Y.M. PATEL & THE TRUSTEE FOR THE CEDAR CAFE (Migration)

Y.M. PATEL & THE TRUSTEE FOR THE CEDAR CAFE (Migration) [2021] AATA 2136 (15 April 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Y.M. PATEL & THE TRUSTEE FOR THE CEDAR CAFE
CASE NUMBER:  1815538
HOME AFFAIRS REFERENCE(S):          BCC2016/3287808
MEMBER:Peter Emmerton
DATE:15 April 2021
PLACE OF DECISION:  Adelaide
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Statement made on 15 April 2021 at 3:33pm
CATCHWORDS
MIGRATION– Direct Entry nomination stream – Café or Restaurant Manager – financial capacity to employ the nominee full-time for a minimum of 2 years – genuine need for the nominator to employ a paid employee – No less favourable terms and condition of employment –applicant lawfully operating a business in Australia–decision under review set aside
LEGISLATION
Migration Act 1958, ss 245AR,359, 360, 363
Migration Regulations 1994, r 5.19
CASES
Hasran v MIAC [2010] FCAFC 40
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 4 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 delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19(4)(d)(i) of the Regulations because the nominator had not adequately demonstrated their financial capacity to employ the nominee full-time for a minimum of 2 years.
A letter was sent to the applicant pursuant to s.359(2) on 15 January 2020, requesting detailed updated information in relation to their application. In that letter the following was stated.
‘This information, in writing, should be received by 1 December 2020. If the information
is in a language other than English, it must be accompanied by an English translation
from an accredited translator.
If you or another person authorised by the applicant cannot provide the information by
1 December 2020, you or another person authorised by the applicant may ask us for
an extension of time in which to provide the information. If an extension of time
request is made, it must be received by us before 1 December 2020 and it must state
the reason why the extension of time is required.
We will carefully consider any request for an extension of time and will advise whether
or not the extension has been granted.
If we do not receive the information within the period allowed or as extended, we may
make a decision on the review without taking any further action to obtain the
information. The applicant will also lose any entitlement it might otherwise have
had under the Migration Act to appear before us to give evidence and present
arguments.’
The review applicant did not provide the information within the prescribed period and no extension of time was requested within the prescribed period. A request for an extension of time was received by the Tribunal on 3 December 2020. This was outside of the prescribed period. In these circumstances, s.359C applies and pursuant to s.360(3) the review applicant is not entitled to appear before the Tribunal. The effect of s.363A of the Act is that if a review applicant has no entitlement to a hearing, the Tribunal has no power to permit him or her to appear: Hasran v MIAC [2010] FCAFC 40. The Tribunal has decided to proceed to a decision without taking further steps to obtain the information.
The Tribunal notes that some additional information was received prior to this Decision being determined as such was considered by the Tribunal.
The applicant was represented in relation to the review by its registered migration agent.
For the following reasons, the Tribunal has decided to set aside the decision under review and substitute a decision approving the nomination.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant meets the requirements for approval of the nomination under the Direct Entry nomination stream set out in 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.
In determining the applicant’s claims the Tribunal must first make findings of fact on material matters in dispute. This may involve an assessment of credibility and in so doing, the Tribunal is aware of the need and importance of being sensitive to the circumstances and the difficulties applicants often face before the Tribunal in their individual circumstances.
The applicants rely on the evidence given before the Tribunal together with written submissions and supporting evidence provided to the Tribunal and previously to the department.
The nominating entity runs a substantial Restaurant in regional Western Australia.
The Tribunal accepts the evidence tendered, that the bulk of the revenues are earned through these restaurant service activities.
The visa applicant’s substantial responsibilities, previous experience, formal qualifications and attributes, align with the duties of a Café or Restaurant Manager, ANZSCO 141111.
The visa applicant possesses a Diploma of Business Management gained in Australia.
The Tribunal is cognisant of the challenges associated with recruiting and retaining suitably experienced staff and management working in specialist restaurants, particularly in regional locations.
The Tribunal notes a ‘Satisfied’, RCB Certificate issued by the relevant certifying body, (Department of Training and Workforce Development – WA). The date of the certificate is 18 October 2016.
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 that the application was lodged electronically using the elodgement facility. The nomination was made under the RSMS Direct Entry stream (r.5.19(4)(h)(ii)) and consequently no fee is payable. The Tribunal finds the applicant meets r.5.19(2).
The Tribunal notes that the business is operating on a relatively substantial staffing ratio of 12 employees. The Tribunal acknowledges that finding and subsequently retaining an individual with the depth and breadth of the visa applicant’s experience, qualifications, multi-cultural competencies and cultural fit may be challenging.
The recruitment and retention issues may be potentially further accentuated because of the relatively small size of the regional Western Australian employment pool and its geographic isolation from the rest of Australia.
The Tribunal is satisfied that the application has identified a need for a paid employee to work in the position of Café or Restaurant manager, ANZSCO 141111, under direct control of the nominator. The application has included the required written certification relating to conduct that contravenes s.245AR(1) 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.
The Tribunal has been provided with a substantial range of Financial documentation including Profit and Loss Statements, (FY 2018 – FY 2020), FY 2018 signed ATO Taxation Return, and current BAS statements (2018-2020), all of which correlated.
ASIC Registration details for this business entity were researched by the Tribunal. The Tribunal checked the status of the listed ABN and perused the company web site. The Tribunal is satisfied that the applicant is actively, lawfully and directly, operating a business in regional Australia. 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 that r. 5.19(4)(c) is not relevant to the current nomination.
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 Tribunal notes that the delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19(4)(d)(i) as they were not satisfied that the nominator had demonstrated that the nominee would be employed on a full-time basis for at least 2 years under the direct control of the nominator. The delegate formed the view that insufficient evidence was provided to demonstrate the financial capacity of the nominator to undertake the requirements of r.5.19(4)(d)(i).
The Tribunal has formed a different view having considered substantially more evidence that was presented to it, than was given to the delegate at the time of their decision. The Tribunal notes that nearly 5 years have passed following the submission of the original application and the associated financial documentation. It also observes that the financial position for the nominator for FY 2019 and FY 2020 is positive with very substantially improved profitability over an extended time period.
The Tribunal appreciates that the delegate was working on scant financial data as the restaurant was in its’ early years of operation and had moved premises. Subsequently the data did not present a robust financial future based upon its’ initial performance.
The Tribunal accepts as fact that the business was negatively impacted as a direct result of Covid-19, as substantiated by the financial documentation it provided and their written statement. It would be unreasonable to measure any retail or service organisation based solely on the unexpected financial impacts which the Covid-19 pandemic inflicted upon their operations.
The Tribunal does not believe this relatively negative financial time period accurately reflects the financial state of the business in the current Financial Year nor previous 2 years. The BAS documentation for the first half of FY 2021 shows a dramatic increase in revenues. It would appear, that the stated strategy utilised to keep as many of the staff employed during the Covid-19 shutdown as possible, so that they could be rapidly redeployed once the emergency ceased was a sound business decision.
The Tribunal observes that the restaurant has been producing solid profits averaging in the vicinity of 10% of revenues for the last 3 Financial Years. It is also noted that the visa applicant has been employed during that time and their wages and on-costs factored into the profit figures. Again, it notes that the visa applicant has been employed for close to 5 years.
The growing financial stability of the nominating entity and its’ longevity in an ever increasingly competitive market, attests to its’ ability to employ the visa applicant. The niche market in which it operates combined with its’ sophisticated, somewhat unique, product potentially adds an additional level of resilience. The multiple revenue sources from in-house dining, functions, home delivery etc. also suggest a more robust business which is likely to succeed.
The Tribunal has had regard to the Employment Agreement and position description. It is satisfied that the nominee will be appointed for a period of at least 2 years employment from grant of visa and the terms of employment do not include an express exclusion of the possibility of extending the period of employment. It is again reminded of the passage of nearly 5 years since the original application. The very passage of time itself suggests that the reason for the delegate’s concerns has dissipated.
The Tribunal observes that one of the potential challenges facing the business is retaining the visa applicant and the nominator’s obvious reliance upon their services. This is particularly evident when considering the acknowledged challenges associated with recruiting and retaining similar individuals in this region of Australia.
The Tribunal is aware that the workforce is relatively mobile. The specialist skills associated with this type of operation are highly sought after and readily transferred between competing businesses. There is a strong network which operates within this industry which has the effect of making it easy to entice valuable staff to join a competitor’s organisation.
The Tribunal is satisfied that the business will be able to sustainably, employ the nominee for the required 2-year minimum period therefore r.5.19(4)(d) is met.
No less favourable terms and condition 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 Tribunal has been provided with the visa applicant’s updated employment contract dated 3 September 2018. The Tribunal accepts that the nominee’s current annual salary of $60,584 plus Superannuation at the current rate of 9.5% as reflective of their qualifications, the role they undertake and their experience.
The Tribunal researched the salaries offered for similar positions. The remuneration appears to fall within the mid quartiles of similar positions on offer. It is satisfied that the terms and conditions of employment are equivalent to other employees with the same experience performing equivalent work in the same workplace or a similar workplace. 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. There is no evidence before the Tribunal that the applicant has anything but a satisfactory record of compliance with the immigration laws of Australia. 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 notes that there is no evidence before the Tribunal that the applicant has anything but a satisfactory record of compliance with workplace relations law in Australia. 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 alternative requirements. These are set out in detail in the attachment to the decision. As stated above the nomination was made under the RSMS Direct Entry stream and the Tribunal has proceeded to assess the application against the criteria in r.5.19(4)(h)(ii) which require that:
·the position and nominator’s business are 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 Australian citizen or permanent resident;
·the tasks of the position correspond to those of an occupation at the ANZCO skill level 1, 2 or 3; and
·a regional certifying body has advised the Minister about certain matters relating to the position.
The Tribunal has had regard to the size, scope and design of the nominating entity’s business operation. It is self-evident that the nominator cannot operate this growing business entity without a substantial reliance upon the visa applicant and a considerable number of similarly highly experienced and skilled staff. It is a “hands-on’ client focussed industry which ultimately requires customer facing employees regardless of skilful reliance upon technology to augment sales, product development and production and positive customer service outcomes.
The Tribunal is satisfied that there is a genuine need for the nominator to employ a paid employee to work in the position under the nominator’s direct control.
The Tribunal received and accepted evidence from the nominator, of the salary determination and recruitment processes. The Tribunal notes the associated proof of advertising in support of their recruitment for the position using popular major online solutions coupled with professional and personal networks.
The Tribunal accepts that there were applications generated via seek.com resulting in 7 short-listed and interviewed applicants including the visa applicant. It is noted that the role was advertised for 30 days. The Tribunal accepts as fact that the only applicant for the role who possessed the competencies and substantial experience required, was the nominee.
The Tribunal acknowledges that there are a very large number and range of similar roles readily available in Western Australia and throughout Australia. The relatively specialised skill set associated with a specific cuisine may also provide a challenging recruitment circumstance. Additionally, regional Western Australia may not be perceived as the optimal location for employment and advancement in this vocation, further limiting the potential candidate pool available. The Tribunal acknowledges the various media articles stating the staff shortages in this region of Australia and explaining how difficult it is to recruit and retain experienced personnel.
Once again, the Tribunal observes that substantially more comprehensive evidence was provided to it, than was presented to the delegate at the time of their decision.
The Tribunal is satisfied that the nominator’s business is, located in regional Australia.
Regulation r.5.19(4)(h)(ii)(D), requires that the tasks to be performed in the position correspond to those at ANZSCO skill level 1, 2 or 3. The Tribunal has reviewed both the relevant descriptors supplied in ANZSCO 141111 for Café or Restaurant Manager and the stated duties of the visa applicant. It has in addition perused the visa applicant’s Resume’.
The Tribunal acknowledges that the ANZSCO descriptors are a guide, not a mandatory definitive reference.
The position of Café or Restaurant Manager, ANZSCO 141111, nominated by the applicant is referred to in ANZSCO as a skill level 2 position and the Tribunal is satisfied that the visa applicant is operating at that level.
The Tribunal has had regard to Form 1404 issued by an RCB (Department of Training and Workforce Development – WA). The date of the certificate is 18 October 2016 and it is satisfied that the applicant has advised the Minister about matters relating to the terms and conditions of employment, the genuine need for the position and that the position cannot be filled locally.

The Tribunal is satisfied that the applicant meets 5.19(4)(h)(ii).
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.
Peter Emmerton

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 2136

15 April 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Remedies

Jurisdiction