Romagna Mia Pty Ltd (Migration)

Romagna Mia Pty Ltd (Migration) [2019] AATA 3533 (19 June 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Romagna Mia Pty Ltd
CASE NUMBER:  1709874
DIBP REFERENCE(S):  BCC2016/1387676
MEMBER:Nicola Findson
DATE:19 June 2019
PLACE OF DECISION:  Perth
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Statement made on 19 June 2019 at 1:14pm
CATCHWORDS
MIGRATION – Nomination – Direct Entry Nomination stream – financial capacity – RCB – genuine need – evidence provided upon review – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), s 245AR(1)
Migration Regulations 1994 (Cth), r 5.19
CASES
Bharaj Construction Pty Ltd v MIBP [2016] FCCA 902

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 Immigration on 19 April 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).
The applicant applied for approval on 7 April 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 (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).
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 that the applicant’s nomination did not satisfy r.5.19(4)(d)(i) of the Regulations, because the delegate was not satisfied that the applicant had demonstrated that it had the financial capacity to employ a person on a full-time basis in the nominated position for at least two years.
Mr Alan Fenati, Director, representing the applicant appeared before the Tribunal on 13 June 2019 to give evidence and present arguments. The Tribunal also received oral evidence from the nominated employee, Mr Andrea Gianola.
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 trades as an Italian restaurant in Dunsborough, Western Australia, 6281. At the time of application, it nominated the position of Café or Restaurant Manager (ANZSCO 141111) and stated the nominee would be paid a base salary of $42,266. The nomination was certified by the Regional Certifying Body. The applicant stated it employs 1 Australian employee and 5 foreign employees. It claims its gross payroll expenditure in the 12 months prior to the application was $116,623 and that it had spent $1167 on training Australian citizens / permanent residents.
The nomination application was accompanied by additional supporting documents. However, the delegate was not satisfied the applicant had provided financial documentation to demonstrate it had the financial capacity to provide the terms and conditions of the proposed employment. The delegate found the applicant did not meet r.5.19(4)(d)(i) of the Regulations, which requires that the nominated employee will be employed on a full-time basis in the position for at least 2 years.
Prior to the hearing, the applicant provided further information to demonstrate all the relevant requirements of r.5.19(2) and (4). The applicant provided to the Tribunal additional and updated evidence in support of the application, including but not limited to:
·     ASIC records confirming the applicant’s company registration
·     Financial Statements for Romagna Mia Pty Ltd for the years ended June 2017 and June 2018
·     Financial Statements for the Fenati Family Trust for the years ended June 2017 and June 2018, reflecting investment in Romagna Mia Pty Ltd and beneficiary distributions paid from Romagna Mia Pty Ltd
·     Payroll Activity Details for the nominated employee for the period 1 April 2017 to 21 May 2019
·     Current organisational structure chart
·     Job description for the nominated position
·     Current menu and wine list of the restaurant
·     Amended contract of employment dated 4 June 2019 between the applicant and the nominee recording that the base salary will be $46,794.80 and 9.5% superannuation
·     Pay Guide – Hospitality Industry (General) Award
A written submission accompanying the additional and updated information provided some background to the operation of the business and set out reasons why there is a need for the nominated position. It is claimed that it is necessary to have a full time Restaurant Manager and that it was difficult to find a suitable person from the local labour market who demonstrated the relevant qualifications and experience.
It was submitted that the applicant is an approved business for visa Subclass 457 and 482 purposes, and in January 2018 had this status renewed by the Department for a period of five years.
The submission also responds to the concerns set out by the delegate in the decision record, particularly as to the financial detail provided in the nomination application. It is submitted that the financial records of the applicant reflect a current average turnover of $540,000pa and profit of $283,000pa. As to the delegate’s concerns about the salary figures reflected in the applicant’s profit and loss statements for 2015 and 2016 being inadequate to cover the salaries of all the positions of the business, it was clarified that at this time, the wage expenditure reflected the actual cost of a full time Chef and Restaurant Manager (who resigned part way through the 2016 year) as well as casual workers engaged to work irregular hours during busier periods, for example for functions, and during public holidays and school holidays. The submission further explains that the wage expenditure from 2016 to date has adequately covered the salaries of two full time employees as well as casual workers. The 2017 and 2018 financial records provided to the Tribunal support these assertions.
The submission also addressed the delegate’s concern that the Restaurant Manager position had previously been occupied by a 187 permanent visa holder (sponsored in 2014), who appeared to have vacated his position at the end of 2015, being less than the mandatory two year minimum period of employment, and that there had been no report received from the nominator as to his early termination of employment. The submission set out that the employee in question had worked for over a year from the date of his visa grant before he resigned on his own accord; had remained working in the hospitality industry in the same region; and had himself disclosed his change of circumstances to the Department. A further submission was made at hearing, that there was no follow up by Departmental officers about this issue and also that the previous restaurant manager now holds Australian citizenship, by way of grant. In those circumstances, it was submitted that there was no obligation on the nominator to communicate the early termination.
At hearing, Mr Fenati told the Tribunal that the applicant was registered in November 2011, and commenced trading shortly after that date. He indicated that he and his wife had invested significant hours in establishing the growing business, and were now enjoying having three capable and experienced full time employees – including the nominated position, as well as a Chef and Cook – running the business, to enable them to focus on their young family.
He told the Tribunal that he could not understand the reason for the delegate’s refusal, given that the restaurant had always operated at a profit and had the turnover to cover wages.
Mr Fenati gave evidence of the nominated employee’s role and duties as a Restaurant Manager at the restaurant. He described how the nominee is central and instrumental to the smooth running of the restaurant. He indicated that the nominee organises and controls the operation of the restaurant, ensuring the dining facilities are clean and adequately set up; oversees an extensive food menu and wine list; is responsible for providing excellent customer service and taking payments; maintains stock levels and arranges orders for goods; trains and supervises wait and kitchen staff. Mr Gianola also outlined to the Tribunal his daily tasks and relevant experience.
Mr Fenati told the Tribunal that positions integral to the smooth running of the Italian restaurant had not been, and will continue to be, difficult to fill, especially in their regional area. He told the Tribunal that he would have difficulty finding a suitable replacement for the nominated employee if he were to leave. Mr Fenati explained how the nominee came to be in the applicant’s employ. He said that he advertised in the local newspaper and on Gumtree for several weeks. The nominee was the only applicant interviewed who Mr Fenati knew had the right skills and would be right for the role. The nominee has now worked for the applicant, in a full time capacity, for well over three years.
When asked if the business complies with all the relevant regulatory controls governing the industry it operates in, Mr Fenati said it does, and added that he has never had any accidents, liquor licence or tax issues. He confirmed that all workers are paid the relevant award regardless of whether they are Australian citizens, permanent residents, or visa holders.
The Tribunal has given careful consideration to this additional evidence. The Tribunal has also independently carried out its own research in respect of the applicant and found that it is a well-established Italian restaurant that receives excellent reviews on social media websites.
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 Tribunal has had regard to the information of the Department’s file as to the nomination, and is satisfied that these requirements are met. The application for approval was made on the approved form and was accompanied by the prescribed fee. The relevant s.245AR(1) certification was also provided in the application form.
The applicant has provided evidence describing the need for the business to employ a paid employee to work in the position under the nominator’s direct control. The Tribunal accepts that the business needs to employ a paid employee to work in the position under the nominator’s direct control. The tasks that the business needs the position to undertake are discussed in more detail below.
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)
Regulation 5.19(4)(b) requires that applicant is actively, lawfully and directly operating a business in Australia.
Having considered the material before it, including the nominator’s financial statements and business registration records, the Tribunal is satisfied that the nominator is actively and lawfully operating a business in Australia and directly operates that business.
Accordingly, the requirement in 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.
There is no evidence before the Tribunal to indicate that the applicant is involved in labour hire activities. The Tribunal is satisfied that the employment contract and organisational chart confirm that the nominee will work in the applicant’s direct employ.
Accordingly, the Tribunal finds that the position is not related to labour-hire and that the requirement in r.5.19(4)(c) is met.
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.
It was the delegate’s view that the financial information before him was unable to satisfy this requirement. The applicant has provided additional information and updated financial reports to the Tribunal that indicate that the company does have the financial capacity to employ the nominee at the specified salary, and the Tribunal accepts this evidence.
It is now over two years since the delegate’s decision, and documents provided by the applicant show that the nominee has continued to be employed in the nominated position. The Tribunal has also had regard to the terms and conditions of employment as set out in the employment contract (re-signed by the parties on 5 June 2019). The contract indicates that the nominee will be employed as a Restaurant Manager on a full time basis for two years, renewable by agreement with a base salary of $46,794.80pa plus superannuation. There is nothing in the contract that expressly excludes the possibility of extending the employment period.
Having regard to the totality of the evidence before it, the Tribunal is satisfied that the applicant has the financial capacity to provide the nominee with employment in the nominated position for at least two years full time and that the terms and conditions of that employment do not exclude the possibility of an extension.
Accordingly, the requirement in r.5.19(4)(d) is met.
No less favourable terms and condition 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 has had regard to the terms and conditions of employment as set out in the employment contract. The contract provides for the nominee’s leave entitlements and indicates that the base salary will be $46,794.80pa plus superannuation for a 38-hour week. The Tribunal is satisfied that the nominee’s terms and conditions of employment are in accordance with the Award that currently governs the hospitality industry, the Hospitality Industry (General) Award 2010, and that the employment contract reflects current employment laws.
In these circumstances, the Tribunal accepts that the salary offered meets the industry award and is consistent with what another Café or Restaurant Manager in a similar location would be paid. The Tribunal is accordingly satisfied 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.
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 notes that the delegate decision records a concern that there had been no report received from the nominator as to the early termination of the employment of a previous Restaurant Manager holding a 187 permanent visa holder. The evidence before the Tribunal is that the employee in question had worked for over a year from the date of his visa grant before he resigned on his own accord; had remained working in the hospitality industry in the same region; and had himself disclosed his change of circumstances to the Department. In addition, there has been no follow up by the Department about this matter.
The Tribunal also notes that the Department approved the applicant as a standard business sponsor, most recently in January 2018, and that it is permitted to sponsor Subclass 457 and 482 visa holders.
In these circumstances, the Tribunal considers it reasonable to disregard this, arguably, adverse information known to Immigration.
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.
There is no evidence before the Tribunal to suggest that the applicant does not have a satisfactory record of compliance with workplace relation laws.
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)
Regulation 5.19(4)(h) contains a number of alternative requirements. These are set out in detail in the attachment to the decision and those relevant to this matter are as follows:
·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.
Location of the position and the business
The first consideration under r.5.19(4)(h)(ii) is whether the position is located in regional Australia. Regulation 5.19(16) provides that ‘regional Australia’ is defined by the legislative instrument.
The Tribunal has considered the current legislative instrument (IMMI18/037), however, Schedule 3 of IMMI 18/037 states that it applies only to applications lodged on or after 18 March 2018[1]. The Tribunal notes that IMMI 18/037 repealed the previous legislative instrument (IMMI 17/059)[2].
[1] Relevantly, IMMI 18/037, Schedule 3 – Application of this Instrument states: “(1) This instrument applies in relation to the following: (a) an application for approval of a nomination in relation to the Subclass 187 (Regional Sponsored Migration Scheme) visa made on or after 18 March 2018…”
[2] See Schedule 4 of IMMI 18/037
When IMMI17/059 commenced on 17 November 2017, it revoked IMMI 16/045 (which is the legislative instrument that applied at the time the applicant lodged the nomination application). IMMI 17/059 did not include any saving or transitional provisions and was silent on how applications that had been made and not finally determined on the date it came into effect were to be treated. The Tribunal notes that the Department made a public statement in its Skilled Visa E-News November 2017 newsletter indicating that IMMI 17/059 only applies to nomination applications made on or after 17 November 2017. However, this is difficult to reconcile with the terms of the instrument itself and the unqualified revocation of IMMI 16/045. Therefore, the Tribunal considers IMMI 17/059 to be the applicable legislative instrument in this case.

In any event, the applicant’s nominated position is located in Dunsborough, Western Australia, 6281, and both IMMI 17/059 as well as IMMI 16/045 specify this location/postcode as regional Australia. Accordingly, the Tribunal finds that the requirements of sub-paragraph 5.19(4)(h)(ii)(A) and (E) are met.
Genuine need for the paid position, which cannot be filled by an Australian citizen or an Australian permanent resident
Subparagraph 5.19(4)(ii)(h)(B) requires the Tribunal to be satisfied that there is a genuine need for the applicant, as the nominator, to employ a paid employee to work in the position under the nominator’s direct control.
In considering this issue, the Tribunal has taken into account the evidence provided to the Tribunal regarding the nature and size of the business and the explanation as to why there is a genuine need for a paid Café or Restaurant Manager in the business. In particular, it takes into account the location and the services the business provides. The Tribunal accepts the evidence regarding the applicant’s efforts to find a suitably qualified and experienced staff member to fill the nominated position, on a long-term basis. The evidence before the Tribunal indicates that the role was advertised, and candidates were interviewed and deemed unsuitable, before Mr Gianola was offered the position. The Tribunal also takes into account the opinion of the regional certifying body, which it notes to be the Government of Western Australia, advising the Minister among other matters that the nominated position cannot be filled by an Australian citizen or permanent resident living in the same local area as the nominated position.
The Tribunal is satisfied that the applicant has demonstrated a genuine need for a paid position under its direct control and that it cannot be filled by a local resident. Accordingly, r.5.19(4)(ii)(h)(B) and (C ) are met.
Tasks of the position
The tasks of the nominated position must correspond to those of an occupation specified in the relevant legislative instrument.
The Tribunal has had regard to evidence that has been provided detailing the tasks that will be performed and is satisfied that they correspond to the tasks of the occupation of Café or Restaurant Manager specified in the relevant instrument. The applicable instrument specified for this purpose is IMMI 17/058. The application is for a Café or Restaurant Manager, ANZSCO 141111.
A detailed summary of the tasks to be performed in the position are consistent with the tasks for the position in ANZSCO, which include:
·planning menus in consultation with Chefs
·planning and organising special functions
·arranging the purchasing and pricing of goods according to budget
·maintaining records of stock levels and financial transactions
·ensuring dining facilities comply with health regulations and are clean, functional and of suitable appearance
·conferring with customers to assess their satisfaction with meals and service
·selecting, training and supervising waiting and kitchen staff
·may take reservations, greet guests and assist in taking orders
On the basis of the evidence before it, the Tribunal is satisfied that tasks associated with the position correspond sufficiently to those of the occupation of Café or Restaurant Manager, such that it is satisfied that the tasks expected to be performed by the nominee in the applicant’s business correspond to the tasks of a Café or Restaurant Manager at ANZSCO Skill Level 2.
The Tribunal notes in passing that the nominee has significant industry experience both in Italy as well as in Australia and satisfies the requisite level of relevant experience according to ANZSCO. The Tribunal also observes that the nominee has experience working for the applicant as a Restaurant Manager for over three years.
Accordingly, the requirements of r.5.19(4)(h)(ii)(D) of the Regulations are met.
Regional Certification
The Tribunal has considered the Form 1404 Regional Sponsored Migration Scheme – Regional Certifying Body Advice, issued on 16 May 2016 by Skilled Migration WA, Western Australian Department of Training and Workforce Development.
The Tribunal notes its earlier comments in relation to the current instrument IMMI 18/037, which only applies in respect of nomination applications made on or after 18 March 2018, and that it has therefore applied the provisions in the instrument that applied at the time the applicant lodged the nomination application, which was IMMI 17/059.
On the basis of the advice set out in the Form 1404 Regional Sponsored Migration Scheme – Regional Certifying Body Advice provided, the Tribunal is satisfied that the regional certifying body has advised the Minister about the matters set out in r.5.19(4)(e ) and r.5.19(4)(h)(ii)(B) and (C) of the Regulations. The regional certifying body states that:
·There is a need for a paid employee in the nominated position within the business activities of the nominating employer;
·The nominated position cannot be filled by an Australian citizen or an 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 the equivalent work in the same workplace at the same location.
Consistent with the decision of the Federal Circuit Court of Australia in Bharaj Construction Pty Ltd v MIBP [2016] FCCA 902, certification by a regional certifying body is not sufficient or determinative in relation to whether the nominator meets r.5.19(4)(e) , r.5.19(4)(h)(ii)(B) and r.5.19(4)(h)(ii)(C) of the Regulations. Accordingly, the Tribunal notes that, whilst having regard to the advice provided by the regional certifying body, it has reached its own conclusions about the matters the subject of the regional certifying body’s advice.
Having considered the Form 1404 provided, the Tribunal is satisfied that the requirements of r.5.19(4)(h)(ii)(F) are met by provision of the requisite Form 1404.
It follows that the Tribunal finds the applicant meets all the requirements of r.5.19(4)(h) of the Regulations.
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.
Nicola Findson
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).

[2019] AATA 3533

19 June 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Statutory Construction

Procedural Fairness

Remedies