Seymour Noodles Pty Ltd (Migration)

Seymour Noodles Pty Ltd (Migration) [2020] AATA 4953 (2 October 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Seymour Noodles Pty Ltd
CASE NUMBER:  1816504
HOME AFFAIRS REFERENCE(S):          BCC2016/3277558
MEMBER:Jane Bell
DATE:2 October 2020
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Statement made on 02 October 2020 at 6:19pm

CATCHWORDS
MIGRATION – Employer Nomination – approval of nominated position – Direct Entry nomination stream – Café or Restaurant Manager – tasks to be performed in the position – updated position description provided by the nominator – tasks of the occupation specified in ANZSCO – decision under review set aside
LEGISLATION
Migration Act 1958 (Cth), s 360
Migration Regulations 1994 (Cth), r 5.19

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 16 May 2018 to reject the applicant’s application for approval of the nomination of a position in Australia under r.5.19 of the Migration Regulations 1994 (the Regulations).
The applicant applied for approval on 3 October 2016. The requirements for the approval of the nomination of a position in Australia are found in r.5.19 of the Regulations which contains two alternative streams: a Temporary Residence Transition nomination stream (r.5.19(3)) and a Direct Entry nomination stream (r.5.19(4)). If the application is made in accordance with r.5.19(2) and meets the requirements of either stream, then the application must be approved. If any of the requirements are not met then the application must be refused: r.5.19(5).
In this case, the applicant has applied for approval of a nomination, seeking to satisfy the criteria in the Direct Entry nomination stream.
The delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19(4)(h)(ii)(D) of the Regulations because the applicant’s evidence failed to demonstrate that the tasks to be performed in the position correspond to the tasks of an occupation specified by the Minister in an instrument in writing.
In reaching its decision the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the applicant on the basis of the material before it, pursuant to s.360(2)(a) of the Act.
The applicant was represented in relation to the review by its registered migration agent.
For the following reasons, the Tribunal has decided to set aside the decision under review and substitute a decision approving the nomination.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant meets the requirements for approval of the nomination under the Direct Entry nomination stream set out in r.5.19(4), which is extracted in the attachment to this decision. For the nomination to be approved, all the requirements must be met.
The application is compliant: r.5.19(4)(a)
Regulation 5.19(4)(a) requires that the application for approval must be in the approved form, must be accompanied by the prescribed fee, and, where applicable, must include the required written certification relating to conduct that contravenes s.245AR(1). The application must also identify a need for the nominator to employ a paid employee to work in the position under their direct control.
On the basis of information in the Department’s file, the Tribunal is satisfied that the nomination was made on the approved online form, that the prescribed fee was paid and that the relevant written certification has been provided as part of the application that it had not engaged in conduct that contravened s.245AR(1) of the Act.
The Tribunal is also satisfied on the evidence in the Department’s file that the application for approval identified a need to employ Ms Lai Yung Wong as a paid employee, to work in the position under the nominator’s direct control.
There is documentary evidence that the nominee is working under the nominator’s direct control including employment contracts to work in the nominated position as a paid employee dated 19 October 2016 and 7 February 2020 between the nominator and the nominee which are signed by both parties and state that the nominee’s position is full-time and available for a minimum of 2 years from the grant of the nominee’s Regional Sponsored Migration Scheme (RSMS) visa, as well as an Organisational Chart showing the nominee reporting directly to the director.
Therefore, the Tribunal is satisfied that there is sufficient evidence that the nomination identifies a need for the nominator to employ the nominee, as a paid employee, to work in the position under the nominator’s direct control.
Accordingly, the requirement in r.5.19(4)(a) is met.
Nominator is actively and lawfully operating a business in Australia: r.5.19(4)(b)
Regulation 5.19(4)(b) requires that the applicant is actively, lawfully and directly operating a business in Australia.
The nominator is running an Asian style restaurant, Seymour Noodles Pty Ltd trading as Papa’s Rich Noodles at 2/20 Tallarook Street, Seymour VIC 3660, a town in regional Australia. The nominator has been registered as a proprietary company and active since 19 February 2014. The restaurant offers Chinese, Malaysian and Thai cuisine. The restaurant caters for dine-in and takeaway services and is open Monday to Sunday 11am to 9pm and has a total of 40 place settings.
The business employs 5 Australian employees and no foreign employees.
The Tribunal has current information as evidence that the nominator is actively and lawfully operating a business in Australia and directly operates that business including:
·ASIC Current and Historical extract dated 12 February 2020;
·ASIC Certificate of Registration of company dated 19 February 2014;
·ABN lookup extracted 11 February 2020 – business registered and active from 19 February 2014;
·Australian Business Number;
·Organisational chart which lists the nominator as the director and the nominee as the Café and Restaurant Manager;
·Company Tax Return for the financial year ending 2019;
·Company Tax Return for the financial year ending 2018;
·Financial Statements for the financial year ending 2019;
·Financial Statements for the financial year ending 2018;
·Financial Statements for the financial year ending 2017;
·Financial Statements for the financial year ending 2016;
·Letter from the nominator’s tax agent dated 29 September 2016;
·Letter from the nominator’s tax agent dated 7 February 2020; and

Business Activity Statements for:

July – September 2016;
January – March 2018;
April – June 2018;
July – September 2018;
October – December 2018;
January – March 2019;
April – June 2019; and
July – September 2019.

Accordingly, the requirement in r.5.19(4)(b) is met.
Position is not labour-hire: r.5.19(4)(c)
Regulation 5.19(4)(c) applies to nominators whose business activities include those relating to labour hire to an unrelated business. In these cases, the nominated position must be within the business activities of the nominator.
The nominator is running an Asian style restaurant business which offers Chinese, Malaysian and Thai cuisine. There is nothing in either the Department or Tribunal’s file to indicate that the nominator’s business activities relate to the hiring of labour for any unrelated business.
Therefore, the Tribunal is satisfied that the nominator’s business activities do not involve labour hire activities.
Accordingly, the requirement in r.5.19(4)(c) does not apply.
Term of employment of the visa holder: r.5.19(4)(d)
Regulation 5.19(4)(d) requires the nominee to be employed in the nominated position for at least 2 years full time, and the terms and conditions of that employment do not expressly exclude the possibility of an extension.
Ms Lai Yung Wong has been employed full time with the nominator since 19 October 2016 and has worked continuously in the business in the same role since this date and still works in the business as evidenced by her employment contracts and the ATO Business Activity Statements.
The Tribunal has before it a copy of the nominee’s Employment Contracts dated 19 October 2016 and 7 February 2020 signed by the nominator and the nominee stating the salary to be $56,000 per annum plus 9.5% superannuation which also states that the position is full-time and available for a minimum of a further 2 years from the date of the granting of the nominee’s RSMS visa and is not subject to any express exclusion of the possibility of renewal.
The Tribunal also has a copy of a recent statement detailing the Position Description for the nominated position of Café or Restaurant Manager, which requires the performance of tasks that correspond to the tasks of a Café or Restaurant Manager as appears in ANZSCO 141111.
The Tribunal has considered evidence contained in the Department’s file together with recent additional documentary evidence provided by the nominator to the Tribunal regarding its financial capacity including:
·the nominee’s Employment Contract dated 7 February 2020 which states that the nominee will be employed for a minimum of a further 2 years from the date of the granting of the nominee’s RSMS visa and is not subject to any express exclusion of the possibility of renewal;
·    Position description;
·    Organisational chart;
·    Company Tax Return for the financial year ending 2019;
·    Company Tax Return for the financial year ending 2018;
·    Financial Statements for the financial year ending 2019;
·    Financial Statements for the financial year ending 2018;
·    Financial Statements for the financial year ending 2017;
·    Financial Statements for the financial year ending 2016;
·    Letter from the nominator’s tax agent dated 29 September 2016;
·    Letter from the nominator’s tax agent dated 7 February 2020; and

Business Activity Statements for:

July – September 2016;
January – March 2018;
April – June 2018;
July – September 2018;
October – December 2018;
January – March 2019;
April – June 2019; and
July – September 2019.

After reviewing the above documents, particularly the 2018 and 2019 financial statements, the Tribunal is satisfied that the business is profitable. The business turnover for the financial years ending 2019 and 2018 are $266,319 and $351,481 respectively. The gross profit for 2018 was $221,308 and for 2019 was $166,107. The net profit for the 2018 year was $32,703 and for 2019 was $30,097 after all expenses had been paid including wages, superannuation and WorkCover. Total Equity for the business was $40,936 in 2018 and $44,033 in 2019. The Tribunal is further satisfied that the nominator’s wage payments clearly exceeded the nominee’s salary for the last 2 financial years as evidenced by the financial statements for the years ending 2018 and 2019 and the ATO Business Activity Statements provided which is further evidence that the nominator has been paying the nominee’s full-time salary during her entire employment with the nominator.
Furthermore there is a letter dated 7 February 2020 from the nominator’s accountants, ID Business Solution addressed to the Tribunal confirming that “Seymour Noodles Pty Ltd is financially sound and has sufficient financial resources to meet the financial commitment of employing Ms Wong”.
Based on the above documentary evidence provided on behalf of the nominator, the Tribunal finds that the nominator remains financially capable of continuing to employ the nominee in her full-time position on a salary of $56,000 per annum plus 9.5% superannuation for at least 2 years.
Furthermore, the terms and conditions of the nominee’s employment do not and will not expressly exclude the possibility of extending the period of employment.
Accordingly, the requirement in r.5.19(4)(d) is met.
No less favourable terms and conditions of employment: r.5.19(4)(e)
Regulation 5.19(4)(e) requires that the terms and conditions of employment applicable to the nominated position will be no less favourable than those that are, or would be, provided to an Australian citizen or permanent resident performing equivalent work in the same workplace at the same location.
The Tribunal has evidence before it including the nominator’s Organisational Chart and is satisfied that there are no Australian citizens or permanent residents performing equivalent work as the nominee with the nominator.
The nominee’s Employment Contract dated 7 February 2020 provides for a salary of $56,000 per annum plus 9.5% superannuation. The Tribunal has information before it, including market salary rates for Restaurant Managers and advertisements for comparable full-time jobs placed by other businesses as well as salary surveys. A Payscale salary survey states that the average salary for a Restaurant Manager in Australia is $55,990 as at 1 October 2020. PayScale does not give any information about Café or Restaurant Managers in Seymour, Victoria. Joboutlook shows median weekly earnings for full-time Restaurant Managers is approximately $950, which means the annual salary for this occupation is approximately $50,000. Job advertisements show other companies pay Restaurant Manager between $55,000 and $90,000 per year, depending on different experience and requirements. The Tribunal is satisfied that the nominee’s salary is in accordance with contemporary market rates for a Café or Restaurant Manager in a similar location.
The Tribunal is satisfied that the nominee’s Employment Contract dated 7 February 2020 has standard provisions relating to annual and sick leave and other terms and conditions of employment that are consistent with those in the Fair Work Act 2009 (Cth) and the National Employment Standards.
Given the above, the Tribunal is satisfied that the terms and conditions applicable to the nominated position will be no less favourable than those that are/would be provided to an Australian citizen or permanent resident performing equivalent work in the same workplace at the same location.
Accordingly, the requirements of r.5.19(4)(e) are met.
No adverse information known to Immigration: r.5.19(4)(f)
Regulation 5.19(4)(f) requires that there is no adverse information known to Immigration about the nominator or person associated with the nominator; or it is reasonable to disregard any such information. For these purposes, ‘adverse information’ and ‘associated with’ have the meaning given in rr.1.13A and 1.13B.
The Tribunal has reviewed the Department’s records and has found nothing to indicate that there is any adverse information known to the Department about the nominator or a person ‘associated with’ the nominator.
Accordingly, the requirements of r.5.19(4)(f) are met.
Satisfactory compliance with workplace relations laws: r.5.19(4)(g)
Regulation 5.19(4)(g) requires that the applicant has a satisfactory record of compliance with the laws of the Commonwealth, and of each State or Territory in which the applicant operates a business and employs employees in the business, relating to workplace relations.
The Tribunal has information from the Fair Work Ombudsman stating that there are no current records of investigations that have resulted in the application of an enforcement tool for the nominator.
There is nothing in the Department’s records to indicate that the nominator does not have a satisfactory record of compliance with workplace relations laws in the locations in which it operates a business 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 r.5.19(4)(h)
Regulation 5.19(4)(h) contains a number of alternative requirements. These are set out in detail in the attachment to the decision 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 (see legislative instrument IMMI 13/030), 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.
The applicant can choose to meet either r. 5.19(4)(h)(i) or r.5.19(4)(h)(ii) above.
The Tribunal notes that the applicant sought to satisfy the requirements of the second dot point, namely r.5.19(4)(h)(ii), at the time it made its nomination, on the basis that the position and the applicant’s business were located in a regional area.
The Tribunal has considered the criteria set out in r.5.19(4)(h)(ii) below. All of the provisions must be met.
Position located in regional Australia: r.5.19(4)(h)(ii)(A) and (E)
The Tribunal is satisfied that the nominated position and the applicant’s business are located in regional Australia at 2/20 Tallarook Street, Seymour, VIC 3660 and that is the place specified in the nomination application.
Accordingly, the Tribunal finds that the nominated position and the business are located in regional Australia and therefore the requirements of r.5.19(4)(h)(ii)(A) and (E) are met.
Genuine need for the nominator to employ the person identified under r.5.19(4)(a)(ii) as a paid employee to work in the position under the nominator’s direct control: r.5.19(4)(h)(ii)(B)
To address the requirement that there is a genuine need for the paid position under the nominator’s direct control, the applicant provided documentary evidence to the Tribunal about the business and the growth of the business.
The nominator’s business is running an Asian restaurant which offers Chinese, Malaysian and Thai cuisine, Seymour Noodles Pty Ltd trading as Papa’s Rich Noodles. It is located at 2/20 Tallarook Street, Seymour VIC 3660, a town in regional Australia. The nominator has been registered as a proprietary company and active since 19 February 2014. It offers dine-in and takeaway services and is open Monday to Sunday 11am to 9pm and there are a total of 40 place settings.
The nominator is experiencing growth and a shortage of staff. The nominator owns 5 restaurants in Victoria, 4 in NSW as well as restaurants in South Australia and Queensland. The Café or Restaurant Manager of the Seymour restaurant resigned in 2016 leaving a vacancy for the role. The owner is unable to manage all the restaurants and needs an experienced and skilled restaurant manager to manage the Seymour business. It employs 5 Australian employees and no foreign employees in Seymour. ile 4 13/03/2020 10:18:22Page 66
The evidence of the nominator suggests that there is an ongoing need to employ the nominee as the business requires a Café or Restaurant Manager to organise and control the day to day operations of the business which is growing and busy given it is operating 7 days a week.
The nominator provided evidence that the nominee is very capable and reliable, and has extensive knowledge working as a Café or Restaurant Manager. The nominee has relevant work experience and the confidence to manage the workload and expectations at a busy restaurant. The nominator states that the business would suffer if it is unable to employ the nominee.
Furthermore, the nominator provided a statement that the nominee has many years of experience as a restaurant manager, that she is multilingual (Chinese and English), holds a current Responsible Serving of Alcohol certificate and has demonstrated her ability in problem solving at the restaurant.

The Tribunal accepts the evidence that there is a general shortage of Café or Restaurant Managers with the nominee’s skills and experience in regional Victoria and that Café or Restaurant Managers are hard to attract to rural communities on a permanent basis.
The Tribunal accepts evidence from the nominator that the position of Café or Restaurant Manager is vital to the continued success of the business.
Based on the evidence including the Employment Contract to work in the nominated position as a paid employee dated 7 February 2020 signed by the nominator and the nominee, and the Organisational Chart which shows that the nominee reports directly to the director of the nominator, the Tribunal is satisfied that the applicant has a genuine need for the paid position, and that the nominee is working under the applicant’s direct control.
Accordingly, the requirements of r.5.19(4)(h)(ii)(B) are met.
The position cannot be filled by an Australian citizen or permanent resident who is living in the same local area: r. 5.19(4)(h)(ii)(C)
The Tribunal accepts evidence that the nominator advertised the job vacancy locally and on various online recruitment websites prior to interviewing the nominee and had not been able to find a suitable candidate from the local labour market for the position. Three local applications were received following the advertising in the Seymour Telegraph and on the Joboutlook website. One of the applicants found another job and a second applicant stated she did not have enough time. The nominee was the most suitable candidate with relevant skills and experience. The business has difficulty attracting applicants due to the size and remoteness of Seymour.
The job description in the advertisements is consistent with a Café or Restaurant Manager role and the salary offered in the advertisements is market rate.
The nominator subsequently applied to the Shepparton Department of Economic Development, Jobs, Transport and Resources which is a Regional Certifying Body (RCB), for a certificate that the nominated position could not be filled by an Australian employee. On 31 October 2016, the nominator received approval from the Shepparton Department of Economic Development, Jobs, Transport and Resources RCB at P.O Box 1389, Shepparton, VIC 3632.
Based on the above evidence that there were no suitable candidates arising from the advertising campaign and labour market testing undertaken by the nominator, the efforts the nominator made to fill the role with an Australian citizen or permanent resident and the fact that the nominator’s effort to employ a Café or Restaurant Manager in the area was unsuccessful, together with the fact that the nominated position could not be filled by an Australian employee was certified by the Shepparton Department of Economic Development, Jobs, Transport and Resources RCB on 31 October 2016, together with recent evidence that there has not been any change in the employment circumstances for Café or Restaurant Managers in the regional area since 2016, the Tribunal is satisfied that the position cannot be filled by an Australian citizen or permanent resident living in the same local area.
Accordingly, the requirements of r.5.19(4)(h)(ii)(C) are met.
The tasks to be performed in the position correspond to the tasks of an occupation specified by ANZSCO Skill Level 1, 2 or 3: r.5.19(4)(h)(ii)(D)
On 16 May 2018, the Department refused the nomination application based on the fact that the nominator had not provided sufficient evidence to satisfy r.5.19(4)(h)(ii)(D) of the Regulations because the applicant’s evidence failed to demonstrate that the tasks to be performed in the position correspond to the tasks of an occupation specified by the Minister in an instrument in writing.
Since the Department’s decision, the nominator has provided evidence to the Tribunal that the tasks to be performed in the position correspond to the tasks of an occupation specified by the Minister in an instrument in writing.
The nominated position duties, as listed by the nominator in the position description provided to the Tribunal are as follows:
The ANZSCO unit group description for a Café or Restaurant Manager is as follows:
Cafe or Restaurant Manager - ANZSCO 141111
Description
Organises and controls the operations of a cafe, restaurant or related establishment to provide dining and catering services.
Fast Food Managers (Aus)/ Quick Service Restaurant Managers (NZ) are excluded from this occupation. Fast Food Managers (Aus) and Quick Service Restaurant Managers (NZ) are included in Occupation 142111 Retail Manager (General)
Skill Level
2
Alternative Titles
·     Food and Beverage Manager
·     Restaurateur
Specialisations
·     Bistro Manager
·     Canteen Manager
·     Caterer
·     Internet Cafe Manager
Skills Assessment Authority
VETASSESS
Caveats
Not eligible if:
Caveat 8
TSS, ENS - The position is in a limited service restaurant.
Group: 1411 Cafe and Restaurant Managers
Description
organise and control the operations of cafes, restaurants and related establishments to provide dining and catering services.
Tasks
·     planning menus in consultation with Chefs
·     planning and organising special functions
·     arranging the purchasing and pricing of goods according to budget
·     maintaining records of stock levels and financial transactions
·     ensuring dining facilities comply with health regulations and are clean, functional and of suitable appearance
·     conferring with customers to assess their satisfaction with meals and service
·     selecting, training and supervising waiting and kitchen staff
·     may take reservations, greet guests and assist in taking orders
Skill Level
Most occupations in this unit group have a level of skill commensurate with the qualifications and experience outlined below.
In Australia:
AQF Associate Degree, Advanced Diploma or Diploma (ANZSCO Skill Level 2)

In New Zealand:
NZ Register Diploma (ANZSCO Skill Level 2)

At least three years of relevant experience may substitute for the formal qualifications listed above. In some instances relevant experience and/or on-the-job training may be required in addition to the formal qualification.
Occupations in this Group
·     141111 Cafe or Restaurant Manager
Since the Department’s decision, the nominator has provided evidence to the Tribunal that the tasks to be performed in the position correspond to the tasks of an occupation specified by the Minister in an instrument in writing.
The Tribunal has received information from the nominator addressing the criteria for:
1.planning menus in consultation with Chefs
The nominator states that it “is important for our business for the Chef and Restaurant Manager to collaborate regarding menu preparation. Our nominee, Lai Yung WONG brings wider experience and expertise regarding more innovative menu planning that will benefit the business. Absolutely it is necessary for the restaurant manager to plan menus in consultation with chefs.”
2.planning and organising special functions
The nominator confirmed that organising functions is an integral skill required of their restaurant manager and gave examples and provided Certificates of Appreciation where the nominee recently planned and organised events for:
· Seymour High School – cuisine demonstration; and
· Mary’s College Seymour – cuisine demonstration.
3.arranging the purchasing and pricing of goods according to budget
The nominator provided evidence that the nominee has worked in several previous restaurants and had responsibility for budgeting, purchasing and pricing and that these skills work hand-in-hand with menu planning and that it was an important skill for the restaurant.
4.maintaining records of stock levels and financial transactions
Due to varying absences of the business owner and his focus on building the profile of his portfolio of restaurants, the nominee was responsible for maintaining records of stock levels to ensure the restaurant can cater for demand and manage waste. The nominee also maintains financial transactions to ensure correct collection of bills and monitor the staff for honesty.
5.ensuring dining facilities comply with health regulations and are clean, functional and of suitable appearance
The nominee ensures that the dining facilities comply with health regulations and are clean and of suitable appearance. She has current qualifications in Occupational Health & Safety as evidenced in her application.
6.conferring with customers to assess their satisfaction with meals and service
The nominator provided strong evidence that the nominee has high emotional intelligence and strong communication and interpersonal skills and is adept at dealing with happy and difficult customers. The nominee is also bilingual in Chinese and English.
7.selecting, training and supervising waiting and kitchen staff
The nominee manages employment applications and undertakes interviewing candidates. The nominee selects, trains and supervises the staff under her direct control which ensures smoother operations of the business.
8.may take reservations, greet guests and assist in taking orders
The nominee takes restaurant bookings and reservations in person and by telephone, she greets the guests and assists in taking orders for food.
Based on the evidence including the updated position description provided by the nominator to the Tribunal together with a detailed explanation of the nominee’s duties and role, the Tribunal is satisfied that the tasks performed in the nominated position correspond to the tasks of the occupation specified in the ANZSCO occupation of a Café or Restaurant Manager (ANZSCO 141111) and that it is a Skilled Level 2 occupation as per IMMI 13/030.
Accordingly, the requirements of r.5.19(4)(h)(ii)(D) are met.
The occupation is applicable to the person identified under subparagraph (a)(ii) in accordance with the specification of the occupation: r.5.19(4)(h)(ii)(DA)
The Tribunal is satisfied that the nominated occupation relates to the nominee specified in the nomination application. Furthermore, the Tribunal is satisfied that there are no additional specifications made in the relevant instrument with respect to the occupation to be performed in the position.
Accordingly, the requirements of r.5.19(4)(h)(ii)(DA) are met.
Regional Certifying Body advice about matters specified in r.5.19(4)(e) and r.5.19(4)(h)(ii)(B) and (C): r.5.19(4)(h)(ii)(F)
The Tribunal is satisfied by the certificate on the Tribunal’s file that the Shepparton Department of Economic Development, Jobs, Transport and Resources, which is a Regional Certifying Body certified on 31 October 2016 that there was a need for a paid employee in the nominated position, that it could not be filled by an Australian citizen or permanent resident living in the same local area, and that the terms and conditions of employment for the nominated position were no less favourable than those that would be or were being provided to an Australian employee performing equivalent work in the same workplace at the same location and that there has not been any change in the employment circumstances for Café or Restaurant Managers in the regional area since 2016.
Accordingly, the requirements of r.5.19(4)(h)(ii)(F) are met.
Accordingly, the requirements of r.5.19(4)(h) are met.
Based on the findings above, the Tribunal is satisfied that the applicant meets the requirements of r.5.19 for approval of the nomination of the position in Australia.
DECISION
The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.
Jane Bell
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).

[2020] AATA 4953

2 October 2020

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