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A S Randhawa Holdings Pty Ltd as the Trustee for A S Randhawa Investments Trust (Migration) [2021] AATA 2314 (23 June 2021)

Last Updated: 15 July 2021

A S Randhawa Holdings Pty Ltd as the Trustee for A S Randhawa Investments Trust (Migration) [2021] AATA 2314 (23 June 2021)

DECISION RECORD

DIVISION: Migration & Refugee Division

APPLICANT: A S Randhawa Holdings Pty Ltd as the Trustee for A S Randhawa Investments Trust

CASE NUMBER: 1832851

HOME AFFAIRS REFERENCE(S): BCC2017/2577093

MEMBER: De-Anne Kelly

DATE: 23 June 2021

PLACE OF DECISION: Brisbane

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


Statement made on 23 June 2021 at 12:26pm

CATCHWORDS
MIGRATION – application for approval of nomination of position – direct entry nomination stream – financial capacity to employ nominee for 2 years – six associated position nominations and visa applications – six restaurants owned by two associated entities – positions cannot be filled by Australian citizen or permanent resident living in same local area – local advertising for positions before and after decision to employ nominee – scope of ‘same local area’ – regional certifying body’s advice of known shortage of suitable local workers considered but not conclusive – staff turnover, COVID-19 restrictions and principal’s physical and mental health – consequences to business if nominations and applications refused – unsupported anonymous allegations given no weight – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 376, 359AA
Migration Regulations 1994 (Cth), r 5.19(2)(a), (4)(a)(i), (d)(i), (h)(ii)(B), (C)

CASES
Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27; [2009] HCA 41
Bharaj Construction Pty Ltd v MIBP [2016] FCCA 902
Old Swanport Investments Pty Ltd v Minister for Immigration [2015] FCCA 2139

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 19 October 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).
  2. The applicant applied for approval on 20 July 2017. 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).
  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 r.5.19(4)(h)(ii)(C) of the Regulations because based on the limited amount of advertising undertaken by the nominator, which appeared not to have adequately captured the entire local labour market, evidence that the advertisements did not specify the location of the position, absence of a submission addressing the outcome of the labour market testing and explaining why no one was found suitable, in conjunction with there being major population centres within a not unreasonable distance of the nominated place of employment, it was found the nominator had failed to demonstrate that the position cannot be filled by either an Australian citizen or Australian permanent resident as required by the legislation.
  5. The applicant appeared before the Tribunal on 7 January 2021 to give evidence and present arguments. This was a dual hearing of both the employer nomination refusal reviews and the visa application refusal reviews for the following cases:
Employer nomination review
Visa application review
Nominee
1903700
1906067
Farheen Akhtar
1812372
1816511
Kajal
1832164
1836004
Manpreet Kaur
1832851
1835120
Lovepreet Kaur
1914270
1925075
Gurpreet Kaur
1906190
1909070
Jaspreet Kaur
  1. The applicant was represented in relation to the review by its registered migration agent, Mr Benjamin Naday at the dual hearing and until 12 May 2021. From 13 May 2021 the applicant has been represented by Troy Sanders as its registered migration agent.
  2. For the following reasons, the Tribunal has decided to affirm the decision under review to refuse the nomination.

Section 376 certificate from the Department of Home Affairs

  1. In the hearing the Tribunal advised the trustee for the applicant that there was a s.376 certificate in respect of this case, which the Tribunal gave no weight to in making a decision as it related to anonymous allegations which had no supporting evidence. The Tribunal gave the applicant the gist of the information in the certificate which was that the applicants were involved in payment for sponsorship such that a temporary visa was $80,000 and the permanent visa $100,000 and that the nominee had been involved in this and did not work the full hours she claimed to work in the location she was supposed to be working. Both the applicant and nominee advised that these allegations were untrue and in their signed statutory declarations they vigorously deny the allegations.
  2. On the 20 April 2021, the Tribunal wrote and drew the applicant’s attention to the s.376 certificate from the Department of Home Affairs, stating:

Please find enclosed a copy of a certificate dated 16 January 2019 regarding the disclosure of certain information to the Administrative Appeals Tribunal under s.376 of the Migration Act 1958.

The Tribunal does not regard the information covered by the certificate, referred to in the hearing on 7 January 2021, to be material to a decision in this matter. The Tribunal therefore places no weight on the information covered by the certificate.

Please note that where this certificate contains personal information about another person, this information has been partially excluded under the Australian Privacy Principles (APP6) as set out in Schedule 1 of the Privacy Act 1988.

  1. There was no response to the letter sent to the applicant.

Adjournments, medical certificates

  1. During the hearing the applicant requested brief adjournments which were granted.
  2. The principal, Mr Talwinder Randhawa provided a medical certificate dated 4 January 2021 which stated that he is suffering from “depression/excessive alcohol intake and went to hospitals 7 times including Currumbin Hospital (3 and ½ weeks duration) for the last 6 months”. At the commencement of the hearing, the Tribunal asked Mr Randhawa if he was well enough to attend the hearing and he acknowledged that he was able to attend. It was noted that he did not contribute to the proceedings but rather it was Mrs Randhawa that provided information and responses. She had previously written advising that she was best placed to answer operational questions regarding the restaurants.

Section 359AA of the Act

  1. At the commencement of the hearing, the Tribunal explained that it may put information to the applicant, under s.359AA of the Migration Act 1958 (the Act), that would be the reason, or a part of the reason, for affirming the decision that is under review and that it would explain why this information was relevant to the decision and how it may be relied upon in reaching a decision. The Tribunal also advised that the applicant would be given an opportunity to respond to this information in one of three ways: they could request an adjournment and the hearing could be stopped for 15 or 20 minutes or whatever period of time they wished and they could seek advice from the registered migration agent; the applicant could make a written submission within 14 days or an extended period of time if it requested an extension; or they could respond in the hearing. If they responded in the hearing, it would not prevent them from making a written submission within 14 days or a longer period if they requested an extension of time.
  2. Section 359AA provides as follows:

(a) The Tribunal may orally give to the applicant clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and

(b) if the Tribunal does so—the Tribunal must:

(i) ensure, as far as is reasonably practicable, that the applicant understands why the information is relevant to the review, and the consequences of the information being relied on in affirming the decision that is under review; and

(ii) orally invite the applicant to comment on or respond to the information; and

(iii) advise the applicant that he or she may seek additional time to comment on or respond to the information; and

(iv) if the applicant seeks additional time to comment on or respond to the information—adjourn the review, if the Tribunal considers that the applicant reasonably needs additional time to comment on or respond to the information.

CONSIDERATION OF CLAIMS AND EVIDENCE

  1. 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.
  2. The applicant was represented by Mr Talwinder Randhawa the trustee and Ms Nina Randhawa the General Manager.
  3. The applicant operates two restaurants, Randhawa’s Indian Cuisine at Emerald Lakes and Jimboomba. An associated entity operates Randhawa’s Indian Cuisine at Hope Island and Waterford and Coriander Thai Cuisine at Hope Island and Waterford.
  4. Profit and loss statements and tax returns show the following profitable outcomes from 2017 to 2020 for the applicant.
Profit & Loss/ Tax Return
2020
2019
2018
2017
Sales
1,070,013
1,105,080
965,044
800,347
Super
37,699
48,571
32,858
18,723
Wages
421,681
513,530
350,030
199,389
Expenses
1,004,300
1,068,618
932,417
468,366
Profit & Loss
65,713
36,462
32,628
132,647
  1. On 20 July 2017, the applicant A S Randhawa Holdings Pty Ltd as the trustee for the A S Randhawa Investments Trust lodged a Regional Sponsored Migration Scheme employer nomination - visa Subclass 187 in the Direct Entry stream for the position of Cook – ANZSCO 351411 to be based at Brisbane Street, Jimboomba Qld 4280, on $56,000 per annum in favour of Ms Lovepreet Kaur.
  2. The Tribunal has collated, cross referenced and listed evidence comprising over 8,000 pages of documents across the six employer nomination application reviews in order to ensure all advertisements are carefully and fully considered.

Documents including the following were provided with the original application:

  1. Acknowledgement of nomination application dated 20 July 2017.
  2. Restaurant industry award 2010.
  3. Employment agreement signed 13 July 2017 by both applicant and nominee.
  4. BAS statements for 2014, 2015, 2016, 2017.
  5. Discretionary trust deed.
  6. Payroll employee summary FY 2017.
  7. Security bond Jimboomba premises.
  8. Selection of training invoices.
  9. Body corporate documents.
  10. ASIC and ABN registration.
  11. Profit and loss statement for FY 2016, FY 2017 and to September 2017.
  12. Online application for employer nomination dated 20 July 2017.
  13. Regional certifying body (RCB) approval dated 19 December 2017 with assessment statement “can’t be filled locally; recruitment efforts: regularly advertising on Facebook and gumtree for staff. Listings provided tandoori chef. RCB local knowledge, rural town west of Gold Coast-hinterland. Suffers like GC where 25% plus hospitality vacancies unfilled.”
  14. Selection of invoices from suppliers to the Jimboomba store.
  15. Organisation chart for the businesses.
  16. Lease for the Jimboomba premises.
  17. Insurance documents.
  18. Licence fees.
  19. Letter dated 13 December 2017 from the applicant regarding genuine need for cooks and restaurant managers at each of the six restaurants. They offer employment opportunities to Australians however they suffer from high staff turnover and unreliability. They claim it is not uncommon for staff to call at 4 PM before a scheduled 5 PM start to advise they are not coming in and terminating their employment. They rely on the regional sponsored migration scheme to secure the services of suitably skilled cooks and restaurant managers. They claim to regularly advertise for cooks on their Facebook page and on Gumtree and regularly have applicants with no qualifications or negligible experience.
  20. Payslips for third parties.
  21. Photos of the restaurant interior and exterior.
  22. Menu for the restaurant.

Documents including the following were provided with the review application:

  1. Notice of decision for nomination refusal notice dated 19 October 2018.
  2. Tribunal invitation dated 23 October 2020.
  3. Request for extension of time to respond which was granted.
  4. Letter from the registered migration agent dated 6 November 2020 detailing attached documents and “the business instructs that they have advertised in the past for their skilled positions and have had limited to no success in filling vacant roles, and have had better success through identifying members of their staff who are suitably qualified and able to take on the roles... They had to rely on overseas staff for a number of years... They prefer to hire locally and do so when suitable candidates present themselves, and the business does not look to hire overseas staff for any other reason than that they need staff desperately to ensure the business continues to operate at full capability.” The letter highlights that 16 applications for nominations were lodged with 10 refused and the applicants believe there is a lack of consistency in decision making. They note that all of the refusals had positive recommendations from the RCB, and they believe that it is better equipped to make determinations. The business relies on their people to make it successful; without a dedicated workforce they would either have to reduce operating hours or incur closures of restaurants.
  5. Letter dated 5 November 2020 from the applicant “nomination application for Lovepreet Kaur” with an overview of the restaurant operations and the start-up of the Jimboomba restaurant. They closed the Coriander Thai Cuisine restaurant at Hope Island due to COVID-19 and are now struggling to recruit staff despite advertising on Seek, Indeed and Gumtree. They require people with the training and passion for cooking and not everyone can perform consistently in a demanding and busy kitchen environment and when they find staff who are both capable and willing to undertake a cooking role they try to retain them for as long as possible. They have to regularly travel to visit their elderly parents in India and this can sometimes extend to spending several months there. Mrs Randhawa works as the Operations Manager and is not in the restaurants every day and Mr Randhawa is overworked because of staff shortages and once burnt himself rushing in the kitchen before picking the children up from school. They have lost passwords and emails and are unable to find advertisements they placed some years ago. The Gold Coast is notorious for high turnover of staff. They do not hire just because of skill and ability but also because of attitude and willingness to commit to the role. They believe it is a waste of their time as business operators to pay an RCB and go through all the effort and then have the Department dismiss the RCB recommendation.
  6. Financial statements 2019 and 2020.
  7. BAS and IAS for the period July 2018 to June 2020.
  8. Organisation chart.
  9. Infection control and food safety certificates for the nominee.
  10. Employee of the month award for the nominee in November 2018.
  11. Menu and photos of the restaurant.
  12. Printout from the website.
  13. Trip Advisor reviews.
  14. Photos of Mr Randhawa with third degree burns.
  15. Movement records for Mr and Mrs Randhawa.
  16. Accountant letter of support dated 2 November 2020.
  17. Tax return for FY 2017–2019.
  18. Financial statements for 2018.
  19. Letter from the business confirming current employment.
  20. Employment agreement signed by nominee and applicant on 1 July 2019.
  21. Employment agreement signed by nominee and applicant on 22 March 2017.
  22. Excerpt of the Restaurant Industry Award 2020.
  23. Payslips for equivalent Australian worker.
  24. Evidence of the nominee’s work as a cook.
  25. RCB approval including form 1404.
  26. Advertisements for cooks on Indeed before nomination.
  27. PAYG payment summaries, recent payslips and payroll activity details for the applicant.
  28. Letter dated 5 January 2020 (it appears this should be dated 2021), from Mrs Nina Randhawa detailing her husband’s mental health issues and stating that she is in the best position to answer questions at the hearing.
  29. Letter dated 4 January 2021 from GP detailing Mr Randhawa’s health difficulties as depression and excessive alcohol intake.
  30. Letter from Currumbin hospital detailing similar health issues.

Documents including the following were provided after the hearing:

  1. Migration agent post hearing submission dated 4 February 2021 including a list of documents. The agent states that the employment agreement dated 13 July 2017 was the one submitted to the Department with the original nomination application and the other agreements are in the name of the associated entity where she was working on a 457 visa. He states that the applicant details how the advertising for that nominated position was undertaken. He states “Documents in respect to the business being able to locate an Australian citizen or Australian permanent resident locally to perform the role...consisting of:

  1. Letter from the business dated 3 February 2021 – Further letter for Lovepreet Kaur. The applicant states that the employment agreement dated 13 July 2017 was the one provided to the Department for this 187 nomination and was not previously provided to the Tribunal but has been post the hearing. She states “We confirm that the Indeed advertisements for the Cooks at Jimboomba ran between 21 April 2017 and 26 June 2017. As such the employment agreement for Lovepreet’s role at Jimboomba (being one signed on 13 July 2017) was signed after the Indeed advertisements which ran between were completed. (sic) For your reference we have been able to pull apart our records and provide a recruitment summary for both months (April to May, and May to June) which confirms who applied and why they were unsuitable for the role. You will note that no one from the Jimboomba area applied over the course of April to June. We also recently advertised the job again on Indeed 11 January 2021 and note that six applications were received in 23 days, Jimboomba and a recruitment summary is also provided show why the people who did apply were not suitable... These new advertisements prove that we still cannot find someone to take up these roles, even when there are supposedly people who need to work.

I understand your concerns that the advertisements that were provided did not specifically mention that the job was in Jimboomba, only “Logan City”. Jimboomba is a suburb of Logan City (there is no suburb called “Logan city” – it is the city itself) and Indeed either allowed us to put a specific suburb, which would have limited responses, or put a larger area like to council area so that we could actually fill the job and be on everyone’s job searched for the local area.”

She states when they advertise for jobs they are more concerned with finding applicants not what they need to show for a visa application. She states they do not discriminate against Australian workers but prefer to hire them as they do not need visas, do not have work condition visas and they do not need to worry about when the visa will expire. She provides a table showing that they make a strong effort to hire Australian citizens and permanent residents and that the company has a high turnover of staff.

Mrs Randhawa detailed the consequences of refusing the application, noting her husband is suffering from mental health issues. The stress of running the business is also taking its toll and he is struggling to go to the bathroom with the result his wife is his full-time carer while she looks after the youngest of four children. If the applications are refused, they may have to shut down restaurants which would cause financial losses and the need to let other employees go as the positions would no longer be viable. It has taken them 13 years to build a business and they are willing to have a further hearing if this would assist.

  1. Further copy of a letter dated 5 November 2020 from the business addressing criteria.
  2. Letter from accountant dated 2 February 2021.
  3. Tax return 2020 and integrated client account.
  4. PAYG payment summaries for all staff.
  5. IAS August 2020 for nominating entity and associated entity.
  6. Salary increase letter to nominee of 2 February 2021.
  7. Excerpt of Restaurant Industry Award 2020.
  8. Statutory declaration from the applicant.
  9. Statutory declaration from the nominee.
  10. Finalised positive monitoring letter from 2013 and 2018 for the associated entity.
  11. Further copy of Employment agreement signed by applicant and nominee on 13 July 2017.
  12. Advertisement created on 19 March 2017 for cooks in Logan City with 56 candidates and 414 views up to the current status of the ad viewed in 2020.It is noted that this advertisement appears as follows with a Job Description underneath these details.

Cook

AS Randhawa’s Holdings Pty Ltd – Logan City

0 Clicks this week.

---------------------------------------------------------------------------------

26/10/2020 3/11/2021

Views: 414

Candidates: 56

Status: Paused

Created: 19-Mar-2017

Candidates Awaiting review 0

Total (excluding rejected) 0

56 Rejected

  1. Invoice from Indeed dated 31 May 2017 Invoice # 9005670 with Description “May 2017 Advertising on Indeed.com” Bill to: Randhawa’s Indian Cuisine Jimboomba.
  2. Invoice from Indeed dated 30 June 2017 Invoice # 9445220 with Description “June 2017 Advertising on Indeed.com” Bill to: Randhawa’s Indian Cuisine Jimboomba.
  3. Performance report with note attached from the applicant “Indeed Ad and receipts from 2017 and Indeed Progress Report”, showing 41 applicants.
  4. Recruitment summary labelled “Cook Add (sic) on Indeed from 21 May 2017 to 26 June 2017 for Randhawa’s Indian Cuisine (Jimboomba)” showing 25 candidates.
  5. Indeed advertisement placed 2021 “Indian Cook Required” for location Jimboomba.
  6. Recruitment summary labelled “Cook Add (sic) on Indeed from 1 Jan 2021 to 2 February 2021 for Randhawa’s Indian Cuisine (Jimboomba)” showing six candidates.
  7. Map of Logan City Council division with Jimboomba included.
  8. Letter dated 25 February 2021 from registered migration agent regarding the RCB.
  9. Email dated 23 February 2021 from RCB.
  10. Gold Coast Bulletin article dated 6 April 2021.
  11. For completeness, on 18 May 2021, the Tribunal wrote under s 359A of the Migration Act to the applicant in respect of Case number 1832164 stating ‘that it had not made up it’s mind about the information however it conducted one combined hearing for all six employer nomination reviews and related visa application reviews. The Tribunal explained that it considered it reasonable to collate and cross reference information material to a decision on these cases”. It referenced contradictory evidence found in this file of Case number: 1832851 which would have a bearing on Case number; 1832164 and invited a response. A response was submitted on 1 June 2021 from the agent under Case number: 1832164 including a statutory declaration from the applicant containing 44 paragraphs and stating that “I make this declaration in AAT case number 1832164...and 1832851”.
  12. The Tribunal notes that although the applicant references this case in her statutory declaration it notes that the supporting evidence provided in the 1 June 2021 letter would prejudice this case and since it was not specifically submitted by the agent for this case number, the Tribunal will not list it in the documents received nor place weight on it nor take it into account in reaching a decision on this matter.

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

  1. 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:

Regulation 5.19(4)(h)(ii)(C) – cannot be filled by an Australian citizen or permanent resident.

  1. The applicant can choose to meet r.5.19(4)(h)(i) or r.5.19(4)(h)(ii) and has chosen to meet the latter.
  2. The Tribunal needs to consider if the position cannot be filled by an Australian citizen or permanent resident who is living in the same local area.
  3. The following documents are some of those relevant to a decision on this matter:
    1. Employment agreement signed 13 July 2017 by both applicant and nominee.

  1. RCB approval dated 19 December 2017 with assessment statement “can’t be filled locally; recruitment efforts: regularly advertising on Facebook and gumtree for staff. Listings provided tandoori chef. RCB local knowledge, rural town west of Gold Coast-hinterland. Suffers like GC where 25% plus hospitality vacancies unfilled.”
  2. Employment agreement signed by nominee and applicant on 1 July 2019.
  3. Employment agreement signed by nominee and applicant on 22 March 2017.

65) Further copy of Employment agreement signed by applicant and nominee on 13 July 2017.

66) Advertisement created on 19 March 2017 for cooks in Logan City with 56 candidates and 414 views up to the current status of the ad viewed in 2020. It is noted that this advertisement appears as follows with a Job Description underneath these details.

Cook

AS Randhawa’s Holdings Pty Ltd – Logan City

0 Clicks this week.

---------------------------------------------------------------------------------

26/10/2020 3/11/2021

Views: 414

Candidates: 56

Status: Paused

Created: 19-Mar-2017

Candidates Awaiting review 0

Total (excluding rejected) 0

  1. ejected

67) Invoice from Indeed dated 31 May 2017 Invoice # 9005670 with Description “May 2017 Advertising on Indeed.com” Bill to: Randhawa’s Indian Cuisine Jimboomba.

68) Invoice from Indeed dated 30 June 2017 Invoice # 9445220 with Description “June 2017 Advertising on Indeed.com” Bill to: Randhawa’s Indian Cuisine Jimboomba.

  1. Performance report with note attached from the applicant “Indeed Ad and receipts from 2017 and Indeed Progress Report”, showing 41 applicants.

  1. Recruitment summary labelled “Cook Add (sic) on Indeed from 21 May 2017 to 26 June 2017 for Randhawa’s Indian Cuisine (Jimboomba)” showing 25 candidates.

  1. Indeed advertisement placed 2021 “Indian Cook Required” for Jimboomba location.

  1. Recruitment summary labelled “Cook Add (sic) on Indeed from 1 Jan 2021 to 2 February 2021 for Randhawa’s Indian Cuisine (Jimboomba) showing six candidates.
  2. The Tribunal finds from the employment contracts signed by the employer that the intention to employ the nominee was made no later than 13 July 2017 and this is consistent with the submissions made by the applicant and the agent. It is noted that the applicant and nominee signed the employment contract respectively on 18 July 2017 and 13 July 2017 however since this few days difference is not material to the decision the Tribunal accepts the applicant’s date of the 13 July 2017 for the employment contract and the commitment to employ the nominee.
  3. The following table shows the chronology of the advertisements. The Tribunal has collated advertisements from across the six employer nominations to ensure that relevant material is given consideration.
Advertisements - Cook
No.
Date Created
Position
Medium
Location
Candidates
1
3 June XX
Curry/Tandoori Chef
Social Media
Gold Coast
?
2
6-Nov-15
Indian Cooks/Chefs
Gumtree
Hope Island
?
3
6-Nov-15
Indian Cooks/Chefs
Gumtree
Waterford
?
4
29-May-16
Tandoori Cooks/Chefs
Gumtree
Hope Island
?
5
29-May-16
Tandoori Cooks/Chefs
Gumtree
Gold Coast
6
22 Nov. XX
Tandoori Chef
Social Media
7
22-Nov-16
Tandoori Cooks
Indeed
Hope island
3
8a
30-Nov-16
Tandoori Chef
Gumtree
Carrara
?
8
22-Nov-16
Tandoori/Curry Chef
Gumtree
Carrara
2
9
30-Nov-16
Chefs
Gumtree
Gold Coast &Waterford
2
10
26-Nov-16
Cooks
Indeed
Hope Island
3
10A
23-Nov-16
Tandoori/Curry Chef
Indeed
Gold Coast Waterford
3
11
?
Cooks/Chefs
Social Media
?
12
Undated
Cook
Indeed/ Gumtree
Carrara
13
19-Mar-17
Cooks
Indeed
Logan City
56
14
28 March XX
Cook
Social Media
?
?
15
Mar-17
?
Indeed Invoice
?
?
16
Apr-17
?
Indeed Invoice
?
?
17
May-17
?
Indeed Invoice
?
?
18
Jun-17
?
Indeed Invoice
?
?
19
17-Aug-17
Chef & Cook
Gumtree
Hope Island
?
20
15-Dec-17
Chef
Gumtree
Gold Coast
21
9 Aug XX
Tandoori/ Curry Cooks
Social Media
?
Reached 849
22
12 Sep XX
Cooks
Social Media
?
Reached 525
23
6 Nov XX
Painter
Social Media
Jimboomba
24
1 Nov XX
Lucky draw
Social Media
Jimboomba
25
2018
Tandoori Cook
Jora
Gold Coast
26
16-Jan-18
Tandoori Cook
Social Media
??
Reached 855
27
18-Jan-18
Tandoori Cook
Gumtree
Gold Coast
28
18-Jan-18
Tandoori Cook
Gumtree
Hope Island, Jimboomba, Emerald Lakes Carrara
29
5-Dec-18
Indian Cook
Indeed
Gold Coast
42
30
11-Jan-21
Indian Cook
Indeed
Jimboomba
6
31
2-Dec-20
Indian Cook/chef
Seek
Hope Island
32
28-Sep-20
Thai Cook/Chef
Seek
Hope Island
33
29-Mar-21
Tandoori & Curry Cooks
Gumtree
?
34
22-May-21
Tandoori & curry cooks
Gumtree
Gold Coast
35
20-May-21
Indian Cook/Chef
Gumtree
Gold Coast
36
20-Jan-21
Thai Cook/Chef
Seek
Hope Island?

  1. The Tribunal finds the social media posts have a very limited reach (advertisements #21 and #22 reached respectively 849 and 525 viewers) and do not identify a location for the position making them a deterrence for an Australian citizen or Australian permanent resident living in the same local area as Jimboomba to apply for the position. Also, some of them were for unrelated positions such as #23 for a painter and #24 for a lucky draw. Also, the social media posts do not have a year date on them, and it is not possible to identify the year they were posted. For these reasons the Tribunal can give these social media posts little weight except for #26 which although not specifying a location does have a date. This advertisement will be dealt with in more detail later.
  2. In the hearing, the Tribunal put to the applicant under s.359AA of the Act that there appeared to be no advertisements (another advertisement, claiming it was for Jimboomba was provided after the hearing) that pre-dated the decision to employ the nominee. It is noted that a number of advertisements for cooks and or chefs were placed for Hope Island, Waterford, Gold Coast, Carrara prior to the decision to employ the nominee. A further concern raised was that there was no recruitment summary which showed how many people replied to the advertisements; how many resumes were received; whether the employer reviewed the resumes; shortlisted any candidates or interviewed candidates by phone or in person or why they may have been unsuitable. The Tribunal stated that there was no definitive way it could say that the position of restaurant manager at Jimboomba cannot be filled by an Australian citizen or Australian permanent resident because there was no information on the recruitment process and there appeared to be no advertisements placed for Jimboomba prior to the decision to employ the nominee. If the Tribunal gave consideration to this information, it may find the applicant could not satisfy r.5.19(4)(h)(ii)(C).
  3. The applicant advised in the hearing that there was a difference between the initial employment agreement for the nominee when she was employed on a 457 visa and the time she was employed and nominated for the Subclass 187 visa. She stated it was only relevant to consider advertisements made prior to the actual employment agreement that was submitted as part of the nominee’s Subclass 187 employer nomination. She preferred to make a response in writing.
  4. The Tribunal also addressed in the hearing the written submissions made stating that the RCB had assessed and approved all these applications as meeting the requirement in r.5.19(4)(h)(ii)(C) and that they were better qualified to make such an assessment and the decision maker should accept the RCB advice. The Tribunal advised that it considered the legislation clearly made this a two-step process whereby the RCB advice was considered but it was not binding on the decision maker.
  5. The Tribunal has considered the positive assessment the RCB gave and that it advised that the application satisfied r.5.19(4)(h)(ii)(B) and (C). It is noted that the RCB relied on the fact that the applicant advertised on Facebook and Gumtree. The Facebook ads were a social media post from the applicant dated 6 November looking for painter/ plasterers in Jimboomba and advising of a $50.00 voucher draw. The Tribunal can find scant examples of a Gumtree advertisement for Jimboomba for a Cook position. It is not clear what advertisements the RCB was relying upon for their assessment. Although the Tribunal has considered the positive assessment by the RCB, it requires definitive evidence that the position cannot be filled by an Australian citizen or Australian permanent resident who is living in the same local area as Jimboomba to be satisfied that the regulation has been satisfied. It is also clear from the construct of r.5.19(4)(h)(ii)(C) that the advice of the RCB is not conclusive evidence and the decision maker must make a finding on this matter independent of the RCB advice.
  6. The Courts have found that to be the case in Bharaj Construction Pty Ltd v MIBP [2016] FCCA 902 at [81] where it considered a similar requirement in the 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.[1] In Bharaj (No 3), The Court confirmed that the judgment in Bharaj 2016 was correct in holding that there was nothing in the language, text or structure of r.5.19(4) to support the view that the advice given by an RCB is conclusive evidence that the requirements in subparagraphs (a) to (c) have been met.
  7. It is noted that policy as well as the legislation, also supports the Court’s view as seen in the Department’s Procedures Advice Manual[2] which states ‘10.7.2 Consideration of the advice - 10.7.2.1 Overview – The delegate must independently assess the nomination against all the criteria that have been assessed by the regional certifying body in providing their advice.’
  8. Following the hearing, the applicant submitted a letter[3] dated 3 February 2021 advising that the employment agreement for the Subclass 187 employer nomination was dated 13 July 2017 and while it had not been provided previously it was provided following the hearing. The applicant advises that the position was advertised prior to the employment agreement by way of “Indeed advertisements for the Cooks at Jimboomba ran between 21 April 2017 and 26 June 2017”.
  9. There was one advertisement that ran continuously from 19 March 2017 to 26 June 2017 as evidenced by the Progress Report[4] from Indeed which showed daily “clicks” and “applies”. A selection of this daily report is summarised below showing it was one continuous advertisement that ran rather than a number of different advertisements on the website.
Date
Clicks
Impress.
CTR
Cost/Click
Cost
Avg Page
Applies
(AUD)
(AUD)
19/03/2017
10
445
2.20%
0.22
2.16
5
2
27/03/2017
20
841
2.40%
0.25
5.08
6.4
2
14/04/2017
3
473
0.60%
0.30
0.91
4.3
0
27/04/2017
9
350
2.60%
0.14
1.25
6.1
0
18/05/2017
10
319
3.10%
0.20
2.01
5.5
0
30/05/2017
6
90
6.75%
0.08
0.48
7.5
0
15/06/2017
6
472
1.35%
0.18
1.05
9.9
0
26/06/2017
10
817
1.25%
0.22
2.19
5.7
0
Total
792
42650
1.90%
0.20
155
6.1
41
  1. The evidence provided for this advertisement are #16, #17 and #18 invoices[5] from Indeed for the advertising. The invoices do indicate that they were invoiced to the Jimboomba restaurant however there is no actual advertisement or other evidence to suggest that it was an advertisement for cooks at Jimboomba. The tracking for this advertisement[6] undertaken in 2020 shows that on 19 March 2017 an advertisement was placed on Indeed for cooks at Logan City being #13. The tracking for this advertisement as current in 2020 shows the following information.

Cook

AS Randhawa’s Holdings Pty Ltd – Logan City

0 Clicks this week.

---------------------------------------------------------------------------------

26/10/2020 3/11/2021

Views: 414

Candidates: 56

Status: Paused

Created: 19-Mar-2017

Candidates Awaiting review 0

Total (excluding rejected) 0

56 Rejected

  1. The applicant maintains that the advertisement was posted for cooks at Jimboomba by stating “We confirm that the Indeed advertisements for the Cooks at Jimboomba ran between 21 April 2017 and 26 June 2017” however in the same letter of 3 February 2021 she later contradicts this by stating “I understand your concerns that the advertisements that were provided did not specifically mention that the job was in Jimboomba, only ‘Logan City’”.
  2. This is consistent with the evidence of the agent who stated in his letter of 4 February 2021 that “Advertisement for the position of Cooks based in Logan City, which ran from 21 April to 21 May 2017 and then again from 21 May to 26 June 2017, with associated tax invoices and progress report”.
  3. The Tribunal finds from the applicant and agent’s evidence and the tracking for the advertisement that advertisement #13 ran from 21 April to 26 June 2017 for cooks at Logan City and that the only advertisement that specifically mentioned cooks at Jimboomba was #28 placed on Gumtree on 18 January 2018 and #30 placed on Indeed on 3 February 2021.
  4. The agent has submitted a number of arguments with the original application, subsequently and following the hearing to support the case and these are listed below and will be carefully considered.
    1. Advertising is not required in the legislation unlike other visa subclasses which do require labour market testing. Policy was “quiet” on the means to satisfy the regulation and it was left to RCBs to provide guidance to the applicants. He states that the Chamber of Commerce and Industry Queensland (CCIQ) did not always require advertising to satisfy this criterion especially in 2016 and 2017.
    2. The RCB gave consideration to factors beyond advertising such as local knowledge and recruitment difficulties being experienced by the hospitality industry.
    1. The applicant regularly advertises and finds it difficult to source suitably qualified or experienced people from the local labour market.
    1. The applicant has a high staff turnover, and this makes consistency a problem. They closed the Coriander Thai Cuisine restaurant at Hope Island due to COVID-19 and are now struggling to recruit staff despite advertising on Seek, Indeed and Gumtree. They require people with the training and passion for cooking and not everyone can perform consistently in a demanding and busy kitchen environment and when they find staff who are both capable and willing to undertake a cooking role they try to retain them for as long as possible. They have to regularly travel to visit their elderly parents in India and this can sometimes extend to spending several months there. Mrs Randhawa works as the operations manager is not in the restaurants every day and Mr Randhawa is overworked because of staff shortages and burnt himself rushing in the kitchen before picking the children up from school. They have lost passwords and emails and are unable to find advertisements they placed some years ago. The Gold Coast is notorious for high turnover of staff. They do not hire just because of skill and ability but also because of attitude and willingness to commit to the role. They believe it is a waste of their time as business operators to pay an RCB and go through all the effort and then have the Department dismiss the RCB recommendation.
    2. The applicants are dependent on the Regional Sponsored Migration Scheme employer nomination - visa Subclass 187.
    3. The applicants have provided considerable explanation as to what they have done to try and demonstrate that they could not fill the role.
    4. Requiring advertising prejudices those genuine positions which may have been filled without advertising but was subject to a genuine skills shortage and could not be filled and those filled by way of recommendation or word of mouth which the applicant instructs is still the most reliable way to fill skilled positions with quality candidates.
    5. Advertisements do not need to refer to the “local area” but can cover a wider locality.
    6. Advertising does not need to predate the decision to employ the nominee but are a “time of decision” matter which can be assessed by the Tribunal.
    7. The Tribunal must give consideration to the business’s circumstances and recent advertising that demonstrates the difficulties of filling positions from the local labour market.
  5. In a different case for this same applicant they submitted a further argument supporting a larger geographic area being used for their advertisements and the Tribunal considers it reasonable to allow that argument to put forward despite the applicant not raising the matter in the documentation for this case.
  6. The applicant submitted an argument regarding why they sometimes advertised for a larger geographic area and stated that Seek automatically changes their settings to reflect a broader geographic area. This may all be so but it is noted that the Seek chat team advised her in a screen shot of the chat exchange that although the platform automatically changes the geographic location to a wider location it does not prevent the applicant from including the desired location in the body of the advertisement. The Tribunal finds the applicant could have specified the location in the body or headline of advertisements, regardless of the platform automatically changing the advertisement menu to a wider geographic setting. This argument and rebuttal would equally apply to other advertising platforms such as Gumtree, Indeed and the like.
  7. The Tribunal will carefully consider these arguments starting with a) which goes to whether advertising is required to satisfy the regulation.
  8. The registered migration agent’s letter of 4 February 2021 states that the business has provided considerable explanation as to what they have done to try and demonstrate that they could not fill the role. The agent addresses the interpretation of this provision and states there is no reference to advertising requirements in the legislation unlike other visa subclasses which do require labour market testing. He states that policy was silent on the means to satisfy the provision and it was left to the RCBs to provide guidance to the applicants and the Department on this provision. The agent advises that the CCIQ did not always require advertising to satisfy this criterion especially in 2016 and 2017 when the majority of these applications were lodged.
  9. This was reiterated in the agent’s letter of 25 February 2021 where it states that CCIQ provided positive recommendations for each case. He states the purpose of having RCBs provide recommendations is because they were more able to provide accurate and localised recommendations rather than having a case officer with no localised knowledge of the area. He states that the RCB gave consideration to factors beyond advertising such as local knowledge and recruitment difficulties being experienced by the hospitality businesses in the area. The agent submits that this reinforces the view that advertising is not a stipulated requirement of the provision and other factors can be considered in determining whether the criterion is met.
  10. The email dated 23 February 2021 from the RCB states that their recollection of the decision making process was based on results of advertising for the position; any other information supplied as to difficulties in recruitment and the RCB officers own “local” knowledge of employment difficulties. They continue by stating RCBs were to use their own judgement as to what constituted reasonable efforts to secure an employee as there were no strict rules at the time as to what was sufficient or acceptable as to advertising efforts. He notes that most cases they looked at included evidence of advertising with Gumtree and sometimes Indeed and that unfilled vacancies were running at over 25% across the region at the time. The Tribunal has considered the RCB advice but finds it general in nature and considers it needs evidence to satisfy the regulation such that the position cannot be filled by an Australian citizen or Australian permanent resident who is living in the same local area of Jimboomba.
  11. The agent submits in the 4 February 2021 letter that requiring advertising to satisfy this provision is imposing a requirement on the visa which does not exist in the legislation and prejudices those genuine positions which may have been filled without advertising but was subject to a genuine skill shortage and that could genuinely not be filled. He maintains it also prejudices positions filled due to recommendation or word-of-mouth which Mrs Randhawa instructs is still the most reliable way to fill skilled positions with quality candidates.
  12. Both the legislation and policy do not mention advertising so the Tribunal will consider the meaning of the regulation which states ‘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.’
  13. Reliance was placed on the remarks of Hayne, Heydon, Crennan and Kiefel JJ in Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27; [2009] HCA 41 at [47] in support of the proposition that the task of statutory construction must begin with consideration of the text itself and that ‘[t]he language which has actually been employed in the text of legislation is the surest guide to legislative intention’, albeit it was acknowledged that the meaning of the text may require consideration of context, including the general purpose and policy of a provision.
  14. The Tribunal notes the clear unambiguous wording of the regulation ‘the position cannot be filled’ and considers this requires sound evidence to support the finding that it cannot be filled by an Australian citizen or Australian permanent resident. It is for the applicant to provide sound evidence that satisfies the Tribunal. It is noted that the RCB in their email of 23 February 2021 state that most cases had an advertisement.
  15. The Tribunal notes the many submissions made by the applicants that they are in general unable to source skilled applicants from the local labour market. It is noted that the applicant states they have a high staff turnover and they are dependent on the Regional Sponsored Migration Scheme employer nomination - visa Subclass 187. It is also noted that one of their restaurants is allegedly closed and cannot re-open due to skills shortages. While these are concerns raised by the applicant it is the specific position of Cook at the Jimboomba restaurant that is under consideration in this case.
  16. The Tribunal notes the argument that requiring advertising prejudices those genuine positions which may have been filled without advertising but was subject to a genuine skills shortage and could not be filled. It is stated that it also prejudices those positions filled by way of recommendation or word of mouth which the applicant instructs is still the most reliable way to fill skilled positions with quality candidates. These arguments are disingenuous because without some form of advertising it is not possible to definitely know that the position could not be filled by an Australian citizen or Australian permanent resident who is living in the same local area as that place, namely, Jimboomba. These methods of recruitment do not result in corroborating evidence and do not provide evidence that Australian citizens or Australian permanent residents were given the opportunity to fill the position as they may not have been aware that a vacancy existed.

Advertisements for other locations

  1. There are other advertisements for cooks for locations such as the Gold Coast; Hope Island; Waterford; Carrara and Logan City some of which predate, the employment contract of 13 July 2017.
  2. The applicant states in the letter of 3 February 2021 that advertisements placed usually referenced a larger area such as “Logan City” so they had a better opportunity to fill the job and be on everyone’s job searches. She states that Jimboomba is only 20 minutes’ drive to the Logan City Council Chambers and that many people in the local area travel much further to work. The applicant states that they are more concerned with finding applicants for jobs when they advertise rather than satisfying visa applications. Mrs Randhawa notes that Jimboomba had only 13,201 residents in the 2016 census and this is not a very big applicant pool. She states they do not discriminate against Australian workers and in fact prefer them as they do not need visas; do not have work conditions on visas and they do not have to worry about their visa expiry. She details PAYG data for the companies for the last three financial years to demonstrate that a high proportion of their employees are Australian citizens or Australian permanent residents and that they have a high turnover of staff.
  3. The applicant states that they have over the years lost passwords and emails for advertisements they placed as they were not aware they needed to keep them for their records. This may be the case, but the Tribunal requires evidence to make a finding on the regulation.
  4. The agent in post hearing submissions addresses the concerns raised by the Tribunal that some did not specifically indicate the suburb where the position was located but used a wider geographic indicator. The agent submits a common sense approach to the term “local area” should be used, namely that it should not be restricted to the postcode or suburb where the position is located. He states that in the modern age people are more mobile and have greater ability to travel between different locations. He states that Transport and Main Roads Queensland indicates that the average commute to work for most South East Queensland residents is 30 minutes and he submits that those in regional areas will travel greater distances. He states it is common for individuals to work outside their suburb residency and that in Australia “local area” can range from the suburb to a city to a distinct region. He maintains a resident of Paddington in Brisbane would still consider the CBD local, much like a resident of Coolangatta QLD 4225 on the Gold Coast would consider Surfers Paradise QLD 4217 local. He states in more regional areas, a person would easily consider a larger area to be local considering the distance between settlements with the person in Beaudesert QLD 4285 easily able to consider Boonah QLD 4310 local despite a 40-minute drive between the areas.
  5. He notes that the definition of “local” according to the Macquarie dictionary is “relating to a town or small district rather than the entire state or country”. He submits that using this definition advertisements from the business for positions located in Jimboomba which referenced “Logan City” or “Logan” or “Brisbane, southern suburbs and Logan” could have been responded to by a member of the public residing in Jimboomba if they had chosen to do so.
  6. The Regulations states ‘same local area as that place’. For clarity a plain reading of the rr. 5.19(4)(a)(i) and 5.19(2)(a) suggests that the Minister must, in writing, approve a nomination if the application for approval is made in accordance with subregulation (2); and be made in accordance with approved form 1395. It is noted that approved form 1395 in these applications is an online internet form and on page 2 of the form it asks the applicant to “give details of the postcode where the nominated person will be employed” and allows for a four digit number to be typed into the form which in this case was 4280 being the postcode for Jimboomba which is repeated on page 4 where the applicant is required to give the “address where the nominated person will be employed” which in this case was given as “Australia, Shop 3 and 5a / 133 – 145 Brisbane Street, Jimboomba, Queensland 4280”. The Tribunal considers the “same local area as that place” is Jimboomba QLD 4280.
  7. The question for the Tribunal is whether the applicant has met the requirement that the position cannot be filled by an Australian citizen or an Australian permanent resident who is living in the same local area as Jimboomba.
  8. The Tribunal prefers to identify their own definition of “the same local area”. The Oxford online dictionary has the following definitions:

Area - “a region or part of a town, a country, or the world”.

Local – “relating or restricted to a particular area or one’s neighbourhood”.

Same – “identical with what is about to be or has just been mentioned”.

  1. The Australian citizen or permanent resident candidate must be living in an ‘area’, which could be a region or part of a town, a country or the world but one that is further defined by the necessity to be ‘the same local’ or restricted to a particular identical area or one’s neighbourhood such as the town of Jimboomba with distinct postcode 4280. Jimboomba, according to Microsoft Bing is a one-way drive of 33.2 km or 38 minutes to Logan City rather than the 20 minutes cited by the applicant. The Rome2Rio website claims there are two ways of travelling from Jimboomba to Logan City, by car or taxi as there does not appear to be any direct public transport.
  2. It is noted that the applicant’s letter of 5 November 2020 states in regard to Brisbane and the Gold Coast that “it takes nearly an hour to drive to Jimboomba from these locations on dangerous roads”.
  3. It is noted that the agent claims that people are more mobile; the average commute is 30 minutes and that Paddington residents would consider Brisbane CBD their local neighbourhood as would residents of Coolangatta consider Surfers Paradise local and residents of Beaudesert consider Boonah local. No evidence has been provided for these assertions.
  4. The agent refers to a resident of Coolangatta considering Surfers Paradise as being local but this is a car journey of 29 km or 35 minutes and by Uber would cost $52 to $69 for someone without access to a car. It seems that the trip from Jimboomba to Logan City would cost a similar amount and would cost per week some $520 to $690 which is prohibitive for someone earning $54,250 per annum or $1,043 per week.
  5. It is noted that Jimboomba is 56 km from Gold Coast City and is an hour’s commute by car so the same reasoning applies to the advertisement for Gold Coast City as applies for Logan City. Waterford is 25 km and a journey of 29 minutes while Carrara is a 55 km and 56 minutes’ commute to Jimboomba. Hope Island is 63 km and a journey of 57 minutes to Jimboomba.
  6. The Tribunal does not accept that a Jimboomba resident would necessarily apply as readily for a position supposedly located in Logan City, Gold Coast City, Carrara, Hope Island or Waterford as they would for a position located in Jimboomba in their same local area. The Tribunal finds that the locations listed as Logan City, Gold Coast City, Carrara, Hope Island or Waterford may reasonably deter a suitably qualified and experienced Australian citizen or Australian permanent resident living in the same local area as Jimboomba because of the commute to these locations. This would be particularly so if the potential candidate did not have a car or had to get a lift with someone else.
  7. The Tribunal notes the applicant’s claim that Logan City would attract more applicants and be “on everyone’s job searches” but this is not the intention of the regulation. The intention of the regulation is to allow a suitably qualified and experienced Australian citizen or Australian permanent resident living in the same local area as Jimboomba to apply for a position in their local area of Jimboomba. It is noted that the applicant considers the population of Jimboomba at 13,201 to be a small applicant pool but this is the very point. There would be fewer jobs available in Jimboomba and the regulation plainly intends that an Australian citizen or Australian permanent resident who is suitably qualified and experienced living in the same local area of Jimboomba have precedence for the vacant position in Jimboomba over a foreign skilled worker.
  8. This is clear in the Explanatory Statement for Select Legislative Instrument 2012 No.82 which introduced the Regional Sponsored Migration Scheme employer nomination - visa Subclass 187 direct entry stream at Item [41] – Regulation 5.19 which states “and whether the position could be filled by an Australian citizen or permanent resident....Subregulation 5.19(5) provides that unless subregulation 5.19(3) or (4) can be satisfied, the Minister must refuse an application for approval of a nomination of a position.
  9. It is noted that the applicant claims they employ a high number of Australia citizens and their foreign skilled workers are not a significant proportion of their workforce and that they have a high turnover of staff, however, these matters do not go to satisfying r.5.19(4)(h)(ii)(C).
  10. The applicant states they are more concerned with filling positions than worrying about meeting visa conditions. If this were the case then the applicant could have kept a recruitment summary complete with candidates, resumes, home locations, interview results and suitability for the Jimboomba location which would have enabled the decision maker to definitively determine whether 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, Jimboomba.
  11. For the reasons given above the Tribunal finds that the advertisements for other locations, do not enable the decision maker to be satisfied that 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, Jimboomba because the locations listed were Logan City, Gold Coast City, Carrara, Hope Island or Waterford and would reasonably deter a Jimboomba resident from applying.

Advertisements for Jimboomba post-dating the decision to employ

  1. There are two advertisements for cooks for Jimboomba postdating the employment contract on 13 July 2017 namely #28 placed on 18 January 2018 on Gumtree and #30 placed on 2 March 2021 on Indeed.
  2. The first advertisement #28 does not have a recruitment summary showing how many candidates applied; where they lived; their qualifications and experience; whether they were contacted for an interview or shortlisted; whether they were interviewed or had a work trial and whether they were suitable for the position. The Tribunal cannot be satisfied that this advertisement could not be filled by an Australian citizen or Australian permanent resident who was living in the same local area as Jimboomba because there is no information on the recruitment process.
  3. The second advertisement #30 does have a recruitment summary and it is noted that the agent argues that an advertisement can postdate the decision to employ a nominee. However, this advertisement states:

Indian Cook Required

Randhawa’s Indian Cuisine – Jimboomba is seeking for a full-time Indian Cook. The ideal candidate will have experience working in an Indian kitchen, have strong teamwork and communication skills and be able to prepare a variety of Indian cuisines to the high standard required by the company.

About position

Indian Cook required

Skills and experience required

Must have some experience working in a (sic) Indian Kitchen.

Certificate IV in Commercial cooking required.

  1. It is noted a number of other advertisements by the applicant have the stipulation Tandoori Cook or Curry Cook which denotes a style of cooking and is reasonable given the restaurants serve Indian cuisine.
  2. It is noted the advertisement states the applicant must have experience working in an Indian kitchen and should be able to prepare a variety of Indian cuisines and this is again reasonable given the restaurants serve Indian cuisine.
  3. However, it appears that the meaning in this advertisement is ambiguous and may imply they require an Indian Cook. The Oxford Dictionaries Online provide the following definition:

Indian – relating to India or its people, customs or languages.

  1. The Tribunal considers candidates could be confused by the ambiguity in the advertisement and believe the applicant is requiring a particular ethnic background for the cook, namely a cook of Indian ethnicity.
  2. The Tribunal will be guided by Judge Brown in Old Swanport Investments Pty Ltd v Minister for Immigration & Anor [2015] FCCA 2139 (31 August 2015) who found that the stipulation “asian language highly preferred” served to deter a number of applicants from applying for an advertised position. Judge Brown found as follows.

Notwithstanding those factors, the Tribunal determined as follows:

  1. In this case, it is asserted that there was no evidence to support the Tribunal’s conclusion. I do not agree that this is the case. The major piece of evidence before the Tribunal was the text of the advertisement itself, which contained the job criterion Asian language highly preferred”.
  2. Necessarily, in my view, a possible and logical conclusion to be drawn from a plain reading of the advertisement was that a number of applicants would be deterred from applying for the position because they had no Asian language skills. This follows from the use of the phrase highly preferred, which literally means that applicants with an Asian language would be liked better (preferred) by the applicant to a significant degree (highly).
  3. The Tribunal finds that similar to Judge Brown’s reasoning the stipulation “Indian Cook” would necessitate a possible and logical conclusion to be drawn from a plain reading of the advertisement that a number of applicants would be deterred from applying for the position because they were not of Indian descent or ethnicity or found the description ambiguous. It is noted that in the past the applicant has used the descriptor Curry/Tandoori to denote a style of cooking and remove any ambiguity regarding the ethnicity required of the cook but has not done so on this occasion.
  4. It is noted that the applicant provided a recruitment summary and there were no suitable candidates who responded including from Jimboomba. This was also the case in Old Swanport Investments Pty Ltd v Minister for Immigration & Anor [2015] FCCA 2139 (31 August 2015) and Judge Brown found as follows at [115]:

Mr Albert contends that the evidence available to the Tribunal indicates that a number of applicants did in fact apply and were found wanting. This is the case, but this factor alone does not negate the logical possibility that an advertisement, without the specification, would have attracted more applicants, who were suitably qualified and who were Australian citizens or permanent residents than applied to the advertisement in question, which in effect was the finding of fact made by the Tribunal.

  1. The Tribunal agrees with this reasoning and notwithstanding the apparent lack of suitable candidates including from Jimboomba, an advertisement without the ambiguity in the descriptor “Indian” as a key requirement of the Cook would have attracted more applicants who were suitably qualified and who were Australian citizens or permanent residents from the same local area of Jimboomba.
  2. There is another consideration. The stipulation in r.5.19(4)(h)(ii)(C) is that the Minister must approve the nomination if the position cannot be filled by an Australian citizen or permanent resident who is living in the same local area as that place. In other words, if there is an Australian citizen or permanent resident who is suitably qualified and experienced for the position living in the same local area then the nomination must not be approved. The policy is clear that Australian citizens or permanent residents are to have precedence in the labour market over foreign skilled workers, other matters being equal. As discussed above this is supported by the Explanatory Statement.[7]
  3. If an advertisement postdates an appointment of a nominee to a vacant position by some period of time, any suitably qualified or experienced Australian citizen or permanent resident who could have filled the position at the time of appointment would have been denied the opportunity to apply for the position.
  4. There is also the conundrum that there is no longer a vacancy because the position is already filled by a foreign skilled worker which is plainly not in the spirit of the legislation or the Explanatory Statement. Advertising a position where there is no vacancy is not a genuine recruitment process.
  5. It is implausible that having filled a position with a nominee for some weeks, months or years that the employer would advertise the position and then dismiss the nominee in favour of a suitably qualified Australian citizen or permanent resident. They would be unlikely to do this because of the potential disruption to the smooth operation of their business and the risk of an unfair dismissal claim by the nominee.
  6. The agent claims that simply because there were not suitable candidates for the position that again the timing of the advertisement is not determinative. The Tribunal considers this a disingenuous argument because having appointed the nominee to the position with all the deterrents of business disruption and unfair dismissal claims if the nominee is terminated in favour of a suitably qualified and experienced Australian citizen or permanent resident, the applicant is reasonably going to be cautious and disinclined to find an Australian citizen or permanent resident a successful candidate for the position. It was the intention of the regulation that the applicants give precedence to suitably qualified and experienced Australian citizens or permanent residents not that applicants be cautious or disinclined to appoint them.
  7. In the hearing Mrs Randhawa stated that the nominees were key employees and there would be consequences if the applications were refused.
  8. Mrs Randhawa detailed the consequences of refusing the application noting her husband is suffering from mental health issues as a result of him being unable to be with his mother when she died in April 2020 and the distress of his father’s failing health when travel restrictions do not allow him to travel to India. The stress of running the business is also taking its toll and he is struggling to go to the bathroom with the result being that his wife is his full-time carer while she looks after the youngest of their four children. If the applications are refused, they may have to shut down the restaurants which would cause financial losses and the need to let other employees go as the positions would no longer be viable. It has taken them 13 years to build a business and they are willing to have a further hearing if this would assist.
  9. The agent states the applicant has continued to instruct that they couldn’t fill the positions locally at time the applications were lodged, and they continue to be unable to fill the position locally at present. Mrs Randhawa explained that they had closed one of the Coriander Thai Cuisine restaurants due to COVID-19 and now wanted to re-open it but could not find skilled employees. They had advertised extensively in southern capitals and elsewhere but could not find suitable skilled staff and the rent was costing them $9,000 per month.
  10. The agent submits that since the provision is a time of decision provision, consideration should be given to the business’s circumstances beyond what was relevant at the time of the application or when employment agreements were signed and the applicants have explained extensively that they continue to struggle to find individuals suitably skilled and reliable to work in the businesses. The agent states more recent advertising demonstrates these difficulties despite the applicants trying to encourage local labour markets to fill positions.
  11. He states that the owners are experiencing substantial hardship as a result of Mr Talwinder Randhawa’s deteriorating mental health which requires Mrs Randhawa essentially to be a full-time carer while she seeks to manage the business at the same time. He claims they are more reliant on their staff than ever and the loss of these staff members will likely destroy the family business that they have been building for 13 years. He states that given the importance of the staff members and the desperate circumstances the business operators find themselves in, if the Tribunal believes more information is required then the applicants should be afforded a further hearing.
  12. The Tribunal notes that the applicants are apparently facing family, health and business challenges and state they may have to close restaurants with other employees losing their jobs if the nominees are unsuccessful with their review applications. This is unfortunate but the Tribunal is required to ensure the regulation is satisfied regardless of the personal, health or business circumstances of the applicant.
  13. On 21 April 2021, the applicant provided a clipping dated 16 April 2021 from the Gold Coast Bulletin advising that the applicant had been voted the best Indian restaurant of the year by readers and shows a smiling Mr and Mrs Randhawa. They are planning to open a restaurant in Brisbane in addition to their existing restaurants. It is encouraging to see that Mr Randhawa appears to be in better health and the couple, despite dire predictions, are planning to further expand their restaurants.
  14. The Tribunal has decided not to grant a further hearing as requested as the applicants have had the opportunity to be heard and provide evidence to support their case which has been carefully assessed by the Tribunal.
  15. The Tribunal finds the applicant provided advertisements for cooks which were for the locations of Logan City, Gold Coast, Carrara, Waterford and Hope Island which would have deterred a suitably qualified Australian citizen or permanent resident who is living in the same local area as Jimboomba from applying for the position. The applicant provided two advertisements for cooks for Jimboomba postdating the employment contract, however, the first had no details on the recruitment process such as a summary and the second had a stipulation “Indian” cook which was ambiguous and could reasonably deter suitably qualified Australian citizens or Australian permanent residents of other ethnic backgrounds who were living in the same local area as Jimboomba from applying for the position. In addition, the post-dated advertisements were not part of a genuine recruitment process to satisfy the legislation and the Explanatory Statement because there was no vacancy since it had been filled by a foreign skilled worker.
  16. For these reasons the Tribunal is not satisfied that the position of cook cannot be filled by an Australian citizen or Australian permanent resident who is living in the same local area as that place, being Jimboomba.
  17. The Tribunal finds that the applicant does not meet r.5.19(4)(h)(ii)(C).
  18. Accordingly, the requirements of r.5.19(4)(h) are not met.
  19. 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

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



De-Anne Kelly
Member

ATTACHMENT - EXTRACTS FROM THE MIGRATION REGULATIONS 1994

5.19 Approval 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).

[1] Bharaj Construction Pty Ltd v MIBP [2016] FCCA 902 at [81].
[2] [Div5.3/reg 5.19] Approval of nominated positions (employer nomination) - Regulation 5.19 (immi.gov.au)
[3] 54) Letter from the business dated 3 February 2021 – Further letter for Lovepreet Kaur.
[4] 69) Performance report with note attached from the applicant “Indeed Ad and receipts from 2017 and Indeed Progress Report”, showing 41 applicants.

[5] 67) Invoice from Indeed dated 31 May 2017 Invoice # 9005670 with Description “May 2017 Advertising on Indeed.com” Bill to: Randhawa’s Indian Cuisine Jimboomba
68) Invoice from Indeed dated 30 June 2017 Invoice # 9445220 with Description “June 2017 Advertising on Indeed.com” Bill to: Randhawa’s Indian Cuisine Jimboomba.
[6] 66) Advertisement created on 19 March 2017 for cooks in Logan City with 56 candidates and 414 views up to the current status of the ad viewed in 2020.

[7] Explanatory Statement for Select Legislative Instrument 2012 No.82.

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