Patel (Migration)

[2022] AATA 1882

Patel (Migration) [2022] AATA 1882 (20 April 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  

Mrs Rinku Kirankumar Patel

Mr Kirankumar Hiralal Patel

Mr Om Kirankumar Patel

REPRESENTATIVE:  Mr Adam Khaze (MARN: 0960138)

CASE NUMBER:  1903284

HOME AFFAIRS REFERENCE(S):          BCC2018/5412304

MEMBER:Stephen Witts

DATE:20 April 2022

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicants Temporary Skill Shortage (Class GK) visa.

Statement made on 20 April 2022 at 9:34am

CATCHWORDS
MIGRATION – Temporary Skill Shortage (Class GK) visa – Subclass 482 (Temporary Skill Shortage) – Short-term stream – Café or restaurant manager – subject of an approved nomination – specified occupation – ‘limited-service restaurant’ – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359C, 360, 363A
Migration Regulations 1994 (Cth), r 2.72; Schedule 2, cl 482.212

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 5 February 2019 to refuse to grant the visa applicants Temporary Skill Shortage (Class GK) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants applied for the visas on 3 December 2018. At that time, Class GK contained one subclass: Subclass 482 (Temporary Skill Shortage). The criteria for a Subclass 482 visa are set out in Part 482 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). Applicants seeking to satisfy the primary criteria for the visa must meet the ‘Common criteria’ and the criteria of one of three alternative streams: the Short-term stream, the Medium-term stream, or the Labour Agreement stream. Other members of the family unit, if any, who are applicants for the visa need only satisfy the secondary criteria. In this case, the primary visa applicant (the applicant) is seeking the visa in the short-term stream to work in the nominated occupation of café or restaurant manager ANZSCO code 141111.

3. The delegate in this case refused to grant the visa on the basis that the visa applicant did not satisfy the requirements of cl 482 .212 of Schedule 2 to the Regulations because the delegate was not satisfied that the applicant was the subject of an approved nomination.

4. The primary applicant, Mr Rinku Kirankumar Patel, appeared before the Tribunal on 5 April 2022 to give evidence and present arguments.

5. The Tribunal also received oral evidence from the nominator, the Trustee for Keyvd Trading Trust.

6. The Tribunal hearing was conducted with the assistance of an interpreter in the Gujarati and English languages.

7. The applicants were represented in relation to the review.

8. For the following reasons, the Tribunal has decided that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The issue in this case is whether the applicant is the subject of an approved nomination.

   Requirement for an approved nomination

10. Clause 482.212(1) requires that the nomination identified in the visa application is approved, was made by a person who was an approved work sponsor at the time of approval, and has not ceased.

11. The Tribunal has considered all the material before it including evidence provided prior to the hearing and evidence given at hearing.

12. The Tribunal notes that it has been provided with a copy of the delegate’s decision record for the nominator, the Trustee for Keyvd Trading Trust, by the applicant dated 4 January 2019. In this decision it was stated that the nominator’s restaurant or café was a limited service restaurant, and part of a franchise arrangement, part of the “Coffee Club” national franchise residing in a mall type café environment, and that therefore it would not provide or perform the full breadth of services that would necessitate the employment of a café or restaurant manager; specifically that it would not include the full duties and responsibilities of a café or restaurant manager such as organising and controlling the operations of such to provide dining and catering services. The delegate also noted that a limited-service restaurant specifically includes such businesses as a limited-service café including a coffee shop or mall café and this was defined as a caveat in the relevant industrial instrument.

13. The Tribunal notes that material has been provided by the nominator including, financial material such as tax returns, financial statements and BAS statements, an organisation chart, an employment contract for the nominee, advertising material, and other material.

14. The Tribunal notes that material was provided indicating that the business to end of financial year 2021 on a gross profit from trading of approximately $1.4 million made a profit of approximately $300,000 before tax and in financial year 2020 it made a profit before tax of approximately $60,000 on a gross profit from trading figure of approximately $800,000.

15. The Tribunal notes that a submission was provided by the nominator’s representative dated 27 January 2022 where it was stated that the business did not employ any equivalent Australian citizens performing the same role and that it has attempted to recruit Australian or permanent residents for the position of café or restaurant manager.

16. The Tribunal notes that the organisation chart detailing that there is a director in the business, that is the applicant, a restaurant manager, that is the nominee “to be hired”, a chef on a bridging visa, 2 cooks, 1 on the 485 visa and 1 on a bridging visa, and 6 front of house staff, all casual, 3 of which are Australian citizens, and 2 are on bridging visas, and 1 is on a 482 visa.

17. The Tribunal further notes that a generic employment contract was provided dated 25 January 2022 for the nominee headed up “Employment Offer” with the logo “The Coffee Club” denoting the franchise operation stating that this was an employment offer subject to this successful securing of a 482 visa. This offer noted that a base salary of 55,000 plus superannuation was being offered.

18. The Tribunal notes that also included was a tabular comparison seeking to compare the duties and responsibilities under the ANZSCO 141111 and the duties listed in the employment contract stating that the position is consistent with the tasks of the nominated occupation as listed in ANZSCO “when taken into the context of where the position will be performed”  and that also included was a position description under “The Coffee Club” franchise heading stating that the nominee is responsible for the management of the café activities to ensure the daily operations and services are kept at “optimum efficiency” and that the duties and responsibilities included working closely with chefs, stock control and café presentation, taking reservations, communicating with customers, managing the staff roster, recruiting and supervising staff, managing budgets, and ensuring health and safety regulations are observed.

19. The Tribunal notes that also included was a copy of a document where the nominator attested that labour market testing had been completed within a four-month period prior to the lodgement of nomination and included some advertising material on job portals such as Career One and Jora.

20. At the hearing the Tribunal had a discussion with the nominator and the nominee regarding their applications.

21. The nominator stated that the nominee is not and has not ever been employed by the business but that he would intend to employ the nominee should she be successful in receiving a business visa. It was stated that the nominee is on a bridging visa and that this bridging visa does not have work rights but that she was previously sponsored by another business which is now closed, a ‘flame grill’ business.

22. The nominator stated that he established this Coffee Club business in Goulbourn in a regional location in 2017. He stated that he also owns a business in Canberra, a Subway franchise, and that he used to own another Coffee Club franchise in Canberra until June 2021. He stated that he has struggled to find an appropriate café or restaurant manager for the Goulbourn business since he opened in 2017 and that he has relied on three others to perform this role often on a part-time basis noting that one of these three is still employed in the business but has recently had a child and therefore was not able to devote the time necessary; and that for the last three years he has had to work full-time in Canberra and then drive down to Goulbourn to also assist in the running of the business. He stated that he has employed casuals in the business who have undertaken various duties associated with managing this café but gave an example that staff have forgotten to order milk and other such items which he has had to manage on the basis as outlined above.

23. He stated that he has not sponsored any other parties in regard to filling roles in his businesses and stated that the business in Goulbourn is a 95-seat restaurant and that the Coffee Club franchise as a whole has three different tiers of business including a kiosk café, a restaurant, and a restaurant with an alcohol license. He stated that his restaurant fits in the middle category and that it has such things as daily specials that may require some food preparation and cooking and that in this franchise business there is a national menu which changes six or seven times a year but gives some capacity to the individual business to develop a dining model through the provision of special food offers.

24. The nominee stated that she first came to Australia with her husband on a student visa in 2008 and that she had a subsequent student visa and that during this time she studied for and achieved certificate III level qualifications in cookery, a diploma level qualification in hospitality management, and a qualification in human resource management at advanced diploma level which she completed in 2013. She stated that from 2013 she worked in a kebab shop for a period of time and that she then worked at the ‘flame grill’ business from 2014 for 3 ½ years and in that business, where she was originally sponsored, the sponsorship was then subsequently withdrawn, and the business is no longer trading due to a family dispute. She stated that she has one son who is nine years old and that she still wishes to take up an opportunity as the manager in the nominator’s business.

25. The Tribunal has considered the evidence carefully in this matter in particular it has considered the duties and responsibilities of a café and restaurant manager in accordance with ANZSCO code 141111 noting that most of the menu and products sold by the applicant are actually set by the franchisor and that the business does offer food to customers in a standardised format with a standard menu as outlined above which is changed from time to time by the franchisor. The Tribunal finds that the business is a limited-service restaurant, and that the nominee would not necessarily be undertaking the full and clear duties and responsibilities of the job description including organising and controlling the full and total operations of a café or restaurant that provides a full dining and catering service.

26. The Tribunal has considered the definition of café and restaurant manager in accordance with the above code and finds that the nominated occupation in this case does not include organising and controlling the operations of a restaurant or related establishment and that it does not provide the full dining and catering services that would normally be associated with a genuine dining service. The Tribunal finds that the evidence provided that this position included the planning of menus in consultation with chefs was limited to the extent that the menu was generally determined by the national franchise operator in advance and changed from time to time and that the only real variance from this appeared to be limited special offers provided on an ad hoc basis. The Tribunal also finds that there may have been some limited purchasing and pricing of goods according to budget and the maintenance of records of stock levels and financial transactions but also notes that because of the inherent nature of the franchise operation as provided in evidence ensured that these activities were limited and that therefore did not conform to the requirements under this code as most of these key activities and responsibilities were actually controlled and managed by the franchisor.

27. The Tribunal notes the evidence provided by the nominator and the nominee in regard to the normal activities associated with role of the café or restaurant manager in this business and did not find the evidence provided by the parties in regard to the actual duties and responsibilities required to be credible in this case. The Tribunal finds that the evidence provided was insufficient to demonstrate that the duties and responsibilities of this role include the activities of the full café and restaurant management responsibilities in accordance with ANZSCO code 141111 particularly in regard to the limited actual restaurant catering facilities that are provided to dining patrons patronising this business.

28. On that basis the Tribunal finds that the nominator has not satisfied the requirements of paragraph 2.72(8).

    Specified occupation

29. Regulation 2.72(8) requires that the nominated occupation and its 6-digit code correspond to an occupation and 6-digit code specified in the instrument in force at the time the nomination is made, that is, IMMI 18/048. The occupation must also apply to the nominee in accordance with the instrument.

30. The Tribunal notes that under the relevant legislative instrument at the time of nomination the nominated position of café or restaurant manager was affected by a caveat on ‘limited-service restaurant’. The Tribunal notes that according to this definition a limited-service restaurant includes a fast food or takeaway food service; a fast casual restaurant; a drinking establishment that only offers limited foodservice; a limited-service café such as a coffee shop or mall café; or a limited-service pizza restaurant.

31. As above, after careful consideration the Tribunal finds that the business is a limited-service restaurant for the reasons stated and that therefore the main duties and responsibilities of the nominated occupation are not consistent with that of a café or restaurant manager in accordance with ANZSCO code 141111.

32. The Tribunal therefore finds that the nominated position of the nominee is not genuine and that the prescribed criteria for approval of the nomination was not met.

33. The Tribunal notes that it made a finding in case number 1901044 subsequent to the hearing on 5 April 2022 as detailed above that the nominator did not meet the requirements as outlined by the regulations. On that basis the Tribunal contacted the applicant in accordance with the obligations outlined in s.359A of the Act on 5 April 2022 noting that the application made by the nominator was refused by a delegate of the Minister and that the nominator sought a review of that decision but that it had been recently affirmed by the Tribunal.

34. On that basis, the applicant was informed that the application for the nominated position has not been approved. It was also stated that this information is relevant to the review because it is a requirement for the grant of the visa that that position specified in the visa application is the subject of an approved nomination. It was also stated that this means that the applicant did not satisfy the requirement for the grant of the visa and that therefore the Tribunal must affirm the decision that is under review. The applicant was invited to give comments or respond to the above information in writing and that this should be received by 19 April 2022.

35. The Tribunal notes that no response was received by the Tribunal by that date.

36. The Tribunal therefore finds that the applicant is not the subject of an approved nomination.

37. The Tribunal also finds that as the primary applicant does not meet the criteria for the grant of the visa that therefore the secondary applicants also do not meet the criteria for the grant of the visa.

38. As one of the essential requirements for the visa is not met, the decision under review must be affirmed

    DECISION

39. The Tribunal affirms the decision not to grant the applicants Temporary Skill Shortage (Class GK) visas.

    Stephen Witts
    Member