Moro Rekhi Pty Ltd ATF Moro and Rekhi Unit Trust (Migration)

Moro Rekhi Pty Ltd ATF Moro and Rekhi Unit Trust (Migration) [2020] AATA 4737 (14 August 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Moro Rekhi Pty Ltd ATF Moro and Rekhi Unit Trust
CASE NUMBER:  1811605
HOME AFFAIRS REFERENCE(S):          BCC2016/3151841
MEMBER:Jane Bell
DATE:14 August 2020
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.
Statement made on 14 August 2020 at 4:00pm

CATCHWORDS
MIGRATION – nomination – Direct Entry nomination stream – genuine need for the nominator to employ a paid employee – Position located in regional Australia – actively and lawfully operating a business in Australia – nominee was employed in the nominated position in a full time capacity – financial capacity of the business to employ the nominee for at least 2 years full time – no less favourable terms and conditions of employment – decision under review set aside

LEGISLATION
Migration Act 1958, ss 245AR, 360
Migration Regulations 1994, rr 1.13, 5.19
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 3 April 2018 to reject the applicant’s application for approval of the nomination of a position in Australia under r.5.19 of the Migration Regulations 1994 (the Regulations).
The applicant applied for approval on 22 September 2016. The requirements for the approval of the nomination of a position in Australia are found in r.5.19 of the Regulations which contains two alternative streams: a Temporary Residence Transition nomination stream (r.5.19(3)) and a Direct Entry nomination stream (r.5.19(4)). If the application is made in accordance with r.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: r.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.
The delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19(4)(d)(i) of the Regulations because the evidence failed to demonstrate that the applicant had the financial capacity to meet all employment obligations in respect of the nominee on a full-time basis for at least the next 2 years.
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 s.360(2)(a) of the Act.
The applicant was represented in relation to the review by its registered migration agent.
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 r.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: r.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 a paid employee to work in the position under their direct control.
On the basis of information in the Department’s file, the Tribunal is satisfied that the nomination was made on the approved online form, that the prescribed fee was paid and that the relevant written certification has been provided as part of the application that it had not engaged in conduct that contravened s.245AR(1) of the Act.
The Tribunal is also satisfied on the evidence in the Department’s file that the application for approval identified a need to employ Mr Vikas Sharma as a paid employee, to work in the position under the nominator’s direct control.
There is documentary evidence that the nominee is working under the nominator’s direct control including an employment contract to work in the nominated position as a paid employee dated 21 March 2016 between the nominator and the nominee which is signed by the nominee and Mary Moro, a director, as well as an Organisational Chart showing the nominee reporting directly to Mary Moro. There is a letter dated 29 July 2020 from Mary Moro confirming that the employment contract is still current, has no end date and will continue for a minimum of 2 years from the date of the granting of Mr Vikas Sharma’s 187 visa.
Therefore, the Tribunal is satisfied that there is sufficient evidence that the nomination identifies a need for the nominator to employ the nominee, as a paid employee, to work in the position under the nominator’s direct control.
Accordingly, the requirement in r.5.19(4)(a) is met.
Nominator is actively and lawfully operating a business in Australia: r.5.19(4)(b)
Regulation 5.19(4)(b) requires that the applicant is actively, lawfully and directly operating a business in Australia.
The nominator, Moro Rekhi Pty Ltd as trustee for Moro and Rekhi Unit Trust, has been registered as a proprietary company and active since 12 August 2015 when it purchased the leasehold of an Irish pub which trades as Mac’s Hotel Kilmore. It is located at 59 Sydney Street, Kilmore 3764, Victoria. It is a country style pub with seating capacity for 55 seats in the inside dining area and 40 seats in the outside area. The Hotel was built in 1861 so is over 150 years old. It was tired and rundown when the nominator purchased the leasehold in 2015. The director, Mary Moro has cleaned and renovated it and turnover has increased each year since 2015.
The Tribunal has current information as evidence that the nominator is actively and lawfully operating a business in Australia and directly operates that business including:
·ASIC Historical and Current extract dated 30 January 2020 submitted by the applicant stating the business is registered and operating lawfully;
·ABN lookup extracted 30 January 2020 – business registered and active from 12 August 2015;
·Organisational chart which lists the nominator as a director;
·Profit & Loss Statements for the financial year ending 2017;
·Profit & Loss Statements for the financial year ending 2018;
·Profit & Loss Statements for the financial year ending 2019;
·Profit & Loss Statements for the financial year ending 2020;
·Trust Tax returns for the financial year ending 2016;
·Trust Tax returns for the financial years ending 2017;
·Trust Tax returns for the financial years ending 2018;

Business Activity Statements for:

January – March 2018;
April – June 2018;
July – September 2018;
October – December 2018;
January – March 2019;
April – June 2019; and
April – June 2020.

Accordingly, the requirement in r.5.19(4)(b) is met.
Position is not labour-hire: r.5.19(4)(c)
Regulation 5.19(4)(c) applies to nominators whose business activities include those relating to labour hire to an unrelated business. In these cases, the nominated position must be within the business activities of the nominator.
The nominator’s business is running an Irish pub which trades as Mac’s Hotel Kilmore. There is nothing in either the Department or Tribunal’s file to indicate that the nominator’s business activities relate to the hiring of labour for any unrelated business.
Therefore, the Tribunal is satisfied that the nominator’s business activities do not involve labour hire activities.
Accordingly, the requirement in r.5.19(4)(c) does not apply.
Term of employment of the visa holder: r.5.19(4)(d)
Regulation 5.19(4)(d) requires the nominee to be employed in the nominated position for at least 2 years full time, and the terms and conditions of that employment do not expressly exclude the possibility of an extension.
The Tribunal notes that the Department was not satisfied that this criterion was met, because the nominator had not demonstrated that it had the financial capacity to pay the nominee’s original salary plus 9.5% superannuation and had not demonstrated how it could provide 2 years of full time employment to the nominee in the nominated position. At the time of the Department’s review, the nominator had not provided sufficient financial information.
Mr Vikas Sharma has been employed full time with the nominator since signing the Employment Contract on 21 March 2016 and has worked continuously in the business in the same role since this date and still works in the business as evidenced by his PAYG Payment Summaries for 2017, 2018, 2019 and 2020, payslips for the nominee for August – December 2016, January – December 2017, January – December 2018, January – December 2019, and January 2020 showing weekly salary payments from the nominator to the nominee.
The Tribunal has before it a copy of the Employment Contract dated 21 March 2016 signed by the nominee and by Mary Moro in her capacity as a director stating the salary to be $55,000 plus 9.5% superannuation.
The Tribunal also has a copy of a Letter of Confirmation of Employment dated 29 July 2020 signed by Mary Moro confirming the nominee’s employment and stating that the contract is still current, has no end date and will continue for a minimum of a further 2 years from the date of the granting of the nominee’s permanent visa and is not subject to any express exclusion of the possibility of renewal.
The Tribunal also has a copy of a statement detailing the Position Description for the nominated position of Restaurant/Bistro Manager.
The Tribunal has considered evidence contained in the Department’s file together with recent additional documentary evidence provided by the nominator to the Tribunal regarding its financial capacity including:
·    the nominee’s Employment Contract dated 21 March 2016 which states that the nominee will be employed for a minimum of 4 years from the date of the nomination approval;
·    the nominee’s Letter of Confirmation of Employment dated 29 July 2020;
·    Position description;
·    Organisational chart;
·    Profit & Loss Statements for the financial year ending 2017;
·    Profit & Loss Statements for the financial year ending 2018;
·    Profit & Loss Statements for the financial year ending 2019;
·    Profit & Loss Statements for the financial year ending 2020;
·    Trust Tax returns for the financial year ending 2016;
·    Trust Tax returns for the financial year ending 2017;
·    Trust Tax returns for the financial year ending 2018;

·    Nominator’s Business Activity Statements for:

January – March 2018;
April – June 2018;
July – September 2018;
October – December 2018;
January – March 2019;
April – June 2019; and
April – June 2020.

·    Nominee’s PAYG statement for 2017;
·    Nominee’s PAYG statement for 2018;
·    Nominee’s PAYG statement for 2019;
·    Nominee’s PAYG statement for 2020;
·    Nominee’s payslips for August – December 2016, January –December 2017, January – December 2018, January – December 2019, and January 2020; and
·    Nominee’s Payroll for 2019.

After reviewing the above documents, particularly recent 2018, 2019 and 2020 Profit and Loss Statements and Balance Sheets, the Tribunal is satisfied that the business is profitable. The net profitability was $186,211 in 2018, $196,634 in 2019 and $110,000 in 2020 after all expenses had been paid including wages, superannuation and WorkCover. The Tribunal is further satisfied that the nominator’s wage payments clearly exceeded the nominee’s salary for the last 2 financial years as evidenced by the financial statements for the years ending 2018, 2019 and 2020 and the ATO BAS statements provided which is further evidence that the nominator has been paying the nominee’s full-time salary during his entire employment with the nominator.
Based on the above documentary evidence provided on behalf of the nominator, the Tribunal finds that the nominator remains financially capable of continuing to employ the nominee in his full-time position on a salary of $55,000 per annum plus 9.5% superannuation for at least 2 years.
Furthermore, the terms and conditions of the nominee’s employment do not and will not expressly exclude the possibility of extending the period of employment.
Accordingly, the requirement in r.5.19(4)(d) is met.
No less favourable terms and conditions of employment: r.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 evidence before it including the nominator’s Organisational Chart and is satisfied that there are no Australian citizens or permanent residents performing equivalent work as the nominee with the nominator.
The nominee’s Employment Contract dated 21 March 2016 provides for a salary of $55,000 per annum plus 9.5% superannuation. The Tribunal has information before it, including market salary rates for Café or Restaurant Managers and advertisements for comparable full-time jobs placed by other businesses as well as salary surveys. A Payscale salary survey states that the average salary for a Restaurant Manager in Australia is $55,812 as at 10 August 2020 and in Melbourne, Victoria is $58,124. Payscale does not give any information about Café or Restaurant Manager roles in Kilmore, Victoria. However, it states that an average salary for a Restaurant Manager in another regional town, Ballarat would be $50,000. The Seek website is advertising a Restaurant Manager role in Melbourne for $55,000. There are no comparable roles being advertised on Seek in rural areas. These salary surveys are inclusive of superannuation. The Tribunal is satisfied that the nominee’s salary is in accordance with contemporary market rates for a Café or Restaurant Manager in a similar location.
The Tribunal is satisfied that the nominee’s Employment Contract dated 21 March 2016 and the nominee’s Letter of Confirmation of Employment dated 29 July 2020 have standard provisions relating to annual and sick leave and other terms and conditions of employment that are consistent with those in the Fair Work Act 2009 (Cth) and the National Employment Standards.
Given the above, the Tribunal is satisfied that the terms and conditions applicable to the nominated position will be no less favourable than those that are/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 r.5.19(4)(e) are met.
No adverse information known to Immigration: r.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 rr.1.13A and 1.13B.
The Tribunal has reviewed the Department’s records and has found nothing to indicate that there is any adverse information known to the Department about the nominator or a person ‘associated with’ the nominator.
Accordingly, the requirements of r.5.19(4)(f) are met.
Satisfactory compliance with workplace relations laws: r.5.19(4)(g)
Regulation 5.19(4)(g) requires that the applicant has a satisfactory record of compliance with the laws of the Commonwealth, and of each State or Territory in which the applicant operates a business and employs employees in the business, relating to workplace relations.
The Tribunal has information from the Fair Work Ombudsman stating that there are no current records of investigations that have resulted in the application of an enforcement tool for the nominator.
There is nothing in the Department’s records to indicate that the nominator does not have a satisfactory record of compliance with workplace relations laws in the locations in which it operates a business and employs staff.
Accordingly, the requirements of r.5.19(4)(g) are met.
Tasks of the position, genuine need for the position and training requirements: r.5.19(4)(h)
Regulation 5.19(4)(h) contains a number of alternative requirements. These are set out in detail in the attachment to the decision but can be briefly summarised as requiring either that:
·the tasks to be performed in the position will be performed in Australia and correspond to those of an occupation specified by the Minister (see legislative instrument IMMI 16/059), the occupation is applicable to the proposed employee in accordance with any specifications made in that instrument, and specified training requirements are met; or
·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.
The applicant can choose to meet either r. 5.19(4)(h)(i) or r.5.19(4)(h)(ii) above.
The Tribunal notes that the applicant sought to satisfy the requirements of the second dot point, namely r.5.19(4)(h)(ii), at the time it made its nomination, on the basis that the position and the applicant’s business were located in a regional area.
The Tribunal has considered the criteria set out in r.5.19(4)(h)(ii) below. All of the provisions must be met.
Position located in regional Australia: r.5.19(4)(h)(ii)(A) and (E)
The Tribunal is satisfied that the nominated position and the applicant’s business are located in regional Australia at 59 Sydney Street, Kilmore, Victoria 3764 and that is the place specified in the nomination application.
Accordingly, the Tribunal finds that the nominated position and the business are located in regional Australia and therefore the requirements of r.5.19(4)(h)(ii)(A) and (E) are met.
Genuine need for the nominator to employ the person identified under r.5.19(4)(a)(ii) as a paid employee to work in the position under the nominator’s direct control: r.5.19(4)(h)(ii)(B)
To address the requirement that there is a genuine need for the paid position under the nominator’s direct control, the applicant provided documentary evidence to the Tribunal about the business and the growth of the business.
The nominator, Moro Rekhi Pty Ltd as trustee for Moro and Rekhi Unit Trust, purchased the leasehold of an Irish pub which trades as Mac’s Hotel Kilmore in August 2015. At the time of purchase, it was tired and rundown. The director, Mary Moro, cleaned and renovated it and turnover has increased each year since 2015 with the exception of a small decline in the financial year 2020 due to COVID 19 and the restrictions on tourists visiting regional areas.
The acquisition and renovation of the business resulted in Mac’s Hotel Kilmore experiencing growth and a shortage of staff. Consequently, the business required a Restaurant Manager to organise and control the operations of Mac’s Hotel Kilmore’s restaurant and bar.
The evidence of the nominator suggests that there is an ongoing need to employ the nominee as the business requires a Restaurant Manager to organise and control the day to day operations of the Hotel which is growing and busy given it is operating 7 days a week.

The Tribunal accepts evidence from the nominator that the position of Restaurant Manager is vital to the continued success of the Hotel. The Hotel currently employs 12 people ranging from the Head Chef to kitchen hands. The overseeing and managing of the staff members is a critical role in maintaining the growth of the business. The nominator is also keen to hold special promotions and increase the number of functions and events held in the Hotel which would be managed and controlled by the Restaurant Manager.
The nominator provided evidence that the nominee is very capable, well educated and has extensive knowledge and experience working as a Restaurant Manager. The nominee had relevant work experience and the confidence to manage the workload and expectations at a busy country Hotel. It was through a job advertisement that the nominee was interviewed and hired by the nominator. The nominator states that her business would suffer if she is unable to employ the nominee.
The Tribunal accepts the evidence that there is a general shortage of Restaurant Managers with the nominee’s skills and experience in regional Victoria and that Restaurant Managers are hard to attract to rural communities on a permanent basis.
Based on the evidence including the acquisition of the business, the Employment Contract to work in the nominated position as a paid employee dated 21 March 2016 signed by the nominator, Letter of Confirmation of Employment dated 29 July 2020 confirming that the position continues to exist and the Organisational Chart which shows that the nominee reports directly to the directors of the nominator, the Tribunal is satisfied that the applicant has a genuine need for the paid position, and that the nominee is working under the applicant’s direct control.
Accordingly, the requirements of r.5.19(4)(h)(ii)(B) are met.
The position cannot be filled by an Australian citizen or permanent resident who is living in the same local area: r. 5.19(4)(h)(ii)(C)
The Tribunal accepts evidence that in March 2016, the nominator interviewed the nominee for the position of Restaurant Manager and was very impressed. The nominator offered the nominee the position and an Employment Contract was signed on 21 March 2016. The nominator had advertised the job vacancy on various recruitment sites prior to interviewing the nominee and had not been able to find a suitable candidate from the local labour market for the position.
The Tribunal accepts evidence including copies of receipts and advertisements placed for a Restaurant Manager for the business with:
·Seek Limited online and evidence that the invoice was paid on 19 April 2016; and
·North Central Review (a local newspaper) and evidence that the invoice was paid on 22 April 2016.
The Tribunal accepts evidence that the advertisements with Seek cost $289.30. The advertisements were throughout Australia and the nominator received 5 applications. The Tribunal has received deidentified copies of the job applications and resumes and accepts that none of the 5 applicants were suitable due to “education not suitable”, “work experience not suitable”, “relevant experience was over a decade ago and not suitable education”, “not interested in relocating from Sydney for the salary offered” and “resume was very unusual and not relevant”.
Furthermore, the Tribunal accepts evidence that the advertisements placed with the North Central Review covered the Mitchell Shire and cost $97.17. Zero applications were received following this extensive advertising.
The job description in the advertisements is consistent with a Restaurant Manager role and the salary offered in the advertisements is market rate.
The nominator subsequently applied to the Shepparton Regional Certifying Body (RCB), Department of Economic Development Job, Transport & Resources at PO Box 1389, Shepparton Vic 3632, for a certificate that the nominated position could not be filled by an Australian employee. On 21 September 2016, the nominator received approval from the Shepparton RCB.
Based on the above evidence that there were no suitable candidates arising from the extensive advertising campaign and labour market testing undertaken by the nominator including the statement made by the nominator dated 22 May 2016 summarising the efforts the nominator made to fill the role with an Australian citizen or permanent resident and the fact that the nominator’s effort to employ a Restaurant Manager in the area was unsuccessful, together with the fact that the nominated position could not be filled by an Australian employee was certified by the Shepparton RCB on 21 September 2016, together with recent evidence that there has not been any change in the employment circumstances for Restaurant Managers in the regional area since 2016, then the Tribunal is satisfied that the position cannot be filled by an Australian citizen or permanent resident living in the same local area.
Accordingly, the requirements of r.5.19(4)(h)(ii)(C) are met.
The tasks to be performed in the position correspond to the tasks of an occupation specified by ANZSCO Skill Level 1, 2 or 3: r.5.19(4)(h)(ii)(D)
The nominated position duties, as listed by the nominator in the position description provided to the Tribunal are as follows:
Job Description
Primary Responsibility:
This position is responsible for the organising and controlling the operations of Mac’s Hotel Kilmore’ restaurant and bar. Your tasks will include but will not be limited to the following key responsibilities.
Key Responsibilities:
·Managing bar and bistro operations including the opening and closing of the venue
·Managing the ordering and purchasing of stock and supplies
·Managing the pricing of items according to the budget
·Observing liquor laws and other hotel regulations
·Maintaining the records of stock and the records of all financial transactions
·Ensuing dining facilities comply with health regulations and are clean, functional and of suitable appearance
·Planning menus in consultation with Chefs
·Planning and organizing special functions as well as promotional events
·Conferring with customers to assess their satisfaction with meals and service
·Demonstrate and reinforces excellent customer service to promote customer satisfaction
·Selecting, inducting, training, rostering and supervising waiting and kitchen staff, new and existing
·Supervising security arrangements
·Ensuing compliance with occupational health and security regulations
Skills and Qualifications Required:
·Diploma in Business/Management/Marketing or equivalent
·Preferably education in food production
·Ability to make effective business decisions without supervision
·An ability to effectively supervise and train staff/employees
Experience Required:
·Experience in hospitality sector
·Ability to make effective business decisions without supervision
·Experience hiring, training and managing of staff
The ANZSCO unit group description for Restaurant Managers is as follows:
CAFE OR RESTAURANT MANAGER - ANZSCO 141111
Description
Organises and controls the operations of a cafe, restaurant or related establishment to provide dining and catering services.
Fast Food Managers (Aus)/ Quick Service Restaurant Managers (NZ) are excluded from this occupation. Fast Food Managers (Aus) and Quick Service Restaurant Managers (NZ) are included in Occupation 142111 Retail Manager (General)
Skill Level
2
Alternative Titles
·     Food and Beverage Manager
·     Restaurateur
Specialisations
·     Bistro Manager
·     Canteen Manager
·     Caterer
·     Internet Cafe Manager
Skills Assessment Authority
VETASSESS
Caveats
Not eligible if:
Caveat 8
TSS, ENS - The position is in a limited service restaurant.
Group: 1411 Cafe and Restaurant Managers
Description
organise and control the operations of cafes, restaurants and related establishments to provide dining and catering services.
Tasks
·     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
Skill Level
Most occupations in this unit group have a level of skill commensurate with the qualifications and experience outlined below.
In Australia:
AQF Associate Degree, Advanced Diploma or Diploma (ANZSCO Skill Level 2)

In New Zealand:
NZ Register Diploma (ANZSCO Skill Level 2)

At least three years of relevant experience may substitute for the formal qualifications listed above. In some instances relevant experience and/or on-the-job training may be required in addition to the formal qualification.
Occupations in this Group
·     141111 Cafe or Restaurant Manager
Based on the evidence including the position description provided by the nominator to both the Tribunal and the Department, the Tribunal is satisfied that the tasks performed in the nominated position correspond to the tasks of the occupation specified in the ANZSCO occupation of a Restaurant Manager (ANZSCO 141111) and that it is a Skilled Level 2 occupation as per IMMI 17/058.
Accordingly, the requirements of r.5.19(4)(h)(ii)(D) are met.
The occupation is applicable to the person identified under subparagraph (a)(ii) in accordance with the specification of the occupation: r.5.19(4)(h)(ii)(DA)
The Tribunal is satisfied that the nominated occupation relates to the nominee specified in the nomination application. Furthermore, the Tribunal is satisfied that there are no additional specifications made in the relevant instrument with respect to the occupation to be performed in the position.
Accordingly, the requirements of r.5.19(4)(h)(ii)(DA) are met.
Regional Certifying Body advice about matters specified in r.5.19(4)(e) and r.5.19(4)(h)(ii)(B) & (C): r.5.19(4)(h)(ii)(F)
The Tribunal is satisfied by the certificate on the Tribunal’s file that the Shepparton Regional Certifying Body certified on 21 September 2016 that there was a need for a paid employee in the nominated position, that it could not be filled by an Australian citizen or permanent resident living in the same local area, and that the terms and conditions of employment for the nominated position were no less favourable than those that would be or were being provided to an Australian employee performing equivalent work in the same workplace at the same location and that there has not been any change in the employment circumstances for Restaurant Managers in the regional area since 2016.
Accordingly, the requirements of r.5.19(4)(h)(ii)(F) are met.
Accordingly, the requirements of r.5.19(4)(h) are met.
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.
Jane Bell
Member

ATTACHMENT - EXTRACTS FROM THE MIGRATION REGULATIONS 1994
5.19Approval of nominated positions (employer nomination)
…
(2)The application must:
(a)be made in accordance with approved form 1395…; and
(aa) include a written certification by the nominator stating whether or not the nominator has engaged in conduct, in relation to the nomination, that constitutes a contravention of subsection 245AR(1) of the Act; and
(b)be accompanied by the fee mentioned in regulation 5.37.
…
Direct Entry nomination
(4)The Minister must, in writing, approve a nomination if:
(a)the application for approval:
(i)       is made in accordance with subregulation (2); and
(ii)      identifies a need for the nominator to employ a paid employee to work in the position under the nominator’s direct control; and
(b)the nominator:
(i)       is actively and lawfully operating a business in Australia; and
(ii)      directly operates the business; and
(c)for a nominator whose business activities include activities relating to the hiring of labour to other unrelated businesses — the position is within the business activities of the nominator and not for hire to other unrelated businesses; and
(d)both of the following apply:
(i)       the employee will be employed on a full-time basis in the position for at least 2 years;
(ii)      the terms and conditions of the employee’s employment will not include an express exclusion of the possibility of extending the period of employment; and
(e)the terms and conditions of employment applicable to the position will be no less favourable than the terms and conditions that:
(i)       are provided; or
(ii)      would be provided;
to an Australian citizen or an Australian permanent resident for performing equivalent work in the same workplace at the same location; and
(f)either:
(i)       there is no adverse information known to Immigration about the nominator or a person associated with the nominator; or
(ii)      it is reasonable to disregard any adverse information known to Immigration about the nominator or a person associated with the nominator; and
(g)the nominator has a satisfactory record of compliance with the laws of the Commonwealth, and of each State or Territory in which the applicant operates a business and employs employees in the business, relating to workplace relations; and
(h)either:
(i)       both 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;
(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 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).

[2020] AATA 4737

14 August 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Statutory Construction

Procedural Fairness

Jurisdiction