R S & G Singh Pty Ltd (Migration)

[2022] AATA 1903

R S & G Singh Pty Ltd (Migration) [2022] AATA 1903 (19 April 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  R S & G Singh Pty Ltd

REPRESENTATIVE:  Ms Nikki Oberroi (MARN: 1679072)

CASE NUMBER:  1904322

HOME AFFAIRS REFERENCE(S):          BCC2017/2312808

MEMBER:Karen McNamara

DATE:19 April 2022

PLACE OF DECISION:  Sydney

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

Statement made on 19 April 2022 at 11:27am

CATCHWORDS
MIGRATION–nomination – Direct Entry nomination stream – Café or Restaurant Manager ––genuine need to employ a paid employee to work in the position under the nominator’s direct control – nominated position is based in regional Australia –  adverse information – position associated with the nominated occupation is genuine – no less favourable terms and condition of employment – decision under review set aside

LEGISLATION

Migration Act 1958, ss 65, 140GB, 245AR, 359
Migration Regulations 1994, rr 2.57, 5.19

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 8 February 2019 to reject the application by R S & G Singh Pty Ltd (the applicant) 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 29 June 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 5.19(4)(a)(ii) of the Regulations because the delegate found that the application did not demonstrate that there is a need for the nominator to employ a paid employee to work in the position under the nominator’s direct control.

5. The applicant lodged an application for review with the Tribunal on 25 February 2019. The review application was accompanied by a copy of the delegate’s decision. The Tribunal also has before it the Department file containing all information before the delegate at the time of their decision.

6. On 12 April 2022, the applicant represented by Mr Randeep Singh Sahota (referred to below as the applicant) appeared before the Tribunal via video, to give evidence and present arguments. The Tribunal also received oral evidence from Miss Sarabjit Virdi (the nominee) in the related matter for the subclass 187 visa (AAT Case file 1908060). The related matters were heard concurrently in a combined hearing.

7. The Tribunal exercised its discretion to hold the hearing by telephone. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant and nominee. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone. The Tribunal is satisfied that the applicant and nominee were given a fair opportunity to give evidence and present arguments.

8. The applicant was represented in relation to the review by its registered migration agent. The representative attended the Tribunal hearing.

9. 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

10. 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.

    Background

11. The applicant owns and operates an Indian cuisine restaurant trading as The Great Flavour of India Restaurant, located at Innisfail in far northern Queensland. The applicant also under a separate entity operates a banana farm.

12. On 29 June 2017, the applicant lodged an application for an employer nomination approval for the position of Restaurant Manager under the occupation of Café or Restaurant Manager (ANZSCO 141111) under the Regional Sponsored Migration Direct Entry stream. The nominated base rate and guaranteed earnings is $55,000 per annum.

13. The Tribunal notes that numerous evidence and submissions were lodged by or on behalf of the applicant. While the Tribunal has considered all of same, only that which was considered material to its decision has been expressly referred to herein.

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

14. 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.

15. Based on the material in the Department’s file, the Tribunal is satisfied that the application was made on the approved form. As the position is located in regional Australia, no fee is payable (r5.37(2)(a)). The application also included written certification relating to conduct that contravenes s.245AR(1) of the Migration Act 1958, declared and signed by the applicant. Accordingly, the requirements of r.5.19(4)(a)(i) are met.

16. The delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19(4)(a)(ii) of the Regulations, because the delegate was not satisfied that the application demonstrated there was a need for the nominator to employ a paid employee to work in the position under the nominator’s direct control.

17. The Tribunal has formed a different view and accepts the evidence presented by the applicant attesting to the need to employ a paid employee to work in the position under the nominator’s (the applicant) direct control. The Tribunal notes that a more comprehensive suite of evidence was presented to it than was given to the delegate in the original application.

18. In considering whether the application for approval identifies a need for the nominator to employ a paid employee to work in the position under the nominator’s direct control, the Tribunal has had regard to the evidence before it, including written submissions and the oral evidence received at the hearing by the applicant.

19. In support of the need for the position the applicant has provided evidence including letters of support from the local Federal and State Members of Parliament, representative’s submission dated 2 March 2022 and written submissions from the applicant dated 29 September 2019, 1 March 2022 and 1 April 2022 in addition to oral evidence provided at the hearing on 12 April 2022.

20. At the hearing, the applicant told the Tribunal the need to employ a paid employee to work in the nominated position is essential to the operational and business needs of the applicant’s restaurant business located at Innisfail. The written evidence before the Tribunal supports the applicant’s claims.

21. Accordingly, the Tribunal is satisfied the requirement in r5.19(4)(a)(ii) is met.

22. As the criteria in both r.5.19(4)(a)(i) and (ii) are satisfied, accordingly the requirements in r.5.19(4)(a) are met.

    Nominator is actively and lawfully operating a business in Australia: reg 5.19(4)(b)

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

24. The Tribunal accepts on the evidence before it that the applicant owns and operates an Indian cuisine restaurant located at Innisfail in far north Queensland. Based on the material provided to the Tribunal, including; financial statements, BAS returns, ASIC details, business bank statements, commercial lease agreement and supplier references, the Tribunal is satisfied the applicant is actively and lawfully operating a restaurant business in Australia and directly operates that business.

25. Accordingly, the requirement in r.5.19(4)(b) is met.

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

26. 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. 

27. There is no evidence before the Tribunal to suggest that the applicant’s business is involved in labour hire.

28. Accordingly, the requirement in r.5.19(4)(c) does not apply

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

29. 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. 

30. In considering whether the business has the financial capacity to pay the nominated full-time salary of $55,000 per annum to the nominee for two years, the Tribunal has taken into consideration evidence before it including the business’s financial statements, bank statements and documents submitted to the ATO. The Tribunal has afforded weight to information before it including the applicant’s financial statements, Company tax returns, BAS returns and bank statements, which show the applicant has met payroll and operating costs.

31. The Tribunal notes that the applicant’s financial statements show that the business has reported moderate but stable revenue with proportionally aligned profit. The applicant’s BAS returns, and financial statements indicate that the applicant’s revenue can sustain the ongoing employment of the nominee.

32. At the hearing the Tribunal discussed with the applicant the impact of the COVID -19 pandemic on his business. The applicant told the Tribunal that the restaurant (due to COVID 19 restrictions) closed during the mandatory shut down and since reopening is returning to pre covid patronage and sales. The applicant has recently signed a new lease for a larger premise providing a larger commercial kitchen and in house dining capacity. Evidence before the Tribunal shows that the restaurant maintained a steady income throughout 2020 and 2021 financial years recording positive net equity and no indication of substantial debt.

33. Whilst the lockdown restrictions had some impact upon the applicant’s revenue and profit, the applicant is a well-established venue that has operated successfully for a considerable time. The applicant is confident the COVID- 19 restrictions will not impact materially in the medium to long term and is now showing indications of returning to pre COVID sales revenue.

34. The Tribunal has also taken into consideration the nominee has been employed by the applicant since December 2016. Income Statements issued to the nominee show for the 2019/20 and 2020/21 financial years, the nominee received gross salary payments of $54,684 and $54,630 respectively. The applicant’s bank statements for the period March 2020 to March 2022 show regular salary payments to the nominee. As of March 2022, the nominee is receiving salary net payments of $900.92 per week.

35. Based on the evidence before it, the Tribunal is satisfied the applicant has the financial capacity to maintain the nominee’s full-time employment as they have done since the nominee commenced employment with the applicant in December 2016.

36. Accordingly, the requirement in r.5.19(4)(d)(i) is met.

37. The Tribunal has had regard to the most recent employment contract dated 1 March 2022. The contract, which sets out the terms and conditions of employment, indicate that the period of employment is for a minimum period of two years after the grant of the subclass 187 visa. The contract stipulates the base salary is $57,000 per annum exclusive of superannuation with hours of work 38 hours per week. There is no term excluding an extension of the contract.

38. The Tribunal is satisfied based on the employment contract dated 1 March 2022 and other material before it, that the nominee will be employed on a full-time basis for at least two years on terms that do not exclude the possibility of extending the period of employment. Accordingly, the requirement in r.5.19(4) (d) (ii) is met.

39. As the criteria in both r.5.19(4)(d)(i) and (ii) are satisfied, accordingly the requirements in r.5.19(4)(d) are met.

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

40. 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.

41. The contract of employment dated 1 March 2022 sets out the terms and conditions of employment and indicates that the nominee’s salary will be $57,000 per annum and hours of work 38 hours per week. The nominee’s leave entitlements include annual, personal and compassionate leave in accordance with National Employment Standards.

42. The Tribunal has received copies of the nominee’s Income Statements (financial years 2020 and 2021) and bank statements (January 2020 to December 2021) confirming that the nominee has been paid by the applicant salary amounts of $54,684 and $54,630 per annum. Superannuation information provided to the Tribunal, support that the nominee is being paid superannuation. The Tribunal is therefore satisfied based on the evidence that the nominee will be paid in accordance with the terms of employment.

43. The Tribunal is satisfied on the totality of the evidence before it 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. 

44. Accordingly, the requirements of r.5.19(4)(e) are met.

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

45. 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.

    ADVERSE INFORMATION – Invitation to comment

46. On 28 March 2022, the Tribunal wrote to the applicant under s 359A of the Act. The invitation sought comments from the applicant and stated as follows;

    ‘…I am writing on instruction from the Member conducting your review, in relation to the application for review made by R S & G Singh Pty Ltd in respect of a decision to refuse a nomination application.

    In conducting the review, we are required by the Migration Act 1958 to invite R S & G Singh Pty Ltd to comment on or respond to certain information which we consider would, subject to any comments or response it makes, be the reason, or a part of the reason, for affirming the decision under review.

    Please note, however, that we have not made up our mind about the information.

    The particulars of the information are:

    •   There is a file note appearing on Department of Home Affairs records dated 19 March 2018, noting that allegations were received by the Department that the applicant is in breach of employer/sponsor obligations.

    The aforementioned information is relevant because r.5.19(4)(f)(i) requires that there is

    no adverse information known to Immigration about the nominator or a person

    associated with the nominator.

    If the Tribunal relies on this information, it may find that you do not satisfy the

    requirements of r.5.19(4) and consequently the decision under review would be

    affirmed...’

47. The Tribunal sought the applicant’s response by 11 April 2022. The applicant responded by way of a written submission dated 1 April 2022, stating in summary that he was unaware of any allegations and had never been contacted or investigated by the Department. Additionally, the applicant noted that in September 2019, the Department granted the applicant approval of a Subclass 87 nomination for another employee, hence had the allegations been of concern to the Department, it is highly unlikely this approval would have been granted.

48. In consideration of whether the information currently before the Tribunal is ‘adverse’, the Tribunal turns to the definition of ‘adverse information’ and ‘associated with’ as defined in rr.1.13A and 1.13B as at the time the application was lodged. 

49. 'Adverse information' includes any adverse information relevant to a person's suitability as an approved sponsor or nominator, including having been the subject of administrative action (including being issued with a warning) by a competent authority (defined in r.2.57(1)), for a possible contravention of the law, found guilty by a court of an offence under a Commonwealth, State or Territory, law, being under investigation, subject to disciplinary action or subject to legal proceedings in relation to an alleged contravention of such a law or having become insolvent. The matters listed in r.1.13A(2) include immigration law, industrial relations and occupational health and safety, discrimination, people smuggling and related offences, slavery, sexual servitude and deceptive recruiting, taxation, terrorism and trafficking in persons and debt bondage.

50. The definition also specifies that the 'conviction, contravention, administrative action, investigation, disciplinary action, legal proceedings or insolvency mentioned in paragraphs (1)(d) to (h) must have occurred within the last 3 years' – see r.1.13A(3).

51. Regulation 2.57(1) provides that a 'competent authority' means a Department or regulatory authority that administers or enforces a law that is alleged to have been contravened.

52. The Tribunal has considered whether the reference to allegations noted on the file note, fall within the definition of ‘adverse information’ and notes that there is no evidence before the Tribunal at the time of this decision, to suggest that there is adverse information known to Immigration within the meaning provided in r.1.13A and r1.13B.

53. Accordingly, the requirements of r.5.19(4)(f) are met.

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

54. 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.

55. There is no evidence before the Tribunal that indicates the applicant does not have a satisfactory record of compliance with the relevant Commonwealth and State workplace relations laws.

56. 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)

57. 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 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.

    In this case, the applicant claims to meet the requirements in r.5.19(4)(h)(ii). The Tribunal has considered each of these requirements as follows;

1. The evidence before the Tribunal indicates that the applicant’s business, which is operated by the applicant and the position is located in Innisfail, Far North Queensland, postcode 4860 which is a postcode specified in the relevant instrument as being in regional Australia, accordingly r.5.19(4)(h)(ii)(A) and (E) are met.

2. The Tribunal next considered whether there is a genuine need for the applicant to employ a Restaurant Manager under the occupation of Café or Restaurant Manager (ANZSCO 141111) and for the tasks of that position.

3. In considering whether there is a genuine need for the nominator to employ the nominee as a paid employee, to work in the position under the nominator’s direct control, the Tribunal has had regard to the evidence before it, including written statements and the oral evidence received at the hearing by the applicant.

4. The applicant gave evidence at the hearing that the position is key to the operational requirements of the business, in so far as the position of Restaurant Manager is consistent with the nature of the applicant’s business interests located at Innisfail.

5. The genuine need to employ the nominee in the nominated position has arisen as a result of the applicant requiring a full-time manager to operate and manage the restaurant on his behalf. The applicant purchased the restaurant in December 2016 as an existing concern. The nominee was at the time employed by the previous owner in the position of Manager. The applicant owns and operates a banana farm which is his primary focus and therefore relies upon a dedicated Restaurant Manager to manage his restaurant business. The restaurant is an investment, and he has little involvement in the day-to-day operations.

6. The Tribunal is satisfied on the evidence presented by the applicant that there is a genuine need for a paid employee to work in the position of Restaurant Manager under the occupation of Café or Restaurant Manager (ANZSCO 141111) under the nominator’s control. Accordingly, the requirement of r.5.19(4)(h)(ii) (B) is met.

7. The Tribunal is satisfied that the material and evidence provided by the applicant, supports the applicant’s claims that they have made efforts to fill the position locally by an Australian citizen or an Australian permanent resident. The applicant provided evidence that they have been unsuccessful in sourcing an experienced and qualified Australian citizen or an Australian permanent resident to the position. This evidence included references from the local Federal Member of Parliament who attested to the regions skill shortages and provided their support to this nomination application. The Tribunal also gives weight to the RCB’s advice that the position cannot be filled locally.

8. On the evidence before it, the Tribunal is satisfied that the position cannot be filled by an Australian citizen/permanent resident living in the same local area. Accordingly, the requirements of r.5.19(4)(h)(ii)(C) are met.

9. The Tribunal has afforded careful consideration to the evidence before it and has discussed with the applicant and nominee at the hearing the precise tasks and responsibilities of the nominated position and how these tasks align with the nominated occupation under ANZSCO. In undertaking its assessment as to whether the tasks to be performed in the position correspond to the tasks of an occupation specified in an instrument, the Tribunal has also afforded consideration to the environment in which the business operates, the size of the applicant’s business and operational requirements and how the tasks of a Restaurant Manager (as undertaken in the nominated position) are relevant to meeting these requirements.

10. Having afforded consideration to the evidence before it, the Tribunal is therefore satisfied that the tasks to be performed in the position, correspond to the tasks of a Café or Restaurant Manager. Accordingly, the requirements of r.5.19(4)(h)(ii)(D) are met.

11. Department records show that the nominee whilst studying in Australia has attained a Diploma of Hospitality and Certificate IV in Commercial Cookery. The nominee has been employed by the applicant in the position of Restaurant Manager since December 2016.

12. Having considered the evidence attesting to the nominee’s experience and qualifications the Tribunal is satisfied that she is suitably qualified for the position and that the occupation is applicable to the person identified under subparagraph (a)(ii) in accordance with the specification of the occupation. Accordingly, the requirements of r.5.19(4)(h)(ii) (DA) are met.

13. The Tribunal notes the advice dated 28 June 2017 from the relevant RCB, Cairns Chamber of Commerce Inc, indicating that they are satisfied regarding the matters specified in r.5.19(4)(e) and r.5.19(4)(h)(ii)(B) & (C). On this basis, the Tribunal is satisfied that r.5.19(4)(h)(ii)(F) is met.

14. Given the above, the Tribunal finds that the requirements of r.5.19(4)(h)(ii) are met and accordingly r.5.19(4)(h) is met as a whole.

15. 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

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

    Karen McNamara
    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).