Tejal Dhanian Pty Ltd (Migration)

Tejal Dhanian Pty Ltd (Migration) [2019] AATA 3534 (14 June 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Tejal Dhanian Pty Ltd
CASE NUMBER:  1711242
DIBP REFERENCE(S):  BCC2016/1749341
MEMBER:Peter Emmerton
DATE:14 June 2019
PLACE OF DECISION:  Adelaide
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Statement made on 14 June 2019 at 11:44am

CATCHWORDS
MIGRATION – Nomination – Direct Entry Nomination stream – genuine position – RCB provided – business growth – genuine need – evidence provided upon review – 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 Immigration on 10 May 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 16 May 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.
The delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.194(4)(a)(ii) of the Regulations because they were not satisfied that the nominator had demonstrated the need for a paid employee to work in the position under the direct control of the nominator.
The applicant was represented in relation to the review by its’ registered migration agent.
For the following reasons, the Tribunal has decided to set aside the decision under review and substitute a decision approving the nomination.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant meets the requirements for approval of the nomination under the Direct Entry nomination stream set out in r.5.19(4), which is extracted in the attachment to this decision. For the nomination to be approved, all the requirements must be met.
In determining the applicant’s claims the Tribunal must first make findings of fact on material matters in dispute. This may involve an assessment of credibility and in so doing, the Tribunal is aware of the need and importance of being sensitive to the circumstances and the difficulties applicants often face before the Tribunal in their particular circumstances.
The applicants rely on the evidence given before the Tribunal together with written submissions and supporting evidence provided to the Tribunal and previously to the department.
The nominating entity runs a substantial, 80 seat restaurant in suburban Perth, Western Australia. It operates as a dine-in facility for lunch and dinner 7 days per week, has a take-away facility and in addition provides a home delivery service for its meals.
The visa applicant’s responsibilities, qualifications, experience and attributes, clearly align with the duties associated with a Café or Restaurant Manager, ANZSCO 141111. This was supported with References from the owner, Qualification certification and the visa applicants Resume’.
The Tribunal is cognisant of the challenges associated with recruiting and retaining suitably qualified and experienced staff working in the hospitality sector.
The Tribunal received from the nominator, substantial evidence of the salary research, recruitment processes and associated advertising in a range of media, in support of their recruitment for the position and their subsequent wage determination. The Tribunal also notes the 2-year employment contract with the provision for extension. The nominated salary package was $55,000 plus 9.5% Superannuation, as of 28 April 2016. This appears to align with remuneration for similar roles at this level of experience. The Tribunal notes an additional $5,000 performance bonus was paid at the end of FY 2018, in recognition of the visa applicant’s high level of service and dedication to the business.
The Tribunal perused popular employment web sites in order to ascertain the current state of the market in this field. The Tribunal observed a substantial number of related vacancies, in a wide variety of locations and organisations currently under recruitment. The Tribunal is cognisant that many of the observed positions may appear to be equally or more attractive environments to some candidates than the nominated position in Perth due to its relatively isolated location on the far western edge of the continent.
The Tribunal notes that a ‘Satisfied’ RCB Certificate has been issued by the relevant certifying body. The date of the certificate is 24 May 2016.
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 finds that the application was lodged electronically using the elodgement facility. The nomination was made under the RSMS Direct Entry stream (r.5.19(4)(h)(ii)) and consequently no fee is payable. The Tribunal finds the applicant meets r.5.19(2).
The Tribunal notes that the delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.194(4)(a)(ii) of the Regulations because they were not satisfied that the nominator had demonstrated the need for a paid employee to work in the position under the direct control of the nominator. The Tribunal has formed a different view, in part as a result of the additional materials supplied to it which were not provided to the delegate in the original application.
The Tribunal notes from the current Organisation Chart and company web site that a very modest staffing structure is in place and the owner of the business is a full time chef within the business. It is in the Tribunal’s experience not possible to both run the kitchen and manage the front of house operations. Again the Tribunal notes the extensive operating hours and the fact that the restaurant operates as a dine-in facility for lunch and dinner 7 days per week, has a take-away facility and in addition provides a home delivery service for its meals. The demonstrated relationship between the two pillars of the business are symbiotic, neither can succeed in isolation.
The Tribunal is satisfied that the application has identified a need for a paid employee to work in the position of Café or Restaurant Manager, ANZSCO 141111 under direct control of the applicant. The application has included the required written certification relating to conduct that contravenes s.245AR(1). 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 was provided with a range of Business Tax Returns and Profit and Loss Statements including those produced for FY 2017 and FY 2018, all of which correlated. ASIC Registration details were provided, the Tribunal checked the status of the listed ABN and perused the company web site. The Tribunal is satisfied that the applicant is actively, lawfully and directly, operating a business in regional Australia. Accordingly, the requirement in r.5.19(4)(b) is met.
Position is not labour-hire: r.5.19(4)(c)
Regulation 5.19(4)(c) applies to nominators whose business activities include those relating to labour hire to an unrelated business. In these cases, the nominated position must be within the business activities of the nominator. The Tribunal finds that r. 5.19(4)(c) is not relevant to the current nomination.
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 notes that the business appears to be in an expansionary state and has adequate revenues and profits to continue to operate successfully. The Tribunal observes that both revenues and associated profit have increased by 55% from FY 2017 to FY 2018. The long-term stability of the nominating entity further attests to its’ ability to employ the visa applicant as does the letter of support provided by their accountants. The Tribunal is satisfied that the business will be able to sustainably, employ the nominee for the required 2-year minimum period.
The Tribunal has had regard to the Employment Agreement dated 28 April 2016 and the position description. It is satisfied that the nominee will be appointed for a period of at least 2 years employment from grant of visa and the terms of employment do not include an express exclusion of the possibility of extending the period of employment.
The Tribunal observes that one of the potential challenges facing the business is retaining the visa applicant and the nominator’s obvious reliance upon their services as they attempt to continue to grow their business and mature their human resources. It notes that the workforce is highly mobile in this industry and a common factor limiting growth is successful recruitment, training and retention of the human resources required. The specialist skills associated with this type of operation are in substantial demand and readily transferred between competing businesses, particularly as team members grow in maturity and experience. It is also observed that frequent poaching by competing businesses is rife.
No less favourable terms and condition of employment: r.5.19(4)(e)
Regulation 5.19(4)(e) requires that the terms and conditions of employment applicable to the nominated position will be no less favourable than those that are, or would be, provided to an Australian citizen or permanent resident performing equivalent work in the same workplace at the same location.
The Tribunal has been provided with the visa applicant’s employment contract dated 28 April 2016. The Tribunal accepts that the nominee’s annual salary of $55,000 plus 9.5% Superannuation as appropriate and is reflective of his experience relevant to the nominated position in this industry. Again it notes the FY 2018 discretionary bonus of $5,000 paid as a reward for performance and dedication. The Tribunal researched the salaries offered for similar positions and had regard for the salary determination evidence provided by the applicant. It is satisfied that the terms and conditions of employment are equivalent to other employees with the same experience performing equivalent work in the same workplace or as in this case a similar workplace. Accordingly the requirements of r.5.19(4)(e) are met.
No adverse information known to Immigration: r.5.19(4)(f)
Regulation 5.19(4)(f) requires that there is no adverse information known to Immigration about the nominator or person associated with the nominator; or it is reasonable to disregard any such information. For these purposes, ‘adverse information’ and ‘associated with’ have the meaning given in rr.1.13A and 1.13B. There is no evidence before the Tribunal that the applicant has anything but a satisfactory record of compliance with the immigration laws of Australia. 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. The Tribunal notes that there is no evidence before the Tribunal that the applicant has anything but a satisfactory record of compliance with workplace relations law in Australia. 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 alternative requirements. These are set out in detail in the attachment to the decision. As stated above the nomination was made under the RSMS Direct Entry stream and the Tribunal has proceeded to assess the application against the criteria in r.5.19(4)(h)(ii) which require that:
·the position and nominator’s business are 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 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
·a regional certifying body has advised the Minister about certain matters relating to the position.
The Tribunal is satisfied that there is a genuine need for the nominator to employ a paid employee to work in the position under the nominator’s direct control, as per paragraphs 18-20 inclusive.
Evidence was presented regarding the recruitment process and the subsequent selection of a suitable candidate for the visa applicant’s role. The Tribunal acknowledges that this is a specialised field with a limited number of potential applicants. Applicants would be able to choose from a range of similar roles when offered due to the relative skill shortage in relation to the vacancies in the industry. The demands of the job coupled with the relatively remote Western Australian location may not have proven overly attractive to some candidates in a restricted candidate pool.
The Tribunal observes that a substantially more comprehensive evidence base was provided to it, than was presented to the delegate at the time of their decision. The Tribunal is satisfied that the position cannot be filled by an Australian citizen or permanent resident. The Tribunal is satisfied that the nominator’s business is located in regional Australia.
Regulation r.5.19(4)(h)(ii)(D), requires that the tasks to be performed in the position correspond to those at ANZSCO skill level 1, 2 or 3. The Tribunal has reviewed both the relative descriptors supplied in ANZSCO 141111 for Café or Restaurant Manager and the stated duties of the visa applicant.
The position of ANZSCO 141111 for Café or Restaurant Manager, nominated by the applicant is referred to in ANZSCO, as a skill level 2 position and the Tribunal is satisfied that the visa applicant is operating at that level. It also observes that as this is a relatively mid-sized operation, the Manager would need to be highly adaptive and flexible in the range of tasks undertaken, depending upon service demands at any given point in time. It also observes that if the current growth trajectory is maintained the complexity of the demands placed upon the Manager will similarly increase.
The Tribunal is satisfied that the applicant meets 5.19(4)(h)(i) and 5.19(4)(h)(ii).
The Tribunal has had regard to Form 1404 issued by an RCB (Department of Training and Workforce Development), dated 24 May 2016 and is satisfied that the applicant has advised the Minister about matters relating to the terms and conditions of employment, the genuine need for the position and that the position cannot be filled locally.
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.
Peter Emmerton
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).

[2019] AATA 3534

14 June 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Statutory Construction

Procedural Fairness

Jurisdiction