The Trustee for the Cheema and Jhamb Unit Trust (Migration)

[2020] AATA 4067

The Trustee for the Cheema and Jhamb Unit Trust (Migration) [2020] AATA 4067 (24 July 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  The Trustee for the Cheema and Jhamb Unit Trust

CASE NUMBER:  1905525

DIBP REFERENCE(S):  BCC2017/2905727

MEMBER:Susan Reece Jones

DATE:24 July 2020

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Statement made on 24 July 2020 at 9:47am

CATCHWORDS

MIGRATION – approval of a nomination – Direct Entry Nomination stream – position of Hotel or Motel Manager – genuine need for the position – employment terms and conditions – actively and lawfully operating a business – demonstrated growth of applicant business – reduction in business due to COVID-19 restrictions – decision under review set aside          

LEGISLATION

Migration Act 1958, ss 245, 359
Migration Regulations 1994, rr 1.13, 5.19

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 Immigration on 18 February 2019 to reject the applicant’s application for approval of the nomination of a position in Australia under r.5.19 of the Migration Regulations 1994 (the Regulations).

2. The applicant applied for approval on 14 August 2017. The requirements for the approval of the nomination of a position as Hotel or Motel Manager (ANZSCO: 141311) in Australia are found in r.5.19 of the Regulations which contains two alternative streams: a Temporary Residence Transition nomination (r.5.19(3)) stream and a Direct Entry nomination (r.5.19(4)) stream. If the application is made in accordance with r.5.19(2) and meets the requirements of either stream, then the application must be approved. If any of the requirements are not met then the application must be refused: r.5.19(5).

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 r.5.19(4)((h)(ii)(B) of the Regulations because the applicant failed to provide sufficient evidence to demonstrate a genuine need to employ a paid employee to work in the position under the applicant’s direct control.

5. The Tribunal received a review application on 8 March 2019 which was accompanied by a copy of the delegate’s decision and an authority by which the applicant appointed a registered migration agent, Ms Carina Ford, as its representative and authorised recipient for correspondence.

6. On 12 March 2020, the Tribunal wrote to the applicant pursuant to s359 (2) of the Migration Act inviting it to provide the Tribunal with further information in support of this application.

7. The Tribunal has been provided with additional material subsequently on 26 March 2020 including:

   ·     ASIC Current and Historical extract dated 23 January 2020

   ·     ABN extract dated 29 January 2020

   ·     Financial Statements 2017,2018,2019

   ·     ATO Tax return 2017, 2018, 2019

   ·     Business Activity Statements (BAS) 2017 to 2019

   ·     Franchise fee 2018 ($72,757)

   ·     Form 1404, RCB Regional Sponsored Migration Scheme Department of Economic Development etc Traralgon:

   -    RCB Submissions dated 7 August 2017

   -    RCB Approval dated 12 December 2017

   ·     Organisation Chart

   ·     Position Description and evidence of tasks undertaken by nominee

   ·     Job advertisements: Maffra Times

   ·     Receipt for advertisement in Gippsland Times

   ·     Position Description of a Hotel / Motel Manager

   ·     Offer of employment / Employment Agreement: 7 August 2017 Salary $56,000

   ·     Employment Commencement notification: dated 4 September 2018 (noting nominee commenced work with the applicant on 1 October 2018

   ·     Payslip dated 10 December 2018 with an annual salary stated as $56,000

   ·     Lease for nominee for property in Church Street, Traralgon

   ·     CBA Business Transaction Account Lifestyle Hotels Pty Ltd 2017

8. On 22 June 2020, the Tribunal received further supporting documents from the applicant, namely:

   ·     Business Activity Statements (BAS): September 2019 – March 2020

   ·     Sky Accountants, letter dated 15 May 2020 confirming growth of applicant business

   ·     Revised business plan: 5 May 2020

   ·     Nominee’s most recent payslips

   ·     Nominee’s PAYG summary for financial year 2018-2019

   ·     Nominee’s superannuation statement evidencing work with the business since December 2018 – current

   ·     Further evidence of tasks undertaken by the Nominee

   ·     Reviews of the business before the Nominee commenced employment

   ·     Review of the business after the Nominee commenced employment

   ·     Hospitality Industry (General) Award extract

   9.     On behalf of the applicant, its directors, Mr. Satnam Singh and Mr. Anish Parekh,           appeared before the Tribunal on 17 July 2020 to give evidence and present arguments.

   10.      The Tribunal also received oral evidence from the nominee, Mrs Sandeep Kaur.

   11.      The applicant was represented in relation to the review by its registered migration agent, Ms. Carina Ford.   

   12.      For the following reasons, the Tribunal has decided to set aside the decision under review and substitute a decision approving the nomination.  

   CONSIDERATION OF CLAIMS AND EVIDENCE

   13. The issue in this case is whether the applicant meets the requirements for approval of the nomination under the Direct Entry nomination stream set out in r.5.19(4), which is extracted in the attachment to this decision. For the nomination to be approved, all the requirements must be met.

   The application is compliant: r.5.19(4)(a)

   14.      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 an identified person as a paid employee to work in the position under their direct control.

   15.      From the material on the Department file, the Tribunal is satisfied that the nomination application complied with the above requirements.

   16.      The Tribunal further notes that the nomination application form identifies a nominee, Ms. Sandeep Kaur, for the nominated occupation of Hotel or Motel Manager (ANZSCO: 141311), a paid position with a base salary of $56,500 (plus superannuation). The Tribunal is satisfied from the position description and information in the application form that the nominated position is under the direct control of the applicant.

   17. 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)

   18.      Regulation 5.19(4)(b) requires that applicant is actively, lawfully and directly operating a business in Australia.

   19.      In relation to whether the applicant is actively and lawfully operating a business in Australia, the applicant has provided evidence of its current ASIC and ABN registration and its Financial Statements, ATO Tax Returns and BAS Statements for 2017-2019      which show that it is actively trading.

   20.      The Tribunal is satisfied based on the material before it, including the ASIC Current and Historical Extract, Organisational chart, Business Activity Statements (BAS), payroll activity information and other information about the business' activities that the applicant is actively and lawfully operating a business in Australia. The applicant also provided a letter dated 15 May 2020 from Mr Ashley Carmichael of Sky Accountants, which notes that accounting firm has acted for the applicant since July 2017 and that he “has observed continued growth of the business and improvements in profitability.”

   21.      At hearing, director of the applicant Mr Singh, provided the Tribunal with comprehensive oral evidence regarding the nature of the applicant’s business. The applicant operates a 32-bed motel in Traralgon, regional Victoria as a franchisee of the Comfort Inn chain. The applicant operates a full commercial kitchen and a commercial laundry at the premises. The applicant operates 4 Motels/ hotels under various banners (Mercure, Choice etc), across regional Victoria and employs across all businesses approx. 250 employees on a full time, part time and casual basis.

   22.      At hearing, Mr Singh and Mr Parekh (who by all accounts deals with the accounts and Financial Statements of the applicant’s business), also advised the Tribunal that until the end of March 2020 when the COVID-19 pandemic took effect, the Business Activity Statements (BAS) provided (September 2019 – March 2020), show that the applicant was trading well and substantially up on the previous year. A key reason for this was attributed by both Mr Singh and Mr Parekh to the nominee, Mrs Kaur. When questioned by the Tribunal as to why, both stated that it is because of her ‘over and above’ customer service – particularly with corporate clients such as the Department of Human Services. Both acknowledged that the operations of the applicant business have been impacted by the pandemic to the extent that the applicant is trading at about 30% of its previous performance. That said, the applicant has retained its casual staff and continues to operate to the extent permitted by the restrictions noting that the applicant is conscious that it will need to call on its employees as soon as the COVID-19 restrictions are reduced and its operations can return to normal.

   23. Accordingly, the requirement in r.5.19(4)(b) is met.

   Position is not labour-hire: r.5.19(4)(c)

   24.      Regulation 5.19(4)(c) applies to those 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.   

   25.      Mr Singh provided evidence at hearing that the nominator does not participate in labour hire activities.

   26. Accordingly, the requirement in r.5.19(4)(c) does not apply.

   Term of employment of the visa holder: r.5.19(4)(d)

   27.      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.

   28.      The Tribunal has had regard to the documents provided on review, including the applicant’s Financial Statements and most recent business plan dated May 2020 which includes financial forecasts to 2023 and organisation chart.

   29.      The Tribunal has also had regard to the signed employment contract and oral evidence of Mr Singh confirming the nominee will be employed on a full-time basis for at least two years, and that the employment contract does not expressly exclude the possibility of extending the period of employment.

   30.      The Tribunal notes that from both the documentary evidence provided and oral evidence from Mr Singh and the nominee at hearing that:

   ·     The applicant advertised the role online on Seek and in regional local newspapers in June 2017;

   ·     Along with 8 other candidates, the nominee was interviewed by the applicant in July 2017;

   ·     The nominee then undertook a trial period of work at the applicant’s site in Traralgon on 24 July 2017 for 2 days;

   ·     The nominee was deemed the successful candidate from the trial and the applicant provided the nominee with a letter of offer (based on the successful grant of visa) on 2 August 2017;

   ·     Because the applicant could not fill the position despite all other attempts in the intervening period, the nominee agreed to relocate from Sydney to Morwell in regional Victoria and she commenced working at the applicant business in Traralgon in October 2018; and

   ·     The nominee has been working for the applicant either on a full time or part time basis since that time.

Employment Agreements	Commencement	Agreement	Commenced employment
Terms	Full time after visa application for sub class 187 approved	Signed 11 August 2017	1 October 2018
Salary	$56,000	Part time 2019*
Superannuation	9.5%	Full time 2020

*The issue of part time work is discussed at r.5.19(4)(h) below.

31.      Mr Singh told the hearing that the applicant had made genuine efforts to fill the position locally, however it has been very hard to recruit employees with the necessary skills and commitment to work given the location of the applicant’s business.

32.      The Tribunal is satisfied on the totality of the evidence that the applicant has the financial capacity to maintain the nominee's salary, as it has demonstrated for the past 2+ years (including currently despite the COVID-19 pandemic), and that the nominee will be employed on a full-time basis for at least two years on terms that do not exclude the possibility of extending the period of employment.

33. Accordingly, the requirement in r.5.19(4)(d) is met.

No less favourable terms and condition of employment: r.5.19(4)(e)

34.      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.

35.      Noting that the applicant’s employment contract provides for a salary of $56,000 (plus superannuation), the nominee PAYG shows as follows that for the 6-month period December 2018 to 30 June 2019, the nominee earned $21,827. The nominee’s recent (24 February 2020 onward) payslips show a weekly payment of $1076.93, being an annual salary of $56,000.

36.      The Tribunal has consulted a range of sources of information, including:

• the Payscale website (accessed 18 July 2020) indicates that a Hotel / Motel Manager           in Australia earns an average salary of $50,603, with the salary range being from $35,000 and $73,000 annually:

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Seek.com.au in relation to advertisements for positions in regional Victoria for a Hotel / Motel Manager. Understandably given COVID-19 restrictions, there are no advertisements currently listed for comparison.

37.      From the above, the Tribunal is satisfied that the proposed salary associated with the nominated position is within the salary range of what an equivalent Australian employee would be paid for a Hotel / Motel Manager in regional Victoria.

38.      The Tribunal is further satisfied that the nominee’s contract of employment has standard provisions relating to leave and termination that are consistent with those in the Fair Work Act 2009 (Commonwealth) and National Employment Standards (NES).

39. The Tribunal notes that the applicant’s Organisation chart shows that there is a position of General Manager to whom the nominee reports. That position is filled by an Australian who has also been employed by the applicant for some years. The applicant director Mr. Singh provided evidence to the Tribunal that distinguished between the role of the nominee and the incumbent General Manager, which is discussed further at r.5.19(4)(h) below.

40. Accordingly, the requirements of r.5.19(4)(e) are met.

No adverse information known to Immigration: r.5.19(4)(f)

41.      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. 

42.      The Tribunal has reviewed the Department's records, including its Integrated Client Services Environment (ICSE) and has found nothing to indicate that there is any adverse information known to Immigration about the nominator or person associated with the nominator.

43. Accordingly, the requirements of r.5.19(4)(f) are met.

Satisfactory compliance with workplace relations laws: r.5.19(4)(g)

44.      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.

45.      There is no evidence before the Tribunal of any breaches of the workplace relations laws of the Commonwealth or Victoria by the applicant.

46. Accordingly, the requirements of r.5.19(4)(g) are met.

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

47.      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 (see legislative instrument IMMI 17/074), 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.

48.      As the nominated position and business is located in regional Australia, the applicant must satisfy the requirements of the second dot point above.

49.      For the purposes of the above regulation, it is a requirement that the nominating employer- i.e. the applicant - identifies a genuine need for a paid employer to work in the nominated position under the nominator’s direct control. The Department acknowledged that the nominator’s claims relating to the tasks and requirement for the nominated position. However, when assessing the position in the context of all the information provided by the Department, the applicant was found to not have sufficiently demonstrated why a full time managerial position was required within the applicant’s business at that time. The delegate specifically noted an absence of verifiable information relating to:

·    the staffing structure;  

·    the level of business activity; or

·    the role of the director within the business.

50.      Further, the delegate placed limited weight on the applicant’s claims regarding the requirement for a managerial position within the business and that based on the applicant’s submission, it was found that the (then current) level of business activity did not support the position of a full time Hotel or Motel Manager. The delegate did give some weight to the Regional Certifying Body (RCB) approval that the need of the position was satisfied (dated 12 December 2017), however, the delegate was unable to establish on what grounds the satisfactory recommendation was afforded.

51.      At hearing, director of the applicant Mr Singh, provided the Tribunal with comprehensive oral evidence regarding the nature of the applicant’s business. The applicant operates a 32-bed motel in Traralgon, regional Victoria as a franchisee of the Comfort Inn chain. The applicant operates a full commercial kitchen and a commercial laundry at the premises. The Tribunal notes that the applicant operates 4 Motels / hotels under various banners (Mercure, Choice etc), across regional Victoria and employs across all businesses approx. 250 employees on a full time, part time and casual basis.

52.      At hearing, Mr Singh and Mr Parekh (who oversees the accounts and financial operations of all the applicant’s businesses), also advised the Tribunal that until the end of March 2020 when the COVID-19 pandemic took effect, the Business Activity Statements (BAS) provided (September 2019 – March 2020), show that the applicant was trading well and substantially up on the previous year. The Tribunal concurs with this assessment. A key reason for this was attributed by both Mr Singh and Mr Parekh to the nominee, Mrs Kaur. When questioned by the Tribunal as to why, both stated that it is because of her ‘over and above’ customer service – particularly with corporate clients such as the Department of Human Services, and the regional Court services who reside at the applicant’s Motel regularly.

53.      The applicant business operates 24/7 and has therefore one other full-time senior manager (General Manager), to cover the extensive operating hours. However, that role is distinguished from that of the nominee’s in that the other position is that of General Manager to whom the nominee reports. The nominee is responsible for running the daily operations of the hotel including but not limited to, overseeing the reception, reservations and housekeeping; and undertakes the necessary reporting duties required of the position

54.      The applicant also disclosed in its submissions of 19 June 2020 and through the oral evidence, that the nominee commenced full-time work with the applicant in 2018. However, in 2019, due to family circumstances outside of the nominee’s control (her child being bullied at his new school in Morwell because of his religion), she changed to part-time work and to relocate to northern Melbourne so her child could be settled successfully at a new school. In February 2020, the nominee’s payslips show that she re-commenced full-time work with the applicant and is currently working on a full-time basis. The applicant brought to the Tribunal’s attention that during the period of part-time employment, the nominee was rostered on to support the applicant’s business during peak hours and holiday periods to ensure the smooth running of the business and that she is integral to the success of the applicant’s business in Traralgon. Mr Singh explained repeatedly to the Tribunal that the applicant was and remains, challenged in being able to secure long term employees and because of the location in regional Australia, noting too how difficult it has been for the applicant to find suitable employees. The Tribunal is satisfied from the evidence provided that the nominee has the qualifications to undertake the role, that she relocated from Sydney in 2018 and has worked for the applicant since that time.

55.      According to the oral evidence of the applicant’s directors Mr Singh and Mr Parekh and the evidence of the nominee at hearing, in addition to the documentary evidence provided, the nominee handles the front desk, bookings, contracts such as security agreements, stock ordering, supervising staff, property maintenance and reviewing / responding to customer feedback. In addition, it is clear to the Tribunal that the nominee’s finance background is considered an asset for the applicant and that she is as noted above, responsible for working with the General Manager and providing the reporting as required by the applicant

56.      It was reiterated to the Tribunal by the applicant’s directors, that the nominee has a strong customer service ethic and is well known in particular to the corporate clients, upon whose business the applicant relies.  As the applicant business relies on these important corporate clients (as noted above), the applicant submitted it requires a manager who can continue to build and, importantly, retain these business relationships particularly during COVID-19. The Tribunal acknowledges that the applicant has remained operational despite the not insignificant challenges over the past 4 months as it continued to have corporate bookings due to corporate clients working in the local area.  The nominee’s penchant for customer service is seen by the applicant as “crucial to the success of the business during the COVID-19 pandemic”. Further, the applicant’s representative stated, “the reliability and consistency in the work of [the nominee] is even more essential now to ensure that COVID-19 health and safety measures are adhered to.”  Both of the applicant’s directors acknowledged to the Tribunal at hearing that the operations of the applicant business have been recently impacted to the extent that the applicant is trading at about 30% of its previous performance. That said, the applicant has retained all of its casual staff and continues to operate to the extent permitted by the restrictions, because the applicant is conscious that it will need to call on its existing employees as soon as the COVID-19 restrictions are reduced and its operations can return to normal.

57.      Accordingly, on the basis of all the evidence provided by the applicant, including its directors and the nominee at hearing, the Tribunal is satisfied the applicant has sufficiently demonstrated why a full time managerial position is required within the applicant’s business and has identified a genuine need for a paid employer to work in the nominated position under the applicant’s direct control. In addition, the Tribunal is satisfied that the applicant has provided substantial verifiable information relating to the applicant’s staffing structure, level of business activity and the role of the directors within the business.

58.      The Tribunal is further satisfied that 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.

59. 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

60.      The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Susan Reece Jones
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)     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).