SIXTH SENSE FOOD PTY LTD (Migration)

SIXTH SENSE FOOD PTY LTD (Migration) [2020] AATA 3971 (7 August 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT: Sixth Sense Food Pty Ltd
CASE NUMBER: 1907169

HOME AFFAIRS REFERENCE: BCC2018/967354
MEMBER:Lilly Mojsin
DATE:7 August 2020
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision under review to refuse the nomination.

Statement made on 7 August 2020 at 9.00 am
CATCHWORDS
MIGRATION – Employer Nomination – approval of nominated position – Temporary Residence Transition nomination stream – Café or Restaurant Manager – adverse information – sponsorship bar – financial capacity to maintain employment – unreliable business records – incorrect information regarding working hours and salary payments – decision under review affirmed
LEGISLATION
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 Immigration on 6 March 2019 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, Sixth Sense Food Pty Ltd [ABN 90155901232] applied for approval on 28 February 2018.
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 (r.5.19(3)) stream and a Direct Entry nomination (r.5.19(4)) stream. 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 review, the applicant has applied for approval of a nomination, seeking to satisfy the criteria in the Temporary Residence Transition nomination stream. The position nominated was for the occupation of 'Café or Restaurant Manager ANZSCO 141111'.
The delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19(3)(g) of the Regulations because the delegate was not satisfied that there is no adverse information known to the Department about the nominator and/or a person associated with the nominator, or, if known, it is reasonable to disregard that adverse information.
The applicant, represented by Khilendra Raj Kafle, the company Director appeared before the Tribunal on 21 May 2020. The Tribunal held a joint hearing of nominations 1717723, 1830719,1907169 and 1927320.
The hearings of nominations 1717723, 1830719, 1907169 and 1927320 were held jointly as the applicant had nominated the same position 'Café or Restaurant Manager 141111' in all applications.
The nominee in relation to the application 1907169 was Ershad Syed for the position Café or Restaurant Manager – ANZSCO 141111. The nominee did not appeal the decision to refuse the 187 visa application.
The hearing of nominations 1717723, 1830719, 1907169 and 1927320 were held jointly as the applicant had nominated the same position 'Café or Restaurant Manager 141111' in all applications.
The hearings were held during the COVID-19 pandemic.
The Tribunal also had regard to the Tribunal's objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone.
The nominator consented to the hearing being conducted by telephone. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.
The applicant was represented in relation to the review by its registered migration agent.
CONSIDERATION OF CLAIMS AND EVIDENCE
The applicant stated in its application that it would provide the nominee with an annual base salary of $58,000 per annum. The applicant provided a letter from an accountant to the Department confirming the business is viable and capable of paying the wages and benefits to employees and the nominee.
Included in the Department file:
§Submission
§ABN lookup
§ASIC basic extract
§BAS 04/16 to 08/17
§Statement from accountant 28/02/2018
§Company tax return 2017
§Statement from accountant 25/01/2017
§Financial statements FY2017
§Employment statement 25/02/2018
§Contract 25/02/2018
§Training receipt (manage risk – 09/05/2016)
§Training receipt (manage workforce planning – 04/10/2016)
§Training receipt (manage employee relations - 01/11/2017)
§Bank statement –Company 11/18 01/19
§Bank statement – Nominee 10/18 to 02/19
§Bank statement – Company 08/18 to 10/18
On 17/08/2018, under Section 140M of the Act, Sixth Sense Food Pty Ltd was barred by the department from sponsoring more people under the terms of the approved Standard Business Sponsorship. The bar commenced on 17/08/2018 and remains in force until 17/08/2020. The bar has the effect of preventing the sponsor from sponsoring more individuals during this period. The delegate recognised that the company responded positively to the monitoring activity and has since amended its protocols in order to meet its employer obligations. The Department refused the visa because the Department was of the view that there was adverse information about the applicant and it was not reasonable to disregard this information.
The applicant on 24 April 2020 provided the Tribunal:
- 2018 Company tax return
- Financial Statements 2018
- Roster for Kangaroo Valley
- Roster for Wollongong
- March 2018 Bank statement and Pay slip of each 5 x 457 visa holders
- April 2018 Bank statement and Pay slip of each 5 x 457 visa holders
- November 2018 Bank statement and Pay slip of each 5 x 457 visa holders
- Shine Business Accountants dated 20 February 2020 advising they had been appointed to:
to do the payroll ..…. from 01 July 2018, which includes payroll of sponsored visa’s staff. We understand our obligation to ensure the payroll with proper recordkeeping.
At the hearing the Tribunal explained to the applicant that in order to be approved for nomination it had to meet all the requirements of r.5.19(3), irrespective of the subclause upon which the Department had refused the application.
The Tribunal noted that on 24 April 2020 the applicant provided limited financial documents to the Tribunal, only 2018 financial statements, 2018 Company tax return and 2018 Financial Statements. The Tribunal asked the applicant for the most recent information regarding the financial position of the company and information about all the criteria in r.5.19. The Tribunal noted that there was no supporting documentation confirming the salaries being paid to the other staff, such as payroll summaries and ATO lodged PAYG payment summaries. The applicant and his adviser stated that their accountant had until October 2020 to complete the returns. The Tribunal indicated that current financial information was required for the Tribunal to make a decision and it was not satisfied that waiting until after October 2020 was a reasonable time for the Tribunal to delay the review.
The applicant submitted further information to the Tribunal, on 20 May 2020, including:
·18-19 Financial Statement of the applicant
·Statement from Company.pdf
·BAS Jul 2019 to Mar 2020.pdf
·Financial Statement 2019 signed and tax return.pdf
·Accountant's letter.pdf
·Mango Tree menu 25 June 2019.pdf
·Kangaroo Valley Lease.pdf
·Variation to lease Wollongong.pdf
At the Tribunal hearing held on 21 May 2020 the Tribunal discussed with the applicant the requirements to meet all the requirements of r.5.19 and not just the specific clause of 5.19 that formed the basis for the Department refusal.
The Tribunal brought to the applicant’s attention a note on the Department file BCC2019/457507 [relevant to applicant’s file 1927320] stating that the applicant’s business advertises vacant positions for immigration purposes and then accepts money for sponsorship. The applicant said that he was unaware of this. The Tribunal advised that it did not rely on the information as there were no details and no information regarding the source of this information.
The applicant said that they opened a restaurant business in 2012. The first restaurant was in Wollongong and the 2^nd restaurant in Ulladulla in 2015. They moved from Ulladulla in 2017 to Annandale and from Annandale to Kangaroo Valley in 2019.
As the applicant had 4 nomination applications before the Tribunal, the applicant was asked to clarify the nominations that were proceeding. In regard to the 4 nominated positions of restaurant café manager, the applicant stated that two nominations were for the one person. The other applications for review did not have nominees. Those nominees were not before the Tribunal for the related visas.
The applicant stated that he has 2 restaurants, with 4 managers. He has 2 chefs in Kangaroo Valley and 2 in Wollongong. He also works in Kangaroo Valley with 2 part-time cooks and there are 2 chefs in Wollongong. One cook has a 457 visa, 2 are permanent residents. One staff, a 457 visa holder in Wollongong is full time. In Wollongong they are cooks. In Kangaroo Valley there are 2 part-time cooks and the applicant’s representative works there. The applicant confirmed that he has 5 x 457 visa holders. Other staff are wait staff and a supervisor to just look after the floors when it is busy. One restaurant has 12 staff, there are 5 to 6 in Wollongong. Other staff are a kitchen hand and a supervisor. The applicant said that he has 10 -12 staff in each location.
Asked why he needs 2 managers in each restaurant, he said he does not have time due to his family and they only work 38 hours each. Asked how many tables he has in Wollongong, he said there were 130. In Kangaroo Valley he has 80 tables. In Annandale he had 70 to 75, it was located at 127 Booth St and in Ulladulla he had 100 seat restaurant.
The Tribunal noted that in 2018 Financial Statements, the gross profit was $854 810.82 and net profit was $5 771. The previous year the net profit was $898.75. In 2019 the gross profit was $652 596 and net profit $13 900. The Bank guarantee was $21 000. The current liabilities were in 2019 $509 684 and a Director’s Loan of $415 487.52. The accumulated losses were $286 079 for 2019, $299 980.44 for 2018 and $30 5751.44 for 2017. It was put that he did not appear to be running the business with a profit and reducing the accumulated losses. He responded that every year they are decreasing.
It was put to the applicant that the Department had drawn to his attention that the amount of money committed to paying his 457 visa holders indicated a small amount left after paying 457 visa holders and after deducting the 457 salaries, there was little left for other salaries. The wages for the business were $482 675 in 2017, $529 535 in 2018 and $ 335 625 in 2019.
Put to the applicant that he has not provided a breakdown of all staff and it appeared that the applicant paid less on wait staff and kitchenhands than was paid on employing the managers. He said he did not realise he had to provide a breakdown of all staff. He said that the 457 visa holders receive $290 000 and the balance goes to other staff and they are casual and only called when needed. The Tribunal put that it assesses the review on all criteria in r.5.19 and as he is committed to 457 visa holders, the information provided did not indicate how he is able to pay wait staff and kitchen hands. It was put that if there are hardly any wait staff being paid then this suggests that the managers are working in other roles whilst they are managing the business. He said they are only doing the managerial role. It was put that he cannot run the kitchen or a restaurant without wait staff and cooks. He said they work at separate times and there is a gap.
Discussing the first 6 month period of 2019 -2020 and BAS statements provided to the Tribunal, the applicant said that for the 6 months, prior to COVID19 lock down, the applicant had 12 employees.
The applicant explained that the following staff were:
July to September 2019
Wollongong – 2 x 457 managers, 2 Australian citizen wait staff, 1 overseas student visa wait staff, 1 overseas student visa kitchen hand, 1 chef 457, 1 part-time cook
Annandale – 2 x 457 managers, 1 x 457 chef, 1 overseas student visa kitchen hand, 2 citizen wait staff, 1 cook
September to December 2019
Wollongong 2 x 457 managers, 1 cook, 2 overseas student wait staff, 3 citizen wait,
Annandale 2 x 457 managers, 2 overseas student wait staff, 2 citizen wait staff, 1 chef 457.
The applicant said that the roster changed from week to week.
The Tribunal, discussing the BAS Statements, put to the applicant that in the July to September 2019 BAS Gross Salary was $21 845 and September to December 2019 BAS Gross Salary was $35 450 being a total of $57 295. Put that the applicant should have paid $145 000 to his 457 visa holders in that period. He said that the salary is only for one month. He said they paid wages monthly. The applicant said he paid $171 885 for all his staff in the 6 month period.
It was put that for July to December 2019 he needed to pay about $145 000 for his 457 visa holders. The meant that all the other employees were paid $26 000 gross. He responded that some of his 457 visa holders were not in Australia. They were overseas on leave. It was put that they would have received holiday pay. He said that he only calls wait staff when there are bookings. It was put that it appeared that his managers do nothing because he stated that he does not call casual staff when there are no customers.
It was put to the applicant that his 457 managers were doubling up as wait staff, kitchen hands etc. He responded his managers have things to do such as attending to marketing, rosters, purchasing, promote sales etc. It was put to the applicant that as he had 5 x 457 visa holders and no other full time staff and he had 17 part-time workers, this meant on average they received a total of $1185 per week and therefore on average each one only worked 3 hours per week.
The applicant responded that they are not working all the time. The manager works the rosters. It was put that he could not open a restaurant without having a cook at each restaurant. He said that he pays a cook $900 per week. The Tribunal put that this was $29 952 gross and when added to $145 000 to pay to 5 x 457 visa holders, this meant that he did not have any wait staff for 6 months.
The applicant said there was some confusion on the BAS. It was put to the applicant that he has provided a statement to the Tribunal saying that he paid $171 885 staff salary in 6 months. It was put that this suggests that 457 visa holders are doing other jobs in the restaurant in addition to any managing as he is not paying other people to come in to work or it suggests that he is not paying the 457 visa holders the right amount of salary. The Tribunal said it was not satisfied his figures indicated that he is in a position to pay all his 457 visa holders. It was put that the 457 visa holders were working in other positions as there is insufficient evidence before the Tribunal to confirm that there are other persons being paid to work in the restaurant as kitchen-hands and wait staff.
It was also put that in 2018-19 the wait staff were only paid $15 625 for 12 months. He said that he had 1 chef in Wollongong and 1 of the Directors was working in Annandale. He said that he paid $45 000 for 12 wait staff. The Tribunal put that this was an average payment of $72 per person per week.
The advisor opined that the issue of wages and staff was a matter for the applicant’s accountant. He said the previous Directors played a role in restaurant.
At the conclusion of the hearing on 21 May 2020 the Tribunal gave the applicant additional time to provide all evidence on which it sought to rely.
On 5 June 2020 the applicant provided a letter from an accountant, Accounting Hands, stating that he was
instructed by Mr Kafle to prepare that financial report on an urgent basis. The report was prepared by us based on information provided to us. From my meeting with Mr Kafle, it was decided that I will review the company's available financial records and bank statements to verify that the information is indeed correct. I will be sending a team of my staff to assist in the review of the company's books. It may be completed around Tuesday 30 June 2020.
The applicant provided the Tribunal with the following documents on 2 July 2020
·Amended Financials
·Wages Jul-Sept 18
·Wages Oct-Dec 18
·Wages Jan-Mar 19
·Wages Apr-Jun 19
The wages documents provided to the Tribunal on 2 July 2020 are summarised:
In Wollongong, Kamala Adhikari employed as manager
Wages Jul-Sept 18
Vijay Baskar Dasari (457 visa) Restaurant Manager. He took 5 weeks unpaid leave because of his health issue.
Wages Oct-Dec 18
Vijay Baskar Dasari (457 visa) Restaurant Manager. He was on unpaid leave for 5 weeks.
Wages Jan-Mar 19
Vijay Baskar Dasari (457 visa) Restaurant Manager. Took 2.5 month unpaid leave.
Wages Apr-Jun 19
Vijay Baskar Dasari (457 visa) Restaurant Manager. Vijay was on unpaid leave for 3 weeks because of family reason.
Wages Jul-Sept 18
Abishek Ghimire (457 visa) Cook. Took some unpaid leave for total of 4 weeks since no annual leave left. Abishek
Wages Oct-Dec 18
Ghimire (457 visa) Cook. Took some unpaid leave for total of 3 weeks since no annual leave left.
Wages Jan-Mar 19
Abishek Ghimire (457 visa) Cook. Took some unpaid leave for total of 1 week since no annual leave left.
Wages Apr-Jun 19
Abishek Ghimire (457 visa) Cook. Worked full time throughout the period.
In Annandale
Wages Jul-Sept 18
Naresh Jaju 457 sponsored staff. Restaurant manager. He took 7 weeks unpaid leave.
Wages Oct-Dec 18
Naresh Jaju 457 sponsored staff. Restaurant manager. He took 5 weeks unpaid leave.
Wages Jan-Mar 19
Naresh Jaju 457 sponsored staff. Restaurant manager. He was on unpaid leave for 5 weeks
Wages Apr-Jun 19
Naresh Jaju 457 sponsored staff. Restaurant manager. He was on unpaid leave for 7 weeks.
Wages Jul-Sept 18
Ershad Syed 457 sponsored staff. Restaurant manager. unpaid leave for 7 weeks didn’t have any annual
Wages Oct-Dec 18
Ershad Syed 457 sponsored staff. Restaurant manager. He took one week unpaid leave.
Wages Jan-Mar 19
Ershad Syed 457 sponsored staff. Restaurant manager. Worked full time throughout the period.
Wages Apr-Jun 19
Ershad Syed 457 sponsored staff. Restaurant manager. Worked full time throughout the period.
Wages Jul-Sept 18
Manish Bhusal 457 visa sponsored staff. Cook. He has taken 6 week unpaid leave.
Wages Jan-Mar 19
Manish Bhusal 457 visa sponsored staff. Worked full time throughout the period.
Wages Apr-Jun 19
Manish Bhusal 457 visa sponsored staff - Left company from January 2019.
Wages Jul-Sept 18
Nanda Chapagan 457 visa sponsored staff. Chef. Unpaid 4 weeks leave
Wages Oct-Dec 18
Nanda Chapagain 457 visa sponsored staff. Chef. Worked full time throughout the period.
Wages Jan-Mar 19
Nanda Chapagain 457 visa sponsored staff. Chef. Worked full time throughout the period.
Wages Apr-Jun 19
Nanda Chapagain 457 visa sponsored staff. Chef. Worked full time throughout the period.
At the hearing on 2 July 2020, the applicant confirmed that all documents lodged in 1717723, 1830719, 1907169 and 1927320 were all lodged for, and relevant to, applications 1717723, 1830719, 1907169 and 1927320 before the Tribunal.
The applicant said that the payroll is prepared by Shine Business Accountants. The applicant said he prepares the salary manually every week and it is sent to Shine Accountants who prepare the books. Previously they had 3 business partners and one of the partners, Ram Neupane prepared the wages for the accountant. In 2019-2020 the applicant’s representative said he prepared the wages with a bookkeeper. He emailed it to Shine Accountants.

The Tribunal referred to the previous hearing and the applicant confirmed that all 457 visa holders on unpaid leave were overseas.
The Tribunal put to the applicant that the documents provided to the Tribunal state that in Wollongong besides Kamala Adahri who worked continually, Vijay Dasari was on leave 5/13 weeks in 1^st quarter, and 5/13 weeks 2^nd quarter and 10/13 weeks in 3^rd quarter and 3/13 weeks in 4^th quarter because of ill health. No other staff were suggested as replacing Vijay Dasari when he was absent on leave and this suggested that there was no need for 2 fulltime managers in Wollongong. The applicant said that they had a partner Naryam Chapadan who worked in that restaurant full time in 2018-19 and then the applicant worked there in 2019-20. Naryam Chapadan left the business just before COVID19.
Discussing the 2019-20 period, the applicant said that he worked in Wollongong replacing Vijay Dasari. Put that in period July-September 2019, one cook did not work 4/13 weeks, one did not work 6/13 weeks, and another did not work 4/13 weeks. In 2^nd and 3^rd quarters there were only 2 cooks. Asked why there was an inconsistency, the applicant said that Nanda Chapagain was a chef and worked then, Manish Bhusal was there until January, he changed visa from 457 to another visa.
The Tribunal asked about managers Naresh Jaju and Ershad Syed, who both took 7/13 weeks leave in 1^st quarter, Naresh Jaju took 5/13 weeks leave in 2^nd quarter and Ershad Syed 1/13 weeks leave in 2^nd quarter, stating it appeared that no other staff replaced them when they were absent. The applicant said yes he was covering their shifts himself. It was put that this suggests that there was no need for 2 full time managers in Annandale. He did not agree.
The Tribunal put to the applicant, pursuant to s.359AA, information that was the reason or part of the reason for affirming the decision under review. The Tribunal explained that the applicant could seek an adjournment to respond or respond in writing or respond immediately. The Tribunal put to the applicant that movement records suggested some of his employees that he had claimed were overseas were in fact in Australia at the time. These were
·Abishek Ghimire (457 visa) Cook who it was claimed took unpaid leave for total of 4 weeks because no annual leave left and movement records indicate he was in Australia at that time
·Naresh Jaju who it was claimed took 7 weeks unpaid leave in 1^st quarter 19-20, 5 weeks in 2^nd quarter, whilst movement records indicate he was outside Australia in 1^st and 2^nd quarter but in the 3^rd and 4^th quarter when it was claimed that he was on unpaid leave for 7 weeks, at that time he was living in Australia
·Ershad Syed, who it was claimed took unpaid leave for 7 weeks in 1^st quarter of 19-20 and 1 week in 2^nd quarter of 19-20 did not leave Australia.
·Manish Bhusal who it was claimed took unpaid leave for 6 weeks in 1^st quarter 19-20, whilst he was in Australia. In 2^nd quarter it was claimed that he worked full time but he was overseas.
·Nanda Chapagain it was claimed took unpaid 4 weeks leave in 1^st quarter 19-20 but movement records show that he did not travel
The Tribunal indicated to the applicant that this information was relevant because it suggested that the applicant provided incorrect information regarding working hours and salary payments and that his records are unreliable and have been created in order to convince the Tribunal that his 457 visa holders were employed or on unpaid leave and was an attempt to mislead the Tribunal regarding employment of his staff. The Tribunal indicated to the applicant that this information was relevant because if the Tribunal found that he had mislead the Tribunal it may lead the Tribunal to conclude that all financial data provided was not a true reflection of the company staffing and finances and affirm the decision under review.
He responded only Naresh, who took unpaid leave, was overseas but the rest of the staff were in Australia when they took unpaid leave. He would not know if they went away or not. The Tribunal then put to the applicant that when he was asked previously if they were overseas, he had said yes. He responded “just one staff was overseas and the rest took unpaid leave for family reasons”. The Tribunal put that this suggested there is no need for management positions if the visa holders are on unpaid leave in Australia. He said that he had given them warnings. It was put that he had a lot of people employed to be working in management positions who were not working in those positions. He said when they are in the position, he has to make sure they are working properly. He does not know what they are doing when on unpaid leave.
On 9 July 2020 submission received from the applicant stated:
Up until the end of financial year June 2018, the husband of one of our Directors managed the financial side of the business. From July 2018, he no longer was involved as his work commitments had changed. So, for the financial year starting July 2018, I took over the financial side of the business. I have not been trained in accounting and I did my best. I was slowly finding out what to do along the way. Sometimes asking the accountant for advice etc.
When the AAT hearings first came up, I have not fully prepared all the information for the financial statement 2018-2019. As I was required to produce the financial statement quickly before the adjourned hearing, with the help of my wife (who is also not trained in accounting) we collected the information for the accountant to prepare the financial statement.
At the later hearing, it was brought to my attention that there is something wrong with the financial statement for 2018-2019. After that, I met with the accountant and it was after that that the accountant and his team checked came over and checked all the paperwork. They discovered I have missed out on some information. For example, I based my income figure from the daily takings record from the restaurants, but missed out completely on the income figure from sources like Ubereats etc that gets paid directly into the bank account. There was also mistakes on my part about expenses, which was all sorted out by the accountant.
I have been having a difficult time with the financial records and for the 2 BAS period Jul-Sep 2019 and Oct-Dec 2019, I had a graduate accountant help me collect the information and connect with the accountant. I gave him access to the company documents and he did the rest with the accountant.
I am explaining this to the Member as the Member felt that I was changing the financial information. The truth is that I am not good at the financial figures and 2018-2019 was the first year I manage this for the business.
Kamala Adhikari and Abisekh Ghimire have been working all the time and are fully compliant with Company's policies and practices. Whilst Kamala has not taken any unpaid leave during her 4 years employment with the restaurant, Abisekh has been granted additional annual leave of 4 weeks in the last 12 months as he has exhausted all paid leave entitlements during this period. This unpaid leave was considered necessary for him to recover from lower back pain he is managing for the last 4 years, which gets aggravated sometimes. Ershad Syed has taken 8 weeks of unpaid leave in total in the last 12 months due to variety of personal reasons considered reasonable by the Director of the Company. When the Company relocate the Ulladualla restaurant, it was also a convenient time for Ershad to take some time off to attend to his personal matters. I have no clear information whether he remained in Australia or travelled overseas during this time.
Vijay Dasari and Naresh Jaju have taken a lot of leaves as substantiated by the Statement of Leave provided to you earlier. Vijay Dasari has taken 24 weeks of unpaid leave in the period of 2018/19 and 18 weeks in the period of July to December 2019 of which about eight weeks is considered reasonable and justified. He gave reasons for his need to take time off. There was a significant period when his son was hospitalised and he had to take time off to take care of his son in hospital and during the recovery. The Company considered and approved his request to grant unpaid leave on compassionate grounds. The Directors did remind him to return to work as soon as possible but he had not been regularly back to work, giving us the family reasons.
Naresh Jaju was absent from work for 24 weeks during FY 2018/2019 and 18 weeks between July to December 2019 but was not contactable most of the times during his period of absence from the restaurant. This is why I believed he was overseas during his leave but I cannot be absolutely sure as he did not tell me where he has been when he was away from work. His unpaid leave was approved during the July to September 2018 period when the Company was in the process of relocating the Ulladulla restaurant. He claimed he had family problems at home and we understand that he has been travelling overseas regularly because in his conversations he mentioned about his travel back home. Sometimes he will take leave and travel on short notice.
For both Naresh and Vijay, while the Directors were not pleased with their period of long absence, it has been a complicated question whether the Company should terminate them or not. The Directors had many arguments about this and it was one of several issue that caused bad relationship among the Directors. The Directors have not been able to agree on what action to take. They have been a good employees in the past and it was family reasons that caused their absence from work. We have to consider employment/workplace laws - whether it was reasonable to terminate them in the circumstances as we do not want to break the law in any way and cause more problems for everyone.
It is true that Naresh and Vijay long leave has put additional pressure not only on the Directors but also hardworking and fully compliant Managers Kamala Adhikari and Ershad Syed. Most of the time when they are away, I have to be the substitute manager as well as the other 2 Directors. One of the Directors, Narayan, is a chef and he was working full time in the kitchen as well as try to fill in the manager position. The other Director also filled in the manager position when required.
As the business so as the turnover continues to grow without Vijay and Naresh working full time, The Company considers the need to reassess their relevance and value add to profitably operate and grow the business.
REASONS AND FINDINGS
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 r.5.19(3), which is extracted in the attachment to this decision. For the nomination to be approved, all the requirements must be met.
At the Tribunal hearing held on 21 May 2020 the Tribunal brought to the applicant’s attention a note on the Department file BCC2019/457507 [relevant to applicant’s file 1927320] that stated that the applicant’s business advertises vacant positions for immigration purposes and then accepts money for sponsorship. The applicant said that he was unaware of this. The Tribunal advised that it did not rely on the information as there were no details and no information regarding the source of this information. The Tribunal places no weight on this note.
The Department refused the visa finding the applicant did not meet r.5.19(3)(g). On 17/08/2018, under Section 140M of the Act, Sixth Sense Food Pty Ltd was barred by the department from sponsoring more people under the terms of the approved Standard Business Sponsorship. The bar commenced on 17/08/2018 and remains in force until 17/08/2020. As the Department delegate recognised that the applicant responded positively to the monitoring activity and has since amended its protocols in order to meet its employer obligations, the Tribunal is satisfied that it is reasonable to disregard this information.
The Tribunal discussed with the applicant its financial position, in assessing whether the applicant would be able to meet all the requirements of r.5.19(3) of the Regulations.
At the time of this nomination application, the nominee at the time of application, it was claimed, had held a Subclass 457 visa for over two years and it was claimed that the applicant had been employed in the occupation of Café or Restaurant Manager for this period on a full-time basis. It was claimed that the then nominee had been working in the nominated position for more than 2 years as the holder of a Subclass 457 visa.
The applicant has 2 restaurants. One restaurant has been consistently located in Wollongong and the 2^nd restaurant firstly opened in Ulladulla, moved to Annandale and most recently moved to Kangaroo Valley.
The financial statements of the applicant show that as at 30 June 2018 the company, whose turnover was $1 155 433 earned a net profit of $5 771. The Tribunal is unable to place any weight on pay slips submitted to the Department as these provide insufficient information and relate to a limited period of business operations.
The applicant provided rosters for his Wollongong and Kangaroo Valley restaurants to the Tribunal and also provided rosters to the Department. These rosters provided no meaningful information to assess the financial position of the applicant and the Tribunal places little weight on them, other than to note that there are other staff beside the 457 visa holders employed in the 2 restaurants.
The gross wages for the business were $482 675 in 2017, $529 535 in 2018 and $ 335 625 in 2019.
The applicant has provided a summary for wages for the 2019-2020 tax year in a submission dated 20 May 2020. For the period July to December 2019 the business paid $171 885 gross wages for all staff. Discussing these wages, it was put to the applicant that he was required to pay 457 visa holders $145 000 in that period, this meant that all the other employees were paid $26 000 gross and therefore on average they all had received $1185 per week ie. $98.75 each per week on average and therefore on average each staff member only worked 3 hours per week. The applicant also then explained that he pays a cook $900 per week or $29 952 gross for the July to December 2019 period. It was put that when added to $145 000 for the 5 x 457 visa holders, being a total of $174 952, this meant he did not have any wait staff/kitchen hands employed for 6 months. The applicant said that the figures were incorrect and sought additional time to check them.
The applicant, on 2 July 2020, provided further financial documents for 2019-2020 tax year. The documents indicated that in the Wollongong restaurant Vijay Dasari, a manager, was on leave 5/13 weeks in 1^st quarter, and 5/13 weeks 2^nd quarter and 10/13 weeks in 3^rd quarter and 3/13 weeks in 4^th quarter, claimed to be for ill health. No staff were claimed to be working in that role. The applicant’s explanation as to who worked in those roles was that he worked in Wollongong in 2019-20 and Nanda, another Director and 457 visa holder, worked in Wollongong in 2018-19.
In regard to the cook’s position for 2019-20, in the 1^st quarter one cook did not work 4/13 weeks, one did not work 6/13 weeks, and another did not work 4/13 weeks. In 2^nd quarter and 3^rd quarter there were only 2 cooks. The applicant said that Nanda (Director) was a chef and worked there as a replacement and Manish was there until January, when he changed his visa from 457 to another visa.
In the Annandale restaurant, managers Naresh Jaju and Ershad Syed both took 7/13 weeks leave in 1^st quarter 2019-2020, Naresh Jaju took 5/13 weeks leave in 2^nd quarter and Syed 1/13 weeks leave in 2^nd quarter. The applicant claimed he was also covering these absences himself.
The applicant claims that in 2019-20 he backfilled the management positions in Wollongong during staff absences and Nanda backfilled the cooks’ absences. The applicant also backfilled the absences in Annandale.
The applicant’s BAS showed he paid $171 885 for staff wages for July to December 2019. Initially the applicant explained that his staff, who were on unpaid leave, did not have sufficient holiday leave, and they went overseas. It was put to the applicant pursuant to s.359AA that Department movement records showed Abishek Ghimire who was claimed to have taken unpaid leave for 4 weeks in 2019-20 was in Australia. Naresh Jaju claimed to have taken 7 weeks unpaid leave in 1^st quarter 2019-20, 5 weeks in 2^nd quarter was outside Australia only in 1^st and 2^nd quarter but in the 3^rd and 4^th quarter when claimed he was on unpaid leave for 7 weeks was living in Australia. Ershad Syed claimed to have taken unpaid leave for 7 weeks in 1^st quarter of 2019-20 and 1 week in 2^nd quarter of 19-20 but did not leave Australia. Manish Bhusal claimed to have taken unpaid leave for 6 weeks in 1^st quarter 2019-20 was in Australia and in 2^nd quarter it was claimed that he worked full time but Manish was overseas. Nanda Chapagan it was claimed took 4 weeks unpaid leave in 1^st quarter 2019-20 but movement records show that he did not travel.
When put to the applicant that his staff, other than one, were not overseas he responded that other than Nanda, the rest of the staff were in Australia when they took unpaid leave for family reasons or had been given warnings. The Tribunal accepts that Manish Bhusal was overseas for the 2^nd quarter, of 2019-20 ie. October to December 2019. The Tribunal does not accept the applicant’s explanation for the inconsistency regarding his 457 employees being overseas when they were in Australia. The Tribunal is of the view that it is a late invention made to overcome his inconsistent evidence. The Tribunal does not accept that the applicant’s 457 visa holders, other than Manish Bhusal for the 2^nd quarter ie October to December, were on unpaid leave in July- December 2019.
The applicant also explained that other staff were casual, he only calls wait staff when there are bookings, they are not working all the time, the manager works the rosters and his staff come when they are needed. The Tribunal does not accept as plausible that the restaurant would employ a manager on a full-time basis but not have paid wait-staff, kitchen hands and cooks to prepare and serve the meals or to only pay them all the equivalent of Manish Bhusal’s salary as the applicant claims to employ 10-12 employees in each location ie 17 staff across both restaurants, without including the 5 x 457 visa holders and one cook.
The Tribunal put to the applicant that it has not provided supporting documentation confirming the salaries being paid to the other staff, such as payroll summaries and ATO lodged PAYG payment summaries. The Tribunal places great weight on this lack of information. The Tribunal places no weight on a letter from an accountant to the Department confirming the business is viable and capable of paying the wages and benefits to employees and the nominee, in light of the applicant’s inability to provide to the Tribunal evidence showing wait-staff, kitchen hands and cooks.
The Tribunal has considered the additional explanation provided by the applicant after the Tribunal hearing regarding staff unpaid leave, when it was taken and why it was taken and his difficulty with accounting, in order to explain the financial records. The applicant was provided with enough opportunities at the hearings to provide evidence regarding staff salaries and unpaid leave and also about his lack of accounting skills and understanding. He did not do so. The Tribunal is of the view that his explanation is a late invention made to overcome the financial information discussed at hearing that suggested he had not paid any wait-staff or kitchen hands in the relevant period. Further he explains that he has missed out on some information regarding his income figure from the daily takings record from the restaurants, but the Tribunal did not discuss his income, rather the Tribunal focussed on salary payments made to staff.

The applicant claims that the former nominee’s salary has been paid, to date. Payment of all staff in the applicant’s business affects the overall assessment of the applicant’s ability to pay the intended nominee for the required 2 year period. The Tribunal notes that the applicant, in its submission dated 20 May 2020, opined that COVID 19 has affected its income due to requirements to provide takeaway services only. The Tribunal is mindful of COVID19 restrictions and has not taken into account, in its assessment of the applicant’s finances, and the wages paid or income received by the applicant post 1 January 2020.
The Tribunal is not satisfied that the applicant has provided reliable information regarding unpaid leave claimed to have been taken by the applicant’s 457 employees Abishek Ghimire, Naresh Jaju, Ershad Syed, Manish Bhusal and Nanda Chapagain in the period July to December 2019. Further the Tribunal is not satisfied that the applicant has provided reliable information to assess how many staff worked or were paid by the applicant at his restaurants in the period July to December 2019, particularly wait staff and kitchen hands.
The Tribunal therefore is not satisfied the applicant provided reliable information regarding working hours and salary payments by the applicant business. The Tribunal is satisfied that the applicant business’ records are unreliable. The Tribunal is not satisfied the applicant’s Director is a witness of truth as the applicant initially told the Tribunal that his 457 visa holders were overseas on unpaid leave, he confirmed this information when they were in fact in Australia on unpaid leave. The Tribunal is of the view that the explanation of some of his managers, all 457 visa holders, being on unpaid leave has been created in order to explain the lack of payment to other staff such as kitchen hands and wait staff.
Therefore, the Tribunal is not satisfied that the financial information provided is reliable and reflects the financial situation of the applicant.
In assessing whether a nominee will be employed on a full-time basis in the position of 'Café or Restaurant Manager ANZSCO 141111 for 2 years, the Tribunal has also considered the relevant ANZSCO description. The Tribunal is mindful that ANZSCO is not prescriptive. ANZSCO describes Café or Restaurant Manager as follows:
Cafe or Restaurant Manager - ANZSCO 141111
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
The Tribunal has considered the ANZSCO definition of Café or Restaurant Manager, detailed above. It was put to the applicant that if there are hardly any other staff being paid, then this suggests that those employed as managers are working in other roles rather than undertaking management functions. He said they are only doing the managerial role and they work at separate times and there is a gap. The Tribunal does not accept this explanation as it is of the view that this is an invention to overcome the lack of wages paid to other staff especially as the applicant has claimed that he employed 12 staff just prior to COVID19 shutdown and some 17 staff previously. Whilst the Tribunal accepts that managers in their employment may undertake some level of other duties outside of what is listed in ANSZCO, due to the lack of evidence of salaries paid for kitchenhand and waitstaff, the Tribunal is not satisfied that any 457 visa holder manager or former nominee manager worked as a manager and in particular supervising staff as they were themselves working in other roles.
Therefore, in light of the Tribunal’s finding that the managers working for the applicant worked in other roles and the applicant has not provided reliable financial information regarding staffing and salary payments, the Tribunal is not satisfied a nominee nominated by the applicant will be employed on a full-time basis in the position of 'Café or Restaurant Manager ANZSCO 141111’ for at least 2 years, as required.
The Tribunal finds the applicant does not meet r.5.19(3)(d)(i) of the Regulations.
Accordingly, the nomination of the position cannot be approved.
Therefore, the Tribunal must affirm the decision under review.
DECISION
The Tribunal affirms the decision under review to refuse the nomination.
Lilly Mojsin
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
(iv)    identifies a need for the nominator to employ the person, as a paid employee, to work in the position under the nominator’s direct control; 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; and
(i)there is a genuine need for the nominator to employ the person, as a paid employee, to work in the position under the nominator’s direct control.

[2020] AATA 3971

7 August 2020

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