Titulaer Group Pty Ltd (Migration)

[2022] AATA 3234

Titulaer Group Pty Ltd (Migration) [2022] AATA 3234 (9 August 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Titulaer Group Pty Ltd

REPRESENTATIVE:  Mrs Prabhjit Kaur (MARN: 1574834)

CASE NUMBER:  1905349

HOME AFFAIRS REFERENCE(S):          BCC2018/961335

MEMBER:Stephen Witts

DATE:9 August 2022

PLACE OF DECISION:  Melbourne

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

Statement made on 09 August 2022 at 9:03am

CATCHWORDS

MIGRATION – approval of a nomination – Direct Entry stream – occupation of Café or Restaurant Manager – genuine position – terms and conditions of employment no less favourable – tasks of the position correspond to nominated occupation – updated financial information – decision under review set aside         

LEGISLATION

Migration Act 1958, s 245
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 Home Affairs on 26 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).

2. The applicant applied for approval on 28 February 2018. The requirements for the approval of the nomination of a position in Australia are found in reg 5.19 of the Regulations which contains two alternative streams: a Temporary Residence Transition nomination stream (reg 5.19(3)) and a Direct Entry nomination stream (reg 5.19(4)). If the application is made in accordance with reg 5.19(2) and meets the requirements of either stream, then the application must be approved. If any of the requirements are not met then the application must be refused: reg 5.19(5).

3. In this case, the applicant has applied for approval of a nomination, seeking to satisfy the criteria in the Direct Entry nomination stream to work in the nominated occupation of café or restaurant manager ANZSCO code 141111.

4. The delegate refused the application on the basis the applicant’s nomination did not satisfy reg 5.19(4) of the Regulations because the delegate was not satisfied that the applicant had identified a need to employ an identified person as a paid employee to work in the position under their direct control.

5. The applicant, Titulaer Group Pty Ltd, appeared before the Tribunal on 2 August 2022 to give evidence and present arguments.

6. The Tribunal also received oral evidence from the nominee, Mr Arashbir Singh.

7. The applicant was represented in relation to the review.

8. 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

9. 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.

10. The Tribunal has considered all the material before it including evidence provided prior to the hearing and evidence given at the hearing.

11. The Tribunal notes that it has been provided with the relevant delegate’s decision by the applicant. In this decision it was stated that the business commenced trading on 1 March 2017 and that at the time of decision it employed eight Australian employees and one foreign employee, it was noted that the business was trading as Wonthaggi Hotel. The delegate noted that for some time the business was closed, and that the organisation chart provided in the application noted that the business already employed a head chef, a sous chef, a chef and two apprentices. The delegate also commented that it had been provided with different versions of profits and loss statements for similar periods and that inconsistent and incomplete financial information was provided.

12. The Tribunal notes that evidence was provided by the applicant prior to the hearing. This included a copy of the company’s registration material indicating it had an ACN number 616072158 and that it was registered in November 2016. It was stated that the officeholders were Bradley and Paradee Titulaer.

13. The Tribunal notes that some financial information was provided including BAS statements, activity statements and other material. Included were profit and loss statements indicating that for the period July 2019 to June 2020 it had a total income of approximately $1.3 million, salary expenses of approximately $400,000 and a loss of approximately $400,000; in the period July 2020 until June 2021 it had a total income of approximately $2 million, salary expenses of approximately $500,000 and a loss of approximately $400,000; for the period July 2021 to January 2022 the business had a total income of approximately $1.6 million, wages and salary expenses of approximately $300,000 and a net profit of approximately $12,000.

14. The Tribunal notes that an organisation chart was provided stating that there was a director in the business, Mr Titulaer, a full-time restaurant manager on a 187 visa who is the nominee, a head chef designation unknown, two chefs who are Australian citizens, two cooks who are on temporary visas and who are subject to separate applications before the Tribunal, an apprentice chef who is an Australian citizen, seven waiters all of whom are Australian citizens and five bar and bottle shop attendants, all of whom are Australian citizens.

15. The Tribunal notes that a genuine position letter was provided stating that the applicants bought the business in November 2016, that they provide dinner and lunch services to customers that’s mainly focused on Australian cuisine, that it is situated in Wonthaggi, a rural centre in regional Victoria, and that the position of café or restaurant manager is genuinely needed.

16. The Tribunal notes that a letter was provided dated 11 March 2022 stating that the nominee has completed a diploma level qualification to become a restaurant manager, and that he has completed a diploma and advanced diploma level management course; that an interview was conducted to find a suitable employee, that he worked first in the restaurant on a casual basis, that he started working in the business from December 2018, and that the owner in the business cannot handle all the responsibilities necessary to run the restaurant and hotel and that the nominee assists in the management of the restaurant and bar. It was further stated that the nominee has three years relevant experience in the hospitality industry and that he has the skills for the position.

17. The Tribunal notes that it was further stated that the nominee manages the restaurant as well as opening and closing, recruiting and training new staff, managing and supervising staff performance in the kitchen and front of house, assisting with the annual budget, responding to feedback from management and customers, planning menus in consultation with the head chef, planning special functions, arranging purchasing and negotiating prices, checking deliveries, conferring with customers to assess satisfaction levels, taking reservations, maintaining records of stock levels, checking the building, maintaining health and safety policies, maintaining safe food handling processes, advertising the business, and other general responsibilities.

18. The Tribunal notes that a statement was provided by the applicant stating that the terms and conditions of employment of the nominee would be no less favourable than those provided to an Australian citizen or permanent resident and that an average base salary of a café or restaurant manager is up to $69,992 and that the nominee is currently being paid $59,280 per annum.

19. The Tribunal notes that a statement was provided by the applicant’s representative dated 17 March 2022 stating that the nominee is well-qualified as a café or restaurant manager, and that the business needs a qualified person of that type.

20. The Tribunal notes that also provided with other material pertaining to the business including employment material, payslips, certifying body advice, bank statements, and other material.

21. The Tribunal also notes that the duties and responsibility of a café or restaurant manager under ANZSCO code 141111 include:

    “planning menus in consultation with Chefs

    planning and organising special functions

    arranging the purchasing and pricing of goods according to budget

    maintaining records of stock levels and financial transactions

    ensuring dining facilities comply with health regulations and are clean, functional and of suitable appearance

    conferring with customers to assess their satisfaction with meals and service

    selecting, training and supervising waiting and kitchen staff

    may take reservations, greet guests and assist in taking orders”

22. At the hearing the Tribunal had a discussion with the nominator and the nominee regarding the application.

23. The nominator stated that the nominee has worked in the business on a full-time basis as a café or restaurant manager since 2018. The Tribunal discussed the nominator’s business interests with him noting that he also owns a function centre which hosts approximately 25 weddings per year in a different location to the hotel and that he owns two commercial buildings one of which is rented out to a bakery and another that he operates running an import and export business with his wife and that therefore he can only spend a day or so in the hotel business a week and that he relies on the nominee to act as his manager in business.

24. The Tribunal also had a discussion with the nominator regarding his ongoing profitability in the hotel business noting the concerns expressed by the Department about his previous evidence provided to it in regard to the application. The nominator provided evidence that he had made a mistake and that some of the evidence provided was inconsistent and that it was his responsibility that this occurred but that his business has survived over the last few years despite the pandemic and that it is trading and solvent and that the nominee continues to work in the business full-time and that he would anticipate continuing to run and expand this business over the next few years now that the pandemic is hopefully behind him and that his function centre also is back up and trading together with his relatively new import export business and that he genuinely needs the nominee to work in the business carrying out the above duties and responsibilities on a permanent basis.

25. The nominee stated that he first came to Australia on a student visa in 2014 and that he successfully completed a diploma level qualification in management in 2015, an advanced diploma level qualification in the same field in 2016, a bachelor level qualification in business management in 2018 and also a diploma level qualification in hospitality. The Tribunal had a detailed discussion with the nominee noting the evidence provided regarding his duties and responsibilities compared with those of a café or restaurant manager as noted above.

26. The Tribunal has considered the above noting that the business has continued to operate throughout the last few years, and that evidence was provided indicating that it is successfully trading, and that the nominee has now worked in the business for four years and that the nominator has provided sufficient evidence that the nominee is working and will continue to work as a paid employee in the above position under the nominator’s direct control.

    The application is compliant: reg 5.19(4)(a)

27. 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.

28. The Tribunal finds that the application was made in the approved manner and that it identified a need for the nominator to employ an identified person to work as a café or restaurant manager under ANZSCO code 141111 under the nominator’s direct control.

29. 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)

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

31. The Tribunal finds that the nominator is actively and lawfully operating a business in Australia and directly operates that business.

32. Accordingly, the requirement in reg 5.19(4)(b) is met.

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

33. 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.

34. The Tribunal finds that the nominator is not involved in labour hire activities.

35. Accordingly, this requirement does not apply.

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

36. 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.

37. The Tribunal, noting that the nominee has now worked in the business for four years on a full-time basis, finds that an extension beyond two years from now is not expressly excluded.

38. Accordingly, the requirement in reg 5.19(4)(d) is met.

    No less favourable terms and conditions of employment: reg 5.19(4)(e)

39. 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.

40. The Tribunal notes the evidence provided and finds that the terms and conditions applicable to the nominee will be no less favourable than those that would be provided to an Australian citizen or permanent resident performing equivalent work in the same workplace at the same location.

41. In particular the Tribunal notes that the applicant is being paid a rate of pay that is above the minimum income threshold for a temporary visa holder.

42. Accordingly the requirements of reg 5.19(4)(e) are met.

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

43. 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.

44. The Tribunal finds that there is no adverse information known to the Department about the nominator or a person associated with the nominator.

45. Accordingly the requirements of reg 5.19(4)(f) are met.

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

46. 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.

47. The Tribunal finds that there is no evidence before it that the applicant does not have a satisfactory record of compliance with workplace relations laws in the locations in which it operates a business and employs staff.

48. 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)

49. Regulation 5.19(4)(h) contains a number of alternative requirements. These are set out in detail in the attachment to the decision but can be briefly summarised as requiring either that:

    ·the tasks to be performed in the position will be performed in Australia and correspond to those of an occupation specified by the Minister, the occupation is applicable to the proposed employee in accordance with any specifications made in that instrument, there is a genuine need for the nominee to be employed as a paid employee in the position, and certain specified training requirements are met; or

    ·the position and nominator’s business is located in regional Australia, there is a genuine need for the nominee to be employed as a paid employee in the position under the nominator’s direct control, the position cannot be filled by a locally resident Australian citizen or permanent resident, the tasks of the position correspond to those of an occupation specified in the relevant legislative instrument, the occupation is applicable to the proposed employee in accordance with the specification of the occupation, and that a regional certifying body has advised the Minister about certain matters relating to the position.

50. The Tribunal finds that the tasks will be performed in Australia and correspond to the tasks of an occupation specified as above in the relevant instrument and that there is a genuine need for the nominator to employ the person identified as a paid employee to work in the position under the nominator’s direct control and that the position has not been able to be filled by an Australian citizen or permanent resident who is living in the same local area.

51. Accordingly the requirements of reg 5.19(4)(h) are met.

52. 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

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

    Stephen Witts
    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).