Planet India Pty Ltd ATF Planet India Unit Trust (Migration)

[2023] AATA 177

Planet India Pty Ltd ATF Planet India Unit Trust (Migration) [2023] AATA 177 (1 February 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Planet India Pty Ltd ATF Planet India Unit Trust

REPRESENTATIVE:  Mr Chetan Zabde (MARN: 0428055)

CASE NUMBER:  1920472

HOME AFFAIRS REFERENCE(S):          BCC2017/4664459

MEMBER:Amanda Mendes Da Costa

DATE:1 February 2023

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Statement made on 1 February 2023 at 10.45am

CATCHWORDS

MIGRATION – approval of a nomination – Direct Entry nomination stream – position of Cook – actively and lawfully operating a business in Australia – business location’s lengthy closed for renovations – operations during the COVID-19 pandemic – financial capacity to employ the nominee for at least two years – terms and conditions of employment no less favourable – training requirements – decision under review set aside 

LEGISLATION

Migration Act 1958, s 245
Migration Regulations 1994, rr 1.13, 5.19, 5.37

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 18 July 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).

2. The applicant applied for approval on 7 December 2017. 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).

3. In this case, the applicant has applied for approval of a nomination, seeking to satisfy the criteria in the Direct Entry nomination stream.

4. The delegate refused the application on the basis the applicant’s nomination did not satisfy reg 5.19(4)(b)(ii) of the Regulations because it had not demonstrated that it was actively and lawfully operating a business in Australia.

5. Via an internet-enabled audio-visual platform, Mr Gowtham Kumar Polovarapu, a director of the company, appeared before the Tribunal on 31 January 2023 to give evidence and present arguments on behalf of the applicant.

6. The applicant was represented in relation to the review, with its representative also participating in the hearing.

7. 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

8. 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.

   Section 376 and s.375A Certificates 

9. The Tribunal notes that the Department provided it with certificates (dated 19 July 2019) issue pursuant to s.376 and s.375A of the Act.  The matters relevant to the s.376 certificate are discussed in paragraphs 41 to 43 (inclusive) of this decision.

10. In relation to the s.375A certificate, the Tribunal notes that it states that the disclosure of the information in it would be contrary to the public interest because it would disclose or enable a person to ascertain the confidential source of information; prejudice a current or pending investigation of a possible breach of the la; endanger the physical safety of a person; and disclose information given by a person who has not consented to their identity being disclosed.

11. The Tribunal discussed the s.375A certificate with Mr Polovarapu and his representative during the hearing, advising them that it had formed the view that the certificate was validly made and invited the applicant to comment.

12. In response, the applicant explained that since 19 July 2019, the Department had approved further nomination applications made by the applicant in respect of employees holding subclass 482 visas[1].  The applicant submitted that the Department would not have approved these nomination applications if it considered that that the applicant was failing to meet its sponsorship obligations, or the business was not actively and lawfully operating.  The Tribunal accepts this submission.

    [1] These three employees are listed in the organisational chart provided to the Tribunal.

    The application is compliant: reg 5.19(4)(a)

13. 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.

14. Based on the material in the Department’s file, the Tribunal is satisfied that the application was made on the approved form and accompanied by the prescribed fee.  The relevant s.245AR (1) certification was provided in the application form.  The application also identifies a need for the nominator to employ an identified person (the nominee Keshav Jung Pandey) as a paid employee to work in the position under the applicant’s direct control.

15. 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)

16. Regulation 5.19(4)(b) requires that the applicant is actively, lawfully and directly operating a business in Australia.

17. The applicant (trading as Chilli India) operates a restaurant serving predominately Indian cuisine.  It is located in the Melbourne Central Shopping centre, in the Melbourne CBD.  The restaurant seats approximately 180 customers, is licensed and has a dedicated bar.  Apart from a period of six months in 2019, the business has operated since 2014, serving lunch and dinner on a daily basis.

18. In his decision, the delegate noted that through publicly available information, the applicant’s business had been closed since January 2019 and that management of the shopping centre in which the business was located had confirmed with Departmental officers that the business was closed and further advised that they had not been informed when the business may reopen.

19. The delegate noted that on 24 June 2019 the Department invited the applicant to comment on this information and on 29 June 2019 the applicant provided a response in which it explained that the expected completion date for the renovation was August 2019.  However, the delegate noted that the redevelopment plan and handover document provided nominated 29 July 2019 as the completion date.  In any event, the delegate found (based on the details contained in the shopping centre website and the information provided by the centre management that the applicant’s business had not been actively operating since January 2019 to date.

20. During the hearing Mr Polovarapu explained that in late 2018 the shopping centre management advised him that they were proposing to undertake renovations to the applicant’s business premises, including the demolition of a wall which separated the kitchen from the dining area.  This necessitated renovations to the kitchen area.  Given the business would be closed whilst the renovations were carried out, Mr Polovarapu decided to renovate the dining and bar area, increasing the seating for customers.  Accordingly, the restaurant temporarily closed in January 2019 whilst the renovations were undertaken.

21. Mr Polovarapu conceded that the anticipated completion date for the repairs was originally the end of July 2019.  However, for various reasons beyond his control (including delays in supplies, difficulties in coordinating tradespersons and work taking longer than anticipated) the renovations took longer than expected and the restaurant did not re-open until December 2019.  He further explained that as the applicant’s business attracted a large number of people to the shopping centre on a daily basis, the landlord granted the business rent relief during the period of the renovations and contributed a significant amount to their cost.  This enabled the applicant to continue to employ its employees (including the nominee) whilst the restaurant was not trading.

22. Mr Polovarapu further explained that since the business recommenced trading in December 2019 it had not closed, part from one week in 2020 after the Victorian government introduced restrictions as a result of the Covid-19 pandemic.  Thereafter, it continued to trade throughout the restrictions on in-house dining, providing takeaway and home delivered meals until it could again open to customers dining in the restaurant.

23. The Tribunal accepts Mr Polovarapu’s explanation for the closure of the restaurant between January and December 2019 and is satisfied that the nominee’s employment and salary continued during that period.  The Tribunal is further satisfied from satisfied from the documentation provided (including financial statements, business activity statements, ASIC records, ABN details and business name registration details) that the applicant is actively and lawfully operating a business in Australia.

24. Accordingly, the requirement in reg 5.19(4)(b) is met.

    Position is not labour hire: reg 5.19(4)(c)

25. 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.

26. Given the nature of the applicant’s business (i.e., operating a restaurant) and the oral evidence of Mr Polovarapu, the Tribunal is satisfied it is not involved in labour hire activities.

27. Accordingly, the requirement in reg 5.19(4)(c) is met.

    Term of employment of the visa holder: reg 5.19(4)(d)

28. 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.

29. The Tribunal is satisfied from the contract of employment for the nominee (dated 26 August 2022) and an updated contract (dated 6 December 2022) which was provided to the Tribunal that the nominee has been offered full-time employment for a period of at least two years in the position of Cook ANZSCO Code 351411.  The terms of the contract of employment do not expressly exclude an extension beyond two years.

30. Accordingly, the requirement in reg 5.19(4)(d) is met.

    No less favourable terms and conditions of employment: reg 5.19(4)(e)

31. 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.

32. The Tribunal has considered the organisational chart provided by the applicant.  The Tribunal accepts that the nominee is currently employed in the nominated position and the applicant does not have any employee who is an Australian citizen or permanent resident performing equivalent work in the same workplace at the same location.

33. The Tribunal has also consulted Payscale.com, which shows that the annual salary range for a Cook (ANZSCO Code 381411) is between $19.29 and $27.00 per hour with a median hourly rate of $22.92.  Based on a 38-hour working week, this amounts to a weekly range for between $733.02 and $1026.00 per week and between $38,117.00 and $53,352.00 annually.  Job advertisements on employment sites including Careerone.com and Seek.com indicate list similar positions to that of the nominee with a salary range of between $$55,000.00 and $$70,000.00.  Based on this information, the Tribunal is satisfied that the proposed salary for the nominee ($60,000 plus superannuation) is within the salary range for other advertised similar positions.

34. The Tribunal is further satisfied that the proposed employment conditions for the nominee are consistent with the National Employment Standards.

35. Accordingly, 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. 

36. Accordingly, the requirements of reg 5.19(4)(e) are met.

    No adverse information known to Immigration: reg 5.19(4)(f)

37. 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.

38. The Tribunal notes that on 24 June 2019 the Department wrote to the applicant, inviting it to comment on the following adverse information:

    Planet India Pty Ltd is ‘associated’ with Bollywood Express Pty Ltd by way of a common director Gowtham Kumar Polavarapu.  Bollywood Express Pty Ltd was deregistered and had their SBS cancelled on 9 January 2019.

39. The applicant provided a written response[2] to the above invitation in which it explained that Mr Polovarapu had not been associated with Bollywood Express Pty Ltd since 6 February 2015 when he resigned as a director of the company.  The applicant provided the Department with copies of the ASIC company extract for that company which confirmed Mr Polavarapu’s resignation as director on that date.

    [2] Dated 24 June 2019.

40. The applicant submitted that Mr Polovarapu’s resignation as a director relived him of any responsibility for the company’s actions after that date.

41. The Tribunal notes that it has been provided with a Certificate issued by the Department under s.376 of the Act which contains the above information regarding the Department’s initial concerns about Mr Polovarapu’s ‘association’ with Bollywood Express Pty Ltd and his resignation as a director on 6 February 2019.  The Tribunal discussed the certificate with Mr Polovarapu and his representative during the hearing, advising them that it had formed the view that the certificate was validly made.

42. The Tribunal discussed the information contained in the certificate with Mr Polovarapu. He confirmed that his association with Bollywood Express Pty Ltd ceased on 6 February 2015 when he resigned as a director of that company.  

43. The Tribunal accepts the applicant’s submission that from the date of his resignation as a director of Bollywood Express Pty Ltd Mr Polovarapu had no association with the company.

44. Based on the evidence before it (including material in both the Departmental and Tribunal files and Mr Polovarapu’s oral evidence) the Tribunal is satisfied that there is no adverse information known to the Department about the applicant or a person associated with it. 

45. Accordingly, the requirements of reg 5.19(4)(f) are met.

    Satisfactory compliance with workplace relations laws: reg 5.19(4)(g)

46. 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.

47. Based on the information in both the Departmental and Tribunal files, the Tribunal is satisfied that the applicant has a satisfactory record of compliance with workplace relations laws in the location in which it operates a business and employs staff. This information includes a letter (dated 9 December 2022) from the Fair Work Ombudsman to the Tribunal, advising that there were no documents located by it in its records regarding allegations, investigations or outcomes for the applicant.

48. 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)

49. 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 in the relevant  legislative instrument, the occupation is applicable to the proposed employee in accordance with any specifications made in that instrument, there is a genuine need for the nominee to be employed as a paid employee in the position, and certain specified training requirements are met; or

    ·the position and nominator’s business is located in regional Australia, there is a genuine need for the nominee to be employed as a paid employee in the position under the nominator’s direct control, the position 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.

50. The applicant’s business is situated in Menzies Alley, Melbourne central Shopping Centre.  The Tribunal is satisfied from the organisational chart, position description, employment contracts written and oral submissions and the oral evidence of Mr Polovarapu that the tasks to be performed by the applicant in the nominated position of Cook (ANZSCO 381411) will be performed in Australia.  The Tribunal notes that the nominee has been employed in that position for the past four to five years.  Based on the above material, the Tribunal is further satisfied that the tasks to be performed by the applicant are consistent with the tasks of a Cook as set out in the ANZSCO dictionary.

51. In his oral evidence, Mr Polovarapu told the Tribunal that the business had a genuine need to employ the nominee who he described as a talented and dedicated Cook who was a valuable member of staff.  He explained that apart from his training, the nominee had previous experience in preparing Indian cuisine.  He further explained that as many of the restaurant’s customers are ethnically Indian, they have an expectation for “genuine Indian cuisine” and the nominee’s own ethnic background and extensive understanding of Indian culture and cuisine make him an excellent cook of Indian food.  This is a great advantage to the applicant’s business. Accordingly, the Tribunal is satisfied that the applicant has a genuine need to employ the nominee as a paid employee, to work in the position of Cook which is specified in the relevant instrument – IMMI 17/080.

52. Based on the evidence before it (including receipts for training, training plans and the oral evidence of Mr Polovarapu, the Tribunal is satisfied the applicant has met its training requirements as set out in the relevant legislative instrument (IMMI 17/074).

53. Accordingly, the requirements of reg 5.19(4)(h) are met.

54. 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

55. The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

    Amanda Mendes Da Costa
    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 an identified person, as  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).