Naseeb Enterprises Pty Ltd (Migration)

Naseeb Enterprises Pty Ltd (Migration) [2022] AATA 3300 (26 September 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Naseeb Enterprises Pty Ltd
REPRESENTATIVE:  Mr Suraj Khatri (MARN: 0747797)
CASE NUMBER:  1917869
HOME AFFAIRS REFERENCE(S):          BCC2018/916648
MEMBER:Mary Sheargold
DATE:26 September 2022
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Statement made on 26 September 2022 at 3:52pm
CATCHWORDS
MIGRATION – application for approval of nomination of position – direct entry stream – café or restaurant manager – tasks of position – comparison of position description and ANZSCO descriptor – decision made without hearing necessary – decision under review set aside
LEGISLATION
Migration Act 1958 (Cth), ss 359(2), 360(2)(a)
Migration Regulations 1994 (Cth), r 5.19(4)(h)(ii)(D)
CASE
Bharaj Construction Pty Ltd v MIBP [2016] FCCA 902
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 18 June 2019 to reject the applicant’s application for approval of the nomination of a position in Australia under reg 5.19 of the Migration Regulations 1994 (Cth) (the Regulations).
The applicant applied for approval on 26 February 2018. The requirements for the approval of the nomination of a position in Australia are found in reg 5.19 of the Regulations which contains two alternative streams: a Temporary Residence Transition nomination stream (reg 5.19(3)) and a Direct Entry nomination stream (reg 5.19(4)). If the application is made in accordance with reg 5.19(2) and meets the requirements of either stream, then the application must be approved. If any of the requirements are not met then the application must be refused: reg 5.19(5).
In this case, the applicant has applied for approval of a nomination, seeking to satisfy the criteria in the Direct Entry nomination stream.
The delegate refused the application on the basis the applicant’s nomination did not satisfy reg 5.19(4)(h)(ii)(D) of the Regulations because the delegate was not satisfied that the tasks to be performed in the nominated position of Café or Restaurant Manager corresponded to the tasks for a Café or Restaurant Manager as specified at ANZSCO 141111.
In reaching its decision the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the visa 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.
For the following reasons, the Tribunal has decided to set aside the decision under review and substitute a decision approving the nomination.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant meets the requirements for approval of the nomination under the Direct Entry nomination stream set out in reg 5.19(4), which is extracted in the attachment to this decision. For the nomination to be approved, all the requirements must be met.
On 26 July 2022, the Tribunal wrote to the applicant pursuant to s.359(2) of the Act inviting the applicant to provide information that demonstrated that the business meets all of the requirements of the criteria in r.5.19(4) of the Regulations at the time of the Tribunal’s decision. A copy of r.5.19(4) was annexed to the letter. A response to the request for information was due by 9 August 2022.
On 9 August 2022, the following documents were uploaded onto the applicant’s Tribunal file:
·a current and historical company extract for Naseeb Enterprises Pty Ltd from the Australian Securities and Investments Commission (ASIC) dated 2 August 2022;
·copies of Business Activity Statements (BAS) for each quarter from 1 July 2019 to 31 March 2022;
·detailed financial statements for the applicant for the financial years ending on 30 June 2019, 2020 and 2021;
·a copy of the nominee’s most recent contract of employment; and
·an organisation chart for the applicant’s business.
The Tribunal has considered this evidence, as well as the documents previously provided (including a priority request lodged in November 2019) and the evidence contained in the Departmental file, in reaching its findings.
The application is compliant: reg 5.19(4)(a)
Regulation 5.19(4)(a) requires that the application for approval must be in the approved form, must be accompanied by the prescribed fee, and, where applicable, must include the required written certification relating to conduct that contravenes s 245AR(1). The application must also identify a need for the nominator to employ an identified person as a paid employee to work in the position under their direct control.
The Tribunal has reviewed the documentation in the Department’s file and is satisfied that the applicant’s nomination application was made on the approved internet form, and the relevant s.245AR(1) certification was also provided in the application form. Consistent 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 applicant has identified a need for a Restaurant Manager for its restaurant business located in Woodend, Victoria, under its direct control. The Tribunal has considered the statement made by Ashwin Singh, the director of Naseeb Enterprises Pty Ltd, made in October 2019 confirming that he is based in Sydney caring for his young family and is not a position to live or work in regional Victoria. Based on the evidence before it, the Tribunal is satisfied that the applicant has identified a need to employ a full time Restaurant Manager to work in its restaurant business.
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)
Regulation 5.19(4)(b) requires that the applicant is actively, lawfully and directly operating a business in Australia.
The Tribunal has reviewed the ASIC current and historical company extract provided by the applicant in relation to its business, as well as the detailed financial statements and BAS provided to the Tribunal in August.
Having considered the documents provided by the applicant to the Tribunal, the Tribunal is satisfied that the applicant is actively, lawfully and directly operating a business in Australia.
Accordingly, the requirement in reg 5.19(4)(b) is met.
Position is not labour-hire: reg 5.19(4)(c)
Regulation 5.19(4)(c) applies to nominators whose business activities include those relating to labour hire to an unrelated business. In these cases, the nominated position must be within the business activities of the nominator.
The Tribunal has considered the most recent employment contract between the applicant and the nominee executed on 12 July 2021 (the employment contract). The employment contract states that the nominee will be employed by the applicant to work in the position of Restaurant Manager at the applicant’s Indian cuisine restaurant, Sizzler Restobar, located at Shop 1&2, 80 High Street, Woodend, Victoria, 3442.
Based on the evidence before it, the Tribunal is satisfied that the nominated position of Restaurant Manager is a permanent, full time position within the applicant’s restaurant business and that it does not involve the nominee being on-hired to any unrelated business. Accordingly, the requirement in r.5.19(4)(c) does not apply.
Term of employment of the visa holder: reg 5.19(4)(d)
Regulation 5.19(4)(d) requires the nominee to be employed in the nominated position for at least 2 years full time, and the terms and conditions of that employment do not expressly exclude the possibility of an extension.
Clause 4 of the employment contract states that the nominee’s employment ‘will continue from the date of grant of your RSMS Subclass 187 visa and then will be valid for a period of at least 2 years. The employment will then be ongoing subject to mutual agreement’. The employment contract states that the nominee will be required to work 38 hours per week, with paid overtime if required. His salary is set at $75,000 per annum with superannuation paid at the superannuation guarantee levy rate. The Tribunal is satisfied that the nominee will be employed on a full time basis for at least 2 years on terms that do not expressly exclude the possibility of an extension.
The Tribunal has considered the detailed financial statements and BAS provided outlining the business’s current position. The restaurant’s revenue has been improving year on year, and the nominee’s salary has been incorporated into the outgoings since this application was made. It is clear to the Tribunal having considered this evidence that the business is well placed to continue to employ the nominee on a full time basis for at least another 2 years.
Having considered all the evidence before it, the Tribunal is satisfied that the nominee will be employed in the position of Restaurant Manager on a full-time basis for at least 2 years on terms that do not expressly exclude the possibility of an extension. Accordingly, the requirement in reg 5.19(4)(d) is met.
No less favourable terms and conditions of employment: reg 5.19(4)(e)
Regulation 5.19(4)(e) requires that the terms and conditions of employment applicable to the nominated position will be no less favourable than those that are, or would be, provided to an Australian citizen or permanent resident performing equivalent work in the same workplace at the same location.
The nominee’s salary is set at $75,000 per annum plus superannuation. This salary is well in excess of the minimum annualised salary rate set out that the nominee would be entitled to under the Restaurant Industry Award 2020 (MA000119) (the Award).
The Tribunal has considered the terms of the employment contract and finds that the provisions with respect to leave, notice, and termination are in accordance with the obligations in the Award and the minimum standards set out in the National Employment Standards and relevant workplace relations legislation.
Based on all the evidence before it, the Tribunal is satisfied that the terms and conditions applicable to the nominated position will be no less favourable than those that would be provided to an Australian citizen or permanent resident performing equivalent work in the same workplace at the same location.
Accordingly, the requirements of reg 5.19(4)(e) are met.
No adverse information known to Immigration: reg 5.19(4)(f)
Regulation 5.19(4)(f) requires that there is no adverse information known to Immigration about the nominator or person associated with the nominator; or it is reasonable to disregard any such information. For these purposes, ‘adverse information’ and ‘associated with’ have the meaning given in regs 1.13A and 1.13B.
There is no evidence before the Tribunal to suggest that there is any adverse information known about the applicant or its director.
Accordingly, the requirements of reg 5.19(4)(f) are met.
Satisfactory compliance with workplace relations laws: reg 5.19(4)(g)
Regulation 5.19(4)(g) requires that the applicant has a satisfactory record of compliance with the laws of the Commonwealth, and of each State or Territory in which the applicant operates a business and employs employees in the business, relating to workplace relations.
There is no evidence before the Tribunal to suggest that the applicant does not have a satisfactory record of compliance with workplace relations laws in Australia.
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)
Regulation 5.19(4)(h) contains a number of alternative requirements. The applicant’s application was made under the RSMS Direct Entry stream. Accordingly, the Tribunal has assessed the application against the criteria in r.5.19(4)(h)(ii) of the Regulations, as at the time of lodgement of the nomination application, which required that:
·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;
·the position cannot be filled by a locally resident Australian citizen or permanent resident who is living in the same local area as that place;
·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
·a regional certifying body has advised the Minister about certain matters relating to the position.
Position and nominator’s business is located in regional Australia: rr.5.19(4)(h)(ii)(A) and (E)
The first consideration under r.5.19(4)(h)(ii) is whether the position is located in regional Australia. Regulation 5.19(16) provides that “regional Australia” is defined by legislative instrument. The Tribunal has considered the current legislative instrument, IMMI 18/037, that specifies the postcodes classed as “regional Australia” in accordance with r.5.19(16). However, Schedule 3 to IMMI 18/037 states that it applies only to applications lodged on or after 18 March 2018. The Tribunal notes that IMMI 18/037 repealed the previous instrument, IMMI 17/059.
Given that neither the current instrument nor its predecessor can be relied upon, in order for the Tribunal to reach a finding in respect of whether the position is located in regional Australia, the Tribunal has considered the legislative instrument that applied at the time the applicant lodged the nomination application, IMMI 16/045. Schedule B of IMMI 16/045 states that postcodes from 3430 to 3649 form part of regional Australia.
Based on the evidence before it, the Tribunal is satisfied that the applicant’s business is located at Shops 1&2, 80 High Street, Woodend, 3442, and that the nominee is currently working in the nominated position at the applicant’s business in this location.
The Tribunal is therefore satisfied that the position and the business operated by the applicant are both located in regional Australia, and so the requirements in rr.5.19(4)(h)(ii)(A) and (E) are met.
Genuine need for the nominator to employ a paid employee to work in the position under the nominator’s direct control: r.5.19(4)(h)(ii)(B)
As set out above, the Tribunal accepts Mr Singh’s written statements that he is residing in Sydney where he cares for his young family, and that he is unable to work within the business himself. For these reasons, he set about recruiting a full time restaurant manager, and ultimately hired the nominee. The applicant has demonstrated a genuine need to employ a full time restaurant manager to work under his direct control.
The Tribunal is satisfied that the applicant has demonstrated a genuine need for it to employ a paid employee to work in the position of Café or Restaurant Manager under its direct control, and so the requirement in r.5.19(4)(h)(ii)(B) is met.
Position cannot be filled by an Australian citizen or an Australian permanent resident who is living in the same local area as that place: r.5.19(4)(h)(ii)(C)
The applicant has provided evidence regarding its genuine efforts to recruit Australian citizens or permanent residents to work in its business, including advertisements in local newspapers and the website gumtree.com.au. At the time of the Tribunal’s decision, the well-publicised skills shortage in the hospitality industry in the face of the Covid-19 pandemic continues to hamper businesses’ abilities to recruit and retain adequately trained staff. Even at the time this application was made, the evidence before the Department confirmed that no suitable Australian citizen or permanent resident was identified to take on the nominated position.
Based on the evidence provided, the Tribunal is satisfied that the position cannot be filled by an Australian citizen or an Australian permanent resident living in the same local area as the applicant’s business in Woodend, Victoria. Therefore, the requirement in r.5.19(4)(h)(ii)(C) is met.
Tasks to be performed in the position correspond to the tasks of an occupation specified in the relevant legislative instrument: r.5.19(4)(h)(ii)(D)
The applicable instrument specified for this purpose is IMMI 17/058. Clause 7 of the Instrument specified that as well as the occupation being listed in Schedule 1 of the Instrument, it must also be listed in ANZSCO and have an ANZSCO skill level of 1, 2 or 3.
The application is for a Café or Restaurant Manager, ANZSCO 141111, with a skill level of 2. This occupation is listed in Schedule 1 of the Instrument. The tasks and skill level for the ANZSCO descriptor for Café or Restaurant Manager, ANZSCO 141111, are set out below:
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; and
·may take reservations, greet guests and assist in taking orders.
Skill Level:
·ANSZCO Skill Level 2. 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).
·At least 3 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.
The position description provided to the Department set out the duties for the nominated position as:
·demonstrating accountability through leading by example and communicating effectively with employees;
·being an active role model of the standards and behaviors consistent with Sizzle Restobar’s culture and values;
·properly training and developing all team members, supervisors and assistant managers;
·establishing and maintaining commitment from team members, supervisors and assistant managers;
·developing, sharing knowledge and experience with team members, supervisors and assistant managers;
·providing constructive feedback on team member, supervisor and assistant manager performance reviews;
·attending to customers’ needs as the primary focus;
·welcoming every customer with a smile and being genuinely friendly and interested at all times;
·resolving any difficult customer enquiries promptly and with ease;
·frequently interacting with customers to measure and improve their satisfaction with their Sizzle Restobar experience;
·attracting and identifying talent when needed, including interviewing and hiring new team members;
·demonstrating a leadership style that is aligned with Sizzle Restobar’s culture and values;
·ensuring that employees are paid properly and receive appropriate benefits;
·writing rosters that meet the needs of the business so that a great customer experience is delivered while still achieving the business’s financial goals;
·constructing and maintaining P&L statements and budgets with regard to cost of goods and labor costs;
·implementing and practising accurate payroll procedures;
·using proper security and verification procedures when handling deposits and contents of safe;
·performing all required administrative duties on time;
·performing daily cleaning checks; and
·supervising store deliveries.

The Tribunal has considered whether the duties, responsibilities and skill set out in the job description correspond with the tasks of a Café or Restaurant Manager as set out in ANZSCO 141111. While the wording in the job description does not mirror the wording in ANSZCO 141111, the Tribunal is satisfied that, based on the evidence before it, the tasks expected to be performed by the nominee in the applicant’s business correspond to the tasks of an occupation at ANZSCO Skill Level 2.
Accordingly, the requirements of r.5.19(4)(h)(ii)(D) of the Regulations are met.
Regional certifying body advice about certain matters relating to the position: r.5.19(4)(h)(ii)(F)
The Tribunal has considered the Form 1404 RCB advice dated 18 July 2018, and notes that it was completed by a representative of Regional Development Victoria Bendigo. The Tribunal notes its earlier comments in relation to IMMI 18/037, which only applies in respect of nomination applications made on or after 18 March 2018, and notes that it has therefore applied the provisions in the instrument that applied at the time the applicant lodged the nomination application, being IMMI 16/045. Regional Development Victoria Bendigo is listed as a Regional Certifying Body in Schedule A of IMMI 16/045.
On the basis of the Form 1404 provided, the Tribunal is satisfied that the RCB has advised the Minister about the matters set out in r.5.19(4)(e) and r.5.19(4)(h)(ii)(B) and (C) of the Regulations. The RCB stated that:
a.there is a need for a paid employee in the nominated position within the business activities of the nominating employer;
b.the nominated position cannot be filled by an Australian citizen or an Australian permanent resident who is living in the same local area as the nominated position; and
c.the terms and conditions of employment that are applicable to the nominated position will be no less favourable that the terms and conditions that are or would be provided to an Australian citizen or permanent resident for performing equivalent work in the same workplace at the same location.
Consistent with the decision of the Federal Circuit Court of Australia in Bharaj Construction Pty Ltd v MIBP [2016] FCCA 902, certification by a RCB is not sufficient or determinative in relation to whether the nominator meets r.5.19(4)(e), r.5.19(4)(h)(ii)(B) and (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.
Having considered the Form 1404 provided, the Tribunal is satisfied that the requirements of r.5.19(4)(h)(ii)(F) are met by provision of the requisite Form 1404.
Summary
It follows that the Tribunal finds the applicant meets all the requirements of r.5.19(4)(h) of the Regulations.
Based on the findings above, the Tribunal is satisfied that the applicant meets the requirements of reg 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.
Mary Sheargold
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)       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).

[2022] AATA 3300

26 September 2022

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