1406694 (Migration)

1406694 (Migration) [2015] AATA 3096 (14 July 2015)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Regency Jewellers (Qld) Pty Ltd as Trustee for Regency Jewellers Trust
CASE NUMBER:  1406694
DIBP REFERENCE(S):  BCC2013/1841296
MEMBER:John Cipolla
DATE:14 July 2015
PLACE OF DECISION:  Sydney
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Statement made on 14 July 2015 at 4:10pm

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration on 19 March 2014 to reject the application for approval of the nomination of a position in Australia under r.5.19 of the Migration Regulations 1994 (the Regulations).
The application for approval was lodged by Regency Jewellers Queensland Pty Ltd. 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 (r.5.19(3)) stream and a Direct Entry nomination (r.5.19(4)) stream. 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).
The nomination is for the position of Customer Service Manager under the Direct Entry nomination stream. The person identified for the position was Ms Ning Chiang (the related visa applicant). She has lodged an application for Permanent Employer Nominated visa in connection with the nomination.
The application was refused because the delegate found that the requirements of r.5.19(4)(h) were not met. The delegate was not satisfied that the tasks to be performed in the position correspond to the tasks of a ‘Customer Services Manager’ occupation. The delegate considered that the tasks aligned with the occupation of ‘Customer Service Manager’ was not at a ANZSCO Skill Level 1, 2 or 3, and found that the requirements of r.5.19(4)(h)(ii)(D) were not met. A delegate also refused to grant the visa to the related visa applicant because the nomination had not been approved.
Regency Jewellers Queensland Pty Ltd has sought review of the decision to refuse the nomination. Mr Brad Remmer the proprietor of the business appointed a registered migration agent to represent the business. The related visa applicant also made an application for review in relation to the refusal of the visa. That application is also before this tribunal.
ISSUES FOR CONSIDERATION
The issue in this case is whether the nominating business 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.
The nominating business is a jewellery outlet, selling jewellery and loose stones. It has been established in Cairns since 1988 and operates 3 retail stores across the region. The head office and main store are located at the same address, 75-77 Abbott Street Cairns 4870. The nominated position of ‘Customer Service Manager’ was described on the application form as the occupation of ‘Customer Service Manager’ (ANZSCO code: 149212).
The offer of employment letter that was provided with the nomination indicated that the nominating business was offering the related visa applicant employment in the position of ‘Customer Service Manager’.
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. On review, the tribunal has considered the submissions and evidence provided as to the appropriate occupation for the nominated position. It will first address the reason for which the nomination was refused by the Department.
CONSIDERATION OF ISSUES
Tasks of the position; genuine need for position and training benchmarks r.5.19(4)(h)
The nomination of a position is required to meet either regulation 5.19(4)(h)(i) or (h)(ii). Where the position and nominator’s business is located in regional Australia, the requirements appear under r.5.19(4)(h)(ii). The remaining requirements for a regionally based position are that:
·there is a genuine need for the paid position under the nominator’s direct control which a local Australian citizen or permanent resident cannot fill;
·the tasks of the position correspond to those of an occupation at the ANZSCO skill level 1, 2 or 3; and
·that a regional certifying body has advised the Minister about certain matters relating to the position.
In this case, the position and nominator’s business are located in Cairns, Far North Queensland, postcode 4870 which is “regional Australia” as defined. The requirements of r.5.19(4)(h)(ii)(A) are thus met. The remaining requirements under r.5.19(4)(h)(ii) are each addressed below.
Certification by relevant body: r.5.19(4)(h)(ii)(F)
When the nomination was lodged, the relevant Regional Certifying Body (RCB) for the area certified the nomination. The RCB is required to advise the Minister about the following matters relating to the position:
·there being a need for a paid employee;
·the nominated position cannot be filled by an Australian citizen or Australian permanent resident who is living in the same local area; and
·the terms and conditions of employment will be no less favourable than those that would be provided to an Australian citizen or Australian permanent resident performing equivalent work in the same workplace at the same location.
On review, a letter dated 28 October 2013 was provided from Ms Annette Azzopardi from the Chamber of Commerce and Industry Queensland in support of the nomination. The letter addressed all of the necessary matters. The requirements of r.5.19(4)(h)(ii)(F) have thus been met.
Genuine need that cannot be filled by local Australian citizen or permanent resident
In considering whether there is a genuine need for the paid position under the nominator’s direct control that cannot be filled by a local Australian citizen or permanent resident, the tribunal has had regard to the following evidence; a submission from Fiona Ryan the applicant business’s representative dated 17 April 2015; a letter from Annette Azzopardi from Regional Migration Services Chamber of Commerce and Industry Queensland; a letter from the proprietor of the business Mr Brad Remmer (undated). All of these submissions address in detail why the business has a genuine need for the position and why the position cannot be filled by a local.
On the material and evidence presented, the tribunal accepts that there is a genuine need for the nominator to employ a paid employee to work as a Customer Service Manager. The tribunal also accepts on the evidence before it at review that the position will be under the nominator’s direct control.
As to whether the position cannot be filled by a local Australian citizen or permanent resident having regard to the position description and nature of the business, the tribunal accepts the evidence provided at review as to the difficulties in sourcing a suitable employee locally.
Given the above, the tribunal accepts 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.
It finds that the requirements in r.5.19(4)(h)(ii)(B) and (C) are met.
Skill Level
According to ANZSCO, ‘Customer Service Managers’ manage, motivate and develop staff providing customer services; develop and review policies, programs and procedures concerning customer relations and goods and services; provides plans and implements after-sales services, to maintain operating performance of goods purchased and to modify and improve services regularly liaises with other organisational units, service agents and customers to identify and respond to customer expectations, reviews compliance with established product and service quality standards, and reports on faulty products and deficient services distributes product and service literature to service agents and customers.
The tribunal has been provided with material regarding the position description and the tasks and attributes of the position and these also are addressed extensively in the post hearing submission provided by the applicant’s representative and dated 17 April 2015.
The tribunal considers the duties and responsibilities listed on the offer of employment and in the detailed submission provided at review to be consistent with the tasks of ‘Customer Service Manager’ as described in ANZSCO.
Having regard to the ANZSCO description, the tribunal accepts that the tasks to be performed in the position correspond to the tasks of a ‘Customer Service Manager’. The indicative skill level for this occupation is ANZSCO skill level 1.
Therefore, the requirements of r.5.19(4)(h)(ii)(D) have been met.
Location of business
The information before the tribunal is that the head office is located at 75-77 Abbott Street Cairns Queensland 4870. The tribunal finds that the requirements of r.5.19(4)(h)(ii)(E) have been met.
As the tribunal finds that the requirements of r.5.19(4)(h)(ii) have been met in their entirety, it will now consider the remaining requirements for Direct Entry nomination.
The application is compliant: r.5.19(4)(a)
Regulation 5.19(4)(a) requires that the application for approval must be in the approved form, must be accompanied by the prescribed fee and must identify a need for the nominator to employ a paid employee to work in the position under their direct control. The evidence before the Tribunal is that the application for approval was made on the approved form and was accompanied by the prescribed fee.
The application was made on the basis that there is a need for a ‘Customer Service Manager’ in the business to assist in the ongoing growth of the business, particularly the growth in the Chinese market which has grown significantly. The tribunal gave reasons above for its finding that there is a genuine need for the paid position. It finds for the same reasons that the nominator has identified a need to employ a paid employee to work in the position under its direct control. Accordingly, the requirement in r.5.19(4)(a) is met.
Nominator is actively and lawfully operating a business in Australia: r.5.19(4)(b)
Regulation 5.19(4)(b) requires that the nominator is actively, lawfully and directly operating a business in Australia. The tribunal finds that the nominator is actively and lawfully operating a business in Australia having regard to business activity statements since operation, receipts of ATO BAS payments, PAYG payment summaries for the financial year ending 30 June 2014, as well as copies of recent bank account statements.
The tribunal finds that the nominator directly operates that business. The requirement in r.5.19(4)(b) is thus met.
Position is not labour-hire: r.5.19(4)(c)
There is nothing before the tribunal to indicate that the nominator is involved in hiring of labour to other unrelated businesses. Accordingly, the requirement in r.5.19(4)(c) does not apply.
Term of employment of the visa holder: r.5.19(4)(d)
Regulation 5.19(4)(d) requires the nominee to be employed in the nominated position for at least 2 years full time, and the terms and conditions of that employment do not expressly exclude extension of the employment. A contract dated 16 October 2013 had been provided to the Department for the position of ‘Customer Services Manager’. An updated contract has been provided to the Tribunal at review dated 30 March 2015. It provides that the contract is for a period of 2 years. The related visa applicant has signed to accept the terms and conditions of the offer.
Having regard to the terms of the contract, an extension has not been expressly excluded. Accordingly, the requirement in r.5.19(4)(d) is met.
No less favourable terms and condition of employment: r.5.19(4)(e)
Regulation 5.19(4)(e) requires that the terms and conditions of employment applicable to the nominated position will be no less favourable than those that are, or would be, provided to an Australian citizen or permanent resident performing equivalent work in the same workplace at the same location.
There is only one ‘Customer Service Manager’ within the business. The salary has increased from approximately $42,484 in October 2013 to $49,400 in the most recent employment contract. A submission provided with this review from the Cairns Chamber of Commerce dated 15 April 2015 indicates that the three year average salary for a Customer Service Manager in Far North Queensland is currently $48,294.
Given this, the tribunal finds that the terms and conditions applicable to the position will be no less favourable than those that are/would be provided to an Australian citizen or permanent resident performing equivalent work in the same workplace at the same location.
Accordingly the requirements of r.5.19(4)(e) are met.
No adverse information known to Immigration: r.5.19(4)(f)
There is no known adverse information relevant to the nominator’s suitability as an approved sponsor or person associated with the nominator within the meaning of r.2.57(2) or (3). The requirements of r.5.19(4)(f) are met.
Satisfactory compliance with workplace relations laws: r.5.19(4)(g)
There is no evidence before the tribunal to indicate that the nominator does not have a satisfactory record of compliance with workplace relations laws in the locations in which it operates a business and employs staff. In the circumstances, the requirements of r.5.19(4)(g) are met.
Conclusion
The Tribunal has been provided with extensive supporting material on review and the Tribunal finds that the evidence provided at the hearing and during the review process to be credible.
Based on the findings above, the tribunal is satisfied that the applicant meets the requirements of r.5.19 for approval of the nomination of the position in Australia.
DECISION
The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.
John Cipolla
Senior Member
ATTACHMENT - EXTRACTS FROM THE MIGRATION REGULATIONS 1994
5.19 Approval of nominated positions (employee nomination)
…
(2)The application must:
(a)be made in accordance with approved form 1395…; and
(b)be accompanied by the fee mentioned in regulation 5.37.
…
Direct Entry nomination
(4)The Minister must, in writing, approve a nomination if:
(a)the application for approval:
(i)is made in accordance with subregulation (2); and
(ii)identifies a need for the nominator to employ a paid employee to work in the position under the nominator’s direct control; and
(b)the nominator:
(i)is actively and lawfully operating a business in Australia; and
(ii)directly operates the business; and
(c)for a nominator whose business activities include activities relating to the hiring of labour to other unrelated businesses — the position is within the business activities of the nominator and not for hire to other unrelated businesses; and
(d)both of the following apply:
(i)the employee will be employed on a full-time basis in the position for at least 2 years;
(ii)the terms and conditions of the employee’s employment will not include an express exclusion of the possibility of extending the period of employment; and
(e)the terms and conditions of employment applicable to the position will be no less favourable than the terms and conditions that:
(i)are provided; or
(ii)would be provided;
to an Australian citizen or an Australian permanent resident for performing equivalent work in the same workplace at the same location; and
(f)either:
(i)there is no adverse information known to Immigration about the nominator or a person associated with the nominator; or
(ii)it is reasonable to disregard any adverse information known to Immigration about the nominator or a person associated with the nominator; and
(g)the nominator has a satisfactory record of compliance with the laws of the Commonwealth, and of each State or Territory in which the applicant operates a business and employs employees in the business, relating to workplace relations; and
(h)either:
(i)both of the following apply:
(A)the tasks to be performed in the position will be performed in Australia and correspond to the tasks of an occupation specified by the Minister in an instrument in writing for this sub-subparagraph;
(B)either:
(I)the nominator’s business has operated for at least 12 months, and the nominator meets the requirements for the training of Australian citizens and Australian permanent residents that are specified by the Minister in an instrument in writing for this sub-sub-subparagraph; or
(II)the nominator’s business has operated for less than 12 months, and the nominator has an auditable plan for meeting the requirements specified in the instrument mentioned in sub-sub-subparagraph (I); or
(ii)all of the following apply:
(A)the position is located in regional Australia;
(B)there is a genuine need for the nominator to employ a paid employee to work in the position under the nominator’s direct control;
(C)the position cannot be filled by an Australian citizen or an Australian permanent resident who is living in the same local area as that place;
(D)the tasks to be performed in the position correspond to the tasks of an occupation at a skill level of ANZSCO skill level 1, 2 or 3;
(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).

[2015] AATA 3096

14 July 2015

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction