Smaash Enterprises Pty Ltd Atf Shri Radhe Krishna Discretionary Trust (Migration)

Smaash Enterprises Pty Ltd Atf Shri Radhe Krishna Discretionary Trust (Migration) [2019] AATA 6281 (11 October 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Smaash Enterprises Pty Ltd Atf Shri Radhe Krishna Discretionary Trust
CASE NUMBER:  1903178
DIBP REFERENCE(S):  BCC2017/915416
MEMBER:De-Anne Kelly
DATE:11 October 2019
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision under review to refuse the nomination.

Statement made on 11 October 2019 at 2:15pm
CATCHWORDS
MIGRATION – application for approval of nomination of position – Direct Entry Nomination stream – financial viability to employ applicant for two years – employer’s other business interests – proposed expansion of business – genuine need for employee in position – tasks, job description and hours of operation – genuine need for one employee, but not two – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), s 359A, 366B(1)(b)
Migration Regulations 1994 (Cth), r 5.19(4)(a), (d)(i), (h)(ii)(B)
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 1 February 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 applied for approval on 8 March 2017. The requirements for the approval of the nomination of a position in Australia are found in r.5.19 of the Regulations, as it was then, which contains two alternative streams: a Temporary Residence Transition nomination stream (r.5.19(3)) and a Direct Entry nomination stream (r.5.19(4)). If the application is made in accordance with r.5.19(2) and meets the requirements of either stream, then the application must be approved. If any of the requirements are not met then the application must be refused: r.5.19(5).
In this case, the applicant has applied for approval of a nomination, seeking to satisfy the criteria in the Direct Entry nomination stream.
The delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19.(4)(h) of the Regulations because the nominator failed to demonstrate that there is a genuine need for the nominator to employ a paid employee to work in the position under the nominators direct control.
The directors of Smaash Enterprises Pty Ltd Atf Shri Radhe Krishna Discretionary Trust appeared before the Tribunal on 26 August 2019 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Deepak Kamboj nominated as a Restaurant Manager and from Mr Ashwani Kapoor nominated as another Restaurant Manager in a separate application.
The applicant was represented in relation to the review by its registered migration agent. The representative attended the Tribunal hearing.
For the following reasons, the Tribunal has decided to affirm the decision under review to refuse the nomination.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant meets the requirements for approval of the nomination under the Direct Entry nomination stream set out in r.5.19(4), which is extracted in the attachment to this decision. For the nomination to be approved, all the requirements must be met.
The applicant, Smaash Enterprises Pty Ltd Atf Shri Radhe Krishna Discretionary Trust, owns and operates two businesses under the same ABN: 86909759872. These businesses are a 7 Eleven franchise in Logan, south of Brisbane, that Smaash Enterprises Pty Ltd commenced operating on 15 May 2015 and the Nisa Thai restaurant at 5/205 Weyba Road, Noosaville Qld 4566 that commenced operation on 17 June 2016 under Smaash Enterprises Pty Ltd. The Directors of Smaash Enterprises Pty Ltd are husband and wife, Mr Ashish Kapoor and Mrs Saloni Kapoor who live at the Gold Coast some four hours round trip from Noosaville. The restaurant was purchased as a going concern from a couple in Noosaville who have subsequently opened an identical restaurant next door to the Nisa Thai serving the same dishes and competing directly with Nisa Thai. The directors also have a third business, SRK Capital with an office in Brisbane.
The business plan for the applicant describes Mr Ashish Kapoor as follows:
Mr Ashish Kapoor is a highly successful and accomplished businessperson, operating profitable businesses in hospitality, retail and financial services. His passion for the Noosa region and offering an exceptional local dining experience led him to purchase Nisa Thai in 2016. Under his management, the restaurant has achieved outstanding growth and contributed to the profitability of the Shri Radhe Krishna Discretionary Trust. The restaurant regularly receives 5-star reviews on both Facebook and Google and has an extremely loyal staff and clientele.
The trust also owns a profitable 7 Eleven franchise since May 2015 under Mr Kapoor’s management, as well as a financial services firm, SRK Capital, which commenced operations in April 2019. Mr Kapoor completed a Certificate IV in Finance and Mortgage Broking in April 2019 and was admitted as a Member of the Mortgage and Finance Association of Australia soon after. He currently works as a Mortgage Broker for Aussie Home Loans, as well as managing the three businesses he owns within the Shri Radhe Krishna Discretionary Trust.
The applicant has nominated two positions as Restaurant Manager on salaries of $55,000 and with the ANZSCO position Café or Restaurant Manager ANZSCO 141111. Mr Ashwani Kapoor was one Manager whose nomination application was lodged on 18 January 2017 and refused on 1 February 2019, and a separate application for Mr Deepak Kamboj lodged on 8 March 2017 and refused on 1 February 2019. One nominee, Mr Ashwani Kapoor, is the brother of Mr Ashish Kapoor although the Tribunal gives this no weight in its deliberations.
The applicant has nominated a Cook in a separate application although this is given no weight in this decision.
To remove doubt the employer nomination TRN number from the Department of Home Affairs for Mr Deepak Kamboj, the subject of this nomination review application, is EGOE2Y9XMR.
The applicant’s migration agent submitted documents on 19, 20, 22 and 26 August and 23 and 24 September 2019.
The directors were invited on 27 August 2019 to respond or comment on information by 10 September 2019 that may cause the Tribunal to find that the nominee does not meet r.5.19(4)(d)(i). They requested an extension of time to respond and it was granted to 23 September 2019.
The application is compliant: r.5.19(4)(a)
Regulation 5.19(4)(a) requires that the application for approval must be in the approved form, must be accompanied by the prescribed fee, and, where applicable, must include the required written certification relating to conduct that contravenes s.245AR(1). The application must also identify a need for the nominator to employ a paid employee to work in the position under their direct control.
The Tribunal needs to consider if the applicant, Smaash Enterprises Pty Ltd trading as Nisa Thai restaurant, has the financial viability to provide the nominee Mr Deepak Kamboj with employment as a Restaurant Manager for at least two years full time.
Mr and Mrs Kapoor made statements in the hearing as follows ‘if we don’t have two managers, we cannot survive’; ‘if manforce is a problem there (the Nisa Thai), we cannot survive there’; ‘as it’s a good investment , I don’t want to close it but…’; and ‘if we are short of manpower, what are the chances’.
Mr and Mrs Kapoor were emphatic during the hearing that they must have two Restaurant Managers in the Nisa Thai and it is necessary for both positions to be approved by the Tribunal.
Profitability of the restaurant
The Tribunal has a significant concern over the future of the Nisa Thai as the business is geographically distant from the directors’ home base, they have a young family, it is under competitive pressure from the Thai restaurant next door owned by the previous vendors of Nisa Thai and the directors have two other businesses. The most significant concern is the directors’ statements that unless both Restaurant Manager positions are approved the restaurant cannot survive.
The Tribunal did put these concerns regarding the profitability of the Nisa Thai to Mr and Mrs Kapoor in the hearing and they said they may choose the more profitable business Nisa Thai and sell the 7 Eleven. It is difficult to gauge the profitability of the Nisa Thai as these figures are combined with those of 7 Eleven into one financial report under the one ABN number as Smaash Enterprises Pty Ltd Atf Shri Radhe Krishna Discretionary Trust.
The Tribunal needs to consider the claim that the Nisa Thai is the more profitable business. The directors submitted Tax Returns for Smaash Enterprises Pty Ltd Atf Shri Radhe Krishna Discretionary Trust for 2017 and 2018 as follows:

Tax Return

2016 2017 2018

Income 1,997,311 2,449,098

Wages 294,582 369,058

Other exp. 1,638,890 2,000,001

Profit before tax 63,839 80,039

These figures combine the income, expenses and profit before tax for both the 7 Eleven and the Nisa Thai restaurant.

In examining the Notes to the Financial Statements for the year ended 30 June 2019 and prepared by accountants Thiel Partners Pty Ltd of Southport, Queensland for the Shri Radhe Krishna Discretionary Trust it is noted that the intangibles list the goodwill for the 7 Eleven as $438,300 while goodwill for the Nisa Thai is listed as $63,966. Furthermore, at the hearing the directors confirmed that the total unsecured loan of $612,816 was to fund the purchase and operation of the 7 Eleven. This loan comprises $255,166 from Bankwest and $198,056 each from both Mr Ashish Kapoor and Mrs Saloni Kapoor.
The Tribunal does not accept that the 7 Eleven is performing poorly compared to the Nisa Thai when the goodwill for the former is 685% higher than for the latter. The applicant has been servicing loans of $612,816 for the 7 Eleven for over four and half years. If the 7 Eleven was performing poorly the applicant would have sought to sell it and has not done so. The Tribunal does not consider that the 7 Eleven is a poorly performing business but in fact is a profitable business that the applicant has retained for four and half years, for which they continue to service a large loan, and it has goodwill worth $438,300. The Tribunal remains concerned about the financial viability of the Nisa Thai and has had no evidence provided that would demonstrate that the Nisa Thai is a profitable business.
Statements by the applicant
On 27 August 2019, and again on 10 September 2019 in response to an extension request, the Tribunal wrote to the applicant and invited the applicant under s.359A to comment or provide information as follows:
·At the hearing on 26 August 2019, you stated, “with one manager, we cannot survive”.
·At another hearing, on 27 August 2019, relating to a nomination by you in relation to another position, that “if man force is a problem there, we cannot survive there”.
This information is relevant to the review because the Tribunal, in assessing your application, is required to determine whether you satisfy r.5.19(4)(h)(ii)(B), namely that there is a genuine need for the nominating business to employ a paid employee to work in the position under the nominator’s direct control.
Further, the Tribunal is required to determine whether you satisfy r.5.19(4)(d)(i), namely that you will employ the nominee, Deepak Kamboj, on a full-time basis in the position for at least two (2) years.
If we rely on this information in making our decision, we may find that there is no genuine need for a paid employee, but rather, specific persons, and may find that you do not meet r.5.19(4)(h)(ii)(B).
Applicant’s case for two Restaurant Managers
The applicant replied through its registered migration agent by email and provided a business plan as evidence of the need for two Restaurant Managers. The directors submit that the restaurant has reached operational capacity in the current location and they are seeking to lease the premises directly adjacent to the restaurant and increase operations.
The applicant’s migration agent attached an email to the business plan as follows:
The above attached documents have been provided to evidence the need for the 2 managers as well the need for the position of a cook. The restaurant has been trading profitably and successfully due to the unified approach by the two managers who can handle the hiring, inventory control, training, establishing employee conduct, dealing with customer complaints, assigning responsibilities for service, restaurant safety and cleaning and maintenance.
Maintaining the right managers in the business and the proposed expansion will inevitably increase the profits and create more employment. High staff turnover is a common challenge in the restaurant industry. While some staff turnover is inevitable, it is not a good sign when regular customers walk in to unfamiliar faces or a regular basis. Furthermore the competitiveness of the industry and specifically the location of the restaurant requires the managers to be proactive and stay ahead of their competitors. Basically the managers will undertake their tasks on rotation basis and focus and work in the future, not in the current moment and managing decisions such as:
·Staffing needs
·Menu changes and updates
·Spotting competitors trends
Having to manage a restaurant is more complex than it appears. The front of house is a place of business and a social stage setting for customers. Good management provides maximum efficiency to workers and ease of movement to its clients. A restaurant with excellent management provides a social place where people not only enjoy their meals but enjoy one another’s company, good service and a pleasing atmosphere.
Management of a restaurant is exercised by the senior manager on duty. The importance of having a manager present at all times rather than a supervisor cannot be overstated. It is important from the view of employees, and it also provides greater confidence to the customers knowing that there is a senior manager present rather than a supervisor.
Most managers should be expected to devote the majority of their time to the front of the house during meal hours to ensure that guests are served well (although adequate attention must also be paid to the back of the house). Doing this enables the manager on duty to greet and speak with guests. In this sense, the manager on duty is expected to be a public figure whose recognition is important to the guests.
Opening and closing a restaurant involves specialized work and the owners believe that it is imperative to have 2 managers operating their business efficiently and profitably.
We conclusively state that the Directors of the business have no intention of selling, closing the restaurant however do believe that the business and expansion plans necessitate the requirement of the 2 managers who have both contributed to the success and profitability margins of the restaurant. The cook in the business will inevitably be an added asset with his new skills and the ability to introduce new items to the menu.
Email from the applicant’s migration agent
The Tribunal has considered the email from the applicant’s representative. It is notable that the applicant’s migration agent states ‘the restaurant has been trading profitably and successfully due to the unified approach by the two managers’. The Tribunal has found below that the tasks undertaken by the nominated position do not warrant two Restaurant Managers. There is still no evidence that the restaurant has been trading profitably other than the statements given by, Mr and Mrs Kapoor, and the migration agent. The applicant’s migration agent states the proposed expansion will increase profits but the expansion is aspirational, to be undertaken at some future time, and no action has been evidenced in support of this proposed expansion.
The claim that having a manager present at all times, rather than a supervisor, is required from the view of employees and inspires confidence in customers is not consistent with the job description that does not mention these as desirable outcomes for the nominated position or tasks. The other statements in support of having two managers are not supported by the job description. The Tribunal notes the email states that the ‘directors of the business have no intention of selling, closing the restaurant’. The migration agent made this statement in the hearing and the Tribunal is unable to accept her statement as evidence because it would breach s.366B(1)(b) of the Migration Act. In the hearing the directors did not agree with the comment of the migration agent but made the statement ‘if we don’t have two managers, we cannot survive’.
The Tribunal considers the submission by the migration agent post the hearing that the directors do not intend closing the restaurant but finds there is no evidence that the restaurant is a profitable business and it is inconsistent with the statements made by the directors that without two managers, we cannot survive.
Business plan and expansion
The Tribunal has considered the business plan and the expansion it proposes. This would add 93 square metres to the restaurant size and would cost an estimated $50,000, funded by the directors. The lease on the new area is $53,000 plus GST and outgoings. The directors state that they will need two managers working full time in shifts spanning 14 -15 hours of daily operation. The directors did not submit evidence of any active steps taken to commence the expansion process and the Tribunal considers the expansion aspirational at some as yet undetermined future time.
The directors forecast revenue growth and profit for the Nisa Thai as follows for the three years following the expansion:
3.4 Projections: Profit and Loss following expansion.
A summary of Profit & Loss projections are shown below,

Year 1 Year 2 Year 3

Total revenue 842,500 966,000 1,108,800

Total cost of sales 252,740 278,800 332,640

Gross profit 589,750 676,200 776,160

Total overheads 569,591 606,235 647,085

Operating Profit/Loss 20,159 69,965 129,075

These projections show that after spending some $50,000 on an expansion, the restaurant would not recover the cost of that expansion until the middle of the second year of trading. It is also sobering that with revenue or income of $842,500, the restaurant is only making $20,000 in profit before tax. The trading accounts show the 2019 financial year turnover is $536,793. If a turnover of $842,500 generates a before tax profit of $20,000, even making allowance for the additional cost of $53,000 for the new lease for the expanded area, it raises concerns over the profitability at a turnover of $536,793.
The Tribunal does not accept an aspirational business plan for expansion as evidence that the business has a viable financial future.
The Tribunal finds that there is not a genuine need for two nominated positions of Restaurant Manager as per the reasoning below dealing with r.5.19(4)(h). This brings into question the financial viability of the restaurant as the directors have never satisfactorily responded to the Tribunal’s concern over their statements that ‘with one manager, we cannot survive’ and, ‘if man force is a problem there, we cannot survive there’.
When asked at the hearing they did not withdraw the comments but replied that the less profitable business, 7 Eleven could be sold to support the Nisa Thai. However, as found above, that statement is not consistent with the applicant’s financial reports. The applicant’s migration agent at the hearing said words to the effect: ‘take the statement about closing the business off the table’. The Tribunal cannot accept the applicant’s migration agent giving evidence on their behalf. However, the directors in their response did repeat the statement ‘without manpower…we cannot survive’. When asked about these statements in the s.359A invitation the directors did not withdraw the comments but responded with an aspirational business plan for expansion of the Nisa Thai, without any evidence of intention to proceed, and projections of profit following an expansion very low compared to the revenue projections.

The Tribunal does not believe that the directors made these comments lightly and must reasonably give them weight in the decision. There has been no evidence provided by the applicant to demonstrate that the Nisa Thai is a profitable and viable business on its own without the combined income from 7 Eleven. The Tribunal finds from the directors’ own statements that the business Nisa Thai will not survive without two approved nominated positions as Restaurant Manager. It follows that were the Tribunal to approve the one position of Restaurant Manager, the business would not survive and be able to provide the employee, Mr Deepak Kamboj, with employment on a full-time basis in the one position of Restaurant Manager for at least two years.
Accordingly, the requirement in r.5.19(4)(a) is not met.
Tasks of the position, genuine need for the position and training requirements r.5.19(4)(h)
Regulation 5.19(4)(h) contains a number of alternative requirements. These are set out in detail in the attachment to the decision but can be briefly summarised as requiring either that:
·the tasks to be performed in the position will be performed in Australia and correspond to those of an occupation specified by the, the occupation is applicable to the proposed employee in accordance with any specifications made in that instrument, and specified training requirements are met; or
·the position and nominator’s business is located in regional Australia, there is a genuine need for the paid position under the nominator’s direct control which cannot be filled by a locally resident Australian citizen or permanent resident, the tasks of the position correspond to those of an occupation specified in the relevant legislative instrument, the occupation is applicable to the proposed employee in accordance with the specification of the occupation and that a regional certifying body has advised the Minister about certain matters relating to the position.
The applicant can meet either r.5.19(4)(h)(i) or (ii) and has chosen to meet r.5.19(4)(h)(ii) which includes:
(B)there is a genuine need for the nominator to employ a paid employee to work in the position under the nominator’s direct control;…
The Tribunal needs to consider if there is a genuine need to employ a paid employee to work in the position of Restaurant Manager in the Nisa Thai under the nominator’s control.
Mrs Saloni Kapoor explained that previously she had been involved in the restaurant at the time of the nomination application but now had two children, a ten and two year old, and found it difficult with parenting responsibilities. Mr Ashish Kapoor is fully engaged with SRK Capital and his role as a mortgage broker. The restaurant is also a four-hour round trip from their home and base at the Gold Coast and it was not feasible for either she or her husband to be involved in the Nisa Thai on a daily basis.
Mr Deepak Kamboj had commenced work as a Restaurant Manager on 17 October 2016 and Mr Ashwani Kapoor on 12 December 2016. Mrs Kapoor speaks highly of both men as follows:
In that time, they have helped to grow the business substantially, as is evidenced by the
significant increase in revenue between 2017 and 2018. They have brought together a highly skilled team of front-of-house staff, chefs and kitchen hands, as well as successfully managing several events for clients.
They have worked to optimise processes and ensure workflow is efficient and designed for maximum customer satisfaction. Moreover, under their management, the restaurant has traded profitably for the three years under its current ownership.
It is evident that Mr Ashish Kapoor and Mrs Saloni Kapoor hold both men in high regard and emphasised during the hearing that they need both men to run the restaurant. They did say they needed two managers to satisfy the liquor licence requirement that there is a manager on the premises at all times. However, that proved not to be the case as the requirement is that there is a responsible manager who can be contacted and is located within a prescribed distance from the licenced premises.
The directors state that the men are trustworthy and can use the business credit card to purchase consumables. They could not rely on the wait staff to use their credit card. The Tribunal considers that the directors want to keep employing these two individuals but that is a very different proposition to needing to employ paid persons to fill the nominated positions of Restaurant Managers. The Tribunal asked why they could not employ one Restaurant Manager and perhaps a restaurant supervisor but they stressed that only two Restaurant Managers would suffice.
Revenue growth
If the restaurant was rapidly increasing in revenue, this may demonstrate a genuine need for one Restaurant Manager position. The trading account shows the split between income for the 7 Eleven and the Nisa Thai restaurant and also the growth year on year for the restaurant as a percentage of the previous year’s trading:

Trading acct 2016 2017 2018 2019

Sales 7 Eleven 1,474,854 1,569,408 1,893,899 1,923,863

Restaurant 10,609 361,327 483,876 536,793

Restaurant growth % 3,306 34 11

Starting from a low base in 2016 the restaurant experienced rapid growth in 2017 and 2018, but that has slowed in 2019 with growth of only 11% over the previous year. The Tribunal does not consider that the restaurant is undergoing a significant increase in revenue to warrant two Restaurant Manager positions.
The directors submitted a business plan for expansion as discussed above, but the Tribunal does not accept an aspirational business plan for expansion as justification for two nominated positions as Restaurant Managers.
Tasks and job description
The Tribunal needs to examine the tasks of the two Restaurant Manager positions to determine if there is a genuine need for one or both of the nominated positions.
The job description for the Restaurant Manager position was provided by the applicant and is as follows:
Managers job description
·introducing and promoting new dishes on the menu in consultation with chefs.
·selecting weekly specials in consultation with the chefs
·meeting with customers to arrange set menus for functions and parties.
·coordinating between kitchen staff and front staff
·purchasing goods at good pricing, checking with various suppliers before placing orders as a part of budget and liasing it to food cost. Maintaining records of stock levels
·checking on meal portions and presentation of meals
·regular inventory checks
·ensuring dining facilities comply with health regulations and are clean, functional and of suitable appearance.
·may take reservations or assist in taking orders
·check all equipments are in working condition and get repairs done where required.
·rostering of staff
·selecting, training and supervising waiting and kitchen staff
·handling any customer enquiries or complaints , whilst conferring with the satisfaction with meals and service
·knowing nearby market well
Above mentioned duties are undertaken by both the restaurant managers and switches between them at nisa thai restaurant for smooth running of the business and plays vital role in the progress of the business.
It is noted, that the job description in the business expansion plan submitted in September 2019 listed essentially the same tasks and responsibilities with the addition of business development as shown below:
· Undertaking business development activities, such as promoting Nisa Thai catering and event services to local businesses, tourism operators, accommodation providers and event co-ordinators.
The Tribunal needs to consider whether it is reasonable that two people share the same responsibilities. The restaurant is open seven days a week, from 10.30am to 2.30pm and 4.30pm to 9.30pm or a total of 63 hours per week.
It is useful to go to the definition ANZSCO gives for the position ‘CAFE AND RESTAURANT MANAGERS organise and control the operations of cafes, restaurants and related establishments to provide dining and catering services’ (emphasis added). The ANZSCO is more than just a checklist of tasks; it also defines the responsibilities of the role. In this case the Restaurant Manager must ‘organise and control’ the operation. The directors submit that because the hours of the restaurant exceed a 38 hour week two Restaurant Managers are needed to organise and control operation of the business over the 63 hours that the restaurant is open.
The Tribunal does not accept this argument as it is possible to ‘organise and control’ without being physically present at all times during the operation. There is only one captain of a ship and he/she has full responsibility for the operation of the ship but does not work 24 hours a day. Nor does the administrator of a hospital have to be present 24 hours a day to be responsible for the operation of the hospital. There are numerous other examples.
Looking at the tasks the directors have listed for the role, the following tasks would only be undertaken at most once or twice a week and would not need to be undertaken continuously during the opening hours of the restaurant:
·introducing and promoting new dishes on the menu in consultation with chefs.
·selecting weekly specials in consultation with the chefs
·meeting with customers to arrange set menus for functions and parties.
·purchasing goods at good pricing, checking with various suppliers before placing orders as a part of budget and liasing it to food cost. Maintaining records of stock levels
·check all equipments are in working condition and get repairs done where required.
·rostering of staff
·selecting, training and supervising waiting and kitchen staff
·handling any customer enquiries or complaints , whilst conferring with the satisfaction with meals and service
·knowing nearby market well.
·Undertaking business development activities, such as promoting Nisa Thai catering and event services to local businesses, tourism operators, accommodation providers and event co-ordinators.
One person working their set shift could undertake these tasks and this is the case in most small to medium sized restaurants, as the delegate for the Minister observed in reaching their decision on the nomination.
The only tasks that may be undertaken continuously during the operation of the restaurant would be the following:
·coordinating between kitchen staff and front staff
·may take reservations or assist in taking orders
It is noted, that reservations and orders ‘may’ be undertaken so it is not a requirement that the Restaurant Manager undertakes this task as wait staff could perform this task. This leaves ‘coordinating between kitchen staff and front staff’. This one task is not sufficient to warrant a second paid position of Restaurant Manager.
The Tribunal finds that all but one of the tasks described for the position of Restaurant Manager at Nisa Thai are not undertaken continuously during the opening hours of the restaurant and can be undertaken by one paid employee in the position of Restaurant Manager.
The Tribunal concludes there may be a genuine need for the nominator, Smaash Enterprises Pty Ltd, to employ a paid employee to work in one position as a Restaurant Manager under the nominator’s direct control but there is not a genuine need for two positions.
Nonetheless, the Tribunal is not making a finding on whether r.5.19(4)(h) is met or not met as there is a regulation discussed earlier more relevant to making a decision.
For the above reasons the Tribunal is not satisfied that the applicant meets the requirements of r.5.19(4). The applicant has not sought to satisfy the criteria in the Temporary Residence Transition nomination stream, and as such has not met the requirements in r.5.19(3). 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.
De-Anne Kelly
Member

ATTACHMENT - Extracts from the Migration Regulations 1994
5.19Approval of nominated positions (employer nomination)
…
(2)The application must:
(a)be made in accordance with approved form 1395…; and
(aa) include a written certification by the nominator stating whether or not the nominator has engaged in conduct, in relation to the nomination, that constitutes a contravention of subsection 245AR(1) of the Act; and
(b)be accompanied by the fee mentioned in regulation 5.37.
…
Direct Entry nomination
(4)The Minister must, in writing, approve a nomination if:
(a)the application for approval:
(i)     is made in accordance with subregulation (2); and
(ii)    identifies a need for the nominator to employ a paid employee to work in the position under the nominator’s direct control; and
(b)the nominator:
(i)     is actively and lawfully operating a business in Australia; and
(ii)    directly operates the business; and
(c)for a nominator whose business activities include activities relating to the hiring of labour to other unrelated businesses — the position is within the business activities of the nominator and not for hire to other unrelated businesses; and
(d)both of the following apply:
(i)     the employee will be employed on a full-time basis in the position for at least 2 years;
(ii)    the terms and conditions of the employee’s employment will not include an express exclusion of the possibility of extending the period of employment; and
(e)the terms and conditions of employment applicable to the position will be no less favourable than the terms and conditions that:
(i)     are provided; or
(ii)    would be provided;
to an Australian citizen or an Australian permanent resident for performing equivalent work in the same workplace at the same location; and
(f)either:
(i)     there is no adverse information known to Immigration about the nominator or a person associated with the nominator; or
(ii)    it is reasonable to disregard any adverse information known to Immigration about the nominator or a person associated with the nominator; and
(g)the nominator has a satisfactory record of compliance with the laws of the Commonwealth, and of each State or Territory in which the applicant operates a business and employs employees in the business, relating to workplace relations; and
(h)either:
(i)     both of the following apply:
(A)the tasks to be performed in the position will be performed in Australia and correspond to the tasks of an occupation specified by the Minister in an instrument in writing for this sub-subparagraph;
(AAA)the occupation is applicable to the person identified under subparagraph (a)(ii) in accordance with the specification of the occupation;
(B)either:
(I)the nominator’s business has operated for at least 12 months, and the nominator meets the requirements for the training of Australian citizens and Australian permanent residents that are specified by the Minister in an instrument in writing for this sub-sub-subparagraph; or
(II)the nominator’s business has operated for less than 12 months, and the nominator has an auditable plan for meeting the requirements specified in the instrument mentioned in sub-sub-subparagraph (I); or
(ii)    all of the following apply:
(A)the position is located in regional Australia;
(B)there is a genuine need for the nominator to employ a paid employee to work in the position under the nominator’s direct control;
(C)the position cannot be filled by an Australian citizen or an Australian permanent resident who is living in the same local area as that place;
(D)the tasks to be performed in the position correspond to the tasks of an occupation specified by the Minister in an instrument in writing for this sub-subparagraph;
(DA)the occupation is applicable to the person identified under subparagraph (a)(ii) in accordance with the specification of the occupation;
(E)the business operated by the nominator is located at that place;
(F)a body that is:
(I)specified by the Minister in an instrument in writing for this sub-subparagraph; and
(II)located in the same State or Territory as the location of the position;
has advised the Minister about the matters mentioned in paragraph (e) and sub-subparagraphs (B) and (C).

[2019] AATA 6281

11 October 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Standing

Statutory Construction

Tax Return
2016	2017	2018
Income	1,997,311	2,449,098
Wages	294,582	369,058
Other exp.	1,638,890	2,000,001
Profit before tax		63,839	80,039

Year 1	Year 2	Year 3
Total revenue	842,500	966,000	1,108,800
Total cost of sales	252,740	278,800	332,640
Gross profit	589,750	676,200	776,160
Total overheads	569,591	606,235	647,085
Operating Profit/Loss	20,159	69,965	129,075

Trading acct		2016	2017	2018	2019
Sales	7 Eleven	1,474,854	1,569,408	1,893,899	1,923,863
Restaurant	10,609	361,327	483,876	536,793
Restaurant growth %	3,306	34	11