The Hideout Byron Bay (Migration)

The Hideout Byron Bay (Migration) [2021] AATA 4187 (11 October 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  The Hideout Byron Bay
CASE NUMBER:  1830407
HOME AFFAIRS REFERENCE(S):          BCC2017/1454598
MEMBER:De-Anne Kelly
DATE:11 October 2021
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Statement made on 11 October 2021 at 3:10pm
CATCHWORDS
MIGRATION – approval of a nomination – Direct Entry nomination stream – position of Restaurant Manager – financial capacity to employ the nominee for at least two years – terms and conditions of employment no less favourable – actively and lawfully operating a business in Australia – plans to expand the business – genuine need for the employment – relevant qualifications – decision under review set aside
LEGISLATION
Migration Act 1958, ss 245, 359
Migration Regulations 1994, rr 1.13, 5.19, 5.37
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 27 September 2018 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).
The applicant applied for approval on 21 April 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).
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 reg 5.19(4)(d)(i) the Regulations because the application did not demonstrate that the nominee was to be engaged under the direct control of the nominator or that the nominee will be employed on a full-time basis in the position for at least two (2) years.
The applicant appeared before the Tribunal on 6 September 2021 to give evidence and present arguments. This was a dual hearing of both the employer nomination refusal review and the visa application refusal review.
The applicant was represented in relation to the review by Ms Io Jacobson MARN: 1467736.
For the following reasons, the Tribunal has decided to set aside the decision under review and substitute a decision approving the nomination.
Evidence
The Tribunal advised the applicant that evidence that would be considered was information and documents provided to the Department with the original application, and subsequently the evidence at hearing and any information or documents provided to the Tribunal following the hearing within 14 days or an extended period if requested.
Documentation is listed at Schedule 1 and was considered by the Tribunal.
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 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.
On 21 April 2017, the applicant Ajmal Barikzai ABN: 59 582 954 784 trading as Cool Katz Byron Bay and recently as The Hideout Byron Bay, lodged a Regional Sponsored Migration Scheme employer nomination - Visa subclass 187 in the direct entry stream for the position of Restaurant Manager ANZSCO 141111 on $48,000 per annum in favour of Mr Diego MORO to be employed at Lawson Street, Byron Bay NSW 2481.
Mr Barikzai represented the company and gave an overview of the business. He purchased the business in April 2016 and spent money on growing the business. He stated it has grown 10% year on year and is profitable. They are reopening on Friday when lockdowns cease. He stated they have seating for 60 patrons however the Tribunal queried this number as the seating plan shows some 31 seats for patrons. The director stated they had been lobbying the council for several years to increase seating outside and have recently been successful in gaining additional seating approval to bring the number of patrons up to 60.
At their peak they had over eight staff but with lockdowns people left and they struggle to employ anyone. As well the area around Byron Bay has grown substantially and accommodation for employees is expensive making it hard to employ anyone. At present they have one Chef, a casual and the nominee as restaurant manager. During winter the trade gets slower and the casuals move on and in the past, I have used working holiday visa holders to fill the gap for three months. As the owner, Mr Barikzai, initially worked in the business seven days a week and now has a manager so the owner handles the financial side of the business such as payroll and also fills in and works in the business to do three days per week. He likes to chat with customers and does multitasking because they are so short staffed. He would like to manage the financial side of the business and leave the operations side to the nominee. The owner advised he does not have a job outside the business or another stream of income. It is his passion to run a restaurant and bar and it is the sole source of income for him.
COVID-19 has been very stressful, but the director wants to grow the business and would like to franchise the brand.
Section 359AA of the Act
At the commencement of the hearing, the Tribunal explained that it may put information to the applicant, under s.359AA of 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; the applicant could make a written submission within 14 days or an extended period of time if it requested an extension; or they could respond in the hearing. If they responded in the hearing, it would not prevent them from making a written submission within 14 days or a longer period if they requested an extension of time.
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.
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.
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 21 April 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’.
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.
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.
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 Diego MORO was identified in the nomination application.
In the hearing it was advised that Mr Diego MORO has worked for the nominator since 2018 or some four (4) years with payment summaries for the nominee provided as evidence. The Tribunal considers that if a nominee has worked in the position for such a long period of time this is clear evidence the position is genuinely needed. The evidence provided demonstrates that the business has a need for a Restaurant Manager in the restaurant/ café.
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 applicant provided a Profit and Loss for FY 2020 and FY 2019 as well as tax returns for FY 2018 and FY 2019 which indicate that the applicant is actively, lawfully and directly operating a business in Byron Bay, 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 applicant advised that the position is not labour hire and there is no evidence that the company hires labour to unrelated entities.
Accordingly, the requirement in r.5.19(4)(c) is met.
Term of employment of the visa holder: reg 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 profit and loss for FY 2019 and FY 2020 are summarised below.

P&L 2020 2019

Income 497,319 576,096

Wages 194,764 154,397

Super 11,435

Expenses 456,120 282,104

Profit 40,263 107,796

The business has suffered from lockdowns in NSW as have other retail outlets however they have continued to make a profit and employ a core workforce.
The Tribunal was concerned that the nominee has been employed on a part time basis since 2018 and put this to the director under s359AA of the Act since it may indicate that the nominee was only required on a part time basis and would not be employed on the full time basis in the position of Restaurant Manager.
The director advised that the initial application was refused, and he became concerned about becoming heavily dependent on the nominee if the application was ultimately unsuccessful. He has been in business for the last five (5) years and is very reliant n the nominee as he allows the owner to undertake other tasks. The nominee was the assistant manager however the actual manager left to have a baby and the nominee has taken on the role in the last two (2) years. The director wants to launch a night service for the restaurant utilising the nominee four (4) nights per week. They have approval from the Council (evidence provided in the form of a council notice) to close the street and place additional seating for the restaurant. The applicant submitted a Profit and Loss for January 2021 and compared it to the same period in FY 2020 and demonstrated that this increases turnover and profit by some 10%.
The Tribunal accepts that the applicant genuinely wishes to open for night-time service and the director is a single Father of two (2) children who needs a Restaurant Manager. It is acknowledged that it is difficult to source skilled staff in Byron Bay and that the cost of accommodation deters many locals from working in the seaside town. The Tribunal finds that the employee will be employed on a full-time basis in the position for at least 2 years under terms that do not exclude the possibility of an extension beyond two (2) years.
Accordingly, the requirement in reg 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 Tribunal found that the contemporary pay range from Payscale for a Restaurant Manager is $49,000 to $70,000 and while the salary of $48,000 is at the low end of the scale it is accepted that the applicant has had to face the economic challenges of lockdowns and COVID-19 and has sought to retain core staff during that time and made and implemented plans to expand with more seating and a night service. This level of initiative is commendable.
The salary in the employment contract of 10 April 2017 is $48,000 and the Tribunal finds that this is no less favourable than the terms and conditions that would be provided to an Australian citizen or Australian permanent resident performing the work of Restaurant Manager in the same workplace at Byron Bay NSW.
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 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. This was confirmed by the applicant at the hearing.
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 has conducted a search of the Fair Work Ombudsman’s website and finds no unsatisfactory record of compliance for the applicant with the laws of the Commonwealth relating to workplace relations. This was confirmed by the applicant at the hearing.
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)
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, 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.
Position in regional area – r.5.19(4)(h)(ii)(A)
The Tribunal needs to determine if the position is in regional Australia. The business is located in Byron Bay NSW, postcode 2481. 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.
Accordingly, r.5.19(4)(h)(ii)(A) is met.
Genuine need for the position r.5.19(4)(h)(ii)(B).
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.
In the hearing it was advised that Mr Diego MORO has worked for the nominator since 2018 or some four (4) years with payment summaries for the nominee provided as evidence. The Tribunal considers that if a nominee has worked in the position for such a long period of time this is clear evidence the position is genuinely needed. It was noted that the nominee had worked part time since 2018 however the Tribunal accepts the directors evidence regarding this part time employment being due to concern about the success of the nomination but that they had secured additional seating for patrons from Council and the street was going to become a mall in the evenings allowing the applicant to operate a night time dining service which would necessitate a Restaurant Manager. The evidence provided demonstrates that the business has a genuine need for a Restaurant Manager in the restaurant/ café.
The Tribunal finds for the reasons above that there is a genuine need for the nominator to employ a person, Mr Diego MORO identified under r.5.19(4)(a)(ii) as a paid employee to work in the position of Restaurant Manager under the nominator’s direct control.
Accordingly, r.5.19(4)(h)(ii)(B) is met.
Cannot be filled. r.5.19(4)(h)(ii)(C)
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.
The applicant advertised the position on Jobsearch and in the newspapers in March 2017 and received 13 responses, but they did not have the experience and qualifications. The owner has continued to advertise for skilled staff however they have had little success with border closures, lockdowns and the high cost of accommodation deterring people from re-locating from metropolitan areas to work in Byron Bay.

The Tribunal finds that the position of Restaurant Manager cannot be filled by an Australian citizen or permanent resident who is living in the same local area as Byron Bay NSW.
Accordingly, r.5.19(4)(h)(ii)(C) is met.
Tasks of the position correspond to ANZSCO. r.5.19(4)(h)(ii)(D)
The job description is as follows.
Position – Restaurant Manager
The duties and responsibilities included, but not are limited to.
Work with the cook and other personnel to ensure that menu items are
flavorsome and consistent with management and customer expectations.
• Supervise operation of the kitchen to ensure orders are prepared in a timely
and efficient manner and that staff adhere to relevant regulations.
• Maintain inventory of stock and records of financial transactions
• Perform frequent checks to ensure consistent high quality of preparation
and service.
• Supervise operation of front of house service to maximize profitability,
minimize legal liability and adhere to relevant regulations.
• Assist in hiring, training and scheduling of food service personnel.
• Investigate and resolve complaints concerning food quality and service.
• Enforce sanitary practices for food handling, general cleanliness, and
maintenance of kitchen and dining areas.
• Supervise beverage service
• Comply with all health and safety regulations.
• Work to improve performance.
Perform other duties as assigned by management.
ANZSCO 141111 – Restaurant Managers plan and organise the preparation and cooking of food in dining and catering establishments.
oplanning menus in consultation with Chefs
oplanning and organising special functions
oarranging the purchasing and pricing of goods according to budget
omaintaining records of stock levels and financial transactions
oensuring dining facilities comply with health regulations and are clean, functional and of suitable appearance
oconferring with customers to assess their satisfaction with meals and service
oselecting, training and supervising waiting and kitchen staff .
omay take reservations, greet guests and assist in taking orders.
The Tribunal finds that the tasks of the nominated position correspond to the tasks of the occupation of Restaurant Manager specified by the Minister in an instrument in writing being the ANZSCO on the website of the Australian Bureau of Statistics.
Accordingly, r.5.19(4)(h)(ii)(D) is met.
Occupation applicable to nominee. r.5.19(4)(h)(ii)(DA)
The nominee has an Advanced Diploma of Hospitality and has some five (5) years’ experience. The Tribunal finds that the occupation is applicable to the person, Mr Diego MORO identified under subparagraph (a)(ii) in accordance with the specification of the occupation Restaurant Manager ANZSCO 141111.
Accordingly, r.5.19(4)(h)(ii)(DA) is met.
Business operated at that place. r.5.19(4)(h)(ii)(E)
The business of the nominator is located at Byron Bay NSW 2482 and is in ‘that place’ that was specified in the employer nomination.
Accordingly, r.5.19(4)(h)(ii)(E) is met.
Regional certifying body r.5.19(4)(h)(ii)(F)
Regional Development Australia Northern Rivers as the responsible regional certifying body on 22 June 2017 certified the application on Form 1404 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).
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.
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.
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 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).
Schedule 1
Documents including the following were provided with the application to the Department.
1)Acknowledgement of employer nomination dated 21 April 2017.
2)Online application dated 21 April 2017.
3)Portion of a bank statement.
4)Balance sheet and financial statement for FY 2017
5)BAS statements FY 2016
6)Position description
7)Photos of the exterior and interior of the restaurant.
8)Selection of invoices from suppliers.
9)Organisation chart showing the owner working full time and “manager’s overall business e.g. financial/marketing/maintenance et cetera”; nominated position of restaurant manager “full-time vacant, needing full-time manager that can work three nights a week and during the day”; floor manager part-time Ms B; 2 x chefs casual; floor staff and barista supervisor (the nominee) and casual waiter.
10)Market salary analysis with selection of advertisements for restaurant manager and pay scale information.
11)Employment contract dated 20 April 2017 signed by the applicant and nominee for position of restaurant manager on $48,000 per annum for a 38 hour week to commence on the date of a Visa grant.
12)ASIC registration for business name.
13)Seating plan the restaurant showing seating for some 31 patrons.
14)ABN look up for the applicant showing name change to Hideout Byron Bay
15)Job active advertisement for the position of restaurant manager dated 7 March 2017.
16)Newspaper advertisement the position March 2017.
17)Recruitment summary showing 13 candidates applying.
18)Resume for the nominee.
19)Regional certifying body advice including form 1404.
Documents including the following were provided with the review application and subsequently
20)Nomination refusal notice including notice of decision dated 27 September 2018.
21)Profit and loss statement from July to September 2018.
22)Explanation business operations with details about Byron Bay and how the environment is with the need for a manager who understands and responds to seasonal fluctuations. Working holidaymakers would no longer than six months with anyone employer. There is a severe shortage of Australians to fill the demand for hospitality managers partly because rent is exorbitant and young Australians tend to gravitate towards the cities. The applicant claims they have seating for 70 patrons with service from Monday to Sunday from 7.30am to 3:30 PM. I have an amendment to the liquor licence to enable them to trade until 11 PM at night and plan to expand operations for dinner service and this is been a major reason for seeking to avoid a full-time manager. The lease on the premises is in place until 31 March 2021 with an eight-year option. An event calendar was attached.
23)Documents for the purchase of the business.
24)Liquor licence commencing 9 February 2017 showing alcohol service to 11 PM.
25)Lease for the premises.
26)Letter from the agent detailing the business operations will stating the nominee works floor/ Bar supervisor and the owner is enthusiastic to have the nominee for position of restaurant manager.
27)General ledger or FY 2018.
28)Letters of support from suppliers.
29)A letter dated 23 July 2019 from a customer stating the café is open for business seven days a week from 6 AM to 3 PM and start with 5 to 6 employees each day including two chefs/cooks, a barrister (sic) and wait staff. Letter states that the business obtained a liquor licence with the intention of extending the hours of the café to trade in the evening.
30)Individual tax return for the director for FY 2018 and 2019.
31)Payslips for the nominee from 11 July 2018 to 18 December 2018 showing hours worked per week ranging from 15.5 hours to 30.75 hours only on Saturdays and Sundays with employment classification; floor/bar supervisor r.
32)Payroll activity summary from 1 July 2018 to 4 June 2019 showing the nominee will earning gross of $19,694.62.
33)Photos of the premises.
34)Invitation to provide information from the Tribunal dated 8 July 2021.
35)Profit and loss for FY 2019.
36)Key benchmarks for FY 2017.
37)Transactions for tax Rate Audit report for 2019, 2020 and 2021.
38)Activity statement to 30 September 2020.
39)Profit and Loss for FY 2021.
40)Drawings – Ajmal Bankzai (sic) Transactions from 1 July 2020 to 30 June 2021 of $113,785.
41)Organisation chart showing Owner; nominee as Restaurant Manager; Assistant Manager (night) vacant; head barista (vacant); barista(vacant); Head Waitress (Ms M) and two waitress positions vacant; Head Chef (Mr P); Cook (Mr I); 2 x dishwashers (Mr S and Mr B) and cook (Vacant).
42)Individual tax return for the owner Mr Barikzai for FY 2020 showing taxable income of $40,263.
43)Payslips for the nominee from 21 June 2021 to 12 July 2021 with Employment listed as Casual and Classification as Restaurant Manager with hours per week ranging from 29.75 to 18.25.
44)Facebook ads for Bar Manager; Barista; cook/chef and waitress from 2020 to 2021.
45)Advertisement for Café Manager dated February 2021 with 3 candidates.
46)Notice of assessment for FY 2021 for the nominee showing taxable income of $41,910.
47)Letter from the nominee regarding his commitment to the business, its customers, the owner and to continuing his life in Australia.
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[2021] AATA 4187

11 October 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Statutory Construction

Procedural Fairness

Jurisdiction

Appeal

P&L	2020	2019
Income	497,319	576,096
Wages	194,764	154,397
Super	11,435
Expenses	456,120	282,104
Profit	40,263	107,796