SUNSETS WAGGA PTY LTD (Migration)

[2022] AATA 3119

SUNSETS WAGGA PTY LTD (Migration) [2022] AATA 3119 (2 September 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  SUNSETS WAGGA PTY LTD

REPRESENTATIVE:  Mr Peng Cheng (MARN: 1172863)

CASE NUMBER:  1910860

HOME AFFAIRS REFERENCE(S):          BCC2017/2672405

MEMBER:De-Anne Kelly

DATE:2 September 2022

PLACE OF DECISION:  Brisbane

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

Statement made on 02 September 2022 at 11:45am

CATCHWORDS
MIGRATION – application for approval of nomination of position – direct entry nomination stream – café manager – financial capacity to employ nominee for 2 years – operation profits but debts to ATO and bank – debt reduction and consolidation, and employer’s net equity – nominee’s performance in position and value to employer – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 359AA, 360
Migration Regulations 1994 (Cth), r 5.19(4)(d)(i)

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 Home Affairs on 23 April 2019 to reject the applicant’s application for approval of the nomination of a position in Australia under reg 5.19 of the Migration Regulations 1994 (Cth) (the Regulations).

2. The applicant applied for approval on 27 July 2017. The requirements for the approval of the nomination of a position in Australia are found in reg 5.19 of the Regulations which contains two alternative streams: a Temporary Residence Transition nomination stream (reg 5.19(3)) and a Direct Entry nomination stream (reg 5.19(4)). If the application is made in accordance with reg 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: reg 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.

4. The delegate refused the application on the basis the applicant’s nomination did not satisfy reg 5.19(4)(d)(i) of the Regulations because the application could not demonstrate that had the capacity to carry the cost of employing the nominee as full-time employee over a full financial year as well as pay all the other financial commitments of the business because the business had losses from FY 2016 to FY 2018 totalling $96,636.

5. The applicant appeared before the Tribunal on 29 August 2022 to give evidence and present arguments.

6. The applicant was represented in relation to the review.

7. For the following reasons, the Tribunal has decided to set aside the decision under review and substitute a decision approving the nomination.

8. At the commencement of the hearing, the Tribunal explained that it may put information to the applicant, under s.359AA of the Migration Act 1958 (Cth) (the Act), that would be the reason, or a part of the reason, for affirming the decision that is under review and that it would explain why this information was relevant to the decision and how it may be relied upon in reaching a decision. The Tribunal also advised that the applicant would be given an opportunity to respond to this information in one of three ways: they could request an adjournment and the hearing could be stopped for 15 or 20 minutes or whatever period of time they wished and they could seek advice from the registered migration agent and they could respond in the hearing. Under s.360 of the Act the Tribunal must invite the applicant to a hearing to give evidence and present arguments relating to issues arising in relation to the review and this affords the applicant the opportunity to canvas information before the Tribunal.

9. Section 359AA provides as follows:

   (a)   The Tribunal may orally give to the applicant clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and

   (b)   if the Tribunal does so—the Tribunal must:

   (i)ensure, as far as is reasonably practicable, that the applicant understands why the information is relevant to the review, and the consequences of the information being relied on in affirming the decision that is under review; and

   (ii) orally invite the applicant to comment on or respond to the information; and

   (iii) advise the applicant that he or she may seek additional time to comment on or respond to the information; and

   (iv) if the applicant seeks additional time to comment on or respond to the information—adjourn the review, if the Tribunal considers that the applicant reasonably needs additional time to comment on or respond to the information.

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. 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 reg 5.19(4), which is extracted in the attachment to this decision. For the nomination to be approved, all the requirements must be met.

11. On 27 July 2017, the applicant Sunsets Wagga Pty Ltd trading as Muffin Break Wagga lodged a Regional Sponsored Migration Scheme employer nomination Subclass visa 187 in the Direct Entry Stream for the position of Café Manager (ANZSCO 141111) on $50,000 per annum at Sturt Mall, Wagga Wagga NSW 2650 in favour of Mr Thang Minh BUI.

12. A letter 8 April 2022 advises the following. The sole owner and shareholder is Ms Natalie Prestia who opened the business in 2011 in Wagga Wagga in a shopping centre with 7 days a week trading from 6.30am to 5.30PM Monday to Saturday except Thursday when it closes at 8.00pm and opens 7.30am to 3.30pm Sunday. It seats 55 patrons. The nominee started work in July 2017. Business has improved and they are now in the top 10 of franchisees in Victoria.

13. Ms Prestia advised that she had owned Muffin Break in Wagga Wagga from 2011 and the town had a population of 70,000. She moved from Sydney 1988 and has raised 3 children in the town. It is her only business, and she has no external employment with it being her sole source of income. They only close for 4 days of the year. She oversees the financial side of the business with money coming in and going out and examining how the business ranks against other Victorian franchises. The business means a great deal to her and the staff and the community and they have great rapport amongst community. Working part time has allowed her to work on the business rather than in the business.  They are in the main street of Wagga and are a part of the daily activity on the street.  They sponsor the annual Mardi Gras and march down the street. Ms Prestia was forthright and presented as an honest and transparent professional.

14. Ms Prestia draws a salary from the business, and it is her only source of income as she states.

    “Given the number of years I have now worked for myself, I don’t have any intention or desire to look for another business or work opportunity. I have established routines with running my business and interacting with our staff and customers which I enjoy. I don’t have any desire or intention to work for other businesses or employers, and this would also likely be difficult for me after working for myself for so long. Hence, it is very much my intention to continue my café business into the indefinite future”.

15. Previous manager moved to another business and was not sponsored.

16. A roster from FY 2020 shows Ms Prestia working in the business 8.00am to 5.00pm Monday and Tuesday and 1.00pm to 5.00pm Thursday; 6.30am to 5.00pm Friday and 6.30am to 2.00pm Saturday or full time for the week.  The nominee is shown working full time as well. In 2021 and 2022 Ms Prestia is shown being rostered periodically in the business. Ms Prestia was forthright and transparent in the hearing.

    The application is compliant: reg 5.19(4)(a)

17. 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 an identified person as a paid employee to work in the position under their direct control.

18. 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 27 July 2017 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’.

19. 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.

20. 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.

21. 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 Thang Minh BUI was identified in the nomination application and this indicates there is a need for the position.

22. Accordingly, the requirement in r.5.19(4)(a) is met.

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

23. Regulation 5.19(4)(b) requires that the applicant is actively, lawfully and directly operating a business in Australia.

24. The applicant submitted Profit and Loss from FY 2018 to FY 2021.

25. Accordingly, the requirement in reg 5.19(4)(b) is met.

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

26. 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. 

27. There is no evidence that the business labour hires.

28. Accordingly, the requirement in reg 5.19(4)(c) is met.

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

29. 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. 6 April 2022.

2021	2020	2019	2018
Revenue	768,926	755,403	720,088	596,660
Wages	237,380	193,071	188,463	189,558
Expenses	753,929	482,894	656,968	640,920
Profit/Loss	63,601	102,953	62,120	-    44,260
Superannuation	18,331	7,592
ICC GST	113,965	119,962
Bank loan	81,851	105,556

1. The Tribunal put to the applicant under s359AA of the Act that while the business had shown profits since FY 2019, there was a debt of $113,965 to the ATO on the Integrated Client Account ICC and there was also a bank debt of $81,851 which may indicate that it did not satisfy this regulation.

2. The applicant requested an adjournment for 20 minutes which was granted.

3. Ms Prestia advised that last year she switched her accountant who bargained with the ATO which dropped a significant amount of the penalties and interest which had contributed to the debt. They also paid out the ATO debt by consolidating the debt and also the bank loan into Ms Prestia’s home mortgage. So last year switched accountant and consolidate debt into mortgage bargained with ATO and wiped huge proportion of the debt and put into home loan mortgage. The ATO debt was reduced by $60,000 to $70,000 as these had been accumulated penalties but that been fully repaid now. Ms Prestia has a house worth $980,000 and the mortgage is $400,000 so her equity is very sound and there are no debts on the business now. Ms Prestia is planning to retire in 11 years and the nominee is an important part of being able to plan for that. The Tribunal considers that the applicant has the financial capacity to provide employment for the nominee for at least two years and meet the other financial obligations.

4. The employment contract dated 4 July 2017 states the employment is for two years however it is evident that the employer values the nominee and wishes him to stay should both parties agree.

5. Accordingly, the requirement in reg 5.19(4)(d) is met.

   No less favourable terms and conditions of employment: reg 5.19(4)(e)

6. 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.

7. Payscale shows that a restaurant manager’s salaries range from $49,000 to $72,000 and the nominee is paid $50,000 which is reasonable for the nominated position in the circumstances.

8. Accordingly, the requirements of reg 5.19(4)(e) are met.

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

9. 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 regs 1.13A and 1.13B.

10. The Tribunal has no information before it from the Department that would constitute adverse information and a search of the ASIC website finds no adverse information about the nominator or a person associated with the nominator.

11. Accordingly, the requirements of r.5.19(4)(f) are met.

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

12. 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.

13. The Tribunal can find no unsatisfactory record of compliance for the applicant with the laws of the Commonwealth relating to workplace relations. This was confirmed by the owner at the hearing.

14. Accordingly, the requirements of r.5.19(4)(g) are met.

    Tasks of the position, genuine need for the position and training requirements reg 5.19(4)(h)

15. 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 in a legislative instrument, the occupation is applicable to the proposed employee in accordance with any specifications made in that instrument, there is a genuine need for the nominee to be employed as a paid employee in the position, and certain specified training requirements are met; or

    ·the position and nominator’s business is located in regional Australia, there is a genuine need for the nominee to be employed as a paid employee in the position under the nominator’s direct control, the position 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.

    Position in regional area – r.5.19(4)(h)(ii)(A)

16. The Tribunal needs to determine if the position is in regional Australia. The business is located in Wagga Wagga NSW 2650. 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 therefore 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.

17. Accordingly, r.5.19(4)(h)(ii)(A) is met.

    Genuine need for the position r.5.19(4)(h)(ii)(B).

18. The Tribunal needs to consider if there is a genuine need for the applicant to employ a paid employee to work in the position under the nominator’s control.

19. Ms Prestia advised that the business is open 7 days and she needs a manager as she has 2 children and 4 grandchildren that she cares for part of the week. The nominee manages the operations so it is smooth and effective and the staff are well supervised. The nominee problem solves and undertakes all the tasks outlined. The Tribunal considers that the employer has a genuine need for this position.

20. The Tribunal finds for the reasons above that there is a genuine need for the nominator to employ a person, identified under r.5.19(4)(a)(ii) as a paid employee to work in the position under the nominator’s direct control.

21. Accordingly, r.5.19(4)(h)(ii)(B) is met.

    Cannot be filled. r.5.19(4)(h)(ii)(C)

22. The Tribunal needs to consider if the position cannot be filled by an Australian citizen or permanent resident who is living in the same local area.

23. Ms Prestia advised that they advertised on the Gumtree over many years and for the relevant advertisement there was only one candidate, the nominee.  The Tribunal considers that as a result of the evidence that the position cannot be filled by an Australian citizen or Australian permanent resident who lives in the same local area.

24. Accordingly, r.5.19(4)(h)(ii)(C) is met.

    Tasks of the position correspond to ANZSCO. r.5.19(4)(h)(ii)(D)

25. The Tribunal has carefully considered the evidence and the Position Description provided and finally determined that the tasks of the position generally correspond to the tasks of a position specified by the Minister in an instrument being the position of Restaurant Manager.

26. The tasks were listed as below.

    The ANZSCO tasks are as follows.

    CAFE AND RESTAURANT MANAGERS organise and control the operations of cafes, restaurants and related establishments to provide dining and catering services.

    Tasks Include:

    oplanning menus in consultation with Chefs. “Our menu and specials have been developed by Blake (the nominee) and differ from the other Muffin Break locations”.  May accept that the applicant has a menu and specials that differ from the other Muffin Break locations however it is not plausible that the owner Ms Prestia would not be primarily involved in these important decisions which as she states allows them to perform better and increasing the store ranking in Victoria.

    oplanning and organising special functions.

    oarranging the purchasing and pricing of goods according to budget.

    omaintaining records of stock levels and financial transactions “Blake (the nominee) is responsible for monitoring stock levels and organising for stock and inventory orders as needed. He lets me know when we need to organise for repairs, maintenance, replacement etc”.

    oensuring dining facilities comply with health regulations and are clean, functional and of suitable appearance. “Together, we have followed health and restrictions updates provided by the government. We followed the governments guidelines, with social distancing, capacity limitation, QR-checks, facemasks etc. Blake helped train and supervise the staff to ensure that we were COVID-19 safe, and complaint and he also provided our staff with updates as the pandemic evolved. Due to the health and safety procedures that we implemented, we haven’t had COVID-19 outbreaks within our Café, staff and customers”.

    oconferring with customers to assess their satisfaction with meals and service. Ms Prestia would undertake this role.

    oselecting, training and supervising waiting and kitchen staff. The letter states that “Blake (the nominee) assists me with the final decision in relation to hiring new staff”. “Blake (the nominee) has helped me manage our Café and staff through the unexpected difficulties that we have encountered since mid-2017. Despite all the difficulties and uncertainties during these years, we have managed to turn our Café business around with increasing sales and profitable operating years from 2019 financial year onward (including the current 2022 financial year)”.

    omay take reservations, greet guests and assist in taking orders. Accept that the nominee will undertake this task.

1. Accordingly, r.5.19(4)(h)(ii)(D) is met.

   Occupation applicable to nominee. r.5.19(4)(h)(ii)(DA)

2. The nominee claims to have a Bachelor of Tourism & Hospitality Management from Australia and six years’ experience in the hospitality sector.  The Tribunal finds that the occupation is applicable to the person, identified under subparagraph (a)(ii) in accordance with the specification of the occupation.

3. Accordingly, r.5.19(4)(h)(ii)(DA) is met.

   Business operated at that place. r.5.19(4)(h)(ii)(E)

4. The business of the nominator is located at Wagga Wagga NSW 2650 and is in ‘that place’ that was specified in the employer nomination.

5. Accordingly, r.5.19(4)(h)(ii)(E) is met.

   Regional certifying body r.5.19(4)(h)(ii)(F)

6. Regional Development Australia - Riverina as the regional certifying body RCB specified in the Ministerial instrument on 3August 2017 certified the application as meeting r.5.19(4)(e) and r.5.19(4)(h)(ii)(B) & (C) and has therefore advised the Minister about the matters mentioned in paragraph (e) and sub-subparagraph (B) and (C).

7. Accordingly, r.5.19(4)(h)(ii)(F) is met.

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

8. Based on the findings above, the Tribunal is satisfied that the applicant meets the requirements of reg 5.19 for approval of the nomination of the position in Australia.

   DECISION

9. 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 an identified person, as 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)       all 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;

   (AA)there is a genuine need for the nominator to employ the person identified under subparagraph (a)(ii), as a paid employee, to work in the position under the nominator’s direct control;

   (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 the person identified under subparagraph (a)(ii), as 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).