Three Little Steps Pty Ltd and Slanted Pty Ltd (Migration)

Three Little Steps Pty Ltd and Slanted Pty Ltd (Migration) [2022] AATA 1669 (12 January 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Three Little Steps Pty Ltd and Slanted Pty Ltd
CASE NUMBER:  1905724
HOME AFFAIRS REFERENCE(S):          BCC2017/2479076
MEMBER:Terrence Baxter
DATE:12 January 2022
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Statement made on 12 January 2022 at 9:04am
CATCHWORDS
MIGRATION – application for approval of nomination of position – direct entry stream – cook – genuine need for position – large-scale business returning to full operation after COVID-19 restrictions – capacity to pay nominee’s salary – nominee’s specialised skills, experience and longevity in position – adverse information not investigated or substantiated – breach of sponsorship obligations counselled but no formal sanction imposed – joint hearing with reviews of related nomination and visa refusals – decision under review set aside
LEGISLATION
Migration Act 1958 (Cth), ss 359AA, 376
Migration Regulations 1994 (Cth), rr 1.13A(1), 5.19(4)(a)(ii), (d)(i), (f)(i), (ii), (h)(ii)(B)
CASES
Bharaj Construction Pty Ltd v MIBP [2016] FCCA 902
MIBP v Jayshree Enterprises Pty Ltd [2017] FCA 264
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 19 February 2019 to reject the applicant’s application for approval of the nomination of a position in Australia under reg 5.19 of the Migration Regulations 1994 (Cth) (the Regulations).
The applicant, Three Little Steps Pty Ltd and Slanted Pty Ltd, applied for approval on 12 July 2017. The applicant nominated Mrs Elisa Scalabrini (the nominee) in the position of Cook. The requirements for the approval of the nomination of a position in Australia are found in reg 5.19 of the Regulations which contains two alternative streams: a Temporary Residence Transition nomination stream (reg 5.19(3)) and a Direct Entry nomination stream (reg 5.19(4)). If the application is made in accordance with reg 5.19(2) and meets the requirements of either stream, then the application must be approved. If any of the requirements are not met, then the application must be refused: reg 5.19(5).
In this case, the applicant has applied for approval of a nomination seeking to satisfy the criteria in the Direct Entry nomination stream.
The delegate refused the application on the basis that the applicant’s nomination did not satisfy reg 5.19(4)(a)(ii) of the Regulations because the delegate found that the applicant did not identify a need for a paid employee to work in the position under the applicant’s direct control.
The applicant lodged an application for review of the delegate’s decision with the Tribunal on 11 March 2019.
Mrs Amy Escott, the sole shareholder of Slanted Pty Ltd, appeared before the Tribunal by video conference on 20 October 2021 to give evidence and present arguments. The hearing was a joint hearing with the application for review of a decision to refuse the visa application of the nominee. The hearing was also conducted with two other related applications for review lodged by the applicant, in addition to the related applications for review of decisions to refuse the visa applications of the nominees in those matters. The Tribunal also received oral evidence from the nominee by video conference.
The Tribunal exercised its discretion to hold the hearing by video conference. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by video conference, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by video conference.
The applicant was represented in relation to the review by its registered migration agent Mr Natale Menniti of Immigration Gurus. The representative attended the Tribunal hearing by video conference.
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
The issue in this case is whether the applicant meets the requirements for approval of the nomination under the Direct Entry nomination stream set out in reg 5.19(4), which is extracted in the attachment to this decision. For the nomination to be approved, all the requirements must be met.
Evidence presented prior to the hearing
The applicant produced to the Department of Immigration and Border Protection (now the Department of Home Affairs) (the Department) the following documents:
a.A certificate of currency regarding the applicant’s insurance dated 24 May 2017.
b.Financial reports for the 2015 to 2017 financial years.
c.A partnership tax return for the 2016 financial year.
d.A submission from the applicant’s Human Resources Manager dated 23 June 2017.
e.Activity statements for the period from January 2017 to June 2018.
f.The trust deeds for the MIJ Family Trust and Hollesc Family Trust.
g.A food licence issued to the applicant expiring on 30 September 2017.
h.An employment contract of the nominee dated 30 June 2017.
i.A current ABN lookup form for the Hollesc Family Trust & MIJ Family Trust, ABN 72 350 830 162.
j.A position description.
k.A certificate of currency for the applicant’s WorkCover policy, valid from 1 July 2016 to 30 June 2017.
l.A liquor licence issued to the applicant.
m.Promotional material of Nu Nu Restaurant.
n.An ASIC business name details extract for Nu Nu Restaurant.
o.An enterprise bargaining agreement of the applicant last updated 30 August 2013.
p.A payslip of Chef employed by the applicant for the period from 26 June 2017 to 2 July 2017.
q.Correspondence and a Form 1404 advice from the Regional Certifying body (RCB), the Queensland Chamber of Commerce and Industry, Cairns dated 31 July 2017.
r.A food licence issued to the applicant expiring on 30 September 2018.
s.A payroll activity summary of employee wages prepared by the applicant for the 2018 financial year.
t.Payslips of the nominee for the period from 27 August to 16 September 2018.
u.A job advertisement for the position.
v.A PAYG payment summary of the nominee for the 2018 financial year.
w.An employment contract of the nominee dated 4 October 2018.
x.ASIC company summaries for Slanted Pty Ltd and Three Little Steps Pty Ltd.
The applicant produced to the Tribunal the following documents:
a.A copy of the delegate’s decision.
b.Financial reports for the 2018 to 2020 financial years.
c.An updated current ABN Lookup form for the Hollesc Family Trust & MIJ Family Trust, ABN 72 350 830 162.
d.Copies of the ASIC company summaries previously produced to the Department.
e.Activity statements for the period from January 2019 to June 2021.
f.A copy of the ASIC business name extract for Nu Nu Restaurant previously produced to the Department.
g.Evidence of the tenancy of business premises for the Rising Sun Restaurant and Bar Pty Ltd.
h.A copy of the Form 1404 previously produced to the Department.
i.Food licences issued to the applicant expiring 30 September 2021 and 30 September 2022.
j.A provisional food licence issued to Nu Nu Events & Catering expiring 7 February 2021.
k.A staff list of the applicant.
l.A payslip of the nominee for the period from 16 March 2020 to 22 March 2020.
m.Evidence of job advertisements for the position.
n.A position description.
o.A menu of the applicant.
p.A catering contract between Nu Nu Events and Catering and Sunlover Operations Pty Ltd dated 1 October 2020.
q.A partnership tax return for the 2020 financial year.
r.Certificates of currency for the applicant’s WorkCover policy, valid from 1 July 2020 to 30 September 2021, and 1 July 2021 to 30 June 2022.
s.An employment contract of the nominee dated 30 June 2021.
t.A submission from the applicant’s accountant dated 2 August 2021.
u.A submission from the representative regarding Mrs Escott’s attendance at the hearing dated 11 October 2021.
v.ASIC current and historical company extracts for Slanted Pty Ltd and Three Little Steps Pty Ltd.
w.Evidence of the applicant’s tenancy of its business premises.
x.A document outlining the applicant’s Enterprise Bargaining Agreement Rates effective from 1 February 2021.
y.Evidence of previous employer nomination approvals lodged by the applicant.
z.A payslip of a Chef employed by the applicant for the period from 27 September 2021 to 3 October 2021.
Evidence presented at the hearing regarding the applicant’s operations
Mrs Escott gave evidence regarding the applicant’s business operations. She stated that the applicant comprised two companies which were trustees of two discretionary trusts and operated as a partnership of family trusts. She said that the applicant’s primary business was a restaurant, although the applicant also had a large off-site catering arm, provided boat catering services and hosted regular weddings and functions. Mrs Escott later clarified that the off-site catering was provided by a related business, being the Rising Sun Unit Trust. Mrs Escott said that the applicant had been trading since 2004 and that the restaurant was located at Palm Cove, Cairns, Queensland.
Mrs Escott stated that the restaurant operated seven days per week and provided breakfasts, lunches and dinners for its patrons. The staff list produced by the applicant indicates that the applicant has a workforce of over 70 employees.
Mrs Escott gave evidence regarding the effects of the COVID-19 pandemic on the applicant’s business. She said that the initial lockdowns had a financial effect on the business. However, she said that after the borders had reopened the restaurant was almost busier than prior to the pandemic. She said that an unexpected effect of the pandemic was the great difficulty which the applicant was experiencing in finding suitable staff for the restaurant.
The nominee gave evidence of her employment in the position and the tasks performed by her in that position.
Evidence presented after the hearing
After the hearing, the applicant produced to the Tribunal the following documents:
a.Submissions from the representative dated 17 November 2021.
b.A submission from Mrs Escott dated 17 November 2021.
c.An Australian Taxation Office Account Summary for Nu Nu Restaurant and Hollesc Family Trust & MIJ Family Trust.
d.A submission from the applicant’s accountant dated 17 November 2021.
e.A functions and events forecast summary for the applicant for the period January to December 2022.
f.A letter regarding the extension of the applicant’s tenancy of its business premises until 15 February 2024.
g.An updated staff list of the applicant.
h.A submission from the applicant’s Human Resources Manager regarding advertising undertaken for the position, accompanied by a summary of unsuccessful candidates.
i.A letter issued to the applicant from the Australian Border Force regarding compliance and the finalisation of monitoring, dated 31 July 2019.
j.A payroll register summary prepared by the applicant for the nominee for the period from July 2019 to June 2020.
k.A PAYG payment summary of the nominee for the 2018 to 2019 financial years.
l.A Certificate IV in Commercial Cookery awarded to the nominee.
m.The trust deed of the Rising Sun Unit Trust.
n.The financial report of the Rising Sun Unit Trust for the 2020 financial year.
o.A profit and loss statement and balance sheet for the 2021 financial year.
p.A profit and loss statement and balance sheet of the Rising Sun Unit Trust for the 2021 financial year.
The application is compliant: reg 5.19(4)(a)
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) of the Migration Act 1958 (the Act). 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.
Having regard to the documentation in the file of the Department, the Tribunal is satisfied that the application for approval was in the approved form. The application relates to a visa in the Direct Entry stream seeking to meet the requirements in the Regional Sponsored Migration Scheme (RSMS) and consequently no fee is payable (reg 5.19(2) and reg 5.37(4) of the Regulations). The application included a written certification stating that the applicant had not engaged in conduct in relation to the nomination that contravenes s 245AR(1) of the Act. The requirements of reg 5.19(2) and consequently of reg 5.19(4)(a)(i) are therefore met.
Regulation 5.19(4)(a)(ii) requires that the application identifies a need for the nominator to employ the nominee as a paid employee to work in the position under the nominator’s direct control. It is unclear whether this requirement is directed just at a statement to this effect or something of a more qualitative nature. The wording ‘identifies a need’ arguably suggests more is required to meet this criterion than simply a statement or declaration that there is such a need. ‘Identify’ is defined as ‘to recognise or establish as being a particular person or thing; verify the identity of.’[1] On that view, which is consistent with that reflected in Departmental policy, a decision maker would need to be satisfied there is a genuine need on the part of the nominator to employ someone in the nominated position.[2] However, it could alternatively be argued that reg 5.19(4)(a) as a whole is directed towards requirements for the application form/process of a more administrative nature, such that reg 5.19(4)(a)(ii) could be met by a simple statement or certification of need. Support for this view can also be found in the contrast between the wording of reg 5.19(4)(a)(ii) and, for example, reg 5.19(4)(h)(ii)(B) (for applications relating to positions in regional Australia), which requires that there be a genuine need for the nominator to employ the nominee as a paid employee to work in the position under the nominator’s direct control – clearly requiring a qualitative assessment, and reg 5.19(4)(d)(i), which requires satisfaction that the employee will be employed on a full-time basis in the position for at least two years. Given the uncertain scope of reg 5.19(4)(a)(ii), and the requirement in relation to this application to satisfy reg 5.19(4)(h)(ii)(B), the Tribunal considers that this issue is more appropriately considered under reg 5.19(4)(h)(ii)(B) later in these Reasons.
[1] Dictionary.com (accessed November 2021).
[2] In Bharaj Construction Pty Ltd v MIBP [2016] FCCA 902 (Judge Barnes, 28 April 2016), the Court considered a similarly worded provision in respect of a pre-1 July 2012 RSMS nomination, i.e. ‘the employer nomination is made by an employer in respect of a need for a paid employee’. Whilst on the one hand reg 5.19(4)(a)(ii) does not appear to impose a different requirement beyond emphasising the requirement for an applicant to identify the need (unlike the pre-1 July 2012 version of reg 5.19(2)(a) and (4)(a)), the wording of the criteria does differ slightly and the Tribunal exercises caution in applying the reasoning of Bharaj to a post-1 July 2012 nomination as is currently being considered.
The Tribunal considers that reg 5.19(4)(a)(ii) is more directed to the administrative process, consistent with the requirements of reg 5.19(4) as a whole. The nomination application, on page 4 of that document, identifies that the position to be filled is that of Cook and on page 6 identifies the nominee as the nominated person. The Tribunal is therefore satisfied that the application for approval identifies a need to employ the nominee as a paid employee in the position of Cook under the applicant’s direct control such that reg 5.19(4)(a)(ii) is met. The Tribunal will consider later in these Reasons whether the applicant has established a genuine need for the applicant to employ the nominee as a paid employee to work in the position under the nominator’s direct control for the purposes of reg 5.19(4)(h)(ii)(B).
Having found that regs 5.19(4)(a)(i) and (ii) are met, accordingly, the requirement in reg 5.19(4)(a) is met.
Nominator is actively and lawfully operating a business in Australia: reg 5.19(4)(b)
Regulation 5.19(4)(b) requires that the applicant is actively, lawfully and directly operating a business in Australia.
The applicant produced recent financial statements, a taxation return, recent activity statements, copies of the relevant trust deeds, ASIC evidence in respect of the applicants and the registered business name, evidence from ABN Lookup regarding the applicant’s ABN and evidence of the lease of the applicant’s business premises. Mrs Escott gave evidence of the nature of the business conducted by the applicant.
The applicant’s financial statements reveal that it has recorded sales exceeding $4 million in the 2018, 2019 and 2021 financial years with sales exceeding $3.5 million in the 2020 year (during the most severe effects of the COVID-19 pandemic). Having regard to the evidence presented to the Tribunal, the Tribunal is satisfied that the applicant is actively, lawfully and directly operating a business in Australia, namely the operation of a restaurant and catering business.
Accordingly, the requirement in reg 5.19(4)(b) is met.
Position is not labour hire: reg 5.19(4)(c)
Regulation 5.19(4)(c) applies to nominators whose business activities include those relating to labour hire to an unrelated business. In these cases, the nominated position must be within the business activities of the nominator.
Mrs Escott gave evidence that the applicant does not provide labour hire to other businesses. There is no evidence before the Tribunal to suggest that the applicant is engaged in labour hire activities.
Accordingly, the requirement in reg 5.19(4)(c) does not apply.
Term of employment of the visa holder: reg 5.19(4)(d)
Regulation 5.19(4)(d) requires the nominee to be employed in the nominated position for at least two years full time, and the terms and conditions of that employment do not expressly exclude the possibility of an extension.
The Employment Contract dated 30 June 2021 produced to the Tribunal provides that the nominee is to work full-time. The job title is Cook. The document further provides that the agreement is to commence upon the grant of the nominee’s RSMS Subclass 187 visa and her return to Australia. The contract provides that the employment is for a minimum of two years. The document does not exclude ongoing employment beyond the two-year term. Accordingly, the requirement in reg 5.19(4)(d)(ii) is met.
However, it is also open to the Tribunal to consider whether the applicant’s business has the financial resources to meet the wages costs for the nominee over the employment period (MIBP v Jayshree Enterprises Pty Ltd [2017] FCA 264). The financial statements provided by the applicant to the Tribunal disclose as follows:

Financial year

    2019

    2020

    2021

Sales

    $4,589,210

    $3,515,562

    $4,639,289

Net profit

     $244,813

       $81,165

     $182,109

Net assets/(liabilities)

     ($231,194)

     ($250,439)

     $776,659

Unpaid superannuation

    $287,266

    $334,085

       $22,960

Debt by associated trust

   $1,168,076

   $1,170,525

     $850,379

The applicant has traded profitably during the last three financial years. Sales and net profit were lower in the 2020 year, but that is explained by the business lockdowns as a result of the pandemic. The Tribunal did however express concerns to Mrs Escott at the hearing regarding certain aspects of the applicant’s balance sheets. At the time of the hearing, the most recent financial statements than available were for the 2020 financial year, the statements for the 2021 financial year having been received by the Tribunal after the hearing.
The Tribunal raised with Mrs Escott the significant amount of unpaid superannuation in the 2019 and 2020 financial years. She stated that there was no outstanding superannuation liability of the applicant on the hearing date. The applicant subsequently produced the 2021 balance sheet which showed that the superannuation liability had been significantly reduced and provided a statement from its accountant that all superannuation obligations had now been paid in full.
The Tribunal also expressed concern that the applicant’s major asset was a debt due by the Rising Sun Unit Trust. That debt had increased from $585,178 in the 2017 balance sheet to $1,170,525 in the 2020 balance sheet. Mrs Escott stated that the Unit Trust had previously operated a restaurant which was not financially successful and had relied on financial support from the applicant. She said that that restaurant had been closed in March 2019 and that the Unit Trust was now trading profitably in the boat catering business. After the hearing, the applicant produced financial statements of the Unit Trust for the 2021 financial year which reveal a trading profit of almost $100,000 in that year and a reduction in the debt payable to the applicant of over $300,000.
The evidence before the Tribunal discloses that the nominee has been offshore since the month of February 2020. The salary paid to her in the 2020 financial year was $38,523 and she was not employed by the applicant during the 2021 financial year. The salary payable to the nominee under the recent employment contract is $56,770.36 per annum. Accordingly, the applicant’s payroll expenditure will increase if this application is approved, and the nominee recommences her employment with the applicant. However, the Tribunal notes that the applicant’s net profits in recent years substantially exceed the amount of any increase in its payroll which will follow re-employment of the nominee. The Tribunal is satisfied that the applicant has the capacity to pay the nominee’s salary specified in the Employment Contract for at least two years. Having regard to the overall trading performance of the applicant, the Tribunal is satisfied that the applicant has the financial capacity to employ the nominee in the position of Cook in accordance with the Employment Contract and that the nominee will be employed on a full-time basis in that position for at least two years. Accordingly, the requirement in reg 5.19(4)(d)(i) is met.
Accordingly, as the requirements of both reg 5.19(4)(d)(i) and (ii) are met, the requirement in reg 5.19(4)(d) is met.
No less favourable terms and conditions of employment: reg 5.19(4)(e)
Regulation 5.19(4)(e) requires that the terms and conditions of employment applicable to the nominated position will be no less favourable than those that are, or would be, provided to an Australian citizen or permanent resident performing equivalent work in the same workplace at the same location.
The recent employment contract provides that the applicant will pay to the nominee an Annualised Salary under the relevant Enterprise Bargaining Agreement, with the salary being specified as $56,770.36 per annum. The nominee is entitled to superannuation in accordance with the Superannuation Guarantee and leave in accordance with the National Employment Standards.
The applicant’s staff list confirms that it employs Australian permanent residents as chefs and cooks. The applicant produced evidence that the salary to be paid to the nominee is equivalent to the salary being paid to an Australian permanent resident in the position of Qualified Chef and that the salary is in accordance with the Annualised Salary for the position of Qualified Chef under the Enterprise Bargaining Agreement.
The Tribunal also has had regard to the certificate of the RCB, being Form 1404 issued by the Chamber of Commerce and Industry, Cairns, dated the 1 July 2017, that the nomination satisfies the requirements set out in reg 5.19(4)(e) and regs 5.19(4)(h)(ii)(B) and (C).
Based on the evidence available, the Tribunal is satisfied that the terms of employment applicable to the nominee are no less favourable than the terms and conditions which would be provided to an Australian citizen or Australian permanent resident for performing such work in that workplace at that location.
Accordingly, the requirements of reg 5.19(4)(e) are met.
No adverse information known to Immigration: reg 5.19(4)(f)
Regulation 5.19(4)(f) requires that there is no adverse information known to Immigration about the nominator or person associated with the nominator; or it is reasonable to disregard any such information. For these purposes, ‘adverse information’ and ‘associated with’ have the meaning given in regs 1.13A and 1.13B.
During the review of a related application involving the applicant, the Department issued a certificate and notification under s 376 of the Act on 7 February 2019 with respect to source information received by the Border Watch Allegations and Referral Team on 30 November 2018. The certificate was duly signed and dated. The certificate stated that disclosure of the material would be contrary to the public interest because it may disclose, or enable a person to ascertain the existence or identity of, a confidential source of information.
The Tribunal provided a copy of the s 376 certificate to the applicant by email on 6 October 2021. The Tribunal was not satisfied that the information referred to in the certificate could identify the source of the information and exercised its discretion to provide a copy of the information to the applicant, which it did, also on 6 October 2021.
The information consisted of an allegation that the applicant was involved in taking cash for an RSMS Subclass 187 visa for sponsoring an unidentified person in the position of Restaurant Manager. The Tribunal discussed the allegation with Mrs Escott at the hearing. She said that it was completely untrue and that the notification of the allegation from the Tribunal on 6 October 2021 was the first that the applicant had heard of the allegation.
It is necessary for the Tribunal to consider whether this information, which is known to Immigration, is adverse information within the meaning of reg 1.13A. The section relevantly defines adverse information as adverse information relevant to the sponsor’s suitability as an approved sponsor or nominator and includes certain specific examples of such information.
The Tribunal finds that the information known to Immigration about the applicant, being that referred to in the confidential allegation, is relevant to the applicant’s suitability as a nominator and that it is not inconsistent with the kinds of adverse information listed in reg 1.13A(1). The Tribunal therefore finds that the information is adverse information as provided in reg 1.13A. It therefore follows that there is adverse information known to Immigration about the applicant and the applicant does not satisfy the requirement in reg 5.19(4)(f)(i) in respect of this information.
The Tribunal then needs to consider whether it is reasonable, under reg 5.19(4)(f)(ii), to disregard the adverse information. As set out in paragraph 47 above, when advised of the details of the allegation, Mrs Escott immediately and vigorously denied it.
The Tribunal notes that the allegation of November 2018 is unsubstantiated by names, dates or documentary evidence. There is no information before the Tribunal that the allegation has been investigated or substantiated in any way.
Having regard to all of the evidence, the Tribunal finds that it is reasonable to disregard the adverse information. Accordingly, the requirement in reg 5.19(4)(f)(ii) is met in respect of the information referred to in the s 376 certificate
At the hearing, the Tribunal raised with Mrs Escott the contents of a Client of Interest note from the records of the Department. Pursuant to the procedure specified in s 359AA of the Act, the Tribunal provided a copy of the note to Mrs Escott by way of a shared screen. The details of the information referred to in the note are that monitoring of the applicant was finalised as unsatisfactory during 2019. The Tribunal explained to Mrs Escott why the information was relevant to the application and offered her an adjournment to consider the information. Mrs Escott stated that she did not need time to respond.
Mrs Escott stated that the monitoring of the applicant followed a site visit by representatives of the Department. She said that she had advised officers of the Department that Restaurant Managers performed some cleaning work in the restaurant as part of their normal duties. She said that it was explained to her that such tasks were not part of the tasks of a Restaurant Manager and that sponsored managers could not be required to perform such tasks, although other managers could be required to do so.
The representative offered to provide a copy of the Department’s findings after the hearing. The applicant subsequently provided to the Tribunal a copy of the Department’s findings dated 31 July 2019. The Department found that the applicant had breached certain sponsorship obligations of the nature described by Mrs Escott. The Department advised the applicant that it would not impose a formal sanction but counselled the applicant in respect of its sponsorship obligations. The Department advised that no adverse information for the purposes of reg 1.13A was to be recorded against the applicant.
Accordingly, the Tribunal finds that, in respect of the Departmental monitoring in 2019, there is no adverse information known to Immigration about the applicant.
Otherwise, there is no evidence before the Tribunal that there is any adverse information of the type described in the relevant definitions known to the Department about the applicant or any associated person.
Accordingly, the requirements of reg 5.19(4)(f) are met.
Satisfactory compliance with workplace relations laws: reg 5.19(4)(g)
Regulation 5.19(4)(g) requires that the applicant has a satisfactory record of compliance with the laws of the Commonwealth, and of each State or Territory in which the applicant operates a business and employs employees in the business, relating to workplace relations.
There is no evidence before the Tribunal to suggest that the applicant has an unsatisfactory record of compliance with workplace relations laws of the Commonwealth or any State or Territory in which the applicant operates a business. The Tribunal is satisfied that the applicant does have a satisfactory record of compliance.
Accordingly, the requirements of reg 5.19(4)(g) are met.
Tasks of the position, genuine need for the position and training requirements: reg 5.19(4)(h)
Regulation 5.19(4)(h) contains a number of alternative requirements. These are set out in detail in the attachment to the decision but can be briefly summarised as requiring either that:
·the tasks to be performed in the position will be performed in Australia and correspond to those of an occupation specified by the Minister in the relevant legislative instrument, 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 (see legislative instrument IMMI 17/058), the occupation is applicable to the proposed employee in accordance with the specification of the occupation, and that a regional certifying body has advised the Minister about certain matters relating to the position.
The applicant indicated in the nomination application that it was applying under the RSMS in the Direct Entry nomination stream. The applicant indicated that the postcode where the position was to be filled was 4879. Based on the evidence, the Tribunal is satisfied that the position and the applicant’s business are located at 1 Veivers Road, Palm Cove, Queensland, 4879. As this postcode is specified in the relevant instrument as being in regional Australia, the requirements of reg 5.19(4)(h)(ii) must be met by the applicant.
Regulation 5.19(4)(h)(ii)(A) – the position is located in regional Australia
For the reasons set out in the preceding paragraph, the Tribunal is satisfied that the position is located in regional Australia. Accordingly, the requirements of reg 5.19(4)(h)(ii)(A) are met.
Regulation 5.19(4)(h)(ii)(B) – genuine need to employ the nominee to work in the position under the applicant’s direct control
Mrs Escott was asked at the hearing why the applicant needed to employ the nominee as a Cook. The Tribunal indicated to Mrs Escott that it accepted that a restaurant needs to employee chefs and cooks. However, the Tribunal observed that the staff list for the restaurant indicated that the current staff included a Head Chef, a Sous Chef, a Catering Chef, six qualified chefs, six cooks (including the nominee who was recorded as being offshore) and four apprentice chefs. Mrs Escott was asked to explain why there was a genuine need to employ the nominee, having regard to the size of the applicant’s staff.
Mrs Escott stated that the applicant’s business was a very large operation. She said that they produced all their food on site and that a massive amount of labour was required to successfully run the operation. She spoke at the hearing of difficulties which the applicant had experienced in securing the services of qualified staff. After the hearing, Mrs Escott made a submission which stated that the applicant is now facing a new challenge with staffing. She stated that new restrictions had been introduced for hospitality venues which prevented unvaccinated employees from working in the business and that, as a result, the applicant would lose at least 12 of their staff of 70. She said that what was already a desperate situation to recruit staff had been made even more impossible.
Mrs Escott stated that the nominee is a pastry and dessert specialist and has a special skill set in that area. She referred to the nominee’s longevity in the position and her loyalty to the applicant. She stated that the applicant needed the nominee to return to her position. In relation to her employment, the nominee stated that she was first employed by the applicant as a part-time Cook in June 2016 and that she worked full-time in that position until she travelled overseas in February 2020.
As indicated to Mrs Escott at the hearing, the Tribunal accepts that a restaurant needs to employee qualified staff. The Tribunal notes that the nominee was permanently employed as a Cook until she travelled overseas in February 2020 and that she has been unable to return because of border closures. Her previous full-time employment in the position supports a finding that there is a genuine need for the position.
The Tribunal also has had regard to the certificate of the RCB referred to in paragraph 41 above.
The Tribunal is satisfied that there is a genuine need for the applicant to employ the nominee to work in the position of Cook at the location under the nominator’s direct control. Accordingly, the requirements of reg 5.19(4)(h)(ii)(B) are met.
Regulation 5.19(4)(h)(ii)(C) – the position cannot be filled by an Australian citizen or an Australian permanent resident who is living in the same local area
The applicant has provided evidence that it has advertised regularly for the position between July and September 2021 together with a report regarding the advertising campaign. The report sets out particulars of applications received in response to the advertising and the reasons why unsuccessful job applicants were rejected.
The Tribunal also has had regard to the certificate of the RCB referred to in paragraph 41 above.
Having had regard to all the evidence, the Tribunal is satisfied that the position cannot be filled by an Australian citizen or an Australian permanent resident living in the same local area as the proposed workplace. Therefore, reg 5.19(4)(h)(ii)(C) is satisfied.
Regulations 5.19(4)(h)(ii)(D) and (DA) – 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 and the occupation is applicable to the proposed employee in accordance with the specification of the occupation
The occupation proposed by the applicant was Cook which has the six-digit Australian and New Zealand Standard Classification of Occupations (ANZSCO) code 351411, and which is specified in the relevant instrument, being IMMI 17/058. The tasks specified in ANZSCO for that occupation are as follows:
·examining foodstuffs to ensure quality
·regulating temperatures of ovens, grills and other cooking equipment
·preparing and cooking food
·seasoning food during cooking
·portioning food, placing it on plates, and adding gravies, sauces and garnishes
·storing food in temperature-controlled facilities
·preparing food to meet special dietary requirements
·may plan menus and estimate food requirements
·may train other kitchen staff and apprentices.
The nominee’s specific duties according to the position description are:
• Ensure that all food prepared and served is of a high quality as per recipe specifications
• Ensure that all food is served at a safe and appropriate temperature using temperature probes where necessary
• Maintain legal hygiene and safety requirements for food and equipment
• Check the presentation of dishes before serving
• Complete mis en place within appropriate time frames
• Check ingredients for freshness and flavour before serving
• Ensure that section is well organized during service
• Provide front of house menu training as required
• Maintain comprehensive product knowledge including ingredients, equipment, and current food trends.
• Ensure that food is stored and labelled correctly according to hygiene and safety standards and to control
and minimise waste and loss.
• Take responsibility for the upkeep of the kitchens, and kitchen equipment.
• Ensure appropriate order forms and other administrative paperwork is accurately completed in line with procedures.
• Advise Head Chef of stock items that need to be ordered
• Positively interact with customers and where possible meet dietary requirements
• Create a special experience for customers.
The nominee’s duties according to the position description are consistent with the tasks specified for the occupation in ANZSCO. Mrs Escott gave evidence of the particular skills of the nominee as a pastry and dessert specialist. The Tribunal is satisfied that the tasks to be performed in the position correspond to the tasks of the occupation of Cook specified by the Minister in the relevant instrument. The applicant provided evidence that the nominee holds a Certificate IV in Commercial Cookery and the Tribunal is satisfied that the occupation is applicable to the nominee. Accordingly, the requirements of reg 5.19(4)(h)(ii)(D) and reg 5.19(4)(h)(ii)(DA) are met.
Regulation 5.19(4)(h)(ii)(E) – the business operated by the applicant is located at the same place as the position

As set out in paragraph 63 above, the Tribunal is satisfied that the business operated by the applicant is located at 1 Veivers Road, Palm Cove, Queensland, 4879, which is the same location as the address of the position to be filled. Accordingly, the requirements of reg 5.19(4)(h)(ii)(E) are met.
Regulation 5.19(4)(h)(ii)(F) – a body specified by the Minister in an instrument in writing for this sub-subparagraph and located in the same State as the location of the position has advised the Minister about the matters mentioned in regs 5.19(4)(h)(ii)(B) and (C)
The certificate referred to in paragraph 41 above was submitted to the Tribunal. Accordingly, the Tribunal is satisfied that reg 5.19(4)(h)(ii)(F) is met.
Accordingly, the requirements of reg 5.19(4)(h) are met.
Based on the findings above, the Tribunal is satisfied that the applicant meets the requirements of reg 5.19 for approval of the nomination of the position in Australia.
DECISION
The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.
Terrence Baxter
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 the identified person, as a paid employee, to work in the position under the nominator’s direct control; and
(b)the nominator:
(i)       is actively and lawfully operating a business in Australia; and
(ii)      directly operates the business; and
(c)for a nominator whose business activities include activities relating to the hiring of labour to other unrelated businesses — the position is within the business activities of the nominator and not for hire to other unrelated businesses; and
(d)both of the following apply:
(i)       the employee will be employed on a full-time basis in the position for at least 2 years;
(ii)      the terms and conditions of the employee’s employment will not include an express exclusion of the possibility of extending the period of employment; and
(e)the terms and conditions of employment applicable to the position will be no less favourable than the terms and conditions that:
(i)       are provided; or
(ii)      would be provided;
to an Australian citizen or an Australian permanent resident for performing equivalent work in the same workplace at the same location; and
(f)either:
(i)       there is no adverse information known to Immigration about the nominator or a person associated with the nominator; or
(ii)      it is reasonable to disregard any adverse information known to Immigration about the nominator or a person associated with the nominator; and
(g)the nominator has a satisfactory record of compliance with the laws of the Commonwealth, and of each State or Territory in which the applicant operates a business and employs employees in the business, relating to workplace relations; and
(h)either:
(i)       all of the following apply:
(A)the tasks to be performed in the position will be performed in Australia and correspond to the tasks of an occupation specified by the Minister in an instrument in writing for this sub-subparagraph;
(AA)there is a genuine need for the nominator to employ the person identified under dsubparagraph (a)(ii), as a paid employee, to work in the position under the nominator’s direct control;
(AAA)the occupation is applicable to the person identified under subparagraph (a)(ii) in accordance with the specification of the occupation;
(B)either:
(I)the nominator’s business has operated for at least 12 months, and the nominator meets the requirements for the training of Australian citizens and Australian permanent residents that are specified by the Minister in an instrument in writing for this sub-sub-subparagraph; or
(II)the nominator’s business has operated for less than 12 months, and the nominator has an auditable plan for meeting the requirements specified in the instrument mentioned in sub-sub-subparagraph (I); or
(ii)      all of the following apply:
(A)the position is located in regional Australia;
(B)there is a genuine need for the nominator to employ the person identified under subparagraph (a)(ii), as a paid employee, to work in the position under the nominator’s direct control;
(C)the position cannot be filled by an Australian citizen or an Australian permanent resident who is living in the same local area as that place;
(D)the tasks to be performed in the position correspond to the tasks of an occupation specified by the Minister in an instrument in writing for this sub-subparagraph;
(DA)the occupation is applicable to the person identified under subparagraph (a)(ii) in accordance with the specification of the occupation;
(E)the business operated by the nominator is located at that place;
(F)a body that is:
(I)specified by the Minister in an instrument in writing for this sub-subparagraph; and
(II)located in the same State or Territory as the location of the position;
has advised the Minister about the matters mentioned in paragraph (e) and sub-subparagraphs (B) and (C).

[2022] AATA 1669

12 January 2022

Key Legal Topics

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Immigration

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