Vivig Family Trust & Rjwv Family Trust (Migration)

Vivig Family Trust & Rjwv Family Trust (Migration) [2022] AATA 579 (11 March 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Vivig Family Trust & Rjwv Family Trust
CASE NUMBER:  1829140
HOME AFFAIRS REFERENCE(S):          BCC2017/481970
MEMBER:Vanessa Plain
DATE:11 March 2022
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Statement made on 11 March 2022 at 6:47pm
CATCHWORDS
MIGRATION – application for approval of nomination of position – direct entry nomination stream – chef – financial capacity to employ nominee full-time for two years – extensive financial documentation provided to tribunal – length of employment already – labour market testing – combined hearing with review of refusal of related visa application – decision under review set aside
LEGISLATION
Migration Regulations 1994 (Cth), r 5.19(4)(d)
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 20 September 2018 to reject the applicant’s application for approval of the nomination of a position in Australia under reg 5.19 of the Migration Regulations 1994 (Cth) (the Regulations).
The applicant applied for approval on 6 February 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).
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)(d) of the Regulations because the delegate was not satisfied that the business demonstrated that it had the financial capacity to pay the full-time salary of the nominated position of Chef (ANZSCO 351311) for a period of at least two years.
The applicant appeared before the Tribunal on 6 December 2021 to give evidence and present arguments. The Tribunal received oral evidence from Ms Vivianne Viglietti, of the applicant. The Tribunal also received oral evidence from Mr Arwinder Kaler, the nominee for the position and the primary applicant in related case number 1832268 which was heard concurrently with the present case.
The applicant was represented in relation to the review by its registered migration agent.
The Tribunal exercised its discretion to hold the hearing by video link. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by video link, having regard to the nature of this matter and the individual circumstances of the applicant and nominee. 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 link. The Tribunal is satisfied that the applicant and nominee were given a fair opportunity to give evidence and present arguments.
For the following reasons, the Tribunal has decided to set aside the decision under review and substitute a decision approving the nomination.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant meets the requirements for approval of the nomination under the Direct Entry nomination stream set out in reg 5.19(4), which is extracted in the attachment to this decision. For the nomination to be approved, all the requirements must be met.
Background
The applicant operates a business called Hotel Phillip Island situated at Cowes, Phillip Island, Victoria. The nominated position is located in Cowes, Phillip Island, Victoria. Information before the Tribunal demonstrates that Hotel Phillip Island is operated via a partnership of two trust structures being the RJWV Family Trust and the Vivig Family Trust. The relevant trustee is Roburg Pty Ltd. Ms Viglietti is a director of Roburg Pty Ltd. The Business’s ABN is 52 773 403 622. Hotel Phillip Island is a registered business name owned by the applicant.
On 6 February 2017, the applicant lodged an application for an employer nomination for the position of Chef (ANZSCO 351311) under the direct entry Regional Employer Nomination stream. The nominee’s nominated base salary and guaranteed earnings are $67,000 per annum plus superannuation.
On 18 June 2021 the Tribunal wrote to the applicant and explained that the Tribunal requires current and updated information addressing the criteria in r 5.19 of the Migration Regulations 1994 which must be met at the time of the Tribunal’s decision.
The Tribunal notes that the applicant and the nominee submitted a voluminous amount of documentary evidence in support of the claims. The Tribunal also has access to and has considered the Department’s file for each of the applicant and nominee. While the Tribunal has considered all of the documentary evidence submitted by the applicant and nominee, only that which was considered material to the Tribunal’s has been expressly referred to herein.
Further, the Tribunal has access to the Department Policy considerations, reliance upon the Act and the Regulations, and generic information concerning publicly-available references relied upon such as ANZSCO produced by the ABS, and Internet-available information from websites such as PayScale and the Australian Government Department of Education Skills and Employment, on occupational skill shortages and related-information
Evidence of the Nominee (Mr Arwinder Kaler)
Mr Kaler informed the Tribunal that he has heard the evidence of Ms Viglietti and he agrees with what Ms Viglietti said to the Tribunal. He is currently working as a chef in the business and is paid $67,000 per annum plus his statutory entitlements. He has always been paid his salary by the business.
Submissions of the Migration Agent
The Tribunal has read and had regard to the legal submissions submitted by the migration agent in support of the applicant and nominee’s claims.
The application is compliant: reg 5.19(4)(a)
Regulation 5.19(4)(a) requires that the application for approval must be in the approved form, must be accompanied by the prescribed fee, and, where applicable, must include the required written certification relating to conduct that contravenes s 245AR(1). The application must also identify a need for the nominator to employ a paid employee to work in the position under their direct control.
On the available information the Tribunal finds that the application was made on the approved form 1395 (Internet) for post 23 March 2013 applications. The prescribed fee was not required to be paid because the application pertains to employment in a regional area.
The Department file includes the application containing a written certification stating the nominator has not engaged in conduct in relation to the nomination that contravenes s. 245AR(1) and which relates to obtaining a benefit for a migration outcome.
The documentary evidence submitted by the applicant, including an organisational staff structure chart, job description, employment contract and PAYG information plainly establishes that the applicant business has identified a genuine need for the nominator to employ a paid employee to work in the position under the nominator’s direct control as the chef in the Hotel business.
Ms Viglietti informed the Tribunal of the day to day duties of the nominee and the fact that he is integral to the business. COVID-19 has hit hospitality very hard and it is not easy to find reliable chefs. The Tribunal accepts that evidence.
Accordingly, the requirement in r.5.19(4)(a) is met.
Nominator is actively and lawfully operating a business in Australia: reg 5.19(4)(b)
Regulation 5.19(4)(b) requires that the applicant is actively, lawfully and directly operating a business in Australia.
The applicant has produced a current ASIC record of the trustee, an ABN search, an Australian Business Register extract, two trust deeds, appointment of trustee deed, lodged financial statements, BAS and PAYG for the financial years 2015 to March 2021 which establish that the business is registered and conducted via a partnership of two separate trusts.
The Tribunal finds on the available information, that the business is actively and lawfully operating a hotel in regional Victoria, and that the business continues to be operated directly by the entities referred to above.
Accordingly, the requirement in r.5.19(4)(b) is met.
Position is not labour-hire: reg 5.19(4)(c)
Regulation 5.19(4)(c) applies to nominators whose business activities include those relating to labour hire to an unrelated business. In these cases, the nominated position must be within the business activities of the nominator.
The Tribunal finds on the available information there is no evidence that the applicant is involved in labour hire activities.
Accordingly, the requirement in r.5.19(4)(c) does not apply.
Term of employment of the visa holder: reg 5.19(4)(d)
Regulation 5.19(4)(d) requires the nominee to be employed in the nominated position for at least 2 years full time, and the terms and conditions of that employment do not expressly exclude the possibility of an extension.
The Tribunal has had regard to a written contract of employment dated 28 December 2020 signed by the parties. The contract duration is 3 years and the option for renewal is not excluded. Evidence before the Tribunal provides that the nominee has been working as a chef in the business since 2016.
The Tribunal has had regard to a staff organisational chart which provides that there were seven employees in the kitchen in 2017 and at present, that number had been reduced to four employees. Ms Viglietti stated that the business has a high staff attrition rate which is the nature of hospitality and she intends to keep the nominee working as a chef in the future. In addition to the nominee, there are four other full time chefs who are all Australian citizens who each work in the business.
The Tribunal has had regard to an extensive amount of financial documentation submitted by the applicant. The applicant has submitted recent financial statements produced for the 2017 to 2020 financial years. The Tribunal has also had regard to PAYG summaries for the nominee for the 2017 to 2020 period. Those documents, together with the nominee’s evidence that he is being paid his salary of $67,000 per annum, clearly demonstrate that the business has the financial capacity to meet the salary of the nominee.
The Tribunal further notes that the evidence before it establishing that since 2017, the business has invested substantially in redeveloping the business premises and the annual financial statements demonstrate that the business has consistently turned over more than $2million per annum and paid wages to employees of over $500,000 since 2015/2016.
There is no evidence before the Tribunal that employees are not being paid their salaries or statutory entitlements. The Tribunal also places weight upon a letter from the accountant of the business who advises that partnership funds are available to the business to pay debts and debts have always been paid when they are due.
Based upon the above, the Tribunal finds on the financial information available to it that the partnership is operating a successful and financially viable business and has the capacity to continue to employ the nominee for the minimum period.
Accordingly, the requirement in r.5.19(4)(d) is met.
No less favourable terms and conditions of employment: reg 5.19(4)(e)
Regulation 5.19(4)(e) requires that the terms and conditions of employment applicable to the nominated position will be no less favourable than those that are, or would be, provided to an Australian citizen or permanent resident performing equivalent work in the same workplace at the same location.
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.
On the available evidence, there are three Australian citizens working as chefs in the business. The nominee is the only foreign worker in the business working as a chef.
The Tribunal has had regard to the salary offered in the sum of $67,000 plus superannuation and other entitlements, such as overtime, available under the relevant industry Award. According to an industry website, Payscale Australia, the median hourly rate for a Chef is $29.80 and the median salary is between $49,000 and $72,000 per annum.
The Tribunal notes the position is located in regional Victoria. The salary on offer in this instance is above the Award for the salary for the position and the Tribunal finds it to be no less favourable for a Chef working in an equivalent position elsewhere in a metropolitan setting.
The Tribunal further finds that the terms and conditions of employment in the written agreement are standard terms allowing for both industry and legislated workplace requirements, such as annual leave and sick leave.
The Tribunal is satisfied that there is no evidence before it that the terms and conditions applicable to the nominated position are any 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.
Accordingly, the requirements of r.5.19(4)(e) are met.
No adverse information known to Immigration: reg 5.19(4)(f)
Regulation 5.19(4)(f) requires that there is no adverse information known to Immigration about the nominator or person associated with the nominator; or it is reasonable to disregard any such information. For these purposes, ‘adverse information’ and ‘associated with’ have the meaning given in regs 1.13A and 1.13B.
The Tribunal is satisfied on the available information that there is no adverse information known to the Department about the nominator, or a person ‘associated with’ the nominator, within the meaning provided in the Regulations.
Accordingly, the requirements of r.5.19(4)(f) are met.
Satisfactory compliance with workplace relations laws: reg 5.19(4)(g)
Regulation 5.19(4)(g) requires that the applicant has a satisfactory record of compliance with the laws of the Commonwealth, and of each State or Territory in which the applicant operates a business and employs employees in the business, relating to workplace relations.
The Tribunal has had regard to the evidence including the documents and information provided and made available from the Department and Tribunal files, and finds it is satisfied that there is nothing before it to demonstrate the business does not have a satisfactory record of compliance with workplace relations laws in the location of Phillip Island, Victoria in which it operates the Hotel and employs staff.
Accordingly, the requirements of r.5.19(4)(g) are met.
Tasks of the position, genuine need for the position and training requirements reg 5.19(4)(h)
Regulation 5.19(4)(h) contains a number of alternative requirements. These are set out in detail in the attachment to the decision but can be briefly summarised as requiring either that:
·the tasks to be performed in the position will be performed in Australia and correspond to those of an occupation specified by the Minister (as specified in legislative instrument IMMI 19/047), the occupation is applicable to the proposed employee in accordance with any specifications made in that instrument, and specified training requirements are met; or
·the position and nominator’s business is located in regional Australia, there is a genuine need for the paid position under the nominator’s direct control which 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.
Location of Business
The business is located in Phillip Island, Victoria which is classified as a regional area (as specified in legislative instrument IMMI 17/059).
Is there a genuine need?
The Tribunal has had regard to letters of reference, three organisational charts created between 2015 and 2021, advertisements lodged on and in local newspapers, Form 1404 Regional Certifying Body Approval and a written statement of Ms Viglietti.
The Tribunal places significant weight on the written statements and the explanations provided as to the difficulty the business has had attracting and maintaining staff. Ms Viglietti attributes the difficulty to the regional location and the nature of hospitality but further contended that the pandemic had not assisted hospitality businesses.
The Tribunal is satisfied that the applicant intends to continue to employ the nominee in the position nominated and that there is a genuine need to employ the nominee as a Chef in that position under the nominator’s direct control.
Who is available to fill the position?
The Tribunal has reviewed the advertisements placed on and had regard to the written submissions. The oral evidence clearly establishes that the business has endured difficulty finding suitable and available employees to work in the kitchen. The Tribunal accepts that the business advertised in accordance with the documentation produced and continues to do so unsuccessfully. The documentary evidence establishes, by way of example, that the business has been unable to find a locally qualified staff due to non responsiveness and/or a general lack of experience and understanding of how to operate in a kitchen setting.
The available Federal Government industry information, including from Job Outlook and the Department of Education Skills and Employment [1] vary in their prognosis for future employment for food-related industry positions. Expectations will vary according to location, business size, and population and many factors can affect whether a position can or cannot be filled by an Australian citizen or permanent resident who is living in the same local area.
[1] >
In this instance, the Tribunal finds it is satisfied on the evidence presented that genuine and persistent attempts made at recruitment of Australian citizens or permanent residents through local advertising have been unsuccessful, mainly due to the COVID pandemic.
Do the tasks in this instance correspond to those specified in the instrument for the nominated occupation?
The ANZSCO reference specifies what is required for the occupation of Chef and is the basic guide upon which the Tribunal relies. It specifies that a chef plans, prepares and arranges meals. There is no evidence before the Tribunal to the effect that the nominee’s duties as a chef are not consistent with the ANZSCO description.
Based upon the documents submitted by the applicant and Ms Viglietti’s evidence at the hearing, the Tribunal finds that the tasks to be performed in the position correspond to the tasks of an occupation specified by the relevant instrument and finds that the nomination meets the requirement in this regard.
Regional Certifying Body
The applicant business has submitted a certified Regional Sponsored Migration Scheme – Regional Certifying Body advice which provides that the applicant’s application for regional sponsored migration certification has been approved. Therefore, the relevant RCB is satisfied that there is a genuine need for the position within the business.

Based upon the above, the Tribunal finds that the requirements of r.5.19(4)(h) are met.
Based on all 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.
Vanessa Plain
Member

ATTACHMENT - EXTRACTS FROM THE MIGRATION REGULATIONS 1994
5.19Approval of nominated positions (employer nomination)
…
(2)The application must:
(a)be made in accordance with approved form 1395…; and
(aa) include a written certification by the nominator stating whether or not the nominator has engaged in conduct, in relation to the nomination, that constitutes a contravention of subsection 245AR(1) of the Act; and
(b)be accompanied by the fee mentioned in regulation 5.37.
…
Direct Entry nomination
(4)The Minister must, in writing, approve a nomination if:
(a)the application for approval:
(i)       is made in accordance with subregulation (2); and
(ii)      identifies a need for the nominator to employ a paid employee to work in the position under the nominator’s direct control; and
(b)the nominator:
(i)       is actively and lawfully operating a business in Australia; and
(ii)      directly operates the business; and
(c)for a nominator whose business activities include activities relating to the hiring of labour to other unrelated businesses — the position is within the business activities of the nominator and not for hire to other unrelated businesses; and
(d)both of the following apply:
(i)       the employee will be employed on a full-time basis in the position for at least 2 years;
(ii)      the terms and conditions of the employee’s employment will not include an express exclusion of the possibility of extending the period of employment; and
(e)the terms and conditions of employment applicable to the position will be no less favourable than the terms and conditions that:
(i)       are provided; or
(ii)      would be provided;
to an Australian citizen or an Australian permanent resident for performing equivalent work in the same workplace at the same location; and
(f)either:
(i)       there is no adverse information known to Immigration about the nominator or a person associated with the nominator; or
(ii)      it is reasonable to disregard any adverse information known to Immigration about the nominator or a person associated with the nominator; and
(g)the nominator has a satisfactory record of compliance with the laws of the Commonwealth, and of each State or Territory in which the applicant operates a business and employs employees in the business, relating to workplace relations; and
(h)either:
(i)       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).

[2022] AATA 579

11 March 2022

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