SAINI PTY LTD (Migration)

SAINI PTY LTD (Migration) [2021] AATA 5611 (7 December 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  SAINI PTY LTD
CASE NUMBER:  1824902
HOME AFFAIRS REFERENCE(S):          BCC2016/3618426
MEMBER:Deputy President J.L Redfern PSM
DATE:7 December 2021
PLACE OF DECISION:  Sydney
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Statement made on 7 December 2021 at 5:31 PM
CATCHWORDS:
MIGRATION – Employer Nomination Scheme – Direct Entry stream – Regional Sponsored Migration Scheme – Café or Restaurant Manager – application not supported by Regional Certifying Body – consideration of financial viability of the nominator – whether the position of Restaurant Manager can be filled by an Australian citizen or permanent resident – decision under review set aside
PRACTICE AND PROCEDURE – role of applicant and representative to present the case – invitation to provide information under s 359(2) of the Migration Act – failure to respond in prescribed period – loss of entitlement to hearing – delay in review process – expectations when an applicant is represented
LEGISLATION:
Administrative Appeals Tribunal Act 1975 (Cth), s 2A
Migration Act 1958 (Cth), ss 245AR, 359(2), 359C, 360(3) and 366A
Migration Regulations 1994 (Cth), reg 5.19
SECONDARY MATERIALS:
Department of Home Affairs, PAM3 – Div 5.3 General – Approval of nominated positions (employer nomination) – Regulation – 5.19
IMMI 17/058
STATEMENT OF DECISION AND REASONS

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 8 August 2018 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, Saini Pty Ltd (Saini), applied for approval of the nomination for the position of Restaurant Manager on 31 October 2016. Ms Amandeep Kaur was nominated for the position by Saini.
Saini operates an Indian restaurant, in Port Macquarie New South Wales. The business has been established for 21 years.
Employer nominations are intended to enable Australian employers to recruit, for permanent positions, skilled workers either from overseas or who are temporarily in Australia, where the employer has not been able to fulfil their needs from the Australian work force or through their own training efforts. The employer nomination scheme involves two stages, firstly, an employer seeking approval of a nominated position in which an individual is proposed to be employed in Australia and secondly, a person applying for a permanent position on the grounds the visa applicant proposes to be employed in that position.[1]
[1] Department of Home Affairs, PAM3 – Div 5.3 General – Approval of nominated positions (employer nomination) – Regulation – 5.19, 5.1.1.
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).
In this case, Saini has applied for approval of a nomination, seeking to satisfy the criteria in the Direct Entry nomination stream. It has applied under the Regional Sponsored Migration Scheme, which operates where the nominated position is located in regional Australia. The objective of the program is to allow employers to sponsor foreign workers for permanent residence to fill genuine vacancies in their business. The employer must operate in regional Australia.
The delegate refused the application on the basis Saini’s nomination did not satisfy reg 5.19(4) of the Regulations because the delegate was not satisfied that there was a genuine need for the position and that this position could not otherwise be filled by an Australian citizen or permanent resident in the location. In coming to this conclusion, the delegate gave significant weight to the fact that a certificate from a Regional Certifying Body dated 31 October 2017 had certified that there was no need for the position of Café or Restaurant Managers in the Port Macquarie region in New South Wales. This is a requirement for approval and, while further submissions were provided to the delegate about the difficulties in finding suitable candidates for this position, the delegate was not persuaded. The application was therefore refused. The delegate did not make an assessment or findings in relation to the balance of the requirements for approval of the nomination.
Saini sought review of this decision to the Tribunal.
For the following reasons, I have decided to set aside the decision under review and substitute a decision approving the nomination. However, in so doing I make the following observations about the presentation of evidence and submissions in support of contentions made.
PROCEDURAL ISSUES
In February 2021 the Tribunal requested further information from Saini in support of its application for review. The request was made pursuant to s 359(2) of the Migration Act 1958 (Cth) (the Act). Saini requested an extension of time to provide the information by 8 April 2021, which was given by the Tribunal. Unfortunately, this material was not provided by this date, nor was a further extension sought, resulting in Saini losing its right to participate in a hearing by reason of the effect of the provisions of ss 359C and 360(3) of the Act.
Saini provided submissions and further evidence in support of its claims on 22 April and during the period of September to November 2021.
At the same time that Saini applied for approval of the nomination of the position of Café or Restaurant Manager for Ms Kaur, she applied for a Regional Employer Nomination (Permanent) work visa under cl 187 of Schedule 2 to the Regulations. Because this application was dependent upon the nomination being approved, Ms Kaur’s application for the related visa was also refused.
Ms Kaur applied for review of the refusal of her visa (matter no. 1828455). She had the right to a hearing under s 360 of the Act and was invited to appear before the Tribunal to give evidence and make submissions at a hearing listed on 14 September 2021. She was represented by a migration agent, being the same representative acting for Saini. The managing director of Saini was also requested to attend the hearing to give evidence about matters relevant to Ms Kaur’s application. Following the hearing, further information was requested of Saini to address the Tribunal’s concerns. This information was provided over the period September to November 2021.
Saini’s application for approval of its nomination was refused by a delegate of the Minister and, when seeking merits review of this decision, it is incumbent on Saini and its representative to provide all relevant information and submissions to the Tribunal on which it seeks to rely to satisfy the Tribunal that the application for the nomination should be approved. For the application to be approved, the Tribunal must be satisfied about all requirements of the relevant regulations, regardless of the basis on which the nomination was refused. To assist with this process, the Tribunal requests information from applicants. This process serves to identify whether the application can be approved without the need for a hearing or, alternatively, to assist the Tribunal to identify the contentious issues that require determination. This is to ensure the fair, just, economical, informal and quick finalisation of the review consistent with s 2A of the Administrative Appeals Tribunal Act1975 (Cth).
This application, while ultimately favourable, did not proceed as quickly and efficiently as it could have. This is because the applicant and its representative failed to provide information addressing each of the requirements of the relevant regulations at the time of lodging the application, they failed to respond to the Tribunal’s request for information within the prescribed period and when information was provided it was not provided in the form requested by the Tribunal and in some cases was undated. The case was unable to proceed with the benefit of a hearing, which may have been able to clarify, quickly and simply, some concerns raised by the application. This required numerous requests for further information over a period of time, which significantly delayed the review. These enquiries and the consequent delays and additional attention required went beyond what would be reasonably expected of the Tribunal.
While the Tribunal stands in the shoes of the original decision-maker and may seek to make enquiries of the applicant, and possibly others, to form a view about whether it can be satisfied about whether the requirements of a nomination or visa application have been met, the role of the Tribunal does not extend to investigation or discovery of potential claims and evidence on behalf of an applicant. It remains the obligation of the applicant, and its representatives, to put forward cogent evidence and submissions in support of claims. In this case, the impact of the refusal of the nomination had a negative impact on the related work visa of Ms Kaur and these matters were outside her control and not of her making.
An applicant who is unrepresented may find it challenging to navigate some of the more technical provisions of the Act and Regulations and therefore find it difficult to understand the requirements for approval of nominations and visas. In such circumstances, it is not uncommon for Tribunal members to draw matters to the attention of an unrepresented applicant and to outline the critical issues in that require determination during the course of the hearing.
Where an applicant is represented by a registered migration agent or lawyer it is expected that the representative is familiar with the relevant requirements of the Act and Regulations and with the Tribunal’s practices and procedures, including its practice directions. In migration matters, applicants do not have an entitlement to have a representative make oral submissions at a hearing other than in exceptional circumstances (refer s 366A of the Act). Despite this, Tribunal members will invariably allow representatives to address the Tribunal and to make submissions during the hearing for the benefit of their clients. In such cases, the Tribunal has an expectation that representatives will assist the Tribunal and applicants by making clear, cogent and relevant submissions and by advancing evidence relevant to the issues in dispute.
These observations are general in nature and are made to assist representatives in preparing and presenting cases on behalf of clients, particularly work-related visa cases which include a number of technical but fact-based requirements.
RELEVANT LAW AND INSTRUMENTS
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.
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) of the Act. The application must also identify a need for the nominator to employ an identified person as a paid employee to work in the position under their direct control.
Regulation 5.19(4)(b) requires that the applicant is actively, lawfully and directly operating a business in Australia.
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. Saini does not operate a labour hire business and, accordingly, the requirement in reg 5.19(4)(c) does not apply and is therefore met.
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.
Regulation 5.19(4)(e) provides 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)(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 reference to ‘Immigration” is should now be taken to refer to the Department of Home Affairs, which includes the immigration portfolio.
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.
Regulation 5.19(4)(h) contains a number of alternative requirements. These are set out in detail in the attachment to the decision. Saini claims to meet the requirements in reg 5.19(4)(h)(ii) which relevantly require that:
·the position and nominator’s business is located in regional Australia (subcl (ii)(A));
·there is a genuine need for the nominator to employ the person identified as a paid employee to work in the position in the position under the nominator’s direct control (subcl (ii)(B)),
·the position cannot be filled by an Australian citizen or permanent resident who is living in the same local area (subcl (ii)(C))
·the tasks of the position correspond to those of an occupation specified in the relevant legislative instrument, (subcl (ii)(D)),
·the occupation is applicable to the person nominated in accordance with the specification of the occupation, (subcl (ii)(DA)),
·the business operated by the nominator is located in that place (subcl (ii)(E)), and
·a Regional Certifying Body has advised the Minister about certain matters relating to the position (subcl (ii)(F)).
The relevant legislative instrument is Migration (IMMI: 17/058: Occupations for Subclass 187 visas; Skill, Age and English language requirements for Subclass 186 and Subclass 187 visas) Instrument 2017 (IMMI 17/058), which commenced on 1 July 2017 and applies to nominations made on or after this date and also applies to nominations made before 1 July 2017 and not finally determined by that date. Schedule 1 to IMMI 17/058 sets out the occupations for subclass 187 visas for the purposes of subparagraph 5.19(4)(h)(ii)(D) to the Regulations and, relevantly, certain paragraphs in cl 187 of Schedule 2 to the Regulations.
Relevant to the facts of this case, Schedule 1 includes the occupation of a Café or Restaurant Manager, being ANZSCO code 141111, Level 2. The ANZSCO code is the Australian and New Zealand Standard Classification of Occupations (2013) published by the Australian Bureau of Statistics. ANZSCO is a skill base classification used to classify all occupations and jobs in the Australian and New Zealand labour markets. ANZSCO is used by the Minister as a reference point for various work-related visas.
BACKGROUND AND OUTLINE OF EVIDENCE
On 31 October 2016, Saini made an application for approval of its nomination for the position of Restaurant Manager of its Port Macquarie restaurant in the occupation of a Café or Restaurant Manager, as identified in the Australia and New Zealand Standard Classification of Occupations (ANZSCO). Ms Kaur was nominated for the role.
The application was made on the relevant approved form and was accompanied by the fee prescribed in reg 5.37. The form included a written certification stating that Saini had not engaged in conduct in relation to the nomination that contravenes s 245AR(1) of the Act, which prohibits the nominator asking for or receiving a benefit in return for sponsoring a visa applicant. The application identified a need for Saini to employ an identified person, in this case Ms Kaur, as a paid employee to work in the nominated position as a restaurant manager under Saini’s direct control. As such, there is no dispute that the requirement in reg 5.19(4)(a) is met. This is not an issue that was raised by the delegate.
In documents accompanying the application, Saini provided details of its registration and corporate history, financial information including its financial statements for the financial year ended 30 June 2016 and a letter from its accountant, employment details, including the employment contract for Ms Kaur dated 31 October 2016, details of various advertisements and a letter dated 31 October 2017 from Regional Development Australia – mid north coast New South Wales addressed to the Department of Immigration stating that there is no apparent skill shortage for Restaurant/Café Managers in the region.
In support of the application for the nomination, Saini provided to the Tribunal, statements from the managing director of the company, Mr Saini, setting out details of why there was a genuine need for this position, about the attempts made by the company to obtain an Australian citizen or permanent resident employee able to fill the role and responding to the issues raised in the letter from Regional Development Australia. The company also provided updated company searches and an organisational chart together with financial statements and tax returns for Saini for the financial year ended 30 June 2019 and 30 June 2020. Saini provided an updated employment contract dated 22 April 2021 together with a position description.
By letter dated 23 September 2021, the company provided further evidence in support of the nomination, being further statements from the managing director about the remuneration paid to Ms Kaur, steps taken by him to advertise the position of restaurant manager and details of the various applications received. On 27 September 2021, Saini provided evidence in support of the award wage for Ms Kaur, a screenshot of business activity statements lodged for July 2020 to date and a letter from CTC accountants about the financial viability of Saini.
Set out below is a summary of the key aspects of the documentary evidence provided.
Saini was established in 2000, it has been continuously registered since this date and is a proprietary company limited by shares. It operates an Indian restaurant in Port Macquarie called the Maharaja Tandoori Indian Restaurant. Mr Lakhvir Singh Saini is the director and shareholder of the business. According to historical details for the company, it has previously operated under the name of the Laurieton Rock Lobster Café, however, this café is no longer trading.
According to the company’s financial statements for the year ended 30 June 2019, it had revenue of $533,474, less the cost of goods sold at $120,725 making a total of net revenue of $412,749. After expenses of $446,292.04, which included rent and salaries, the company made a loss of $33,543 before tax. The financial statements recorded net liabilities of $199,795. This information is consistent with the taxation return lodged for 2019. As such, there was no taxable income earned in this financial year, but rather previous tax losses carried forward, with tax losses in the vicinity of $280,035.
For the financial year ended 30 June 2020, there was a decline in revenue to $419,363 but there was also a significant decline in expenses, such that there was a profit after tax of $39,823. This is consistent with the tax return lodged for this year. The company also provided business activity statements up to the period January to June 2020 recording total sales of over $200,000. The company also provided an organisational chart which showed that in addition to a Restaurant Manager, Ms Kaur, the restaurant had a cook, a kitchen hand and three waiters. It was stated that all of its employees, with the exception of Ms Kaur, were Australian citizens.

The updated employment contract between Saini and Ms Kaur dated 22 April 2021 was for the position of Restaurant Manager. The contract period is stated to be a minimum of two years from the visa grant as a permanent full-time position. The hours under the contract were 38 hours per week full-time with a remuneration of $55,000 per annum plus superannuation of 9.5%. All other statutory leave entitlements were included together with a termination period of up to 4 weeks’ notice and provision for redundancy pay. Somewhat curiously, there was a probation period for three months, even though Ms Kaur has been working in this role since October 2016.
According to evidence provided by Ms Kaur in the related visa proceedings, she completed studies in India and came to Australia in 2008 to undertake further studies in community welfare services. She subsequently finished a two-year business management diploma course in 2013. She worked as a facilities manager for a restaurant chain in Queensland called ‘Miss India’. This company closed down and through a friend of hers who lived in Port Macquarie, she became aware of a potential vacancy for the position of Restaurant Manager in the Maharaja Tandoori Indian Restaurant in 2016. She commenced on 1 November 2016 and signed an employment contract dated 31 October 2016, which was in similar terms to updated employment contract provided to the Tribunal. The remuneration under this contract was $54,000 per annum plus superannuation. All other terms and conditions were the same.
Ms Kaur said that when she first started working at the restaurant Mr Saini trained her. He explained to her how the restaurant worked and within a few months, she was working as the Restaurant Manager with little supervision. She is responsible for customer service, managing purchases and supplies, managing bookings and events, supervising staff, discussing any changes to the menu with Mr Saini and, after his approval, in giving effect to those changes, ensuring that the daily takings for the restaurant were reconciled at the end of the day, advertising for the business generally and through Menulog and hiring of staff. There are two cooks and two long-term kitchen the hands and three experienced waiters.
Included in the Department file was a letter from the relevant Regional Certifying Body, Regional Development Australia – mid north coast New South Wales (RDA) addressed to the Department, dated 31 October 2017. According to the author of letter, there was ‘no apparent skills shortage for restaurant/café managers’ in the region. It was further noted as follows:
This business has a long history with our office and has sponsored 5 cooks and 3 restaurant managers since 2011. Of all these nominees there is currently only one (1) cook remaining. ……. By the sponsoring business owners’ own admission, all nominees except one have ‘as soon as visa granted they decided to leave for the cities’.
Every RSMS application from this business has given our office reason for concern as to whether employer obligations are being met with regard to wages and employee entitlements. Negotiations were in place in 2014 between the business and the ATO with regard to a payment plan for this. From the bank statements submitted there appears to still be an ATO payment plan in place.
RDA also provided a certificate (Form 1404) dated 31 October 2017 recording that Saini did not satisfy the relevant requirements about the genuine need for the position, the requirement that the terms be no less favourable and that the position could not be filled by an Australian citizen or permanent resident.
A copy of this letter and Form 1404 was sent to Saini for comment or response. A response was provided to the Department by Mr Saini, undated but presumably soon after the letter was sent, to the effect that the business had advertised on numerous occasions for Australian citizens or permanent residents, but he had found it very difficult to recruit for Restaurant Managers. He also stated that it was difficult to retain staff because they often wanted to move to the big cities and away from Port Macquarie. The company further provided a letter from Australian Border Force dated 25 August 2017 about the company’s compliance with the visa program.
Relevantly, the letter noted as follows:
Monitoring of the sponsor has now been completed. Based on the information available the Department is satisfied that the sponsor has complied with the programme requirements and no further action is necessary. Please note that Saini Pty Ltd may be identified for further monitoring activities in future to confirm its continued compliance.
In further support of the claim, Saini provided to the Tribunal the seating plan for the restaurant which shows that it has a seating capacity of between 80 and 100 patrons. Mr Saini also provided a statement to the effect that he had been advertising for the positions of cooks and restaurant managers from 2016 through Gumtree, jobsearch.gov.au, Seek and jobseeker and, while he had received 16 applications at this time, none of the applicants were suitable because they had no experience or qualifications as a Restaurant or Café Manager. Saini subsequently provided copies of the relevant resumes that were provided to the company at that time. Examination of the resumes revealed that none of the applicants had experience as a restaurant manager and most had no experience in hospitality although a number of the applicants had low level of experience in working in small takeaway stores.
Saini provided to the Tribunal the applicable award wage for Ms Kaur under classification level 5 food and beverage supervisor, Restaurant Industry Award 2020, business activity statements for the period January 2020 to June 2021, Australian Taxation Office (ATO) integrated client account for the period 3 November 2019 to 3 November 2021, letters from CTC accountants dated 25 October and 3 and 17 November 2021 and bank statements for accounts held by Saini, Maharaja Tandoori Indian Restaurant and Mr Saini.
It is apparent from the documents provided by Saini and its accountant that it had not lodged business activity statements since about June 2020 and that the business activity statements for the 12 months from June 2020 to July 2021 were lodged on 25 October 2021 in response to queries raised by the Tribunal. These lodgements resulted in goods and services tax being levied by the ATO, resulting in a significant increase in the amount owing to the ATO with Saini in debt to the ATO in the sum of $133,622.83 as at 1 November 2021.
In response to the issue of whether Saini was financially viable and would be able to continue to employ Ms Kaur over the next two years, Saini responded to the effect that its operations had been impacted by the fires over the 2019-20 summer, flooding in the local area in March 2021 and the reduction in holiday trade given the impact of the COVID-19 pandemic. It was further submitted that the business was recovering, trading had improved, and Saini had entered into a formal payment plan with the ATO for the entire amount outstanding on 15 November 2021. The first payment had been made pursuant to that formal repayment plan. Saini provided documentary evidence from the ATO to support this contention.
It was further submitted that the business had been in operation since 2000, had always paid its debts and liabilities and had continued to operate notwithstanding the unfavourable trading conditions over the period.
CONSIDERATION OF CLAIMS
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.
As already noted, I am satisfied that Saini meets the requirements of reg 5.19(4)(a) because the application for approval is in the approved form, it includes the required written certification relating to conduct that contravenes s 245AR(1) of the Act and there is no evidence that the prescribed fee was not paid. The application must also identify a need for the nominator to employ an identified person as a paid employee to work in the position under their direct control. Saini nominated Ms Kaur in this position in accordance with the requirement.
I am also satisfied that Saini is actively, lawfully and directly operating a business in Australia. This is evidenced by the updated ASIC searches, the business activity statements lodged with the ATO from January to June 2021 and the 2019 and 2020 tax returns and financial statements. These documents evidence that Saini has been and is actively trading. While there is evidence that Saini was not meeting its obligations to lodge business activity statements for a period, this does not compel a conclusion that Saini was not operating lawfully. Accordingly, I am satisfied the requirements of reg 5.19(4)(b) have been met.
It is submitted that the requirements of reg 5.19(4)(d) are satisfied because Ms Kaur is employed on a full-time basis, has been employed on a full-time basis since November 2016 in the same role and will be employed in the position for at least two years. There is no provision in Ms Kaur’s contract expressly excluding an extension beyond two years. While the financial records suggest that Saini has not always traded profitably, there is evidence that it has traded continuously since about 2000 as a restaurant. It has traded in its current premises for the past five years. The most recent financial information provided suggests that the profitability of the company has improved. Ms Kaur has been employed continuously since this time and I accept that the role of a Restaurant Manager at the Maharaja Tandoori Indian Restaurant is needed given the statement provided by Mr Saini to the effect that his health is poor and he is unable to take on the day-to-day management role. I am satisfied, based on the financial information provided by Saini, including information provided about the ATO repayment plan, that there is evidence the company will have the capacity to continue trading over the next two years and will continue to employ Ms Kaur. In this regard, I am persuaded by the submission made about Saini’s continuing trading over an extended period and the particular financial circumstances that have impacted its trading over the past 12 months. I am therefore satisfied the requirements of reg 5.19(4)(d) are met.
Regulation 5.19(4)(e) provides that the terms and conditions of employment applicable to the position must be no less favourable than those that are would be provided to an Australian for performing equivalent work. The details of the award and the payments made to Ms Kaur support the claim that her employment is provided on no less favourable terms and I therefore find that the requirements of 5.19(4)(e) are met.
It is further submitted that there is no evidence of adverse information known to the Department before the Tribunal and that there no evidence that Saini does not have a satisfactory record of compliance with the laws of the State and the Commonwealth. It is therefore submitted that Saini meets the requirements in regs 5.19(4)(f) and (g).
Based on my search of the Department of Home Affairs database known as Integrated Client Services Environment (ICSE) records, it is apparent that there was adverse information known to the Department which was investigated. Relevantly, it is recorded as follows:
Repeated allegation, employer/sponsor breach… Has been treated – refer COI 25 August 2017 – monitoring finalised satisfactory.
This is consistent with the letter from Australian Border Force dated 25 August 2017 which was provided to the Tribunal by Saini. I requested further information from the Department about whether there was any adverse information known about Saini and, by email received on 22 October 2021, the Department responded as follows:
I hereby confirm that there are no other information that the Tribunal should be made aware of, apart from the client of interest notes, prior to your decision.
Having regard to the information on the Department file and the further information provided by the Department in response to my enquiries, I am satisfied that Saini meets the requirements in regs 5.19(4)(f) and (g).
One of the contentious issues in this case, which was also the basis for the delegate’s refusal to approve the nomination, is whether the nomination meets the requirements of reg. 5.19(4)(h). As already noted, reg 5.19(4)(h) contains a number of alternative requirements and, in this case, the relevant criteria against which to assess compliance are the requirements set out in reg 5.19(4)(h)(ii) of Schedule 2 to the Regulations.
There is no dispute that the restaurant business of Saini and the position of Restaurant Manager is located in regional Australia and that the business operated by Saini is in that location (refer reg 5.19(4)(h)(ii)(A)). Nor is there dispute that the business operated by Saini is located in regional Australia (reg 5.19(4)(h)(ii)(E)). There is evidence that a Regional Certifying Body, being RDA, has provided a certification in relation to certain matters, as required under reg 5.19(4)(h)(ii)(F), and that the certification was negative. The regulation does not require that the certification be positive but merely that it be provided. As such this requirement has been met. While the certificate and the accompanying letter have some evidentiary value, it should be noted that these documents do not provide a detailed analysis of the matters reported and therefore have limited weight, particularly given the documents are now over five years old. As such, the certification and contents of the letter are not conclusive of the matters reported, nor is there any legislative provision that would compel such an effect, but they raise issues of concern.
Accordingly, the questions for determination relating to the balance of the criteria in reg 5.19(4)(h)(ii) are whether there is a genuine need to employ Ms Kaur in the position nominated under the direct control of Saini (subclause (B)); whether the position can be filled by the Australian citizen or permanent resident who is living in the same local area (subclause (C)) and whether the tasks being performed in the position, and more relevantly to be performed in the position, correspond with the tasks of Restaurant Manager as set out in the relevant ANZSCO description (subclause (D)). If these subclauses are met, subclause (DA) is satisfied because it is clear that Ms Kaur is the person nominated in respect of the position identified in the application to undertake the tasks set out in a specified occupation.
The description for the role of the Café and Restaurant Manager set out in the relevant ANZSCO (Unit Group 1411) is as follows:
CAFE AND RESTAURANT MANAGERS organise and control the operations of cafes, restaurants and related establishments to provide dining and catering services.
It is further noted that the tasks include:
·planning menus in consultation with Chef
·planning and organising special functions
·arranging the purchasing and pricing of goods according to budget
·maintaining records of stock levels and financial transactions
·ensuring dining facilities comply with health regulations and are clean, functional and of suitable appearance
·conferring with customers to assess their satisfaction with meals and service
·selecting, training and supervising waiting and kitchen staff
·may take reservations, greet guests and assist in taking orders
Based on the oral evidence of Ms Kaur in the related proceedings, which I accept, and the job description in her contract of employment, I am satisfied that the role performed by her is consistent with the role of a Café/Restaurant Manager as described in ANZSCO 1411. I am also satisfied that Ms Kaur currently undertakes, and has since about 2016, been undertaking all of the tasks referred to in ANZSCO 1411. ANZSCO 1411 states that ‘most occupations in this unit group’ have a level of skill commensurate with the qualifications and experience including an advanced diploma or diploma or at least three years of relevant experience which may substitute for the formal qualifications. Relevantly, Ms Kaur has a diploma in business management and has had prior experience in restaurant management, albeit through a franchise. In summary, I am satisfied that the nomination of Ms Kaur meets the requirements of reg 5.19(4)(h)(ii)(D).
I am also satisfied, based on the written submissions of Saini, the statement from Mr Saini and evidence provided by Ms Kaur in the related proceedings, that there is a genuine need for the nominated role, being the role Ms Kaur has been undertaking for the past five years. I am therefore satisfied that the requirements of reg 5.19(4)(h)(ii)(B) are met.
Having regard to the written evidence provided by Saini about its efforts to employ a restaurant manager in 2016 and the submissions made about the difficulties to obtain such a manager given the current shortages in the hospitality industry, I am persuaded that the position cannot be filled by an Australian citizen or permanent resident who is living in the Port Macquarie area. In this regard I note that, while the RDA certification was to the effect that such a role could be filled by an Australian citizen or permanent resident, this is a statement of opinion that was made in 2017. The basis for the opinion is not stated and the opinion cannot be independently tested or verified but more relevantly, the statement of opinion is not current and does not take into account prevailing market conditions. As such, I am satisfied that the requirements of reg 5.19(4)(h)(ii)(C) have been met.
Accordingly, I am satisfied that the requirements of reg 5.19(4)(h) are met.
Based on the findings above, I am 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.
J.L Redfern PSM
Deputy President

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).

[2021] AATA 5611

7 December 2021

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