Robtao Pty Ltd (Migration)

[2020] AATA 2899

Robtao Pty Ltd (Migration) [2020] AATA 2899 (1 June 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Robtao Pty Ltd

CASE NUMBER:  1725054

DIBP REFERENCE(S):  BCC2016/2177200

MEMBER:Ian Berry

DATE:1 June 2020

PLACE OF DECISION:  Brisbane

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

Statement made on 01 June 2020 at 1:11pm

CATCHWORDS
MIGRATION– Direct Entry Nomination stream –position is located in regional Australia – genuine need for the nominator to employ a paid employee – No less favourable terms and condition of employment –applicant lawfully operating a business in Australia–decision under review set aside

LEGISLATION
Migration Act 1958, s 245AR

Migration Regulations 1994, rr 1.13, 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 Immigration on 9 October 2017 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).

2. The applicant applied for approval on 27 June 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 2 alternative streams: a Temporary Residence Transition nomination (r.5.19(3)) stream and a Direct Entry nomination (r.5.19(4)) stream. 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).

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 r.5.19(4)(d) of the Regulations because the applicant has not demonstrated that its financial capacity to pay the full-time salary for the nominated position for at least 2 years.

5. The applicant appeared before the Tribunal on 22 November 2019 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s manager Mr D Vincenzo (the nominee).  

6. 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

7. The issue in this case is whether the applicant (trustee of the Devlin Trust) 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 application is compliant: r.5.19(4)(a)

8. 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.

9. There is not any information either on the departments or Tribunal file suggesting that the application was not made on the approved form or that the prescribed fee for the lodgement of the application was not paid. 

10. The applicant has provided a certification form certifying that the applicant has not engaged in conduct concerning the subject nomination that constitutes a contravention of s.245AR(1). 

11. Accordingly, the requirement in r.5.19(4)(a)is met.

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

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

13. The applicant’s financial position is set out as follows:

Fiscal year ending	30 June 2015	30 June 2016	30 June 2017	30 June 2018	30 June 2019
Total operating income (Turnover)	10,531	374,644	316,380	407,992	414,045
Expenses	21,636	385,828	322,596	385,502	403,165
Net Profit/(Loss) before taxation	11,105	(11,185)	(6,217)	22,490	10,880
Assets	99,985	193,951	178,826	161,366	166,063
Liabilities	111,090	216,241	207,332	136,305	130,122
Net assets	(11,105)	(22,290)	(22,290)	25,061	35,941

1. The applicant’s accountant Mr Dzaferrovic CPA[1] provided a reference dated 9 November 2017. The applicant operates a café at Noosa called ‘Black Pepper Café ’ the last 5 years (since 2015). The applicant’s director Linda De Vincenzo and the restaurant manager the nominee emigrated from New Zealand investigating the opportunities in purchasing a small business in Australia. Both Mrs De Vincenzo and the nominee had operated a Muffin Break franchise successfully in New Zealand, and had that experience in running a café business.

   [1] D1: 286

2. The applicant’s business operates 6 days a week and has the capacity to seat 39 customers. The business was purchased by the applicant on 11 June 2015. The business consistently met $7,000.00 per week turnover  Initially, incurring a loss, Mr Dzaferrovic CPA explains that tax planning measures however has been operating at a profit which has consistently increased.

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

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

4. 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.

5. There is no evidence on either the department or Tribunal file, nor any evidence given by the applicant of it being involved in labour hire activities.

6. Accordingly, the requirement in r.5.19(4)(c) is met.

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

7. Regulation 5.19(4)(d) requires the nominee to be employed in the nominated position for at least 2 years full time, and the terms and conditions of that employment do not expressly exclude the possibility of an extension.  The applicant’s letter of appointment valid upon the approval of the applicant’s nomination and to dated 20 July 2015, will be paid $55,000 per annum plus superannuation. It does not exclude the nominee working for at least 2 years. The applicant has employed the nominee as its café manager for at least 2 years. 

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

   No less favourable terms and condition of employment: r.5.19(4)(e)

9. 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.

10. The financial statements provided by the applicant reveal the nominator had in the early stages of the acquisition of its business posted losses for the financial years ending 30 June 2015 2 the financial year ending 30 June 2017, the details of which are set out in the table in paragraph 12.

11. The applicant submitted evidence from Payscale, Open Universities and Job Lookout of examples of the salaries that accompany a café/restaurant manager. Payscale submits the pay range is $37,897 to $57,604.  The median been $47,750.50.  Open Universities Australia submit that the average salary is $52,500 depending on the skill level experience and the employer.  Job Outlook leans toward a salary of approximately $1000 each week which is annually $52,000.  In this instance the manager is commanding $55,000.  Evidence was also provided as to what the market was playing.  Advertisements indicate a range of $50,000-$60,000 (as at 27 April 2016).  Another advertisement on the north coast (Sunshine Coast) suggested a range of $45,000 to $50,000 plus superannuation.

12. The Tribunal is satisfied that the terms and conditions of employment which are applicable to the applicant’s position of café or restaurant manager is no less favourable than those that would be provided to an Australian citizen or Australian permanent resident performing equivalent work in the same workplace at the same location.

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

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

14. 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. 

15. There is no information upon either the departmental or Tribunal files concerning any adverse information known about the applicant or any person associated with the applicant. 

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

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

17. 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.

18. There is no information known to the Tribunal from either evidence or departmental and Tribunal files of the applicant having anything other than a satisfactory record of compliance with workplace relations laws in the area in which it operates.

19. 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)

20. 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 15/091), 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.

21. The evidence of the nominee is that he is the café manager of the Black Pepper restaurant café at Noosa Junction a tourist area on the Sunshine coast north of Brisbane.  It is not a fast food establishment and has a varied menu and seats patrons within its 39 seated café.  It employs the nominee as the general café manager and answerable to him is the chef who is an Australian citizen with barista and café staff operating front of house .  The chef has an assistant chef who is also an Australian citizen .  The business is located within regional Australia and has obtained certification that the Regional Sponsored Migration Scheme – Regional Certifying Body advice (form 1404).  The advice indicates that there is a need for a paid employee in the nominated position within the business activities of the nominated employer.  That the nominated position cannot be filled by an Australian citizen or Australian permanent resident who is living in the same local area as the nominated position and the terms and conditions of employment that are applicable to the nominated position will be no less favourable than the terms and conditions that are or would be provided to an Australian citizen or Australian permanent resident for performing equivalent work in the same workplace at the same location.

22. The tasks that are being performed by the general café manager correspond to the tasks of the occupation specified in the IMMI 15/091 where the café or restaurant manager is listed as ANZSCO code 141111.

23. The tasks undertaken by the nominee are set out in the document entitled ‘job description – general café manager’ [2] are significantly the tasks set out in ANZSCO.

    [2] D1: 142

24. The position is located in Noosa Junction which is a regional location within Australia.

25. The Tribunal is satisfied that there is a genuine need for the applicant to have a café or restaurant manager under a strict control which cannot be filled by the Australian citizen or permanent resident who is living in the same local area.

26. Accordingly the requirements of r.5.19(4)(h) are met.

27. 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

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

    Ian Berry
    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).