V&B Holdings Pty Ltd (Migration)
[2020] AATA 2904
•1 June 2020
V&B Holdings Pty Ltd (Migration) [2020] AATA 2904 (1 June 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT: V & B Holdings Pty Ltd
CASE NUMBER: 1808595
DIBP REFERENCE(S): BCC2016/1701131
MEMBER:Terrence Baxter
DATE:1 June 2020
PLACE OF DECISION: Brisbane
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.
Statement made on 01 June 2020 at 4:57pm
CATCHWORDS
MIGRATION– Direct Entry Nomination stream –Cook– satisfactory record of compliance with the laws –position is located in regional Australia – genuine need for the nominator to employ a paid employee – No less favourable terms and condition of employment–decision under review set asideLEGISLATION
Migration Act 1958, ss 245AR,359
Migration Regulations 1994, rr 1.13, 5.19CASES
MIBP v Jayshree Enterprises Pty Ltd [2017] FCA 264
Nice Shoes Aust Pty Ltd v MIMIA (2004) FCA 252STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW
This is an application for review of a decision made by a delegate of the Minister for Immigration on 13 March 2018 to reject the applicant’s application for approval of the nomination of a position in Australia under r.5.19 of the Migration Regulations 1994 (the Regulations).
The applicant, V & B Holdings Pty Ltd, applied for approval on 11 May 2016. The applicant nominated Mr Uday Partap Singh (the nominee) in the position of Cook. The requirements for the approval of the nomination of a position in Australia are found in r.5.19 of the Regulations which contains two alternative streams: a Temporary Residence Transition nomination stream (r.5.19(3)) and a Direct Entry nomination stream (r.5.19(4)). If the application is made in accordance with r.5.19(2) and meets the requirements of either stream, then the application must be approved. If any of the requirements are not met, then the application must be refused: r.5.19(5).
In this case, the applicant has applied for approval of a nomination, seeking to satisfy the criteria in the Direct Entry Nomination stream.
The delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19(4)(a)(ii) of the Regulations because the delegate found that the application did not demonstrate a need for the applicant to employ a full-time paid employee to work in the position under the applicant’s direct control.
Mr Brijesh Kalra, a director of the applicant company, appeared before the Tribunal on
4 March 2020 to give evidence and present arguments. The Tribunal also received oral evidence from the nominee.
The applicant was represented in relation to the review by its registered migration agent. The representative attended the Tribunal hearing.
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 r.5.19(4), which is extracted in the attachment to this decision. For the nomination to be approved, all the requirements must be met.
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.
The applicant’s bank statements for the periods 25 November 2015 to
29 January 2016, 25 November 2016 to 27 January 2017 and 24 June 2017 to 24 July 2017.
b.The applicant’s 2015 and 2017 financial statements.
c.Activity statements for Matilda Uralla for the quarters ending September 2015 to June 2017.
d.A submission from the applicant’s accountant dated 3 September 2015.
e.Photographs of the applicant’s Uralla premises.
f.A table menu from the applicant’s Uralla premises.
g.
An ASIC Company Details form in respect of the applicant dated
16 September 2015.
h.An ASIC company extract in respect of the applicant dated 27 April 2016.
i.An Organisational Chart for Matilda Uralla and Caltex Withcott.
j.Online market salary evidence for the position.
k.An Employment Contract dated 5 May 2016 with schedule of duties and responsibilities attached.
l.A certification that the applicant had not contravened subsection 245AR(1) of the Migration Act 1958.
m.An ABR Current Details extract for the applicant dated 27 April 2016.
n.A Regional Certifying Board certificate dated 28 June 2016 issued by Regional Development Australia – Northern Inland Inc., Armidale.
o.The applicant’s 2015 and 2016 tax returns.
The applicant produced to the Tribunal the following documents:
a.The applicant’s 2017, 2018 and 2019 tax returns.
b.The applicant’s 2018 and 2019 financial statements.
c.Activity statements for Matilda Uralla for the quarters ending September 2017 to September 2019.
d.A submission from the applicant’s accountant dated 24 June 2019.
e.A submission from the applicant’s migration agent (undated).
f.A Letter of Engagement dated 4 February 2020.
g.A Management Organisational Chart for the applicant’s three fuel outlets.
h.
An ASIC Certificate of Registration of Company for the applicant dated
16 March 2009.
i.An ASIC Company Details form for the applicant dated 27 January 2020.
j.An ASIC Current and Historical extract for the applicant dated 30 January 2020.
k.A further copy of the Regional Certifying Board certificate dated 28 June 2016.
l.A Product Sales printout for Matilda Uralla restaurant for 2019 financial year.
m.A job description.
n.A schedule of superannuation contributions for the nominee covering the period from 6 July 2017 to 18 October 2019.
o.Pay Advices for the nominee for periods ending November 2019 to January 2020.
p.PAYG payment summaries for the nominee for the 2018 and 2019 financial years.
q.Newspaper job advertisements dated 6 November and 11 November 2015.
r.A set of photographs of the Uralla premises.
s.A further submission from the applicant’s migration agent (undated).
t.An email from the applicant’s lawyers HR Law to the Fair Work Ombudsman dated 30 June 2017.
u.An email from HR Law to the applicant dated 5 November 2018.
v.A job advertisement for the position of administration assistant/payroll officer dated 25 April 2018.
w.A resume of the applicant’s employee Sharon Barker.
x.A payslip of Sharon Barker for the period ending 9 February 2020.
y.An invoice from Lightning Payroll dated 8 November 2017.
Evidence presented at the hearing
Mr Kalra gave evidence regarding the businesses operated by the applicant. He said that the applicant company was incorporated in 2009, and that the company had purchased and sold several businesses since that time. He stated that the service station in question is a roadhouse located in Uralla in New South Wales and that the applicant had taken over the business in June 2011.
Mr Kalra said that Uralla is a historic town with a significant cultural heritage, especially for the aboriginal community in Australia. He said that the town was well known for gold fossicking and that it had a historical association with bushrangers. He said that the town was popular with tourists, that it was located on the New England Highway and that it was situated at a major intersection with roads giving access to coastal areas. He also stated that Uralla had a population of approximately 2,400 residents, with the region having a population of over 3,000 with its own local authority.
Mr Kalra said that the business is a 24-hour roadhouse, located 85 to 88 kilometres from Tamworth with no other town between the two centres. He said that it was the only 24-hour roadhouse operating in the region and that there was signage of its operation on the approaches to the town. The business consisted of a fuel outlet, shop and restaurant and had a turnover exceeding $5,000,000 per annum. He stated that it was a big restaurant with a seating capacity of nearly 80 and a turnover, together with that of the shop, exceeding $2,000,000 per annum. He said that the restaurant had a full commercial kitchen with freezer and coldroom and a full restaurant menu.
Mr Kalra said that the restaurant, with its home-based recipes, had created a reputation in the market for its home-made pies and desserts. He stated that they did their own cooking “from scratch”, using recipes which they had crafted since they took over the site in 2011 and that their trading figures had increased every year. He said that they had a large staff, and that the kitchen operated for 16 to 18 hours per day. He also said that they had two staff working in the restaurant during the day, with one in the kitchen and one other, with only one staff member working the night shift.
Mr Kalra stated that the applicant operated three fuel outlets, with two in Queensland plus the Uralla site. He said that the applicant had an agreement with Matilda under which they sold fuel on a commission basis at this site, but that Matilda did not interfere in matters involving the shop or restaurant.
The nominee gave evidence of his appointment to the position, his duties and his qualifications for the position.
At the hearing, the applicant produced further documents, namely:
a.Emails from Jobs Australia to the applicant dated 2012 and 2013 with resumes from job applicants.
b.A Vacancy Lodgment Form of Jobs Australia, Uralla for the position with the applicant dated 30 July 2014.
c.The nominee’s travel itinerary for 29 December 2015.
During the hearing, the Tribunal produced to Mr Kalra documents being copies of notations from records of the Department which indicated that the applicant is regarded by the Department as a Client of Interest and that an allegation had been received regarding illegal work. The Tribunal advised him that the Tribunal had received no further information regarding this allegation and that accordingly the Tribunal did not regard the documents to be relevant to the current application and placed no weight on the notations.
Evidence presented after the hearing
After the hearing, the applicant produced to the Tribunal the following documents:
a.Job advertisements from Seek by other employers dated 11 March 2020.
b.Online evidence of market salary for the position with job advertisements by other employers.
c.A submission from the applicant’s migration agent dated 17 March 2020.
d.A Pay Guide issued by the Fair Work Ombudsman for the Vehicle Manufacturing, Repair, Services and Retail Award 2010.
e.Two job advertisements by other employers on the site Indeed.
f.A payslip for employee S. Baker for the period ending 9 March 2020.
The application is compliant: r.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). The application must also identify a need for the nominator to employ 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 and consequently no fee is payable (r.5.19(2) and r.5.37(4)). The applicant provided a written certification stating whether the applicant had engaged in conduct in relation to the nomination that contravenes s.245AR(1). The requirements of r.5.19(2) and consequently of r.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 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 r.5.19(4)(a) as a whole is directed towards requirements for the application form/process of a more administrative nature, such that r.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 r.5.19(4)(a)(ii) and, for example, r.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 employee a paid employee to work in the position under the nominator’s control – clearly requiring a qualitative assessment, and r.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 2 years. Given the uncertain scope of r.5.19(4)(a)(ii), and the requirement in relation to this application to satisfy r.5.19(4)(h)(ii)(B), the Tribunal considers that this issue is more appropriately considered under r.5.19(4)(h)(ii)(B) later in these Reasons.
[1] Dictionary.com (accessed January 2020).
[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 r.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 r.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 r.5.19(4)(a)(ii) is more directed to the administrative process, consistent with the requirements of r.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. The job advertisement placed by the applicant in the Armidale Express in November 2015 and produced to the Tribunal states – “Our business in NSW Regional area of Uralla has a full time vacancy for the position of COOK”. The Tribunal is therefore satisfied that the application for approval identifies a need to employ a paid employee in the position of Cook under the applicant’s direct control such that r.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 a paid employee to work in the position under the nominator’s direct control for the purposes of r.5.19(4)(h)(ii)(B).
Having found that r.5.19(4)(a)(i) and (ii) are met, accordingly, the requirement in r.5.19(4)(a) is met.
Nominator is actively and lawfully operating a business in Australia: r.5.19(4)(b)
Regulation 5.19(4)(b) requires that applicant is actively, lawfully and directly operating a business in Australia.
The applicant produced various documents to the Tribunal including taxation returns, ASIC documents, current Business Activity Statements and financial statements. Mr Kalra gave evidence of the business activities of the applicant, based at Uralla, New South Wales, and other locations.
The applicant’s tax returns and financial statements show that the applicant had income as follows.
Period
Income
2017 financial year
$9,224,648
2018 financial year
$10,851,216
2019 financial year
$10,459,267
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 several service stations.
Accordingly, the requirement in r.5.19(4)(b) is met.
Position is not labour hire: r.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.
There is no evidence before the Tribunal to suggest that the applicant is engaged in labour hire activities.
Accordingly, the requirement in r.5.19(4)(c) does not apply.
Term of employment of the visa holder: r.5.19(4)(d)
Regulation 5.19(4)(d) requires the nominee to be employed in the nominated position for at least 2 years full time, and the terms and conditions of that employment do not expressly exclude the possibility of an extension.
The Letter of Engagement dated 4 February 2020 produced to the Tribunal provides that the nominee is to be employed on a full-time basis and that the position description is Cook. The document further provides that the agreement is to commence upon 187 RSMS visa decision. The agreement provides that the employment is to be for at least two years with the possibility of further extension. Accordingly, the requirement in r.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 delegate, based on the information provided to the Department, was not satisfied that the business had shown financial capacity to be able to pay the full-time salary for the nominee in the nominated position for at least 2 years.
The financial statements provided by the applicant to the Department and the Tribunal disclose the following trading figures.
2015/2016 year
2016/2017 year
2017/2018 year
2018/2019 year
Trading income
$6,445,570
$9,224,648
$10,851,216
$10,459,267
Cost of sales
$5,847,330
$8,253,235
$9,733,230
$9,385,155
Trading profit
$598,240
$973,413
$1,117,986
$1,074,112
Operational expenses
$510,318
$865,790
$823,189
$739,410
Profit
$87,822
$105,623
$294,797
$334,702
Net assets
$252,183
$357,804
$652,602
$987,307
Evidence was presented to the Tribunal that the nominee has been employed by the applicant since September 2016. There is also evidence that the nominee’s present base salary is $28.38 per hour, equivalent to $56,078 per annum. The nominee’s PAYG payment summary for the 2019 financial year discloses that the applicant paid him a salary of $60,251 in that year. Accordingly, the applicant has made substantial profits after having paid the nominee his salary. The salary payable to the nominee under the Letter of Engagement after grant of his visa, if the visa is to be granted, is $56,000 per annum. The Tribunal is satisfied that the applicant has the financial capacity to continue to pay the nominee’s salary.
On the basis of the evidence presented, the Tribunal is satisfied that the applicant has operated profitably over the past four financial years and has the financial capacity to employ the nominee in the position of Cook in accordance with the Letter of Engagement and that the nominee will be employed on a full-time basis in that position for at least
2 years. Accordingly, the requirement in r.5.19(4)(d)(i) is met.
As the requirements of both r.5.19(4)(d)(i) and (ii) are met, the requirement in r.5.19(4)(d) is met.
No less favourable terms and condition of employment: r.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 application to the Department states that the applicant did not have Australian employees in the workplace doing the same work as the nominee at the time of application. Mr Kalra gave evidence that this is still the case at the present time. (There are cooks employed, but on a casual basis.) The Letter of Engagement provides that the applicant will pay to the nominee a commencing base salary of $56,000.00 per annum plus superannuation of 9.5% of his gross salary. The nominee is entitled to leave in accordance with the National Employment Standards.
The applicant produced to the Tribunal online evidence from the site Neuvoo that the salary paid to a Cook in Australia is within the range of $44,401 to $73,293 with an average salary of $55,000. The applicant also produced evidence in the form of copies of recent online job advertisements with the portals Seek and Indeed for the position of Chefs/Cooks in several regional New South Wales locations. The ranges of salaries offered were $54,000 to $60,000 in locations of Armidale, Bowral and Bellingen.
The applicant also produced a copy of a Pay Guide for the Vehicle Manufacturing, Repair, Services and Retail Award 2010 issued on 27 June 2019 by the Fair Work Ombudsman and a payslip for an employee of the applicant employed as a casual Cook. The base salary payable to a Roadhouse attendant engaged primarily to cook other than take away meals is $21.54 per hour, equivalent to $42,563.00 per annum. The payslip produced to the Tribunal shows that the wage paid to the casual employee, including casual loading, is $28.38 per hour, equivalent to $56,078.88 per annum.
The Tribunal also has regard to the certificate of the Regional Certifying Body, being the Chamber of Commerce and Industry, Queensland, dated 22 September 2017, that the nomination satisfies the requirements set out in r.5.19(4)(e) and r.5.19(4)(h)(ii)(B) and (C).
Based on the evidence available and having regard to the nominee’s experience, 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 r.5.19(4)(e) are met.
No adverse information known to Immigration: r.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 rr.1.13A and 1.13B of the Regulations.
The relevant definition of ‘adverse information’ at r.1.13(A)(1), as in force before 18 March 2018, relevantly states that ‘adverse information’ is any adverse information relevant to a person’s suitability as a nominator (within the meaning of r.5.19) and includes information that the person:
·has been found guilty by a court, of an offence under a Commonwealth, State or Territory law; or
·has, to the satisfaction of a ‘competent authority’, acted in contravention of a Commonwealth, State or Territory law; or
·has been the subject of administrative action (including the issue of a warning) by a competent authority for the possible contravention of a Commonwealth, State or Territory law; or
·is under investigation, subject to disciplinary action or subject to legal proceedings in relation to an alleged contravention of a Commonwealth, State or Territory law; or
·has become insolvent within the meaning of s.5(2) and (3) of the Bankruptcy Act 1966 and s.95A of the Corporations Act 2001.
Regulation 1.13(A)(2) provides that the law which has been contravened, or has possibly been contravened as referred to in the first four dot points above, must relate to one or more of the following: discrimination, immigration, industrial relations, occupational health and safety, people smuggling and related offences, slavery, sexual servitude and deceptive recruiting, taxation, terrorism and trafficking in persons and debt bondage.
Regulation 1.13(A)(3) provides that the conviction, finding of non-compliance, administrative action, investigation, legal proceedings or insolvency must have occurred within the previous three years.
The applicant produced to the Tribunal an email from the applicant’s lawyers HR Law to the Fair Work Ombudsman (FWO) dated 30 June 2017 regarding underpayment of wages by the applicant prior to that date, as well as steps taken by the applicant to compensate the employees and steps taken to ensure that the errors did not continue. The applicant also produced a submission from its migration agent regarding the issue.
The Tribunal produced to Mr Kalra, pursuant to the provisions of s.359AA the Act a Letter of Caution and a Compliance Notice issued by the FWO to the applicant dated 4 July 2017 and 13 September 2017 respectively. Mr Kalra stated that he was familiar with these documents. These documents indicate that:
a.In 2017, a former employee of the applicant’s Uralla site named Gurwinder Singh lodged a Request for Assistance with FWO with allegations of underpayment of the correct hourly rate of pay, non-payment of penalty rates and failure to provide payslips. The resultant investigation by FWO determined that the applicant had underpaid Mr Singh to the extent of $23,490. The FWO decided that it was not in the public interest to commence civil proceedings against the applicant, but that it was more appropriate to issue a Letter of Caution.
b.Later in 2017, another former employee of the applicant’s Uralla site named Tristan Miller lodged a Request for Assistance with FWO with allegations of underpayment of the correct hourly rate of pay and non-payment of penalty rates. The resultant investigation by FWO determined that the applicant had underpaid Mr Miller to the extent of $4,296.65. The FWO determined that the appropriate enforcement measure was to issue a Compliance Notice providing the applicant an opportunity to rectify the contravention by paying the sum of $4,296.65 to Mr Miller.
The Tribunal explained to Mr Kalra that this information was relevant to the requirement that there be no adverse information known to Immigration about the nominator or any person associated with the nominator. The Tribunal explained that the information raised concerns for the Tribunal because, if relied upon, it could cause the Tribunal to find that there was adverse information known to Immigration about the applicant and that if the Tribunal found that it was not reasonable to disregard the information, the decision to refuse the nomination could be affirmed. Mr Kalra was offered an adjournment to consider the information, but said that he would deal with the matter immediately.
Mr Kalra was asked to explain how the underpayment of wages to Mr Singh had occurred. He said that Mr Singh had been employed by the applicant for over three years and that, in 2017, he had gone to the FWO with a complaint of underpayment of wages. He said that the applicant received a letter from the FWO to produce documents in relation to his (Mr Singh’s) records. The company produced those records and admitted to shortcomings in their record-keeping. As a result of this enquiry, the FWO identified underpayments to Mr Singh. He said that the applicant engaged a firm of lawyers, HR Law of Brisbane, to assist it in this matter. The applicant identified that there had also been underpayments to other current employees and, with the assistance of HR Law, they voluntarily calculated the amount of those underpayments and paid the shortfall to those employees. Mr Kalra said that the FWO issued a Letter of Caution and the applicant took significant steps to make sure that these circumstances did not happen again.
Mr Kalra stated that the later correspondence from the FWO related to their employee Mr Tristan Miller. He said that when HR Law had calculated the underpayments to employees other than Mr Singh, the applicant provided them with payroll information for all current employees. Mr Miller had ceased his employment with the applicant in early June 2017, before the underpayments were calculated and he was therefore not included in the calculation. Mr Miller had become aware of the payment to Mr Singh and approached the applicant regarding wages payable to him. The applicant calculated that the amount payable to Mr Miller was approximately $3,000.00 and Mr Miller initially agreed to accept that amount. However, he referred the matter to the FWO who requested the records for Mr Miller and calculated that the underpayment to Mr Miller was $4,296.65. The FWO issued a Compliance Notice requiring the applicant to pay the shortfall and the applicant complied with that notice. Mr Kalra said that the underpayments to Mr Miller occurred at the same time as the underpayments to Mr Singh and repeated that Mr Miller had been omitted from the voluntary payment of the shortfalls to other employees because he was not a current employee at the time of the calculation.
The Tribunal notes that the FWO formed the view, in relation to Mr Singh’s claim, that the applicant failed to pay him the minimum entitlements under the relevant award and that the applicant contravened two regulations under the Fair Work Act 2009 relating to record keeping. In relation to Mr Miller’s claim, the FWO formed the view that the applicant contravened the provision in the Fair Work Act that a person must not contravene a term of a modern award.
The Tribunal finds on the evidence before it that the information known to Immigration about the applicant in respect of the contravention of the Fair Work Act and the Regulations thereunder is relevant to the applicant’s suitability as a nominator and is therefore adverse information as provided in r.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 r.5.19(4)(f)(i).
The Tribunal then needs to consider whether it is reasonable, under r.5.19(4)(f)(ii), to disregard the adverse information. On this matter, the Tribunal has considered the Department’s policy contained in its Procedures Advice Manual (PAM3). This policy is not binding on the Tribunal, but the Tribunal may refer to it. Relevantly on this point, the policy states that factors that may be taken into account in deciding whether it is reasonable to disregard adverse information include, but are not limited to:
a.the nature of the adverse information;
b.how the adverse information became known;
c.whether the adverse information relates to a current contravention or one that occurred a long time ago;
d.whether the applicant has taken any steps to ensure the circumstances that led to the adverse information did not recur; and
e.information about relevant findings made by a competent authority in relation to the adverse information.
The policy goes on to state that the nature of the findings by a competent authority should be considered; that is, whether the finding resulted in an infringement notice, a fine or a court-imposed penalty with an associated public finding. The policy states that these circumstances should be considered as having increasing degrees of significance, and that if a court has imposed a penalty for breach, it is less likely that it will be reasonable to disregard the adverse information. The policy further states that the circumstances in which it may generally be reasonable to disregard adverse information include where the applicant has taken steps to negate the implications of relevant conduct or practices.
Mr Kalra stated that the issue of the underpayment to Mr Miller had been settled in September 2017 and that two and a half years had elapsed since that time, during which no further such issues had arisen. He said that the applicant undertook significant steps to prevent a recurrence of this problem. He stated that the applicant had subscribed in October 2017 to a payroll program Lightning Software and hired a payroll assistant named Ms Sharon Barker. They advertised this position in September 2017 and engaged Ms Barker some time later. The company had also arranged for an ongoing review of the business’s employment practices by HR Law, which review has continued until the present. He said that this review involves HR Law making the company aware of changes to the law and awards and that as a result of these steps there had been no further problems. He stated that the dealings with the FWO had been a wake-up call for the applicant and had given the company the opportunity to review their practices. He also said that the applicant had not previously engaged the firm of HR Law.
The Tribunal notified Mr Kalra that the issue of the underpayments to the two employees was a matter of concern, particularly having regard to the amount of the underpayment to Mr Singh, which the Tribunal described as significant. Mr Kalra responded by stating that the amount was high because of the length of Mr Singh’s employment. He said that Mr Singh had been employed for three to four years and that if he had been employed for only a few months, the amount would not have been as significant. He said that even a slight variation in the award rate of a few cents per hour would lead to a high amount of underpayment.
The Tribunal explained to Mr Kalra that, if the Tribunal made a finding that there was adverse information known to Immigration about the applicant, the Tribunal could disregard that information if it was reasonable to do so. The Tribunal advised him that the Tribunal would take into account his evidence of the circumstances of the intervention by the FWO and the steps taken by the applicant after that intervention.
The factors which could influence the Tribunal not to disregard the adverse information are:
a.The amount of the underpayment to Mr Singh. The Tribunal regards the amount of $23,490 to be significant. Mr Kalra provided an explanation for the size of the underpayment, but the Tribunal is still concerned by this issue.
b.The failure of the applicant to identify the underpayment to Mr Miller. Mr Kalra claimed that the applicant, when made aware of the claim by Mr Singh, voluntarily calculated underpayments to other employees and paid the outstanding wages. However, he said that only current employees were included in the calculations and that the underpayment to Mr Miller was not discovered because he had left the applicant’s employment. The Tribunal is concerned that former employees were deliberately omitted from the exercise.
The factors which could influence the Tribunal to disregard the adverse information are:
a.The period of time which has elapsed since the information arose. The Tribunal notes that almost three years have passed since the last action by the FWO. Indeed, having regard to the fact that the underpayments to both employees arose over a period from 2013 to 2017, up to seven years may have passed since some of the offending conduct by the applicant occurred.
b.The findings made by the FWO. On both occasions, the FWO chose to proceed by way of Letter of Caution or Compliance Notice, rather than the institution of court proceedings.
c.The steps taken by the applicant to ensure that the circumstances which lead to the adverse information do not recur. These steps, including the engagement of professionals to advise the applicant on changes to industrial laws and award rates, the acquisition of payroll software and the employment of an payroll officer to handle payroll issues, appear to have resolved the issues which had previously lead to the adverse information arising. The Tribunal regards these steps to be compelling in favour of disregarding the adverse information.
Having regard to all of the evidence and to the Department’s policy, the Tribunal finds that it is reasonable to disregard the adverse information. Accordingly, the requirement in r.5.19(4)(f)(ii) is met.
Accordingly, the requirements of r.5.19(4)(f) are met.
Satisfactory compliance with workplace relations laws: r.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.
Without setting the circumstances again in full, the Tribunal notes the facts set out in paragraph 52 above, and the findings of the FWO set out in paragraph 56 above. In short, the FWO found that the applicant had contravened several provisions of the Fair Work Act 2009.The Tribunal finds that these contraventions constitute a non-compliance with workplace relations laws. It is therefore necessary for the Tribunal to determine whether the applicant has a satisfactory (emphasis by the Tribunal) record of compliance with the relevant laws.
The term ‘satisfactory record’ is not defined in the Regulations. The Macquarie Dictionary (Sixth Edition 2013) defines satisfactory as ‘affording satisfaction, fulfilling all demands or requirements’. The Oxford Dictionary of English (Third edition 2010) provides a lower standard, defining satisfactory as ‘acceptable, though not outstanding or perfect’. In Nice Shoes Aust Pty Ltd v MIMIA (2004) FCA 252, the Federal Court considered these competing definitions in the context of ‘satisfactory record’ as it arose in training requirements for standard business sponsors in the since-repealed r.1.20D(2)(c)(ii). In that case, the Court observed that the difficulty with such a definition is that it provides no measure or standard against to determine whether something is ‘satisfactory’. Looking to the broader context of r.1.20D, the Court held that a ‘satisfactory record’ of training is a record that demonstrates that the applicant provides training to a degree reasonably commensurate with the nature and extent of its business operations in Australia. Critically, the Court observed that the relevant issue for the Tribunal’s consideration was whether it was satisfied that the applicant had such a satisfactory record.
This suggests that in this context, the criterion would not necessarily require the employer to demonstrate a ‘blemish-free’ record of compliance with workplace relations laws. Instead, the level of compliance by the employer may instead be of such a level to satisfy the decision maker that the employer will be able to fulfil its workplace obligations to the employee such that the nomination should be approved.
There is also some support in Departmental policy for such an approach. Dealing with a different class of visa, policy suggests a fair and reasonable approach in assessment of this criterion should be applied in all cases. It states that the requirement is not intended to be applied in every instance of a breach of Australian law and that ‘minor breaches’ of the law, or a single more serious breach, may be disregarded, especially if the applicant can demonstrate that the breach has been rectified and there has been no recurrence of the breach for a reasonable period. Once again, this policy is not binding on the Tribunal, but may be considered.
Taking into account all of the evidence referred to in the Tribunal’s consideration of the preceding requirement under r.5.19(4)(f), and particularly the factors set out in paragraph 64 above, the Tribunal is satisfied that, although the applicant does not have a blameless record of compliance with workplace laws, it does have 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.
Accordingly, the requirements of r.5.19(4)(g) are met.
Tasks of the position genuine need for the position and training requirements r.5.19(4)(h)
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.
Regulation 5.19(4)(h)(ii)(A) – the position is located in regional Australia
The evidence produced to the Tribunal confirms that the applicant’s business in which the position is to be filled is conducted in premises situated at 111 Bridge Street, Uralla, New South Wales, 2358, a location in regional Australia according to the relevant instrument.
Based on the evidence presented, the Tribunal is satisfied that the position is located in regional Australia. Accordingly, the requirements of r.5.19(4)(h)(ii)(A) are met.
Regulation 5.19(4)(h)(ii)(B) – genuine need to employ a paid employee to work in the position under the applicant’s direct control
The applicant has provided various documents to the Tribunal as evidence of the range of tasks undertaken by the nominee in his role as Cook. The applicant’s migration agent has made submissions regarding the genuine need for the position. Mr Kalra gave evidence at the hearing regarding the genuine need for the position and the tasks carried out by the nominee in that position.
Mr Kalra was asked about the newspaper advertisements placed by the applicant in November 2015. He was specifically asked why the applicant had included a requirement that suitable candidates should possess experience in Indian cuisines for a position in Uralla. He said Indian cuisine was and is popular in Australia. He said that there was no Indian restaurant in Uralla at that time, with the nearest Indian restaurant being located in Armidale. He stated that the applicant was looking to increase its business and had a vision to establish an Indian restaurant in Uralla.
Mr Kalra said that the business did introduce Indian cuisine and added several new dishes to the menu. He stated that the innovation worked well for two to three months, but people lost interest. He said that the applicant ceased the operations of the Indian cuisine after six to eight months. The Tribunal accepts that the applicant genuinely sought to introduce Indian cuisine into the menu for the restaurant and that the requirement for experience in this cuisine was reasonable for the position.
The Tribunal referred Mr Kalra to the Product Sales document for the Matilda Uralla restaurant for the 2019 financial year which the applicant had submitted, and a brief summary of the sales figures prepared by the Tribunal. That summary read as follows:
Matilda Uralla
Sales %
Burgers $48,687.16 10.4
Coffee $142,623.22 30.5
Meals $45,888.12 9.8
Sandwiches $45,489.78 9.7
Home-made $185,332.61 39.6
Total $468,020.89 100
Mr Kalra agreed that the summary appeared to be accurate. He agreed that burgers, coffee and sandwiches accounted for over 50% of restaurant sales, and that meals accounted for less than 10% of sales. The Tribunal suggested to him that quite a number of items in the “Meals” sales document did not require a cook for the preparation of those meals. It was suggested to him that items such as baked beans on toast, mushrooms on toast, fish and chips and grilled barramundi were basically cooking pre-frozen items. Mr Kalra agreed that the barramundi was frozen, but that other dishes such as steaks, mixed grills, beef rissoles, pork chops and roasts were prepared on site. He said that the meat products were purchased from the butcher in large quantities before being divided by the nominee into small portions, individually vacuum sealed and frozen until required. He also said that the meat patties for the burgers were prepared on site.
Mr Kalra went on to say that the home-made category, which accounted for almost 40% of sales, were prepared on site. He said that the roadhouse was famous for its pies which were fully prepared on site, whereas most roadhouses sold pies which were frozen products reheated and served. He stated that the home-made category also included sweet pies, tarts and similar products which were made in the kitchen. The Tribunal notes that, on the basis that the meat patties are the principal component of the burgers, the percentage of total sales attributable to products prepared on-site is approximately 60%.
The Tribunal did have concerns regarding the delay in the nominee commencing his employment with the applicant after he was appointed to the position. The nominee advised the site manager in December 2015 that he was prepared to travel from Sydney to take up the position on condition that the applicant sponsored him for a RSMS visa. The applicant agreed to do so. However, the nominee’s employment did not commence until September 2016. Mr Kalra was asked to explain the delay in commencement of that employment. He stated that the nominee already had travel tickets to return to his family in India from the month of August 2016 to the middle or end of September 2016. The applicant agreed that the nominee could delay the start of his employment until his return from India. The Tribunal was concerned that this delay might indicate that there was no genuine need for the applicant to employ a full-time Cook at the premises. However, Mr Kalra spoke of the difficulties in recruiting staff to work in such positions in rural Australia and stated that the applicant saw the condition of nomination for a RSMS visa as a positive, because it meant that the applicant had the certainty of the nominee’s employment during the period of the nomination plus the two year period after the grant of the visa. The Tribunal accepts that the delay in the commencement of the nominee’s employment does not adversely affect the application.
The Tribunal also has regard to the certificate referred to in paragraph 44 above.
The Tribunal accepts that the restaurant represents a significant component of the applicant’s business at Uralla and that the position of Cook is integral to the conduct of the business. The Tribunal is satisfied that there is a genuine need for the applicant to employ a paid employee to work in the position of Cook at the location under the nominator’s direct control. Accordingly, the requirements of r.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 produced to the Tribunal copies of the job advertisements placed with the Armidale Express in November 2015 and a submission from the applicant’s migration agent. Mr Kalra stated that the recruitment process was substantially undertaken by the manager of the site. He said that the recruitment process started with the advertising of the position in November 2015. He stated that there were no local applicants for the position.
Mr Kalra said that employers such as the applicant experienced great difficulty in attracting qualified applicants to fill positions in rural areas. He said that the email correspondence from Jobs Australia in 2012 and 2013 illustrated these difficulties. (One applicant had limited experience and the other did not seek full-time employment.) He stated that the nominee had become aware of the job vacancy through a third party and had contacted the store manager in late December 2015 about applying for the position. The nominee flew to Armidale and was interviewed by the store manager on site. He was appointed to the position after the applicant agreed to sponsor him for a RSMS visa. The Tribunal notes that there were no local applicants for the position in the period of approximately six weeks between the advertising for the position and the nominee’s appointment.
The Tribunal also has regard to the certificate referred to in paragraph 44 above.
Having 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, r.5.19(4)(h)(ii)(C) is satisfied.
Regulation 5.19(4)(h)(ii)(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 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 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 duties and responsibilities of the Cook set out in the job description attached to the Letter of Engagement are consistent with the tasks set out in ANZSCO. Mr Kalra gave evidence of the tasks performed by the nominee in the position, which were also consistent with the tasks in ANZSCO. He said that the nominee’s primary duty was to prepare and cook dishes in accordance with customers’ orders. He expanded this duty by referring to the requirement to prepare raw foods and to prepare sauces, gravies and garnishes. He said that the Cook was involved in food health and safety procedures, particularly the storage of raw foods and finished products at correct temperatures. He stated that the nominee was also responsible for the maintenance of equipment, the training of new staff as instructed by the store manager, maintaining relations with customers and developing new dishes for the restaurant.
The Tribunal discussed with Mr Kalra the provision in the ANZSCO classification for Cooks that Fast Food Cooks were excluded from this Group. The Tribunal described to him the tasks in ANZSCO for the lesser classification of Food Preparation Assistants (ANZSCO code 851). The Tribunal suggested to him that some of the tasks of the nominee that he had described fell within the tasks of a Food Preparation Assistant. Mr Kalra agreed that some of the nominee’s tasks came within what he described as a Fast Food Kitchen setup. However, he distinguished the nominee’s position from that of a Food Preparation Assistant. He again listed the range of duties of the nominee in the creation of recipes for the restaurant. He emphasised the importance of the use in the business of home-made burger patties, pie fillings and sausage rolls. The nominee gave similar evidence, he not being present in the hearing room during the earlier evidence of Mr Kalra.
Based on all the evidence, 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, being IMMI 17/058 and that the occupation is applicable to the nominee. Accordingly, the requirements of r.5.19(4)(h)(ii)(D) 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 76 above, the Tribunal is satisfied that the business operated by the applicant is located at 111 Bridge Street, Uralla, New South Wales, 2358, which is the same location as the address of the position to be filled. Accordingly, the requirements of r.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 r.5.19(4)(h)(ii)(B) and (C)
The certificate referred to in paragraph 44 above was submitted to the Department. Accordingly, the Tribunal is satisfied that r.5.19(4)(h)(ii)(F) is met.
Accordingly, having regard to the above findings, the requirements of r.5.19(4)(h) are met.
Based on the findings above, the Tribunal is satisfied that the applicant meets the requirements of r.5.19 for approval of the nomination of the position in Australia.
DECISION
The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.
Terrence Baxter
MemberATTACHMENT - EXTRACTS FROM THE MIGRATION REGULATIONS 1994
5.19Approval of nominated positions (employer nomination)
…
(2)The application must:
(a)be made in accordance with approved form 1395…; and
(aa) include a written certification by the nominator stating whether or not the nominator has engaged in conduct, in relation to the nomination, that constitutes a contravention of subsection 245AR(1) of the Act; and
(b)be accompanied by the fee mentioned in regulation 5.37.
…
Direct Entry nomination
(4)The Minister must, in writing, approve a nomination if:
(a)the application for approval:
(i) is made in accordance with subregulation (2); and
(ii) identifies a need for the nominator to employ a paid employee to work in the position under the nominator’s direct control; and
(b)the nominator:
(i) is actively and lawfully operating a business in Australia; and
(ii) directly operates the business; and
(c)for a nominator whose business activities include activities relating to the hiring of labour to other unrelated businesses — the position is within the business activities of the nominator and not for hire to other unrelated businesses; and
(d)both of the following apply:
(i) the employee will be employed on a full-time basis in the position for at least 2 years;
(ii) the terms and conditions of the employee’s employment will not include an express exclusion of the possibility of extending the period of employment; and
(e)the terms and conditions of employment applicable to the position will be no less favourable than the terms and conditions that:
(i) are provided; or
(ii) would be provided;
to an Australian citizen or an Australian permanent resident for performing equivalent work in the same workplace at the same location; and
(f)either:
(i) there is no adverse information known to Immigration about the nominator or a person associated with the nominator; or
(ii) it is reasonable to disregard any adverse information known to Immigration about the nominator or a person associated with the nominator; and
(g)the nominator has a satisfactory record of compliance with the laws of the Commonwealth, and of each State or Territory in which the applicant operates a business and employs employees in the business, relating to workplace relations; and
(h)either:
(i) both of the following apply:
(A)the tasks to be performed in the position will be performed in Australia and correspond to the tasks of an occupation specified by the Minister in an instrument in writing for this sub-subparagraph;
(AAA)the occupation is applicable to the person identified under subparagraph (a)(ii) in accordance with the specification of the occupation;
(B)either:
(I)the nominator’s business has operated for at least 12 months, and the nominator meets the requirements for the training of Australian citizens and Australian permanent residents that are specified by the Minister in an instrument in writing for this sub-sub-subparagraph; or
(II)the nominator’s business has operated for less than 12 months, and the nominator has an auditable plan for meeting the requirements specified in the instrument mentioned in sub-sub-subparagraph (I); or
(ii) all of the following apply:
(A)the position is located in regional Australia;
(B)there is a genuine need for the nominator to employ a paid employee to work in the position under the nominator’s direct control;
(C)the position cannot be filled by an Australian citizen or an Australian permanent resident who is living in the same local area as that place;
(D)the tasks to be performed in the position correspond to the tasks of an occupation specified by the Minister in an instrument in writing for this sub-subparagraph;
(DA)the occupation is applicable to the person identified under subparagraph (a)(ii) in accordance with the specification of the occupation;
(E)the business operated by the nominator is located at that place;
(F)a body that is:
(I)specified by the Minister in an instrument in writing for this sub-subparagraph; and
(II)located in the same State or Territory as the location of the position;
has advised the Minister about the matters mentioned in paragraph (e) and sub-subparagraphs (B) and (C).
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
Legal Concepts
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Judicial Review
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Procedural Fairness
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Statutory Construction
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Natural Justice
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Remedies
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