W & B CORPORATION PTY LTD (Migration)

W & B CORPORATION PTY LTD (Migration) [2021] AATA 1372 (30 April 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  W & B CORPORATION PTY LTD
CASE NUMBER:  1816582
HOME AFFAIRS REFERENCE(S):          BCC2016/3357492
MEMBER:Alan McMurran
DATE:30 April 2021
PLACE OF DECISION:  Sydney
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Statement made on 30 April 2021 at 2:53pm

CATCHWORDS
MIGRATION – application for approval of nomination of position – direct entry stream – training requirements – relevance of business management course provided to permanent resident employee – that employee’s and nominee’s skills and tasks – closure and relocation during COVID-19 restrictions and reopening after – decision under review set aside
LEGISLATION
Migration Act 1958(Cth), s 359(2), 359AA
Migration Regulations 1994 (Cth), r 5.19(4)(h)(i)(B)(I)
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 21 May 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 applied for approval on 10 October 2016.
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 nomination seeks to appoint Mr Hiroaki Suwa (“the nominee”), a 47-year-old Japanese citizen, as a Café or Restaurant Manager (ANZSCO 141111).
The nominee has lodged an application [1] for review of his visa refusal, along with his wife and daughter as secondary applicants. The outcome of that application depends upon the outcome of this nomination review application.
[1] T case 1818272
For the following reasons, the Tribunal has decided to set aside the decision under review and substitute a decision approving the nomination.
Department decision
On 21 May 2018 the delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19(4)(h)(i)(B)(I) of the Regulations, because the applicant had not provided sufficient evidence to demonstrate that in the previous period of 12 months prior to lodgement of the application, the nominator had met the requirements for training of Australian citizens or Australian permanent residents as specified in the relevant instrument.[2]
[2] IMMI 13/030
The delegate found the evidence of a training course provided by the applicant to an Australian permanent resident did not explain how expenditure for a business management course was relevant in the context of the applicant’s business and did not appear related to the conduct of the restaurant.
Tribunal process
On 6 June 2018, the applicant lodged this application for review.
On 9 October 2018, the representative lodged notice of appointment.
On 9 December 2020, the Tribunal sent an invitation under s.359(2) for the Applicant to provided updated information.
On 16 December 2020, the Tribunal gave the applicant an extension of time to respond.
On 27 January 2021, the applicant responded , providing financial information and documents, organisational chart, job description and correspondence.
On 11 February 2021, the case was allocated to a Member to finalise.
On 23 February, the Tribunal despatched a hearing invitation which was accepted.
The Hearing
On 16 April 2021, the applicant appeared before the Tribunal in a combined video hearing with a review of the visa applicant, to give evidence and present arguments. The Tribunal received oral evidence from a director of the applicant, Mrs Wang, and from the visa applicant.
The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages, and an interpreter in the Japanese and English languages. The applicant’s migration agent also attended the hearing. At the outset, the agent and director both confirmed they were ready to proceed.
The director gave her evidence in Mandarin. She explained the applicant conducts a restaurant business, trading as Wagyu Yakiniku Nishiki Japanese Restaurant, first established in Crows Nest, Sydney in May 2010. The nominee was engaged in the role as restaurant manager in 2012 and has been in the applicant’s employ since that time. The director said the lease of the restaurant at Crows Nest had expired, and the restaurant had compulsorily closed due to the pandemic and relocated to a new address at Bexley North in Sydney in March 2020. She confirmed that the nominee was retained throughout the short period following closure, and still works as restaurant manager at the new premises. She said the restaurant address details had been updated in accordance with ASIC requirements.
The director said the restaurant currently employs seven people, including the director. There are three chefs, a manager (the nominee), a waitress and a clerical person. She said the restaurant is open from approximately 5.30 to 10 PM , 6 days, providing à la carte dining as well as takeaway, and is fully licensed. The restaurant website describes the restaurant as “Australia’s only yakiniku restaurant specialising in full blood wagyu beef”. Average menu cost is approximately $45 per head without alcohol.
The Tribunal asked questions about the nominee’s role in the business and the need for his employment. The director says she works sometimes herself in the restaurant kitchen. One of the chefs also provides waiter service when required. She said the nominee manages the 6 staff, including preparing rosters and supervision during working shifts.
Following questions to the director, the Tribunal raised some concerns with the applicant’s representative. The Tribunal commented under section 359AA that the information and evidence concerning the training records in particular appeared to be incomplete, which could be or would be the reason why the application may not succeed.
The Tribunal asked the agent if there were any other records or information available. The agent thought she had provided that information but sought a short adjournment to enable additional evidence and information to be provided, having been made aware at the hearing of the Tribunal’s concerns. The Tribunal addressed several issues in particular, requesting responses, concerning the relocation of the restaurant, the duties performed by each staff member and whether the business has downsized, and whether the position of restaurant manager in the context of the new operation is still required.
The Tribunal also indicated it required further information concerning how the applicant had met the training requirement under the regulation, as there appeared to be insufficient evidence concerning details of the training course paid for and being relied upon by the director. The Tribunal invited the applicant by the representative to provide any further information or documents or submissions considered relevant for this issue.
The Tribunal agreed to provide the applicant a further short period to respond to those concerns. The Tribunal indicated that the agent could provide written submissions together with the additional information and which, if sufficient, would not require a further hearing as the Tribunal could then determine the matter on the papers.
On completion of the hearing, the applicant was directed to provide any further submissions, documents, or evidence (in statutory declaration form from witnesses), on or by 26 April 2021.
On 26 April 2021, the applicant provided further detailed submissions including statutory declarations by the director; the nominee; the head chef (the director’s husband); nominee’s skill assessment from VETASSESS dated 19 July 2016; and PAYG information on the nominee.
Post-hearing evidence
Director’s sworn statement
The director’s statutory declaration made 26 April 2021 explains that the Crows Nest restaurant was closed on 22 March 2020 due to the pandemic. The restaurant’s new location was obtained in May 2020, and the premises renovated and re-opened with the same name on 15 July 2020. The new restaurant seats 24 patrons dining in, and which accounts for 90% of sales. The director says the restaurant will be further expanded when the pandemic trading conditions so allow.
The director states that all “former employees” are back at work including the part-time waitress, the full-time chef and the part-time clerk. She said the nominee remained employed throughout the period and conducted some research on other Japanese restaurants in Sydney. She said the nominee together with the head chef (the director’s husband, Bao Jie) conducted Wagyu beef buffet events pre-opening, to promote the restaurant and targeting Japanese “high-end customers”.
The director’s statement explains the roles of the employees. She said she is responsible for planning and managing financial resources, making deliveries, and assisting with staff. She said her husband, the head chef, is the principal cook preparing food from set menus and allocates a budget for ingredients and guides the other chefs. She said the waiter / kitchen hand, assists with some food preparation, and cleaning as well as customer service when serving. She said there is a second chef who prepares food, and a waitress who just deals with customer service. She said the part-time clerk assists with suppliers and general bookkeeping.
The statement says the nominee works as the full-time restaurant manager, following the initial grant of a 457 visa for the role. She said he works regularly from 3:30 PM to 10 PM six days a week. She explained that her English is “not very good”. She does not speak Japanese and does not supervise the nominee herself directly and communicates with him with the assistance of her husband. She said as a Japanese high-end restaurant, the language skills of the nominee are imperative for recruiting and managing Japanese employees and creating “a good Japanese team atmosphere” through his personal management skills. She states that his understanding of customers and their preference for Japanese food items is fundamental. She said he also assists the head chef in managing the kitchen and in making menu adjustments, following customer feedback and through the nominee’s own knowledge and research of Japanese culinary specialty items. She said the nominee has established long-standing and stable relationships with Japanese suppliers, negotiating prices and dealing with specialty alcohol purchases (Sake) and sales representatives. She said the nominee as restaurant manager looks after all aspects of both dining in and any takeaway ordering, bookings, and functions, arranging staff rosters, attending to repairs of any equipment required and liaising with Council staff for health inspections.
The nominee’s sworn statement
The nominee provided his statutory declaration made 23 April 2021. He explained his background and obtaining his Subclass UC-457 visa for the same position in 2013, following a period on a student visa. He said at its height, the restaurant at Crows Nest had expanded to 30 tables seating 120 patrons. He said his work from the beginning has been to manage the restaurant. He states that the relocation of the business has been successful and that he arranged a specialty Wagyu beef event for Valentine’s Day which was very successful. The nominee provided a detailed breakdown of his everyday responsibilities and duties, including identifying stock control and food suppliers, recruitment responsibilities and marketing responsibilities.
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.
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.
The Tribunal finds on the available information that the application was made on the approved form 1395 (Internet) for post 23 March 2013 applications, and was accompanied by the fee prescribed in r.5.37; the application includes a written certification stating the nominator has not engaged in conduct in relation to the nomination that contravenes s. 245AR(1).
Having regard to the evidence presented at hearing and the witness statements, and taking into account the business context, its size, and specialty orientation, the Tribunal finds it is satisfied the applicant has identified a need for the nominator to employ a paid employee to work in the position under the nominator’s direct control.
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 the applicant is actively, lawfully and directly operating a business in Australia.
On the available information, including the current update and ASIC historical extract, the Tribunal finds the applicant is actively and lawfully operating a business in Australia. The Tribunal finds it is further satisfied the applicant Corporation directly operates the restaurant business trading as Wagyu Yakiniku Nishiki Japanese Restaurant.
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.
The Tribunal finds there is no evidence before it that the nominator 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: 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 applicant has produced a copy of an engagement letter dated 4 October 2018 between the applicant and the nominee. The engagement letter refers to a contract commencing on the granting of 186 visa to the nominee, and that the position of Café or Restaurant Manager will be available to the nominee for a minimum period of two years, with no exclusionary period. There is no probationary period.
Accordingly, the requirement in r.5.19(4)(d) is met.
No less favourable terms and conditions 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 employment agreement with the nominee shows an annual salary of $66,404 plus superannuation. The salary is to be reviewed annually. The Tribunal has had regard to the industry standard referenced in the website for PayScale Australia, where the average café manager annual pay is between $42,000 and $61,000 per annum.
Having regard to the terms and conditions of employment as expressed in the written agreement, the Tribunal finds it is satisfied that the terms and conditions of employment are 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.
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.
The Tribunal is satisfied that on the available information, there is no adverse information known to the Department about the nominator or a person ‘associated with’ the nominator.
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.
The Tribunal finds it is not aware of any information which might demonstrate that the applicant does not have a satisfactory record of compliance with workplace relations laws in Sydney, where it operates the business 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 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 (see legislative instrument IMMI 16/059); 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.
The application in this instance does not relate to a position in regional Australia.
The tasks for the position of café or restaurant manager are set out in the ANZSCO guide occupation unit subgroup 141111 and described as a person “ who organises and controls the operations of café’s, restaurants and related establishments to provide dining and catering services”. The legislative instrument excludes fast food and takeaway service operations. The Tribunal is satisfied the applicant is not operating a fast food or takeaway food service, other than as an adjunct to its principal business, and where the evidence discloses the takeaway proportion of the business is approximately 10% of revenue. Given the overall context of the business, and the industry during the pandemic, the Tribunal is satisfied the caveat does not apply in this instance.
The Tribunal has had regard to the description of work performed by the nominee which includes menu planning with the chef, organising special functions such as the Wagyu beef event for Valentine’s Day, arranging purchases and supply including alcohol under budget, ensuring dining facilities and regulatory health compliance, relating customer feedback with satisfaction and service and for menu planning, and supervision of staff including rostering and face-to-face customer service on the restaurant floor.

The Tribunal finds it is satisfied the nominee has the requisite authority and independence for the performance of these tasks without interference from the director, who in any event, does not communicate with him other than via the chef. The Tribunal finds the tasks correspond overall to the tasks of the specified occupation in the relevant instrument.
The Tribunal notes the explanation provided by the director about the training provided to the Australian permanent resident, Mr Fumika Yamawaki (“the employee”), during the relevant period and as required by the instrument.
The Tribunal further notes and accepts the submission from the representative which states the nominator appropriately identified the need to upskill the employee who was working in a management position and as a team leader at the Crows Nest premises. The submission notes the trained employee managed a team of 12 other staff, and the applicant had identified a skill deficiency in this employee and had paid for his training course.
In order to meet the regulation training requirement, Benchmark B, the applicant must demonstrate recent expenditure to the equivalent of at least 1% of its business payroll in the provision of training to employees of the business. The training expenditure can include payment for a formal course of study for an employee who is an Australian citizen or permanent resident and as part of the organisational training strategy for the business.
The evidence before the Tribunal shows the employee was a permanent resident at the time. The accountant’s evidence calculates the applicant’s payroll at $436,679 and superannuation contributions at $64,546, making a total of $501,225. Policy states that the calculation for the gross payroll is in the period of 12 months prior to application lodgement, in this instance from October 2016 to October 2017.
The applicant has provided evidence of the management training plan for the employee provided by SIBN College Pty Ltd for the restaurant, and in order to meet the visa subclass 186 requirement, and in a total sum of $5100. A payment receipt for that sum has also been produced and dated 7 October 2016. The director’s statement has specified the purpose of the training, which the Tribunal finds it has no reason not to accept. The Tribunal finds on this evidence the applicant meets the Benchmark B requirement.
Accordingly, 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.
Alan McMurran
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).

[2021] AATA 1372

30 April 2021

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