The Leprechaun General Store & Tearooms (Migration)

[2022] AATA 4462

The Leprechaun General Store & Tearooms (Migration) [2022] AATA 4462 (12 October 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  The Leprechaun General Store & Tearooms

REPRESENTATIVE:  Mr Jing Zeng (MARN: 0961417)

CASE NUMBER:  1913847

HOME AFFAIRS REFERENCE(S):          BCC2017/4038806

MEMBER:P. Maishman

DATE:12 October 2022

PLACE OF DECISION:  Perth

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

Statement made on 12 October 2022 at 4:17pm

CATCHWORDS
MIGRATION – Employer Nomination – approval of nominated position – Direct Entry Nomination – Café or Restaurant Manager – tasks of the position – genuine need – business continue to trade and grow without engaging the nominee – decision under review affirmed

LEGISLATION
Migration Regulations 1994 (Cth), r 5.19

CASES
Bharaj Construction Pty Ltd v MIBP [2016] FCCA 902

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 Home Affairs on 15 May 2019 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).

2. The applicant applied for approval on 31 October 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).

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 the applicant’s nomination did not satisfy reg 5.19(4)(h)(ii)(D) of the Regulations because the delegate was not satisfied the tasks to be performed in the nominated position correspond to the tasks of the occupation of Café or Restaurant Manager (ANZSCO 141111).

5. On 1 September 2022 the Tribunal wrote to the review applicant advising that it had considered all the material before it relating to its application, but it was unable to make a favourable decision on that information alone. The Tribunal invited Mrs Patricia Anne Meredith, the applicants contact person, to give oral evidence and present arguments at a hearing on 22 September 2022. On 3 September 2022 the applicant advised the Tribunal that it did not wish to give oral evidence and consented to the Tribunal proceeding to decide on the review without taking any further action to allow or enable it to appear before it. This matter has therefore been determined on the evidence available to the Tribunal.

6. The applicant was represented in relation to the review.

7. For the following reasons, the Tribunal has decided to affirm the decision under review to refuse the nomination.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The Tribunal had before it a copy of the Departments containing the application for approval and documents given by the applicant in support of its nomination.

9. The applicant gave the Tribunal a copy of the delegates notice of decision with its application for review. The applicant is a café business operating in Dawesville, Western Australia, a Regional Area. It commenced trading in August 2015. On its application it claimed to have eight Australian citizen/permanent resident employees. 

10. The Tribunal invited the applicant to provide updated and current information in support of its application on 24 May 2022 and received updated documents relevant to the application on 21 June 2022.

11. 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.

    Tasks of the position, genuine need for the position and training requirements reg 5.19(4)(h)

12. Regulation 5.19(4)(h) contains a number of alternative requirements. These are set out in detail in the attachment to the decision.

13. Relevantly to this matter the requirements of reg 5.19(4)(h)(ii) but can be briefly summarised as requiring that the position and nominator’s business is located in regional Australia; and there is a genuine need for the nominee to be employed as a paid employee in the position under the nominator’s direct control; and the position cannot be filled by a locally resident Australian citizen or permanent resident; and the tasks of the position correspond to those of an occupation specified in the relevant legislative instrument; and 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.

    Regional Certification

14. Subparagraph 5.19(4)(ii)(h)(F) requires a Regional Certifying Body specified by the Minister (IMMI 16/045) and located in the same state as the applicant, to have advised the Minister about matters mentioned in reg 5.19(4)(e ) and regs 5.19(4)(h)(ii)(B) and (C).

15. The Tribunal has considered the Form 1404 Regional Sponsored Migration Scheme – Regional Certifying Body Advice, issued on 31 October 2017 by Skilled Migration WA, Western Australian Department of Training and Workforce Development.

16. On the basis of the advice set out in the Form 1404 Regional Sponsored Migration Scheme – Regional Certifying Body Advice provided, the Tribunal is satisfied that the regional certifying body has advised the Minister about the matters set out in reg 5.19(4)(e ) and reg 5.19(4)(h)(ii)(B) and (C) of the Regulations. The regional certifying body states that:

    ·There is a need for a paid employee in the nominated position within the business activities of the nominating employer;

    ·The nominated position cannot be filled by an Australian citizen or an Australian permanent resident who is living in the same local area as the nominated position; and

    ·The terms and conditions of employment that are applicable to the nominated position will be no less favourable than the terms and conditions that are or would be provided to an Australian citizen or Australian permanent resident for performing the equivalent work in the same workplace at the same location.

17. Consistent with the decision of the Federal Circuit Court of Australia in Bharaj Construction Pty Ltd v MIBP [2016] FCCA 902, certification by a regional certifying body is not sufficient or determinative in relation to whether the nominator meets reg 5.19(4)(e) , reg 5.19(4)(h)(ii)(B) and reg 5.19(4)(h)(ii)(C) of the Regulations. Accordingly, the Tribunal notes that, whilst having regard to the advice provided by the regional certifying body, it has reached its own conclusions about the matters the subject of the regional certifying body’s advice.

18. Having considered the Form 1404 provided, the Tribunal is satisfied that the requirements of reg 5.19(4)(h)(ii)(F) are met by provision of the requisite Form 1404.

    There is a genuine need for the paid position under the nominator's direct control.

19. Subparagraph 5.19(4)(ii)(h)(B) requires the Tribunal to be satisfied that there is a genuine need for the applicant, as the nominator, to employ a paid employee to work in the position under the nominator’s direct control.

20. The Tribunal had regard to the organisational charts and position descriptions provided to the Department with the application and to the Tribunal on 21 June 2022. The Tribunal also had regard to the written submissions provided to the Department by Mrs Meredith dated 19 October 2017 and 21 May 2018, and to the Tribunal dated 1 June 2022.

21. Mrs Meredith is identified as the owner of the operation. Mrs Meredith says the café is currently open from 7:30 AM to 4.00 PM seven days per week, with actual operating hours from 6:30 AM to 5:30 PM. The nominated position of Café manager is indicated to be responsible for the front of house and back of house. The front of house has three part-time and four casual staff. The back of house has three part-time and three casual staff. Mrs Meredith claims that for the last three years she has been working 60 hours per week covering for rostered staff who do not show up, or who have had to isolate during the Covid pandemic. Over the last three years she has only been able to spend limited time with her daughter and grandchild. Mrs Meredith says that having a full time sponsored employee will allow her to work on the business rather than in the business and relieve her burden of excessive long hours to spend quality time with her granddaughter. 

22. Mrs Meredith notes the business has experienced significant growth with an increase in income of $200,000 since 2019. Mrs Meredith provided profit and loss statements to support her claim.

23. The Tribunal acknowledges the applicant’s claim the nominee assisted the business during the school holidays in July 2017 and resided in New South Wales. There is no evidence before the Tribunal to suggest the nominee has worked in the nominated position since despite almost five years having passed since the application was made. Facebook postings on 17 August 2020 and 24 August 2021 indicate the applicant has sought employees with kitchen and barista experience, however the Tribunal is not persuaded these postings are canvassing suitable candidates for the nominated position of Café or Restaurant Manager. The applicant business has increased its income and continued to trade without engaging the nominee or otherwise filling the nominated position.     

24. The Tribunal is not satisfied the applicant has a genuine need to employ a paid employee in as a Café Manager to work under its direct control.

25. Accordingly, the requirements of r.5.19(4)(h)(ii)(B) of the Regulations are not met.

26. Accordingly the requirements of reg 5.19(4)(h) are not met.

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

    DECISION

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

    P. Maishman
    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 an identified person, as 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)       all 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;

    (AA)there is a genuine need for the nominator to employ the person identified under subparagraph (a)(ii), as a paid employee, to work in the position under the nominator’s direct control;

    (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 the person identified under subparagraph (a)(ii), as 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).