Rajmandeep Pty Ltd (Migration)
[2021] AATA 1375
•6 May 2021
Rajmandeep Pty Ltd (Migration) [2021] AATA 1375 (6 May 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT: Rajmandeep Pty Ltd
CASE NUMBER: 1818267
HOME AFFAIRS REFERENCE(S): BCC2016/1055116
MEMBER:Warren Stooke AM
DATE:6 May 2021
PLACE OF DECISION: Melbourne
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.
Statement made on 06 May 2021 at 2:18pm
CATCHWORDS
MIGRATION – application for approval of nomination of position – direct entry nomination stream – full-time employment for at least two years – financial documents and signed employment contract provided to tribunal – nominee working in position since before COVID-19 restrictions – business growth since restrictions eased – decision under review set asideLEGISLATION
Migration Regulations 1994 (Cth), r 5.19(4)(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 6 June 2018 to reject the applicant’s application for approval of the nomination of a position in Australia under r.5.19 of the Migration Regulations 1994 (the Regulations).
The applicant applied for approval on 11 March 2016. The requirements for the approval of the nomination of a position in Australia are found in r.5.19 of the Regulations which contains two alternative streams: a Temporary Residence Transition nomination stream (r.5.19(3)) and a Direct Entry nomination stream (r.5.19(4)). If the application is made in accordance with r.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: r.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 r. 5.19(4)(d) of the Regulations because the delegate was not satisfied on the evidence provided that it could be demonstrated that the nominee will be employed on a full-time basis in the position for at least 2 years.
The applicant appeared before the Tribunal on 9 March 2021 to give evidence and present arguments. The Tribunal also received oral evidence from Prabhjeet Singh, the nominee for the position of Cafe or Restaurant Manager - ANZSCO Code: 141111.
The applicant stated that he understood the nomination for a Cafe or Restaurant Manager - ANZSCO Code: 141111 was refused because of the financial viability to hire staff for the next two years.
The applicant was represented in relation to the review by its registered migration agent.
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 r.5.19(4), which is extracted in the attachment to this decision. For the nomination to be approved, all the requirements must be met.
The applicant provided evidence that the business was registered with ASIC on 13 August 2014 and assigned an ABN 31 601 552 069.
The applicant explained that he had various restaurants in the business and initially had the “V” for Vitality Restaurant, which specialised in vegan and vegetarian food, however, this menu was not successful and the restaurant was transformed to an operation as the “Indian Fare” and “Angel Fusion” that specialised in tandoori meats, where it was stated this business commenced in 2016. The current business trading as ‘The Gallery Café’ engages the nominee.
The applicant stated that he did not notify the Department regarding the change of name of the business, however, in 2019 he had a new opportunity to move establishment.
The applicant provided evidence that he was a director and that he needed a team to run the restaurant, which included daily operations; ordering; cash management; payment of suppliers; banking; reports to licencing and council liaison.
The applicant stated that the operation originally had 5-6 people and then 3-5, which included the Manager, Cook and helper in the kitchen and a helper in the front, including coffee service.
The applicant stated that he only provided support if something went wrong.
The applicant gave evidence that the Hospitality award applied to the business and that employees were provided with a Fair Work Information Statement at the time of employment.
The applicant stated that the duties of the position of Café or Restaurant Manager, included:
a.operation of the restaurant;
b.planning of staff;
c.ordering of stock;
d.meeting the clients;
e.package/budget and not to lose money;
f.cost control.
The applicant stated that the nominee is required to work between 38 and 40 hours per week.
The applicant provided evidence that the nominee was originally employed on a 457 visa and that the position was advertised with some of the applicants being interviewed.
The applicant provided evidence from the Regional Certifying Body – Chamber of Commerce and Industry of Queensland, dated 16 January 2016 that the nominee Prabhjeet Singh had satisfied approval for the position of Café or Restaurant Manager – ANZSCO Code: 141111 on a salary of $54,000 per annum.
The applicant provided evidence of a contract of employment for the nominee for the position of Restaurant Manager, dated 16 February 2016 and subsequently on 14 December 2020, where both contracts included a salary of $54,000 plus superannuation of 9.5 per cent.
The applicant provided the Tribunal with the submitted tax returns to the ATO for 2018 and 2019 for the business, which included the following information:
2018
2019
Total Income
$570,891
$501,819
Total Expenditure
$570,482
$500,863
Profit
$409
$956
Salary and Wages
$394,680
$272,930
Further, the financial accounts prepared by the applicant’s accountant for 2020 identified a Total Income of $474,698; Total Expenditure of $387,355; Profit of $3,810 and Salary and Wages of $208,682.
On 16 April 2021, the applicant provided correspondence from the business’s accountant, as follows:
“Re: Rajmandeep Pty Ltd
We confirm that the above person is our client.
We can further confirm the below:
• The business is running in profit for the last 5 years.
• The current bank balance of the company is more than $40,000
• The value of current business of the company ranges between $120.000 to $150,000.
• The business has resumed its growth after the easing of Covid restrictions. This is evident from the last quarter Profit and Loss Statement
• The net equity of the company as per latest financial statements of the company as on 31/03/2021 $172,955 and as on 30/06/2020 is $ 20,100
This is based on the client record with us, and the further information and explanations provided to us.”
Witness Evidence of Prabhjeet Singh (Nominee)
The witness provided evidence that he is employed as a Restaurant Manager and his duties include:
a.Budgeting;
b.Rosters;
c.Planning with the chef;
d.Complaint resolution;
e.Management of 4-5 staff, plus casuals on weekends, which included a cook, kitchen hand, barista, and waitresses/waiters.
The witness gave evidence that he was originally engaged on a 457 visa that was approved by the Department in 2015 and he commenced on 19 January 2016.
The witness provided evidence that he holds a Diploma of Management, which was obtained in December 2014.
The witness stated that he was issued with a Bridging Visa A on 15 June 2016 and that he has no other family in Australia.
The application is compliant: r.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 applicant lodged the application to nominate the nominee for the position of Restaurant Manager – ANZSCO Code: 141111 with the business on 11 March 2016 on Form 1395 (Internet) and payment of the nomination application fee was acknowledged by the Department. The completed form included a response to the written certification stating whether the nominator has engaged in conduct in relation to the nomination that contravenes s. 245AR(1). In this regard, the Tribunal is satisfied that the applicant has provided confirmation of not engaging in conduct that would contravene s. 245AR(1).
The applicant has provided an organisation chart, that has the Restaurant Manager reporting to the Director and up to 5 employees reporting to the nominated position and a declaration to the Tribunal that identifies a claim for a need for the nominee to fill the advised position under the nominator’s direct control.
Given the above findings, the Tribunal is satisfied that the application complied with the requirements in r.5.19(2) and that r.5.19(4)(a) is met.
Nominator is actively and lawfully operating a business in Australia: r.5.19(4)(b)
Regulation 5.19(4)(b) requires that either there is no adverse information known to Immigration about the nominator or a person associated with the nominator, or it is reasonable to disregard any such information and 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 applicant provided evidence that the nominating business has an ASIC Registration document that identified that Rajmandeep Pty Ltd was registered on 13 August 2014 with an ABN of 31 601 552 069 and that the registration is current.
The Tribunal is satisfied that the business, based upon the information presently before the Tribunal, is actively operating lawfully and is directly operated by a principal shareholder.
Further, the business has demonstrated an economic capacity to support the employment of the nominee for a period exceeding two years. In this regard, the business had a profit of $3,810 in 2020, after the payment of all expenses, including the salary of the nominee; $956 in 2019 and $409 in 20218. The salary and wages for the corresponding years of operation, identified $208,682 in 2020; $272,930 in 2019 and $394,680 in 2018.
Given the above findings, the Tribunal is satisfied that r.5.19(4)(b) is met.
Position is not labour-hire: r.5.19(4)(c)
Regulation 5.19(4)(c) applies to nominators whose business activities include those relating to labour hire to an unrelated business. In these cases, the nominated position must be within the business activities of the nominator.
The Tribunal finds that r.5.19(4)(c) is not relevant to the current nomination.
Accordingly, the requirement in r.5.19(4)(c) does not apply.
Term of employment of the visa holder: r.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 having already been employed for three years. On a full-time basis.
The applicant provided the Tribunal with evidence that the nominee has signed a contract of employment with Rajmandeep Pty Ltd on 16 February 2016 and subsequently on 14 December 2020, for a minimum of 2 years employment conditional on the grant of a 187 visa, with a salary of $54,000 per annum and superannuation contribution to Sun Super and that the position was designated as Restaurant Manager on the organisation chart.
Further, evidence was provided that the nominee was employed on a 457 visa from 19 January 2016 and prior to the nominee’s appointment to the position of full-time Restaurant Manager.
Accordingly, the requirement in r.5.19(4)(d) is met.
No less favourable terms and conditions of employment: r.5.19(4)(e)
Regulation 5.19(4)(e) requires that the terms and conditions of employment applicable to the nominated position will be no less favourable than those that are, or would be, provided to an Australian citizen or permanent resident performing equivalent work in the same workplace at the same location.
The Tribunal is satisfied that the terms and conditions of employment are no less favourable than those that are/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 r.5.19(4)(e) are met.
No adverse information known to Immigration: r.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 rr.1.13A and 1.13B.
The Tribunal is satisfied that there is no adverse information known to Immigration or the Tribunal 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: r.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.
The evidence before the Tribunal identifies that the applicant has a contract of employment with the nominee that is operative from 14 December 2020 and is in compliance with the Fair Work Act 2009 requirements in terms of conditions of employment and has a salary that exceeds the minimum award entitlement. In this regard, the applicant provided evidence that the nominee was provided with a Fair Work Information Statement at the time of engagement.
Accordingly, the requirements of r.5.19(4)(g) are met.
Tasks of the position, genuine need for the position and training requirements r.5.19(4)(h)
55. 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 (see legislative instrument IMMI 16/059 that applied at the time of application), 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.
56. The Tribunal is satisfied on the basis of the evidence that the position and business is located in ‘regional Australia’ and that the applicant applied for Regional Certification, which was granted on 16 January 2016 by the relevant Regional Certifying Body, the Chamber of Commerce and Industry of Queensland that assessed the nomination application and confirmed the position could not be filled locally for the occupation of Restaurant Manager – ANZSCO Code: 141111 for the nominee Prahbjeet Singh on a salary of $54,000.
57. Further, the Tribunal is satisfied, based upon the evidence, that there is a genuine need for the position of Restaurant Manager to work under the direct control of the business owner/director and that the position was advertised locally and could not be filled by an Australian citizen or permanent resident who is living in the same local area with the equivalent skills and competencies. The Tribunal is also satisfied that the applicant engaged in market testing of the position prior to appointment of the nominee, who responded to the advertised position and was initially employed on a 457 sponsored visa.
58. The Tribunal is also satisfied that the business has the capacity to financially support the payment of wages and entitlements to the nominee based upon longevity of the business and the continuous profit, after the payment of all entitlements to employees, including the nominee, and business expenses.
59. The Tribunal is satisfied, that a Restaurant Manager is required for the business to manage the full scope of the operation, including budgeting, ordering, staff management, planning with the chef, banking, financial management of cash and the front of house management responsibilities, which are handled by the nominee. As such, the Restaurant Manager, duties are consistent with the ANZSCO descriptor for a Restaurant Manager, under the direct control of the Director.
60. Accordingly, the requirements of r.5.19(4)(h) are met.
Based on the findings above, the Tribunal is satisfied that the applicant meets the requirements of r.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.
Warren Stooke AM
MemberATTACHMENT - 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).
Key Legal Topics
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Immigration
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Administrative Law
Legal Concepts
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Judicial Review
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Procedural Fairness
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