TANDOORI VILLA PTY LTD (Migration)

[2017] AATA 2253

TANDOORI VILLA PTY LTD (Migration) [2017] AATA 2253 (30 October 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  TANDOORI VILLA PTY LTD

CASE NUMBER:  1617377

DIBP REFERENCE(S):  BCC2015/4019463

MEMBER:Stavros Georgiadis

DATE OF ORAL DECISION:  30 October 2017

TIME OF ORAL DECISION:  (1:31 PM - SA time)

PLACE OF DECISION:  Adelaide

DECISION:The Tribunal affirms the decision under review to refuse the nomination.

Statement made on 30 October 2017 at 5:30pm

CATCHWORDS

Migration – Nomination – Employer Nomination Scheme (ENS) – Direct Entry Nomination stream –Café or Restaurant Manager – Training benchmarks requirement not met

LEGISLATION

Migration Act 1958, ss 140GB, 245AR

Migration Regulations 1994, rr2.59, 5.19

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 Immigration on 13 October 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).

2. The applicant applied for approval on 23 December 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).

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 that the applicant’s nomination did not satisfy r.5.19(h) of the Regulations. The delegate considered the tasks of the nominated occupation did not match those of a Café or Restaurant Manager listed in ANZSCO 141111 (r.5.19(h)(ii)); and because the Training Benchmarks A or B were not met (r.5.19(h)(i)).

5. The applicant, Mr Harjinder Singh, Director TANDOORI VILLA PTY LTD, appeared before the Tribunal on 30 October 2017 to give evidence and present arguments. The Tribunal also received oral evidence from Mrs Mohita Sharma who is the nominee for the position in the applicant’s business and her husband, Mr Varinder Singh. The matter was a combined hearing with the related case number 1620628 regarding the visa applicants.

6. The applicant was represented in relation to the review by its registered migration agent.

7. For the following reasons, the Tribunal decided to affirm the decision under review to refuse the nomination.  The decision outcome was given orally at the end of the hearing at 1:31 pm on the day of hearing. 

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. 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.

   Tasks of the position genuine need for the position and training benchmarks r.5.19(4)(h)

9. Regulation5.19(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:

   ·    the tasks to be performed in the position will be performed in Australia and correspond to those of an occupation specified by the Minister under a relevant legislative instrument set out in the Register of Instruments: Business Visas, and certain specified training benchmarks will be 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 at the ANZCO skill level 1, 2 or 3; and that a regional certifying body has advised the Minister about certain matters relating to the position.

10. The Tribunal finds from the evidence before it provided by the applicant that the applicant’s company has been operating for more than 12 months at the time of this decision. The Tribunal accepts from the description of the tasks provided by the applicant and the nominee, Mrs Sharma, that the tasks will mainly be performed in regional Australia in Stirling South Australia, and generally correspond to the tasks of an occupation specified in ANZSCO 141111 for Café or Restaurant Manager.

11. The Tribunal has considered whether the nominator either:

    ·     meets the training requirements specified in the relevant instrument IMMI (in the circumstances where the business has operated for over 12 months), noting that the requirement for an auditable plan for meeting the training requirements is not applicable in this case as the business has not operated for less than 12 months);

    OR

    ·whether all of the following apply:

    ·the position and business is located in ‘regional Australia’ (see  Register of Instruments - Business visas’ - here all of the State of South Australia);

    ·there is a genuine need 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 permanent resident who is living in the same local area;

    ·the tasks to be performed in the position correspond to those at ANZSCO skill level 1, 2 or 3;

    ·a Regional Certifying Body (see ‘RegAustpost010712’ tab in ‘Register of Instruments – Business visas’) located in the same State or Territory as the position has advised the Minister about the matters in r.5.19(4)(e) and r.5.19(4)(h)(ii)(B) & (C).

12. The relevant instrument IMMI 13/030 specifies for the purposes of paragraphs 2.59(d) and 2.68(e) and sub-paragraph 5.19(4)(h)(i)(B)(I) of the Regulations that the benchmarks for the training of Australian citizens and Australian permanent residents are those listed at Schedule A to that instrument.  Schedule A sets out that the business is required to show that the training that has been, and continues to be, provided to employees who are Australian citizens and Australian permanent residents is related to the purpose of the business. Further, the training benchmarks for an established business are:

    A)  Recent expenditure, by the business, to the equivalent of at least 2% of the payroll of the business, in payments allocated to an Industry Training Fund that operates in the same industry as the business.

    OR

    B)  Recent expenditure, by the business, to the equivalent of at least 1% of the payroll of the business, in the provision of training to employees of the business.

13. There is nothing before the Tribunal to suggest that any payments for training by the business relate to alternative (A) ‘payments allocated to an Industry Training Fund that operates in the same industry as the business’ in the material years.  The applicant’s evidence is that a contribution to an Industry Training Fund was made only prior to the present application in respect of an (unrelated) Subclass 457 application lodged before 2015.

14. In respect of alternative (B), the Tribunal accepts from the financial records provided for the 2015/16 and 2016/17 financial years, that expenditure does not meet the requirement of at least 1% of the payroll of the business, in the provision of training to employees of the business.

15. The applicant’s submission is that the requirements under 5.19(4)(h)(i) do not apply, in any case, as the application relates to a Direct Entry nomination and is not made under an Employer Nomination Scheme noted by the delegate. The Tribunal has therefore, proceeded to consider the aforementioned five sub criteria required under r.5.19(4)(h)(ii).

16. In respect of r.5.19(4)(h)(ii), one of the criteria to be satisfied is that the position cannot be filled by an Australian citizen or permanent resident who is living in the same local area as that place - (r.5.19(4)(h)(ii)(C)).

17. The Tribunal accepts the evidence that the nominated position is located in regional Australia, in Stirling metropolitan Adelaide, South Australia and that it names Mr Mohita Sharma as the nominee for the occupation of Café or Restaurant Manager (ANZSCO 141111). 

18. The Tribunal raised at the hearing the issue of whether the applicant could demonstrate that the position cannot be filled by an Australian citizen or permanent resident who is living in the same local area as that place.  The applicant’s response was that a search for a suitable applicant over one month conducted in November 2015 yielded no Australian citizen or permanent resident job seeker who had sufficient qualifications, skills and experience to be suitable for the nominated role.

19. Mrs Sharma commenced work with the applicant in 2013 as a casual employee.  She was engaged full-time from December 2014.  She has been undertaking a management role full-time although she took eight weeks leave to visit her mother in India from 21 February 2017 to 18 April 2017.  Six weeks of that leave was unpaid leave.  Mrs Sharma told the Tribunal that she was required by her employer to take leave without pay.  Her earnings for that year are reflected in the 2016/17 PAYG Payment Summary showing reduced earnings of $47,916 for that financial year.  The applicant confirmed to the Tribunal that the nominee’s full time salary is $53,900 plus superannuation at 9.5% and denied any breaches under Australia’s industrial relations laws.

20. Although the applicant has not provided the Tribunal with a copy of any of the job advertisements, the Tribunal accepts the oral evidence that the job advertisements for the nominated position were made on Jobseeker.com and in the local Stirling newspaper The Herald over one month in November 2015.  The Tribunal accepts the applicant’s oral evidence given at the hearing that there were nine responses from prospective job seekers who, according to the applicant’s initial response, were assessed on ‘29 and 30 November 2015 or early December 2016’ and found not to be suitable.  The Tribunal accepts this evidence given initially in preference to subsequent evidence of an earlier date of assessment provided once the applicant realised the adverse nature of his earlier evidence.

21. The Tribunal has had regard to the signed Employment Contract between the applicant and Mohita Sharma.  The Tribunal finds this contract was executed by the signatures of both parties on 11 November 2015 noting that at that time, Mr Amanpreet Singh who signed the contract, was the Director of the applicant’s company, as Mr Harjinder Singh was not appointed Director until approximately September 2016.  The Tribunal finds that the contract of 11 November 2015 predates the end of the period of one month’s advertising (to end November 2015) and the applicant’s search for a suitable person to fill the role of Café or Restaurant Manager. The Tribunal notes the applicant’s submission that the nominee’s commencement date is for 2 or more years from the ‘date of Visa grant’, but finds this is a condition subsequent to the formation of the contract, which came into effect from 11 November 2015.

22. The Tribunal is not persuaded, in the above circumstances, that the applicant has established that the position cannot be filled by an Australian citizen or permanent resident who is living in the same local area as that place - as required under r.5.19(4)(h)(ii)(C). The Tribunal considers that the nominated position had already been committed to Mrs Sharma before the advertising for the role had been completed at the end of November 2015 and certainly before the assessment was made in respect of the aforementioned nine prospective job seekers on ‘29 and 30 November 2015 or early December 2016’.

23. The Tribunal therefore, finds the requirements of r.5.19(4)(h)(ii) are not met.

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

24. 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. 

25. The Tribunal notes the aforementioned contract of 11 November 2015 setting out that the nominee’s commencement date is for at least 2 years from the ‘date of Visa grant’.  The Tribunal accepts that an extension beyond 2 years employment is not expressly excluded.

26. The Tribunal has had regard to the applicant’s financial records for the 2015/16 and 2016/17 financial years.  The applicant told the Tribunal that these financial records were prepared by the applicant’s accountants, Holistic Business Developers, and have been lodged with the Australian Taxation Office.  The Tribunal notes that for these past two most recent financial years, that applicant’s business has been unprofitable with $28,089 loss after all expenses in 2016 and $20,873 in 2017.  The applicant has added back $7,894 from renovation materials sold in 2017 but still ended up with a substantial net loss of $12,979 in 2017.  The Tribunal does not accept that depreciation and the Directors’ (net) wages can be added back in to the financial accounts to purportedly improve the company’s financial picture as these are expenses already accounted for in ‘wages and salaries’ and ‘depreciation’ costs respectively. 

27. The Tribunal notes the unprofitable position of the applicant’s company for the two most recent full financial years and considered the applicant could not afford to employ the nominee in the nominated position for at least 2 years full time.  In response to the financial net loss position, the applicant told the Tribunal that there were one-off expenses relating to fit out costs and renovations and that a change in menu items with increased prices will now allow an extra $52,000 profit ($1,000 per week) for the current year.  The Tribunal notes the applicant has been in business since 2013 and is not persuaded that the loss making position has turned around in circumstances of sustained consecutive year losses and with no other financial documentation to establish any substantial improvement to the applicant’s financial position.

28. The Tribunal is not satisfied that the applicant will be able to employ the nominee in the nominated position from the time of visa grant for at least 2 years full time.

29. Accordingly, the requirement in r.5.19(4)(d) is not met.

30. For the above reasons the Tribunal is not satisfied that the applicant meets the requirements of r.5.19(4). The applicant has not sought to satisfy the criteria in the Temporary Residence Transition Nomination stream, and as such has not met the requirements in r.5.19(3). Accordingly, the nomination of the position cannot be approved. Therefore, the Tribunal must affirm the decision under review.

    DECISION

31. The Tribunal affirms the decision under review to refuse the nomination.

    Stavros Georgiadis
    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).