VISHALS INDIAN RESTAURANT PTY LTD (Migration)

[2022] AATA 3297

VISHALS INDIAN RESTAURANT PTY LTD (Migration) [2022] AATA 3297 (8 September 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  VISHALS INDIAN RESTAURANT PTY LTD

REPRESENTATIVE:  Mr William Levingston

CASE NUMBER:  1915017

HOME AFFAIRS REFERENCE(S):          Bcc2017/4860012

MEMBER:Namoi Dougall

DATE:8 September 2022

PLACE OF DECISION:  Sydney

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

Statement made on 08 September 2022 at 3:50pm

CATCHWORDS
MIGRATION – application for approval of nomination of position – direct entry nomination stream – restaurant manager – tasks of position – oral evidence from representative of applicant and nominee – nominee promoted from wait staff – comparison of tasks of position and ANZSCO description – position cannot be filled by citizen or permanent resident in local area – decision under review set aside

LEGISLATION
Migration Regulations 1994 (Cth), r 5.19(4)(h)(ii)(C), (D)

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 28 May 2019 to reject the applicant’s application for approval of the nomination of a position in Australia under reg 5.19 of the Migration Regulations 1994 (Cth) (the Regulations).

2. The applicant applied for approval on 19 December 2017. The requirements for the approval of the nomination of a position in Australia are found in reg 5.19 of the Regulations which contains two alternative streams: a Temporary Residence Transition nomination stream (reg 5.19(3)) and a Direct Entry nomination stream (reg 5.19(4)). If the application is made in accordance with reg 5.19(2) and meets the requirements of either stream, then the application must be approved. If any of the requirements are not met, then the application must be refused: reg 5.19(5).

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

4. The delegate refused the application on the basis the applicant’s nomination did not satisfy reg 5.19(4)(h)(ii)(D) of the Regulations because the delegate was not satisfied that the predominant tasks of the nominated position of Restaurant Manager.

5. The director of the applicant, Mr Vishal Kocchar appeared on behalf of the applicant before the Tribunal on 25 August 2022 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Rampreet Kaur, the nominee. The Tribunal hearing was conducted with the assistance of an interpreter in the Hindi (Indian) and English languages.

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

BACKGROUND

1. In a genuine need statement provided to the Department, Mr Kochhar on behalf of the applicant stated that the restaurant started to trade on 15 September 2016 and is open 7 days a week including for lunch from Thursday to Saturday. Mr Kochhar stated he is a fully qualified chef and for a while he was both chef and manager, which worked well until his business partner left the business. He then had to employ a part time manager as he was unable to ensure the efficient running of the restaurant from the kitchen. Mr Kochhar further stated that he advertised the position but did not receive any responses, so he offered the position to the nominee referring to her qualifications of Diploma of Leadership Management and Diploma of Business. The nominee has been working in the restaurant since August 2017.

2. At the hearing Mr Kochhar stated they moved to other premises in East Gosford around 40 months ago. The restaurants seats 80 to 90 but can fit around 100 to 110 for a function. Currently the restaurant opens form 4:00 pm to 10:00 pm, 7 days a week. Customers form the office blocks are asking for lunch, but the restaurant is struggling to obtain staff. Mr Kochhar stated that he is aiming to open for lunch in around a month’s time. Currently 40% of the business is takeaway and the rest is service and when it was quiet the business is 70% take away.  However, since moving to the new premises the business is 70% service.

3. 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

1. 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.

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

1. Regulation 5.19(4)(a) requires that the application for approval must be in the approved form, must be accompanied by the prescribed fee, and, where applicable, must include the required written certification relating to conduct that contravenes s 245AR(1). The application must also identify a need for the nominator to employ an identified person as a paid employee to work in the position under their direct control.

2. Based on material in the Department’s file, the Tribunal is satisfied that the application was made on the relevant form and was accompanied by the prescribed fee, which in this case was nil. The Tribunal is also satisfied that the applicant certified, on the application form, that they have not engaged in conduct in relation to this nomination that constitutes a contravention of subsection 245AR(1) of the Act.

3. In the application, the applicant identified Mr Ramanpreet Kaur as the person they wish to employ in the position of Restaurant Manager (ANZSCO: Café or Restaurant Manager). The position, which is a paid one, is in the applicant’s business. The nature of the position, the tasks of the position and whether there is a genuine need for the position in the applicant’s business are matters discussed in more detail below. However, for the purposes of r.5.19(4)(a)(ii), the Tribunal is satisfied that the application identifies a need for the nominator to employ a paid employee to work in the position under their direct control.

4. Given the above, the Tribunal finds that requirements in reg 5.19(4)(a) are met.

Nominator is actively and lawfully operating a business in Australia: reg 5.19(4)(b)

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

2. The applicant operates an Indian Restaurant in East Gosford, New South Wales. The business was established in 2016. The Tribunal has been provided with material in relation to the operations of the business including business registration and other ASIC documentation, the lease for the new premise, payroll summaries and company tax returns. On the totality of the evidence the Tribunal is satisfied that the is actively and lawfully operating a business in Australia.

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

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

1. 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.

2. The nominator’s business activities do not involve the hiring of labour to an unrelated business. Accordingly, the requirement in reg 5.19(4)(c) does not apply.

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

1. 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.

2. The Tribunal has had regard to the letter of engagement dated 24 May 2019 which is signed by the director of the nominator and nominee and which sets out the terms and conditions of the nominee’s employment. The nominee is employed in the position of ‘Restaurant Manager’ on full time basis on $45,000 plus the superannuation guarantee for 38 hours per week for at least 2 years and there is no express term that excludes the possibility of an extension.

3. Subsequently the Tribunal was provided with a new letter of engagement signed by the director of the applicant and the nominee on 6 September 2022 (the September 2022 letter of engagement) and which set out the terms and conditions of the nominee’s employment. The nominee’s salary has been increased to $65,000 plus the superannuation guarantee for 38 hours per week for at least 2 years and there is no express term that excludes the possibility of an extension.

4. Given the above, the Tribunal is satisfied that the nominee will 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. Accordingly, the requirement in Reg 5.19(4)(d) is met.

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

1. 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.

2. As referred to above the first letter of engagement stated that unless more generous provisions are provided in the letter or the attached schedule the terms and conditions of employment are those set out in the Restaurant Industry Award MA000119 (the Award) at level 5 Food and Beverage Supervisor. The September 2022 letter of engagement states that the terms and conditions of the nominee’s employment will be those set out in the Award for a level 5 Food and Beverage Supervisor. The Tribunal has had regarded to the Restaurant Industry Award 2020 MA000119 and the current minimum rate for a Level 5 Food and Beverage Supervisor is $955.90 per week which is equivalent to $49,706.80 per annum. The nominees latest Notice of Assessment and Individual Tax Return indicates that for the tax year ending 30 June 2022 she earned $53,472. The September 2022 letter of engagement has increased the nominee’s salary to $65,000 per annum plus the superannuation guarantee which is significantly more than the minimum rates set out in the Award.

3. The Tribunal was also provided with market salary information as well advertisements from regional Australia although not form the Gosford area, which indicated a range of salaries for Restaurant Mangers from $60,000 to $80,000. The Tribunal on its own investigation found the average annual salary for a Restaurant Manager in Gosford as set out in PayScale.com was a range of $56,000 to $78,000 with a median of $61,357 per annum. The Tribunal is satisfied on the evidence before it that the proposed base salary of $65,000 is within the average market rate for an Australian equivalent.

4. The Tribunal has been provided with the financial statements for the financial years ending 30 June 2020 and 2021 and draft internal profit and loss statement and balance as at 30 June 2022. The turnovers for those 3 years were $370,285, $506,142 and $606,107 and the profit for those 3 years were $72,862, $100,600 and $54,316 respectively. The total equity for the 3 years was $65,380, $158,205 and $198,942. On the evidence the Tribunal is satisfied that the applicant has the financial capacity to provide the nominee the terms and conditions, including the salary of $65,000 per annum plus the superannuation guarantee.

5. On the totality of the evidence, the Tribunal is satisfied that the terms and condition applicable to the position will be no less favourable than those that would be provided to a permanent resident performing equivalent work in the same workplace at the same location. Accordingly, the requirements of reg 5.19(4)(e) are met.

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

1. 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.

2. There is no information or evidence before the Tribunal of any adverse information regarding the nominator or a person associated with the nominator.

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

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

1. 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.

2. There is no information or evidence before the Tribunal that the applicant does not have a satisfactory record of workplace compliance in the State where it operates its business and employs staff. 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)

1. 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 (see legislative instrument IMMI 17/080), the occupation is applicable to the proposed employee in accordance with any specifications made in that instrument, there is a genuine need for the nominee to be employed as a paid employee in the position, and certain specified training requirements are met; or

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

2. The Tribunal is satisfied that the position is located in East Gosford 2250 which is included in the relevant instrument, IMMI 17/059 as a regional area. The business is operated by the applicant in East Gosford.

3. On 11 January 2018, Regional Development Australia Central Coast NSW Inc, a certifying body specified in IMMI 16/059, located in the same State and Territory as the position and with responsibility for the local area has advised the Minister about whether the identified person would be paid at least the annual market salary rate for the occupation, whether there is a genuine need for the identified person to be employed in the position under the direct control of the nominator, and whether the position can be filled by an Australian citizen or permanent resident who is living in, or would move to, the local area concerned.

4. At the hearing Mr Kochhar confirmed that the business commenced trading in 2016 and the nominee joined the applicant in 2016. The nominee was employed as a front of house wait staff but after a couple of months the customers were very satisfied with her and she looked after the staff, including cleaning staff, making sure they kept the customers happy. At that time the restaurant was struggling with obtaining staff and the nominee trained the staff. The nominee was also looking after the stocking of the liquor and she advised on what to buy and what would sell. The nominee also helped with functions such as discussing the menu with customers and himself.

5. At the hearing, Mr Kochhar stated that prior to her promotion the nominee was looking after the whole of the front of house and helping him as he was in the kitchen. She was also a good worker. The nominee started in March or April 2017 and after eight to nine months Mr Kochhar decided to promote her. Mr Kochhar confirmed that he lodged the nomination application almost immediately after he promoted her.

6. At the hearing Mr Kochhar confirmed he advertised for the position for around 2 months but did not get any responses. The nominee’s tasks are that when she arrives at 4:00 pm: she instructs the cleaning staff and ensures everything is clean; she checks stock to ensure there is enough for the night service such as sauces, papadums and rice; she discusses the stock with the Chefs to ensure that there is enough stock for the night, and if there is not stock, the nominee will remove items from the menu. Once she has checked the stock she starts to look after customers on the phones and checks on timing for the food to be prepared for take away orders. The restaurant is very busy on the phones. From around 6:00 pm the dining room is busy and the nominee looks after the customers to ensure that the service is good and efficient. Once the restaurant quietens down the nominee makes a list of what stock is required and gives the list to Mr Kochhar to purchase. At the end of the night the nominee ensures that the restaurant is cleaned. If Mr Kochhar is not there the nominee also locks up the restaurant.

7. At the hearing Mr Kochhar stated that he is stuck in the kitchen because it is very hard to find staff. Once or twice a week he comes to the front of house. He does the accounting work and stock ordering in the morning. He then goes into the kitchen to ensure everything is ready for the night. When he has time, he discusses with the nominee what is to be done to promote the business to increase sales. He does social media and walks around office blocks to hand out flyers on the restaurant although the nominee does occasionally assist with social media. The nominee does assist with promotion but mainly Mr Kochhar does promotion by himself as he does not want to give the nominee more work as she is busy.

8. At the hearing Mr Kochhar confirmed that the nominee does the staff rostering and Mr Kochhar pays the wages. The nominee looks after the bookings and discusses with him what staff are required. Mr Kochhar stated that WH&S is split between him and the nominee. The nominee has completed a WH&S course. Mr Kochhar stated that they do around 2 functions a week and from next month they are starting to do big functions as 2 functions are booked with 80 and 100 people attending. For functions the nominee discusses the menu with the customers and calculates pricing and discusses that price with him. All purchasing and transactions are done by him. Mr Kochhar also stated that the nominee hirers staff and discusses what is happening with staff and will speak together with a staff member if necessary. The nominee trains the front of house staff.

9. At the hearing the nominee stated that when she starts each day by checking the restaurant is clean and meets health regulations; checks all lights work and that staff have arrived; and that she has enough staff for especially busy days; she speaks with customers to greet them and to ensure they are satisfied with meals and service; takes orders over the phone and from the tables; and checks reservations. The nominee also she trains staff including how to greet guest and ensure they are comfortable, how to take orders and how to serve food. The nominee stated that she does the rostering. The Tribunal referred to there being only has one staff member and the nominee stated that sometimes she will get the kitchen staff to help and try to get other staff but there is a shortage of staff currently. The nominee was responsible for hiring a new staff member who joined a few weeks ago and the nominee has been training the new staff member.

10. At the hearing the nominee stated that she keeps a record of stock and she does order stock such as drinks. She also orders containers and bags that are needed for the takeaway food. The nominee plans specials for the menu. If customer asks for an item they would like included on the menu, they plan how that can be added to the menu. The nominee stated that they do have functions for birthdays and the nominee discusses the menu with the customers and set the table for the number of guests. The nominee works within the budget and discusses with the customer and Mr Kochhar to ensure that the budget can be met and the pricing.

1. At the hearing the applicant stated that he has hired 2 more wait staff part time for 25 to 30 hours a week.

2. Having considered all of the available evidence and taking into account that the nominee has worked with the applicant in the position since early 2017, the Tribunal is satisfied that the applicant has a genuine need for the nominated position of Restaurant Manager in the business as the business has grown and is struggling to meet demand.

3. The Tribunal has taken into account the tasks listed in Unit Group 1411 Café and Restaurant Managers when considering whether the tasks performed in the position correspond to the tasks of an occupation specified in the relevant instrument. Those tasks listed in ANZSCO are as follows:

• planning menus in consultation with Chefs

• planning and organising special functions

• arranging the purchasing and pricing of goods according to budget

• maintaining records of stock levels and financial transactions

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

• conferring with customers to assess their satisfaction with meals and service

• selecting, training and supervising waiting and kitchen staff

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

1. On the evidence the Tribunal is satisfied that the tasks to be performed in the position of Café or Restaurant Manager (ANZSCO 141111) correspond to the tasks of an occupation specified in the relevant legislative instrument, IMMI 17/080. There is one additional applicability requirements for the occupation of listed in the relevant instrument. Inapplicability condition 8 requires that the position is not in a limited service restaurant. From the evidence, particularly that the restaurant can seat 80 to 90 people, the Tribunal is satisfied that the restaurant of the applicant is not a limited service restaurant.

2. With regard to whether the position can be filled by an Australian citizen or permanent resident who is living in the same local area, the Tribunal has had regard to the information submitted on behalf of the applicant to the Department and Tribunal at review. The Tribunal would have liked to have been provided, evidence as requested of how many vacancies here were for Restaurant Managers in the Gosford area, however, the Tribunal accepts the evidence at the hearing that the applicant has had difficulty in finding staff and is therefore, satisfied that the position was not able to be filled locally.

3. Having considered all of the evidence before it the Tribunal is satisfied that the position cannot be filled by an Australian citizen, or permanent resident, who is living in the same local area.

4. Accordingly, the Tribunal is satisfied that r.5.19(4)(h)(ii)(C) is met, and that r.5.19(4)(h)(ii) is met as a whole.

5. Accordingly, the Tribunal is satisfied that the requirements of r.5.19(4)(h) are met.

1. 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

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

Namoi Dougall
Member

ATTACHMENT - Extracts from the Migration Regulations 1994

5.19Approval of nominated positions (employer nomination)

…

1. 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

1. 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).