SRS Capital Pty.Ltd (Migration)
[2020] AATA 4516
•29 October 2020
SRS Capital Pty.Ltd (Migration) [2020] AATA 4516 (29 October 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT: SRS Capital Pty Ltd
CASE NUMBER: 1729136
HOME AFFAIRS REFERENCE(S): BCC2016/1420762
MEMBER:Ian Berry
DATE:29 October 2020
PLACE OF DECISION: Brisbane
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.
Statement made on 29 October 2020 at 10:05am
CATCHWORDS
MIGRATION – application for approval of nomination of position – direct entry nomination stream – applicant’s operations and director’s other business interests – nominee’s tasks compared to ANZSCO description – decision under review set asideLEGISLATION
Migration Regulations 1994 (Cth), r 5.19(4)(h)(ii)(D)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 and Border Protection on 3 November 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 11 April 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 2 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)(ii)(D) of the Regulations because the applicant did not provide a description of the tasks and duties of the and relating to the nominated position. The applicant did not identify whether the position was newly created, or it was through natural attrition.
The applicant appeared before the Tribunal on 23 January 2020 and 8 October 2020 to give evidence and present arguments. The Tribunal received oral evidence from the applicant’s sole director and shareholder Mr Monga. The Tribunal exercised its discretion to hold the hearing by telephone. During the COVID-19 pandemic, special circumstances exist for the telephone hearing. The Tribunal also considered the Tribunal’s objective of providing a review that is fair, just, economical and expedient. A hearing by telephone achieved this end.
For the following reasons, the Tribunal has decided to set aside the decision under review and substituted 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 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)
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.
From the Departmental File, the Tribunal has read the application for Employer Nomination for a Permanent Appointment dated 11 April 2016. From the application, the Tribunal is satisfied that the applicant has used the correct form and was accompanied by the prescribed fee: r.5.37. A written certification stating that the nominator has engaged in conduct in relation to the nomination that contravenes s.245AR(1). The application also identifies for the nominator to employ a paid employee to work in the position 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)
Regulation 5.19(4)(b) requires that the applicant is actively, lawfully and directly operating a business in Australia.
The applicant is the café/restaurant owner trading as ‘Oman Ama Café and Restaurant’ (café) has the location of the business at an intersection with the Cunningham Highway between Warwick and Inglewood. The BP service station operated by the applicant is adjacent to the café. The businesses complement each other by providing fuel and a rest stop with café offering amenities including toilets, truck and car parking, providing breakfast, lunch and dinner. Its customers include long haul truck drivers, travellers and tourists. Mr Monga is the sole director and shareholder who says that this café is in urgent need of a café or restaurant manager (ANZSCO 141111) who will manage the café.
Mr Monga lives in Canberra with his family and is the sole director and shareholder of 2 other corporations owning and operating businesses at Muswellbrook and Broadwater in New South Wales, and Swan Hill in Victoria. Mr Monga regularly attends the service station and café but relies on the nominee to do the day to day managerial tasks the significant of which is in the ANZSCO tasks.
This applicant owns and operates (beside the business as already mentioned) a BP and Liberty service stations, a tobacconist shop, and a pizza retail outlet in Muswellbrook which are in both Victoria and New South Wales. The applicant’s financial information includes the service stations, the café, tobacconist, and the pizza business. The café is located on freehold land owned by the applicant purchased by it as a separate business to the service station. It has an area of about 1.2 Hectares. The applicant’s intention is to develop the site to accommodate long haulage trucks and prime movers and trailers.
The café is open 7 days a week from 6 am to 7 pm as does the adjacent BP service station which employs 3 employees. Both businesses operate the same 2 shifts each day. The food selections include a range of western type dishes with takeaway options[1]. Food is served at the counter and in the seating area. The range of food includes bacon and eggs, chicken burgers, sandwiches, potato wedges and a selection of cakes. Soon, the café will be offering Indian dishes such as curries with the applicant having purchased equipment to facilitate the intended curry dishes to be served.
[1] Tribunal file: folio 162/167 is the menu of the cafeteria which now includes Indian dishes, which were not offered at the time of the first hearing.
The café employs a Chef/Cook named Cathy, an Australian citizen, who is employed full-time working from 6 am to 2 pm or sometimes to 3 pm. In that time, she prepares food for meals expected to be served when she is absent. Rosie is an Australian citizen who serves on the counter and works casually. Her hours vary depending upon her availability and those hours are usually 6 am to 11 am or sometimes to midday and works 4 or 5 days per week. Alan is an Australian permanent resident and is a kitchenhand who also makes the coffee and attends the counter. He works part-time usually between the hours of 10 am to 3 pm and works every day. Mrs Daljit Kaur (the nominee) works 5 days a week in a part-time capacity, working 18 to 20 hours per week. She may work longer hours where another employee is away. Mr Monga says that it is the applicant’s intention to offer her full-time employment upon the approval of her visa. The nominee is presently absent from work having recently given birth.
The applicant’s organisational chart insofar as it relates to the cafeteria includes Mr Monga as its director, the nominee as the restaurant manager, with cooks Melissa and a vacant position with waiting staff/Kitchenhand 2 employees.
The Tribunal has regard to the Australia Securities and Investments Commission and the Australian business number records. The documents relating to the applicant’s income in the business activity statements and is therefore satisfied the applicant is actively, lawfully and directly operating a business in Australia.
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.
There is no evidence in the Departmental File relating to the applicant’s business being involved in labour hire activities.
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 2 years full time, and the terms and conditions of that employment do not expressly exclude the possibility of an extension.
The Tribunal considered whether the applicant had the financial capacity to pay the full-time salary for the nominated position for at least 2 years. The financial information provided by the applicant strongly indicates the applicant having the capacity to pay the nominee’s salary for at least 2 years. For instance, in the financial year ending 30 June 2016 the applicant’s operating profit from trading was $22,423.00. The taxation return for that year shows the applicant having a total income of $1,579,287.00 and expenses of $1,581,014.00. The applicant’s accountant R M Bookkeeping Service gives an opinion on letter dated 30 October 2017, that the applicant is financially capable of being able to afford another employee has a full-time position and certifies the applicant being in a strong financial position.
The applicant’s employment agreement dated 8 April 2016, states that the duration of employment of the nominee is 4 years starting from the day of the approval of the 187 Regional Skilled Sponsorship Scheme visa, where she will be employed as the restaurant manager working full-time.
The Tribunal has satisfied the applicant will employ the nominee for at least 2 years full-time on a starting salary of $54,500.
Accordingly, the requirement in r.5.19(4)(d) is met.
No less favourable terms and conditions 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 evidence before the Tribunal is that there is no Australian citizen or permanent resident performing equivalent work in the same workplace at the same location. The applicant’s nomination application stated that the proposed salary to be paid to the nominee upon the success of her 187 visa is $54,500 per annum plus superannuation.
The applicant provided data from sources such as PayScale with other documents supporting the nominee’s salary is consistent with that position. The Tribunal is satisfied that the nominee’s proposed salary of $54,500 per annum is within the indicative range for the nominated position of this nominee. The Tribunal is therefore satisfied and finds that the terms and conditions of employment applicable to the position are no less favourable than the terms and conditions that would be provided to an Australian citizen or an Australian permanent resident performing equivalent work in the same workplace at the same location.
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.
No information is on either the Tribunal file or the Departmental file relating to adverse information relating to the applicant or its director Mr Monga.
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 relations.
There is no evidence before the Tribunal which directly or indirectly involves the applicant with a record of compliance with the relevant workplace relations laws, that is unsatisfactory.
Accordingly, the requirements of r.5.19(4)(g) are met.
Tasks of the position, genuine need for the position and training requirements r.5.19(4)(h)
Regulation 5.19(4)(h) contains several 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 IMMI 15/092), 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 nominated position is at Oman Ama with postcode 4352 and which are specified as regional in the legislative instrument in force at the time of the nomination (11 April 2016) IMMI 13/049, r.5.19(4)(h)(ii) requires that:
·The nominated position and the nominator’s business are in regional Australia (r.5.19(4)(h)(ii)(A) and r.5.19(4)(h)(ii)(E));
·There is a genuine need for the paid position under the nominator’s direct control as required by r.5.19(4)(h)(ii)(B);
·The position cannot be filled by an Australian citizen or permanent resident who is living in the same local area as required by r.5.19(4)(h)(ii)(C);
·The tasks of the position correspond to those of an occupation specified in the relevant legislative instrument as required by r.5 .19(4)(h)(ii)(D); and
·A specified regional certifying body has advised the Minister about certain matters relating to the position as required by r.5.19(4)(h)(ii)(F).
The Tribunal is satisfied that the position and the nominator’s business is in Oman Ama with postcode 4352 which is in regional Australia as specified in the aforesaid legislative instrument.
On 19 November 2019, the Tribunal invited the applicant to provide information relevant to its nomination. The applicant supplied a several documents satisfying the Tribunal’s invitation. Subsequently the Tribunal convened a hearing on 23 January 2020 and received further evidence from Mr Monga. At that point in time the Tribunal had concerns over the number of staff, the organisational chart and the ability of the staff to conduct the café’s operations in circumstances where the café manager, the nominee, was required to do tasks which may not have been within the tasks of a café or restaurant manager ANZSCO 141111.
To address the Tribunal’s concern as to the number of employees, the tasks necessary to run the café and the tasks of the nominee, the Tribunal invited the applicant on 17 February 2020 to address those concerns. The information sought from the applicant was relevant to the following matters:
·SRS Capital Pty Ltd (the applicant) owns a café adjoining a BP Service Station at Oman Ama, located between Warwick and Inglewood.
·The café and the service station are the only businesses in the near vicinity and cater to passing traffic, both long hail truck drivers and the general public.
·The café caters for standardised meals such as burgers, chips, sandwiches and the like.
·The applicant would sell 50% of its trade to ‘sit down’ customers and 50% to ‘takeaway’ customers.
·The applicant has nominated the position of Café or Restaurant Manager (ANZSCO 141111).
·The nominee has been employed with the applicant in a part time or casual capacity, works 5 days a week and averages 18 to 20 hours each week, with extra time when required.
·The applicant pays the nominee a salary of about one half of $54,500 plus superannuation in each year.
·The applicant requires the Café or Restaurant Manager as it is anticipated that curry and other ‘upmarket’ meals will be sold in the future.
·IMMI 15/092 is an instrument in writing which specifies occupations for nominations under reg. 5.19(4)(h)(i)(A) of the Migration Regulations 1994 (the Regulations). A Café or Restaurant Manager is listed in Column A of Schedule 2 but is subject to a caveat that states:
“*** indicates that, despite paragraphs 2, 5 and 6, for a nomination or visa applications for a subclass 457 visa or 186 visa, the occupation excludes positions in Fast Food or Takeaway Food Service.”
·The Café or Restaurant Manager position is not carrying out the significant number of tasks as set out in ANZSCO as the nominee is selling food which can be classified as fast food or a takeaway food service.
The applicant was informed that the information provided to it by the Tribunal may be a reasonable part of a reason for the Tribunal to affirm the delegate’s decision because the position may not be genuine.
The applicant provided spreadsheets relating to the applicant’s employees which were difficult to decipher. For the reason of fairness, though it is for the applicant to make out its case, it decided to convene a further hearing to better understand the applicant’s submission. That hearing was on 8 October 2020. That hearing was convened for the applicant to explain its spreadsheets and employing other staff. The Tribunal was satisfied that the position was genuine.
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.
Ian Berry
MemberATTACHMENT - 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).
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
Legal Concepts
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Judicial Review
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Statutory Construction
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Jurisdiction
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Procedural Fairness
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