Sushi Raft Pty Ltd (Migration)

Sushi Raft Pty Ltd (Migration) [2020] AATA 4947 (9 October 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Sushi Raft Pty Ltd
CASE NUMBER:  1822833
HOME AFFAIRS REFERENCE(S):          BCC2016/3854889
MEMBER:Amanda Mendes Da Costa
DATE:9 October 2020
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Statement made on 9 October 2020 at 10.11am

CATCHWORDS
MIGRATION – Employer Nomination – approval of nominated position – Direct Entry nomination stream – Café or Restaurant Manager – financial capacity to maintain employment – business activity statements and company taxation return – nominee’s employment agreement – decision under review set aside
LEGISLATION
Migration Regulations 1994 (Cth), r 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 Home Affairs on 17 July 2018 to reject the applicant’s application for approval of the nomination of a position in Australia under r.5.19 of the Migration Regulations 1994 (the Regulations).
The applicant applied for approval on 16 November 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 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(d)(i) of the Regulations because the delegate was not satisfied that the applicant had demonstrated that it had the financial capacity to employ a person in a full-time basis in the position of Café or Restaurant Manager (ANZSCO 141111) for at least two years.
Ms Su Youn Choi a director of the company appeared for the company before the Tribunal on 16 July 2020 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Sang Yoon Kang (Ms Choi’s business partner) and Mr Yong Joon Seo (Ms Choi’s husband).
The Tribunal exercised its discretion to hold the hearing by telephone. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant, including the inability of the witnesses (who reside in Queensland) to travel to Victoria for the hearing. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.
The applicant was represented in relation to the review by its registered migration agent, who also participated in the hearing.
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.
The Tribunal is satisfied that the application was made on he approved form and was accompanied by the prescribed fee. It is further satisfied that as to the completion of a written certification relating to conduct that contravenes s.245AR(1).
The Tribunal further notes that the nomination application form identifies a need for the applicant to employ a paid employee (the nominee Taehyuk Kim) to work in the nominated occupation of Café or Restaurant Manager ANZSCO 141111, under the applicant’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.
Based on the organisational chart, financial documentation, ASIC records, written submissions and the oral evidence of Ms Choi, Mr Kang and Mr Seo, the Tribunal is satisfied that the applicant is actively and lawfully operating a property development business in Australia and that the applicant directly operates that business.
The Tribunal further notes that during the COVID-19 pandemic the applicant has continued to operate its business – subject to any applicable government restrictions.
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.
Based on the employment contract for the nominee, financial documentation, organisational chart and the oral evidence of Ms Choi, Mr Kang and Mr Seo the Tribunal is satisfied that neither the applicant’s business nor the nominated position is involved in labour hire activities.
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.
The applicant company was registered in March 2014 and opened the first of its two restaurants in February 2015. The first restaurant[1] is located in Trinity Beach and the second (which opened in 2018) is located in Palm Cove, both close to the city of Cairns. Each restaurant seats between 40 to 50 customers and offer both eat-in and takeaway meals. Whilst the first restaurant offers Asian food with an emphasis on Japanese dishes, the menu of the second restaurant concentrates on dumplings. The first restaurant is located close to the campus of the James Cook University and many of the customers are university students and staff. Until the Covid-19 pandemic the majority of the customers of each restaurant were eat-in diners. However, the government restrictions imposed in response to the pandemic have resulted in the majority of the meals prepared in each restaurant being served on a takeaway basis. With the lessening of government restrictions, the business will resume eat-in dining.
[1] The nominee is currently employed at this restaurant and the applicant proposes she will be employed there if the nomination application is approved.
The financial statement for the year ending 30 June 2019 indicates that the applicant’s trading income for that year as $917,06790 whilst the trading income for the 2018 financial year was $579,434.78. The gross profit from trading for the 2019 financial year was $620,466.72 and $378,169.65 for the 2018 financial year. The figure for wages in the 2019 financial year was $284,371.36, whilst it was $251,968.61 for the previous year. In the 2019 financial year the applicant made a profit of $21,493,11 whilst in the 2018 financial year the applicant made a loss of $182,873.07.
The Tribunal is satisfied that the financial information provided in the business activity statements and company taxation return, and the oral evidence of the witnesses is consistent with that provided in the financial statement.
The letter by the applicant’s accountant[2] dated 6 June 2019 states that in the 2018 financial year, the applicant made total sales of $589,43.00 and a loss of $182,873.00. This is explained by the opening of the second restaurant in March 2018. In the opinion of these accountants, the business is financially able to cover the loss and hire new workers.
[2] M Plus Accounting.
The Tribunal has also considered the nominee’s employment (on a full-time basis) in the nominated position for the past three years and the evidence of Ms Choi, that the applicant intends to employ the nominee on a long-term basis, if the nomination application is approved.
On the basis of the above information, the Tribunal is satisfied that the financial losses made by the business were associated with the establishment of its second restaurant and that the business made a profit in the following year. The Tribunal is further satisfied that the two restaurants have remained open throughout the Covid-19 restrictions and that the applicant has the financial capacity to employ nominee in the nominated position for at least two years.
The Tribunal is satisfied from the up-dated employment agreement for the nominee (dated 4 September 2020) and the oral evidence of Ms Choi, Mr Kang and Mr Seo that the nominee has been offered full-time employment on a permanent basis for a period of two years in the role of Café or Restaurant Manager. The terms of the employment agreement do not expressly exclude an extension beyond two years and the Tribunal is further satisfied that the agreement has not been cancelled.
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 applicant has considered the terms and conditions of employment contained in the employment agreement for the applicant, including the proposed annual salary of $60,000.00 (exclusive of superannuation).
The Tribunal has consulted the Payscale.gov.au website which indicates that salary range for a Café or Restaurant Manager is between $43,000.00 and $65,000.00 annually with a medium annual salary of $52,826.00.
The Tribunal has also considered that the terms and conditions of the nominee’s proposed employment comply with the National Employment Standards.
Accordingly, the Tribunal is satisfied that the terms and conditions applicable to the nominated position will be 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 and 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 which suggests that there is any adverse information known to the Department about the applicant or a person associated with the applicant. Ms Choi told the Tribunal that there was no adverse information about the company, or anyone associated with it.
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 suggests that the applicant has an unsatisfactory record of compliance 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. Ms Choi told the Tribunal that the company had fulfilled its responsibilities relating to its duties and obligations in the workplace and had complied with its legal obligations.
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 in the relevant legislative instrument[3], 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.
[3] IMMI 17/058
The applicant’s business is based in Cairns area in northern Queensland, which is located in regional Australia[4].
[4] IMMI 16/045
The Tribunal has considered the organisation chart for the applicant which shows that the Trinity Beach restaurant (where the nominee is currently employed and the applicant proposes she will be working if the nomination application is approved), has five staff - a chef, cook, kitchen hand, restaurant manager and wait staff. In her oral evidence, Ms Choi told the Tribunal that prior to the COVID-19 pandemic the restaurant had one full-time and two part-time wait staff. The business has been affected by the restrictions imposed by the Queensland government on the operation of businesses due to the pandemic and has not employed wait staff for the same number of hours as before. However, both the Trinity Beach and Palm Cove restaurants have continued to operate throughout the period of the pandemic and the nominee has continued to work on a full-time basis in the Trinity Beach restaurant.
The Tribunal notes that the applicant provided the Department with a copy of an advertisement for the nominated position, uploaded to the Josbsearch.gov.au website in October 2016. The Tribunal also notes that the applicant provided a letter to the Department dated 20 October 2016 setting out its attempts to recruit an employee for the nominated position. The Tribunal is satisfied form this document and the evidence of Ms Choi that none of the four candidates held the relevant qualifications or managerial experience for the position.
Ms Choi explained that despite the applicant’s attempts to recruit an Australian citizen or permanent resident to work in the nominated position (including the Jobsearch advertisement), it had been unable to do so.
In her oral evidence, Mrs Choi explained that it was difficult to recruit and retain skilled staff, to work in the Cairns area which is a small community. Although the business was able to recruit staff to work in both restaurants, they were often not prepared to commit to long-term employment in a regional location.
Based on the organisational chart, position description, the nature of the applicant’s business and the oral evidence of the witnesses, the Tribunal is satisfied that the nominated position cannot be filled by a locally resident Australian citizen or permanent resident.
The nominated occupation is described in the ANZSCO dictionary as one involving the organisation and control of the operations of a café or restaurant or related establishment to provide dining and catering services. The tasks of a Café or Restaurant Manager (as set out in the ANZSCO dictionary) include the following:
·Planning menus in consultation with chefs.
·Planning and organising special functions.
·Arranging the purchasing and pricing of goods according to budget.
·Maintaining records of stock levels and financial transactions.
·Ensuring dining facilities comply with health regulations and are clean, functional and of suitable appearance.
·Conferring with customers to assess their satisfaction with meals and service.
·Selecting, training and supervising waiting and kitchen staff.
·May take reservations, greet guests and assist in taking orders.
In the position description provided by the applicant, the proposed duties of the nominee include the following:
·Recruiting, coaching, scheduling and disciplining employees.
·Planning menus by consulting with chefs, estimating food costs and profits and adjusting menus.
·Handling customer enquiries and complaints.
·Taking reservations.
·Handling administration and paperwork.
·Preparing bills for cash and credit payments, moving and splitting tables and management of back of house operations.
·Maintaining a safe, secure and healthy environment by establishing and following sanitisation standards and procedures and complying with legal regulations.
·Keeping records of stock levels and purchases.
·Ensuring that all dining facilities comply with health regulations and are well presented.
Based on the position description, employment contract and the oral evidence of Ms Choi, Mr Kang and Mr Seo, the Tribunal is satisfied that the tasks to be performed by the nominee are commensurate with the tasks set out in the ANZSCO dictionary.
The Tribunal notes that the applicant has provided advice from a Regional Certifying Body (The Chamber of Commerce and Industry, Queensland) dated 24 October 2016 advising the Minister about matters relating to the position. The Tribunal accepts the matters contained in this advice.
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.
Amanda Mendes Da Costa
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).

[2020] AATA 4947

9 October 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Statutory Construction

Procedural Fairness

Remedies