MULPHA HOTEL PTY LTD (Migration)

MULPHA HOTEL PTY LTD (Migration) [2019] AATA 1206 (10 May 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mulpha Hotel Pty Ltd
CASE NUMBER:  1710021
DIBP REFERENCE(S):  BCC2016/3329945
MEMBER:Katie Malyon
DATE:10 May 2019
PLACE OF DECISION:  Sydney
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.
Statement made on 10 May 2019 at 4:02 pm

CATCHWORDS
MIGRATION – approval of nomination – Direct Entry Nomination stream – genuine position – Commis Chef Pastry – company’s relationship with parent company – evidence provided – decision under review set aside
LEGISLATION
Migration Act 1958, ss 65, 245AR(1), 359(2)
Migration Regulations 1994, Schedule 2, rr 1.13A, 1.13B, 5.19, 5.37(2)(a)
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 Immigration on 18 April 2017 to reject the application made by Mulpha Hotel Pty Ltd

ACN 070 662 627 (the Company) for approval of the nomination of a position in Australia under r.5.19 of the Migration Regulations 1994 (the Regulations).
The Company applied for approval on 7 October 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 (r.5.19(3)) stream; and, a Direct Entry nomination (r.5.19(4)) stream. If the application is made in accordance with r.5.19(2) of the Regulations and meets all 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) of the Regulations.
In this case, the Company 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 that the Company’s nomination did not satisfy r.5.19(4)(a)(ii) of the Regulations because no evidence was provided to the Department to demonstrate that there was a need for the Company to employ a paid employee – in this case, Nepalese national Mr Rajeeb Mahato - in the position of the Commis Chef Pastry under the Company’s direct control.
Mr Allan Renkema, the Company’s Executive General Manager of Human Resources, appeared before the Tribunal on 9 April 2019 to give evidence and present arguments. The Company was represented in relation to the review by its registered migration agent, who also attended the hearing.
Background
As explained by Mr Renkema, the Company is part of Mulpha Australia Ltd (Mulpha), a wholly owned subsidiary of Mulpha International Bhd.[1] Mulpha acquires, develops and manages a range of property and lifestyle investments including hotels, a hotel school, integrated residential and commercial developments, a car park as well as a winery and vineyard operations. Previously, the Company traded as Mulpha Hotel Pty Ltd T/A One&Only Hayman Island. Hayman Island is in the Whitsundays, off the Queensland coast near Airlie Beach, and has been recognised as Australia’s iconic and most awarded 5 star island resort.[2]
[1] Mulpha International Bhd is listed on the Main Market of Bursa Malaysia Securities Berhad and has shareholder's funds in excess of RM2.2 billion (A$757 million: >
However, in March 2017, Hayman Island was devastated by Cyclone Debbie. It forced the resort to close to guests in order to undergo a major reconstruction valued at $100 million. Whilst the cyclone closure temporarily affected the Company’s resort operations on Hayman Island, it continued to operate a staff village of 90 employees plus a contractor population in the order of 200 people. During the reconstruction phase, Company employees provided accommodation, food and beverages, security, engineering and maintenance operations in support of the re-construction phase and the contractors engaged to undertake the reconstruction work.
In July 2018, Mulpha announced that the Intercontinental Hotel Group (IHG) would not only continue managing both the InterContinental Sydney and the InterContinental Sanctuary Cove Resort owned by Mulpha but it would also rebrand and manage Hayman Island. Following re-construction work, Mulpha Hotel Pty Ltd T/A InterContinental, Hayman Island will open the resort to the public again on 1 July 2019.[3]
[3] >
The Tribunal wrote to the Company pursuant to s.359(2) of the Act on 13 November 2018 and again on 20 December 2018 inviting it to provide a range of information and documentation in support of the nomination application having regard to the passage of time since lodgement of the review application with the Tribunal. In response to the Tribunal’s invitations, the Company provided extensive documentation including, relevantly, the following:
·ASIC current and historical extract;
·Financial Reports for the Company for years ending 30 June 2016, 2017 and 2018;
·Business Activity Statements (BAS) for the period between 1 July 2017 to November 2018;
·audited Special Purpose Annual Financial Reports for Mulpha for the year ended 31 December 2016 and 2017;
·Company Tax Returns for Mulpha the years ended 31 December 2016 and 2017;
·a copy of the Off Shore Island Resort (Hayman Great Barrier Reef) Collective Workplace Agreement 2006 (the OSIRCA);
·copy of the Company’s signed contract dated 12 December 2018 offering employment to nominee Mr Mahato consistent with the OSIRCA;
·a signed Statement from Mr Renkema dated 11 December 2018 in relation to skills shortages on Hayman Island;
·copy of the PAYG Summary provided by the Company to all staff including Mr Mahato for the year ended 30 June 2018; and,
·evidence of recent labour market testing for a range of positions on Hayman Island including the nominated position of Commis Chef.
Hearing
During the hearing, the Tribunal discussed with Mr Renkema the need for the Company to demonstrate that it meets all of the requirements in r.5.19(4) of the Regulations for the nomination to be approved. It observed that, having reviewed documentation provided, it had some concerns in the role of IHG in the employment arrangement with the nominee, the absence of a position description from the contract of employment as well as the absence of certification from a Regional Certifying Body (RCB).
Mr Renkema confirmed that, notwithstanding the role of IHG in managing Hayman Island Resort, all employees working on the island work directly with the Company and are under the control of the Company, not IHG. He confirmed that IHG merely manages the resort consistent with its arrangements for other Mulpha resorts. Mr Renkema said he would provide a letter from the Company’s workplace relations solicitors confirming his understanding of the employment relationship in this regard.
In relation to certification from a RCB, the representative indicated that his most recent communication with the Queensland Chamber of Commerce and Industry (CCIQ) confirms that its certification would issue within the next 48 hours.
Documentation lodged after the hearing
Following the hearing, the Company’s representative forwarded a submission together with the following documentation:
·revenue charts prepared by Mulpha’s Finance Manager for the Company for the period from Cyclone Debbie in March 2017 to March 2019;
·copy of the job description in relation to the nominee’s position of Commis Chef signed by the nominee Mr Mahato and dated 11 April 2019;
·copy of the Management Agreement made 23 July 2018 between the Company and IHG in relation to management of the InterContinental, Hayman Island resort;
·a letter dated 9 April 2019 from Mr Paul Fraser, workplace relations specialist with Bell Partners Legal;
·an Organisation Chart of restaurants and bars operating on Hayman Island; and,
·signed Form 1404 Regional Sponsored Migration Scheme – Regional Certifying Body Advice dated 9 April 2019 issued by CCIQ
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 all the requirements for approval of the nomination under the Direct Entry nomination stream set out in r.5.19(4) of the Regulations, 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) of the Act. The application must also identify a need for the nominator to employ a paid employee to work in the position under their direct control.
Having regard to documentation in the Department’s file, the Tribunal is satisfied that the Company’s nomination application was made using the approved form and which contains the requisite certification in relation to s.245AR(1) of the Act. In accordance with r.5.37(2)(a) of the Regulations, there is no fee payable in respect of a nomination where the position is located in regional Australia. The Company has identified in the application form itself a need to employ a paid employee to work in the position of Commis Chef on Hayman Island under its direct control. The Tribunal’s assessment of the genuineness of this identified need and whether the position is under the direct control of the Company is discussed below at paras [44] – [51].
Accordingly, the requirement in r.5.19(4)(a) of the Regulations is met.
Nominator is actively and lawfully operating a business in Australia: r.5.19(4)(b)
Regulation 5.19(4)(b) requires that applicant is actively, lawfully and directly operating a business in Australia.
As a preliminary issue, the Tribunal has considered whether, having regard to the Management Agreement with IHG, the Company is operating the business of InterContinental, Hayman Island. Having reviewed the Management Agreement, the Tribunal is satisfied that IHG is paid a fee under the agreement to perform tasks as the Company’s agent for the period of the Management Agreement. Essentially, the Company has engaged with the IHG brand - this is exemplified in rebranding the resort as the InterContinental, Hayman Island - to have IHG manage the island as the Company’s agent. The Tribunal has also had regard to the letter from Bell Partners Legal which confirms that all employees on Hayman Island are employed by the Company and that this is the entity recognised as the employer in the 2 applicable collective agreements - including the OSIRCA - which govern the employment relationship of staff on the island. As noted by Bell Partners Legal, whilst the manager (IHG) may deal with employment and other related matters associated with the Company’s staff on Hayman Island, it does so for and on behalf of the Company consistent with the terms of the Management Agreement.
The Company has provided extensive documentation to confirm that it is actively and lawfully operating a business in Australia including Financial Reports for years ending 30 June 2016, 2017 and 2018 as well as BAS for the period between 1 July 2017 to November 2018. The Tribunal accepts that, as explained by Mr Renkema at the hearing, despite Cyclone Debbie forcing closure of Hayman Island to the public for nearly 2 years, the Company has continued to operate during reconstruction which has cost in excess of $100 million, most of which has been covered by insurance. During this phase, the Company’s 90 continuing employees have serviced a contractor population (mostly construction tradespeople) of up to 200 people as confirmed by the detailed sales report from the Finance Manager for the period March 2017 to March 2019. Mr Renkema said the Company’s InterContinental, Hayman Island resort is now expected to open to the public on 1 July 2019.
On the basis of evidence provided, the Tribunal is satisfied that the Company is actively, lawfully and directly operating a business in Australia.
Accordingly, the requirement in r.5.19(4)(b) of the Regulations 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 Tribunal has considered the terms of the Offer of Employment copy of the Company’s signed contract dated 12 December 2018 offering employment to nominee Mr Mahato consistent with the OSIRCA as well as the terms of the Management Agreement made 23 July 2018 between the Company and IHG in relation to management of the InterContinental, Hayman Island resort. The Tribunal also notes confirmation from employment lawyer Mr Peter Fraser, Managing Director of Bell Partners Legal, that it could not be said that Hayman Island staff are ’on-hired’ to the managing agent (that is, IHG) or that there is any ‘labour hire’ to IHG. He explains that it is usually a receiving entity which pays a fee to the hiring entity for use of staff: however, in this case, it is the Company paying IHG for its assistance in acting as its agent to manage the InterContinental, Hayman Island Resort.
The Tribunal is satisfied that the nominated position is a permanent full-time position within the Company’s business and that it does not involve the nominee being on-hired to any other entity.
Accordingly, the requirement in r.5.19(4)(c) of the Regulations 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 has had regard to the Offer of Employment dated 12 December 2018. The Tribunal is satisfied that the nominee will be employed on a permanent and full-time basis on terms that do not expressly exclude the possibility of an extension. The Tribunal has also had regard to the financial documentation provided and finds that the nominee will be employed in the nominated position on a full-time basis for at least 2 years.
Accordingly, the requirement in r.5.19(4)(d) of the Regulations is met.
No less favourable terms and condition 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 had regard to the OSIRCA and to the Offer of Employment dated 12 December 2018 which indicates that nominee Mr Mahato will, consistent with the OSIRCA, be paid $22.90 per hour plus superannuation. The OSIRCA applies to all staff on Hayman Island.
As the terms and conditions of employment are in accordance with the OSIRCA - which applies equally to any Australian employees of the Company - the Tribunal is satisfied that the terms and conditions of Mr Mahato’s employment will be no less favourable than those that would be provided to an Australian citizen or permanent resident performing equivalent work in the same work place at the same location.
Accordingly the requirements of r.5.19(4)(e) of the Regulations 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 r.1.13A and r.1.13B of the Regulations.
There is no evidence before the Tribunal to suggest that there is any adverse information known about the Company or a person associated with the Company.
Accordingly, the requirements of r.5.19(4)(f) of the Regulations 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.
There is no evidence before the Tribunal to suggest that the Company does not have a satisfactory record of compliance with workplace relations laws in Australia. Accordingly, the requirements of r.5.19(4)(g) of the Regulations are met.
Tasks of the position, located in regional Australia, genuine need for the position r.5.19(4)(h)(ii)
Regulation 5.19(4)(h) contains a number of alternative requirements. These are set out in full in the Attachment to this decision. As noted above, the delegate refused the Company’s nomination on the basis that the application failed to demonstrate there is a genuine need for the position of a Commis Chef in the business as required by r.5.19(4)(ii) of the Regulations.
The nominated position in this case is located in the Hayman Island (Queensland) where the postcode is 4801. Hayman Island is specified as ‘regional Australia’ in the written instrument in force at the time the nomination was lodged on 7 October 2016: IMMI 16/045.[4] Accordingly, r.5.19(4)(h)(ii) of the Regulations applies in this case. This requires that:
(a)the position and the nominator’s business is located in ‘regional Australia’;
(b)there is a genuine need to employ a paid employee under the nominator’s direct control;
(c)the position cannot be filled by an Australian citizen or permanent resident who is living in the same local area;
(d)the tasks of the position correspond to those of an occupation specified in the relevant legislative instrument;
(e)any additional applicability requirements for that occupation are met; and,
(f)a body specified by the Minister and located in the same State/Territory as the position has confirmed the matters as set out in r.5.19(4)(h)(ii)(F) of the Regulations.
Position is located in regional Australia: r.5.19(4)(h)(ii)(A) and r.5.19(4)(h)(ii)(E)
[4] The Tribunal notes that there is some uncertainty as to the applicable instrument given the most recent instrument, IMMI 18/037, repealed all previous instruments without any saving provisions and yet specifically states that it only applies to nomination applications made on or after 18 March 2018. In any event, for the purposes of this application, the current instrument and all of its predecessors specify the postcode locality of 4801 is ‘regional Australia’.
The nominated position of Commis Chef with the Company is located on Hayman Island QLD 4801.
Accordingly, the Tribunal is satisfied that the position and the business operated by the Company are located in regional Australia and the requirements in r.5.19(4)(h)(ii)(A) and r.5.19(4)(h)(ii)(E) of the Regulations are met.
Genuine need to employ a paid employee to work in the position under the nominator’s direct control: r.5.19(4)(h)(ii)(B)
The Tribunal has considered whether there is a genuine need for the Company to employ a paid employee to work as a Commis Chef at Hayman Island.
Initially, as indicated in the nomination application form lodged on 7 October 2016, the position title is Commis Chef Pastry. No documentation (such as a contract of employment with attached position description) was lodged with the Department at the time of lodgement of the nomination. In response to the Tribunal’s invitations to provide documentation prior to the hearing, the representative forwarded a job description for the position of Commis Chef on One&Only Hayman Island letterhead (the Company’s former trading name). Relevantly, the signed employment contract made between the Company and nominee Mr Mahato dated 12 December 2018 states that he will be employed as a Commis Chef consistent with the terms of the OSIRCA. The classification identified in the contract of employment under the OSIRCA is Cook (Tradesperson) Grade 3 - Level 5. In addition, a position description has been provided for the position of Commis Chef on InterContinental, Hayman Island Resort letterhead: it was signed by Mr Mahato on 11 April 2019.

Relevantly, the OSIRCA provides for 7 ‘indicative classification level descriptors’:
(A) Food and beverage kitchen stream
(B) Food and beverage service stream
(C) Guest services stream
(D) Administration services stream
(E)Recreation stream
(F) Technical services stream
(G) Employees not elsewhere defined.
Within the Food and Beverage Kitchen stream of the OSIRCA has 7 levels. The OSIRCA states that the position offered to Mr Mahato of Cook (Tradesperson) Grade 3 – Level 5 means “a Commis Chef or equivalent who has completed an apprenticeship or has passed the appropriate trade test and who is engaged in cooking, baking, pastry cooking or butchering duties”. It also states that “(i)ndicative job functions at this level include:
· working in various sections of the kitchens such as cold kitchen, butchering, main kitchen, banqueting under the direction of the Chef de Partie and Sous Chefs in the various sections.
· undertaking cooking, baking, pastry cooking or butchering duties without supervision”.
As noted above, evidence before the Tribunal confirms that effective 1 July 2018 the Company has traded as the InterContinental Hayman Island Resort. The Organisation Chart provided confirms that there are 6 units within the Kitchen department. There are 3 restaurants (Pacific, Amici/Aqua and BamBam), each of which is headed by a Chef De Cuisine. In addition, a separate unit headed by Sous Chef leads a team of 4 staff including the nominee Mr Mahato.
The Tribunal has considered the terms of the signed Offer of Employment made between the Company and Mr Mahato dated 12 December 2018 as well as the signed position description which was provided to the Tribunal after the hearing. The signed Position
Description of Commis Chef in respect of nominee Mr Mahato provides as follows:

POSITION DETAILS
Position                Commis Chef
Department           Culinary
Reports to             Chef de Cuisine, Sous Chef
Subordinates        1^st, 2^nd, 3^rd Year Apprentices, Unqualified Cook

Job Summary
He/she will be assigned to the tasks in accordance to (sic) the standard operating procedures as implemented by the Executive Chef. This will include the preparation and planning of dishes as well as the planning and development of menus as a member of the culinary team. You will work in a team environment with responsibility to your senior chefs as well as responsibility for the supervision and training of apprentices and unqualified cooks. He/she must ensure that proper hygiene and sanitation in the kitchen are followed and adequate stocks of supply in the buffet counters. He/she also must display efficient inter department coordination and be involved in training activities as required. He/she will be assigned to and show interest in displaying creativity in food displays with the Chef De Cuisine. He/she must ensure that the standard procedures are followed and performed at the highest level of service. He/she will communicate with the guests and share feedbacks (sic) with the Chef in charge and management.
Key Duties and Responsibilities
§ensure that the quality levels of kitchen production and presentation is maintained at the highest levels at all times
§prepare, season, and cook salads, soups, fish, meat, vegetables, deserts, bakery items, yeast products or other foods to the higher standard in accordance with menus
§supervise and train cooks and apprentices to prepare, season, and cook salads, soups, fish, meats, vegetables, deserts, or other foods
§collaborate with other: re-team members to plan and develop recipes and menus, taking into account such factors as seasonal availability of ingredients and the likely number of customer (sic) as well as costs
§check the quality of raw and cooked food products to ensure that standards are met
§check the quantity and quality of received products
§ensure storage of ingredients and foods is in accordance with food safety guidelines and established procedures
§ensures(sic) that all mise-en place is correctly prepared prior to commencing of (sic) service
§demonstrate excellent product knowledge of all food and special functions held at the resort
§ensure labelling of dates is labelled on products according to requirements
§ensure that equipment is cleaned, when necessary or according to their schedules
§involve (sic) in the coordination of special functions and events with the respective outlet chief
§ensure that a safe, hygienically fit working environment is maintained at all times and reports (sic) any concerns or faults immediately to the immediate supervisor
§exhibit an outstanding knowledge of the InterContinental, Hayman Island Resort
§ensure that the kitchen and working areas are thoroughly clean at all times
§present oneself in a way that enhances the overall guest experience, by adding life and energy into each outlet
§establish and maintain smooth personal and work relationships in the kitchen
§attend all training carried out by the Training Department
§perform any additional or special duties, as directed by a supervisor
§maintain their highest level of personal hygiene and grooming at all times as per standard
§practice proper telephone etiquette with colleagues and resort guests
§ensure that all tasks assigned by supervisors are completed, in a timely fashion
§ensure that all channels of communication are respected and information is disseminated to the correct receivers
§ensure excellent communication and working relationships with colleagues are maintain and contribute to the team spirit know and applies the resort’s Policies & Procedures including those for the emergency situations
§attend monthly communication meeting
§attend daily briefing prior to service
§ensure all fixed assets and equipment’s (sic) are well maintained
§demonstrate knowledge and interest in goals, and objectives
§ensure all activities are carried out honestly, ethically and within the parameters of the Australian law.
Having regard to the Organisational Chart provided - which indicates that there 46 positions in the Kitchen Department - as well as current ongoing reconstruction work in preparation for the imminent 1 July 2019 opening of the InterContinental Hayman Island Resort to the public, the Tribunal is satisfied the Company has identified a need for it to employ a paid employee to work full-time in the position of Commis Chef.
Accordingly, the requirements in r.5.19(4)(h)(ii)(B) of the Regulations are met.
Position cannot be filled by an Australian citizen/permanent resident living in same local area: r.5.19(4)(h)(ii)(C)
The Tribunal gives some weight to the RCB’s advice dated 9 April 2019 that the Company has found the major difficulty in employing local staff for its operations on Hayman Island is due to the lack of skilled and experienced local staff willing to commit to remote island life. The RCB advice indicates that the Company has engaged in a robust recruitment drive in anticipation for the reopening.
Prior to the hearing, the Company provided an overview of recruitment efforts made in anticipation of its re-opening planned for early to mid-2019, now scheduled for 1 July 2019. The period of advertising formally began on 13 December 2018 and continues. Information relevant to this activity from 15 November 2018 to 9 April 2019 has been provided to the Tribunal. Advertisements for the position of Commis Chef have been placed with seek.com.au, careers.ihg.com as well as adzuna. In addition, IHG has also undertaken nationwide recruitment across a range of Job Fairs in Sydney, Melbourne and Adelaide.
The Organization Chart provided to Tribunal indicates that there 46 positions in the Kitchen Department of which 15 are currently being advertised. The Tribunal notes the nominated position of Commis Chef is, and has been, advertised alongside positions for Stewards, Cooks, Demi Chefs, Chef de Parties, Chef de Cuisines and Executive Sous Chefs. In response to this recruitment activity, 296 applications have been received to date including 47 for the role of Commis Chef. As a result, 2 Australian permanent residents and citizens have been offered the position of Commis Chef along with 8 foreign nationals who already have work rights. Other Australian permanent residents and citizens who applied for the job were not offered a position due either to their technical skills and capabilities not being at the level required for the role or they were either unable, or unwilling, to relocate to Hayman Island.
In his Statement in relation to skill shortages on Hayman Island provided to the Tribunal provide prior to the hearing and, as echoed in his oral evidence at the hearing, Mr Renkema confirms that Mulpha and the Company have needed to rely on a range of various programs to sustain its recruitment and engagement of skilled and semi-skilled workers. Such programs include the Pacific Labour Scheme, the Subclass 482 Temporary Skilled Shortage scheme as well as the Subclass 187 RSMS scheme (in relation to which this nomination is relevant). He explained that, when fully operational, the Company maintains a workforce of 300 - 400 staff at its peak but can have up to 100 positions vacant at any point in time.
Mr Renkema also notes that, through its access to the Pacific Microstates – Northern Australia Worker Pilot program facilitated by the Commonwealth Department of Employment under the Subclass 403 visa scheme, the Company has been able to significantly reduce its reliance on high cost, high turnover labour-hire providers in lower-level housekeeping, laundry and stewarding roles. He adds that a key criterion for continued access to this program is to satisfy the Department of Employment of the Company’s robust labour market testing to demonstrate it has genuinely tested the Australian labour market for a range of positions. Such positions include Commis Chef, Housekeeper, Steward, Food and Beverage Attendants as well as Trade Assistants. To date, 100% of all recruitment plans submitted to the Department of employment have been approved for these occupations.
Based on evidence provided, the Tribunal is satisfied the nominated position of Commis Chef cannot be filled by an Australian citizen or permanent resident living in same local area. Accordingly, the requirements of r.5.19(4)(h)(ii)(C) of the Regulations are met.
Tasks to be performed correspond to the task of an ANZSCO Skill Level 1, 2 or 3: r.5.19(4)(h)(ii)(D)
Documentation provided to the Tribunal includes an Offer of Employment dated 12 December 2018 and a detailed job description. By way of overview, the tasks of the nominated position require a Commis Chef working for the Company on Hayman Island to prepare and cook food including bakery items, supervise and train cooks and apprentices train, collaborate with team members in the day-to-day: operations of that section or outlet whilst maintaining a clean and safe work area. Further details are set out above at para [49].
The Company has indicated that it views the tasks of the nominated position most closely correspond to the occupation of Chef ANZSCO 351311. The Tribunal notes that, by way of summary, ANZSCO states Chefs plan and organise the preparation and cooking of food in dining and catering establishments. As set out in ANZSCO, the tasks of the Unit Group 3513 Chefs include:
·planning menus, estimating food and labour costs, and ordering food supplies
·monitoring quality of dishes that all stages of preparation and presentation
·discussing food preparation issues with Managers, Dieticians and kitchen and waiting staff
·demonstrating techniques and advising on cooking procedures
·preparing and cooking food
·explaining and enforcing hygiene regulations
·may select and train staff
·may freeze and preserve foods.
The specialisations identified in ANZSCO for the occupation of Chef ANZSCO 351311 are the nominated occupation of Commis Chef as well as Chef de Partie, Demi Chef, Second Chef and Sous Chef.
Based on evidence provided and having regard to the tasks of a Chef as set out in ANZSCO, the Tribunal is satisfied that the tasks of the nominated position of Commis Chef with the Company correspond to the occupation of Chef ANZSCO 351311. As noted above, this is a Skill Level 2 occupation as specified in the ANZSCO.
Accordingly, the requirements of r.5.19(4)(h)(ii)(D) of the Regulations are met.
The occupation is applicable to the person identified in r.5.19(4)(a)(ii): r.5.19(4)(h)(ii)(DA)
As evidenced by documentation accompanying nominee Mr Mahato’s Subclass 187 visa application, he holds a Certificate IV in Patisserie from the Adelaide College of Technical Education completed in June 2016 and a Bachelor of Acts majoring in Hospitality Management from Edinburgh Napier University in Scotland completed in September 2011. In addition, the representative notes that Mr Mahato has over 3 years’ work experience as a Chef in India as well as over 3½ years work experience as a Chef in Australia.
Accordingly, the requirements of r.5.19(4)(h)(ii)(DA) of the Regulations are met.
Regional certifying body advice about matters specified in r.5.19(4)(e), r.5.19(4)(ii)(B) and r.5.19(4)(ii)(C): r.5.19(4)(h)(ii)(F)
On the basis of the Form 1404 Regional Sponsored Migration Scheme – Regional Certifying Body Advice dated 9 April 2019 provided, the Tribunal is satisfied that a specified RCB located in Queensland has advised the Minister about the matters set out in in r.5.19(4)(e) and r.5.19(4)(h)(ii)(B) & (C) of the Regulations. The RCB’s Form 1404 has been issued by CCIQ based in Mackay.
Consistent with the decision of the Federal Circuit Court of Australia in Bharaj Construction Pty Ltd v MIBP (No. 3) [2019] FCCA 31, certification by a RCB is not sufficient or determinative in relation to whether the nominator meets r.5.19(4)(e), r.5.19(4)(ii)(B) and r.5.19(4)(ii)(C) of the Regulations. Accordingly, the Tribunal notes that, whilst having regard to the advice provided by the RCB, it has reached its own conclusions about the matters the subject of the RCB’s advice for the reasons set out above.
Having considered the Form 1404 provided, the Tribunal is satisfied that the requirements of r.5.19(4)(h)(ii)(F) of the Regulations are met.
Summary
It follows that the Tribunal finds that the Company meets all of the requirements of r.5.19(4)(h)(ii) of the Regulations.
Conclusion
Based on the findings above, the Tribunal is satisfied that the Company meets the cumulative requirements of r.5.19(4) of the Regulations 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.
Katie Malyon

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).
oOOo

.com.au/news/2018/09/18/hayman-island-intercontinental-hotel-opening-july-2019-and-appoints-mark-eletr

[2019] AATA 1206

10 May 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Statutory Construction

Procedural Fairness

Remedies