The Press Room Wine Bar Pty Ltd (Migration)

The Press Room Wine Bar Pty Ltd (Migration) [2022] AATA 4211 (13 September 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT: The Press Room Wine Bar Pty Ltd

REPRESENTATIVE:  Mr Zhaojiang Lu (MARN: 0963993)
CASE NUMBER:  1916944
HOME AFFAIRS REFERENCE(S):          BCC2018/274886
MEMBER:Warren Stooke AM
DATE:13 September 2022
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision under review to refuse the nomination.

Statement made on 13 September 2022 at 12:28pm

CATCHWORDS
MIGRATION – Employer Nomination – approval of nominated position – Direct Entry nomination stream – Food and Beverage Manager – no response to section 359(2) invitation – compliant application – active and lawful operation – compliance with workplace relations laws – tasks of the position – absence of contemporary information – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 359C, 360, 363A
Migration Regulations 1994 (Cth), r 5.19
CASES
Hasran v MIAC [2010] FCAFC 40

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 19 June 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).
The applicant applied for approval on 17 January 2018. 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 that the applicant’s nomination did not satisfy reg 5.19(4) of the Regulations because the applicant has supplied a business organisation chart which states the nominated position will report to the ‘Owner/Managing Director’ and that the nominated position is responsible for front of house operations of the business only. The position description does not state the nominated position will be responsible for the ‘planning and organising special functions’ and the task of selecting staff is also not a task specified as the responsibility of the nominated position. This indicates that the nominated position does not organise and control the business as per ANZSCO and instead the business is organised and controlled by the ‘owner/managing director’.
The delegate considered that the nominated position will not be responsible for organising and controlling all business operations and the tasks of a Café and Restaurant Manager per ANZSCO involve a level of complexity that is absent from the nominated position’s list of duties. As such, it was found that the duties listed in the position description provided by the nominator are of a lesser skill level than those required of a Café and Restaurant Manager and some of the tasks fall outside of the role of a Café and Restaurant Manager. Therefore, regulations 5.19(4)(h)(ii)(D) and 5.19(4)(h)(ii) are not met and the nominator does not meet regulation 5.19(4)(h).
On 5 July 2022 the Tribunal corresponded with the applicant to provide information pursuant to s359(2) to the Tribunal pertaining to the nominated position with a response required by 19 July 2022. As at the date of decision, the applicant has not provided the information sought by the Tribunal.
The review applicant has not provided the information within the prescribed period and no extension has been sought or granted. In these circumstances, s 359C applies and pursuant to s 360(3) the review applicant is not entitled to appear before the Tribunal. The effect of s 363A of the Act is that if a review applicant has no entitlement to a hearing, the Tribunal has no power to permit him or her to appear: Hasran v MIAC [2010] FCAFC 40. The Tribunal has decided to proceed to decision without taking further steps to obtain the information.
The applicant was represented in relation to the review.
For the following reasons, the Tribunal has decided to affirm the decision under review to refuse 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 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.
The application is compliant: reg 5.19(4)(a)
The applicant provided the Department with a written certification stating that the nominator has not engaged in conduct in relation to the nomination that contravenes s. 245AR(1). This document was dated 17 January 2018.
The applicant provided a job description for the position that included the following list of duties:
“Job Title: Food and Beverage Manager
Reporting to: Managing Director
Responsible for:
• Ensuring a high level of customer satisfaction
• Dining room service according to the restaurant’s quality and service standards
• Staff supervision and training
• Operation and balancing of cash register
• Safety and cleanliness of front of house staff and customer areas
• Increasing sales at all opportunities through the performance of the waiting and bar staff
• Creating a harmonious environment amongst all staff within the restaurant
Main Activities:
• Menu developing with chefs based on customer’s feedback
• Seasonal menu item development with chefs
• Offer a high level of service to customers, making all their visits enjoyable
• Meet, greet, seat and farewell customers at the restaurant
• Take orders, serve and clear tables
• Train floor staff
• Supervise waiters so the tasks for setting up, serving and closing are all handled correctly
• Supervise the taking, setting up and confirmation of bookings
• Handle complaints according to guidelines and so that it leaves customers satisfied and impressed
• Promote the restaurant and functions to potential clients
• Communicate with business owner regarding any problems or changes needed with service
• Balance the register at the end of the shift ensuring a high level of accuracy and honesty
• Ensure the safety of staff and patrons during services and after leaving
• Ensure responsible Service of Alcohol policies are implemented
• Maintain hygienic food handling practices and cleanliness of all waiting and bar staff
• Maintain bar stock level and security
• Carry out any other duties as advised from time to time
Knowledge and Abilities:
• Completion of Business or Hospitality related qualifications
• Experience working in high quality restaurant environment
• Experience with staffing conflicts
• Strong service mind possession
• Up-to-date RSA knowledge and OH & S procedure
• Able to handle complaints and resolve them in the best possible manner”
Further, in the absence of a response to the request for further contemporary information, addressed in the Tribunal correspondence of 5 July 2022, the Tribunal is not satisfied that the applicant has provided sufficient evidence to support the need for the position of Food and Beverage Manager – ANZSCO Code: 141111 under the direct control of the business owner.
The applicant has provided the Department of evidence of an approved RSMS for the position, by the Rural City of Wangaratta, for the nominated position of Restaurant Manager for the nominee, YANG Junkang, with an the ANZSCO position code 141111 and the salary of $50,000 that was approved on 28 February 2018.
In the absence of contemporary information concerning the operation of the business, the Tribunal is not in a position to assess the nominee’s role in the context of the overall business operation and how the position interacts with the owner and other employee positions in the business and whether there is a genuine need for the position. The applicant provided evidence to the Department with an organisation chart with the nominee reporting to the Owner/business Director, however, the applicant has not provided the Tribunal with any end of financial year accounts for the financial years from 2018 to 2022 to substantiate the capacity to employ the nominee.
Accordingly, the requirement in r.5.19(4)(a) is not met.
Nominator is actively and lawfully operating a business in Australia: reg 5.19(4)(b)
Regulation 5.19(4)(b) requires that the applicant is actively, lawfully and directly operating a business in Australia.
On 5 July 2022, the Tribunal requested the applicant to provide the following information about the applicant directly operating an active and lawful business in Australia, including its financial circumstances; training contributions and local job advertisements for the position:
1. Information about the identity of any person authorised to speak and make
decisions on behalf of the applicant;
§If the applicant is a company or registered business, an ASIC
company or business name extract ( If the applicant is a company or registered business, current and historical
information about its owners or office holders’ registration details;
§An ASIC current and historical extract ( Information about the applicant directly operating an active and lawful business
in Australia, including its financial circumstances;
§The applicant’s lodged tax returns for the last two full financial years,
business activity statements that have been lodged with the ATO for
the last 24 months and financial statements prepared in accordance
with Australian accounting standards, including profit and loss
statements and balance sheets, for the most recent two financial
years.
4. Information about the applicant’s current organisational structure and where the
nominated position sits in relation to that structure;
§An organisational structure chart that includes all of the applicant’s
current and proposed employees, their position title/duties and their
immigration status (ie. Australian citizen, permanent resident or
temporary visa holder).
5. Information about the roles and duties of the nominated position and how they
correspond to the nominated occupation’s position description in ANZSCO;
§Job descriptions, work samples, emails, correspondence and other
examples of the daily tasks performed in the nominated position, and
also the nominated occupation’s position description in ANZSCO (go
to and type the
nominated occupation’s 6 digit ANZSCO code number into the
‘Search’ function).
6. If the position requires a licence or registration of a particular kind, or
membership of a particular professional body, information about whether or not
the nominee holds that licence, registration or membership;
§a copy of a valid and current licence, registration or professional
body membership held by the nominee.
7. Information about the terms and conditions of employment in the nominated
position, including whether they are more or less favourable than those provided
for an Australian citizen or permanent residence performing equivalent work in
the same workplace at the same location, and whether the nominee will be
employed on a full time basis for at least 2 years with terms and conditions not
expressly excluding the possibility of extension;
§A current employment contract in respect of the nominee or letter of
engagement that complies with relevant awards for the nominated
position (if any).
8. If the nominated position is not located in regional Australia and the applicant
has paid the non-regional position application fee, information about:
a. the need to employ the nominee in the nominated position; AND
b. the applicant’s business operating for:
i. at least 12 months - its recent training expenditure; OR
ii. less than 12 months - its plan for future training expenditure
§Invoices or contracts for employee training, a training program that
includes a course outline, attendance and identifies increased work
competencies, or records of investment in certain industry training
funds or recognised industry bodies.
9. If the nominated position is located in regional Australia, information about:
a. the need to employ the nominee in the nominated position and why the
position cannot be filled by an Australian citizen or permanent resident
living in the same local area; AND
b. whether a specified Regional Certifying Body located in the same State or
Territory as the nominated position has provided advice that:
i. the terms and conditions of employment are no less favourable than
those provided to Australian citizens or permanent residents
performing equivalent work in the same workplace; AND
ii. there is a genuine need to employ the nominated person as a paid
employee to work in the nominated position under the applicant’s
direct control; AND
iii. the position cannot be filled by an Australian citizen or permanent
resident living in the same area;
§Local job advertisements for the nominated position that were not
successfully filled, and the Regional Certifying Body’s certificate
issued to the applicant in respect of this position.
10. Information about whether the applicant has been subject to monitoring by the
Department and, if relevant, the outcome of the monitoring audit;
11. Information about whether the applicant has been the subject of any
investigation about a possible contravention of the law.”
The applicant has not provided the Tribunal with evidence that the nominee has been provided with a Fair Work Information Statement at the time of employment. As such, the Tribunal is not satisfied that the applicant has complied with this legislative obligation.
In the absence of contemporary information concerning the operation of the business, the Tribunal is not in a position to assess the nominee’s role in the context of the overall business operation and how the position interacts with the owner and other employee positions in the business and whether there is a genuine need for the position. The applicant provided evidence to the Department with an organisation chart with the nominee reporting to the Owner/business Director, however, the applicant has not provided the Tribunal with any end of financial year accounts for the financial years from 2018 to 2022 to substantiate the capacity to employ the nominee.
Accordingly, the requirement in reg 5.19(4)(b) is not met.
Position is not labour-hire: reg 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 provided the Tribunal with a contract of employment dated on 27 December 2017, with the nominee, that prescribes a salary of $50,000 plus 9.5 per cent superannuation contribution and that the contract will commence after the grant of the 187 RSMS visa and will be in place for 2 years.
Accordingly, the requirement in reg 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 applicant provided the Tribunal with a contract of employment dated on 27 December 2017, with the nominee, that prescribes a salary of $50,000 plus 9.5 per cent superannuation contribution and that the contract will commence after the grant of the 187 RSMS visa and will be in place for 2 years.
Accordingly, the requirement in reg 5.19(4)(d) is met.
No less favourable terms and conditions of employment: reg 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 provided the Tribunal with a contract of employment dated on 27 December 2017, with the nominee, that prescribes a salary of $50,000 plus 9.5 per cent superannuation contribution and that the contract will commence after the grant of the 187 RSMS visa and will be in place for 2 years.
The applicant provided evidence that the nominee will be employed under the Hospitality General Award 2010, with the prescribed hourly rate of $22.63 per hour, which equates to a base annual salary of $44,716 that compares with a contracted salary of $50,000.
Accordingly the requirements of reg 5.19(4)(e) are met.
No adverse information known to Immigration: reg 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 regs 1.13A and 1.13B.
The Tribunal is not aware of any adverse information before the Department or the Tribunal pertaining to the applicant.
Accordingly the requirements of reg 5.19(4)(f) are met.
Satisfactory compliance with workplace relations laws: reg 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 applicant provided the Tribunal with a contract of employment dated on 27 December 2017, with the nominee, that prescribes a salary of $50,000 plus 9.5 per cent superannuation contribution and that the contract will commence after the grant of the 187 RSMS visa and will be in place for 2 years.
The applicant has not provided evidence to the Tribunal that the nominee was provided with a Fair Work Information Statement at the commencement of employment, which is not consistent with the requirements of the Fair Work Act 2009.
Accordingly the requirements of reg 5.19(4)(g) is not 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, the occupation is applicable to the proposed employee in accordance with any specifications made in that instrument, there is a genuine need for the nominee to be employed as a paid employee in the position, and certain specified training requirements are met; or
·the position and nominator’s business is located in regional Australia, there is a genuine need for the nominee to be employed as a paid employee in the position under the nominator’s direct control, the position 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.
The Tribunal is not satisfied that the duties provided in the contract of employment for the Food and Beverage Manager/ Café or Restaurant Manager meet the requirements of ANZSCO Code: 141111, as the Owner/Director performs duties that would otherwise be performed by the nominee.

Further, the applicant has only provided evidence that the position was advertised in the Wangaratta Chronicle, which is a local distributed medium and not nationally distributed. The applicant has not provided evidence that the position has been advertised in two nationally distributed job search mediums, as required in the regulations and there is no evidence of the interview of Australian citizens or permanent residents who are living in the same local area in the appointment of the nominee to the position. As such, the Tribunal is not satisfied that the position has provided an opportunity to Australian citizens or permanent residents who are living in the same local area to access the proposed position.
Accordingly the requirements of reg 5.19(4)(h) are not met.
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
The Tribunal affirms the decision under review to refuse the nomination.
Warren Stooke AM
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).

[2022] AATA 4211

13 September 2022

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Immigration

Administrative Law

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Judicial Review

Procedural Fairness

Statutory Construction

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