VKV Group Pty Ltd (Migration)

[2019] AATA 4276

VKV Group Pty Ltd (Migration) [2019] AATA 4276 (6 September 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  VKV Group Pty Ltd

CASE NUMBER:  1831923

DIBP REFERENCE(S):  BCC2017/1687983

MEMBER:Cathrine Burnett-Wake

DATE:6 September 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 06 September 2019 at 2:22pm

CATCHWORDS
MIGRATION – nomination – Direct Entry Nomination stream – Café or Restaurant Manager – evidence of recruitment activity provided – genuine need for employee under nominator’s direct control – nominee employed full-time for two years – employment extension not precluded – sufficient financial capacity to maintain nominee's salary – designated area migration scheme – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), s 245AR(1)
Migration Regulations 1994 (Cth), rr 1.13, 5.19

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 10 October 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).

2. The applicant applied for approval on 11 May 2017. 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 (r.5.19(3)) stream and a Direct Entry nomination (r.5.19(4)) stream. 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).

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 r.5.19(4)(h)(ii)(C) of the Regulations because the delegate did not accept that the nominator had made adequate attempts to recruit suitably qualified and experienced Australian citizens or Australian permanent residents to the position who lived in the same local area.

5. Mr Tuck Loong Ee, the sole Director of VKV Group Pty Ltd appeared before the Tribunal on 4 September 2019 to give evidence and present arguments.

6. The applicant was represented in relation to the review by its registered migration agent.

7. 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

8. 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.

   The application is compliant: r.5.19(4)(a)

9. 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.

10. On the basis of the information in the Department of Immigration's (the Department’s) file, the Tribunal is satisfied that the application was made on the relevant form and was accompanied by the prescribed fee. The relevant s.245AR(1) certification was also provided in the application form.

11. The identified occupation in the application is Café or Restaurant Manager (ANZSCO 141111).

12. At hearing Mr Ee outlined his family background was in the restaurant business and they had been in this industry for over 25 years. Mr Ee told the Tribunal that his family previously operated a Chinese restaurant on Lygon Street, Carlton. Mr Ee told the Tribunal that it was a very competitive area to operate a restaurant with small profit margins. He said that in around 2016 an opportunity presented itself for him to take over the Chinese restaurant in Hamilton. He explained that the owner of the restaurant owned both the business and the premises. That she was from Adelaide originally and wanted to return. She subsequently offered Mr Ee to lease the premises and take over the business.

13. Mr Ee said that in June 2016 he agreed to take over the business and begun leasing the property to operate the restaurant (lease agreements have been provided to the Tribunal). Mr Ee explained it was a traditional suburban Chinese restaurant that seated 70 people. Additionally, they were a fully licensed restaurant. Mr Ee explained they were open six days per week, closed Mondays. With hours of operation for a lunch service between 12PM and 3 PM then an evening service from 5 PM and 10 PM.

14. Mr Ee said everything was operating smoothly until the end of 2016 when his Restaurant Manager resigned, as they wanted to return to Melbourne. Mr Ee explained that because of his manager leaving he would spend six days per week in Hamilton and would be separated from his wife and family who were living in their primary residence in Melbourne. Mr Ee explained that this was causing great strain on his family particularly because they also operated a childcare business in Croydon near their home. Mr Ee told the Tribunal that after his manager left he advertised for a replacement, which included advertising in local papers and having a sign out the front of his shop. Mr Ee told the Tribunal that he had not found any suitable applicants through the advertisements. He explained that those who did apply from the local area did not have the relevant experience or qualifications and some people also applied who were not from the local area.

15. Mr Ee told the Tribunal that he was speaking to a friend called Don Tan who owned several restaurants including in Geelong that operated as ‘Don’s Kitchen’. It was through a conversation with Mr Tan that the nominee was recommended as a suitable candidate. Mr E explained that the nominee had approached Mr Tan for a job; however, he did not have any available at that time. When Mr Ee told his friend Mr Tan about the difficulty in finding a suitable manager at that point Mr Tan said he should contact the nominee who he thought might be suitable.

16. Mr Ee explained to the Tribunal that he then contacted the nominee and invited her for an interview in April 2017. Mr Ee told the Tribunal that he was impressed with the nominee and that she had relevant qualifications as she had graduated with a bachelor of hospitality additionally she was bilingual so was able to deal with the kitchen staff who did not speak English.

17. Mr Ee said the nominee commenced part-time employment with him in July 2017 and then commenced full-time employment with him in July 2018 as a Restaurant Manager and that she was an integral part of the business. He explained that he relies on her and trusts her implicitly, so much so that he generally only attends on the weekends, the busiest time.

18. Mr Ee said the nominee was responsible for the management of the restaurant and was responsible for the daily takings, staff supervision, stock levels and supply, menu planning with Cooks, training of staff, recruitment of staff, ensuring lunchtime and evening meal services ran efficiently and smoothly. Mr Ee told the Tribunal that they had many regular customers who all knew the nominee very well and in fact thought she was the owner because he was not often there. Mr Ee told the Tribunal he relied upon the nominee heavily for the smooth operation of his business particularly because he was in Melbourne during the week with his family and operating their other business.

19. Mr Ee outlined that given the difficulty of attracting and recruiting skilled employees in regional areas and he would not be able to easily find a replacement for the nominee if she were not able to undertake the position. Mr Ee told the Tribunal that he was still actively looking for somebody in case this application was not successful. The Tribunal notes correspondence between Mr Ee and Damien Logan from WDEA works, a recruitment-consulting firm based in Hamilton, which demonstrates Mr Ee has engaged this firm for the recruitment of a Restaurant Manager.  Mr Ee said he had also been to visit his local member of Parliament about the difficulties of attracting skilled workers to the regional area and was advised by his local member of Parliament’s office that it recognised difficulties and provided information in relation to the designated area representative scheme and was advised that Restaurant Manager was a recognised and approved occupation suffering from skill shortages in the great South Coast region where Hamilton is located.

20. Mr Ee said he had also been in contact with Hugh Koch from the southern Grampians Shire Council who is the Manager of the Economic Development and Tourism Department for the Council. The Tribunal has received a letter of support dated 25 July 2019 from Mr Hugh Koch acknowledging and confirming the lack of skilled and experienced Hospitality Managers in the region and supports the applicant’s application for an RSMS nomination for the position of Restaurant Manager.

21. The Tribunal asked Mr Ee how his business would be impacted if the nominee were no longer able to continue working with him. He said he tries not to think about such a scenario because of how much it would adversely affect the business. He told the Tribunal, that without someone like the nominee in the role of Restaurant Manager he would probably have to do close the business because he is no longer in a position to run it himself given his family and other business responsibilities which have evolved since 2016.

22. Mr Ee spoke in-depth about the business and was able to articulate with detail about both the need and genuine need to employ a paid employee in the role of Restaurant Manager under the nominator’s direct control.

23. The Tribunal is satisfied, based on Ee’s verbal evidence, along with the supporting information that there is an identified a need for the nominator to employ a paid employee to work in the position under their direct control.

24. 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)

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

26. The Tribunal is satisfied on the basis of the material before it, including the business' registration documents, activity statements, payroll activity information and other information about the business' activities that the nominator is actively and lawfully operating a business in Australia.

27. Accordingly, the requirement in r.5.19(4)(b) is met.

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

28. 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. 

29. The nominator is not involved in labour hire activities. 

30. Accordingly, the requirement in r.5.19(4)(c) does not apply.

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

31. 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. 

32. The Tribunal has had regard to the employment contract between the parties. The contract confirms the nominee will be employed on a full-time basis for at least two years, and that her employment contract does not expressly exclude the possibility of extending the period of employment.

33. The Tribunal has had regard to the documents provided on review, including current financial statements and BAS. The Tribunal notes the applicant in the last two financial years the applicant has turned a before income tax profit in excess of $50,000.

34. On balance, the Tribunal is satisfied on the totality of the evidence that the nominator has the financial capacity to maintain the nominee's salary, including the fact that they have been paying the nominee for the last 2-years.

35. The Tribunal is satisfied on the material before it that the nominee will be employed on a full-time basis for at least two years on terms that do not exclude the possibility of extending the period of employment.

36. Accordingly, the requirement in r.5.19(4)(d) is met.

    No less favourable terms and condition of employment: r.5.19(4)(e)

37. 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.

38. The evidence before the Tribunal indicates that the nominee's base salary is $47,663 plus superannuation (it has been raised since the nomination application was lodged). It was noted in the application form that there is no Australian performing equivalent work at the same location.

39. Mr Ee told confirmed to the Tribunal that there were no equivalent workers within the business. He told the Tribunal that he had determined the nominee’s salary based on the hospitality award and that she was classified as a level 5-skill level and was paid $916.60 per week plus superannuation.

40. Mr Ee also told the Tribunal that he understood her salary to be market rate for the area too.

41. Salary surveys and other salary data, including from Payscale.com and Jobsoutlook.gov.au, indicate that the base salary for a Restaurant Manager, depending on experience, is between $47,000 and $68,000. The Tribunal is satisfied on the basis of the award and salary data information that the nominee's base salary is within the appropriate range of that normally paid to a Restaurant Manager in regional Victoria.

42. The Tribunal is satisfied that the terms and conditions applicable to the nominated position will be no less favourable than those that would be provided to an Australian citizen or permanent resident performing equivalent work in the same workplace at the same location.

43. Accordingly the requirements of r.5.19(4)(e) are met.

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

44. 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.

45. There is no information before the Tribunal to indicate that there is adverse information known to the Department about the nominator or an associated person.

46. Accordingly the requirements of r.5.19(4)(f) are met.

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

47. 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.

48. There is no evidence before the Tribunal, that Fair Work or any other government agency has taken action against the nominee in relation to workplace relation laws. As such, the Tribunal is satisfied that the nominee has satisfactorily complied with workplace relations laws.

49. 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)

50. 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/15083 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.

51. Mr Ee in written submissions and through verbal evidence at hearing clearly articulated a genuine need to employ a paid employee to work in the position of Restaurant Manager under the nominator’s direct control. As per the reasons already discussed in paragraphs 12-21, the Tribunal is satisfied of this.

52. Mr Ee, at hearing, gave evidence that the position of restaurant Manager had been advertised, in local papers including his shopfront. Evidence of the job being advertised is on file. He outlined that only several people had applied for the position however, no suitable candidates were found through the advertisments. Additionally, Mr Ee described the difficulty of recruiting somebody in their regional area, and that most people who applied were not suitable or did not have the relevant skills and qualifications. Mr Ee also told the Tribunal that he had the support of the Southern Grampian Shire Council and his local Federal Member of Parliament and that the problem was recognised so much so that the occupation of Café and Restaurant Manager is now an approved occupation on the south coast designated area migration list because there is a lack of skilled people to do this job in and around the South Coast region.

53. The Tribunal is satisfied that there are no other relevant people in the particular location that can fill the position. This finding is based on Mr Ee’s evidence and the fact that the South Coast region, which encompasses Hamilton now has a designated area migration scheme approval in place which the occupation of Café and Restaurant Manager features as one of the approved occupations.

54. A detailed position description of the duties for the role of Restaurant Manager within VKV Group Pty has been provided. For RSMS, r.5.19(4)(h)(ii)(D) specifies that the tasks of the nominated position must correspond to the tasks of an occupation at a skill level of ANZSCO skill level 1, 2 or 3 as specified by the Minister in the relevant instrument in writing. This means that for the nomination to be approvable, the skill level specified in the nomination for the nominated position must at least be equal to the skill level specified within the ANZSCO framework for that occupation. The Tribunal has examined the relevant instrument, and Cate and Restaurant Manager is an occupation with an AZSCO skill level 2 for the purposes of r.5.19(4)(h)(ii)(D). The Tribunal is satisfied the information provided by the nominator, to the Tribunal, shows the tasks allocated to the nominated position correspond to the tasks of an .Manager as per the relevant ANZSCO code for that occupation.

55. The nominator provided a signed Regional Certifying Body Advice Certificate from the Warrnambool branch of Regional Development Victoria. The legislative instrument in force at the time of application, lists Regional Development Victoria as the relevant certifying body.

56. The Advice Certificate from Regional Development Victoria includes advice on the matters in relation to r.5.19(4)(e) and r.5.19(4)(h)(ii)(B) and r.5.19(4)(h)(ii)(C). The Advice Certificate addresses the following detail:

    • the terms and conditions of employment will be no less favourable than those provided to an Australian citizen/permanent resident performing equivalent work in same workplace at the same location;
    • there is a genuine need for the nominator to employ a paid employee to work in the position under the nominator's direct control; and
    • the position cannot be filled by an Australian citizen/permanent resident who is living in the same local area as that place.

1. Accordingly the requirements of r.5.19(4)(h) are met.

2. 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

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

   Cathrine Burnett-Wake
   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).