Rodferns Pty Ltd (Migration)

[2021] AATA 4873

Rodferns Pty Ltd (Migration) [2021] AATA 4873 (8 November 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Rodferns Pty Ltd

CASE NUMBER:  1915702

HOME AFFAIRS REFERENCE(S):          BCC2017/2204523

MEMBER:Stephen Witts

DATE: 8 November 2021

PLACE OF DECISION:  Melbourne

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

Statement made on 08 November 2021 at 7:59am

CATCHWORDS
MIGRATION–nomination – Cook – Direct Entry nomination stream –financial capacity to employ the nominee full-time for a minimum of 2 years – genuine need for the nominator to employ a paid employee – no less favourable terms and condition of employment –decision under review set aside

LEGISLATION
Migration Act 1958, ss 65, 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 Home Affairs on 30 May 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 22 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 reg 5.19(4) of the Regulations because the delegate was not satisfied that the application could demonstrate that the nominated person will be employed as a cook on a full-time basis in the position for at least two years.

5. The applicant, Mr Harminder Singh, the Director of Rodferns Pty Ltd, appeared before the Tribunal on 4 November 2021 to give evidence and present arguments.

6. The Tribunal also heard oral evidence from the nominee Ms Ampritpal Gill.

7. The applicant was represented in relation to the review

8. 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

9. 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.

10. According to the delegate’s decision record provided to the Tribunal by the applicant, the applicant, Rodferns Pty Ltd, now trading as Spicy Flavours Indian Restaurant since 2019, has been trading since 30 January 2014 as other businesses in the restaurant industry. According to the delegate the applicant provided an application that stated that Ms Gill has been offered full-time employment as a cook. According to the delegate it made a decision under regulation 5.19(4) as above.

11. The Tribunal has considered all the material before it including evidence provided prior to the hearing and evidence given at hearing. The Tribunal notes material has been provided to the Tribunal stating that the applicant actively trades as a business and has now been trading since 2014.

12. According to this submission the applicant has been actively trading in Australia from 2014 and from July 2018 until September 2018 had total sales of $84,729 which increased to $167,209 until December 2018 and that sales in the first quarter in the year 2019 were $170,327 which increased to $170,163 in quarter four of 2019. It was further stated that the company paid $222,832 in wages in the year ending June 2019 and $320,024 in the year ending June 2020.

13. In other material provided it was also noted that at end of June 2020 there was a profit of $43,061. It was also indicated that there were total liabilities as of 30 June 2020 of $549,264 and the profit to May 2021 was $42,110.

14. The applicant stated that he first came to Australia in 2007 or 2008 as a student and successfully completed a diploma level course in hospitality and that since then he has worked in various hospitality businesses. He stated that he was currently working in the mining industry as an operator of trucks and has been employed by Rio Tinto for 18 months.

15. The Tribunal had a discussion with the applicant regarding his financial situation in the business and the applicant confirmed the above material.

16. He stated that he currently employs seven employees, including  two staff that are Australian citizens, a kitchen hand who is on a student visa, a trainee cook who is on a student visa, two chefs who are on bridging visas and a cook, also on bridging visas. The applicant confirmed that as well as this application for a cook he also has three other nominations in place for hearing before the Tribunal for various staff including a chef, cook, and café and restaurant manager.

17. At the hearing the Tribunal had a discussion with nominee who stated that she is currently working in the business as a cook and that she has been working in this current role for five months but that she has also worked with the restaurant at other times on a full-time basis in the same role and that she is paid $55,000 per year and superannuation in accordance with the contract. She stated that she is currently on a 457 visa and that she first came to Australia as a student and studied various certificate level and diploma level courses in cooking and hospitality management.

18. The Tribunal had a detailed discussion with the applicant and the nominee about her duties and responsibilities as a cook and about her ongoing employment in that role for several years.

19. The Tribunal has considered this matter very carefully and finds that the evidence provided by the applicant and the nominee to be credible and that this is a genuine position in that the nominee is carrying out the duties of a cook and has been for several years and that the business is in a position to continue to employ her for another two years.

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

20. 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.

21. The applicant lodged the application to nominate the nominee for the position of cook with the business on form 1395 and payment of a 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.245(1).

22. 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)

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

24. The applicant provided evidence that the nominating business, Rodferns Pty Ltd Pty Ltd, is registered with ASIC and has an ACN 167798576 and currently the business has one director, according to the evidence of the applicant, who represented the company at the hearing.

25. Accordingly, the requirement in reg 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. The Tribunal finds that r.5.19(4)(c) is not relevant to the current nomination.

28. Accordingly, the above requirement is met.

    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. As noted above the Tribunal finds that the position of chef in this case is genuine and has in fact been carried out for several years and that this employment could continue for at least another two years.

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

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

32. 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.

33. The Tribunal finds that there is no evidence that the terms and conditions applicable to this position than those provided to an Australian citizen performing equivalent work in the same place at the same location.

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

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

35. 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.

36. The Tribunal finds that there is no adverse information known to it about the nominator or a person associated with the nominator.

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

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

38. 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.

39. There is no evidence before the Tribunal that the applicant does not have a satisfactory record of compliance with workplace relations laws in the location which operates business and employs staff.

40. 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)

41. 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 IIMMI and 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.

42. After careful consideration the Tribunal finds that the tasks that will be undertaken and performed correspond to the tasks of an occupation specified in the relevant instrument and that there is a genuine need for the nominator to employ the person identified as a paid employee to work in the business under the nominator’s direct control and that the nominator meets the training requirements specified, that the business and the position is located in regional Australia and that there is a genuine need to employ that person as a paid employee and that the position cannot be filled by an Australian citizen or permanent resident who is living in the same local area.

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

44. 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

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

    Stephen Witts
    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).