SUHANSH GROUP PTY LTD (Migration)

SUHANSH GROUP PTY LTD (Migration) [2018] AATA 1763 (8 May 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  SUHANSH GROUP PTY LTD
CASE NUMBER:  1605453
DIBP REFERENCE(S):  BCC2015/2570569
MEMBER:Mary Sheargold
DATE:8 May 2018
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.
Statement made on 08 May 2018 at 12:47pm

CATCHWORDS
Migration – Approval of Nomination (employer nomination) – Contract of employment – Roles and duties – Financial statements – Business growth – Position description – Decision under review set aside
LEGISLATION
Fair Work Act 2009, s 117
Migration Regulations 1994, rr 1.13A, 1.13B, 5.19
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration on 4 April 2016 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 3 September 2015. 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 Regional Sponsored Migration Scheme (RSMS) Direct Entry Nomination stream.
The delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19(4)(d)(i) of the Regulations because the applicant did not demonstrate the financial capacity to be able to pay the full-time salary and other employment conditions for the nominated position for at least 2 years.
Mr Harry Hardyal Hunjan, the sole director of the applicant, appeared before the Tribunal on 20 April 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the nominee, Mr Parambir Singh.
The applicant was represented in relation to the review by its registered migration agent, Mr Amber Gupta.
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 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.
In anticipation of the hearing, the Tribunal requested that the applicant provide assorted information to demonstrate that it meets the criteria for approval of the nomination. Prior to the hearing, the applicant provided some of the information requested. Additional information was provided to the Tribunal after the hearing.
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 has reviewed the documentation in the Department’s file, and is satisfied that the applicant’s nomination application was made on the approved internet form, and the relevant s.245AR(1) certification was also provided in the application form. Consistent with r.5.37(3)(b) of the Regulations, there is no fee payable in respect of a nomination where the position is located in regional Australia. The applicant has identified a need in the nomination application for it to employ a paid employee to work in the position of Cook at its restaurant Tandoori Delights, located in Warragul, Victoria under its 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 applicant is actively, lawfully and directly operating a business in Australia.
The applicant provided the Tribunal with an extract from the Australian Securities and Investments Commission (ASIC) database and finds that the applicant is actively and lawfully operating its business registered with ASIC. The Tribunal has considered publicly available information on the Australian Business Register and finds that the applicant holds an Australian Business Number, has been registered for GST since 15 August 2013, and has owned the business name Tandoori Delights since 15 May 2015. The applicant has also provided the Tribunal with copies of its Business Activity Statements (BAS) for each quarter from September 2015 to June 2017 inclusive.
Based on the documentation before it, the Tribunal finds that 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.
The Contract of Employment between the applicant and the nominee dated 26 February 2018 (Contract of Employment) states that the employee will work at 4/55 Smith Street, Warragul, Victoria 3820, which is the registered address of the applicant’s business.
At the hearing, Mr Hunjan indicated that the applicant does not engage in the on-hire of labour, and that Tandoori Delights is directly controlled by him as the sole director of the applicant. The Tribunal is satisfied that the nominated position of Cook is a permanent full-time position within the applicant’s business and that it does not involve the nominee being on-hired to any unrelated business. Accordingly, the requirement in r.5.19(4)(c) does not apply.
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.
In assessing this criterion, the Tribunal has considered the Contract of Employment, as well as the detailed financial statements for the applicant’s business for the financial years ending on 30 June 2016 and 30 June 2017 and PAYG statements for the applicant’s employees for the financial year ending on 30 June 2017.
Item 1 of Schedule A to the Contract of Employment states that the contract length is 2 years, ongoing, with provision of a further extension of the term. Therefore, the Tribunal finds that the Contract of Employment is for at least 2 years and does not expressly exclude the possibility of an extension.
The Contract of Employment stipulates an annual salary of $54,100.00 plus 9.5% superannuation. The detailed financial statement for the financial year ending on 30 June 2017 indicates that the applicant’s business had gross sales of $294,817.00, and recorded a gross profit from trading of $227,009.00. The applicant’s profit from ordinary activities before income tax was recorded as $32,158.00. The Tribunal notes that this is an increase from the profits before income tax recorded for the financial year ending on 30 June 2016, where the business broke even and recorded no profit. At the hearing, Mr Hunjan gave evidence that business is an investment for him, and that he has a full-time job. Mr Hunjan also gave evidence that he is expecting at least a 30% increase in profits for the coming financial year. The Tribunal accepts Mr Hunjan’s evidence, and finds that the applicant’s business is currently profitable.
The Tribunal has considered the wage expenditure for the business for the financial year ending on 30 June 2017 and notes that the amount was $140,428.00. This amount corresponds with the totals for salaries paid to each of the applicant’s 5 employees for the financial year ending on 30 June 2017 as recorded in each employee’s PAYG statement. The Tribunal notes that the nominee was one of those 5 employees, and was paid $54,000.00 for the financial year ending on 30 June 2017. The Tribunal is satisfied that the applicant’s business is financially viable, and is capable of supporting the nominee’s salary for at least 2 years.
Based on the Contract of Employment and the detailed financial statements for the financial years ending on 30 June 2016 and 30 June 2017, the Tribunal is satisfied that the nominee will be employed in the position of Cook on a full-time, permanent and ongoing basis for at least 2 years on terms that do not expressly exclude the possibility of an extension. 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 has provided evidence to the Tribunal including the Contract of Employment, a market salary survey of 6 commensurate roles that it prepared in January 2018, and a statement of genuine need prepared by the applicant.
The Tribunal has considered the Contract of Employment between the applicant and the nominee executed by both parties and dated 26 February 2018. Item 7 of Schedule A to the Contract of Employment states that the nominee will be paid a salary of $54,100.00 per annum plus 9.5% superannuation.
The applicant has provided evidence regarding commensurate salaries via its market salary survey conducted in January 2018. The applicant has provided the Tribunal with copies of 6 advertisements for chef and cook positions in Melbourne, advertised on the website seek.com.au. The Tribunal notes that all the salaries advertised for those roles range between $50,000.000 to $55,000.00 or $60,000.00. In addition to the market salary survey provided by the applicant, the Tribunal has reviewed MA000119 Restaurant Industry Award 2010 (Award) and notes the minimum weekly rate for a grade 5 level cook (the highest level covered by the Award) is $882.80 per week, calculated as $45,905.60 per annum. The Tribunal notes that the nominee’s annual salary is well in excess of this figure, at $54,100.00 per annum. Accordingly, the applicant’s proposed rate of pay for the nominated position is no less favourable than that would be provided to an Australian citizen or permanent resident performing equivalent work.
Item 10 of Schedule A to the Contract of Employment states that the nominee will be entitled to 20 days of annual leave per annum, as well as 10 days of personal leave, with provision for periods of up to 2 days at a time of additional personal leave where the nominee has exhausted his annual allowance but provides evidence that such leave is warranted. Clause 7 of the Contract of Employment states that leave provisions for the nominee will be in accordance with the requirements of the Fair Work Act 2009 (Cth) (Fair Work Act).
Further, clause 6.3 of the Contract of Employment states that the nominee will make superannuation contributions as required under the Superannuation Guarantee (Administration) Act 1992 (Cth) and any regulations thereto. The Tribunal notes that the notice provisions with respect to termination set out in items 8 and 9 of Schedule A to the Contract of Employment discharge the applicant’s obligations under s.117 of the Fair Work Act.
Having considered all of the evidence before it, the Tribunal finds that the applicant will provide the nominee with terms and conditions of employment that 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.
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.
There is no evidence before the Tribunal to suggest that there is any adverse information known about the applicant or its business. 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 to suggest that the applicant does not have 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. At the hearing, Mr Hunjan stated that he is not aware of any history of incidents involving WorkSafe or the Fair Work Commission. 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 a number of alternative requirements. These are set out in detail in the attachment to the decision. As noted above, the applicant’s application was made under the RSMS Direct Entry stream. Accordingly, the Tribunal has assessed the application against the criteria in r.5.19(4)(h)(ii) of the Regulations, as at the time of lodgement of the nomination application, which required that:
·the position and nominator’s business is located in regional Australia;
·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 position cannot be filled by an Australian citizen or an Australian permanent resident who is living in the same local area as that place;
·the tasks to be performed in the position correspond to the tasks of an occupation specified by the Minister in an instrument in writing; and
·a regional certifying body has advised the Minister about certain matters relating to the position.
Position and nominator’s business is located in regional Australia: r.5.19(4)(h)(ii)(A) and (E)
The first consideration under r.5.19(4)(h)(ii) is whether the position is located in regional Australia. Regulation 5.19(16) provides that “regional Australia” is defined by legislative instrument. The Tribunal has considered the Migration (IMMI 17/059: Regional Certifying Bodies and Regional Postcodes) Instrument 2017 (IMMI 17/059). Schedule 2 of IMMI 17/059 sets out a range of postcodes in the State of Victoria that constitute “regional Australia”, and that range covers all postcodes from 3816 to 3909 inclusive.
Based on the evidence provided, the Tribunal is satisfied that the applicant’s business Five Star Café and Restaurant is operating at 4/55 Smith Street, Warragul, Victoria, 3820, and that the nominee is currently working in the nominated position at the applicant’s business in this location.
The Tribunal is therefore satisfied that the position and the business operated by the applicant are located in regional Australia and the requirements in r.5.19(4)(h)(ii)(A) and (E) are met.
Genuine need for the nominator to employ a paid employee to work in the position under the nominator’s direct control: r.5.19(4)(h)(ii)(B)
At the hearing, Mr Hunjan gave evidence that when he bought the applicant’s business, he was reliant on the nominee and its other employed cook to work at Tandoori Delights because Mr Hunjan is not a trained or qualified cook, and he has a full time job working in the food transport industry. Mr Hunjan gave evidence that he attends the business approximately once per fortnight to check that everything is running smoothly, but that the day to day responsibility for the kitchen is with the nominee and its other employed cook.
The Tribunal queried why the business required the services of two cooks. Mr Hunjan explained that while each cook is able to manage the entire kitchen, during busy periods, such as weekends, the full time services of both cooks are required to keep up with customer demand. Mr Hunjan stated that as he is not a cook, he cannot assist with running the kitchen at all. In its statement of genuine need for the position, the applicant states that Tandoori Delights cooks all meals to order, and that each meal takes approximately 15 minutes to complete. The Tribunal accepts the applicant’s evidence
The Tribunal has considered the detailed financial statements for the applicant’s business for the financial years ending on 30 June 2016 and 30 June 2017. The Tribunal finds that while the current profit levels of the applicant’s business are relatively low, Mr Hunjan, as sole director, is not dependent on the proceeds of the business as his main source of income; rather, it is an investment for himself, and that he is continuing to ensure the profitability increases steadily. In its statement of genuine need for the position, the applicant states that the business’s growth is expected to continue as it has recently signed contracts with internet-based delivery services Delivery Hero, Eat Now, and Menu Log. The Tribunal accepts that the applicant’s business is growing steadily and that there is a genuine need to employ two full-time cooks.
The Tribunal is therefore satisfied that the applicant’s business is continuing to grow and that the applicant has demonstrated a genuine need for it to employ a paid employee to work in the position of Cook under its direct control. Accordingly, the requirements in r.5.19(4)(h)(ii)(B) are met.
Position cannot be filled by an Australian citizen or an Australian permanent resident who is living in the same local area as that place: r.5.19(4)(h)(ii)(C)
At the hearing, Mr Hunjan gave evidence that it has been very difficult to attract qualified cooks to work in the Warragul area, and especially cooks that have specialised knowledge of Indian curry and tandoor cuisines. In its statement of genuine need for the position, the applicant asserts that it is unable to find any replacement locally for the nominee or its other cook. Mr Hunjan gave evidence that the previous owner of the applicant had attempted to fill a vacancy arising by the resignation of two of its cooks by placing an advertisement in the local newspaper in 2015.
The Tribunal has considered the statement prepared by the applicant’s previous director, Mr Mehak Bhupal, located in the Departmental file, stating that the applicant used different methods to try to employ a suitable curry cook, for example by placing advertisements in local newspapers, in online job search portals, and by word of mouth using his own network. Mr Bhupal’s statement outlines that it is ‘very hard’ to find someone who has the necessary experience for this role, and ‘after leaving no stone unturned’, he found the most suitable person in the nominee. The Tribunal accepts that the applicant made a genuine effort to recruit a suitable Australian citizen or permanent resident in the Warragul area to fulfil the role curry cook, and that it was unable to do so.

Based on the evidence provided, the Tribunal is satisfied that the position cannot be filled by an Australian citizen or an Australian permanent resident living in the same local area as the applicant’s business in Warragul.
Tasks to be performed in the position correspond to the tasks of an occupation specified by the Minister in an instrument in writing: r.5.19(4)(h)(ii)(D)
At the time the nomination application was lodged, Instrument IMMI 15/083 was in force. Clause 9 of the Instrument specified that as well as the occupation being listed in Schedule A of the Instrument, “that the tasks to be performed in the position correspond to the tasks of an occupation at the skill level of ANZSCO skill level one, two, or three.”
The original nomination application is for the position of Cook, ANZSCO code 351411, with a skill level of 3. The tasks for the ANZSCO descriptor for a Cook are set out below:
Tasks:
·     examining foodstuffs to ensure quality;
·     regulating temperatures of ovens, grills and other cooking equipment;
·     preparing and cooking food;
·     seasoning food during cooking;
·     portioning food, placing it on plates and adding gravies, sauces and garnishes;
·     storing food in temperature controlled facilities;
·     preparing food to meet special dietary requirements;
·     may plan menus and estimate food requirements; and
·     may train other kitchen staff and apprentices.
The applicant provided the Tribunal with a statement regarding the roles and duties of the Curry Cook (Position Description) as follows:
·     examining foodstuffs to ensure quality;
·     cooking chicken, lamb, beef, goat, rice (plain, saffron, Kashmiri, zira and lemon etc.);
·     biryanis (veg., chicken, lamb);
·     veggie entrees etc.;
·     cutting or peeling vegetables;
·     making sure food on the menu is available;
·     seasoning food;
·     making special dishes for customers with food allergies;
·     developing new recipes;
·     cooking the food as ordered;
·     inspect food preparation and serving areas to ensure observance of safe, sanitary food-handling practices;
·     observe and test foods to determine if they have been cooked sufficiently, using methods such as tasting, smelling, or piercing them with utensils;
·     weigh, measure and mix ingredients according to recipes or personal judgment, using various kitchen utensils and equipment;
·     portion, arrange, and garnish food, and serve food to waiters or patrons;
·     estimate expected food consumption; then requisition or purchase supplies, or procure food from storage; and
·     plan and help setting price menu items.
The Tribunal has considered whether the duties, responsibilities and skills set out in the Position Description correspond to the tasks of a Cook as set out in ANZSCO 351411. While the wording in the Position Description does not mirror the wording in ANZSCO 351411, the Tribunal is satisfied that the tasks expected to be performed by the nominee in the applicant’s business correspond to the tasks of an occupation at ANZSCO Skill Level 3. Accordingly, the requirements of r.5.19(4)(h)(ii)(D) of the Regulations are met.
Regional certifying body advice about certain matters relating to the position: r.5.19(4)(h)(ii)(F)
The Tribunal has considered the Form 1404 Regional Sponsored Migration Scheme – Regional Certifying Body Advice dated 20 July 2015 provided by the applicant, and notes that it was completed by a representative of the Department of Economic Development, Jobs, Transport and Resources (Traralgon). The Tribunal has considered IMMI 17/059 and notes that the Department of Economic Development, Jobs, Transport and Resources (Traralgon) is listed as a Regional Certifying Body (RCB) in Schedule 1 of that instrument, and therefore is satisfied that the Form 1404 has been completed by an approved RCB.
On the basis of the Form 1404 Regional Sponsored Migration Scheme – Regional Certifying Body Advice dated 20 July 2015 provided, the Tribunal is satisfied that the RCB has advised the Minister about the matters set out in r.5.19(4)(e) and r.5.19(4)(h)(ii)(B) and (C) of the Regulations. The RCB stated that:
·     there is a need for a paid employee in the nominated position within the business activities of the nominating employer;
·     the nominated position cannot be filled by an Australian citizen or an Australian permanent resident who is living in the same local area as the nominated position; and
·     the terms and conditions of employment that are applicable to the nominated position will be no less favourable than the terms and conditions that are or would be provided to an Australian citizen or Australian permanent resident for performing equivalent work in the same workplace at the same location.
Consistent with the decision of the Federal Circuit Court of Australia in Bharaj Construction Pty Ltd v MIBP [2016] FCCA 902, certification by a RCB is not sufficient or determinative in relation to whether the nominator meets r.5.19(4)(e), r.5.19(4)(h)(ii)(B) and r.5.19(4)(h)(ii)(C) of the Regulations. Accordingly, the Tribunal notes that, whilst having regard to the advice provided by the RCB, it has reached its own conclusions about the matters the subject of the RCB’s advice.
Having considered the Form 1404 dated 20 July 2015 provided, the Tribunal is satisfied that the requirements of r.5.19(4)(h)(ii)(F) are met by provision of the requisite Form 1404.
Summary
It follows that the Tribunal finds the applicant meets all the requirements of r.5.19(4)(h) of the Regulations.
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.
Mary Sheargold
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
(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).

[2018] AATA 1763

8 May 2018

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Statutory Construction

Procedural Fairness

Jurisdiction