Sheetal Indian Restaurant Pty Ltd (Migration)

[2020] AATA 4005

Sheetal Indian Restaurant Pty Ltd (Migration) [2020] AATA 4005 (16 September 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Sheetal Indian Restaurant Pty Ltd

CASE NUMBER:  1824401

HOME AFFAIRS REFERENCE(S):          BCC2017/2017666

MEMBER:Ian Berry

DATE:16 September 2020

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decision not to approve the nomination.

Statement made on 16 September 2020 at 12:59pm

CATCHWORDS
MIGRATION – Employer Nomination – approval of nominated position – Cook – labour market testing – advertising undertaken in relation to nominated position – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 140GB, 140GBA
Migration Regulations 1994 (Cth), rr 2.72, 2.73

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 13 August 2018 to refuse to approve the applicant’s nomination under s.140GB of the Migration Act 1958 (the Act) and r.2.72 of the Migration Regulations 1994 (the Regulations).

2. The applicant applied for approval on 7 June 2017. A nomination of an occupation for a Subclass 457 visa is made under s.140GB of the Act and r.2.73 of the Regulations. Regulations 2.72(3) to (12) prescribe the criteria that must be satisfied for the Minister to approve a nomination by a person. These criteria are extracted in the attachment to this decision. For nomination applications made from 23 November 2013, additional criteria are specified in s.140GBA.

3. The delegate decided not to approve the nomination based on the applicant not satisfying s.140GBA(3) because the applicant did not provide satisfactory evidence of having complied with the labour market testing criteria as required and did not provide that evidence at the time of making the nomination application.

4. The applicant appeared before the Tribunal on 20 August 2020 to give evidence and present arguments, through its sole director, shareholder and manager Mr Sovan Singh (the manager). The Tribunal received oral evidence from the applicant.  The Tribunal exercised its discretion to hold the hearing by telephone. During the COVID-19 pandemic, special circumstances exist for the telephone hearing. The Tribunal also considered the Tribunal’s objective of providing a review that is fair, just, economical and expedient. A hearing by telephone achieved this end.

5. The applicant was represented in relation to the review by its registered migration agent Miss Machado Medeiros Allen MARN 2014135 of Migration Guru Pty Ltd.

6. For the following reasons, the Tribunal has decided to affirm the decision under review to refuse the nomination.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in the present case is whether the applicant meets the criteria for approval of the nomination. The Tribunal must approve the nomination if the applicant is an approved sponsor and meets the requirements in r.2.72: s.140GB(2). The applicant must also have paid any nomination training contribution charge in relation to the nomination for which it is liable, but this liability only arises for nominations made from 12 August 2018. In addition, for nominations made from 23 November 2013, s.140GBA must be met.

   Labour market testing

8. Section 140GBA requires a standard business sponsor who nominates an occupation and associated position, to fulfil the ‘labour market testing condition’ unless the major disaster or skill and occupational exemptions in ss.140GBB–140GBC apply, or the Minister has determined it would be inconsistent with a specified international trade obligation.

9. For these purposes, labour market testing means testing of the Australian labour market to demonstrate whether a suitably qualified and experienced Australian citizen or permanent resident is readily available to fill the position. To satisfy the labour market testing condition, the testing must be undertaken within a prescribed period as set out in IMMI 13/136. In addition:

   ·the nomination must be accompanied by the evidence specified in s.140GBA(5) and (6) relating to labour market testing, and information about any Australian citizen or permanent resident redundancies or retrenchments from relevant occupations in the previous four months; and

   ·the Minister must be satisfied a suitably qualified and experienced Australian citizen, permanent resident or eligible temporary visa holder (as defined) is not readily available to fill the nominated position.

10. The evidence of labour market testing that must accompany the nomination relates to information about attempted recruitment, including details of advertising for the position or similar positions, and advertising fees and expenses. It may also include information about the sponsor’s participation in relevant job and career expos, details of other fees, expenses and results for recruitment attempts, and other evidence such as recent labour market trend research, expressions of government support, or other evidence specified by the Minister. However, if this optional information and evidence is not provided, the nomination is not to be treated less favourably. If there are any relevant redundancies or retrenchments, the labour market testing must have been undertaken after those events.

11. The applicant is an Indian restaurant incorporated on 10 April 2012, though it commenced trading in May 2013. The manager not only manages the business; he is the business’ chef. It now employs four people, including himself, his wife as the kitchenhand, the nominee as a cook and a waiter in front of house. According to the nominee Mr Harwinder Singh (the nominee), the restaurant is open every day other than Sunday, from 11am to 9.30 pm though depending on the customers leaving the restaurant. It provides dine-in meals and takeaways. The nominee says that the menu changes every four, six or eight months.

12. The nominee commenced working in the business about eight months before the making of the nomination application on 17 June 2017 – October or November 2016. The manager thought that he commenced work around July, August or September 2016. The nominee came to the restaurant looking for work as a cook. While the manager was unsure as to when the applicant employed the nominee, he remembers hiring him about eight or nine days later. The nominee was on a student visa with a condition that he could only work 20 hours per week. The applicant paid him $18 per hour earning about $350 per week.

13. He had the assistance of a migration agent to complete the nomination application. The manager was aware of the obligation to undertake labour market testing. Though asked about what labour market testing was, he said that it is about advertising and finding out people. Questioned whether the applicant had undertaken this testing, he said it had. The advertisement comprised of a placement of an advertisement on Gumtree, the internet site. Though he did not supply any information as to this advertisement appearing on Gumtree, or for how long the advertisement ran, he said it was typed on his mobile phone and sent to Gumtree where he had an account. Asked as to whether he enquired with Gumtree through his account and whether he could be more precise on the details, he said when he sought the data, it was not available. He remembered it was placed on Gumtree around May 2017 (the month before making his nomination application). He then clarified that it was three advertisements sent via his mobile phone, and these advertisements may have been placed between April and May 2017, he did not remember exactly stating that Gumtree was a free website.

14. Asked whether the nominee applied for the cook position, the manager said that he did. The manager confirmed the department did invite the applicant to support the application by providing evidence of the labour market testing condition. The departmental file reveals that there is a copy of the following document, a copy of which the Tribunal also has:

    we needed cook for indian restaurant on gold coast We are seeking a passionate individual to bring creativity and flair to an already exciting team and menu. You will have experience in a similar role, be able to work with a team and also individuall y and have experience in kitchen. If anyone intersted call me 0434367806 or email me on si ngh sovan@yah oo.com . 457 available. Full-time l Annual Salary Package Advertised by Private Job Type Full-time

15. The nominee has not started full-time work at present according to the manager. He was not allowed to commence full-time work because of his visa.

16. Questioned as to whether he had any job applicants apply for the position of cook, the manager said that they had ‘maybe 10 or 12 or in fact more’. He did not give the resumes or details of these applicants to either the department or the Tribunal. He said he was not aware it was necessary. Asked whether he still had the resumes the manager said ‘I’m not sure. I may not have retained them they may have been in my piles’. Asked as to whether he interviewed any of the candidates, he responded ‘I do not remember, but I must have interviewed one or two’. The manager clarified his evidence by stating ‘I interviewed two people’.

17. The manager was asked as to why the advertisement did not have a date on the ‘screenshot’. He said he had an account at Gumtree.

18. A search of the departmental file shows the applicant did provide that ‘screenshot’. The nomination application attests to the applicant having undertaken labour market testing. Under the application’s heading ‘Labour Market Testing’ on page 5, the applicant provided the information that the testing was ‘From April 2017 to present’. In response to the application’s question as to whether the business advertised the nominated position or similar positions recently, the applicant responded ‘yes’. The next question was:

    If yes, please describe where and how your business advertised the position/s, when the advertisement was published and how long it was published for (evidence of the advertisement/sand any associated payments for advertising must be attached to this application, unless this nomination is exempt from the LMT requirement).

    Response: ‘In early April an advertisement was placed on Gumtree and is still active’.

19. The applicant has not provided to the Tribunal any evidence corroborating that the advertising has been carried out by the applicant. Such evidence should have been available as the applicant has an account with Gumtree, received position applications and interviews have been conducted by the manager.

20. The Tribunal has carefully considered the submissions submitted on behalf of the applicant both to the department and to this Tribunal. The submission of 26 September 2017 did not refer to the labour market testing condition. The applicant’s submissions of 17 March 2020 and 27 March 2020 did not address the labour market testing conditions including the applicant’s advertisement purporting to satisfy those conditions.

    The law to be applied

21. The labour market testing provisions have applied to applicants since 23 November 2013, subject to exemptions by international trade obligations applying. Section 140GB(2) provides for the nomination to be approved, if s.140GBA applies and is satisfied. Exemptions apply where there is a major disaster or in relation to a particular skill level as well as Australia’s trade obligations. None of those exemptions apply to the applicant which is a standard business sponsor which is nominating the position of cook under the 457 program.

22. The labour market testing conditions must be undertaken in the 12 months before the making of the nomination application for a 457 nomination. Section 140GBA requires a nomination to be accompanied by evidence that must be given at the time of making the application or within a reasonable time thereafter. The evidence required includes details of the advertising undertaken relating to the nominated position with details of the fees and other expenses associated with the advertising. Other evidence can be provided by the applicant such as attending employment seminars like career and job expositions, recruitment drives, and research relating to labour market trends.

23. The Tribunal is not satisfied that the applicant undertook advertising as required by the labour market testing conditions.

24. For these reasons, the labour market testing requirements in s.140GBA are not met.

25. For the reasons given above, the Tribunal is not satisfied that the applicant meets the applicable criteria for the nomination to be approved. Accordingly, the decision under review must be affirmed.

    DECISION

26. The Tribunal affirms the decision not to approve the nomination.

    Ian Berry
    Member

    
    

    ATTACHMENT – EXTRACTS FROM THE MIGRATION REGULATIONS 1994

    2.72 Criteria for approval of nomination — Subclass 457…

    (1)This regulation applies to a person who is:

    (a)is any of the following:

    (i) a standard business sponsor;

    (ii) a person who has applied to be a standard business sponsor;

    (iii) a party to a work agreement (other than a Minister);

    (iv) a party to negotiations to a work agreement (other than a Minister); and

    (b)a party to a work agreement (other than a Minister);

    who, under paragraph 140GB (1) (b) of the Act, has nominated an occupation in relation to a holder of, or an applicant or a proposed applicant for, a [Subclass 457 visa].

    (2)For subsection 140GB (2) of the Act, the criteria that must be satisfied for the Minister to approve a nomination by a person are set out in subregulations (3) to (12).

    (3)The Minister is satisfied that the person has made the nomination in accordance with the process set out in regulation 2.73.

    (4)The Minister is satisfied that the person is:

    (a)a standard business sponsor; or

    (b)a party to a work agreement (other than a Minister).

    (5)The Minister is satisfied that the person has identified in the nomination the visa holder, or the applicant or proposed applicant for the visa, who will work in the nominated occupation.

    (6)If the person identifies a holder of a [Subclass 457 visa] (the visa holder) for subregulation (5), the Minister is satisfied that the person:

    (a)has listed on the nomination each other holder of a visa of that kind who was granted the visa on the basis of having the necessary relationship with the visa holder as mentioned in clause 457.321 of Schedule 2; and

    (b)if the Minister requires the visa holder to demonstrate that he or she has the skills necessary to perform the occupation — the visa holder demonstrates that he or she has those skills in the manner specified by the Minister.

    (7)For paragraph (6) (a), the Minister may disregard the fact that 1 or more persons required to be listed on the nomination are not listed, if the Minister is satisfied it is reasonable in the circumstances to do so.

    (7A)In addition to subregulation (6):

    (a)if:

    (i)       the person identifies a holder of a [Subclass 457 visa] (the visa holder) for subregulation (5); and

    (ii)      the [Subclass 457 visa] was granted after the Minister had waived the requirements of paragraph 4006A (1) (c) of Schedule 4 on the basis of a written undertaking made by the current sponsor of the visa holder (as set out in subclause 4006A (2) of that Schedule);

    the Minister is satisfied that the person has provided, in writing, an undertaking that is equivalent to the undertaking made by the current sponsor of the visa holder; and

    (b)if:

    (i)       the person identifies a holder of a [Subclass 457 visa] (the visa holder) for subregulation (5); and

    (ii)      the person has listed on the nomination a person described in paragraph (6) (a); and

    (iii)     the [Subclass 457 visa] was granted to the person described in paragraph (6) (a) after the Minister had waived the requirements of paragraph 4006A (1) (c) of Schedule 4 on the basis of a written undertaking made by the current sponsor of the visa holder (as set out in subclause 4006A (2) of that Schedule);

    the Minister is satisfied that the person has provided, in writing, an undertaking that is equivalent to the undertaking made by the current sponsor of the visa holder.

    (8)If the nomination was made before 1 July 2010 — the Minister is satisfied that the person has provided the following information as part of the nomination:

    (a)if there is a 6‑digit ASCO code for the nominated occupation — the 6-digit ASCO code;

    (b)if there is no 6-digit ASCO code for the occupation, and the person is a standard business sponsor — the name of the occupation as it appears in the instrument in writing made for the purposes of paragraph (10) (a);

    (c)if there is no 6-digit ASCO code for the occupation and the person is a party to a work agreement — the name of the occupation as it appears in the work agreement;

    (d)the location or locations at which the nominated occupation is to be carried out.

    (8A)If the nomination is made on or after 1 July 2010 – the Minister is satisfied that the person has provided the following information as part of the nomination:

    (a)if there is a 6-digit ANZSCO code for the nominated occupation - the name of the occupation and the corresponding 6-digit ANZSCO code;

    (b)if:

    (i)       there is no 6-digit ANZSCO code for the nominated occupation; and

    (ii)      the person is a standard business sponsor;

    the name of the occupation and the corresponding 6-digit code as they are specified in the instrument in writing made for paragraph (10)(aa);

    (c)if:

    (i)       there is no 6-digit ANZSCO code for the nominated occupation; and

    (ii)      the person is a party to a work agreement;

    the name of the occupation and the corresponding 6-digit code (if any) as they are specified in the work agreement;

    (d)the location or locations at which the nominated occupation is to be carried out.

    (8B)The Minister is satisfied that the person has, in writing, certified as part of the nomination whether or not the person has engaged in conduct, in relation to the nomination, that constitutes a contravention of subsection 245AR(1) of the Act.;

    (9)The Minister is satisfied that either:

    (a)there is no adverse information known to Immigration about the person or a person associated with the person; or

    (b)it is reasonable to disregard any adverse information known to Immigration about the person or a person associated with the person.

    (10)If the person is a standard business sponsor — the Minister is satisfied that:

    (a)if the nomination was made before 1 July 2010 - the nominated occupation corresponds to an occupation specified by the Minister in an instrument in writing for this paragraph; and

    (aa)if the nomination is made on or after 1 July 2010 – the nominated occupation and its corresponding 6-digit code correspond to an occupation and its corresponding 6-digit code specified by the Minister in an instrument in writing for this paragraph and the occupation is applicable to the person identified in the nomination in accordance with the specification of the occupation; and

    (b)if required by the instrument mentioned in paragraph (a)  or (aa) — the nomination of an occupation mentioned in the instrument is supported, in writing to the Minister, by an organisation specified by the Minister in an instrument in writing for this paragraph; and

    (c)the terms and conditions of employment of the person identified in the nomination will be no less favourable than the terms and conditions (including, if applicable, the terms and conditions provided by an enterprise agreement under the Fair Work Act 2009) that are provided or would be provided to an Australian citizen or an Australian permanent resident for performing equivalent work at the same location; and

    (cc)the base rate of pay, under the terms and conditions of employment mentioned in paragraph (c), that:

    (i)       are provided; or

    (ii)      would be provided;

    to an Australian citizen or an Australian permanent resident, will be greater than the temporary skilled migration income threshold specified by the Minister in an instrument in writing for this paragraph; and

    (d)if the nomination was made before 1 July 2010 - the person has certified as part of the nomination, in writing, that:

    (i)       the tasks of the position include a significant majority of the tasks of:

    (A)the nominated occupation listed in the ASCO; or

    (B)the nominated occupation specified in an instrument in writing for paragraph (a); and

    (ii)      if the person is lawfully operating a business outside Australia but does not lawfully operate a business in Australia:

    (A)the nominated occupation is a position in the business of the standard business sponsor; or

    (B)the nominated occupation is an occupation specified by the Minister in an instrument in writing for this sub-paragraph; and

    (iii)     if the person lawfully operates a business in Australia:

    (A)the nominated occupation is a position with a business, or an associated entity, of the person; or

    (B)the nominated occupation is an occupation specified by the Minister in an instrument in writing for this sub-paragraph; and

    (iv)     the qualifications and experience of the visa holder, or the applicant or proposed applicant for the visa, identified in relation to the nominated occupation are commensurate with the qualifications and experience specified:

    (A)for the occupation in the ASCO; or

    (B)if there is no ASCO code for the nominated occupation — for the occupation in the instrument in writing made for the purpose of paragraph (a); and

    (e)if the nomination is made on or after 1 July 2010 – the person has certified as part of the nomination, in writing, that:

    (i)       the tasks of the position include a significant majority of the tasks of:

    (A)the nominated occupation listed in the ANZSCO; or

    (B)the nominated occupation specified in an instrument in writing for paragraph (aa); and

    (ii)      if the person is lawfully operating a business outside Australia but does not lawfully operate a business in Australia:

    (A)the nominated occupation is a position in the business of the standard business sponsor; or

    (B)the nominated occupation is an occupation specified by the Minister in an instrument in writing for this sub-subparagraph; and

    (iii)     if the person lawfully operates a business in Australia:

    (A)the nominated occupation is a position with a business, or an associated entity, of the person; or

    (B)the nominated occupation is an occupation specified by the Minister in an instrument in writing for this sub-subparagraph; and

    (iv)     the qualifications and experience of the visa holder, or the applicant or proposed applicant for the visa, identified in relation to the nominated occupation are commensurate with the qualifications and experience specified:

    (A)for the occupation in the ANZSCO; or

    (B)if there is no ANZSCO code for the nominated occupation - for the occupation in the instrument in writing made for paragraph (aa).

    (f)the position associated with the nominated occupation is genuine; and

    (g)if the person has identified in the nomination the holder of a Subclass 457 (Temporary Work (Skilled)) visa in relation to whom the requirements in subclause 457.223(6) of Schedule 2 were met—one of the following applies:

    (i)       the requirements in subclause 457.223(6) of Schedule 2 continue to be met;

    (ii)      if:

    (A)the holder would be required to hold a licence, registration or membership that is mandatory to perform the occupation nominated in relation to the holder; and

    (B)in order to obtain the licence, registration or membership, the holder would need to demonstrate that the holder has undertaken a language test specified by the Minister under subparagraph 457.223(4)(eb)(iv) of Schedule 2 and achieved a score that is better than the score specified for the test by the Minister under subparagraph 457.223(4)(eb)(v) of Schedule 2;

    the holder demonstrates that he or she has proficiency in English of at least the standard required for the grant (however described) of the licence, registration or membership;

    (iii)     the holder is an exempt applicant within the meaning of subclause 457.223(4) of Schedule 2;

    (iv)     unless subparagraph (ii) applies—the holder:

    (A)has undertaken a language test specified by the Minister under subparagraph 457.223(4)(eb)(iv) of Schedule 2; and

    (B)achieved within the period specified by the Minister in a legislative instrument for this subparagraph, in a single attempt at the test, the score specified by the Minister under subparagraph 457.223(4)(eb)(v) of Schedule 2; and

    (h)either:

    (i)       the person will:

    (A)engage the visa holder, the applicant for a visa or the proposed applicant for  a Subclass 457(Temporary Work (Skilled)) visa only as an employee under a written contract of employment; and

    (B)give a copy of that contract to the Minister; or

    (ii)      the nominated occupation is an occupation specified by the Minister in an instrument in writing for sub-subparagraph (e)(iii)(B).

    (10AA)For paragraphs (10) (c) and (cc), if no Australian citizen or Australian permanent resident performs equivalent work in the person’s workplace at the same location, the person must determine, using the method specified by the Minister in an instrument in writing for this subregulation:

    (a)the terms and conditions of employment; and

    (b)the base rate of pay, under the terms and conditions of employment;

    that would be provided to an Australian citizen or an Australian permanent resident to perform equivalent work in the person’s workplace at the same location.

    (10AB)Paragraphs (10) (c) and (cc) do not apply if the annual earnings of the person identified in the nomination are equal to or greater than the amount specified by the Minister in an instrument in writing for this subregulation.

    (10A)The Minister may disregard the criterion in paragraph (10) (cc) for the purpose of subregulation (2) if:

    (a)the base rate of pay will not be greater than the temporary skilled migration income threshold specified for that paragraph; and

    (b)the annual earnings are equal to or greater than the temporary skilled migration income threshold; and

    (c)the Minister considers it reasonable to do so.

    (11)If the person is a party to a work agreement (other than a Minister) — the Minister is satisfied that:

    (a)the nominated occupation is specified in the work agreement as an occupation that the person may nominate; and

    (b)if the nomination was made before 1 July 2010 - the person has certified as part of the nomination, in writing, that:

    (i)       the tasks of the position include a significant majority of the tasks of:

    (A)if the nomination is made using an ASCO code - the nominated occupation listed in the ASCO; or

    (B)if the nomination is not made using an ASCO code - the nominated occupation specified in the work agreement; and

    (ii)      the qualifications and experience of the visa holder, or the applicant or proposed applicant for the visa, identified in relation to the nominated occupation are commensurate with the qualifications and experience specified for the occupation in the work agreement; and

    (c)if the nomination is made on or after 1 July 2010 - the person has certified as part of the nomination, in writing, that:

    (i)       the tasks of the position include a significant majority of the tasks of:

    (A)if the nomination is made using an ANZSCO code - the nominated occupation listed in the ANZSCO; or

    (B)if the nomination is not made using an ANZSCO code - the nominated occupation specified in the work agreement; and

    (ii)      the qualifications and experience of the visa holder, or the applicant or proposed applicant for the visa, identified in relation to the nominated occupation are commensurate with the qualifications and experience specified for the occupation in the work agreement.

    (12)If the person is a party to a work agreement and the work agreement specifies requirements that must be met by the party to the work agreement — the Minister is satisfied that the requirements of the work agreement have been met.