Royal Tandoori Trust (Migration)

Royal Tandoori Trust (Migration) [2023] AATA 3941 (20 September 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Royal Tandoori Trust
REPRESENTATIVE:  Mr Mark Glazbrook (MARN: 0100185)
CASE NUMBER:  2000492
HOME AFFAIRS REFERENCE(S):          BCC2019/5739574
MEMBER:Peter Emmerton
DATE:20 September 2023
PLACE OF DECISION:  Adelaide
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Statement made on 20 September 2023 at 12:42pm
CATCHWORDS
MIGRATION – Employer Nomination – approval of nominated position – Direct Entry stream – Café or Restaurant Manager – future employment – financial capacity to pay salaries – current financial documentation – decision under review set aside

LEGISLATION
Migration Regulations 1994 (Cth), r 5.19
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 24 December 2019 to reject the applicant’s application for approval of the nomination of a position under reg 5.19 of the Migration Regulations 1994 (Cth) (the Regulations).
The applicant applied for approval on 13 November 2019. The requirements for the approval of the nomination of a position in Australia are found in reg 5.19 of the Regulations, which contains general requirements for approval and additional requirements for approval set out in three alternative streams: a Temporary Residence Transition stream, a Direct Entry stream and a Labour Agreement stream. If the application meets the requirements for approval then the application must be approved: reg 5.19(3)(a). If any of the requirements are not met then the application must be refused: reg 5.19(3)(b).
In this case, the applicant has applied for approval of a nomination, seeking to satisfy the criteria in the Direct Entry stream.
The delegate refused the application on the basis the applicant’s nomination did not satisfy reg 5.19(9)(e) of the Regulations because they were not satisfied that the nominator had the financial capacity to offer full-time employment to the visa applicant for at least 2 years.
The applicant was represented in relation to the review.
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 general requirements for approval of the nomination set out in reg 5.19(4) and the stream specific requirements set out in reg 5.19(9), which are extracted in the attachment to this decision. For the nomination to be approved, all the requirements must be met.
The Tribunal has read and carefully considered all the evidence provided to the delegate and the Department. It has also read and carefully considered the following additional evidence provided to the AAT.
·     ABN lookup data page
·     BAS documentation, between April 2021 and March 2023
·     Organisational Chart
·     Deed of Settlement, 1 April 1992
·     Financial Statements FY 2020, FY 2021, FY 2022
·     Market research
·     Job description
·     ATO Taxation Return FY 2021, FY 2022
·     Restaurant menu and pricing
·     Applicant submission, undated
·     Representative submission dated 15 August 2023
Application requirements – reg 5.19(4)(a)
Regulation 5.19(4)(a) requires that an application for approval be made in accordance with a number of requirements set out in reg 5.19(2). Regulation 5.19(2) requires that an application must:
·be made in accordance with approved form 1395 (Internet);
·identify the position;
·identify a person in relation to the position;
·identify an occupation in relation to the position,
·identify the subclass and stream to which the nomination relates;
·be accompanied by the fee mentioned in reg 5.37; and
·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 s 245AR(1) of the Migration Act 1958 (Cth) (the Act).
Applications made on or after 12 August 2018 must also be accompanied by any nomination training contribution charge the nominator is liable for, and identify the annual turnover for the nomination: regs 5.19(2)(fa), (fb). The liability is imposed by s 140ZM of the Act and the charge is imposed by the Migration (Skilling Australians Fund) Charges Act 2018 (Cth), with the amount specified in the Migration (Skilling Australians Fund) Charges Regulations 2018 (Cth) (Charges Regulations). ‘Annual turnover’ is defined in the Charges Regulations for liable persons operating a business in Australia as the total ordinary income (within the meaning of the Income Tax Assessment Act 1997 (Cth)) derived in the most recent income year (within the meaning of the Income Tax Assessment Act 1997 (Cth)) ending before the day on which the nomination application is made. In any other case, it is defined as the total income the person liable derived in the ordinary course of business in the most recent financial year ending before the day on which the nomination application is made.
Further, if the subclass identified in the application is Subclass 187, the application must be made before 16 November 2019. The application was made on 13 November 2019 which is post 12 August 2018 and prior to 16 November 2019.
The subclass identified in the application is Subclass 187. The application was made in accordance with approved form 1395 (internet). It identified the position, the person in relation to the position and the occupation in relation to the position. It identified the subclass and stream to which the nomination relates.
The application was accompanied by the relevant fee mentioned in reg 5.37 and relevant nomination Training Contribution Charge. The application was required and did identify the annual turnover in their application as the application was made post 12 August 2018.
It included 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 s 245AR(1) of the Migration Act 1958 (Cth) (the Act).
Given the above findings, the Tribunal is satisfied that the application complied with the requirements in reg 5.19(2) and that reg 5.19(4)(a) is met.
No adverse information known to Immigration – reg 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.
‘Adverse information’ is defined by reg 1.13A as any adverse information relevant to the person’s suitability as an approved sponsor or a nominator. Regulation 1.13A sets out a non-exhaustive list of examples of the kinds of information which meet this definition, including information that the person:
·has contravened a law of the Commonwealth, a State or a Territory, or
·is under investigation, subject to disciplinary action or subject to legal proceedings in relation to a contravention of such a law, or
·has been the subject of administrative action (including being issued with a warning) for a possible contravention of such a law by a Department or regulatory body that administers or enforces the law, or
·has become insolvent (within the meaning of s 95A of the Corporations Act 2001 (Cth)), or
·has given, or caused to be given, to the Minister, an officer, the Tribunal or an assessing authority a ‘bogus document’ (as defined in s 5(1) of the Act), or ‘information that is false or misleading in a material particular’ (as defined in reg 1.13A(4)).
The term ‘associated with’ is also given a non-exhaustive definition for the purposes of this requirement, in reg 1.13B. It provides that two persons are associated with each other in a wide range of relationships and situations, including if:
·they are or were spouses or de facto partners or members of the same immediate, blended or extended family, or have or had a family-like relationship, or belong or belonged to the same social group, unincorporated association or other body of persons, or have or had common friends or acquaintances, or
·one is or was a consultant, adviser, partner, representative on retainer, officer, employer, employee or member of the other or any corporation or other body in which the other is or was involved (including as an officer, employee or member), or
·a third person is or was a consultant, adviser, partner, representative on retainer, officer, employer, employee or member of both of them, or
·they are or were related bodies corporate (within the meaning of the Corporations Act 2001 (Cth)) or,
·one is or was able to exercise influence or control over the other, or
·a third person is or was able to exercise influence or control over the both of them.
Regulation 1.13B(2) provides that it does not matter if one of the persons mentioned has ceased to exist.
There is no evidence of any adverse information relevant to the person’s suitability as an approved sponsor or a nominator before the Tribunal.
Given the above findings, the Tribunal is satisfied that reg 5.19(4)(b) is met.
Mandatory licencing, registration and memberships – reg 5.19(4)(c)
Regulation 5.19(4)(c) provides that if it is mandatory in the State or Territory in which the position is located for a person to hold a licence or a registration of a particular kind, or be a member (or a member of a particular kind) of a particular professional body, to perform tasks of the kind to be performed in the occupation, the identified person is, or is eligible to become, the holder of the licence, the holder of the registration, or a member of the body, at the time of application.
In this instance, the relevant State or Territory is South Australia. The relevant occupation is Café or Restaurant Manager, ANZSCO 141111, Skill level 2. The date of the nomination application is 13 November 2019, the date of the corresponding visa application is 15 November 2019.
There are no relevant licencing / registration / membership requirements for this occupation.
Given the above findings, the Tribunal is satisfied that reg 5.19(4)(c) is met.
Satisfactory compliance with employment laws - reg 5.19(4)(d)
Regulation 5.19(4)(d) requires that the nominator has a satisfactory record of compliance with the laws of the Commonwealth, and of each State or Territory in which the nominator operates a business and employs employees in the business, relating to employment.
The Tribunal notes that there is no evidence before it that the applicant has anything but a satisfactory record of compliance with workplace relations law in Australia.
Given the above findings, the Tribunal is satisfied that reg 5.19(4)(d) is met.
Training contribution debts – reg 5.19(4)(da)
Regulation 5.19(4)(da) applies to applications made on or after 12 August 2018. It requires that any debt due by the nominator as mentioned in s 140ZO of the Act, relating to recovery of nomination training contribution charges and penalties for underpayments, has been paid in full.
There is no evidence before the Tribunal that any debt due by the nominator as mentioned in s 140ZO of the Act, relating to recovery of nomination training contribution charges and penalties for underpayments, has not been paid in full. The Tribunal notes that the application was made post August 2018.
Given the above findings, the Tribunal is satisfied that reg 5.19(4)(da) is met.
Actively and lawfully operating business – reg 5.19(9)(a)
Regulation 5.19(9)(a) requires that the nominator is actively and lawfully operating a business in Australia.
The Tribunal has been provided with a relevant range of detailed Financial Statements and the current BAS Statements. It has perused the FY 2020, FY 2021 and FY 2022 Financial Statements and FY 2021 and FY 2022 ATO Taxation Returns. This is in addition to the earlier years of financial information provided to the Department and delegate. The Tribunal also researched ASIC Registration details for the ABN 68 636 184 077, active from 10 June 2000, perused the company web site and customer reviews on linked sites. The restaurant is a well-known local entity and is known to the Tribunal. The Tribunal is satisfied that the applicant is actively, lawfully and directly, operating a business in regional Australia.
Given the above findings, the Tribunal is satisfied that reg 5.19(9)(a) is met.
Labour hire businesses – reg 5.19(9)(b)
Regulation 5.19(9)(b) applies to nominators whose business activities include those related to labour hire to other unrelated businesses. In these cases, the nominated position must be within the business activities of the nominator and not for hire to other unrelated businesses. The Tribunal finds that r. 5.19(9)(b) is not relevant to the current nomination. the nominated position is within the nominator’s business and not for hire to unrelated businesses.
Given the above findings, the Tribunal is satisfied that reg 5.19(9)(b) does not apply or is met.
Genuine need for employment – regs 5.19(9)(c) and (d)
Regulation 5.19(9)(c) requires the nomination application to identify a need for the identified person to be employed in the position, under the direct control of the nominator, and reg 5.19(9)(d) requires this need to be genuine.
The Tribunal has had regard to the size and scope of the nominating entity’s modest business operation contained within a neighbourhood shopping centre in an affluent inner metropolitan suburb in Adelaide, South Australia. It notes that the restaurant is busy and a well-known destination. The Tribunal is aware that the nominating entity closed their second restaurant towards the end of 2018 as they realised that with their advancing years, they were no longer able to successfully run 2 restaurants. This was in part due to staffing challenges, the retirement of their manager at the time and in part due to their skill base not relating to business management but rather skill in food preparation and hospitality.
It is noted that Mr Kumar is now in approaching his mid-70s. It is self-evident that the nominator cannot operate this business entity without a relatively self-contained structure and specialist employees in place. The family member recipients of the Trust’s profit disbursements do not receive a wage as they are paid from the Trust profits. This minimises the weekly wage allocations as does the fact that Mr Kumar is the principal chef. It in addition means that as like most Trust entities it minimises its capital and or profit retention.
The majority of staff employed are casual and part-time international students whose hours are limited by their visa conditions. This fact ultimately caused additional problems when the Restaurant Manager resigned. As a consequence of the reliance on a casual workforce there was no viable succession plan. The organisation was left without the potential for experienced management nor the capacity for casual staff to step up to greater responsibility encompassing longer hours without violating their visa conditions. This directly resulted in the need to engage an experienced Café or Restaurant Manager from the open employment market.
The Tribunal is satisfied that there is a genuine need for the nominator to employ a paid employee to work in the position under the nominator’s direct control.
Given the above findings, the Tribunal is satisfied that regs 5.19(9)(c) and (d) are met.
Future employment – regs 5.19(9)(e), (f) and (g)
Regulations 5.19(9)(e), (f) and (g) contain requirements relating to the future employment of the identified person.
Firstly, reg 5.19(9)(e) requires that the identified person will be employed on a full-time basis in the position for at least 2 years.
Secondly, reg 5.19(9)(f) requires that the terms and conditions of the identified person’s employment will not include an express exclusion of the possibility of extending the period of employment.
Finally, reg 5.19(9)(g) requires that the nominator’s business has the capacity to employ the identified person for at least 2 years and to pay the person at least the annual market salary rate for the occupation each year. The ‘annual market salary rate’ is the earnings an Australian citizen or permanent resident earns or would earn for performing equivalent work on a full-time basis for a year in the same workplace at the same location: reg 1.03.
The Tribunal notes that the delegate was not satisfied that the financial position of the applicant demonstrates that it can comply with the requirement to provide at least two years of full-time employment to the visa applicant as a Café or Restaurant Manager. The Tribunal has formed a different view having received and reviewed substantially more current information than was available to the delegate at the time of their decision. Importantly the current financial documentation provided in evidence demonstrates a more financially robust business at this time of decision than when the delegate made their decision.
The restaurant has rebounded from the Covid-19 pandemic successfully. FY 2021 and FY 2022 both show solid modest net profit prior to distribution of funds to the Trust beneficiaries. The Tribunal has analysed the income for the previous 3 Financial Years. The BAS Returns demonstrate that in the first 3 quarters of FY 2023 revenues have exceeded all 4 quarters of FY 2022, (again using the BAS Returns). A reasonable and conservative extrapolation of these results suggests the total income for FY 2023 will be 40-50% greater than FY 2022, in which a solid net profit was achieved.
The Tribunal notes an intangible and untestable likelihood that the restaurant is intrinsically intertwined with a family pride and philosophy associated with their culture post the founders migration to Australia. This is an additional powerful motivator for the family’s desire to succeed in this venture.
The Tribunal is satisfied that the business can employ the identified person full-time for at least 2 years.
The Tribunal has had regard to the most recent Employment Agreement and the detailed position description. It is satisfied that the nominee will be appointed for a period of at least 2 years employment from grant of visa and the terms of employment do not include an express exclusion of the possibility of extending the period of employment.
The Tribunal has already noted the business has growing revenues and commensurate profit, year on year. The longer-term relative stability of the nominating entity following the Covid-19 pandemic disruptions, in an ever increasing and competitive market attests to the nominator’s ability to operate successfully. Their location in a busy shopping precinct located in an affluent inner metropolitan suburb in Adelaide, South Australia would be a clear advantage in terms of business generation. However, this prominent location could itself create additional recruitment and retention pressures.
The Tribunal observes that one of the potential challenges facing the business is retaining the visa applicant and the nominator’s obvious reliance upon their services, particularly in-light of the nominators ongoing growth, the founders advancing years and the family arrangements. It is aware that the workforce is mobile, that the specialist skills associated with this type of fast paced operation are highly sought after and readily transferred between competing businesses.
The Tribunal is cognisant of industry competitor’s actively targeting competing businesses, trying to poach key staff to overcome their own staff shortages or obtain a market advantage. In addition, it is observed that these roles are not always highly sought after by appropriately qualified personnel as they are often relatively modestly rewarded whilst also presenting complex and challenging workloads, split work hours and responsibilities. The Tribunal notes that an additional complicating factor is managing a family business in which the founder participates, albeit from the kitchen.

It is clear, that retaining and recruiting staff has become even more difficult since the advent of the Covid-19 pandemic and the subsequent staff shortages caused by the effective cessation of temporary and permanent immigration due to mandated border closures for a substantial period. Neither the economy nor the immigration flow have returned to a point of equilibrium, It is not expected to do so for a considerable time according to a vast array of expert opinions and reports.
Current media and business reports associated with the analysis of consumer confidence and employment data, coupled with present time job vacancies and recruitment challenges demonstrate a deficit of suitably qualified potential employees in many sectors. This industry is one such sector. The problem is exacerbated in regional areas or smaller States, particularly if an organisation is reliant upon temporary or permanent immigration as part of their labour source.
There is an expectation, that it will take considerable time before temporary immigration returns to pre-Covid levels. Regional locations as in this case, face enhanced vulnerability due to greater needs, higher employee visibility and smaller, often more transient candidate pools. It is well known that the current immigration setting associated with temporary and permanent net migration is operating at a record high level to ameliorate the pandemic impacts.
The Australian Bureau of Statistics data released in June 2022, shows that in May 2022 there were approximately 500,000 job vacancies nationwide, the number having increased by 13.8% in the 3 months to May 2022. That level of vacancies is more than double the level experienced in February 2020, immediately prior to the Covid-19 pandemic.
The Tribunal notes the Reserve Bank of Australia’s current Cash Rate level has been in the ascendency which is designed to cool an overheating economy but is yet to achieve its stated aim although there is a growing expectation that rate rises are most likely at the end of the current cycle.
The Tribunal in addition notes the modelling associated with unemployment in Australia released in the Australian Government’s Budget on 25 October 2022. It further reinforces that low unemployment is expected to continue for some years into the forward estimates period of 4 years.
The recently updated Australian Bureau of Statistics data released on 14 September 2023, shows in August 2023 the following key statistics in trend terms:
- unemployment rate remained at 3.7%.
- participation rate increased to 67.0%.
- employment increased to 14,096,100.
- employment to population ratio remained at 64.5%.
- underemployment rate increased to 6.5%.
- monthly hours worked increased to 1,954 million.
The Tribunal has been provided with the visa applicant’s employment contract. The Tribunal accepts that the nominee’s current annual salary of AUD $55,000, plus current Superannuation Guarantee, (11%), as appropriate and falls in the mid-lower quartiles. Total remuneration package equates to AUD $61,050.
The Tribunal has researched a popular online employment web site and it observes more than 20,000 similar roles are currently being recruited.
The Tribunal researched the salaries offered for similar positions. It is satisfied that the terms and conditions of employment are equivalent to other employees with the same experience performing equivalent work in the same workplace or a similar workplace. It is also acknowledged that the other work-place conditions stated in the contract align with current legislative and regulatory requirements. Accordingly, the requirements of r.5.19(4)(e) are met.
The Tribunal has formed the view as a result of the Finance data and ATO Taxation Returns provided, the nominator is capable of employing the visa applicant for at least 2 years at the current rate as detailed in previous paragraphs of this decision
Given the above findings, the Tribunal is satisfied that regs 5.19(9)(e), (f) and (g) are met.
Annual earnings – reg 5.19(9)(h)
Regulation 5.19(9)(h) provides that the requirements set out in reg 2.72(15) must be met, applying regs 2.72(15) and (16) as if reg 2.72(15)(a) did not apply and references to ‘the nominee’ and ‘the person’ were references to the identified person and the nominator respectively. Regulation 2.72(15) contains several requirements which must be met if the identified person’s annual earnings in relation to the occupation will not be at least the amount specified in the instrument IMMI 18/033. Regulation 2.57A provides for the meaning of ‘earnings’. Where reg 2.72(15) applies, it requires that:
·the annual market salary rate (the rate) for the occupation has been determined by the applicant by reference to instrument IMMI 18/033: reg 2.72(15)(c). The ‘annual market salary rate’ means the earnings an Australian citizen or an Australian permanent resident earns or would earn for performing equivalent work on a full-time basis for a year in the same workplace at the same location: reg 1.03.
·the rate, excluding any non-monetary benefits (as defined in reg 2.57A(3)), for the occupation is not less than the temporary skilled migration income threshold specified in the instrument IMMI 18/033 (TSMIT), unless the rate for the occupation is not less than the TSMIT, and it is reasonable in the circumstances to disregard this criterion: regs 2.72(15)(d) and 2.72(16)(a);
·the identified person’s annual earnings in relation to the occupation will not be less than the rate for the occupation, unless it is reasonable in the circumstances to disregard this criterion, and the criterion in reg 2.72(10)(b) in relation to the need for a full-time position is disregarded under reg 2.72(10A): regs 2.72(15)(e) and 2.72(16)(aa). However, in this case, the power under reg 2.72(10A) does not arise;
·the identified person’s annual earnings, excluding any non-monetary benefits (as defined in reg 2.57A(3)), in relation to the occupation will not be less than the TSMIT, unless it is reasonable in the circumstances to disregard this criterion: regs 2.72(15)(f) and 2.72(16)(b); and
·either there is no information known to Immigration that indicates the rate for the occupation is inconsistent with Australian labour market conditions relevant to the occupation, or it is reasonable to disregard any such information: reg 2.72(15)(g).
The Tribunal, as previously stated, has perused the visa applicant’s employment contract. The rate of annual remuneration is $55,000 plus the Superannuation Guarantee. This exceeds the amount specified in the relevant instrument for Regulation 2.72(15)(b). The Tribunal is also aware the recent reset of the TISMIT substantially increases the necessary remuneration threshold above this level. However, the relevant instrument at the time of application must and has been applied.
The Tribunal, as previously stated, has researched the salaries offered for similar positions and had regard for the salary determination evidence provided by the applicant. The contracted remuneration appears to fall within the lower to mid quartiles of similar positions currently on offer.
As the annual earnings in relation to the occupation will be at least the specified amount, the requirements of reg 2.72(15) do not apply.
Given the above findings, the Tribunal is satisfied that reg 5.19(9)(h) is met.
No information to indicate less favourable employment conditions – reg 5.19(9)(i)
Regulation 5.19(9)(i) requires that there is either no information known to Immigration that indicates the employment conditions (other than in relation to earnings) that will apply to the identified person are less favourable to those that apply, or would apply, to an Australian citizen or permanent resident performing equivalent work at the same location, or that it is reasonable to disregard any such information.
The Tribunal has as earlier stated, perused the visa applicant’s current employment contract and is satisfied that employment conditions align with relevant legislation and regulation. It is satisfied that the terms and conditions of employment are at least equivalent to other employees with the same experience performing equivalent work in the same workplace or a similar workplace.
Given the above findings, the Tribunal is satisfied that reg 5.19(9)(i) is met.
Tasks correspond to specified occupation – reg 5.19(9)(j)
Regulation 5.19(9)(j) provides that the requirements in reg 5.19(10) or reg 5.19(12) must be met. Regulations 5.19(10) and (12) respectively relate to nominations for a Subclass 186 (Employer Nomination Scheme) visa, and nominations for a Subclass 187 (Regional Sponsored Migration Scheme) visa. Nominations identifying a Subclass 187 visa can only be made before 16 November 2019. In this case, the nomination relates to a Subclass 187 visa.
Regulation 5.19(12) contains a number of requirements including that:
·the position is located at a place in regional Australia and the business operated by the nominator is located at that place: reg 5.19(12)(a) and (b).
·the position cannot be filled by an Australian citizen or permanent resident who is living in, or would move to, the local area concerned: reg 5.19(12)(c).
·the tasks to be performed in the position correspond to the tasks of an occupation specified in a legislative instrument made under reg 5.19(13) and in force at the time the application is made; and the occupation applies to the identified person in accordance with that instrument: reg 5.19(12)(d) and (e).
·a specified regional certifying body located in the same State or Territory and with responsibility for the local area in which the position is located has advised the Minister about whether the identified person would be paid at least the annual market salary rate for the occupation, whether there is a genuine need for the identified person to be employed in the position under the direct control of the nominator, and whether the position can be filled by an Australian citizen or permanent resident who is living in, or would move to, the local area concerned: reg 5.19(12)(f).
The Tribunal has inspected company information available on the ASIC website and checked the ABN and associated business information as stated by the nominator for this business, is as indicated on the ASIC database.
The Tribunal has in addition referred to the relevant instrument, IMMI 18/037. The Tribunal is satisfied that the nominator’s business is located at a place in regional Australia as required by reg 5.19(12)(a). Therefore reg 5.19(12)(a) is met.
The Tribunal is satisfied that the business operated by the nominator is located at that place, as required by reg 5.19(12)(b). Therefore reg 5.19(12)(b) is met.
The Tribunal has had regard to the size and the scope of the nominating entity’s expanding business operations. It is self-evident that the nominator cannot continue to operate this business entity in the medium to long-term without a relatively self-contained management structure.
The Tribunal is satisfied that there is a genuine need for the nominator to employ a paid employee to work in the position under the nominator’s direct control.
The Tribunal received and accepted evidence from the nominator of the recruitment process and it acknowledges the challenges associated with recruiting and retaining suitably qualified employees in the current labour market. This evidence included details of the recruitment advertising on 2 national and internationally operating electronic job sites. The fee receipt for 1 such site was provided. The other was a non-fee generating site. The nominator’s internal and external business network was utilised. These recruitment efforts resulted in 48 Resumes’ being considered. The visa applicant upon application for the role, as a result of the networking activity was ultimately determined to be the only suitable candidate.
There are currently a substantial number of related roles on offer nationally. There are, an excess of 20,000 roles nationally, according to a well-known recruitment online media website. The Tribunal is satisfied that a fair and honest recruitment process was undertaken and is again reminded of the additional burdens associated with recruiting and retaining skilled employees in regional locations at this time.
The Tribunal observes that a substantially more comprehensive and relevant evidence base was provided to it, than was presented to the delegate at the time of their decision. This is in part due to the approximately 4 years which have elapsed since the original application was made.
The Tribunal asserts the current economic trends demonstrate a rapid rebound in the economy post Covid-19 in Australia, at a rate that has exceeded most economic analyst’s initial predictions. It also notes that there appears to a gradual modest moderation of the economic position. These trends have already highlighted deficits in some areas of the employment market. Not unsurprisingly fields which involve long lead times, require substantial investment in training and sophisticated levels of technical expertise appear to be within the cluster of careers showing early signs of demand exceeding supply. The Tribunal notes that this has in-fact been the case in this field for a substantial number of years prior to Covid-19 but the issue is being accentuated under the current economic and associated employment conditions.
This trend is even more apparent in areas or professions in which Australia has relied upon both temporary and permanent immigration to meet labour demands. This has long been the case in regional locations or smaller States including South Australia. The Tribunal anticipates the likelihood of this trend continuing and potentially accelerating for some time, as Governments focus upon maintaining low levels of unemployment, encouraging wages growth whilst stimulating economic activity, all within an aging demographic trend. This is invariably exacerbated in locations such as the business currently under review.
The Tribunal is satisfied the position cannot be filled by an Australian citizen or permanent resident who is living in, or would move to, the local area concerned as required by reg 5.19(12)(c). Therefore reg 5.19(12)(c) is met.
The Tribunal has reviewed both the relevant descriptors supplied in ANZSCO 141111, Café or Restaurant Manager, the stated duties of the visa applicant and their employment contract. The Tribunal acknowledges the ANZSCO descriptors are a guide, not a mandatory definitive reference.
The Tribunal has reviewed the requirements as stipulated by LIN 19/047.
The Tribunal has taken note of the information provided which clearly show the daily tasks undertaken by the visa applicant.
The Tribunal acknowledges that this is a substantial operation involving a vast array of product offerings and delivery modes, producing a growing revenue stream. It is in no doubt that the visa applicant requires a degree of flexibility and subsequent autonomy performing the many and varied work duties, as you might expect in such an operation.
The Tribunal is satisfied that the tasks to be performed in the position correspond to the tasks of an occupation specified in a legislative instrument made under reg 5.19(13) and in force at the time the application is made; and the occupation applies to the identified person in accordance with that instrument: reg 5.19(12)(d) and (e). Therefore reg 5.19(12)(d) and (e) are met.
The Tribunal has had regard to a “Satisfied” Form 1404 issued by an RCB dated 13 December 2019 and is satisfied a specified Regional Certifying Body, (RCB) located in the same State or Territory and with responsibility for the local area in which the position is located has advised the Minister about whether the identified person would be paid at least the annual market salary rate for the occupation, whether there is a genuine need for the identified person to be employed in the position under the direct control of the nominator and whether the position can be filled by an Australian citizen or permanent resident who is living in, or would move to, the local area concerned: reg 5.19(12)(f). Therefore reg 5.19(12)(f) is met.
Given the above findings, the Tribunal is satisfied that Reg 5.19(9)(e) is met and reg 5.19(12) is met. Accordingly, reg 5.19(9)(j) is also met.
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
The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.
Peter Emmerton
Member

ATTACHMENT – EXTRACTS FROM THE MIGRATION REGULATIONS 1994
5.19Approval of nominated positions—Subclass 186 (Employer Nomination Scheme) visa and Subclass 187 (Regional Sponsored Migration Scheme) visa
Application
(1)A person (the nominator) (including a partnership or unincorporated association) may apply to the Minister for approval of the nomination of a position in Australia.
(2)The application must:
(a)be made in accordance with approved form 1395 (Internet); and
(b)identify the position; and
(c)identify a person (the identified person) in relation to the position; and
(d)identify an occupation in relation to the position; and
(e)identify the subclass and stream to which the nomination relates, which must be one of the following:
(i)a Subclass 186 (Employer Nomination Scheme) visa in the Temporary Residence Transition stream;
(ii)a Subclass 187 (Regional Sponsored Migration Scheme) visa in the Temporary Residence Transition stream;
(iii)a Subclass 186 (Employer Nomination Scheme) visa in the Direct Entry stream;
(iv)Subclass 187 (Regional Sponsored Migration Scheme) visa in the Direct Entry stream;
(v)a Subclass 186 (Employer Nomination Scheme) visa in the Labour Agreement stream; and
(f)be accompanied by the fee mentioned in regulation 5.37; and
(fa)be accompanied by any nomination training contribution charge the nominator is liable to pay in relation to the nomination; and
(fb)identify the annual turnover (within the meaning of the Migration (Skilling Australians Fund) Charges Regulations 2018) for the nomination; and
(g)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.
Approval of nomination
(3)The Minister must, in writing:
(a)approve the nomination if the Minister is satisfied that the requirements set out in subregulation (4) are met; or
(b)otherwise—refuse to approve the nomination.
Requirements for approval—general
(4)The requirements to be met for the nomination to be approved are as follows:
(a)the application is made in accordance with subregulation (2);
(b)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;
(c)if it is mandatory, in the State or Territory in which the position is located, for a person to:
(i)hold a licence of a particular kind; or
(ii)hold registration of a particular kind; or
(iii)be a member (or a member of a particular kind) of a particular professional body;
to perform tasks of the kind to be performed in the occupation, the identified person is, or is eligible to become, the holder of the licence, the holder of the registration, or a member of the body, at the time of application;
(d)the nominator has a satisfactory record of compliance with the laws of the Commonwealth, and of each State or Territory in which the nominator operates a business and employs employees in the business, relating to employment;
(da)any debt due by the nominator as mentioned in section 140ZO of the Act (recovery of nomination training contribution charge and late payment penalty) has been paid in full;
(e)if the nomination relates to a visa in a Temporary Residence Transition stream—the requirements set out in subregulation (5) are met;
(f)if the nomination relates to a visa in a Direct Entry stream—the requirements set out in subregulation (9) are met;
(g)if the nomination relates to a visa in a Labour Agreement stream—the requirements set out in subregulation (14) are met.
…
Direct Entry stream—additional requirements for approval
(9)If the nomination relates to a visa in a Direct Entry stream, the following requirements must also be met:
(a)the nominator is actively and lawfully operating a business in Australia;
(b)if the nominator’s business activities include activities related 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;
(c)the application identifies a need for the identified person to be employed in the position, under the direct control of the nominator;
(d)there is a genuine need for the identified person to be employed in the position, under the direct control of the nominator;
(e)the identified person will be employed on a full‑time basis in the position for at least 2 years;
(f)the terms and conditions of the identified person’s employment will not include an express exclusion of the possibility of extending the period of employment;
(g)the nominator’s business has the capacity to employ the identified person for at least 2 years and to pay the person at least the annual market salary rate for the occupation each year;
(h)the requirements set out in subregulation 2.72(15) are met, applying subregulations 2.72(15) and (16) as if:
(i)paragraph 2.72(15)(a) did not apply; and
(ii)references to the nominee were references to the identified person; and
(iii)references to the person were references to the nominator;
(i)either:
(i)there is no information known to Immigration that indicates that the employment conditions (other than in relation to earnings) that will apply to the identified person are less favourable than those that apply, or would apply, to an Australian citizen or an Australian permanent resident performing equivalent work at the same location; or
(ii)it is reasonable to disregard any such information;
(j)the requirements set out in subregulation (10) or (12) are met.
Occupations for the Subclass 186 (Employer Nomination Scheme) visa in the Direct Entry stream
(10)The requirements of this subregulation are as follows:
(a)the tasks to be performed in the position will be performed in Australia and correspond to the tasks of an occupation specified in a legislative instrument:
(i)made under subregulation (11); and
(ii)in force at the time the application is made;
(b)the occupation applies to the identified person in accordance with that instrument.
(11)The Minister may, by legislative instrument, specify occupations for the purposes of subregulation (10) and, for each occupation, specify any matters for the purposes of determining whether the occupation applies to an identified person, including matters relating to any of the following:
(a)the nominator;
(b)the identified person;
(c)the occupation;
(d)the position in which the identified person is to work;
(e)the circumstances in which the occupation is undertaken;
(f)the circumstances in which the person is to be employed in the position.
Occupations for the Subclass 187 (Regional Sponsored Migration Scheme) visa in the Direct Entry stream
(12)The requirements of this subregulation are as follows:
(a)the position is located at a place in regional Australia;
(b)the business operated by the nominator is located at that place;
(c)the position cannot be filled by an Australian citizen or an Australian permanent resident who is living in, or would move to, the local area concerned;
(d)the tasks to be performed in the position correspond to the tasks of an occupation specified in a legislative instrument:
(i)made under subregulation (13); and
(ii)as in force at the time the application is made;
(e)the occupation applies to the identified person in accordance with that instrument;
(f)the Minister has been advised by a body that meets the requirements set out in paragraph (g) of this subregulation about matters relating to the following:
(i)whether the identified person would be paid at least the annual market salary rate for the occupation;
(ii)whether there is a genuine need for the identified person to be employed in the position, under the direct control of the nominator;
(iii)whether the position can be filled by an Australian citizen or an Australian permanent resident who is living in, or would move to, the local area concerned;
(g)the body must:
(i)be specified in a legislative instrument made by the Minister for the purposes of this paragraph; and
(ii)be located in the State or Territory in which the position is located; and
(iii)have responsibility for the local area in which the position is located.
(13)The Minister may, by legislative instrument, specify occupations for the purposes of subregulation (12) and, for each occupation, specify any matters for the purposes of determining whether the occupation applies to an identified person, including matters relating to any of the following:
(a)the nominator;
(b)the identified person;
(c)the occupation;
(d)the position in which the identified person is to work;
(e)the circumstances in which the occupation is undertaken;
(f)the circumstances in which the person is to be employed in the position.
…
Meaning of regional Australia
(16)In this regulation:
regional Australia means a part of Australia specified in legislative instrument made by the Minister for the purposes of this definition.

[2023] AATA 3941

20 September 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

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Standing