X Sun & T Tang (Migration)

[2022] AATA 4499

X Sun & T Tang (Migration) [2022] AATA 4499 (1 October 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  X Sun & T Tang

REPRESENTATIVE:  Mr Hu Min (MARN: 0215827)

CASE NUMBER:  1916219

HOME AFFAIRS REFERENCE(S):          BCC2018/515191

MEMBER:Susan Reece Jones

DATE:1 October 2022

PLACE OF DECISION:  Melbourne

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

Statement made on 01 October 2022 at 11:18am

CATCHWORDS
MIGRATION – Employer Nomination – approval of nominated position – Direct Entry Nomination – Café or Restaurant Manager – ANZSCO Skill Level 2 work requirements – nominee’s amount of control – owners’ involvement in the business – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), s 360
Migration Regulations 1994 (Cth), r 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 Home Affairs on 18 June 2019 to reject the applicant’s application for approval of the nomination of a position in Australia under reg 5.19 of the Migration Regulations 1994 (Cth) (the Regulations).

2. The applicant applied for approval on 31 January 2018. The requirements for the approval of the nomination of a position of Café or Restaurant Manager (ANZSCO -141111) in Australia are found in reg 5.19 of the Regulations which contains two alternative streams: a Temporary Residence Transition nomination stream (reg 5.19(3)) and a Direct Entry nomination stream (reg 5.19(4)). If the application is made in accordance with reg 5.19(2) and meets the requirements of either stream, then the application must be approved. If any of the requirements are not met then the application must be refused: reg 5.19(5).

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

4. The delegate refused the application on the basis the applicant’s nomination did not satisfy reg 5.19(4)(h) (ii)(B) of the Regulations because on assessment of the information submitted, the applicant did not demonstrate that there is a genuine need for the nominator to employ the nominee.

5. On 5 July 2022, the Tribunal wrote to the applicant’s representative, Hu Min of Dyson Immigration Advice Centre pursuant to s359(2) of the Migration Act 1994 (the Act), inviting the applicant to provide the Tribunal with further information in support of this application.

6. On 13 July 2022 a response was received with the following submissions:

   ·ASIC Current and Historical business name extract dated 6 July 2022

   ·Business’s liquor licence

   ·BAS Jan to Mar 2020, Apr to June 2020, Jul to Sep 2020, Oct to Dec 2020

   ·BAS Jan to Mar 2021, Apr to June 2021, Jul to Sep 2021, Oct to Dec 2021

   ·BAS Jan to Mar 2022

   ·ATO tax return 2020, 2021

   ·Financial Statements year ending 2020, 2021

   ·Organisation Chart with job responsibilities

   ·Nominee Employee Agreement dated 22 July 2021 with a salary of $57,000.

   ·Nominee’s renewal of Contract dated 1 July 2022 with a salary of $60,290 (plus 10.5 superannuation)

   ·Job description

   ·Photos of applicant business

   ·Applicant menu

   ·Applicant Liquor Licence (to 31 December 2022)  

   ·Form 1404 RCB Bendigo, Department of Economic Development, Jobs, Transport and Resources, dated 16 January 2018

   ·Advertisement tax receipts

   ·ATO tax statement showing nil sum owing by the applicant business

7. In reaching a decision, the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the applicant on the basis of the material before it, pursuant to s.360(2)(a) of the Act.

8. 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

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 an identified person as a paid employee to work in the position under their direct control.

11. Based on 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. The relevant s.245AR(1) certification was also provided in the application form.

12. The Tribunal is in receipt of additional material in support of the application upon review, including a statement outlining the genuine need to employ the nominee in the nominated position. In addition, the applicant has provided the Tribunal with an overview of its business operations, its most recent Organisation chart and a submission as to why the nomination is essential to the applicant’s business operations in the future.

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

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

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

15. The applicant operates the Jin Yang Chinese Restaurant in Kangaroo Flat, Bendigo, regional Victoria. The applicant’s BAS and Financial Statements indicate that the applicant’s business is located in Kangaroo Flat, Bendigo, Victoria. The applicant’s submissions indicate that the applicant has been operating since 2001.

16. The applicant Organisation charts shows 8 employees (including the applicant’s 2 shareholder / directors). 2 employees are full time, namely the nominee and the one other employee (Cook). 6 of the employees are Australian citizens or Permanent Residents.

17. The Tribunal has had regard to the applicant’s BAS and Financial Statements, which show as follows:

2019	2020	2021
Total income	552,624	430,827	509,595
Wages	119,878	137,236	149,725
Superannuation	5,862	10,380	6,667

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

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

2. 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. 

3. There is no evidence to suggest that the applicant operates a labour hire business.

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

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

5. 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. 

6. The nominee’s Employee Agreement dated 22 July 2021, provided a salary of $57,000. The applicant has also provided the nominee’s renewal of Employee Agreement dated 1 July 2022 with a salary of $60,290.

7. The applicant also provided the Tribunal with CBA Bank transactions statements for the nominee showing the nominee’s salary payments from the applicant.

8. The nominee provided the Tribunal with details of her superannuation payments made by the applicant.

9. The Tribunal notes that the nominee’s Employment Agreement dated 22 July 2021 provided a salary of $57,000. The nominee’s renewal of Contract is dated 1 July 2022 with a salary of $60,290 (plus 10.5% superannuation).

10. The Tribunal was provided with the Form 1404 from the Regional Certifying Board (RCB) for Bendigo, Victorian, Department of Economic Development, Jobs, Transport and Resources, dated 16 January 2018.

11. The nominee’s Employment Agreement states that the nominee will be employed on a full-time basis for at least two years, and that the employment contract does not expressly exclude the possibility of extending the period of employment.

12. Accordingly, the requirement in reg 5.19(4)(d) is met.

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

13. 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.

14. The nominee commenced work full time with the applicant in 2019 as a Café and Restaurant Manager and remains in the employment of the applicant. The Tribunal is satisfied that there is no equivalent Australian employee in the business.

15. The applicant provided the Tribunal with the nominee’s CBA bank statements from 2019 to 2022, which show the applicant’s salary payments to the nominee. The applicant also provided payslips for the nominee from 2019 to 2021.

16. The applicant provided the Tribunal with the nominee’s ATO Notices of Assessment, which show as follows:

$	2020	2021	2022
Notice of Assessment	43,843	54,038	56,693

1. The Tribunal has had regard to salary surveys and other salary data, including from:

   the Payscale website (accessed 10 September 2022) indicates that a Café or Restaurant Manager in Australia earns between $46,000 - $71,000, or on average $58,331 per annum: /Salary. 

2. The Tribunal is satisfied that the terms and conditions contained in the nominee’s Employment Agreement, 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.

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

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

4. 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.

5. 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.

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

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

7. 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.

8. There is no information before the Tribunal to suggest that the applicant does not have a satisfactory record of compliance with workplace relations laws.

9. Accordingly, the requirements of reg 5.19(4)(g) are met.

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

10. 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 18/005), the occupation is applicable to the proposed employee in accordance with any specifications made in that instrument, there is a genuine need for the nominee to be employed as a paid employee in the position, and certain specified training requirements are met; or

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

11. The applicant must meet the requirements set out in the second dot point above as the nominated position and business is located in Kangaroo Flat (Bendigo), regional Victoria, 3555, which constitutes regional Australia as set out in IMMI 17/059.

12. The applicant submitted its Department Form 1404 RCB Bendigo, Department of Economic Development, Jobs, Transport and Resources, dated 16 January 2018. The salary offered to the nominee was at the time of nomination, $55,000 per annum.

13. The Department found that on assessment of the information submitted, it was not demonstrated that there was a genuine need for the nominator to employ the nominee as per sub-subparagraph 5.19(4)(h) (ii)(B).

14. The Department in its decision held that the applicant provided a genuine needs statement which identified that the owners of the restaurant – Mr Tang and Ms Sun - were at the time of application, both working in the restaurant. Mr Tang was the applicant’s chef and Mrs Sun was working as the Restaurant Manager. As both of the owners of the restaurant were working in the restaurant, the Department found it unlikely that they would give the necessary amount of control to the nominee to control the restaurant to the level required to satisfy the ANZSCO Skill Level 2 work requirements for the nominated position. There was also no evidence supplied by the applicant to the Department that either Mr Tang or Ms Sun had stopped working in the restaurant or that they intended to stop working in the restaurant. Further, the nominee was noted by the Department as residing in metropolitan Melbourne, and there was no evidence to indicate that the nominee had moved to Bendigo or that the nominee was even working for the applicant.

15. The applicant has provided the Tribunal with substantial additional evidence and submissions in support of this case, including to address the issues raised by the Department in its decision.

16. The applicant submitted evidence of the applicant’s advertising campaign to recruit for the nominee’s position, including (as per s140GBA of the Act), details of the advertising of the position/similar positions, commissioned or authorised by the applicant and the fees paid for that advertising  

17. The applicant directors, Mr Tang and Ms Sun, provided documentary evidence to the Tribunal to demonstrate that they reside in Ballarat, not Bendigo where the restaurant is located, and that the day-to-day management of the applicant’s business is the accountability of the nominee. Mr Tang and Ms Sun provided proof that they reside in Ballarat (and have done since late 2019) and that Ms Sun is no longer involved in any capacity on a day to day basis by the applicant. Their written evidence was that Mr Tang remains involved on a part time basis. On this basis, they submitted that the business has had a genuine need for and remains committed to employing the nominee as full-time Café or Restaurant Manager.

18. The Tribunal was further advised that the nominee has past work experience working in different Asian restaurants in Melbourne, before she relocated to Bendigo. According to the applicant’s submissions, the applicant’s skills - including her education in accounting and business management- have also assisted the applicant with its business efficiency, through improved costing, budgeting, and stock control. The Tribunal was also told by the applicant in its submissions, that the nominee is “very conversant with our business operations”. The Tribunal notes that the applicant has employed – and paid - the nominee in the capacity of Restaurant Manager on a full-time basis, commencing 2019 and continuing to date.

19. The applicant noted to the Tribunal that Bendigo is one of Victoria’s best known tourist destinations and that as the applicant’s turnover now exceeds $500,000 per annum (refer paragraph 17 above), the role of Café or Restaurant Manager is entirely warranted- particularly as the applicant directors live in Ballarat.

20. The standard reference source on this issue, the Australian and New Zealand Standard Classification of Occupations (ANZSCO) dictionary specifies that the occupation of Restaurant Manager in this unit group (ANZSCO 141111) have a level of skill commensurate with an AQF Certificate IV or higher, including at least three years of on-the-job training. At least three years of relevant experience may substitute for the formal qualifications listed.

21. The Tribunal notes that the nominee is the recipient of a Bachelor of Business degree from RMIT University, Melbourne.

22. The nominee also provided the Tribunal with details (including references) of her previous restaurant work and management experience, including as waitress in China (whilst on vacation in University holidays), and as Restaurant Manager at Red House Food, Clayton, Melbourne.

23. ANZSCO describes the occupation of Restaurant or Café Manager as organising and controlling the operations of a cafe, restaurant or related establishment to provide dining and catering services. The specified tasks of the role include:

    ·     planning menus in consultation with Chefs

    ·     planning and organising special functions

    ·     arranging the purchasing and pricing of goods according to budget

    ·     maintaining records of stock levels and financial transactions

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

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

    ·     selecting, training and supervising waiting and kitchen staff

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

24. The applicant submitted to the Tribunal the nominee’s Position Description, the duties in which are consistent with the tasks of the nominated occupation of Restaurant or Café Manager as listed in ANZSCO. The nominee’s Job Description, which is consistent with the requirements set out in ANZSCO, states the nominee’s responsibilities are as follows:

    ·     Managing entire operation of the restaurant

    ·     Discussing menus with the kitchen for the parties and functions

    ·     Managing HR operation including staff management and performance appraisals, ensuring all employees adhere to company’s rules and regulation as specified by law training and development, rostering and shift management

    ·     Managing customer expectation including complaints management

    ·     Managing restaurant’s equipment maintenance and hygiene

    ·     Conducting performance evaluation of both staff and the store

    ·     Exploring new opportunities to provide better customer service in order to drive sales

    ·     Identifying new sales and on-line marketing opportunities

    ·     Establishing relationships with customers and key suppliers

    ·     Conducting training sessions for new and existing staff members.

    The applicant’s Job Description also notes that the nominee’s main duties include:

    ·     being responsible for the business performance of the restaurant;

    ·     maintaining contacts on the social media and reply to those reviews on the media

    and on-line booking and delivery services;

    ·     analysing and planning of restaurant sales and profitability;

    ·     reports preparation including end of week, including staff control, stock, control

    and sales;

    ·     plan organization and execution for sales, profit and HR department;

    ·     budgeting and costing analysis and stock level control;

    ·     maintaining high standards of quality control, hygiene and health and safety;

    ·     the smoothness of daily operations including stock levels and ordering cash

    management;

    ·     the implementation of appropriate standards of customer service cooking and

    hygiene; and

    ·     any other areas of the restaurant where circumstances dictate.

1. According to IMMI 18/005: Specification of Occupations and Assessing Authorities—Instrument 2018, for the purposes of sub-subparagraph 5.19(4)(h)(i)(A) of the Regulations, the occupation is applicable to any person, subject to section 9 of the instrument. Section 9 specifies the positions for which the occupation is inapplicable.  In regard to the position of Café or Restaurant Manager, the position is inapplicable if it is in a limited-service restaurant.  According to the Regulations, a limited-service restaurant includes the following:

   (a) a fast food or takeaway food service;
   (b) a fast casual restaurant;
   (c) a drinking establishment that offers only a limited food service;
   (d) a limited service cafe, including a coffee shop or mall cafe;
   (e) a limited service pizza restaurant. 

2. The Tribunal has had regard to the applicant’s website, menu and other materials submitted in support of the application and is of the view that the applicant is not a limited-service restaurant. The applicant which operates as the Jin Yang Chinese Restaurant, provided the Tribunal with its menu which features a wide range of Chinese cuisine options. The Tribunal also notes that the restaurant is also fully licensed. Thus, in the Tribunal’s assessment, the applicant meets the requirements set out in the Specification of Occupations noted above.

3. The Tribunal has had the benefit of considerable additional information upon review. Having reviewed all the submissions provided, both as part of the original application and to the Tribunal on review, and having regard to all of the above, the Tribunal is satisfied that the duties of the nominated position do correspond with those listed within the relevant instrument for the designated occupation, and that there is a genuine need for the paid position under the applicant’s direct control which cannot be filled by a locally resident Australian citizen or permanent resident.

4. In accordance with the requirements set out in Regulation 5.19(4)(h), the Tribunal is satisfied that in accordance with: 

   - r 5.19(4)(h)(ii)(A) and (E), the position and nominator’s business is located in regional Australia;

   - r 5.19(4)(h)(ii)(B), that as noted in paragraphs 44-53 above, the applicant has a genuine need for the nominee to be employed as a paid employee in the position under the nominator’s direct control;

   - r5.19(4)(h)(ii)(C), the position cannot be filled by a locally resident Australian citizen or permanent resident;

   - r5.19(4)(h)(ii)(D), the tasks of the position of Café or Restaurant Manager correspond to those of an occupation specified in the relevant legislative instrument;

   - r5.19(4)(h)(ii)(E), the occupation is applicable to the proposed employee in accordance with the specification of the occupation as Café or Restaurant Manager (as any occupational caveats specified in IMMI 18/005 do not apply in this case);

   - r5.19(4)(h)(ii)(F), that a regional certifying body Bendigo (Department of Economic Development, Jobs, Transport and Resources), is located in the same State or Territory as the location of the position.

5. Accordingly, the requirements of reg 5.19(4)(h) are met.

6. Based on the findings above, the Tribunal is satisfied that the applicant meets the requirements of reg 5.19 for approval of the nomination of the position in Australia.

   DECISION

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

   Susan Reece Jones
   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)       all of the following apply:

   (A)the tasks to be performed in the position will be performed in Australia and correspond to the tasks of an occupation specified by the Minister in an instrument in writing for this sub-subparagraph;

   (AA)there is a genuine need for the nominator to employ the person identified under subparagraph (a)(ii), as a paid employee, to work in the position under the nominator’s direct control;

   (AAA)the occupation is applicable to the person identified under subparagraph (a)(ii) in accordance with the specification of the occupation;

   (B)either:

   (I)the nominator’s business has operated for at least 12 months, and the nominator meets the requirements for the training of Australian citizens and Australian permanent residents that are specified by the Minister in an instrument in writing for this sub-sub-subparagraph; or

   (II)the nominator’s business has operated for less than 12 months, and the nominator has an auditable plan for meeting the requirements specified in the instrument mentioned in sub-sub-subparagraph (I); or

   (ii)      all of the following apply:

   (A)the position is located in regional Australia;

   (B)there is a genuine need for the nominator to employ the person identified under subparagraph (a)(ii), as a paid employee, to work in the position under the nominator’s direct control;

   (C)the position cannot be filled by an Australian citizen or an Australian permanent resident who is living in the same local area as that place;

   (D)the tasks to be performed in the position correspond to the tasks of an occupation specified by the Minister in an instrument in writing for this sub-subparagraph;

   (DA)the occupation is applicable to the person identified under subparagraph (a)(ii) in accordance with the specification of the occupation;

   (E)the business operated by the nominator is located at that place;

   (F)a body that is:

   (I)specified by the Minister in an instrument in writing for this sub-subparagraph; and

   (II)located in the same State or Territory as the location of the position;

   has advised the Minister about the matters mentioned in paragraph (e) and sub-subparagraphs (B) and (C).