Troppo Investments Pty Ltd (Migration)

[2022] AATA 3117

Troppo Investments Pty Ltd (Migration) [2022] AATA 3117 (21 July 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Troppo Investments Pty Ltd

REPRESENTATIVE:  Ms Natalia Arens (MARN: 0534230)

CASE NUMBER:  1905537

HOME AFFAIRS REFERENCE(S):          BCC2017/3897158

MEMBER:Terrence Baxter

DATE:21 July 2022

PLACE OF DECISION:  Brisbane

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

Statement made on 21 July 2022 at 9:28am

CATCHWORDS
MIGRATION–nomination – Direct Entry stream – application is compliant – financial capacity to employ the nominee in the position of Hostel Manager – genuine need to employ a paid employee to work in the position under the nominator’s direct control – nominated position is based in regional Australia – no adverse information – position associated with the nominated occupation is genuine –no less favourable terms and condition of employment –applicant lawfully operating a business in Australia– decision under review set aside

LEGISLATION

Migration Act 1958, ss 65, 245AR
Migration Regulations 1994, rr 1.13, 5.19

CASES
MIBP v Jayshree Enterprises Pty Ltd [2017] FCA 264

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 21 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, Troppo Investments Pty Ltd, applied for approval on 23 October 2017. The applicant nominated Ms Samantha Ketchen (the nominee) in the position of Hostel Manager. The applicant operates two backpacker hostels situated in Innisfail, Queensland. The applicant provides accommodation for backpackers and arranges with local primary producers for the backpackers to provide labour on local rural properties. The applicant’s operations have been adversely affected by the COVID-19 pandemic, but business has improved since the removal of border restrictions early in 2022.

3. 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).

4. In this case, the applicant has applied for approval of a nomination, seeking to satisfy the criteria in the Direct Entry nomination stream.

5. The delegate refused the application on the basis that the applicant’s nomination did not satisfy reg 5.19(4)(h)(ii)(D) of the Regulations because the delegate found that the tasks to be performed in the position do not correspond to the tasks of an occupation specified by the Minister in an instrument in writing.

6. The applicant lodged an application for review of the delegate’s decision with the Tribunal on 8 March 2019.

7. The sole director of the applicant, Mr John Friel, appeared before the Tribunal by video conference on 31 May 2022 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 Tribunal also received oral evidence from the nominee by video conference.

8. 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.

9. The applicant was represented in relation to the review by its registered migration agent, Ms Natalia Arens of ImmigrationHelp. The representative attended the Tribunal hearing by video conference.

10. 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

11. 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

12. The applicant produced to the Department of Immigration and Border Protection (now the Department of Home Affairs) (the Department) the following documents:

    a.Market salary research accompanied by a submission.

    b.An ASIC certificate of registration of the applicant.

    c.A current ABN Lookup form of the applicant.

    d.A Diploma in Hospitality Management awarded to the nominee.

    e.A copy of the passport of the nominee.

    f.A summary of domestic recruitment efforts undertaken by the applicant.

    g.Various job advertisements for the position.

    h.An ASIC company summary of the applicant.

    i.A company tax return for the 2016 financial year.

    j.An employment contract of the nominee dated 3 October 2017.

    k.Activity statements for the period from July 2016 to June 2017.

    l.An extract from the Hospitality Industry (General) award.

    m.A financial report for the 2016 financial year.

    n.A position description.

    o.A copy of the nominee’s resume.

    p.Correspondence and a Form 1404 advice from the Regional Certifying Body (RCB) the Chamber of Commerce and Industry, Cairns dated 2 November 2017.

13. The applicant produced to the Tribunal the following documents:

    a.A copy of the delegate’s decision.

    b.A copy of the ASIC certification of company registration provided to the Department.

    c.An ASIC current and historical company extract of the applicant.

    d.Financial reports for the 2020 and 2021 financial years.

    e.Company tax returns for the 2020 and 2021 financial years.

    f.Activity statements for the period from July 2019 to December 2021.

    g.An employment contract of the nominee dated 9 March 2022.

    h.A copy of the Form 1404 provided to the Department.

    i.A position description.

    j.An organisational chart.

    k.A submission from Mr Friel regarding genuine need dated 22 March 2022.

    l.An undated job advertisement for the position.

    m.A submission regarding annual market salary rate accompanied by various attachments.

    n.Photos of the business premises and events hosted by the applicant.

    o.Evidence of the tasks performed by the nominee in the position.

    p.A submission from the representative dated 19 March 2022.

    q.An Australian and New Zealand Standard Classification of Occupations (the ANZSCO) extract for the occupation of Accommodation and Hospitality Managers.

    r.Profit and loss statements for the 2018 to 2021 financial years, and the 2022 financial year to date.

    Evidence presented at the hearing regarding the applicant’s operations

14. Mr Friel stated that he had been involved with the operation of hostels for many years. He said that initially he had been involved with traditional hostels and that the applicant had acquired an existing working hostel in Innisfail in 2014. He said that the business had expanded, and that the applicant presently operated two hostels in that town. He described how the business provided accommodation for backpackers and arranged with farmers for the backpackers to provide labour on the farms. He said that the business involved interviewing backpackers by telephone to ensure that they were suitable for rural employment, liaising with them regarding transport to Innisfail and then to the hostel, contacting farmers regarding their need for employees and arranging transport to and from farms for the backpackers on a daily basis.

15. Mr Friel described the impact of the COVID-19 pandemic on the applicant’s business as horrific. He said that, at the time of the start of the pandemic, the applicant’s hostels were filled with backpackers and that initially the backpackers decided to remain at the hostels. However, as the pandemic dragged on and border restrictions came into effect, the backpackers left and returned to their home countries.

16. The nominee stated that she had been permanently employed by the applicant since March 2016. She gave evidence of the tasks performed by her in the position of Hostel Manager.

    Evidence presented after the hearing

17. After the hearing, the applicant produced to the Tribunal the following documents:

    a.An ASIC business name details summary of Walkabout Backpackers Resort.

    b.An ASIC business name details summary of Backpackers Retreat.

    c.Payroll advice of the nominee prepared by the applicant for the period from July 2019 to June 2021.

    d.Updated evidence of a recent job advertisement for the position, accompanied by an email from Mr Friel regarding responses to the advertisement.

    e.A further submission from Mr Friel regarding market salary rate accompanied by various attachments.

    f.Email correspondence from Mr Friel regarding the market salary research provided.

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

18. 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 (Cth) (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.

19. 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 nomination stream seeking to meet the requirements in the 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.

20. Regulation 5.19(4)(a)(ii) requires that the application identifies a need for the nominator to employ an identified person 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 the nominee as a paid employee 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 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 May 2022).

    [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 regs 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.

21. 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 Hostel Manager and on page 5 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 Hostel Manager 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 to work in the position under the nominator’s direct control for the purposes of reg 5.19(4)(h)(ii)(B).

22. As 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)

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

24. The applicant produced to the Tribunal ASIC evidence of the registration of the applicant and of the business names under which it operates. The applicant also provided financial statements and tax returns to the 2021 financial year and activity statements to the month of December 2021. The financial statements confirm that the applicant recorded total income exceeding $950,000 in the 2019 and 2020 financial years and a reduced income of $380,393 in the 2021 financial year. 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 two backpacker hostels.

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

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

26. 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. 

27. Mr Friel gave evidence that, during the COVID-19 pandemic, the applicant had arranged to acquire a labour hire licence. However, he stated that the licence has not been utilised and that the applicant has not provided labour hire to other businesses. There is no evidence before the Tribunal to suggest that the applicant is engaged in labour hire activities.

28. Accordingly, the requirement in reg 5.19(4)(c) does not apply.

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

29. 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. 

30. The employment contract dated 9 March 2022 produced to the Tribunal provides that the nominee’s employment is ongoing from the grant of the nominee’s Subclass 187 visa and that the employment may be extended after two years. The nominee is to work at least 38 hours per week, which is equivalent to full-time employment. Accordingly, the requirement in reg 5.19(4)(d)(ii) is met.

31. 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 disclose that the applicant recorded net profits before tax of $344,705 and $328,306 in the 2019 and 2020 financial years respectively. The applicant recorded a trading loss of $40,356 in the 2021 financial year. The Tribunal accepts that the downturn in the applicant’s profitability was totally attributable to the COVID-19 pandemic. Notwithstanding the loss which was incurred in 2021, the applicant still had net assets according to its balance sheet of $1,258,828 at the end of that financial year.

32. The applicant has employed the nominee since March 2016. The payroll advices issued by the applicant confirm that the nominee was paid a salary of $34,100 in the 2020 financial year and $35,700 in the 2021 financial year. The salary payable to the nominee under the recent employment contract is $55,000 per annum. Although this salary exceeds the salary paid in the earlier financial years, the applicant’s financial position is such that it has the capacity to pay the nominee her salary package for at least two years.

33. The Tribunal is satisfied that the applicant has the financial capacity to employ the nominee in the position of Hostel Manager 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.

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

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

35. 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.

36. The applicant’s organisational chart discloses that the applicant has no Australian citizen or permanent resident performing equivalent work at the nominee’s workplace. The salary which is to be paid to the applicant during her employment is $55,000 per annum, in addition to which the nominee is entitled to superannuation contributions in accordance with statutory entitlements. The nominee is entitled to leave in accordance with the National Employment Standards.

37. The applicant provided to the Tribunal evidence from PayScale that the average annual salary of a Hospitality Manager in Australia ranges between $42,000 and $76,000 per annum, with an average of $24.58 per hour equivalent to $48,570 per annum for a 38-hour week. The applicant also produced job advertisements for the positions of Duty Manager and Hostel Manager in Cairns, North Queensland with advertised salaries of $55,000 to $65,000 per annum, depending on experience.

38. 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 2 November 2017, that the nomination satisfies the requirements set out in reg 5.19(4)(e) and reg 5.19(4)(h)(ii)(B) and (C).

39. 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.

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

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

2. 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.

3. 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.

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

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

5. 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.

6. 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.

7. 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)

8. 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 an RCB has advised the Minister about certain matters relating to the position.

   Regulation 5.19(4)(h)(ii)(A) – the position is located in regional Australia

9. The recent Employment Contract provides that the nominee is to be employed at Innisfail, QLD 4860, a location in regional Australia according to the relevant instrument. The locations of the business are established by the evidence before the Tribunal as 6 Stitt Street, Innisfail 4860 and 73 Rankin Street, Innisfail 4860. Based on the evidence presented, 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

10. At the hearing, Mr Friel was asked why the applicant needed to employ the nominee as a Hostel Manager. He said that since the applicant began its operations as a backpacker hostel, the business has expanded quickly. He stated that he personally had been required to work from approximately 4:30 am to 10 pm, seven days per week. He then decided that it was necessary to employ a Hostel Manager. He stated that he had tried to fill the position with part-time employees, but that trial had not worked successfully.

11. Mr Friel described how the operation of a backpacker hostel was different to a traditional hostel, where there would usually be a reception desk for arriving guests. He said that backpackers relied heavily on the hostel operator to provide a range of services and that attending to these needs was time-consuming.

12. Mr Friel stated that he was also the director and sole shareholder of the company Icon Cleaning & Maintenance Services Pty Ltd (Icon) which is the shareholder of the applicant company Troppo Investments Pty Ltd. He said that Icon operates a cleaning business and that, with the downturn in the profitability of the applicant’s business as a result of the pandemic, he had personally been devoting more of his time to the cleaning business and leaving the management of the hostels in the hands of the nominee. He said that he was now spending 20 to 30 hours per week in the cleaning business and that the nominee had become indispensable in the position of Hostel Manager.

13. The Tribunal has also had regard to the certificate of the RCB referred to in paragraph 38 above.

14. The Tribunal is satisfied that there is a genuine need for the applicant to employ the nominee as a paid employee to work in the position of Hostel Manager at the locations 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

15. The applicant produced to the Tribunal a copy of a job advertisement with the platform Seek in October 2017 together with a recruitment report by Mr Friel. The report stated that there were four applicants for the position, but that no applicant had sufficient experience to fill the position. The applicant also produced evidence that the position was re-advertised with Seek in February 2022 together with a report from Mr Friel stating that there were seven applicants in response to that advertising, none of whom resided locally. The Tribunal has also had regard to the certificate of the RCB referred to in paragraph 38 above.

16. 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.

    Regulation 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 subparagraph and the occupation is applicable to the proposed employee in accordance with the specification of the occupation

17. The occupation proposed by the applicant was Accommodation and Hospitality Managers nec (not elsewhere classified) which has the six-digit ANZSCO code 141999 and which is specified in the relevant instrument, being IMMI 17/058. The Occupation Group includes the occupation of Hostel Manager. The tasks for this occupation are not specified in the ANZSCO. The relevant Unit Group includes the occupations of Bed and Breakfast Operator and Retirement Village Manager. The role of a Bed and Breakfast Operator is described as:

    Organises and controls the operations of a bed and breakfast to provide a short term, highly personalised accommodation and leisure service for guests including breakfast.

    The role of a Retirement Village Manager is described as:

    Organises and controls the day-to-day operations of a retirement village to provide a range of accommodation, personal care services, and recreational and social activities for the use and enjoyment of residents.

    The Tribunal relies on the specified roles for these occupations in considering the tasks of the occupation of Accommodation and Hospitality Managers nec.

18. The duties and responsibilities of the nominee as Hostel Manager according to the position description are as follows:

    Skills and experience Essential:
    • Experience of managing of providing high quality customer service in backpacker and/or working hostel environment i.e., managing a hostel, outdoor centre or motel/hotel
    • Able to collate and interpret financial and performance data to drive business growth
     • Demonstrate good understanding of the hospitality industry and current tourist industry standards and regulations, be responsible and have management control over the above standards and regulations
     • Excellent managerial and administration skills and attention to detail
     • Ability to manage, plan, organise and co-ordinate, working to tight deadlines using own initiative
     • Good written and oral communication skills
     • Knowledge of Microsoft Office, particularly Word and Excel
    Personal qualities:
     • Proactive leader / manager
     • Conscientious and responsible
     • Support and enthuse others and maintain a professional image
     •Team player

    Management and responsibility will include management and overseeing of Customer service and front of house:

    • Manage and oversee the guest welcome, from enquiry to checkout, to deliver exceptional customer service at all times.
     • Manage online booking systems including optimising bed spaces and gauging availability
     • Manage and proactively review team’s response to customer feedback online and in person
     • Periodically cover reception duties, ad hoc
     • Proficient in managing and promoting the business through social media, website and channel management systems
    • Prepare costed proposals for potential clients seeking group bookings and events
     • Manage and co-ordinate team’s implementation of daily, weekly and monthly hostel tasks including as cashing up, recycling and waste disposal etc.
     • Periodically be ‘on call’ to cover emergency out-of-hours call outs in duty manager capacity
     • Identify areas for improvement to the overall products and service within the hostel and wider promotion of the hostel, activities and holidays
    Operational management:
    • Manage, develop and mentor all hostel staff and volunteers emphasising excellent customer service and ensuring high standards of cleanliness are maintained throughout the hostel
     • Plan weekly rosters to ensure sufficient cover for bookings including additional demands for group and event bookings or activity holidays and to facilitate staff leave and training
     • Co-ordinate event, group and activity bookings, working closely with the team, including effective implementation and delivery of services such as provision of staff, catering and other resources
     • Undertake regular assessment of occupancy and sales performance and support preparation of future projections and targets for onward reporting and forward planning
     • Take all reasonable steps to ensure the OWHS of staff, guests and visitors on site, ensuring compliance with relevant policies, procedures and legislation
     • Actively foster good local community relationships, identifying opportunities to work in partnership and raise the profile of the business as a whole
     • Liaise regularly with the Managing Director to further business development
    Facilities management:
     • Ensure effective and efficient running of the hostel and that all systems, facilities and procedures are in place to comply with legislation and lease provisions, including health & safety requirements and maintenance
    • Manage and authorise ordering of supplies; manage supplier relationships, ensuring good value for money in accordance with the business’ financial procedures
    • Ensure the building, fixtures and fittings remain to the highest possible standard and project manage maintenance activities effectively to enable works to be completed on time and on budget

    Other:

    • Undertake any training and professional development as and when required.
    • Undertake any other reasonable duties, commensurate with the job title, as may be determined by the Directing Manager.

19. The delegate was not satisfied that this requirement had been met. The delegate considered that, given the size and scope of the business, it is the managing director, Mr Friel, who controls, directs and has overall financial responsibility for the business.

20. At the hearing, Mr Friel described some of the tasks performed by the nominee, including:

    a.Receiving enquiries from and screening backpackers who seek accommodation at the hostels.

    b.Explaining to backpackers the requirements for their work visas.

    c.Collecting backpackers from the bus depot and transporting them to the hostels.

    d.Contacting local farmers to establish their labour needs.

    e.Instructing the hostels’ drivers regarding locations where backpackers were required to work.

    f.Speaking with southern-based hostel operators regarding backpackers intending to travel to North Queensland.

    g.Engaging cleaners and drivers for the business.

    h.Attending to Government requirements in the conduct of the applicant’s business.

21. The nominee, not having been present when the evidence of Mr Friel was given, also gave evidence regarding the tasks performed by her in the position. Her evidence was generally consistent with that of Mr Friel, but she mentioned specifically:

    a.Arranging fire inspections and local authority inspections of the premises.

    b.Arranging to have the premises approved as quarantine accommodation for seasonal workers.

    c.Supervising contractors performing maintenance on the premises.

22. The Tribunal accepts that Mr Friel, as the sole director of the applicant, has the overall financial responsibility for the business conducted by the applicant. However, the Tribunal accepts that, particularly having regard to Mr Friel’s commitment to his cleaning business, the nominee has the responsibility for the management functions within the hostel business. The Tribunal is satisfied that the tasks to be performed in the position correspond to the tasks of the occupation of Accommodation and Hospitality Managers nec specified by the Minister in the relevant instrument. According to the instrument, the occupation is a Skill Level 2 occupation which requires an Associate Degree, Advanced Diploma or Diploma. Evidence has been produced to the Tribunal that the nominee holds a Diploma in Hospitality Management. 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

23. As set out in paragraph 48 above, the Tribunal is satisfied that the business operated by the applicant is located at 6 Stitt Street, Innisfail 4860 and 73 Rankin Street, Innisfail 4860, the same locations 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)

24. The certificate referred to in paragraph 38 above was submitted to the Tribunal. Accordingly, the Tribunal is satisfied that reg 5.19(4)(h)(ii)(F) is met.

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

26. 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

27. 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 an 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 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).