Spice Garden Pty Ltd (Migration)

[2019] AATA 6254

Spice Garden Pty Ltd (Migration) [2019] AATA 6254 (31 October 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Spice Garden Pty Ltd

CASE NUMBER:  1830731

DIBP REFERENCE(S):  BCC2017/867762

MEMBER:Andrew George

DATE:31 October 2019

PLACE OF DECISION:  Darwin

DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Statement made on 31 October 2019 at 2:56pm

CATCHWORDS

MIGRATION – nomination of a position (employer nomination) – Direct Entry Nomination stream – position of Cook – genuine need for the position – actively and lawfully operating a business in Australia – no less favourable terms and condition of employment – no adverse information – decision under review set aside           

LEGISLATION

Migration Act 1958, s 245
Migration Regulations 1994, rr 1.13, 5.19

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 8 October 2018 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).

2. The applicant applied for approval on 6 March 2017. 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).

3. In this case, the applicant has applied for approval of a nomination, seeking to satisfy the criteria in the Direct Entry Nomination stream. The Proposed Occupation, training or activity is Cook – 351411.

4. The delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19(4) of the Regulations. The evidence presented to the delegate did not identify a genuine need to employ a paid employee to work in the nominated position under the applicant’s direct control, so r.5.19(4)(h)(ii)(B) was not met. As r.5.19(4)(h)(ii)(B) was not met, the applicant did not meet r.5.19(4)(a) and therefore also did not meet r.5.19(4).

5. The applicant, through Ms Kajaliny Ranjih, appeared before the Tribunal on 30 July 2019 to give evidence and present arguments. Ms Ranjih is not an employee of the applicant although had a Power of Attorney from the applicant dated 14 June 2019. Ms Ranjih is a legal practitioner and a registered migration agent. The Tribunal notes that the owner of the applicant, Ms Stephanie Liyanage did not appear to give evidence due to her being absent on prearranged travels. However, the Tribunal subsequently received a statutory declaration by Ms Liyanage dated 15 August 2019.

6. This was a combined hearing with file 1830731. As such, the Tribunal also received oral evidence from the nominated person Mr Chaminda Delpachithra.

7. The applicant was represented in relation to the review by its registered migration agent, Mr Brian Kelleher (MARN: 0105197) of Ward Keller, who attended the Tribunal hearing. The Tribunal allowed the parties until 19 August 2019 to submit further material.

8. 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

1. 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 application is compliant: r.5.19(4)(a)

1. 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.

2. The Tribunal has before it an Application for Employer Nomination for a Permanent Appointment dated 6 March 2017. The Tribunal is satisfied that the application was made on the approved form and the prescribed fee accompanied it. The form includes a written certification stating the nominator has not engaged in conduct in relation to the nomination that contravenes s. 245AR(1). The form also identifies a need for the nominator to employ a paid employee to work in the position of Cook under the nominator’s direct control. Accordingly, the requirement in r.5.19(4)(a) is met.

Nominator is actively and lawfully operating a business in Australia: r.5.19(4)(b)

1. Regulation 5.19(4)(b) requires that applicant is actively, lawfully and directly operating a business in Australia. On the material before it, in particular the letter dated 14 May 2019 from Adept Business Advisors, the Tribunal is satisfied that the nominator is actively and lawfully operating a business in Australia and directly operates that business. Accordingly, the requirement in r.5.19(4)(b) is met.

Position is not labour-hire: r.5.19(4)(c)

1. 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. There is no evidence before the Tribunal that the nominator is involved in labour hire duties. Accordingly, the requirement in r.5.19(4)(c) does not apply.

Term of employment of the visa holder: r.5.19(4)(d)

1. Regulation 5.19(4)(d) requires the nominee to be employed in the nominated position for at least 2 years full time, and the terms and conditions of that employment do not expressly exclude the possibility of an extension. 

2. The Tribunal has before it an employment contract dated 27 February 2017 offering Mr Delpachithra employment “Commencing on 10/3/2017 and ongoing on a permanent basis, subject to termination under this contract”. The Tribunal also has before it a letter from Ms Liyanage dated 6 May 2019 confirming that Mr Delpachithra’s employment is subject to him continuing to work for the applicant “… for a period of at least two years from the date of your VISA grant”.

3. Mr Delpachithra did not countersign the letter of 6 May 2019. Its terms may also offend clause 27 of the employment contract of 27 February 2017, being the ‘entire agreement’ clause. Therefore, the Tribunal places little weight on the letter of 6 May 2019. Nevertheless, and with reference to financial records, the Tribunal is satisfied that the applicant has permanently employed Mr Delpachithra since 10 March 2017. Mr Delpachithra’s employment contract does not expressly exclude any employment extensions. Accordingly, the requirement in r.5.19(4)(d) is met.

No less favourable terms and condition of employment: r.5.19(4)(e)

1. 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.

2. The Tribunal notes from the Application for Employer Nomination for a Permanent Appointment that there are no Australian employees in the workplace doing the same work as the nominated person. The Tribunal also notes from this form that the base rate of pay per annum is $51,818. This is consistent with employment contract of 27 February 2017. However, the Tribunal notes the Payroll Activity Summary from 1 July 2018 to 30 June 2019 and PAYG payment summary – individual non-business for the period 1 July 2018 to 30 June 2019. From these documents, the Tribunal is satisfied that Mr Delpachithra’s base rate of pay per annum is in fact $54,886.

3. The employment contract of 27 February 2017 does not identify an applicable award. Nevertheless, on 15 August 2019 Mr Kelleher helpfully submitted documentation from the Fair Work Ombudsman identifying the Hospitality Industry (General) Award 2010 (MA00009). The applicable weekly pay rate as at 15 August 2019 is $818.50, being $42,562 per annum.

4. The applicant did not place before the Tribunal any evidence or submission regarding the market salary of a cook in Darwin. This is despite the Application for Employer Nomination for a Permanent Appointment of 6 March 2017 citing “Market Salary and level of experience” as the method of calculation of how the base pay and guaranteed annual earnings was determined.

5. Nevertheless, the Tribunal has reviewed PayScale. From this review, the Tribunal is satisfied that the market salary of an Australian citizen or permanent resident performing equivalent work as a Cook in a restaurant in Darwin is $54,000. Accordingly, the Tribunal is satisfied that the terms and conditions applicable to Mr Delpachithra’s position are no less favourable than those that would be provided to an Australian citizen or permanent resident performing equivalent work in the same workplace at the same location.

6. Accordingly the requirements of r.5.19(4)(e) are met.

No adverse information known to Immigration: r.5.19(4)(f)

1. 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.

2. There is no evidence before the Tribunal to indicate adverse information known to the Department about the nominator or a person ‘associated with’ the nominator. Accordingly the requirements of r.5.19(4)(f) are met.

Satisfactory compliance with workplace relations laws: r.5.19(4)(g)

1. 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 relations. The requirements of r.5.19(4)(g) are met as there is no evidence before the Tribunal that the applicant has an unsatisfactory record of compliance with workplace relations laws in the Northern Territory.

Tasks of the position genuine need for the position and training requirements r.5.19(4)(h)

1. Regulation 5.19(4)(h) contains a number of alternative requirements, where r.5.19(4)(h)(ii)(B) is relevant in this matter. This is set out in detail in the attachment to this decision.

2. The Tribunal is satisfied that the position and business is located in the Northern Territory, which is ‘regional Australia’ under IMMI 16/045.

3. The Tribunal notes the statutory declaration of Ms Liyanage dated 15 August 2019 and witnessed by Ms Ranjih. Noting that Ms Ranjih was a witness in the hearing, a risk of contamination of Ms Liyanage’s evidence arises with this statutory declaration. Nevertheless, and taking this untested evidence at its strongest, the content of this statutory declaration is scant on detail and is broadly unhelpful to the applicant. It does not annex objective evidence in support of its assertions, such advertising for the position of Head Chef at paragraph [7]. Materially, it does not cite specific examples of Mr Delpachithra’s tasks at paragraph [10]. The Tribunal places little weight on this evidence.

4. The Tribunal notes the delegate’s findings regarding a genuine need to employ a paid employee to work in the position under the nominator’s direct control. The Tribunal also notes that the position of Head Chef remains vacant. Ms Ranjih’s oral evidence was to the effect that the position remains vacant subject to the applicant business growing and finding the right person. It would seem from a Seek Limited Tax Invoice dated 22 January 2017 that this role has been vacant since at least that date. The Tribunal does not accept that the applicant has been diligently seeking to recruit for the position of Head Chef for almost three years without success. The Tribunal is not satisfied that the position of Head Chef currently exists.

5. The Tribunal observed that Ms Ranjih relied heavily upon her notes at material times, in particular when questioned about the tasks of the nominated position. Given this reliance, and noting that Ms Ranjih is not an employee of the applicant, the Tribunal places little weight on her evidence.

6. In contrast to the other evidence before the Tribunal, Mr Delpachithra gave detailed evidence regarding his tasks. Mr Delpachithra described how he prepared and time managed in the kitchen. He tasked the kitchen hands. He purchased ingredients and ordered from suppliers. Mr Delpachithra gave evidence of his concern with health and safety. Mr Delpachithra gave evidence how he prepared food and made many ‘on-call’ dishes. His evidence was that he premade food, put it on plates, and added garnishing. The Tribunal assessed that Mr Delpachithra gave his evidence with candour.

7. The Tribunal notes that some of Mr Delpachithra’s duties, in particular ordering food supplies, are the enumerated tasks of a Chef – 3513311 rather than a Cook – 351411. Indeed, the Tribunal has considered if the applicant has sought to place Mr Delpachithra in a position of Cook – 351411 rather than Chef – 3513311 to achieve an immigration outcome. Ms Liyanage’s absence from the hearing, however explained, has not assisted the applicant in this regard. However, the Tribunal has decided that there is insufficient evidence before the Tribunal to support such a finding.

8. On balance, placing most weight on Mr Delpachithra’s oral evidence, the Tribunal is satisfied that the tasks of the nominated position correspond to the tasks of an occupation Cook – 351411 under IMMI15/083. The absence of a Head Chef position in fact strengthens an argument for a genuine need for the nominator to employ a paid employee to work in the position of Cook – 351411 under the nominator’s direct control. The Tribunal is therefore satisfied that such a genuine need arises.

9. The Tribunal notes that a Regional Certifying Body, being the Northern Territory Government Department of Trade, Business and Innovation, has advised the Minister about the matters in r.5.19(4)(e) and r.5.19(4)(h)(ii)(B) & (C) in a declaration dated 20 December 2017. That advice includes a declaration that “the nominated position cannot be filled by an Australian citizen or Australian permanent resident who is living in the same local area as the nominated position”. The Tribunal notes the findings of the delegate in this regard, but on balance accepts this declaration by the Northern Territory Government.

10. Accordingly the requirements of r.5.19(4)(h) are met.

11. 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

1. The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Andrew George
Member

ATTACHMENT  -  EXTRACTS FROM THE MIGRATION REGULATIONS 1994

5.19Approval of nominated positions (employer nomination)

…

1. 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

1. 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).