SAI LAL SHAH EMPIRES PTY. LTD. (Migration)

SAI LAL SHAH EMPIRES PTY. LTD. (Migration) [2022] AATA 4330 (17 November 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  SAI LAL SHAH EMPIRES PTY. LTD.
REPRESENTATIVE:  Mr Arvinder Pannu (MARN: 0964861)
CASE NUMBER:  1917358
HOME AFFAIRS REFERENCE(S):          BCC2018/504668
MEMBER:Vanessa Plain
DATE:17 November 2022
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Statement made on 17 November 2022 at 2:38pm
CATCHWORDS
MIGRATION – nomination – Café or Restaurant Manager – position located in regional Australia – actively and lawfully operating a business in Australia – lawfully operating business – no adverse information known to Immigration – genuine need for the nominator to employ a paid employee to work in the position – decision under review set aside
LEGISLATION
Migration Act 1958, ss 140, 245
Migration Regulations 1994, 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 13 June 2019 to reject the applicant’s application for approval of the nomination of a position in Australia under reg 5.19 of the Migration Regulations 1994 (Cth) (the Regulations).
The applicant applied for approval on 30 January 2018. The requirements for the approval of the nomination of a position in Australia are found in reg 5.19 of the Regulations which contains two alternative streams: a Temporary Residence Transition nomination stream (reg 5.19(3)) and a Direct Entry nomination stream (reg 5.19(4)). If the application is made in accordance with reg 5.19(2) and meets the requirements of either stream, then the application must be approved. If any of the requirements are not met then the application must be refused: reg 5.19(5).
The applicant applied to the Tribunal for review of the delegate’s decision. The applicant submitted a copy of the primary decision record with their review application.
On 17 November 2022, the applicant, represented by its sole director Mr Harminder Singh informed the Tribunal that he consented to the Tribunal determining the application without the need for a hearing. Accordingly, the Tribunal will determine the matter “on the papers.”
On 17 November 2022, Ms Pabial appeared before the Tribunal via video link, to give evidence and present arguments (the Nominee) in the related matter for the subclass 187 visa (AAT Case file 1923260).
The Tribunal exercised its discretion to hold the hearing in the related case by video link. The Tribunal determined it was reasonable to hold a hearing by video link, having regard to the nature of this matter and the individual circumstances of the applicant and nominee. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by video link. The Tribunal is satisfied that the Nominee was given a fair opportunity to give evidence and present arguments.
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 reg 5.19(4), which is extracted in the attachment to this decision. For the nomination to be approved, all the requirements must be met.
Background
The applicant operates a restaurant in regional Victoria in the town of Hayfield. The nominated position is located in Hayfield, Victoria. Mr Singh is the sole director and sole shareholder of Sai Lal Shah Empires Pty Ltd. The trading name of the restaurant is Noor Indian Cuisine and it has been in business since 2016.
The business was running smoothly in Hayfield until the COVID pandemic. The applicant has supplied the company’s financial reports for the years 2017, 2018, 2019, 2020 and 2021. The business relied on the tourists in the area. The area was hit during the COVID lockdown and suffered a lot due to loss of clientele. It could not survive, and the business had to temporarily close in 2021.
The applicant has been looking for another location to open a new restaurant business in regional Victoria. The business applied for the 187 RSMS nomination for the Nominee via the Direct Entry stream of the Regional Sponsored Migration Scheme (RSMS) for the position of Cafe or Restaurant Manager, which the nominator has indicated relates to the Australian and New Zealand Standard Classification of Occupations (ANZSCO) occupation of Cafe or Restaurant Manager (ANZSCO Occupation Code: 141111).
The Nominee was working in the business nominated position of Café or Restaurant Manager at the restaurant in Hayfield. This position is also supported by Gippsland Regional Certifying Body (RCB), this was supplied with the application.
The nomination was refused by the Department of Home Affairs. The reason for refusal was based on the financial documents assessed as not meeting the nomination requirement to employ the Nominee on full time basis for 2 years. The Nominee informed the Tribunal in her evidence that she worked for the business since 2016 and was always paid her salary whilst performing the tasks and duties of restaurant manager in the business. The salary was paid in accordance to the employment contract.
On 31 January 2018, the applicant lodged an application for an employer nomination for the position of Café or Restaurant Manager (ANZSCO 141111) under the Subclass 187 direct entry Regional Employer Nomination stream. Pursuant to a contract of employment, the nominee’s nominated base salary and guaranteed earnings are $55,000 per annum plus superannuation and other statutory entitlements. The Nominee stated in her evidence that she has always been paid her salary and entitlements.
The Tribunal notes that the applicant and the nominee submitted a voluminous amount of documentary evidence in support of the claims set out above. The Tribunal also has access to and has considered the Department’s file for each of the applicant and nominee. While the Tribunal has considered all of the documentary evidence submitted by the applicant and nominee, only that which was considered material to the Tribunal’s has been expressly referred to herein.
Further, the Tribunal has access to the Department Policy considerations, reliance upon the Act and the Regulations, and generic information concerning publicly-available references relied upon such as ANZSCO produced by the ABS, and Internet-available information from websites such as PayScale and the Australian Government Department of Education Skills and Employment, on occupational skill shortages and related-information
The application is compliant: reg 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.
On the available information the Tribunal finds that the application was made on the approved form 1395 (Internet) for post 23 March 2013 applications. The prescribed fee has been paid.
The Department file includes the application containing a written certification stating the nominator has not engaged in conduct in relation to the nomination that contravenes s. 245AR(1) and which relates to obtaining a benefit for a migration outcome.
The documentary evidence submitted by the applicant, including an organisational staff structure chart, job description, PAYG information, legal submissions, statement by the director, detailed financial statements for 2017 to 2021 and job advertisements plainly establishes that the applicant business has identified a genuine need for the nominator to employ a paid employee to work in the position as manager under the nominator’s direct control as the manager in the restaurant in Hayfield. In one sense, the “need” is established by the simple act of lodging an application, but more importantly, the “need” is substantiated with the information and documents produced in support of the application.
Accordingly, the requirement in r.5.19(4)(a) is met.
Nominator is actively and lawfully operating a business in Australia: reg 5.19(4)(b)
Regulation 5.19(4)(b) requires that the applicant is actively, lawfully and directly operating a business in Australia.
The applicant has produced a current ASIC record, ABN search, Australian Business Register extract and lodged financial statements for the 2017 to 2021 financial years inclusive. These documents establish that the business is registered and operating, albeit the restaurant has clearly closed for a brief period post March 2021 due to COVID.
The Tribunal finds it is satisfied on the available information, that the business is actively and lawfully operating a restaurant business in regional Victoria and that the business continues to be operated directly by the corporate entity.
Accordingly, the requirement in r.5.19(4)(b) is met.
Position is not labour-hire: reg 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.
The Tribunal finds on the available information there is no evidence that the applicant is involved in labour hire activities.
Accordingly, the requirement in r.5.19(4)(c) does not apply.
Term of employment of the visa holder: reg 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.
The Tribunal has had regard to the written employment agreement produced and dated 10 January 2018 and notes the director’s and Nominee’s evidence that the Nominee has been working in the restaurant for several years.
The Tribunal is satisfied on that evidence as to the length and nature of the employment and the engagement of the Nominee in the position of restaurant manager. The agreement engages the Nominee from 15 August 2016 (utilising a then 457 temporary visa) in the role for a minimum period of four years and without regard to any termination prior to the expiry of that period and with the possibility of renewal after that time. The evidence before the Tribunal also indicates that the nominee has been working in the role of manager since 2016 with a brief break in mid 2021 due to the COVID pandemic.
The Tribunal further accepts the statements of the director which make it plain that the business has had difficulty in hiring suitably qualified people to work in regional Victoria. The Tribunal further notes the evidence of the Nominee that she has been working for the business for several years and relocated her family to Hayfield.
The Tribunal is satisfied on the recent financial documents produced (2017 - 2021 financial statements, tax returns, BAS lodgements, PAYG records and management accounts), that the company is operating a successful and financially viable business and has the capacity to continue to employ the nominee for the minimum period.
Accordingly, the requirement in r.5.19(4)(d) is met.
No less favourable terms and conditions of employment: reg 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.
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.
On the available evidence, the employees of the company are Australian citizens or permanent residents save for the nominee.
The Tribunal has had regard to the salary offered in the sum of $55,000 plus superannuation and other entitlements, such as overtime, available under the relevant industry Award. According to an industry website, Payscale Australia, the median hourly rate for a manager is $27.95 and the median salary range is $43,000 to $64,000 per annum.
The Tribunal notes the position is located in Hayfield, Victoria. The salary on offer in this instance is above the Award for the salary for the position and the Tribunal finds it to be no less favourable for a manager working in an equivalent position elsewhere in a metropolitan setting.
The Tribunal further finds that the terms and conditions of employment in the written agreement are standard terms allowing for both industry and legislated workplace requirements, such as annual leave and sick leave.
The Tribunal is satisfied that there is no evidence before it that the terms and conditions applicable to the nominated position are any 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.
Accordingly, the requirements of r.5.19(4)(e) are met.
No adverse information known to Immigration: reg 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 regs 1.13A and 1.13B.
The Tribunal is satisfied on the available information that there is no adverse information known to the Department about the nominator, or a person ‘associated with’ the nominator, within the meaning provided in the Regulations.
Accordingly, the requirements of r.5.19(4)(f) are met.
Satisfactory compliance with workplace relations laws: reg 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.
The Tribunal has had regard to the evidence including the documents and information provided and made available from the Department and Tribunal files, and finds it is satisfied that there is nothing before it to demonstrate the business does not have a satisfactory record of compliance with workplace relations laws in the location of Hayfield in Victoria from where it operates the restaurant and employs staff.
Accordingly, the requirements of r.5.19(4)(g) are met.
Tasks of the position, genuine need for the position and training requirements reg 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 but can be briefly summarised as requiring either that:
·the tasks to be performed in the position will be performed in Australia and correspond to those of an occupation specified by the Minister (as specified in legislative instrument IMMI 19/047), the occupation is applicable to the proposed employee in accordance with any specifications made in that instrument, and specified training requirements are met; or
·the position and nominator’s business is located in regional Australia, there is a genuine need for the paid position under the nominator’s direct control which cannot be filled by a locally resident Australian citizen or permanent resident, the tasks of the position correspond to those of an occupation specified in the relevant legislative instrument, the occupation is applicable to the proposed employee in accordance with the specification of the occupation and that a regional certifying body has advised the Minister about certain matters relating to the position.
Location of Business
The restaurant is located in Hayfield, Victoria which is classified as a regional area (as specified in legislative instrument IMMI 17/059).
Is there a genuine need?
The Tribunal has had specific regard to and places weight upon the following documentation as evidence of the business’s genuine need for the nominee to work in the position of restaurant manager:
·An extensive written statement by the director outlining the business’s size, operations, history, budgeting requirements, expenditure and anticipated revenue
·An organisational chart
·Financial documents spanning the last 6 financial years
·Numerous documents evidencing labour market testing such as job advertisements and correlating tax invoices
The aforementioned documentation clearly demonstrates that the business is growing each year save for mid 2021 onwards due to Covid and cannot operate without a manager. The job advertisements have been considered in conjunction with the Nominee’s evidence and the Tribunal accepts that notwithstanding the business’s efforts, it has not been able to hire an Australian citizen in the position of manager. The Tribunal is satisfied that the applicant intends to continue to employ the nominee in the position nominated and that there is a genuine need to employ the nominee as a restaurant manager in that position under the nominator’s direct control.
The Tribunal accepts the contention in the documents submitted that a restaurant cannot function without a manager and that the nominee is integral to the interests of the business if it is to survive and grow effectively.
Who is available to fill the position?
The Tribunal has reviewed the advertisements placed on The Tribunal accepts that the business advertised in accordance with the documentation produced and continues to do so unsuccessfully. The documentary evidence establishes, by way of example, that the business has been unable to find locally qualified staff due to a lack of interest.
The available Federal Government industry information, including from Job Outlook and the Department of Education Skills and Employment [1] vary in their prognosis for future employment for food-related industry positions. Expectations will vary according to location, business size, and population and many factors can affect whether a position can or cannot be filled by an Australian citizen or permanent resident who is living in the same local area.
[1] >
In this instance, the Tribunal finds it is satisfied on the evidence presented that genuine and persistent attempts made at recruitment of Australian citizens or permanent residents through local advertising have been unsuccessful, mainly due to the COVID pandemic.
Do the tasks in this instance correspond to those specified in the instrument for the nominated occupation?
The ANZSCO reference specifies what is required for the occupation of Manger and is the basic guide upon which the Tribunal relies. The applicant has also submitted a detailed document which compares the jobs tasks undertaken by the nominee with each item as described in the position description in ANZSCO. Based upon that document and the Nominee’s oral evidence at hearing, the Tribunal finds that the tasks to be performed in the position correspond to the tasks of an occupation specified by the relevant instrument and finds that the nomination meets the requirement in this regard.
Regional Certifying Body
The applicant business has submitted a certified Regional Sponsored Migration Scheme – Regional Certifying Body advice Form 1404 which provides that the applicant’s application for regional sponsored migration certification has been approved and forwarded to the Department of Immigration and Border Protection as evidence that the RCB’s assessment has been completed.

Based upon the above, the Tribunal finds that the requirements of r.5.19(4)(h) are met.
Based on all 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.
Vanessa Plain
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)     all 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;
(AA)there is a genuine need for the nominator to employ the person identified under subparagraph (a)(ii), as a paid employee, to work in the position under the nominator’s direct control;
(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 the person identified under subparagraph (a)(ii), as 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).

[2022] AATA 4330

17 November 2022

Key Legal Topics

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Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

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Appeal