Zamlod Pty. Ltd. (Migration)

Zamlod Pty. Ltd. (Migration) [2021] AATA 737 (10 February 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Zamlod Pty. Ltd.
CASE NUMBER:  1810020
HOME AFFAIRS REFERENCE(S):          BCC2016/2874886
MEMBER:Terrence Baxter
DATE:10 February 2021
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision under review to refuse the nomination.

Statement made on 10 February 2021 at 4:15pm
CATCHWORDS
MIGRATION – approval of a nomination – Direct Entry Nomination stream – position of Chef – financial capacity to employ the nominee for at least 2 years – terms and conditions of employment – genuine need for the employment – updated financial information – impact of COVID-19 pandemic on business – duties of the position – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 245
Migration Regulations 1994, r 5.19
CASES
Bharaj Construction Pty Ltd v MIBP [2016] FCCA 902
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 March 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, Zamlod Pty. Ltd. as trustee for the Zamlod Family Trust (the Trust), applied for approval on 30 August 2016. The applicant nominated Ms Maryam Defeo Joaquino (the nominee) in the position of Chef. 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 the following:
a.Regulation 5.19(4)(d)(i) because the delegate found that it had not been demonstrated that the nominee would be employed full-time in the position for at least two years.
b.Regulation 5.19(4)(d)(ii) because the applicant had failed to demonstrate that there was no express exclusion of the possibility of extending the period of employment.
c.Regulation 5.19(4)(e) because the applicant had not demonstrated that the terms and conditions of employment applicable to the position were no less favourable than the terms and conditions that were provided, or would be provided, to an Australian citizen or an Australian permanent resident performing equivalent work in the same workplace at the same location.
d.Regulation 5.19(4)(h)(ii)(B) because the applicant had not demonstrated that there was a genuine need for the applicant to employee a paid employee to work in the position under the applicant’s direct control.
e.Regulation 5.19(4)(h)(ii)(C) because the applicant had not established that the position could not be filled by an Australian citizen or an Australian permanent resident living in the same local area as the place where the position was to be filled.
f.Regulation 5.19(4)(h)(ii)(D) because the applicant had not established that the tasks to be performed in the position corresponded to the tasks of an occupation specified by the Minister in an Instrument in writing for that subparagraph.
The applicant lodged an application for review of the delegate’s decision with the Tribunal on 10 April 2018.
Mrs Jacqueline Blazevic, the Manager of and the person authorised to speak on behalf of the applicant, appeared before the Tribunal by audio conference on 10 November 2020 to give evidence and present arguments. The Tribunal also received oral evidence from the nominee.
The Tribunal exercised its discretion to hold the hearing by audio conference. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by audio conference, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by audio conference.
For the following reasons, the Tribunal has decided to affirm the decision under review to refuse 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.
Evidence presented prior to the hearing
The applicant produced to the Department of Immigration and Border Protection (now the Department of Home Affairs) (the Department) the following documents:
a.An ASIC extract dated 30 August 2016 in respect of the business name On the Corner.
b.Market salary evidence.
c.Activity statements for the periods from July 2015 to September 2016.
d.The applicant’s Profit and Loss Statements and Balance Sheets for the 2015 and 2016 financial years.
e.An extension of a lease of premises to expire on 30 November 2017.
f.Bank statements for the applicant’s account with the Commonwealth Bank.
g.Payslips of another employee of the applicant.
h.An extract from a document claimed to be the Trust Deed for the Trust.
i.An ABN Lookup form for the applicant’s ABN dated 30 August 2016.
j.A letter dated 24 May 2017 from the Regional Certifying Body (RCB), the Treasury and Economic Development Directorate, to the applicant advising that the nomination did not satisfy the requirements of r.5.19(4)(e), r.5.19(4)(h)(ii)(B) and r.5.19(4)(h)(ii)(C) of the Regulations.
The applicant produced to the Tribunal the following documents:
a.A copy of the delegate’s decision.
b.A submission from the applicant, undated but received by the Tribunal on 28 September 2020.
c.An ASIC extract dated 28 September 2020 in respect of the business name On the Corner.
d.An Organisational Chart for the applicant’s business.
e.The applicant’s financial statements for the 2018 and 2019 financial years.
f.Activity statements for the periods from July 2018 to June 2020.
g.The applicant’s draft tax return for the 2020 financial year.
h.The applicant’s Australian Taxation Office (ATO) activity statement 001 for the period from 3 July 2018 to 28 October 2020.
Evidence presented at the hearing regarding the applicant’s operations
Mrs Blazevic gave evidence regarding the business operations of the applicant. She said that Zamlod Pty. Ltd. was the trustee of the Trust and that the Trust had been operating for approximately seven years. She said that the business was not a restaurant but a cafe supplying meals during daylight hours Monday to Friday. She stated that the business did not operate in the evenings. She said that the cafe had a seating capacity of 50 inside and 25 outside the premises. She said that it was not a takeaway cafe as such, but that the business did supply takeaway meals for patrons. The applicant provided a copy of its menu to the Tribunal. Documents provided by the applicant disclose that the business operates from premises situated at 38 Sydney Avenue, Forrest, Australian Capital Territory (ACT). Mrs Blazevic stated that the business is located within the parliamentary triangle and has a Government tenant in the same building and was surrounded by Government departments.
Mrs Blazevic said that, although the cafe is the only business operated by the Trust, her family has operated other cafes through different entities over a period of approximately 30 years. She said that the family is operating another cafe business through a different entity at the present time.
The nominee gave evidence of her employment in the position and the tasks performed by her in that position.
Evidence presented after the hearing
After the hearing, the applicant produced to the Tribunal the following documents:
a.An extract from the applicant’s ATO Business Portal dated 23 November 2020 with a list of account transactions.
b.An ASIC current company extract and a company summary for Zamlod Pty. Ltd. both dated 23 November 2020.
c.An ASIC extract in respect of the business name On the Corner dated 23 November 2020.
d.An ABN Lookup form for the applicant’s ABN dated 23 November 2020.
e.The applicant’s Balance Sheet as at 30 September 2020.
f.Facebook evidence of the applicant’s menu with a copy of the menu.
g.An Employment Contract dated 24 November 2020.
h.The applicant’s tax returns for the 2018 and 2019 financial years.
i.An extract from the Trust Deed for the Trust dated 24 March 2014.
j.Recent job advertisements for the position.
k.A submission from the applicant dated 14 December 2020.
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 in the relevant Instrument; the occupation is applicable to the proposed employee in accordance with any specifications made in that Instrument, and specified training requirements are met (r.5.19(4)(h)(i); or
·the position and applicant’s business is located in regional Australia; there is a genuine need for the paid position under the applicant’s direct control which cannot be filled by a local resident Australian citizen or permanent resident; the tasks of the position correspond to those of an occupation specified in the relevant legislative Instrument (see legislative Instrument 17/058); 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 (r.5.19(4)(h)(ii).
The applicant indicated in the nomination application that it was applying under the Regional Sponsored Migration Scheme in the Direct Entry nomination stream. The applicant indicated that the postcode where the position was to be filled was 2603. Based on the evidence, the Tribunal is satisfied that the position and the applicant’s business are located in Forrest, ACT, 2603. As this postcode is specified in the relevant Instrument as being in regional Australia, the requirements of r.5.19(4) must be met by the applicant.
Regulation 5.19(4)(h)(ii)(B) – genuine need to employ a paid employee to work in the position under the applicant’s direct control
The Tribunal invited the applicant to attend a further hearing before the Tribunal to give further evidence and present arguments relating to this and other requirements. Mrs Blazevic appeared before the Tribunal by audio conference on 27 January 2021.
At the original hearing, Mrs Blazevic provided information regarding the operations of the cafe during the COVID-19 pandemic. She said that initially the public servants who usually worked in the building in which the cafe is located worked from home and the building was basically empty. She stated that the business was closed down for five weeks. She said that workers then came back and the cafe reopened and she hoped that things would get back to normal within a month. She said that the kitchenhand who was usually employed was not working at that time because of the pandemic, but she expected that the kitchenhand would return to work the following week.
At the further hearing, Mrs Blazevic stated that business had picked up with turnover at approximately 80% of pre-pandemic figures. She stated that the applicant was no longer eligible for Government financial support and that staff in the offices in the building were working 50% in the office and 50% from home. She said that the kitchenhand had returned to work early in January 2021.
The Organisational Chart provided by the applicant reveals that the business employs a Chef whose duties are described as – “Running back of house, supervising other chef, preparing and cooking”. The “other chef” referred to in this duty list is the nominee, whose duties are described in the Organisational Chart as – “Assisting the chef, Preparing and Cooking meals”. Mrs Blazevic confirmed that the Head Chef is still employed by the applicant.
The Tribunal was concerned that there was a genuine need to employ a second Chef in the business. The Tribunal asked Mrs Blazevic why the cafe needed a second Chef. She said that a second Chef was needed to cover occasions when the Head Chef needed a day off or was otherwise away from the business. At the second hearing, she gave an example that in the previous week, the Head Chef had left the workplace after sustaining an injury which required medical treatment. She said that the nominee had taken over and that the business needed someone to be able to take over in these circumstances.
The tasks of a Chef according to the Australia and New Zealand Standard Classification of Occupations (ANZSCO) include:
oplanning menus, estimating food and labour costs, and ordering food supplies
omonitoring quality of dishes at all stages of preparation and presentation
odiscussing food preparation issues with Managers, Dietitians and kitchen and waiting staff
odemonstrating techniques and advising on cooking procedures
opreparing and cooking food
oexplaining and enforcing hygiene regulations
omay select and train staff
omay freeze and preserve foods.
The tasks to be performed by the nominee according to the job description in her Employment Contract are:
Preparing, cooking and presenting meals, ordering and stock control, overseeing the kitchen.
The document also provides that the nominee is to perform any other necessary tasks that may be required and that have been deemed reasonable for an employee of that title.
The Tribunal questioned Mrs Blazevic regarding the tasks which would be performed by the nominee in her employment to ascertain whether there was a need for a further Chef in the business. She stated that the nominee will be guided by the Head Chef. She said that the nominee makes dishes for the day, prepares salads and pastries and some hot meals and does the ordering. She said that the Head Chef and the nominee planned the menus together.
The Tribunal advised Mrs Blazevic that it was comparing the tasks of a Chef compared with those of a Cook. The tasks of a Cook according to ANZSCO include:
oexamining foodstuffs to ensure quality
oregulating temperatures of ovens, grills and other cooking equipment
opreparing and cooking food
oseasoning food during cooking
oportioning food, placing it on plates, and adding gravies, sauces and garnishes
ostoring food in temperature-controlled facilities
opreparing food to meet special dietary requirements
omay plan menus and estimate food requirements
omay train other kitchen staff and apprentices.
After discussing these tasks, the Tribunal expressed its concern whether there was a genuine need to employ a second Chef in the business. Mrs Blazevic stated that there is a genuine need. She said that if the nominee left her employment, the applicant would need to employ a Chef because they could not simply employ a Cook. She said that the Head Chef needed help and it was not sufficient to have someone who “just chops”. She said that the Head Chef needed someone who cooks meals and “does all that for him”.
Mrs Blazevic stated that, when the applicant made the application, they applied for a Chef to assist the Head Chef. She said that a Cook would do the dishes and help in the kitchen and that the Head Chef could not do the meals on his own.
The Tribunal read out the tasks of a Cook from the ANZSCO and explained that the skill level for a Cook was level 3, which is lower than the skill level 2 of a Chef. The Tribunal pointed out that the majority of the tasks being performed by the nominee were those of a Cook. Mrs Blazevic said that if the nominee left the business, the applicant would employ a Chef because they needed someone to produce the quality of food needed and that she did not think that a Cook could do that.
The applicant provided to the Department a letter dated 24 May 2017 from the RCB, the Treasury and Economic Development Directorate. The certificate is required under r. 5.19(4)(h)(ii)(F) which requires that the relevant body has advised the Minister about certain matters, including that there is a genuine need for the applicant to employ a paid employee to work in the position under the applicant’s direct control. In the present case, the advice states that the nomination did not satisfy the requirements of r.5.19(4)(h)(ii)(B). The officer who issued the advice formed the opinion that the nominee was working as a Cook.
The Tribunal must consider and be satisfied on the matters about which the advice is provided. The advice is relevant to the Tribunal’s considerations but is not conclusive. In Bharaj Construction Pty Ltd v MIBP [2016] FCCA 902, the Court considered a similar requirement in a pre-July 2012 version of r.5.19(4), and commented in obiter that the use of the word “advice” undoubtedly puts beyond doubt the construction of r.5.19(4), i.e. the advice is to be considered by the Minister (or Tribunal) in determining whether those requirements are satisfied but it is not determinative. The Tribunal does take the advice into account in reaching a decision in this matter.
The Tribunal considers that it is a telling factor in this matter that the Organisational Chart lists the first duty of the nominee’s position as assisting the Chef and that the duties of the Head Chef include supervising the other Chef. Mrs Blazevic stated in evidence that it was the applicant’s intention when making the application that the nominee would assist the Head Chef. The Tribunal, after considering all the evidence, finds that the position to be filled is of a lower skill level than that of a Chef and is more consistent with that of a Cook. Mrs Blazevic’s statements that a Cook is someone who “just chops” or does the dishes and helps in the kitchen are not consistent with the tasks of a Cook as set out in the ANZSCO. The Tribunal is not persuaded by the applicant’s claim that a second Chef is required for occasions when the Head Chef is absent on leave or for other reasons. It is to be expected that a Head Chef, with the assistance of management, should be able to deal with these isolated instances.
The applicant was put on notice during the hearing that the requirement of genuine need was in issue. Having regard to all of the evidence, including the RCB certificate, the Tribunal finds that the applicant has not established that there is a genuine need for the applicant to employ a paid employee to work in the position of Chef under the applicant’s direct control. Accordingly, the requirement in r.5.19(4)(h)(ii)(B) is not met.
Regulation 5.19(4)(h)(ii)(F) – a body specified by the Minister in an Instrument in writing for this sub-subparagraph and located in the same state as the location of the position has advised the Minister about the matters mentioned in r.5.19(4)(h)(e) and r.5.19(4)(h)(ii)(B) and (C)

Regulation 5.19(4)(h)(ii)(F) requires that a body that is:
(I)specified by the Minister in an Instrument in writing for that 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 r.5.19(4)(e) and r.5.19(4)(h)(ii)(B) and (C).
Although this requirement has been met, the Tribunal refers to the requirement at this point for the reasons hereunder set out.
The relevant legislative Instrument for the purposes of r.5.19(4)(h)(ii)(F) is IMMI16/045.The Instrument specifies that the RCB for the Australian Capital Territory is the ACT Economic Development Directorate. The applicant provided to the Department the letter dated 24 May 2017 from the RCB previously referred to.
At the hearing, the Tribunal discussed with Mrs Blazevic the requirements of r.5.19(4)(h)(ii)(F). The Tribunal noted the contents of the advice of 24 May 2017 and incorrectly indicated to her that it was required that the applicant provide an advice that stated that the requirements of r.5.19(4)(e), r.5.19(4)(h)(ii)(B) and r.5.19(4)(h)(ii)(C) had been met. The Tribunal advised her that that no such certificate from the RCB had been produced.
On 30 November 2020, the Tribunal wrote to the applicant requesting that the applicant provide a certificate from the RCB that the application complied with the requirements of
r.5.19(4)(h)(ii)(F). The Tribunal allowed until 14 December 2020 for the applicant to produce the certificate.
On 14 December 2020, the applicant contacted the Tribunal advising as follows – “After applying with the AAT, we contacted the RCB, but were advised that they are no longer assessing applications submitted after 16 Nov. 2019 therefore are unable to support or provide a certificate”.
After receipt of that correspondence, the Tribunal realised that its advice to Mrs Blazevic at the hearing incorrectly referred to an RCB advice that stated that the requirements of r.5.19(4)(e), r.5.19(4)(h)(ii)(B) and r.5.19(4)(h)(ii)(C) had been met. The Tribunal also realised that the written request of 30 November 2020 was for the provision of a certificate which had in fact already been provided.
At the further hearing on 27 January 2021, the Tribunal advised Mrs Blazevic of the incorrect statement made by the Tribunal at the earlier hearing regarding the requirement in r.5.19(4)(h)(ii)(F) and that the written request of 30 November 2020 was not applicable to the application because the advice had in fact been provided by the RCB. The Tribunal advised her that the requirement in r.5.19(4)(h)(ii)(F) was met. The Tribunal did, however, advise her that the advice by the RCB did not solve some of the problems faced by the applicant in this application because the RCB had advised that the nomination did not satisfy the requirements of r.5.19(4)(e), r.5.19(4)(h)(ii)(B) and r.5.19(4)(h)(ii)(C).
As the Tribunal has found that r.5.19(4)(h)(ii)(B) is not met, the requirements of r.5.19(4)(h) are not met.
For the above reasons the Tribunal is not satisfied that the applicant meets the requirements of r.5.19(4). The applicant has not sought to satisfy the criteria in the Temporary Residence Transition nomination stream, and as such has not met the requirements in r.5.19(3). Accordingly, the nomination of the position cannot be approved. Therefore, the Tribunal must affirm the decision under review.
DECISION
The Tribunal affirms the decision under review to refuse the nomination.
Terrence Baxter
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 737

10 February 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Statutory Construction

Procedural Fairness

Jurisdiction