THE TRUSTEE FOR FATHI FAMILY QUEENSLAND TRUST & THE TRUSTEE FOR K. ENSAFPOUR FAMILY TRUST (Migration)

THE TRUSTEE FOR FATHI FAMILY QUEENSLAND TRUST & THE TRUSTEE FOR K. ENSAFPOUR FAMILY TRUST (Migration) [2018] AATA 4028 (21 August 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  THE TRUSTEE FOR FATHI FAMILY QUEENSLAND TRUST & THE TRUSTEE FOR K. ENSAFPOUR FAMILY TRUST
CASE NUMBER:  1732477
DIBP REFERENCE(S):  BCC2017/527855
MEMBER:Ian Berry
DATE:21 August 2018
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision not to approve the nomination.
Statement made on 21 August 2018 at 2:39pm

CATCHWORDS
MIGRATION – Employer Nomination – approval of nomination – genuine need for position – tasks of nominee – business structure – no further financial information – wages increased – profits decreased – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 140GB, 140GBA, 359A
Migration Regulations 1994 (Cth), rr 2.72, 2.73
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 5 December 2017 to refuse to approve the applicant’s nomination under s.140GB of the Migration Act 1958 (the Act) and r.2.72 of the Migration Regulations 1994 (the Regulations).
The applicant applied for approval on 7 February 2017. A nomination of an occupation for a Subclass 457 visa is made under s.140GB of the Act and r.2.73 of the Regulations. Regulations 2.72(3) to (12) prescribe the criteria that must be satisfied for the Minister to approve a nomination by a person. These criteria are extracted in the attachment to this decision. For nomination applications made from 23 November 2013, additional criteria are specified in s.140GBA.
The delegate decided not to approve the nomination on the basis that the applicant did not satisfy regulation 2.72(10)(f) because the position was not considered to be genuine.
The applicant appeared before the Tribunal on 16 April 2018 and 4 May 2018 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Ensafpour and Ms Pascua the nominee.
The applicant was represented in relation to the review by its registered migration agent. The representative attended the Tribunal hearing.
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 the present case is whether the applicant meets the criteria for approval of the nomination. Clause 2.72(10)(f) requires the position to be genuine. The Tribunal must approve the nomination if the applicable requirements in r.2.72 and, for nomination applications made from 23 November 2013, s.140GBA have been met: s.140GB(2).
Preliminary Procedures
It is important to set out the matters which concerned the delegate as the reasons in making a decision were particularised to the extent that it set out for the applicant the issues which the applicant should, at the least to consider putting that information before the Tribunal. These matters are set out as follows:
a.The ANZSCO description of the nominated position and whether the nominee was fulfilling the role of a restaurant manager and largely fitted into the description. The nominator’s description of the restaurant manager’s role fitted within the ANZSCO description, but other factors suggested otherwise. The issue raised by the delegate is that the claimed duties of the nominee, in respect of the business operation, casts doubt as to whether the nominee is performing the proposed tasks.
b.The size of the business is unable to support the position of restaurant manager.
c.The business’s financial position does not support such a position.
d.The businesses staffing structure does not support a restaurant manager.
e.The primary activities of the business is supplying simple meals for which a chef is not required.
f.The scale of the businesses activities are not suited to having a restaurant manager.
The delegate had the ‘renewed employment contract’ dated 1 February 2017; a market salary survey report dated 13 April 2017, numerous photographs of prepared meals and the restaurant’s menu.
Both the delegate and the Tribunal were presented with an organisation chart. It presented the following positions - the director Mr Ensafpour in charge of the restaurants operation with the nominee designated as the Café manager directly under him in the line of authority. There are 2 assistant Café managers both of whom are answerable to the nominee. Then, two baristas, a cook, a waiter, cashier and a person doing the dishwashing.
The Department also received as part of the nominator’s application a financial statement which disclosed the profit and loss statement and balance sheet for the fiscal years ending 30 June 2015 and 30 June 2016. Also supplied by the nominator was one business activity statement for the quarter 1 July 2016 to 30 September 2016.
The delegate was quite precise as to why the nominator’s application was refused. It was worthy of detailing the reasons as to why the delegate refused the application as it would expected for the nominator to address the matters raised and detailed in paragraph 8 above.
A summary of the business activities of the restaurant is that the business activity statement for the third quarter in 2016 has sales at $219,061 with wages of $56,000, and non- capital purchases at $112,829. The menus and photographs of the meals indicate a simple meal preparation for quick food delivery. Take away food is also provided, though the Tribunal does not make a finding that fast food is the predominant source of endeavours or income.
A chef is not employed. There is one cook though it is acknowledged by this Tribunal, as is latter set out in the section 359A letter in response; there are staff members who assist in the filling of shifts. The café and restaurant manager’s duties includes:
a.Planning menus in consultation with Chefs.
b.Planning and organising special functions.
c.Arranging the purchasing and pricing of stock levels and financial transactions.
d.Maintaining records of stock levels and financial transactions.
e.Conferring with customers to assess their satisfaction with meals and service.
f.Ensuring dining facilities comply with health regulations.
g.Selecting, training and supervising waiting and kitchen staff and service.
h.Taking reservations, greeting guests and assisting in taking orders.
The Tribunal accepts that the nominee does do some of this tasks, as she must do so for the restaurant to run efficiently, but does not accept that the majority of these tasks are undertaken by her.
This restaurant has the appearance of being part of a franchise type arrangement, but as there is not any evidence suggesting a franchise, the Tribunal has taken the stance that this is a standalone restaurant perhaps with some assistance through a buying group.
The financial statement indicates a profit of about $47,000 in 2016 and in the previous year a net profit of $61,067. The wages inconsistently increased in2016 while the profit decreased.
On 16 February 2018, the Tribunal wrote to the applicant pursuant to s.359A the partnership of the nominators had been dissolved; the business appearing to have simple food items on its menu; the organisation chart stating that only one cook was employed; the business consisted of 9 people including 3 managers; the menu was limited which is consistent with employing a cook and not a chef, and generally the food appeared to be prepared on a standardised format.an invitation was also extended to the nominator to provide information as to the Australian business number of the standard business sponsor of the nominee of the date of lodgement of the 457 nomination application.
The invitation was sent to the last address provided in connection with the review and advised that, if the information was not provided in writing by 2 March 2018, the Tribunal may make a decision on the review without taking further steps to obtain the information and the applicant would lose any entitlement the trustee might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments
By email dated 2 March 2018, the migration agent for the applicant responded with the following information:
a.It is confirmed that one of the partners left the partnership. Notwithstanding the nature of the business, operations, premises, staff, trading name and logo and all other aspects of the business remained as previously. The nominee is the same person.
b.‘The menu may appear simple but there are a few elements involved in everyone dish. Most of these elements and ingredients are cut, mixed and cooked fresh by order. In order for our donors to have all the elements hot and fresh on their plate, all of the ingredients must be cooked and dine at the same time. Plate and serve straightaway. All of the elements have different temperatures, timing, method and care needed to produce an enjoyable dish. Having an order of 4 or more different dish on one table is another challenge. To cook and to serve them out to the table all at once is a pressure and challenging by itself.’
c.‘The organisational chart that was provided to the Department was misunderstood. We have an average of 15 staff and while we have our man staff, we also have a few uni students that come and go. Thus, we do not have an ongoing process of hiring and training team members (Attached our job advertisement screenshots); please note that we have not yet found the applicant who are suitable for working as a manager after months of recruitment efforts. We have had this job advertisement is online for over 3 months, we have had about 250 applications, more than 50 of them had an interview and only one was successful; at the end he did only one shift and did not want to continue because “it was too hard”. This is the Restaurant business and to be competitive and able to survive in the market, our food is to have a certain standard.’
d.The applicant then proceeded to indicate the make up of the staff which consisted of a director, café manager, two assistant shift managers, three cooks, two baristas, two waitresses (including the cashier) a person who is designated as a dishwasherer, and two runners. ‘Two shift assistant managers are needed to cover the day and night shifts and we have extended our trading hours. The team has their main stations but all of them are crossed trained and can multitask when needed.’
A statement has been made by the migration agent and it can only be with the authority of the director when it is said ‘as the Director, I am of the opinion that if the visa is not granted for the applicant, I will have two soon close my business and a number of Australian employees who are now working with us will have to look for other opportunities. The applicant is a vital key member of our business who is not easily replaceable’.
While the director’s intentions indicate a particular position, the Tribunal does not take into account as it is expected; the restaurant will continue to trade for so long as it is a viable position to do so.
The Tribunal is not satisfied that a Café or restaurant manager is required for this business. It is more likely that the nominee will perform tasks in line with the other staff members in having to “cross train” in order to cover various positions in the restaurant.
Regulation 2.72(10)(f) requires that the position associated with the nominated occupation is genuine. The applicant has not addressed the matters raised by the delegate as to why the delegate found that the restaurant manager is not a genuine position. Since the filing of the application for review, the applicant did not present any substantive evidence addressing the matters which the tribunal would have expected to have been given to it. For instance no the further financial information was given or was raised at the hearings.
The Tribunal finds that the continuing partner, after the dissolution of the partnership of the two trusts, was not prevented from continuing the nomination review. This was an issue which was raised by the Tribunal and addressed by the applicant.
The Tribunal however does find that the position of ‘restaurant manager’ is not a genuine position.
For these reasons the requirements of r.2.72(10)(f) are not met.
For the reasons given above, the Tribunal is not satisfied that the applicant meets the applicable criteria for the nomination to be approved. Accordingly, the decision under review must be affirmed.
DECISION
The Tribunal affirms the decision not to approve the nomination.
Ian Berry
Member

ATTACHMENT - EXTRACTS FROM THE MIGRATION REGULATIONS 1994
2.72 Criteria for approval of nomination — Subclass 457…
(1)This regulation applies to a person who is:
(a)a standard business sponsor; or
(b)a party to a work agreement (other than a Minister);
who, under paragraph 140GB (1) (b) of the Act, has nominated an occupation in relation to a holder of, or an applicant or a proposed applicant for, a [Subclass 457 visa].
(2)For subsection 140GB (2) of the Act, the criteria that must be satisfied for the Minister to approve a nomination by a person are set out in subregulations (3) to (12).
(3)The Minister is satisfied that the person has made the nomination in accordance with the process set out in regulation 2.73.
(4)The Minister is satisfied that the person is:
(a)a standard business sponsor; or
(b)a party to a work agreement (other than a Minister).
(5)The Minister is satisfied that the person has identified in the nomination the visa holder, or the applicant or proposed applicant for the visa, who will work in the nominated occupation.
(6)If the person identifies a holder of a [Subclass 457 visa] (the visa holder) for subregulation (5), the Minister is satisfied that the person:
(a)has listed on the nomination each other holder of a visa of that kind who was granted the visa on the basis of having the necessary relationship with the visa holder as mentioned in clause 457.321 of Schedule 2; and
(b)if the Minister requires the visa holder to demonstrate that he or she has the skills necessary to perform the occupation — the visa holder demonstrates that he or she has those skills in the manner specified by the Minister.
(7)For paragraph (6) (a), the Minister may disregard the fact that 1 or more persons required to be listed on the nomination are not listed, if the Minister is satisfied it is reasonable in the circumstances to do so.
(7A)In addition to subregulation (6):
(a)if:
(i)      the person identifies a holder of a [Subclass 457 visa] (the visa holder) for subregulation (5); and
(ii)     the [Subclass 457 visa] was granted after the Minister had waived the requirements of paragraph 4006A (1) (c) of Schedule 4 on the basis of a written undertaking made by the current sponsor of the visa holder (as set out in subclause 4006A (2) of that Schedule);
the Minister is satisfied that the person has provided, in writing, an undertaking that is equivalent to the undertaking made by the current sponsor of the visa holder; and
(b)if:
(i)      the person identifies a holder of a [Subclass 457 visa] (the visa holder) for subregulation (5); and
(ii)     the person has listed on the nomination a person described in paragraph (6) (a); and
(iii)    the [Subclass 457 visa] was granted to the person described in paragraph (6) (a) after the Minister had waived the requirements of paragraph 4006A (1) (c) of Schedule 4 on the basis of a written undertaking made by the current sponsor of the visa holder (as set out in subclause 4006A (2) of that Schedule);
the Minister is satisfied that the person has provided, in writing, an undertaking that is equivalent to the undertaking made by the current sponsor of the visa holder.
(8)If the nomination was made before 1 July 2010 — the Minister is satisfied that the person has provided the following information as part of the nomination:
(a)if there is a 6‑digit ASCO code for the nominated occupation — the 6-digit ASCO code;
(b)if there is no 6-digit ASCO code for the occupation, and the person is a standard business sponsor — the name of the occupation as it appears in the instrument in writing made for the purposes of paragraph (10) (a);
(c)if there is no 6-digit ASCO code for the occupation and the person is a party to a work agreement — the name of the occupation as it appears in the work agreement;
(d)the location or locations at which the nominated occupation is to be carried out.
(8A)If the nomination is made on or after 1 July 2010 – the Minister is satisfied that the person has provided the following information as part of the nomination:
(a)if there is a 6-digit ANZSCO code for the nominated occupation - the name of the occupation and the corresponding 6-digit ANZSCO code;
(b)if:
(i)      there is no 6-digit ANZSCO code for the nominated occupation; and
(ii)     the person is a standard business sponsor;
the name of the occupation and the corresponding 6-digit code as they are specified in the instrument in writing made for paragraph (10)(aa);
(c)if:
(i)      there is no 6-digit ANZSCO code for the nominated occupation; and
(ii)     the person is a party to a work agreement;
the name of the occupation and the corresponding 6-digit code (if any) as they are specified in the work agreement;
(d)the location or locations at which the nominated occupation is to be carried out.
(8B)The Minister is satisfied that the person has, in writing, certified as part of the nomination whether or not the person has engaged in conduct, in relation to the nomination, that constitutes a contravention of subsection 245AR(1) of the Act.;
(9)The Minister is satisfied that either:
(a)there is no adverse information known to Immigration about the person or a person associated with the person; or
(b)it is reasonable to disregard any adverse information known to Immigration about the person or a person associated with the person.
(10)If the person is a standard business sponsor — the Minister is satisfied that:
(a)if the nomination was made before 1 July 2010 - the nominated occupation corresponds to an occupation specified by the Minister in an instrument in writing for this paragraph; and
(aa)if the nomination is made on or after 1 July 2010 – the nominated occupation and its corresponding 6-digit code correspond to an occupation and its corresponding 6-digit code specified by the Minister in an instrument in writing for this paragraph and the occupation is applicable to the person identified in the nomination in accordance with the specification of the occupation; and
(b)if required by the instrument mentioned in paragraph (a) or (aa) — the nomination of an occupation mentioned in the instrument is supported, in writing to the Minister, by an organisation specified by the Minister in an instrument in writing for this paragraph; and
(c)the terms and conditions of employment of the person identified in the nomination will be no less favourable than the terms and conditions (including, if applicable, the terms and conditions provided by an enterprise agreement under the Fair Work Act 2009) that are provided or would be provided to an Australian citizen or an Australian permanent resident for performing equivalent work at the same location; and
(cc)the base rate of pay, under the terms and conditions of employment mentioned in paragraph (c), that:
(i)      are provided; or
(ii)     would be provided;
to an Australian citizen or an Australian permanent resident, will be greater than the temporary skilled migration income threshold specified by the Minister in an instrument in writing for this paragraph; and
(d)if the nomination was made before 1 July 2010 - the person has certified as part of the nomination, in writing, that:
(i)      the tasks of the position include a significant majority of the tasks of:
(A)the nominated occupation listed in the ASCO; or
(B)the nominated occupation specified in an instrument in writing for paragraph (a); and
(ii)     if the person is lawfully operating a business outside Australia but does not lawfully operate a business in Australia:
(A)the nominated occupation is a position in the business of the standard business sponsor; or
(B)the nominated occupation is an occupation specified by the Minister in an instrument in writing for this sub-paragraph; and
(iii)    if the person lawfully operates a business in Australia:
(A)the nominated occupation is a position with a business, or an associated entity, of the person; or
(B)the nominated occupation is an occupation specified by the Minister in an instrument in writing for this sub-paragraph; and
(iv)    the qualifications and experience of the visa holder, or the applicant or proposed applicant for the visa, identified in relation to the nominated occupation are commensurate with the qualifications and experience specified:
(A)for the occupation in the ASCO; or
(B)if there is no ASCO code for the nominated occupation — for the occupation in the instrument in writing made for the purpose of paragraph (a); and
(e)if the nomination is made on or after 1 July 2010 – the person has certified as part of the nomination, in writing, that:
(i)      the tasks of the position include a significant majority of the tasks of:
(A)the nominated occupation listed in the ANZSCO; or
(B)the nominated occupation specified in an instrument in writing for paragraph (aa); and
(ii)     if the person is lawfully operating a business outside Australia but does not lawfully operate a business in Australia:
(A)the nominated occupation is a position in the business of the standard business sponsor; or
(B)the nominated occupation is an occupation specified by the Minister in an instrument in writing for this sub-subparagraph; and
(iii)    if the person lawfully operates a business in Australia:
(A)the nominated occupation is a position with a business, or an associated entity, of the person; or
(B)the nominated occupation is an occupation specified by the Minister in an instrument in writing for this sub-subparagraph; and
(iv)    the qualifications and experience of the visa holder, or the applicant or proposed applicant for the visa, identified in relation to the nominated occupation are commensurate with the qualifications and experience specified:
(A)for the occupation in the ANZSCO; or
(B)if there is no ANZSCO code for the nominated occupation - for the occupation in the instrument in writing made for paragraph (aa).
(f)the position associated with the nominated occupation is genuine; and
(g)if the person has identified in the nomination the holder of a Subclass 457 (Temporary Work (Skilled)) visa in relation to whom the requirements in subclause 457.223(6) of Schedule 2 were met—one of the following applies:
(i)      the requirements in subclause 457.223(6) of Schedule 2 continue to be met;
(ii)     if:
(A)the holder would be required to hold a licence, registration or membership that is mandatory to perform the occupation nominated in relation to the holder; and
(B)in order to obtain the licence, registration or membership, the holder would need to demonstrate that the holder has undertaken a language test specified by the Minister under subparagraph 457.223(4)(eb)(iv) of Schedule 2 and achieved a score that is better than the score specified for the test by the Minister under subparagraph 457.223(4)(eb)(v) of Schedule 2;
the holder demonstrates that he or she has proficiency in English of at least the standard required for the grant (however described) of the licence, registration or membership;
(iii)    the holder is an exempt applicant within the meaning of subclause 457.223(4) of Schedule 2;
(iv)    unless subparagraph (ii) applies—the holder:
(A)has undertaken a language test specified by the Minister under subparagraph 457.223(4)(eb)(iv) of Schedule 2; and
(B)achieved within the period specified by the Minister in a legislative instrument for this subparagraph, in a single attempt at the test, the score specified by the Minister under subparagraph 457.223(4)(eb)(v) of Schedule 2; and
(h)either:
(i)      the person will:
(A)engage the visa holder, the applicant for a visa or the proposed applicant for a Subclass 457(Temporary Work (Skilled)) visa only as an employee under a written contract of employment; and
(B)give a copy of that contract to the Minister; or
(ii)     the nominated occupation is an occupation specified by the Minister in an instrument in writing for sub-subparagraph (e)(iii)(B).
(10AA)For paragraphs (10) (c) and (cc), if no Australian citizen or Australian permanent resident performs equivalent work in the person’s workplace at the same location, the person must determine, using the method specified by the Minister in an instrument in writing for this subregulation:
(a)the terms and conditions of employment; and
(b)the base rate of pay, under the terms and conditions of employment;
that would be provided to an Australian citizen or an Australian permanent resident to perform equivalent work in the person’s workplace at the same location.
(10AB)Paragraphs (10) (c) and (cc) do not apply if the annual earnings of the person identified in the nomination are equal to or greater than the amount specified by the Minister in an instrument in writing for this subregulation.
(10A)The Minister may disregard the criterion in paragraph (10) (cc) for the purpose of subregulation (2) if:
(a)the base rate of pay will not be greater than the temporary skilled migration income threshold specified for that paragraph; and
(b)the annual earnings are equal to or greater than the temporary skilled migration income threshold; and
(c)the Minister considers it reasonable to do so.
(11)If the person is a party to a work agreement (other than a Minister) — the Minister is satisfied that:
(a)the nominated occupation is specified in the work agreement as an occupation that the person may nominate; and
(b)if the nomination was made before 1 July 2010 - the person has certified as part of the nomination, in writing, that:
(i)      the tasks of the position include a significant majority of the tasks of:
(A)if the nomination is made using an ASCO code - the nominated occupation listed in the ASCO; or
(B)if the nomination is not made using an ASCO code -the nominated occupation specified in the work agreement; and
(ii)     the qualifications and experience of the visa holder, or the applicant or proposed applicant for the visa, identified in relation to the nominated occupation are commensurate with the qualifications and experience specified for the occupation in the work agreement; and
(c)if the nomination is made on or after 1 July 2010 - the person has certified as part of the nomination, in writing, that:
(i)      the tasks of the position include a significant majority of the tasks of:
(A)if the nomination is made using an ANZSCO code - the nominated occupation listed in the ANZSCO; or
(B)if the nomination is not made using an ANZSCO code -the nominated occupation specified in the work agreement; and
(ii)     the qualifications and experience of the visa holder, or the applicant or proposed applicant for the visa, identified in relation to the nominated occupation are commensurate with the qualifications and experience specified for the occupation in the work agreement.
(12)If the person is a party to a work agreement and the work agreement specifies requirements that must be met by the party to the work agreement — the Minister is satisfied that the requirements of the work agreement have been met.

[2018] AATA 4028

21 August 2018

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Statutory Construction

Natural Justice