[Home] [Databases] [WorldLII] [Search] [Feedback] Migration Review Tribunal of Australia

You are here: 

0806103 [2009] MRTA  2032  (2 October 2009)

Last Updated: 14 October 2009

0806103  [2009] MRTA 2032  (2 October 2009)

DECISION RECORD

APPLICANT: Hai Sheng Chen

MRT CASE NUMBER: 0806103

DIAC REFERENCE(S): CLF2006/26410

TRIBUNAL MEMBER: Greg Robinson

DATE: 2 October 2009

PLACE OF DECISION: Melbourne

DECISION: The decision under review is affirmed.

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 Immigration and Citizenship to reject the applicant's application for approval of a nominated position under r.5.19(1B) of the Migration Regulations 1994 (the Regulations).
2. The applicant applied for approval of a nominated position under r.5.19 of the Regulations on 10 April 2008. The delegate decided to refuse to grant the application on 25 August 2008 and notified the applicant of the decision and its review rights by letter dated 25 August 2008.
3. The delegate rejected the application as the applicant’s nomination did not satisfy r.5.19(2) of the Migration Regulations 1994 (the Regulations) because she was not satisfied that the applicant had made, and continues to make, adequate provision for training existing employees in work relevant to the business: r.5.19(2)(e)(i).
4. The applicant applied to the Tribunal on 22 September 2008 for review of the delegate’s decision. The Tribunal finds that the delegate’s decision is an MRT-reviewable decision under s.338(9) of the Migration Act 1958 (the Act) and r.4.02(4)(e) of the Regulations and that the applicant has made a valid application for review.

RELEVANT LAW

5. Regulation 5.19(1) of the Regulations permits an employer to apply to the Minister for approval of a nominated position as an approved appointment. This is part of a scheme called employer nomination that involves 2 stages:
   • An employer seeking approval of a nominated position as an approved appointment in which an individual is proposed to be employed in Australia
   • A person applying for a permanent visa on the grounds that the visa applicant proposes to be employed in the approved appointment.
6. The Minister may, in writing, approve or reject an application: r.5.19(1C). If the application is made in accordance with r.5.19(1A), meets the requirements of either r.5.19(2) or (4) and the employer is not the subject to an action described in s.140L of the Act, then the Minister must approve the application If any of the requirements are not met then the Minister must reject the application.
7. There are two types of approved appointments, an appointment made under the Employer Nomination Scheme and an appointment made under the Regional Sponsored Migration Scheme. Pursuant to r.5.19(1C)(ii), an application made using form 785 must meet the requirements of r.5.19(2) which refers to the Employer Nomination Scheme. An application made using form 1054 must meet the requirements of r.5.19(4) which refers to the Regional Sponsored Migration Scheme. The applicant has made the application using form 785 and the employer nomination will be assessed against the requirements of the Employer Nomination Scheme.
8. The requirements for approval of a nominated position as an approved appointment under the Employer Nomination Scheme are set out in r.5.19(2) as follows:

Employer Nomination Scheme

(2) An employer nomination meets the requirements of this subregulation if:

(a) the employer nomination is made by an employer in respect of a need for a paid employee (the employee) in a business:

(i) actively and lawfully operating in Australia; and

(ii) operated by that employer; and

(b) the Minister is satisfied that nothing adverse is known to Immigration about the business background of:

(i) the employer; or

(ii) any officer of any of the entities that constitute the employer; or

(iii) any individual who is a member of a partnership that is 1 of the entities that constitute the employer; and

(c) the Minister is satisfied that the employer has a satisfactory record of compliance with the immigration laws of Australia; and

(d) the Minister is satisfied that the employer has a satisfactory record of compliance with workplace relations laws of:

(i) the Commonwealth; and

(ii) each State or Territory in which the employer operates the business and has employees of that business; and

(e) the Minister is satisfied:

(i) that the employer has made, and continues to make, adequate provision for training existing employees in work relevant to the business; or

(ii) if the business is newly established, that the employer is making adequate provision for future training of employees in work relevant to the business; and

(f) the appointment will:

(i) provide the employee with full-time employment; and

(ii) be for at least 3 years, and not subject to any express exclusion of the possibility of renewal; and

(g) the employee's working conditions will be no less favourable than working conditions provided for under relevant Australian legislation and awards; and

(h) the tasks to be performed in the nominated position:

(i) correspond to the tasks of an occupation specified in a Gazette Notice in force for this subparagraph at the time at which the application for approval of the nominated position is made; and

(ii) will be carried out in a location specified, for the relevant occupation, in a Gazette Notice in force for this subparagraph at the time at which the application for approval of the nominated position is made; and

(i) the employee will be paid a salary in the nominated position that is at least the salary specified, for the relevant occupation and location, in a Gazette Notice in force for this paragraph at the time at which the application for approval of the nominated position is made.

CLAIMS AND EVIDENCE

9. The Tribunal has before it the Department’s file relating to the applicant. The Tribunal also has had regard to the material referred to in the delegate's decision, and other material available to it from a range of sources.

Delegate’s Decision

10. The delegate refused the nomination on the ground she was not satisfied that “the employer has made, and continues to make, adequate provision for training existing employees in work relevant to the business”: reg 5.19(2)(e)(i).

Tribunal Hearing

11. The applicant appeared before the Tribunal on 14 September 2009 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Gui Xue Shi and Mrs Wei Lin, who is the applicant’s wife and business partner. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages. The applicant was represented in relation to the review by its registered migration agent. The representative attended the Tribunal hearing.
12. Mr Chen explained that the visa applicant for the position for which the nomination is being made is the head chef in his business.
13. In 2005 and 2006 Mr Chen’s business offered itself to local schools and job placement agencies as a facility where local students could do hospitality training. However, there was no response to this offer.
14. The Tribunal asked whether this was training directed at cooking, given that this was the position being nominated. Mr Chen said that the difficulty confronting the business is that the visa applicant, as the head chef, is not in a position to train people unless they speak Chinese. The training places offered therefore, were not in the kitchen.
15. However, there was informal training provided to Mr Gui Xue Shi, who was a kitchen hand.
16. The Tribunal asked if there was any budget for training. Mr Chen said that there was not. The local Chamber of Industry and Commerce had visited the restaurant but had determined that it would be difficult to arrange a trainee in the kitchen given the language difficulties.
17. Mr Chen noted that the visa applicant is the first 457 visa holder they have sponsored. The restaurant is very busy and they can no longer cater for take away orders. The visa applicant is crucial to the business and it will struggle if he leaves. A reference from the Mayor of Fremantle noted that the review applicant desperately needs staff and that it has cut most of its lunch time trade due to staff shortages.
18. Mr Gui Xue Shi said that Mr Chen taught him to make fried rice and noodles. He was only a kitchen hand washing dishes so he has benefited from improving his skills. Mr Shi also made a statutory declaration to this effect.
19. Ms Win Lei emphasized that it was important for the business that the visa applicant could remain in Australia His son is attending school and he speaks English and is well settled. His wife works in the restaurant and she can speak English. It has helped that she works in the restaurant; whereas the visa applicant has no opportunity to speak English in the kitchen.
20. Mr Holmes submitted that the review applicant had moved his business to larger premises last year. He has needed to apply for more temporary visa workers to cater for the growth in his business.
21. He was highly critical of the delegate and the way in which, according to him, she had ignored relevant information and selectively relied on other information that was taken out of context. In the latter case, he was referring to the delegate’s reference to an email that he had written in which he had said that “the restaurant is not able to provide training in the kitchen due to language barriers.”
22. The hospitality sector in particular has difficulties in attracting people given that the work is generally not well paid. The review applicant would like to provide traineeships but has not been able to attract a trainee.
23. A young lady was to commence training in the restaurant for a “Certificate II in Hospitality (General Operations)”. Although this was not in the kitchen, it nevertheless indicated the review applicant’s commitment to training. However, that did not proceed because the candidate refused to proceed for the reason that it would have interfered with her university studies. A letter from Yvette Menzies of Apprenticeships Australia stated that the review applicant was “very supportive” and “was prepared to put on the trainee for 12 months.”
24. The review applicant had contemplated providing training in Asian Cookery, but the Chamber of Commerce considered that would not be feasible given that Chinese is spoken in the kitchen.
25. Mr Holmes also made written submissions, which I will summarise.
    • The applicant was recently granted approval for a further temporary business visa holder. This is further evidence that the Department’s refusal of the ENS nomination was incorrect;
    • The applicant believes it has provided evidence of its making adequate provision for the training of existing employees (for reg 5.19 relating to nominated positions), and of Australian citizens and permanent residents (for reg 1.20D relating to standard business sponsorships). The delegate ignored the evidence of the “informal training of kitchen staff over the many years”;
    • The applicant has left no stone unturned in its quest to recruit a trainee as a demonstration of its commitment to training;
    • There is an acute shortage of skills in the hospitality sector and this has made it difficult for the review applicant to find staff to train. Media reports concerning this shortage were also submitted.
26. Also submitted were some liquor licensing compliance course certificates undertaken by the review applicant personally.

FINDINGS AND REASONS

27. The issue in this case is whether it is correct and preferable, in all of the circumstances, for me to be satisfied that the review applicant “has made, and continues to make, adequate provision for training existing employees in work relevant to the business”. With some reluctance, I have concluded that I am not so satisfied.
28. The review applicant submits that it is incongruous for the Department to approve the review applicant as a standard business sponsor under reg 1.20D but not under reg 5.19 In making such approvals under reg 1.20D, the Department was, necessarily, satisfied that the review applicant:

has a satisfactory record of, or a demonstrated commitment towards, training Australian citizens and Australian permanent residents in the business operations of the applicant in Australia: reg 1.20D(2)(c)(ii).

29. The requirement in reg 5.19(2)(e)(i) is, however, expressed somewhat differently and it requires the Minister to be satisfied that:

the employer has made, and continues to make, adequate provision for training existing employees in work relevant to the business.

30. Clearly, there will be matters relating to an applicant that will be relevant in assessing each requirement. However, in my opinion, it does not necessarily follow that approval for a nomination under reg 1.20D gives rise to incongruity when a nomination is refused under reg 5.19D, although in some cases it may well. This may be especially so when one keeps in mind that the regulations are directed at different visa classes and very different outcomes. In the present case, the provisions relate to a nomination that will give rise to the visa holder becoming a permanent resident of Australia and, for at least some time, the permanent holder of an employment position that might otherwise have been taken up by an Australian citizen or permanent resident. The other provisions are, of course, directed at temporary visa holders whose impact on the local labour market, and employment opportunities for Australian citizens and permanent residents in particular, may be less long-lived.
31. In making my assessment of this application, I have considered the obiter dicta of their Honours Burchett, Whitlam and Sundberg JJ in Masuoka and Ishizaki v Immigration Review Tribunal and Minister of Immigration and Ethnic Affairs (1996) FCA 1591 (27 June 1996). In that case, when considering the equivalent provision, their Honours said:

At the same time, the immediate context of the necessary or justified bringing to Australia of a highly skilled employee means that the focus must be on the adequacy of the training available in skills that might reduce the number of positions in respect of which the need or justification could be found ... in our view the key to the meaning of the words lies in their context as part of the phrase "adequate provision for training existing employees”. A requirement to make "adequate provision" for training is not the same as a requirement that training be provided. It seems to us that the concept the draftsman is trying to convey is that provision must exist for training those employees who, having regard to their duties in the business, are in need of it and would benefit from training that is available in Australia so as to reduce any need to import specialised labour. We do not think the draftsman is concerned to require that provision be made for training all employees.

32. In my opinion, training directed towards people working as waiters in the restaurant is very different to training directed towards people working in the kitchen. In this case, the review applicant seeks to sponsor a chef for a permanent visa. To the extent that the provision is directed at requiring there be adequate training that may or will “reduce any need to import specialised labour,” as their Honours put it, I do not agree that the review applicant’s training efforts can be described as having met, or being appropriately directed towards, achieving this objective. The training of waiting staff, or the intention of offering a hospitality apprenticeship, could not be said to “reduce any need to import specialised labour.”
33. In reaching this conclusion, I have taken account of the difficulties confronting the review applicant. I have no reason to doubt that it finds it difficult to attract appropriately qualified personnel to work in its kitchen without having to resort to overseas labour sources. The temporary visa provisions, however, appear to make provision for this and, in the review applicant’s case, it has accessed that program to its benefit. Indeed, the present visa applicant being nominated for this position is currently in Australia on such a visa.
34. In my opinion, before the review applicant can take the next step, however, it must show that it has made adequate provision for training that would alleviate the need for the importation of such labour. In my opinion, it has not. I do not accept that the provision of training for waiting staff will go anyway towards achieving this. Further, I have taken account of the “on the job” training that was provided to the visa applicant’s wife. I have also taken into account the fact that the applicant offered to establish an apprenticeship position but was unable to. I have taken account of the informal training provided to Mr Shi and I accept that he can now make fried rice and noodles. However, I am not satisfied on the basis of these matters that the applicant can be said to have made adequate provision for training as contemplated by this particular legislative scheme.
35. Whilst I hold a degree of sympathy for the review applicant, and accept that they are hard working people, and am sympathetic to the visa applicant’s situation and that of his family, I also note that, to some degree, the situation in which they find themselves could be said to be, to some extent, of their own making. The reason that they are unable to offer any training in the kitchen under the umbrella of an apprenticeships programme is that the current chef (and associated visa applicant) cannot communicate in English. I accept, as Mrs Wei Lin noted, that it is more difficult for him to learn English given that he is working in the kitchen. However, other provisions that are not being considered in this present review, do require such applicants to possess varying degrees of English language ability. That requirement is said to be directed at matters such as occupational health and safety and, relevantly, the capacity for such visa holders to pass on their skills to the local workforce.
36. To avoid any doubt, I should state that the visa applicant’s lack of English ability is not the reason why I am affirming this application. Were that criterion being reviewed, there are exemptions available and these were not the subject of any discussion at the hearing However, I do think that there is an interrelationship between the applicant’s lack of English ability and the reason why this application has failed The visa applicant arrived in Australia in May 2006 and he has been working for the review applicant since that time. Had greater provision been made for him to learn English, the review applicant may well have been able to take on apprentices in the kitchen. For this reason, I do not agree with Mr Holmes that the delegate took his remark in the email quoted above out of context and drew on it selectively. I agree that the review applicant’s inability to provide training in its kitchen for chefs and cooks, because of the visa applicant’s inability to communicate in English, is related directly to the reason why the applicant has not been able to make adequate provision, relevantly understood, for training existing employees The speaking of English in Australia, and more particularly in an Australian workplace, is, one might venture, a useful and desirable attribute. The visa applicant’s inability to learn English in the three years he has been here draws attention to the inadequacy of the review applicant’s workplace training efforts.

CONCLUSIONS

37. For the above reasons the Tribunal is not satisfied that the applicant meets the requirements of r.5.19(2)(e)(i). As the applicant cannot, therefore, meet all the requirements for approval of a nominated position, the decision under review must be affirmed.

DECISION

38. The decision under review is affirmed.
    

Greg Robinson
Member