Sneaky Baron PTY LTD (Migration)

Sneaky Baron PTY LTD (Migration) [2019] AATA 6333 (17 October 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Sneaky Baron PTY LTD
CASE NUMBER:  1710031
DIBP REFERENCE(S):  BCC2016/3944481
MEMBER:De-Anne Kelly
DATE:17 October 2019
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Statement made on 17 October 2019 at 10:01am

CATCHWORDS
MIGRATION – application for approval of nomination of position – Direct Entry Nomination stream – regional Australia – genuine need for position – owners unable to manger business themselves: one working elsewhere and the other not experienced in sector – position unable to be filled by suitable Australian citizen or permanent resident – increased revenue and profit under applicant’s management – tasks of position compared to ANZSCO classification – decision under review set aside
LEGISLATION
Migration Regulations 1994 (Cth), r 5.19(4)(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 21 April 2017 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 23 November 2016. The requirements for the approval of the nomination of a position in Australia are found in r.5.19 of the Regulations which contains two alternative streams: a Temporary Residence Transition nomination (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 case, the applicant has applied for approval of a nomination, seeking to satisfy the criteria in the Direct Entry Nomination stream.
The delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19(4)(h)(ii)(B) and therefore r.5.19(4)(h) of the Regulations because the application for approval did not identify a need for the nominator to employ a paid employee to work in the position under the nominators direct control.
The applicant appeared before the Tribunal on 22 August 2019 to give evidence and present arguments. The Tribunal also received oral evidence from the nominee Mr Andrew Cote.
For the following reasons, the Tribunal has decided to set aside the decision under review and substitute a decision approving the nomination.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant meets the requirements for approval of the nomination under the Direct Entry nomination stream 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 Sneaky Baron Pty Ltd owns and operates a restaurant and bar at shop 5, 2 Ocean Street, Maroochydore, Sunshine Coast. The owners are Lucy Davis and Damon Strachan. On 23 November 2016, the applicant lodged an employer nomination for the occupation of Hospitality, Retail and Service Managers ANZSCO 149999. The applicant employs a head chef, two chefs, cook, three bartenders, two baristas and a front of house. Mr Damon Strachan works in the business in a labouring position. The business opened in September 2016. At first, the owners had a slow start and employed an Australian local as a venue manager but this proved to be unsuccessful. They headhunted the appropriate venue manager. It was essential to find the right person as Ms Davis works full-time seven days a week as a Resort Manager and Mr Strachan who previously worked as a miner does not have the qualifications and experience to manage a venue.
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) of the Migration Act 1958 (the Act). The application must also identify a need for the nominator to employ a paid employee to work in the position under their direct control.
Applications must be in the approved form and must be accompanied by the prescribed fee to be valid and acknowledged by the Department of Home Affairs. An acknowledgement dated 23 November 2016 was sent by the Department to the nominator as evidence of a valid application. The Department accepted a declaration made on the online form that the nominator had responded yes in the online form to the following: ‘the applicant certifies that they have not engaged in conduct in relation to this nomination that constitutes a contravention of subsection 245AR (1) of the Migration Act 1958’.
The Tribunal is satisfied that the application was made on the approved form 1395 (Internet) for post 23 March 2013 applications, accompanied by the prescribed fee and the nominator has included a written certification stating the nominator has not engaged in conduct in relation to the nomination that contravenes s.245AR(1) of the Act.
Regulation 5.19(4)(a)(ii) requires the nominator to identify a need for the nominator to employ a paid employee to work in the position under the nominator’s control. The assessment of the need for a paid employee comprises two parts: establishing the need for an employee (i.e. there exists a vacancy for the nominated position) and ascertaining that the relationship between the nominator and nominee is that of employer and employee.
The nomination does not have to specify the nominee but needs to identify a nominee before, or at the time, the associated visa application is made. Mr Andrew Cote was identified in the nomination application lodged on the 23 November 2016.
Mr Andrew Cote has worked at the Sneaky Baron since 11 October 2016. This is evidenced by PAYG and payslips up to 30 June 2019.
Accordingly r.5.19(4)(a) is met.
Nominator is actively and lawfully operating a business in Australia: r.5.19(4)(b)
Regulation 5.19(4)(b) requires that applicant is actively, lawfully and directly operating a business in Australia.
An ASIC company statement dated 16 July 2019 shows Sneaky Baron Pty Ltd is registered and bank statements to 30 June 2019 indicate the company is actively and directly operating the business.
Accordingly, the requirement in r.5.19(4)(b) is met.
Position is not labour-hire: r.5.19(4)(c)
Regulation 5.19(4)(c) applies to nominators whose business activities include those relating to labour hire to an unrelated business. In these cases, the nominated position must be within the business activities of the nominator. The employment contract shows the nominator is not engaged in labour hire and the applicant confirmed this at the hearing.
Accordingly, the requirement in r.5.19(4)(c) is met.
Term of employment of the visa holder: r.5.19(4)(d)
Regulation 5.19(4)(d) requires the nominee to be employed in the nominated position for at least two years full-time, and the terms and conditions of that employment do not expressly exclude the possibility of an extension.
The Tribunal needs to consider if the business is financially viable and able to pay the nominated position for at least two years full-time at the wage of $53,000.
A profit and loss statement for 2017 and 2018 shows sales respectively of $383,093 and $800,853. For the same periods, the wages were $183,836 and $306,909 while the net losses were respectively $189,016 and $18,633.
At the hearing, the director Ms Davis stated that although the business had sustained losses in 2017 and 2018, it was growing rapidly and in 2019, they expected turnover to increase by $350,000. The applicant submitted bank statements from the Commonwealth Bank in the name Sneaky Baron Pty Ltd and addressed to Ms Davis and Mr Strachan. The bank statements show the following income for the financial year 2019:

Income 1 July - 30 September 2018 274,061

1 Oct - 30 December 2018 391,429

31 December - 30 Mar 2019 359,359

31 Mar - 30 June 2019 399,522

Total income 2019 1,424,371

In fact, the sales have grown not by $350,000 as the applicant predicted but by $623,518. Even taking into account the increased cost of sales it is evident that the business will show a significant profit in the financial year 2019 and has the capacity to pay the nominees wages for at least two years. The Tribunal considers that the employee will be employed on a full-time basis in the position for at least two years.
An employment agreement dated 13 October 2016 and signed by Ms Davis and Mr Cote states, ‘full-time ongoing contract for a minimum 2 years’.
Accordingly, the requirement in r.5.19(4)(d) is met.
No less favourable terms and condition of employment: r.5.19(4)(e)
Regulation 5.19(4)(e) requires that the terms and conditions of employment applicable to the nominated position will be no less favourable than those that are, or would be, provided to an Australian citizen or permanent resident performing equivalent work in the same workplace at the same location.
The applicant submitted payslips for the previous Australian venue manager employed at Sneaky Baron and it showed that the nominee, Andrew Cote, was paid at the same hourly rate when he commenced as the Australian venue manager had been paid. The applicant also submitted payslips for Andrew Cote that show he is paid an hourly rate of $25.28 as of June 2019. The applicant used the Restaurant Industry Award 2010, effective 1 July 2019, as a guide to the appropriate wage level for their venue manager position. It is noted that the highest hourly rate in the award is at Level 6 and has an hourly rate of $24.77. The nominee is paid in excess of this top rate and therefore the terms and conditions are more favourable than the wage in the award.
The Tribunal finds that the terms and condition of employment applicable to the position of Venue Manager will be no less favourable that those that are, or would be, provided to an Australian citizen or permanent resident performing equivalent work at the Sneaky Baron in Maroochydore.
Accordingly the requirements of r.5.19(4)(e) are met.
No adverse information known to Immigration: r.5.19(4)(f)
Regulation 5.19(4)(f) requires that there is no adverse information known to Immigration about the nominator or person associated with the nominator; or it is reasonable to disregard any such information. For these purposes, ‘adverse information’ and ‘associated with’ have the meaning given in rr.1.13A and 1.13B of the Regulations.
A search of the banned and disqualified persons list on the ASIC website shows there are zero results for the directors of Sneaky Baron Pty Ltd.
Accordingly the requirements of r.5.19(4)(f) are met.
Satisfactory compliance with workplace relations laws: r.5.19(4)(g)
Regulation 5.19(4)(g) requires that the applicant has a satisfactory record of compliance with the laws of the Commonwealth, and of each State or Territory in which the applicant operates a business and employs employees in the business, relating to workplace relation.
A search of the Fair Work Ombudsman’s website shows there is no legal action or penalties secured against the business Sneaky Baron Pty Ltd.
Accordingly the requirements of r.5.19(4)(g) is met.
Tasks of the position, genuine need for the position and training requirements: r.5.19(4)(h)
Regulation 5.19(4)(h) contains a number of alternative requirements. These are set out in detail in the attachment to the decision but can be briefly summarised as requiring either that:
·the tasks to be performed in the position will be performed in Australia and correspond to those of an occupation specified by the Minister (see legislative instrument); 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 Tribunal needs to determine if the position is in regional Australia. The business is located in Mooloolaba, Queensland, postcode 4557. The definition of ‘Regional Australia’ is found in IMMI 16/045. This postcode is included in the list of postcodes for designated regional areas (IMMI 16/045) therefore the position and business are located in regional Australia. The applicant can choose to meet either r.5.19(4)(h)(i) or r.5.19(4)(h)(ii). The applicant has chosen to meet r.5.19(4)(h)(ii) which provides for the second dot point above.
The Tribunal needs to consider if there is a genuine need for the paid position under the nominator’s direct control. Genuine need goes to more than a vacancy in the business. It may be that there is a significant increase in turnover to warrant the position. The applicant’s director, Ms Davis, has written a letter of support as follows:
Andrew has been with us since the beginning October 2016. His experience in the industry has been a virtue to our start up business. We were both familiar with Andrew and his capabilities for a period before opening Sneaky Baron.
Lucy manages the resort where Andrew was employed as head barman for the well-known wine bar Lot104 in Mooloolaba. We had conversed a lot with him about quality skilled staff before partaking in our venture. Andrew agreed to join us on opening after Karl Williams was not capable of the Job.
Andrew manages all restaurant and bar staff, looking after all issues, rostering etc., Andrew manages stock including stock taking, stock levels, places all orders for the business including consumables, coffee, milk, alcohol. He manages the café earlier in the week and then manages the bar from Thursdays through until Sunday.
Andrew has designed the cocktail and drinks menu, he holds training days with all staff once a month bringing everyone up to date with any changes and new products. We pride ourselves on customer service at Sneaky Baron, Andrew is the first to specify with new and existing staff the standard that we require.
Andrew is a passionate, fit, energetic, and well-rounded professional person. Our Business would not be where it is today without him. We really believe losing Andrew will be detrimental for Sneaky Baron. As it is such a transient industry a replacement would be more than difficult. We were very fortunate to have been able to employ Andrew on our opening in October 2016.
Damon Strachan – Director over sees all that Andrew does but is not fully qualified in the industry and without Andrews’s knowledge, experience, and certifications this will affect the running of Sneaky Baron. Lucy Davis – Director is semi silent as she Manages a Resort 7 days per week and unable to take over in any form. Knowledge of the food and beverage industry is not her strong point, so again losing Andrew will be negative to Sneaky Baron.
We thank you for your time and hope you take all the above in a favourable manor.
The applicant needs the nominated position because one owner is fully employed elsewhere and the other owner does not have the skills and qualifications.
The business has increased turnover from $800,853 in 2018 to $1,424,371 in 2019. This represents an increase in revenue of 78% over the previous year. The Tribunal considers that this significant increase in revenue, the fact the position has been occupied since 2016 and that both owners are unable to manage the venue themselves indicates a genuine need for the nominated position of venue manager. The Tribunal, for the above reasons, considers that the applicant has shown a genuine need for a venue manager to oversee the operation of the Sneaky Baron as a paid employee under the nominator’s direct control.
The Tribunal needs to consider if the position could have been filled by an Australian citizen or permanent resident. The applicant explained that they were new to the hospitality sector in 2016 and it was a slow start to their business. They struggled to find someone to fill the position of venue manager and employed an Australian who proved unsatisfactory and only stayed three weeks in the position. Payslips were provided to evidence the employment of the Australian venue manager. The applicant stated they may have advertised the position but no longer had those advertisements to hand. They started searching and headhunting a venue manager themselves. They knew Andrew Cote through another venue he worked in at Mooloolaba and offered him the position of venue manager. The directors made significant efforts to employ a local person by making enquiries in the Sunshine Coast area. The Tribunal considers that the nominated position cannot be filled by an Australian citizen or permanent resident who is living in the same local area
The Tribunal needs to consider if the tasks of the position venue manager correspond to those of an occupation specified in the relative legislative instrument and the occupation is applicable to the proposed employee in accordance with the specification of the occupation. The nominated position is Venue Manager under the Hospitality, Retail and Service Managers ANZSCO 149999 and this appears in the legislative instrument IMMI 15/083, which is specified by the Minister in writing. In ANZSCO, ‘Venue Manager’ is not specifically recorded as an occupation. However, as can be seen below, the ANZSCO refers to ‘Occupations in This Group Include’. This implies that the occupations listed are included but it does not exclude additional occupations related to hospitality managers. The Tribunal finds that it is reasonable to include venue manager in ANZSCO 149999.
149999 HOSPITALITY, RETAIL AND SERVICE MANAGERS NEC
This occupation group covers Hospitality, Retail and Service Managers not elsewhere classified. Registration or licensing may be required. Occupations in this group include (Emphasis added).
Abattoir Manager
Brothel Keeper
Laundrette Owner
Marina Manager
Nursing Agency Manager
Taxi Proprietor
Weight Loss Centre Manager
The job description for Venue Manager is shown below and while there is no corresponding description in ANZSCO, the job description is consistent with the tasks and duties of a venue manager in the hospitality sector.
Venue Manager Job Description
Plan, direct and oversee all café & bar operations including managing staff, ensuring product and service standards are met and implementing and maintaining procedures for maximum operating efficiency, whilst working closely with the owners.

·working within both the café & bar when required
·daily opening and closing of the café & bar
·daily takings to be counted and recorded daily any discrepancies to be brought to the owners attention
·determine staff needs and staff requirements for rostering
·assess development needs and train and coach staff where required
·delegate duties and tasks to staff to meet objectives and maximize resources
·monitor quality and service standards
·communicate company policy, standards and procedures to staff
·ensure staff operate within company policies
·oversee the preparation and presentation of beverages to meet set standards
·resolve customer complaints promptly
·monitor cleanliness and hygiene of all areas
·promote and practice compliance with fire, health, safety and hygiene standards and regulations
·stock control and stocktaking
·monitor and order supplies
·liaise with suppliers and sales representatives
·confirm that procurement of supplies is on the best possible terms
·make certain all deliveries are checked in correctly and documentation is correct
·check stock is correctly rotated and stored to reduce wastage
·make sure café display cabinet is maximizing functionality
·plan and implement cost control measures
·plan and implement systems to maximize sales and revenue
·organize promotional activities including social media posts
·implement improvements for products and service
·maintain regular communication with staff and management through meetings and discussions
·stay current with relevant legislation regarding service of alcohol, food and licensing

This position is not limited to the above tasks and will vary from time to time.

The Tribunal considers that the tasks of the nominated position correspond to the tasks of a position namely, Hospitality, Retail and Services Manager, ANZSCO 149999, specified in writing by the Minister.
The Tribunal must consider if a regional certifying body has advised the Minister. The relevant regional certifying body is the Chamber of Commerce and Industry Toowoomba that approved the regional assessment on 12 May 2017 and submitted Form 1404 ‘Regional Certifying Body Advice’. The Tribunal considers that the Chamber of Commerce and Industry Toowoomba, which is listed on the Department website as a regional certifying body and is thus specified by the Minister in an instrument in writing and is located in the same State, namely Queensland, as the nominated position is located, has advised the Minister of their approval.
Accordingly the requirements of r.5.19(4)(h) are met.
Based on the findings above, the Tribunal is satisfied that the applicant meets the requirements of r.5.19 for approval of the nomination of the position in Australia.
DECISION
The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.
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 6333

17 October 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Statutory Construction

Jurisdiction

Procedural Fairness

Income	1 July - 30 September 2018	274,061
1 Oct - 30 December 2018	391,429
31 December - 30 Mar 2019	359,359
31 Mar - 30 June 2019	399,522
Total income 2019	1,424,371