Surya Enterprises (Gold Coast) Pty Ltd (Migration)

Surya Enterprises (Gold Coast) Pty Ltd (Migration) [2018] AATA 1802 (1 May 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Surya Enterprises (Gold Coast) Pty Ltd
CASE NUMBER:  1725657
DIBP REFERENCE(S):  BCC2016/1540772
MEMBER:Warren Stooke AM
DATE:1 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 01 May 2018 at 1:48pm

CATCHWORDS
Migration – Business sponsor – Nomination approval – Regional business – Difficulty in recruiting suitable candidates – Financial capacity to support the engagement of a cook – Offering favourable employment conditions – Terms of employment that will exceed 2 years – Decision under review set aside
LEGISLATION,
Migration Act 1958 s 245AR
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 6 October 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 24 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 two alternative streams: a Temporary Residence Transition nomination (r.5.19(3)) stream and a Direct Entry nomination (r.5.19(4)) stream. If the application is made in accordance with r.5.19(2) and meets the requirements of either stream, then the application must be approved. If any of the requirements are not met then the application must be refused: r.5.19(5).
In this case, the applicant has applied for approval of a nomination, seeking to satisfy the criteria in the Direct Entry Nomination stream for the position of Cook at the Phillip Island Chocolate Factory operated by Surya Enterprises (Gold Coast) Pty Ltd.
The delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19(4)(a) of the Regulations because the applicant had not shown evidence of domestic recruitment efforts and that there was minimum information to demonstrate the need for the employee to work in the nominated position.
The applicant appeared before the Tribunal on 19 April 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant and owner of the business, Mr Kondanapanny; the nominee Mr. Appuhamilage; and Mr. Peter Francis, Bass Coast – Manager for Economic Development and Tourism.
The applicant was represented in relation to the review by its registered migration agent. The representative attended the Tribunal hearing.
The Tribunal, as background to the hearing, reviewed in general, the observations and commentary made by the delegate in the decision, noting that the hearing as presently constituted provided a fresh review of the matter and that the Tribunal was not bound by the determination of the delegate. In this regard, the applicant provided a copy of the decision to the Tribunal as part of the application, which was confirmed by the applicant.
At the commencement of the hearing the Tribunal confirmed that the applicant had read the delegate’s decision of 6 October 2017 and that he understood the content of the decision.
The applicant provided the Tribunal with an explanation, as to his understanding for the refusal of the visa application by the delegate and acknowledged that the reason was that the delegate had found that the business did not require the appointment of a cook. The applicant confirmed to the Tribunal that he disagreed with the delegate’s decision.
The applicant provided the Tribunal, in evidence, with an outline of the business, which included the following basic information:
a.    The chocolate factory manufactures chocolate and it also operates a restaurant for the visitors, given that the factory is remote from alternative food outlets. The provision of in-house food services, at lunch-time, enables people to enjoy the amenity of the factory for longer than would be otherwise possible, if food could not be sourced;
b.    The factory introduced curries, which has proved to be very popular with the patrons, having operated the business since 2005;
c.    The business has grown to support a gross turnover of $600,000 per annum and that in the absence of an ability to provide meals the business is likely to suffer a reduced gross income of $200,000;
d.    The owner has renovated the facilities and the business is now attracting 185,000 tourists per annum and is one of the key tourist attractions on Phillip Island;
e.    The owner has previously endeavoured to hire competent cooks however the experience has been that it is difficult to prepare authentic curries given the need for specific knowledge. The nominee in this respect is originally from Sri Lanka and understands the cuisine;
f.   The business used to provide dinners; however, this service has been stopped because of not being able to secure an additional competent cook, which is proving to be difficult. In this regard, the business currently has a need for a second cook and has not been able to fill the position. As such, the owner has to periodically relieve in this area;
g.    To be able to service both lunch and dinners on the opening days, the business would require three cooks, which would enable relief and 7 day roster coverage;
h.    Several of the Australian applicants for the position did not turn-up for interview, did not have appropriate qualifications or could only cook fish and chips;
i.   The nominee has qualifications as a cook together with a Diploma and is well qualified and experienced;
j.   The owner is over 64 years old and has health issues and cannot continue to work in this area , as well as manage the business;
k.     The business has 30 employees and the opening hours are from 9.30am to 6.00pm for seven days of the week;
l.   If the business was able to secure the nominee and another cook, the opening hours could be extended to 10.00 pm and dinners could be provided;
m.   The incumbent nominee currently works 38 hours per week and is paid a wage of $21.78 per hour;
n.    The owner initially had a bank loan of $4.5m and currently pays $55,000 per month to reduce the loan, which has a current outstanding balance of $1.5m. As such, the owner has $3.0m equity in the business and the business has been recently valued at $5.5m. It is also conceivable that the market value is in the vicinity of $10m, which, in this case, would mean the owner has $7.0m equity.
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.
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 material on the Department file, the Tribunal is satisfied that the application was made on the approved form and accompanied by the prescribed fee. It is further satisfied that the applicant identified the need to employ a paid employee in the nominated position of Web Administrator/Director (Australian and New Zealand Standard Classification of Occupation) (ANZSCO) code 351411, a position specified as being 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 Tribunal is satisfied from the material on the Tribunal’s file that the applicant’s business was incorporated on 8 August 2000 (ACN 092 742 482) and commenced trading. The Tribunal is satisfied from the above information that the applicant is directly, actively and lawfully operating a business in Australia; which is specifically the Phillip Island Chocolate Factory.
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 Tribunal is satisfied from the evidence before it that the applicant’s business activities do not include labour hire to an unrelated business (or businesses).
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 is satisfied that the contract of employment signed on 1 January 2016 provides for a market competitive wages and conditions and ongoing terms of employment, which will exceed two years.
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 remuneration contained in the contract of employment and general terms of employment meet and/or exceed the terms of the relevant award, being the Hospitality Industry Award 2010.
The proposed pay scale is not inconsistent with the market rate for the position of cook, as prescribed in the underpinning award.
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.
The Tribunal has reviewed the Department’s records, including its Integrated Client Services Environment (ICSE) and has found nothing to indicate that there is any adverse information known to Immigration about the nominator or 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)
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 in the Department’s records, or otherwise before the Tribunal, suggesting that the applicant does not have a satisfactory record of compliance with Commonwealth and Victorian laws relating to workplace relations.
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 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 18/043), 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 Specification of Occupations for subclass 187 visas includes at Item 330 for Regional Employment, the position of cook. The ANZSCO descriptor is as follows:
“UNIT GROUP 3514 COOKS

COOKS prepare, season and cook food in dining and catering establishments.
Chefs, Fast Food Cooks and Kitchenhands are excluded from this unit group. Chefs are included in Unit Group 3513 Chefs. Fast Food Cooks and Kitchenhands are included in Minor Group 851 Food Preparation Assistants.
Indicative Skill Level:
Most occupations in this unit group have a level of skill commensurate with the qualifications and experience outlined below.
In Australia:
AQF Certificate III including at least two years of on-the-job training, or AQF Certificate IV (ANZSCO Skill Level 3)

In New Zealand:
NZ Register Level 4 qualification (ANZSCO Skill Level 3)

At least three years of relevant experience may substitute for the formal qualifications listed above. In some instances relevant experience and/or on-the-job training may be required in addition to the formal qualification.
Tasks Include:
oexamining foodstuffs to ensure quality
oregulating temperatures of ovens, grills and other cooking equipment
opreparing and cooking food
oseasoning food during cooking
oportioning food, placing it on plates, and adding gravies, sauces and garnishes
ostoring food in temperature controlled facilities
opreparing food to meet special dietary requirements
omay plan menus and estimate food requirements
omay train other kitchen staff and apprentices
Occupation:
351411 Cook

351411 COOK

Prepares, seasons and cooks food in a dining or catering establishment.
Skill Level: 3”
The applicant provided evidence of the scope of duties undertaken by the incumbent in the nominated position, which includes the application of the nominee’s skills and competencies obtained through studies in Commercial Cookery, at the Certificate IV level and at the level of Diploma in Hospitality, together with formal on-the-job experience of seven years. This was supported by formal evidence from the nominee, who confirmed his qualifications, experience and described his duties in preparing for the lunchtime meals, including the pre-preparation work and that his preparation will support up to 180 meals in a lunch time session. The incumbent will be under the direct control of the nominator.
Further, the nominee gave evidence that he works 5 days per week between the hours of 9.30 am and 5.30 pm. His duties also include health and hygiene with the cleaning of the kitchen after each meal preparation period. Accordingly, the Tribunal is satisfied that the nominee has the appropriate skills and competencies to fulfil the requirements of ANZSCO 351411 and the attendant tasks. Further, the magnitude of the scope of work was confirmed by the applicant with a summary of a typical day’s takings between 1 July 2016 and 30 June 2017, identifying the meal preparations [Folio 42-43]. This data demonstrated that 15,869 meals were prepared in this one year period for consumption.
The nominee has been provided with an employment contract as a full-time employee and there is an ongoing commitment from the nominator to extend the contract beyond two years, particularly given the difficulty in recruiting suitable candidates for the position in the regional area of the Bass Coast. This was the subject of correspondence with the Bass Coast Council, Mr. Peter Francis on 17 October 2017, where the owner alerted the council to difficulties with staffing, with the engagement of a cook [Folio 35].
The submissions provided by the applicant confirmed that the net profit for the period 1 July 2016 and 30 June 2017 was $459,460.96, which demonstrated a financial capacity to support the engagement of a cook for the near future [Folio 41].
The applicant provided the Tribunal with material supporting the extent of Labour Market Testing to support the employment of the nominee. As such, the Tribunal is satisfied with the rigor of the process and the intent was focussed upon securing the most suitable candidate [Folio 98-131]. This data includes relevant Payscale analysis and job advertising media. The nominee is paid a salary of $41,000 per annum plus superannuation of 9.5%.
The Tribunal is also satisfied that the evidence contained in the DIBP file includes a RSMS Certificate confirming the regional status of the business and the need for the position of cook.
The owner of the business gave evidence regarding the organisational structure and submitted a detailed business plan, which indicated an expansion of the business into the future.
The Tribunal was also provided with oral evidence from Mr. Peter Francis, the Bass Coast – Manager for Economic Development and Tourism, who stated that he had known the nominator (business owner) since 2007 and that he had written to Mr. Kondanapanny on 20 October 2018. He stressed that the Phillip Island Chocolate Factory is a significant regional attraction for tourism and the only attraction that is not effected by seasonal conditions. He described the applicant as a “reliable and good operator” and that the operation was a serious part of Phillip Island’s tourism.
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.
Warren Stooke AM
Member
ATTACHMENT - EXTRACTS FROM THE MIGRATION REGULATIONS 1994
5.19Approval of nominated positions (employer nomination)
…
(2)The application must:
(a)be made in accordance with approved form 1395…; and
(aa) include a written certification by the nominator stating whether or not the nominator has engaged in conduct, in relation to the nomination, that constitutes a contravention of subsection 245AR(1) of the Act; and
(b)be accompanied by the fee mentioned in regulation 5.37.
…
Direct Entry nomination
(4)The Minister must, in writing, approve a nomination if:
(a)the application for approval:
(i)     is made in accordance with subregulation (2); and
(ii)     identifies a need for the nominator to employ a paid employee to work in the position under the nominator’s direct control; and
(b)the nominator:
(i)     is actively and lawfully operating a business in Australia; and
(ii)     directly operates the business; and
(c)for a nominator whose business activities include activities relating to the hiring of labour to other unrelated businesses — the position is within the business activities of the nominator and not for hire to other unrelated businesses; and
(d)both of the following apply:
(i)     the employee will be employed on a full-time basis in the position for at least 2 years;
(ii)     the terms and conditions of the employee’s employment will not include an express exclusion of the possibility of extending the period of employment; and
(e)the terms and conditions of employment applicable to the position will be no less favourable than the terms and conditions that:
(i)     are provided; or
(ii)     would be provided;
to an Australian citizen or an Australian permanent resident for performing equivalent work in the same workplace at the same location; and
(f)either:
(i)     there is no adverse information known to Immigration about the nominator or a person associated with the nominator; or
(ii)     it is reasonable to disregard any adverse information known to Immigration about the nominator or a person associated with the nominator; and
(g)the nominator has a satisfactory record of compliance with the laws of the Commonwealth, and of each State or Territory in which the applicant operates a business and employs employees in the business, relating to workplace relations; and
(h)either:
(i)     both of the following apply:
(A)the tasks to be performed in the position will be performed in Australia and correspond to the tasks of an occupation specified by the Minister in an instrument in writing for this sub-subparagraph;
(AAA)the occupation is applicable to the person identified under subparagraph (a)(ii) in accordance with the specification of the occupation;
(B)either:
(I)the nominator’s business has operated for at least 12 months, and the nominator meets the requirements for the training of Australian citizens and Australian permanent residents that are specified by the Minister in an instrument in writing for this sub-sub-subparagraph; or
(II)the nominator’s business has operated for less than 12 months, and the nominator has an auditable plan for meeting the requirements specified in the instrument mentioned in sub-sub-subparagraph (I); or
(ii)     all of the following apply:
(A)the position is located in regional Australia;
(B)there is a genuine need for the nominator to employ a paid employee to work in the position under the nominator’s direct control;
(C)the position cannot be filled by an Australian citizen or an Australian permanent resident who is living in the same local area as that place;
(D)the tasks to be performed in the position correspond to the tasks of an occupation specified by the Minister in an instrument in writing for this sub-subparagraph;
(DA)the occupation is applicable to the person identified under subparagraph (a)(ii) in accordance with the specification of the occupation;
(E)the business operated by the nominator is located at that place;
(F)a body that is:
(I)specified by the Minister in an instrument in writing for this sub-subparagraph; and
(II)located in the same State or Territory as the location of the position;
has advised the Minister about the matters mentioned in paragraph (e) and sub-subparagraphs (B) and (C).

[2018] AATA 1802

1 May 2018

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Statutory Construction

Procedural Fairness

Jurisdiction