S & C GIARDINA PTY LTD (Migration)

[2018] AATA 5296

S & C GIARDINA PTY LTD (Migration) [2018] AATA 5296 (22 November 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  S & C GIARDINA PTY LTD

CASE NUMBER:  1703590

DIBP REFERENCE(S):  BCC2016/1236166

MEMBER:Peter Emmerton

DATE:22 November 2018

PLACE OF DECISION:  Adelaide

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

Statement made on 22 November 2018 at 11:40am

CATCHWORDS
MIGRATION – Employer Nomination – approval of nominated position – Direct Entry Nomination – Café or Restaurant Manager – tasks of position correspond to tasks of occupation as defined in ANZSCO dictionary – position located in regional Australia – genuine need – position cannot be filled locally – credible evidence – decision under review set aside

LEGISLATION
Migration Regulations 1994 (Cth), r 5.19

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 14 February 2017 to reject the applicant’s application for approval of the nomination of a position in Australia under r.5.19 of the Migration Regulations 1994 (the Regulations).

2. The applicant applied for approval of Café or Restaurant Manager, ANZSCO 141111, on 21 March 2016. Mr Maximiliano Hernan Gonzalez Fonte was sponsored by the applicant to work in the nominated position.

3. 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).

4. In this case, the applicant has applied for approval of a nomination, seeking to satisfy the criteria in the Direct Entry Nomination stream.

5. The delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19(4)(h)(i) of the Regulations because the delegate was not satisfied that the nominator had demonstrated that the tasks to be performed in the position correspond to the tasks of an occupation at a skill level of 1,2,3 as defined in the ANZSCO Dictionary.

6. The applicant represented by Mr Sebastian Giardina, the Managing Director for SC Giardina Pty Ltd, appeared before the Tribunal on 20 November 2018 in a joint hearing with MRT file ref 1707934 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Maximiliano Hernan Gonzalez Fonte, the nominee. The Tribunal found all those presenting evidence to be credible and appeared to answer questions in an open and honest manner without obfuscation.   

7. 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

8. 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.

9. In determining the applicant’s claims the Tribunal must first make findings of fact on material matters in dispute.  This may involve an assessment of credibility and in so doing, the Tribunal is aware of the need and importance of being sensitive to the circumstances and the difficulties applicants often face before the Tribunal in their particular circumstances.

10. The applicants rely on the evidence given before the Tribunal together with written submissions and supporting evidence provided to the Tribunal and previously to the department.

11. The nominating entity owns and runs a well-known, popular Italian restaurant in Alice Springs, Northern Territory, which has operated in excess of twenty years.

12. The visa applicant’s responsibilities include:

    ·Management of start and end of day procedures including control of keys and cash money;

    ·Compliance Audits and other periodic checks to ensure operations conform to internal and external standards;

    ·Management of disputes and grievances, resolution of conflict and promotion of a positive workplace atmosphere;

    ·Control and protection of company assets including money, stock, equipment, uniforms and business collateral;

    ·Encouragement of safe work practices and security controls for assets and for people, emphasis on safe food practices and responsible service of BYO alcohol;

    ·Daily management of staff in accordance with guidelines set down by the Restaurant Owner and policy;

    ·Take reservations, greet guests and assist in taking orders;

    ·Ensure service staff maintain a high level of customer service and overall good nature throughout the time of service;

    ·Ensure that strategies and practices are in place to facilitate the efficient and effective staffing of the resturant to achieve financial and service quality targets;

    ·Coach, counsel and discipline staff as required, following policy and disciplinary procedures;

    ·Achieve effective communication by briefing and debriefing staff, holding regular department meetings and actively encouraging transparent communication with other departments within the restaurant such as the kitchen team;

    ·Ensure all patrons bills are correct/general money handling responsibilities;

    ·Perform hiring and exiting interviews, develop and enact strategies to minimize staff turnover in all areas of the restaurant;

    ·Ensure that through regular performance feedback and the completion of Probationary Performance Reviews and Performance Development Reviews that staff are provided with career direction and personal development;

    ·Through observation and training ensure safe manual handling techniques and safe work habits are upheld;

    ·Ensure all staff are aware of procedures to follow in the event of emergencies such as fire evacuation, power outages and communication system failure;

    ·To uphold a professional image for the Restaurant at all times when undertaking daily duties;

    ·To develop professional customer relationships and ongoing provision of excellence in customer service demonstrated through customer feedback;

    ·Work closely with the kitchen team to implement daily/weekly specials and emphasis on training plating for the Restaurant;

    ·Work closely with the Head Chef and the Owner to source and implement new flavours and creative signature dishes, ensuring costs are in line with the company budget;

    ·Work closely with the Head Chef and Owner to ensure monthly stock take is aligned with company budget;

    ·Ensure effective and transparent communication is maintained between pizza, kitchen and floor staff during time of service;

    ·Ensure all food and beverage quality and standards are of a high level;

    ·Manage and lead the Restaurant Reservations to establish a self-driven system with prime focus on up-selling and 100% satisfaction;

    ·To create and maintain positive internal relations with all staff and to support the business operations;

    ·Maintain up to date knowledge of goods and services provided by the Restaurant as well as the local area in order to provide accurate and relevant information to customers;

    ·Resolve customer complaints to the customer’s satisfaction within your level of training and authority;

    ·Deal with customer complaints and feedback in a professional and non-confrontational manner;

    ·Delegate responsibilities and duties to subordinates including staff in training;

    ·Planning and organizing special functions including those of a catering and off-site nature.

13. The Tribunal questioned Mr Giardina in substantial detail about the need for Mr Fonte’s position and why an Australian Citizen could not fill it. The challenges associated with hiring and subsequently retaining a Restaurant Manager with Mr Fonte’s qualifications, experience, attitude and background, into their relatively small organisation, were clearly articulated. Evidence was provided to the Tribunal of the salary determination, recruitment process and market testing and associated multi-channel advertising, which was utilised when recruiting for this role.

14. The Tribunal perused popular employment web sites prior to the hearing in order to ascertain the current state of the market in this field. The Tribunal observed a large number of related vacancies, in a wide variety of locations and organisations currently under recruitment. The Tribunal is cognisant that many of the observed positions may appear to be equally or more attractive environments to some candidates than the nominated position located in Alice Springs, which in turn might be considered remote and climatically unattractive by some potential applicants. The tribunal was made aware, by the nominator, that there is considerable competition for hospitality staff and poaching of talented staff takes place between competitors. This may add further weight to the argument that recruitment and retention has proven challenging and the reliance upon some visa holders in order to successfully staff the restaurant.

15. The Tribunal also notes that an RCB Certificate has been issued by the relevant certifying body, following their acceptance of the compliance measures undertaken by the nominating entity with a strong endorsement of the restaurant. The date of the certificate is 20 October 2018.

    The application is compliant: r.5.19(4)(a)

16. 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.

17. The Tribunal finds that the application was lodged electronically using the elodgement facility. The nomination was made under the RSMS Direct Entry stream (r.5.19(4)(h)(ii)) and consequently no fee is payable. The Tribunal finds the applicant meets r.5.19(2).

18. The Tribunal notes and discussed with Mr Giardina that the restaurant is operating on a lean staffing ratio. There is a Restaurant Manager, the visa applicant, reporting to him. In addition 9 staff, including the Chef report to the Restaurant Manager. The Tribunal notes the advancing years of the business founder and the recent death of his wife with whom he jointly ran the business over a period of many years. It would appear unlikely that a restaurant of this size and patronage, with an excess of 600 covers per 7 day week, serving functions and dinner, could operate successfully without a dedicated Manager in addition to the owner.

19. The Tribunal also notes that the nominator has recently established and cooks in a new café venture in the town with his wife, who is expecting their second child in the next few months. This will result in two children under the age of 2. The nominator testified that both of these circumstances would be made much more difficult without a dedicated Restaurant Manager in the primary restaurant. The nominator who had been the main chef for some years testified that he now helps out when staff shortages occur but does not have a regular daily schedule in the Restaurant.

20. The Tribunal is satisfied that the application has identified a need for a paid employee to work in the position of Retail Manager (General), under direct control of the applicant. 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)

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

22. The Tribunal was provided with a range of Business Tax Returns including the 2015-2016 and 2016-17 FY Returns, Profit and Loss Statements for FY 2016 and 2017, restaurant layout plans and numerous photographs of the operating restaurant. ASIC Registration details were provided, as was the Health Department Registration. The Tribunal also checked the status of the listed ABN. The Tribunal is satisfied that the applicant is actively, lawfully and directly, operating a business in regional Australia. Accordingly, the requirement in r.5.19(4)(b) is met.

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

23. Regulation 5.19(4)(c) applies to nominators whose business activities include those relating to labour hire to an unrelated business. In these cases, the nominated position must be within the business activities of the nominator. The Tribunal finds that r. 5.19(4)(c) is not relevant to the current nomination.

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

24. 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.

25. The Tribunal notes that additional information was provided prior to the hearing and verified at the hearing, which had not been given to the delegate. It also notes that the business appears to be in a healthy state and is stable with growing revenues and operates profitably. The longevity of the restaurant further attests to its stability and capacity to employ the visa applicant.

26. The Tribunal questioned the visa applicant in depth to test his knowledge of the skills required to function in the business and engage in the management activities claimed by the nominating entity. The answers showed a clear and detailed knowledge in regards to the day-to-day required activities.  The Tribunal is satisfied that the business will be able to sustainably, employ the nominee for the required 2-year minimum period.

27. The Tribunal has had regard to the Employment Agreement dated 20 March 2016 and 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.

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

28. 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.

29. The Tribunal has been provided with the visa applicant’s employment contract. The Tribunal accepts that the nominee’s annual salary of $50,388 exclusive of Superannuation as appropriate and is reflective of his experience relevant to the nominated position. Additionally the Tribunal researched the salaries offered for similar positions and had regard for the salary determination evidence presented by the nominating entity prior to the hearing. The Tribunal 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. Accordingly the requirements of r.5.19(4)(e) are met.

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

30. 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. There is no evidence before the Tribunal that the applicant has anything but a satisfactory record of compliance with the immigration laws of Australia. Accordingly the requirements of r.5.19(4)(f) are met.

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

31. 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. When the Tribunal questioned the parties regarding workplace conditions, it was evident that both parties were cognisant of workplace relations expectations. Furthermore, they were able to demonstrate an understanding of appropriate employee conditions as a way of retaining employees and subsequently provide quality business outcomes for their company. Both parties ably demonstrated a complementary company ethos. The Tribunal has reflected upon the fact that this industry employs a mobile workforce, which operates in a competitive environment, in a remote region. There is no evidence before the Tribunal that the applicant has anything but a satisfactory record of compliance with workplace relations law in Australia. 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)

32. Regulation 5.19(4)(h) contains alternative requirements. These are set out in detail in the attachment to the decision. As stated above the nomination was made under the RSMS Direct Entry stream and the Tribunal has proceeded to assess the application against the criteria in r.5.19(4)(h)(ii) which require that:

    ·the position and nominator’s business are 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 Australian citizen or permanent resident;

    ·the tasks of the position correspond to those of an occupation at the ANZCO skill level 1, 2 or 3; and

    ·a regional certifying body has advised the Minister about certain matters relating to the position.

33. The Tribunal has had regard to the size and scope of the nominating entity’s business operations, the length of the visa applicant’s employment, experience and qualifications. 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.

34. The Tribunal is satisfied that the position cannot be filled by an Australian citizen or permanent resident. The Tribunal is satisfied that the nominator’s business is located in regional Australia. The Tribunal also notes that this is a role considered to be in short supply and therefore identified as a priority position by the Northern Territory Government.

35. Regulation r.5.19(4)(h)(ii)(D), requires that the tasks to be performed in the position correspond to those at ANZSCO skill level 1, 2 or 3. The position of Café or Restaurant Manager, ANZSCO 141111, nominated by the applicant is referred to in ANZSCO as a skill level 2 position.

36. The delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19(4)(h)(i) of the Regulations because the delegate was not satisfied that the nominator had demonstrated that the tasks to be performed in the position correspond to the tasks of an occupation at a skill level of 1,2,3 as defined in the ANZSCO Dictionary.

37. The Tribunal considered the tasks found in ANZSCO for this position and compared them to the detailed job description provided by the applicant and the evidence provided at the hearing.  A clear alignment between the 2 has been demonstrated.

38. The Tribunal also notes that substantially more detailed information regarding the role and responsibilities of the visa applicant was supplied to it, than had been originally presented to the delegate. Had the additional information been provided with the original application, the delegate may have been able to more easily assess the application.

1. Detailed questioning was undertaken by the Tribunal of both the nominating entity and the visa applicant in order to arrive at a clear and comprehensive understanding of the information before it. The visa applicant was able to demonstrate to the Tribunal that he regularly undertakes the tasks of the nominated position and anticipates that he will continue to do so. The passion for his role and his employer was self-evident as was the obvious satisfaction of his performance as discussed with the Managing Director at the hearing. The Tribunal is satisfied that the position located in Alice Springs, NT, can properly be classified as a position for a Café or Restaurant Manager, ANZSCO Skill Level 2. The Tribunal therefore finds that the nomination satisfies r.5.19(4)(h)(ii)(D) of the Regulations.

2. The Tribunal has had regard to Form 1404 issued by a RCB (Department of Trade Business and Innovation), dated 20 October 2018 and is satisfied that the applicant has advised the Minister about matters relating to the terms and conditions of employment, the genuine need for the position and that the position cannot be filled locally.

3. 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

4. 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 (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).