Wing Lok Pty Ltd (Migration)

[2021] AATA 3994

Wing Lok Pty Ltd (Migration) [2021] AATA 3994 (5 October 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Wing Lok Pty Ltd

CASE NUMBER:  1830142

HOME AFFAIRS REFERENCE(S):          BCC2017/858818

MEMBER:Joanne Bakas

DATE:5 October 2021

PLACE OF DECISION:  Adelaide

DECISION:The Tribunal affirms the decision under review to refuse the nomination.

Statement made on 05 October 2021 at 4:04pm

CATCHWORDS

MIGRATION – approval of a nomination – position of Café or Restaurant Manager – genuine need for the employment – applicant trading only for dinner six nights per week – director managing both the kitchen and the restaurant – tasks of the position – training requirements – no recent advertising of the position – position cannot be filled by an Australian citizen or permanent resident – decision under review affirmed  

LEGISLATION

Migration Act 1958, ss 245, 359
Migration Regulations 1994, rr 5.19, 5.37

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 2 October 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).

2. The applicant applied for approval on 4 March 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)(a)(ii) of the Regulations because the delegate was not satisfied that applicant had demonstrated a genuine need to employ a paid employee to work in the position under the nominator’s direct control.

5. The Tribunal received an application for review on 15 October 2018. The applicant was represented in relation to the review by its registered migration agent.

6. On 8 July 2021, the Tribunal wrote to the applicant, through their representative, the authorised recipient for correspondence. The letter invited the applicant to provide information to the Tribunal pursuant to s.359(2) of the Act.

7. Submissions and documents were provided by the applicant on 21 July 2021 and on 31 August 2021 the Tribunal invited the applicant to attend a hearing.  On 9 September 2021 the applicant notified the Tribunal that they consent to the Tribunal making a decision on the papers without taking further steps to allow him to appear

8. For the following reasons, the Tribunal has decided to affirm the decision under review to refuse the nomination.

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. 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)

10. 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.

11. As stated above, it is the latter part of this requirement that the delegate was not satisfied the applicant met.

12. The applicant identified Ms Shuang Wu to work in the position of Café or Restaurant Manager under their direct control.

13. The applicant’s submissions include that the applicant’s business Wing Lok Pty Ltd, trading as Ming’s Steamboat, has been operating since 2 August 2007.

14. The nomination was for the position of Café or Restaurant Manager (ANZSCO 141111).  At the time of the nomination there were two Restaurant Managers and the restaurant was trading only for dinner for six nights per week. The delegate was not satisfied that an additional Restaurant Manager is needed to undertake all of the duties and tasks that go with that position, for a period of no less than two years.

15. The submissions of the applicant dated 20 July 2021 include the following: 

    The previous Restaurant Manager resigned at the end of May 2020 when the business went down to the lowest point and the applicant was unable to secure that position with the previous restaurant manager due to the significant reduction of hours of work. Even though the sales slowly recovered, the applicant did not advertise the position. The applicant advertised other positions in the local Chinese online media 58.com and Adelaide BBS and tried to train staff from low level to management level, but so far none of their current employees is qualified for this position. As the applicant did not receive many applications from the previous job advertisement on Seek in Dec 2016 due to the position’s specific requirements for Chinese communication skills and Chinese languages, the applicant didn’t advertise the position on a platform that does not target Chinese background applicants, especially when the prospect of the restaurant industry at present is uncertain to attract qualified applicants.

16. In addition the submissions state that the director, Mr Wing Leung Au, now has to manage both the kitchen as a chef and the front of the restaurant as the restaurant manager.  These submissions state that it is impossible for him to continue the operation by himself and the need for a restaurant manager has never been so urgent, especially since the sales have recovered in the last six months.

17. The Tribunal notes that the Organisation Chart submitted on 21 July 2021 includes the nominee listed as Restaurant Manager. Further submissions referred to (and the submitted documents included) a letter of engagement dated 25 January 2017 to Ms Wu for the role of Restaurant Manager upon her permanent resident visa being granted. However it appears that whilst Ms Wu is included in the Organisation Chart, she is currently not acting in that role. The letter of engagement is addressed to her at an address in China.

18. The Tribunal understands the delegates reasoning for their decision based on genuine need at the time of their decision but finds that this reasoning more appropriately belongs under reg. 5.19(h)(ii)(B) which is discussed below.

19. The Tribunal finds that the application for approval:

    ·was made on the approved online form and was accompanied by the fee prescribed in r.5.37;

    ·includes a written certification stating whether the nominator has engaged in conduct in relation to the nomination that contravenes s. 245AR(1); and

    ·identifies a need for the nominator to employ a paid employee to work in the position under the nominator’s direct control.

20. Accordingly, the requirement in reg 5.19(4)(a) is met.

21. However for the reasons detailed below the Tribunal finds that the applicant has not met the following requirements.

    Tasks of the position, genuine need for the position and training requirements reg 5.19(4)(h)

22. 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.

23. The applicant applied for the nomination as a Regional Sponsored Migration Scheme position. They are therefore required to meet the second set of requirements stated above.

24. To meet the second set of requirements detailed in reg 5.19(4)(h)(ii), all of the following must apply:

    ·the position is located in ‘regional Australia’ (r.5.19(4)(h)(ii)(A));

    ·there is a genuine need to employ a paid employee to work in the position under the nominator’s direct control (r.5.19(4)(h)(ii)(B));

    ·the position cannot be filled by an Australian citizen or permanent resident who is living in the same local area (r.5.19(4)(h)(ii)(C));

    ·the tasks to be performed in the position correspond to the tasks of an occupation specified by instrument (r.5.19(4)(h)(ii)(D));

    ·the business operated by the nominator is located at that place ((r.5.19(4)(h)(ii)(E)); AND

    ·a Regional Certifying Body located in the same State or Territory as the position has advised the Minister about the matters in r.5.19(4)(e) and r.5.19(4)(h)(ii)(B) & (C) - (r.5.19(4)(h)(ii)(F)).

25. In regard to reg 5.19(4)(h)(ii)(B), the Tribunal finds that requirement requires a positive finding at the time of it’s decision. Based on the applicant’s submissions, as detailed above, the Tribunal finds that the applicant does have a genuine need to employ a paid employee to work in the position under the nominator’s control. In particular the Tribunal accepts that there is currently no Restaurant Manager and that the director is acting as a Chef and Restaurant Manager until he can employ a person in the role of Restaurant Manager.

26. However, the Tribunal finds that the applicant has not met the requirements in reg 5.19(4)(h)(ii)(C) . The Tribunal notes that the applicant provided a Regional Certifying Body advice dated 2 March 2017 that was satisfied that the position could not be filled by the Australian citizen or permanent resident who is living in the same local area. However, this advice was provided some four years earlier. The requirement in reg 5.19(4)(h)(ii)(C) requires a positive finding at the time the decision. As it has been over four years since the role was advertised, the Tribunal notes that the submissions detail that no recent advertising of the Restaurant Manager position was undertaken because past recruitment efforts in 2016 on seek.com.au were not successful. Further advertisements for other positions in Chinese media were also not successful and upskilling current low level employees was also unsuccessful and the applicant presumably thought it would be futile to conduct further more recent recruitment efforts in the current uncertain restaurant industry market. As stated above, the submissions included that other positions were advertised in the Chinese media. It is unclear whether the nominated position was advertised in the Chinese media. However, in any event the Tribunal finds that this may limit the potential pool of applicants that may apply for the position. In any event, the Tribunal notes that the applicant did not provide any contemporaneous or recent evidence of advertisements for the position within the local Adelaide labour market.

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

28. Accordingly, the requirements of reg 5.19(4)(h) are not met.

29. For the above reasons the Tribunal is not satisfied that the applicant meets the requirements of reg 5.19(4). The applicant has not sought to satisfy the criteria in Temporary Residence Transition Nomination stream, and as such has not met the requirements in reg 5.19(3). Accordingly, the nomination of the position cannot be approved. Therefore, the Tribunal must affirm the decision under review.

    DECISION

30. The Tribunal affirms the decision under review to refuse the nomination.

    Joanne Bakas
    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).