Sheetal Indian Restaurant Pty Ltd (Migration)

Sheetal Indian Restaurant Pty Ltd (Migration) [2023] AATA 3807 (3 November 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Sheetal Indian Restaurant Pty Ltd
CASE NUMBER:  2217205
HOME AFFAIRS REFERENCE(S):          BCC2016/4269936
MEMBER:K. Chapman
DATE:3 November 2023
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Statement made on 03 November 2023 at 5:49pm

CATCHWORDS
MIGRATION–nomination – Temporary Residence Transition nomination – Café or Restaurant Manager – no adverse information– Tasks correspond to specified occupation – application is compliant – applicant lawfully operating a business in Australia– decision under review set aside
LEGISLATION
Migration Act 1958, ss 65, 140GB, 245AR, 359
Migration Regulations 1994, rr 2.72, 5.19, 5.37
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 Immigration and Border Protection, on 7 August 2017, to refuse 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, Sheetal Indian Restaurant Pty Ltd, applied for approval on 17 December 2016. The applicant nominated Mrs Amandeep Kaur Birl (‘the nominee’) in the occupation of Café or Restaurant Manager, which is coded number 141111 in the Australian and New Zealand Standard Classification of Occupations (‘ANZSCO’). The applicant operates an Indian Restaurant on the Gold Coast, Queensland.
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 matter, the applicant has applied for approval of a nomination, seeking to satisfy the criteria in the Temporary Residence Transition nomination stream. The delegate refused the application on the basis that the applicant’s nomination did not satisfy reg 5.19(3)(d)(i), as they were not satisfied that the nominee would be employed on a full-time basis in the position for at least two years. On 21 August 2017, the applicant applied to the Tribunal for review of the nomination decision, providing a copy of that decision with their application for review.
On 22 July 2020, the Tribunal (differently constituted) affirmed the decision to refuse to approve the nomination: AAT reference 1718711. The applicant subsequently applied to the Federal Circuit and Family Court of Australia for Judicial Review. On 3 November 2022, the Court made orders granting relief to the applicant and remitting the matter to the Tribunal for reconsideration.
On 6 July 2023, the Tribunal (as presently constituted) wrote to the applicant, pursuant to subsection 359(2) of the Act, inviting them to provide current information addressing the relevant criteria under reg 5.19(2) and (3) of the Regulations. Following the grant of an extension of time to respond, the applicant submitted a copy of ASIC records, taxation documentation, an Accountant letter, financial reports, an organisational chart, a position description, an employment agreement, a standard business sponsorship approval and receipts for training activities. All material received has been duly considered by the Tribunal.
The Tribunal initially scheduled a review hearing for 27 September 2023. However, the applicant was unable to attend on that date and a request for hearing postponement was granted. The applicant, through its Director Mrs Joyti Joyti, appeared by video means before the Tribunal on 31 October 2023 to give evidence and present arguments. Mrs Joyti confirmed she was comfortable proceeding with the hearing by video means. Having observed Mrs Joyti provide her evidence through a clear video link, the Tribunal is satisfied she gave truthful evidence.
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 review is whether the applicant meets the requirements for approval of the nomination under the Temporary Residence Transition nomination stream, set out in reg 5.19(3), which is extracted in the attachment to this decision. For the nomination to be approved, all the requirements must be met.
The application must be compliant: reg 5.19(3)(a)
Regulation 5.19(3)(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 relevant person and occupation.
The applicant (also ‘the nominator’) lodged an online application for the Temporary Residence Transition nomination stream. The position is for a Café or Restaurant Manager (ANZSCO 141111) within their Indian Restaurant. Having regard to the submitted evidence, the Tribunal is satisfied that the application was made on the approved form, accompanied by the prescribed fee and included written certification indicating the applicant had not engaged in any conduct that constituted a contravention of s 245AR(1) of the Act.
The application for nomination identifies Mrs Amandeep Kaur Birl (‘the nominee’), who held a Subclass 457 visa that was granted on the basis of satisfying subclause 457.223(4) of Schedule 2. Having regard to the submitted evidence, the Tribunal is satisfied that the occupation identified is the same occupation as that carried out by the nominee as the holder of a Subclass 457 visa. The Tribunal is accordingly satisfied that this occupation carries the same 4-digit code as the occupation carried out by the nominee whilst she held the Subclass 457 visa.
Given the above findings, the requirement in reg 5.19(3)(a) is satisfied by the applicant.
Status of the nominator: reg 5.19(3)(b)
Regulation 5.19(3)(b) requires the nominator to be or have been the relevant standard business sponsor who is actively and lawfully operating a business in Australia. In addition, the nominator, as that standard business sponsor, must not have met certain criteria relating to the operation of a business overseas, in the most recent sponsorship approval.
Having regard to the submitted documentary evidence including ASIC records, taxation documentation, an Accountant letter, financial reports, an organisational chart and a standard business sponsorship approval, the Tribunal is satisfied the applicant (also ‘the nominator’) is actively and lawfully operating a business in Australia. Further, the Tribunal is satisfied that the applicant is the relevant standard business sponsor who last identified the nominee, being a Subclass 457 visa holder, in a prior relevant nomination in relation to that visa.
The applicant, through its Director Mrs Joyti, gave evidence at hearing outlining that its operations are focussed on the provision of Indian cuisine in the Gold Coast. The submitted photographs and social media information support this evidence. Accordingly, the Tribunal accepts and finds that the applicant is lawfully trading as an Indian Restaurant in Australia.
Given the above findings, the requirement in reg 5.19(3)(b) is satisfied by the applicant.
Previous employment of the nominee: reg 5.19(3)(c)
Broadly outlined, to meet the requirement in reg 5.19(3)(c), either:
· the nominee must have been employed full time in Australia in the position for which he or she holds a Subclass 457 visa for at least 2 of the 3 years preceding the nomination application; or
· the nominee holds a Subclass 457 visa on the basis that s/he was identified in a nomination of a specified occupation for that visa, the nominator nominated the occupation, and the nominee has been employed in that occupation for at least 2 years in the 3 years immediately before the application.
The nominee was granted a Subclass 457 visa on 1 August 2014, in the nominated occupation of Café or Restaurant Manager (ANZSCO 141111). Documentary evidence before the Tribunal, including taxation records and pay information, confirms the nominee has been employed full time by the nominee continuously since 19 August 2014. Further, at the hearing Mrs Joyti confirmed the nominee had been employed as the Restaurant Manager since that time. The application for nomination, which is the subject to this review, was made on 17 December 2016. Accordingly, the Tribunal is satisfied that the nominee was employed for at least a two year period, within the three year time-frame, which is referred to in the Regulations.
Given the above matters, the Tribunal finds that the requirement in reg 5.19(3)(c) is satisfied by the applicant.
Future employment of the visa holder: reg 5.19(3)(d)
Regulation 5.19(3)(d) only applies to certain nominees (those described in reg 5.19(3)(c)(i)). For this class of person, the Regulations require that the nominee will be employed on a full time basis for at least 2 years on terms that do not expressly preclude the possibility of an extension.
Mrs Joyti outlined at hearing that her intention was to maintain the employment of the nominee for at least two years, in her role as the Restaurant Manager of the Sheetal Indian Restaurant. Mrs Joyti noted that the skills of the nominee were vital to expand the applicant’s business. Having regard to the submitted documentary evidence, including the terms and conditions of the nominee’s employment as provided in the current employment contract, pay slips and taxation records, the Tribunal is satisfied that the nominee will be employed on a full time basis for at least two years, on terms that do not expressly preclude the possibility of an extension. Further, the Tribunal accepts that the applicant has the financial viability to maintain the employment of the nominee for at least two years from the time of this decision. Indeed, the Tribunal notes that the nominee has now been employed continuously by the applicant for over nine years.
Given the above findings, the requirement in reg 5.19(3)(d) is satisfied by the applicant.
No less favourable terms and conditions of employment: reg 5.19(3)(e)
Regulation 5.19(3)(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 applicant submitted an employment contract providing the nominee with a base annual salary of $55,000 plus superannuation, PAYG taxation records of the nominee and relevant Notices of Assessment. Of relevance, the Tribunal notes that the nominee gave birth to her second child in Australia after commencing employment with the applicant. Her first child was born in Australia prior to commencing her current employment and that child is now an Australian citizen. The nominee’s two Australian born children are aged eleven and six years respectively. Accordingly, the Tribunal accepts that there has been some fluctuation in the nominee’s income over the years, on account of her parenting responsibilities. Having regard to the market salary relevant to the nominated position of Restaurant Manager, the Tribunal accepts that the nominee is being paid a salary that is appropriate to the location of the workplace. For completeness, the Tribunal notes that the nominee is the only Restaurant Manager employed by the applicant.
Following careful consideration of the submitted evidence, on balance, the Tribunal is satisfied 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.
Accordingly, the requirement in reg 5.19(3)(e) is satisfied by the applicant.
Training commitments and obligations: reg 5.19(3)(f)
Regulation 5.19(3)(f) requires the applicant to have fulfilled any commitments made relating to meeting training requirements, and complied with applicable obligations relating to training requirements, during the period of the applicant’s most recent sponsorship approval. These requirements may be disregarded if it is reasonable to do so.
The applicant is currently approved as a standard business sponsor from 5 August 2023 to 5 August 2028. This is the most recent period of approval. By operation of law, the applicant does not need to demonstrate adherence to training commitments for the current period of sponsorship.
Accordingly, the requirement in reg 5.19(3)(f) is satisfied by the applicant.
No adverse information known to Immigration: reg 5.19(3)(g)
Regulation 5.19(3)(g) 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.
There is no evidence of adverse information before the Tribunal about the applicant or a person associated with the applicant.
Accordingly, the requirement in reg 5.19(3)(g) is satisfied by the applicant.
Satisfactory compliance with workplace relations laws: reg 5.19(3)(h)
Regulation 5.19(3)(h) requires the applicant to have 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.
There is no evidence before the Tribunal suggestive of the applicant not having a satisfactory record of compliance with relevant Commonwealth or State workplace relations laws.
Accordingly, the requirement in reg 5.19(3)(h) is satisfied by the applicant.
CONCLUSION
Based on the findings above, the Tribunal is satisfied that the applicant meets the requirements of reg 5.19 for approval of the nomination of the position in Australia.
DECISION
The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.
K. Chapman
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.
Temporary Residence Transition nomination
(3)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 person who holds a Subclass 457 … visa granted on the basis that the person satisfied the criterion in subclause 457.223(4) of Schedule 2; and
(iii)     identifies an occupation, in relation to the position, that:
(A)is listed in ANZSCO; and
(B)has the same 4-digit occupation unit group code as the occupation carried out by the holder of the Subclass 457 … visa; and
(b)the nominator:
(i)       is, or was, the standard business sponsor who last identified the holder of the Subclass 457 … visa in a nomination made under section 140GB of the Act or under regulation 1.20G or 1.20GA as in force immediately before 14 September 2009; and
(ii)      is actively and lawfully operating a business in Australia; and
(iii)     did not, as that standard business sponsor, meet regulation 1.20DA, or paragraph 2.59(h) or 2.68(i), in the most recent approval as a standard business sponsor; and
(c)either:
(i)       both of the following apply:
(A)in the period of 3 years immediately before the nominator made the application, the holder of the Subclass 457 …visa identified in subparagraph (a) (ii) has:
(I)held one or more Subclass 457 visas for a total period of at least 2 years; and
(II)been employed in the position in respect of which the person holds the Subclass 457 … visa for a total period of at least 2 years (not including any period of unpaid leave);
(B)the employment in the position has been full-time, and undertaken in Australia; or
(ii)      all of the following apply:
(A)the person holds the Subclass 457 … visa on the basis that the person was identified in a nomination of an occupation mentioned in sub-subparagraph 2.72(10)(d)(iii)(B) or sub-subparagraph 2.72(10)(e)(iii)(B);
(B)the nominator nominated the occupation;
(C)the person has been employed, in the occupation in respect of which the person holds the Subclass 457 … visa, for a total period of at least 2 years in the period of 3 years immediately before the nominator made the application; and
(d)for a person to whom subparagraph (c)(i) applies:
(i)       the person will be employed on a full-time basis in the position for at least 2 years; and
(ii)      the terms and conditions of the person’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)       the nominator:
(A)fulfilled any commitments the nominator made relating to meeting the nominator’s training requirements during the period of the nominator’s most recent approval as a standard business sponsor; and
(B)complied with the applicable obligations under Division 2.19 relating to the nominator’s training requirements during the period of the nominator’s most recent approval as a standard business sponsor; or
(ii)      it is reasonable to disregard subparagraph (i); and
Note Different training requirements apply depending on whether the application for approval as a standard business sponsor was made before 14 September 2009 or on or after that date.
(g)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
(h)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.

[2023] AATA 3807

3 November 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Appeal

Standing