The Trustee for The Shaikh Trust (Migration)

The Trustee for The Shaikh Trust (Migration) [2019] AATA 5211 (14 November 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  The Trustee for The Shaikh Trust
CASE NUMBER:  1807666
DIBP REFERENCE(S):  BCC2016/1899614
MEMBER:De-Anne Kelly
DATE:14 November 2019
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision under review to refuse the nomination.

Statement made on 14 November 2019 at 12:43pm

CATCHWORDS
MIGRATION – application for approval of nomination of position – Direct Entry scheme – financial capacity to employ nominee full-time for two years – net profit employing nominee part-time would be net loss employing him full-time – genuine need for position – nominee working part-time despite holding full work rights – nominee’s long journey to work – decision under review affirmed
LEGISLATION
Migration Act 1959 (Cth), s 359AA
Migration Regulations 1994 (Cth), rr 5.19(4)(d)(i), 5.19(4)(h)
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 9 March 2018 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).
The applicant applied for approval on 31 May 2016. The requirements for the approval of the nomination of a position in Australia are found in r.5.19 of the Regulations which contains two alternative streams: a Temporary Residence Transition nomination stream (r.5.19(3)) and a Direct Entry nomination stream (r.5.19(4)). 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).
In this case, the applicant has applied for approval of a nomination, seeking to satisfy the criteria in the Direct Entry nomination stream.
The delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19(4)(d)(i) and therefore r.5.19(4) of the Regulations because the evidence did not demonstrate that the nominee would be employed on a full-time basis for at least two years.
The applicant appeared before the Tribunal on 29 October 2019 to give evidence and present arguments. This was a dual hearing of both the employer nomination review application and the Visa application review. The nominee Mr Parminder Singh also gave evidence at the hearing. The Tribunal hearing was conducted with the assistance of an interpreter in the Hindi (Indian) and English languages.
The applicant was represented in relation to the review by its registered migration agent.
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 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.
Information provided with the nomination application form is set out below. All documents relate to the trustee for The Shaikh Trust trading as Taj Indian restaurant.
1. Payroll Employee Summary report for the period July 2015 to May 2016
2. 2015 PAYG Summaries for existing employees
3. 2015 PAYG Summaries report
4. 2015 Trust Tax return
5. Business Activity Statements for the period 01/01/2015 to 31/03/2015
6. Business Activity Statements for the period 01/04/2015 to 30/06/2015
7. Business Activity Statements for the period 01/07/2015 to 30/09/2015
8. Business Activity Statements for the period 01/10/2015 to 31/12/2015
9. Business Activity Statements for the period 01/01/2016 to 31/03/2016
10. Business Activity Statements for the period 01/04/2016 to 30/06/2016
11. Business Activity Statements for the period 01/07/2016 to 30/09/2016
12. Business Activity Statements for the period 01/10/2016 to 31/12/2016
13. Business Activity Statements for the period 01/01/2017 to 31/03/2017
14. Financial Statements for the period 1 July 2014 to 30June 2015
15. 2014 Trust Financials for the 12 months ended 30 June 2014
16. RCB advice copy
17. Migration Agent’s statement
18. Copy of the Take Away Menu
19. Copy of the Dine-in menu
20. Restaurant Photographs
21. Lease Agreement copies
22. Business Organisation Chart
23. ABN Registration copy
24. Trust Deed pages
25. Business Name registration details
26. Market rate information
27. Position Description copy
28. Job Advertisement copies
29. Employment Contract copy
30. Copy of the Resignation letter of current employee, Ms Dharma dated 2016.
31. 956 Form
32. Employer’s statement in relation to need for a Position
33. Certification Form – Paying for visa sponsorship
34. Certification Form – Paying for visa sponsorship.
35. Notification of refusal of nomination application.
36. Letter from migration agent “Oz go migration” dated 26 March 2018.
37. Summary of PAYG statements 1 July 2014 to 30 June 2015.
38. Reconciliation of wages expenses for financial year 2014 to 15.
39. Reconciliation of wages expenses for financial year 2015 to 16.
40. PAYG payment summary for Sunanda Dharma – 1 of July 2014 to 3 May 2015.
41. Resignation letter from Ms Dharma dated 1 April 2015.
42. Letter from migration agent “Oz go migration” dated 20 May 2016.
43. PAYG payment summary for Carmen Ler from 1 July 2014 to 25 March 2015.
44. PAYG payment summary for Daisy Rayner from 1 August 2014 to 9 February 2015.
45. PAYG payment summary for HAli Werdell from 12 November 2014 to 29 March 2015.
46. PAYG payment summary for Jessica Haffenden from 1 July 2014 to 30 June 2015.
47. PAYG payment summary for Katelyn Haffenden from 25 March 2015 to 30 June 2015.
48. PAYG payment summary for Lenny Henselin from 1 July 2014 to 29 March 2015.
49. PAYG payment summary for Maxwell Rayner from 1 July 2014 to 29 March 2015.
50. PAYG payment summary for Abdullah Al Mamun from 13 October 2014 to 30 June 2015, 1 July 2014 to 7 September 2014.
51. PAYG payment summary for Parminder Singh from 1 June 2015 to 30 June 2015.
52. PAYG payment summary for Sally Catt from 1 July 2014 to 30 30 June 2015.
53. PAYG payment summary for Sarah Chiverton from 1 July 2014 to 30 June 2015.
54. PAYG payment summary for Shaikh Asirul Islam from 1 July 2014 to 30 June 2015.
55. PAYG payment summary for Stephanie Cranston from 22 April 2015 to 30 June 2015.
56. PAYG payment summary for Ms Dharma from 1 July 2014 to 3 May 2015.
57. PAYG payment summary for Taylor Hill from 11 August 2014 to 30 June 2015.
58. PAYG payment summary for Cheney Sewpersad from 1 July 2018 to 30 June 2019.
59. PAYG payment summary for Elizabeth Forward from 1 July 2018 to 30 June 2019.
60. PAYG payment summary for Ella Hitchens from 21 March 2019 to 30 June 2019.
61. PAYG payment summary for Emily Lister from 1 July 2018 to 30 June 2019.
62. PAYG payment summary for Gurmeet Singh from 1 July 2018 to 28 April 2019.
63. PAYG payment summary for Isabella Baker from 1 July 2018 to 30 June 2019.
64. PAYG payment summary for Jahanara Bibi from 1 July 2018 to 30 June 2019.
65. PAYG payment summary for Jireh Tan from 15 May 2019 to 30 June 2019.
66. PAYG payment summary for Kelsey Read from 9 October 2018 to 30 June 2019.
67. PAYG payment summary for Madison Evans from 1 July 2018 to 30 June 2019.
68. PAYG payment summary for Olivia Flynn from 1 July 2018 to 30 June 2019.
69. PAYG payment summary for Parminder Singh from 1 July 2018 to 30 June 2019.
70. PAYG payment summary for Shaikh Asirul Islam from 1 July 2018 to 30 June 2019.
71. Company structure for Taj Indian restaurant.
72. Another copy of company structure for Taj Indian restaurant.
73. 2019, 2018, 2017 and 2016 annual accounts for Taj Indian restaurant prepared by NexGen accountants.
74. Payroll employee summary for Taj Indian restaurant for 1 July 2018 to 30 June 2019.
75. Payroll employee summary for Taj Indian restaurant from 1 July 2017 to 30 June 2018.
76. Payroll employee summary for Taj Indian restaurant from 1 July 2016 to 30 June 2017.
77. Payroll employee summary for Taj Indian restaurant from 1 July 2015 to 30 June 2016.
78. Company structure for Taj Indian restaurant.
79. 2019 annual accounts by NexGen accounting complete with compilation report.
80. Payroll employee summary, 1 July 2018 to 30 June 2019.
81. Payroll employee summary, 1 July 2017 to 30 June 2018.
82. Payroll employee summary, 1 July 2016 to 30 June 2017.
83. Payroll employee summary, 1 July 2015 to 30 June 2016.
84. Bank statements for Taj Indian restaurant Pty Ltd as trustee for the Shaikh trust from 7 June 2017 to 6 July 2019 with the exception of statement dated 7 June 2018 to 6 July 2018.
85. Business activity statements from 1 July 2017 to 30 June 2019.
86. Lease agreement for 87 to 91 Coes Creek Road, Burnside from 1 February 2018 to 31 January 2021.
87. Payslips for Shaikh Islam from 26 August 2019 to 4 November 2019.
88. Payslips for Mohammad Khan from 2 September 2019 to 4 November 2019.
89. Letter from Oz go migration dated 6 November 2019.
90. 4 restaurant manager vacancies listed on indeed website dated 2016.
91. My gumtree advertisement for restaurant manager for Taj Indian restaurant dated 2016.
92. Trust tax returns for the trustee for the Shaikh trust for the period ending 30 June 2017, 30 June 2018 prepared by NexGen accounting.
93. New employment contract between Taj Indian restaurant and Mr Parminder Singh dated 7 November 2019 for salary $54,500 per annum.
94. Several pages from diary October 2019 apparently showing table reservations.
95. Activity statement from the Australian taxation office portal for the trustee for the Shaikh trust for period 1 July 2016 to 31^st of August 2019.
96. Regional certifying body advice form 1404 signed by Queensland Chamber of Commerce and industry, dated 12 October 2015.
The Tribunal has carefully accounted for all documents by comparing the paper-based file to the list above, by comparing the electronic file of documents to the list above and by opening each electronic document file to ensure that all attachments are recorded in the list above. The Tribunal is satisfied that all documents have been properly accounted for and included in the list above. The Tribunal has carefully considered all documents.
The trustee for The Shaikh Trust owns and operates the Taj Indian restaurant that commenced trading in March 2011. The Director is Mr Akbar Ali. The business is located at 87 to 91 Coes Creek Road Burnside QLD 4560. The restaurant trades 44 hours per week with lunch Wednesday to Sunday from 11 AM to 1:30 PM and dinner Monday to Sunday from 4:30 PM to 9 PM. The restaurant can cater for 70 patrons. Mr Akbar Ali is a qualified chef and concentrates on running the kitchen. In 2016, the owner had another restaurant, the Tajh Dhada, but now the business is confined to one restaurant, the Taj Indian.
When the Taj Indian restaurant opened, Mr Ali’s business partner Mr Barua filled the position of restaurant manager then he departed the company. Mr Ali sponsored Ms Dharma in November 2013 and she resigned on 24 April 2015 when her citizenship was granted. On 22 June 2018, Mr Parminder Singh started in the position and held a student Visa with a work condition of only 20 hours a week however on 29 March 2017 Mr Singh’s student Visa expired and was replaced with a bridging Visa A with full work rights.
On 31 May 2016, the applicant lodged an employer nomination under the regional sponsored migration scheme for Subclass 187 application in the Direct Entry stream for a restaurant manager ANZSCO 141111 in favour of Parminder Singh.
On 25 September 2019, the Tribunal sent a letter inviting the applicant to attend a hearing on 18 October 2019 to give evidence and present arguments relating to the issues arising in their case. On 26 September 2019, the Tribunal received a request that the hearing be postponed as the applicant Mr Shaikh Ali, his wife Mrs Jahanara Bibi and their two daughters were visiting family in India. The Tribunal agreed to the request and the hearing was rescheduled.
On 26 September 2019, the Tribunal also received a request that the hearing be conducted by way of video conferencing. The Tribunal considered this request however did not consider it appropriate in this circumstance to conduct the hearing by video conference.
Term of employment of the visa holder: r.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 Tribunal must consider whether the applicant, The Shaikh Trust trading as Taj Indian restaurant is profitable and able to offer the nominee employment in the nominated position for at least two years full time.
There was an organisation chart originally submitted with the application in 2016 but it had changed by the date of the hearing when a new organisation chart was submitted showing the owner and head chef as Akbar Ali, tandoori chef Shaikh Islam, curry chef Ms Bibi, kitchen hand Jireh Tan and seven or eight casual wait staff. Mr Parminder Singh is shown as the restaurant manager. The applicant advised that the owner of the business, Mr Akbar Ali, is not paid a wage and submitted that this is a common practice with business owners. Mr Ali confirmed that he does not have another business or have income from work elsewhere. Ms Bibi is his wife and her PAYG payment summary for 2019 shows earnings of $17,059 for the year or $328 per week. The Tribunal was very concerned that Mr Ali, his wife Ms Bibi and their two daughters live on $328 a week plus any profits from the business. Mr Ali advised that the family live on the food from the restaurant and whatever his wife earns is enough for them. The migration agent in the letter dated 6 November 2019 states “Mr Ali would like to reiterate his company has made a profit each year since it opened in 2012. He pays his all his creditors (sic) and meets all his superannuation and taxation obligations. It is with respect, that we ask why the financial affairs of Mr Ali’s personal finances are a concern to member Kelly.” The Tribunal is not concerned with Mr Ali’s personal finances but with the finances of the sponsoring business. However since Mr Ali is the director and relies entirely on the profits of the business and his wife’s modest income from the business of $328 per week to keep his family it is reasonable to question whether this is sustainable for Mr Ali and the business.
The migration agent in the submission of 6 November 2019 provided information on Mr Ali’s personal expenses to “meet all his family’s needs and … lives a happy life”. After expenses for home loans, home insurance, electricity, internet and rates are deducted it is claimed that Mr Ali has $306 a week spare. However, it is noted that these expenses do not include essentials such as clothing, education, medical and pharmaceutical costs, entertainment, transport and travel costs. As such, the Tribunal puts no weight on the argument that Mr Ali and his family can live well on an income of $328 per week and the profits of the business.
The tax returns for the business for 2017 and 2018[1] were provided and a summary is shown below. The tax return for 2019 would likely not be available at this time however NexGen accountants have provided an annual statement[2] for the business for 2019 which is shown below.
[1] Trust tax returns for the trustee for The Shaikh Trust for the period ending 30 June 2017 and 30 June 2018 prepared by NexGen accounting.
[2] 2019, 2018, 2017 and 2016 annual accounts for Taj Indian restaurant prepared by NexGen accountants.
These figures show a net profit of $12,984, $11,633 and $15,100 respectively for the years 2017, 2018 and 2019.
Although Mr Parminder Singh worked for the restaurant from 22 June 2018, he has only ever worked 20 hours a week. He earned $28,621, $28,424 and $29,494 respectively for the 2017, 2018 and 2019 years. If Mr Parminder Singh had been employed full time on $54,500 his earnings would have been an additional $25,879, $26,076 and $25,006 respectively for 2017, 2018 and 2019 financial years. If this additional wage expenditure is accounted for as shown in the table the net profit would have been a net loss of $12,895, $14,443 and $9,906 respectively for the 2017, 2018 and 2019 financial years.

Tax Return 2,017 2018 2019

Income 387,119 384,351 399,318

Total expenses 374,692 372,573 384,218

Net profit 12,984 11,633 15,100

Additional wages for Parminder Singh -25,879 -26,076 -25,006

Actual loss -12,895 -14,443 -9,906

The Tribunal, under s.359AA of the Migration Act 1958, put this concern over a loss being shown for the business if Mr Parminder Singh had been paid a full-time rate of $54,500 per annum for the 2019 year. Mr Ali said they would make a written response within 14 days.
In the written response, the migration agent claims that Mr Gurmeet Singh resigned in April 2019 and his wage of $54,000 per year will be saved in forthcoming years. This is evidenced by the PAYG payment summary for Mr Gurmeet Singh that shows his annual gross payment of $45,272 from 1 July 2018 to 28 April 2019. The Tribunal accepts that Mr Gurmeet Singh resigned and his wage will not be an expense in 2020. Nonetheless, Mr Gurmeet Singh’s wage of $45,272 was properly included by the accountant in the wage expense for the 2019 financial year.
In the written response, the migration agent claims that Mr Shaikh Islam who earned $53,852 from 1 July 2018 to 30 June 2019 will now be working only 12 hours a week and earning approximately $21,739 per annum. Nonetheless Mr Shaikh Islam’s wage of $53,852, as shown on his PAYG payment summary from 1 July 2018 to 30 June 2019, was properly included by the accountant in the wage expense for the 2019 financial year. There is no evidence provided to show that Mr Shaikh Islam is now working only 12 hours a week and even if there were, this would be shown in the 2020 financial figures not in the 2019 financial year. The Tribunal places no weight on the assertion that Mr Shaikh Islam will now be working only 12 hours a week as there is no evidence to support this and it will not change profit or loss for the 2019 financial year.
In the written response, the migration agent claims that Mr Ali employed a new cook Mr Mohammad Khan in September 2019 who works 12 hours per week and will earn approximately $17,000 gross per year. Payslips have been provided to support this statement. Mr Mohammad Khan’s wages will not be shown in the 2019 financial year that ends on 30 June 2019 since he did not start work until September 2019. The Tribunal places no weight on the wages of Mr Mohammad Khan as it will not change the profit or loss for the 2019 financial year.
The applicant and the migration agent are conflating the actual wage and salary expenditure for year 2019 with the predicted wage and salary costs for year 2020. The migration agent did mention in her letter of 6 November 2019 that there were expansion opportunities now the restaurant has a full-time manager. These expansion opportunities are listed as a buffet-style dinner service twice a month to create a special event at the restaurant. No evidence has been provided to show Mr Parminder Singh is working on a full-time basis and that a buffet-style dinner service has been implemented at the restaurant or that it will result in increased revenue. The only evidence is a screen shot of selected pages from an October diary with handwritten notes of apparent bookings. The Tribunal therefore places no weight on the aspirational expansion opportunities. There are no financial figures to work on for financial year 2020, no income, no cost of sales, no expenditure and no way of predicting a profit or loss. It may be that overall wage and salary expenditure is lower for the 2020 financial year but without knowing the other variables such as income, expenses and cost of sales it is not reasonable to predict whether it will be a net profit or net loss.
The only financial figures the Tribunal has available for consideration are for financial year 2019. The Tribunal needs to consider if it is reasonable to use wage and salary expenditure for financial year 2020 some of which is not supported by evidence and retrospectively change the net loss for 2019 if Mr Parminder Singh were employed full time. The Tribunal does not consider it is reasonable to take this approach because the wage and salary figures for 2019 are consistent with the evidence in the PAYG payment summaries. The Tribunal finds that in the financial year 2019 the restaurant will make a loss of $9,906 with a full-time restaurant manager position paid $54,500 a year therefore the employee will not be employed on a full-time basis in the position for at least 2 years.

Accordingly, the requirement in r.5.19(4)(d) is not met.
Tasks of the position, genuine need for the position and training requirements: r.5.19(4)(h)
Regulation 5.19(4)(h) contains a number of alternative requirements.
The applicant can meet either r.5.19(4)(h)(i) or r.5.19(4)(h)(ii). The applicant sought to meet r.5.19(4)(h)(ii), therefore r.5.19(4)(h)(i) is not relevant. The Tribunal considered whether there was a genuine need for the position. The payroll summaries provided show that the nominee Mr Parminder Singh was paid actual wages of $25,548, $28,621, $28,424 and $29,494 for the years 2016, 2017, 2018 and 2019 respectively. At the hearing, the director Mr Ali confirmed that Mr Singh had only ever worked 20 hours a week since he was employed at the restaurant. The Tribunal advised Mr Ali under s.359AA that the fact the nominated position had not been filled on a full-time basis from July 2015 to the present may be part or all of the reason to affirm the decision.
The Tribunal asked Mr Ali how there was a genuine need for a restaurant manager when Mr Singh had only worked 20 hours a week since 1 July 2015. Mr Ali advised that he had originally started the business with a business partner who apparently was no longer there. Mr Ali then hired a restaurant manager Ms Dharma however, she resigned in 2015 and then they found Mr Singh. Mr Ali as the chef has to look after the kitchen as well and claims he does not have enough staff and genuinely needs a full-time restaurant manager. Mr Singh having lodged a regional sponsored migration scheme Subclass 187 Visa was granted a bridging Visa A with full work rights and that bridging Visa A would come into effect when Mr Singh’s previous student Visa expired on 29 March 2017. Mr Singh confirmed that this was the case and he did have full work rights. The Tribunal asked Mr Ali why he had not employed Mr Singh on a full-time basis when Mr Singh had full work rights. Mr Ali responded that at the time he originally employed Mr Singh in 2015 he was on a student Visa and could only work 20 hours a week. He didn’t think any more of it and left the employment of Mr Singh at 20 hours a week up to the present day.
The Tribunal asked Mr Singh how it was that he worked Tuesday to Friday when he lived at the Gold Coast and the restaurant was located at the Sunshine Coast, a distance of some 200 km. Mr Singh advised that he sometimes stayed with a friend overnight, but mostly travelled by train every work day to the Sunshine Coast and then back to the Gold Coast. The Tribunal found this incredible as this is a three to four-hour round trip by train each day. The Tribunal asked why Mr Singh had not relocated to the Sunshine Coast. He advised that he wanted to work full time but was settled at the Gold Coast and his child was in childcare there. Mr Singh said this had been a mistake and he should have worked on a full-time basis. The nominee’s motivations do not weigh on a decision since it is the applicant’s genuine need for the nominated position that needs to be considered. However, the Tribunal notes that Mr Ali did not press Mr Parminder Singh to relocate to the Sunshine Coast so he could work on a full-time basis. Mr Ali claims not to have enough staff but he did not press Mr Parminder Singh to take up the full-time position of restaurant manager.
Mr Ali advised that he would rectify the matter and commence employing Mr Singh on a full-time basis. The letter from Oz Go Migration dated 6 November 2019 states as follows:
Mr Ali the owner and head chef, has been working up to 55 hours a week since April 2015 as he works full-time in the kitchen and covers the manager’s position when Mr Singh isn’t at the restaurant on Saturday and Sunday.
This is been the company’s routine since April 2015, it wasn’t a favourable routine, but one the owner accepted while they waited for the RSMS visa to be approved, which they expected to be finalised around May 2016.
Mr Singh couldn’t move to the Sunshine Coast earlier as he was studying and living on the Gold Coast. It was agreed Mr Singh would move his family to the Sunshine Coast as soon as the RSMS visa was approved.
To everyone’s frustration, this routine has continued much longer than Mr Ali or Mr Singh originally expected. Mr Ali is a very honest and compassionate man, once he made the commitment to employ Mr Singh, he has done everything he can to uphold his commitment.
It may sound unbelievable now, but neither Mr Ali nor Mr Singh questioned their routine after the disappointment following the two RSMS refusals.
At the end of October 2019 it was highlighted to Mr Ali that Mr Singh can work full-time stop since 1 November 2019, Mr Singh has commenced working full-time at the restaurant. This will reduce Mr Ali’s hours back to a normal working week and let the risk restaurant reach its full potential…
Customers have been suggesting Taj Indian restaurant have a buffet style dinner service. Mr Ali has been keen to do this on a Friday and Saturday night, twice a month to create a special event at the restaurant. Previously Mr Ali was reluctant to put on a buffet dinner service as it is more work for both the kitchen and FOH staff, which he didn’t have the time for. Now this is possible as Mr Singh is working full-time. Estimated revenue from the buffet service is estimated at $40,000 annually. We have provided a sample of bookings for the month of October, showing the restaurant currently has between 23 to 32 customers in the restaurant, plus the takeaway orders.
This makes the kitchen very busy and Mr Ali will be able to focus on this area now Mr Singh is at the restaurant full-time. Relationships are a big part of their business and now Mr Singh will be at the restaurant on Saturday and Sunday, Mr Ali expects an increase in income as the FOH service improves.
There has been no evidence provided to the Tribunal to show that Mr Singh is working on a full-time basis from 1 November 2019. There has been no advice on how Mr Singh can work full time and travel three to four hours by train every work day from the Gold Coast to the Sunshine Coast and back again. There is no evidence of a buffet-style dinner service and only some handwritten sheets from a diary in October 2019 as evidence that bookings have increased. There are no figures with which to compare these supposed increased bookings. Even if evidence were provided, it does not explain why the nominee was not employed on a full-time basis from 29 March 2017 some two and a half years ago
The Tribunal places no weight on the migration agent’s argument that Mr Ali and Mr Singh had settled into a “routine” as this is not consistent with the applicant’s claims that he does not have enough staff and needs a full-time restaurant manager. The Tribunal finds that there is not a genuine need for a full-time restaurant manager at Taj Indian restaurant given that the nominee could have commenced full-time employment there two and a half years ago and has not done so.
Accordingly the requirements of r.5.19(4)(h) are not met.
For the above reasons the Tribunal is not satisfied that the applicant meets the requirements of r.5.19(4). The applicant has not sought to satisfy the criteria in the Temporary Residence Transition nomination stream, and as such has not met the requirements in r.5.19(3). Accordingly, the nomination of the position cannot be approved. Therefore, the Tribunal must affirm the decision under review.
Other matters
The Tribunal took a number of measures to ensure that the interpretation at hearing was as accurate as possible. The Tribunal repeated questions, rephrased and checked its understanding of Mr Ali’s evidence and invited Mr Ali’s representative to interject if and when any difficulties arose. The Tribunal also, on a number of occasions throughout the hearing, gave Mr Ali and his representatives the opportunity to discuss matters privately to ensure that Mr Ali’s representative was satisfied that Mr Ali had correctly understood the questions asked of him and that the Tribunal had correctly understood his answers. It is noted that Mr Ali answered some questions put to him in English without waiting for the interpreter to translate the question into Hindi. The Tribunal also gave Mr Ali’s representative the opportunity of addressing any further issues in written submissions to the Tribunal. The Tribunal is satisfied that there has been adequate interpretation and there has been no misunderstanding or misinterpretation in relation to the significant issues canvassed at hearing and referred to in these Reasons.
DECISION
The Tribunal affirms the decision under review to refuse the nomination.
De-Anne Kelly
Member

ATTACHMENT – EXTRACTS FROM THE MIGRATION REGULATIONS 1994
5.19Approval of nominated positions (employer nomination)
…
(2)The application must:
(a)be made in accordance with approved form 1395…; and
(aa) include a written certification by the nominator stating whether or not the nominator has engaged in conduct, in relation to the nomination, that constitutes a contravention of subsection 245AR(1) of the Act; and
(b)be accompanied by the fee mentioned in regulation 5.37.
…
Direct Entry nomination
(4)The Minister must, in writing, approve a nomination if:
(a)the application for approval:
(i)       is made in accordance with subregulation (2); and
(ii)      identifies a need for the nominator to employ a paid employee to work in the position under the nominator’s direct control; and
(b)the nominator:
(i)       is actively and lawfully operating a business in Australia; and
(ii)      directly operates the business; and
(c)for a nominator whose business activities include activities relating to the hiring of labour to other unrelated businesses — the position is within the business activities of the nominator and not for hire to other unrelated businesses; and
(d)both of the following apply:
(i)       the employee will be employed on a full-time basis in the position for at least 2 years;
(ii)      the terms and conditions of the employee’s employment will not include an express exclusion of the possibility of extending the period of employment; and
(e)the terms and conditions of employment applicable to the position will be no less favourable than the terms and conditions that:
(i)       are provided; or
(ii)      would be provided;
to an Australian citizen or an Australian permanent resident for performing equivalent work in the same workplace at the same location; and
(f)either:
(i)       there is no adverse information known to Immigration about the nominator or a person associated with the nominator; or
(ii)      it is reasonable to disregard any adverse information known to Immigration about the nominator or a person associated with the nominator; and
(g)the nominator has a satisfactory record of compliance with the laws of the Commonwealth, and of each State or Territory in which the applicant operates a business and employs employees in the business, relating to workplace relations; and
(h)either:
(i)       both of the following apply:
(A)the tasks to be performed in the position will be performed in Australia and correspond to the tasks of an occupation specified by the Minister in an instrument in writing for this sub-subparagraph;
(AAA)the occupation is applicable to the person identified under subparagraph (a)(ii) in accordance with the specification of the occupation;
(B)either:
(I)the nominator’s business has operated for at least 12 months, and the nominator meets the requirements for the training of Australian citizens and Australian permanent residents that are specified by the Minister in an instrument in writing for this sub-sub-subparagraph; or
(II)the nominator’s business has operated for less than 12 months, and the nominator has an auditable plan for meeting the requirements specified in the instrument mentioned in sub-sub-subparagraph (I); or
(ii)      all of the following apply:
(A)the position is located in regional Australia;
(B)there is a genuine need for the nominator to employ a paid employee to work in the position under the nominator’s direct control;
(C)the position cannot be filled by an Australian citizen or an Australian permanent resident who is living in the same local area as that place;
(D)the tasks to be performed in the position correspond to the tasks of an occupation specified by the Minister in an instrument in writing for this sub-subparagraph;
(DA)the occupation is applicable to the person identified under subparagraph (a)(ii) in accordance with the specification of the occupation;
(E)the business operated by the nominator is located at that place;
(F)a body that is:
(I)specified by the Minister in an instrument in writing for this sub-subparagraph; and
(II)located in the same State or Territory as the location of the position;
has advised the Minister about the matters mentioned in paragraph (e) and sub-subparagraphs (B) and (C).

[2019] AATA 5211

14 November 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Tax Return	2,017	2018	2019
Income	387,119	384,351	399,318
Total expenses	374,692	372,573	384,218
Net profit	12,984	11,633	15,100
Additional wages for Parminder Singh	-25,879	-26,076	-25,006
Actual loss	-12,895	-14,443	-9,906