accountants to show that it complies with this requirement. Further, the losses sustained during the COVID-19 period have been adequately explained  and the recovery projected by the accountants adds weight to the finding that the salary of the nominee can be paid by the applicant.

24. Accordingly, the requirement in reg 5.19(4)(b) is met.

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

25. 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 information before the Tribunal to suggest that business activities of the applicant involve labour hire.

26. Accordingly, the requirement in reg 5.19(4)(c) does not apply.

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

27. 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 submitted contract of employment, whilst undated refers to a full time position for at least 2 years which is renewable after 2 years

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

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

29. 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.

30. There is no information before the Tribunal to suggest that this is the case. The Form 1404 declares 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. In the absence of information to the contrary the requirements of reg 5.19(4)(e) are met.

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

31. 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.

32. There is no information before the Tribunal of adverse information known to the Department about the nominator or a person ‘associated with’ the nominator

33. Accordingly, the requirements of reg 5.19(4)(f) are met.

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

34. 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.

35. The Tribunal has no information before it of an unsatisfactory record of compliance with workplace relations laws in the locations in which it operates a business and employs staff.

1. 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)

2. 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.

3. The Tribunal finds the tasks will be performed in Australia and correspond to the tasks of an occupation specified in the relevant instrument given the information detailed in the position statement and the attached rosters and email exchanges with the director. Further the director’s explanation as to the need for the employment of the nominee, together with the Form 1404 add weight to the finding that there is a genuine need for the nominator to employ the person identified under reg 5.19(4)(a)(ii) as a paid employee, to work in the position under the nominator’s direct control. The form 1404 shows that the Regional Certifying body located in Victoria advised the Minister about matters in r.5.19(4)(e) and r.5.19(4)(h)(ii)(B) and (C). Further, the position is located in regional Australia, in Victoria. Mr Ahmed had explained that there had been difficulty in recruiting for the role and therefore the Tribunal is persuaded that the position cannot be filled by an Australian citizen or permanent resident living in the same local area.

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

5. 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

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

   Danielle Galvin
   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).