Nick Huynh & Belinda Lam (Migration)

Nick Huynh & Belinda Lam (Migration) [2021] AATA 3334 (27 August 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Nick Huynh & Belinda Lam
CASE NUMBER:  1810968
HOME AFFAIRS REFERENCE:               BCC2016/2276655
MEMBER:Rosa Gagliardi
DATE:27 August 2021
PLACE OF DECISION:  Australian Capital Territory
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Statement made on 27 August 2021 at 2:14pm
CATCHWORDS
MIGRATION – application for approval of nomination of position – genuine need for position and tasks of position – café restaurant manager or retail supervisor – realistic and credible written and oral evidence – nominee’s qualification and experience – decision under review set aside
LEGISLATION
Migration Regulations 1994 (Cth), r 5.19(4)(h)(ii)(D)

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 4 April 2018 to reject the applicant’s application for approval of the nomination of a position in Australia under reg 5.19 of the Migration Regulations 1994 (Cth) (the Regulations).
The applicant applied for approval on 7 June 2016. 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 it was considered that the tasks to be performed in the position did not correspond to the tasks of an occupation specified by the Minister in an instrument in writing.
The applicant/nominator appeared before the Tribunal on 28 July 2021 to give evidence and present arguments. The Tribunal also received oral evidence from the nominee, Mr Luy Huynh.
The applicant was represented in relation to the review. The representative attended the Tribunal hearing.
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.
NICK HUYNH & BELINDA LAM, trading as Lido Café and Bar, lodged a Regional Employer Nomination (Permanent) (Class RN) nomination under the direct entry stream for the position of ‘Café Restaurant Manager’ (ANZSCO Code 141111). The nomination was lodged in favour of Mr Luy Huynh. Lido Café and bar is a licenced café/restaurant situated in Belconnen, Australian Capital Territory. ASIC records confirm that the company is registered and actively trading. The organisational chart provided at time of application indicated that the position reports to the two directors of the partnership and is responsible for eight staff.
At the time of application, the Tribunal notes that the delegate had limited information about the extent of the applicant’s role with the café located within a busy shopping mall and concluded, “I am of the view that the predominant tasks of the position are not those of an ANZSCO Skill Level 2 Café Restaurant Manager, rather they are more closely aligned with those of an ANZSCO Skill Level 4 retail supervisory position”.
At the time of decision, the parties have now provided extensive probative evidence both at hearing and by way of evidentiary material, to satisfy the Tribunal that the the applicant’s role is akin to that of Café Restaurant Manager as set out under ANZSCO Code 141111. The position is located in the Australian Capital Territory which is comprehensively a designated ‘regional area’ for the purposes of the regulations.
In a letter to the Tribunal regarding the genuine need for the position, the nominator wrote:
The nominated occupation is located in regional Australia based on the definition of
regional Australia as per Regulation 5.19(7) of the Migration Regulation which was
effect when the Subclass 187 nomination application was lodged on 6 July 2016.
The position is located in Belconnen, ACT and the postcode is 2677.

We own 3 different businesses - Lido Café (where the nominated position is located),
Million Dollar Kiosk in Belconnen, and a tobacco shop in Wanniassa. We are also
planning to open a restaurant in Dickson. As part of our business expansion, we
have been looking for someone whom we can trust and has experience in café/
restaurant management to run and manage the day to day business at the Lido Café
so as to allow us more time to develop and manage our other businesses. The
opportunity to continue employing the nominee in the nominated position will allow
my wife, Belinda, to have the time in managing our other existing business which is
the Tobacco shop in Wanniassa (Erindale Shopping Centre) and the Million Dollar
Kiosk in Belconnen.

We advertised for the position of Café/Restaurant Manager for the Lido Café on
Gumtree on 17 March 2016. Among all the applicants we interviewed, Luy Huynh -
with over 6 years of work experience in the hospitality industry, a CIT diploma in
hospitality, and his past work performance at Lido Café - has proven to be the best
fit for the position and was employed based on his skills and industry experience.

Apart from possessing the skill and experience that we want, Luy has also met our
need by committing to stay long term. Nowadays, it has been a challenge to find
staff who could stay with us for more than a year. Local Australian employees
usually stop working after 1 or 1.5 years which is common in the hospitality industry.
We ended up losing a lot of money on training and it costs us to repeatedly advertise
the position. Therefore, we are happy to offer Luy the position to manage our Lido
restaurant permanently which is the main reason he was offered the position in
March 2016. Since commencing work with us on 21 March 2076, Luy has been an
asset to the day to day running and management of the business. If his visa is not
granted, the business would be significantly and adversely affected. As the business owner, I have been deeply concerned about the outcome of his visa application
when his Subclass 187 application was refused in 2018.

The Regional Certifying Body (Treasury & Economic Development Directorate of the ACT Government) has certified the position on 29 June 2016. The email is attached…
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 a paid employee to work in the position under their direct control.
The material on the Departmental and Tribunal files demonstrates that the applicant was made on the appropriate form and was accompanied by the relevant fee prescribed in r.5.37. The application identified a need for the Nominator to employ a paid employee to work in the position under the Nominator’s direct control, primarily because it confirmed that there was no Australian employee doing the same work as the nominated person. The nominated position was identified as Café Restaurant Manager with Lido Café and Bar.
The Tribunal has also sighted the certification in which the Nominator has declared that he has not engaged in conduct in relation to this nomination that constitutes a contravention of subsection 245AR(1) of the Migration Act.
The Tribunal notes that the delegate did not raise any concerns with the manner in which the application was made.
Accordingly, the Tribunal considers that the requirement in r.5.19(4)(a) is met.
Nominator is actively and lawfully operating a business in Australia: reg 5.19(4)(b)
Regulation 5.19(4)(b) requires that the applicant is actively, lawfully, and directly operating a business in Australia.
Regulation 5.19(4)(b) requires that the applicant is actively, lawfully and directly operating a business in Australia. The Nominator is an Australian proprietary company that was registered with the Australian Securities & Investments Commission (ASIC) on 24 January 2000. The ASIC documentation submitted confirms the Nominator remains registered with ASIC currently until 24 January 2023 (next renewal date).
The nominator has also made available to the Tribunal tax summary and activity statements over several years demonstrating that the propriety company is, and has been, an ongoing concern.
On the evidence available, the Tribunal is satisfied that the nominator is actively and lawfully operating a business in Australia and that it directly operates the business. Accordingly, the requirement in r.5.19(4)(b) is met.
Position is not labour-hire: reg 5.19(4)(c)
Regulation 5.19(4)(c) applies to nominators whose business activities include those relating to labour hire to an unrelated business. In these cases, the nominated position must be within the business activities of the nominator.
Based on the information before the Tribunal, including assurances provided at hearing by the Nominator, it finds that the nominator is not involved in labour-hire activities and it is satisfied that the nominated position is not a labour-hire position.
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.
The Tribunal has sighted a Contract of Employment signed by the nominator and the nominee, on 2 August 2021, which in part states, “We are pleased to confirm your full-time employment with Lido Café and Bar, Shop 74, Level 2 Westfield Shopping Centre, Belconnen ACI 2617 as a Café Manager. The Fair Work Act 2009 (Cth) ("the Act") is applicable to your employment”. Further the contract states, “Upon the grant of your RSMS visa, your employment will be for a minimum term of two years” and “Your conditions of employment will also be governed by the provisions of the Restaurant lndustry Award 2010 ("The Award"). The Award does not form part of your common law contract of employment. You will be employed as a Café Manager and having regards to your attached job descriptions, you will be classified as a food and beverage supervisor Level 5 under the Award”.
The nominator at hearing stated that given the length of time the nominee had been working at the Café, the Tribunal should have confidence that the nominator will continue to be employed as a Café Manager, Supervisor Level 5, for at least two years and beyond, if it were the nominee’s wish to remain in his employee for longer than two years.
Having regard to the evidence individually and cumulatively, the Tribunal finds that 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.
It is specified in the contract of engagement that the applicant will be employed for 38 hours per week, plus reasonable additional hours depending on business or personal needs, in accordance with the provisions of the Act. The contract of engagement also states:
Remuneration package: base salary of $60,000 per annum (not inclusive of superannuation) with 5% salary increment after one year of service.
You will be paid in cash or to your nominated bank account on a weekly basis.
You will be paid an amount of superannuation in accordance with the federal
superannuation laws. Award penalties and loadings for shift work will be paid in addition to the above figure.

Work over 38 hours per week will be paid at overtime. Allowances will be payable to you under the Award if they Apply. Any over award payments in one week can be used to discharge other payments due in other weeks. We will make use of any over award payments to discharge our obligations under the award regarding overtime, penalty rates, shift penalties or allowances. This 'allocation agreement' between you and the employer constitutes an agreement as to how these provisions will be paid. We do not seek to avoid them, but will reach agreement with you as to how payment will be made.
The average hourly pay for a Café Manager is $24.31. The annual average salary is $42,000-$62,000.[1] Importantly, under the Restaurant Industry Award 2021, the Fair Work Ombudsman has determined that the hourly rate for a food and beverage supervisor, Level 5, is $24.54 and a weekly rate of $932.60.[2] The applicant’s annual salary, therefore, falls within this salary base.
[1] accessed on 27 August 2021.
[2] restaurant-industry-award-ma000119-pay-guide.pdf, accessed on 27 August 2021.
Provision has also been made for parental leave as required by the Fair Work Act, as is annual leave, compassionate leave, and the capacity to seek flexible work arrangements to care for children with a disability, for example.
The Tribunal is also satisfied from the evidence that there is no Australian citizen or Australian permanent resident performing equivalent work in the same workplace at the same location. The Tribunal is satisfied, moreover, that the terms and conditions applicable to the 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.
Based on the information before the Tribunal, there is no adverse information known to Immigration 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: 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.
Based on the evidence before the Tribunal, it finds that the nominator has a satisfactory record of compliance with workplace relations laws in location in which it operates a business and employs staff. Operating under a franchise any such matters would have become evident.
Accordingly, the requirements of r.5.19(4)(g) are met.
Tasks of the position, genuine need for the position and training requirements reg 5.19(4)(h)
Regulation 5.19(4)(h) contains a number of alternative requirements. These are set out in detail in the attachment to the decision 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 by Instrument, 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 nomination was made on the basis that the position and business are located in regional Australia. The Tribunal finds that the entire territory of the ACT is defined as part of ‘regional Australia’ under the Regulations. Both the position and the business operated by the nominator are located in the ACT and are therefore located in ‘regional Australia’. As a consequence, the Tribunal finds that r.5.19(4)(h)(ii)(A) and r.5.19(4)(h)(ii)(E) are met.
In respect of whether there is a genuine need for the nominator to employ a paid employee to work in the position under their direct control pursuant to r.5.19(4)(h)(ii)(B), the Tribunal makes the following observations.
The nominee gave convincing evidence at hearing that he had attempted to employ Australian citizens/permanent residents in the position of Café/Restaurant Manager but that he had not been able to engage someone who had brought constancy and reliability to the position. He trusted the applicant because he worked independently of the nominee, taking overall responsibility for the management of his café, and reporting directly to him, given that and he and his wife had other businesses to manage.
Accordingly, the Tribunal accepts that there is a 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 and the Tribunal is satisfied that r.5.19(4)(h)(ii)(B) is met. The nominee had already been employed in the nominated position and it is clear from the evidence that his departure would jeopardise the viability of the Lido Café, Belconnen.
Evidence has been submitted to demonstrate that the nominee has attempted to advertise the position locally but that he has been unable to fill the position with local staff. Accordingly, the Tribunal finds that r.5.19(4)(h)(ii)(C) is met.
The delegate had concerns that the tasks being performed and to be performed by the nominee did not correspond to the tasks of the occupation specified by the instrument for Café/Restaurant Manager ANZSCO 41111. ANZSCO is a skill-based classification produced by the Australian Bureau of Statistics used to classify all occupations and jobs in the Australian and New Zealand labour markets to provide a generic baseline of duties for a particular position based on statistical data.
Unit Group 1411 (Café and Restaurant Managers) as set out by the Australian Bureau of Statistics covers the claimed work of the position nominated. Under this group, Café and Restaurant Managers are generally required to organise and control the operations of cafes, restaurants, and related establishments to provide dining and catering services.
Tasks include:
oplanning menus in consultation with Chefs
oplanning and organising special functions
oarranging the purchasing and pricing of goods according to budget
omaintaining records of stock levels and financial transactions
oensuring dining facilities comply with health regulations and are clean, functional and of suitable appearance
oconferring with customers to assess their satisfaction with meals and service
oselecting, training and supervising waiting and kitchen staff
omay take reservations, greet guests and assist in taking orders
The nominator and nominee have now provided credible evidence that the nominee’s tasks are commensurate with those specified under ANZSCO Code 141111. For example, the Chef working at the Café has provided a statutory declaration, dated 12 August 2021, to this effect:
As the Chef at the cafe, I work closely together with Luy Huynh who is the Cafe Manager on a daily basis. We work together planning the menu for the cafe based on seasonal ingredients. We have also worked together to plan the menu for the special functions which have been held at the cafe. As the Chef, I also consult Luy about the costs for the ingredients purchased for the cafe to meet the budget which he has set for the cafe.

In addition, the Tribunal has sighted evidence by way of a statutory declaration by one of the suppliers, Mr Paul Feas, dated 7 August 2021, confirming that he has dealt directly with the nominee for several years and that the nominee is in fact the contact point for the café.
The nominee also gave convincing evidence at hearing that during the previous lock down period in Canberra, he was responsible for negotiating a lower price in rent for the business to ensure its viability. The Tribunal accepts this to be the case.
A letter has been supplied by the Senior Business Banking Manager, Westpac Bank, dated 4 August 2021, to advise that the Bank had held its annual Christmas parties at the Lido Café and had consulted with the nominee, in respect of the menu, price and dietary requirements.
Moreover, the nominee provided persuasive evidence at hearing that his duties included ensuring controlling the cost of food to maximise profit for the Café. This means that whenever he creates new items on the menu, after consulting with the chef, the costs of food goods cannot exceed 30% of the item cost. In his written statement the nominee has provided an example:
For example, whenever I and the Chef create a new menu item such as Lamb Shanks (Blackboard Specials). We always start up from how much of a budget that we can work towards. If I sell the Lamb Shanks for $27, then I know that I can not spend more than $8.10 whenever we are testing this new product. Whether it is the ingredients, labour cost, presentation itself, everything adding up cannot be more than $8.10.
In addition, the nominator has provided evidence that the nominee is responsible for the daily financial reports at the Café. The nominator has also provided evidence of a training guide for the employees at the restaurant and evidence has been submitted that while the premises of the café has been rented by the nominator from Belconnen Westfield, the nominee is the contact point regarding all matters relating to occupational health and safety and the Tribunal is satisfied that the nominee complies with the standards imposed. The Tribunal also accepts that the nominee is involved in customer relations and oversees the kitchen and waiting staff at the Café.
From the realistic evidence submitted at the time of review, the Tribunal is satisfied that the requirements of reg 5.19(4)(h) are met.
Conclusion
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.
Rosa Gagliardi
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).

[2021] AATA 3334

27 August 2021

Key Legal Topics

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Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

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Natural Justice