1413539 (Migration)

1413539 (Migration) [2015] AATA 3696 (19 November 2015)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Manhari International Pty Ltd
CASE NUMBER:  1413539
DIBP REFERENCE(S):  BCC2014/614087
MEMBER:Alison Mercer
DATE:19 November 2015
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.
Statement made on 19 November 2015 at 1:23pm

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 18 July 2014 to reject the applicant’s application for approval of the nomination of a position in Australia under r.5.19 of the Migration Regulations 1994 (the Regulations).
The applicant applied for approval on 3 March 2014. 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).
In this case, the applicant has applied for approval of a nomination, seeking to satisfy the criteria in Direct Entry Nomination stream.
The delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19(4)(a) of the Regulations because the delegate was not satisfied that the applicant had established that it had a genuine need for the nominated paid position of Procurement Management. The delegate noted that the nominee for the position did not have qualifications relevant to the nominated occupation, nor prior experience in that occupation. Nor was the delegate satisfied that no Australian employee could be recruited for the position.
The Tribunal received a review application from the applicant on 6 August 2014, signed on its behalf by Mr Madhur Gupta, General Manager. The application was accompanied by a copy of the delegate’s decision and an authority by which the applicant appointed a registered migration agent, Dr Annathurai Ghanasambandam, as its representative and authorised recipient for correspondence for the purposes of the review.
On 5 February 2015, the Tribunal wrote to the applicant via its agent pursuant to s.359(2) of the Act. The Tribunal noted that the applicant had already provided submissions and documents to the Department and invited the applicant to provide updated information demonstrating that it met all the criteria in r.5.19(4). The Tribunal noted that the requirements of r.5.19(4) were cumulative, and that failure to meet one meant that the nomination application could not be approved. A copy of r.5.19(4) was provided for reference and the applicant was requested to provide the relevant information by 19 February 2015.
On 18 February 2015, the Tribunal received a submission and accompanying documents from the applicant’s agent. In summary, the agent submitted that:
·the delegate had incorrectly looked at the qualifications required for the occupation of Stock Clerk, and not Procurement Manager, in assessing the skill level of the occupation and finding that the nominee’s qualifications were not relevant to the nominated occupation;
·the nominee had a Bachelor of Commerce degree and it was argued that this was a relevant course for the nominated occupation when ‘all states’ was selected in the MyFuture website used by the delegate (instead of just ‘Victoria’ as she had selected);
·there was no logical reason for the delegate to distinguish between a Bachelor of Business degree (which she accepted was relevant to the nominated occupation) and a Bachelor of Commerce degree, since there was little difference between these courses and holders of both degrees could work in a variety of industries in management positions;
·the delegate appeared to have incorporated considerations relevant to the associated visa application by the nominee into her assessment of the nomination application (such as the qualifications and experience of the nominee), and the Department’s guidelines specifically cautioned against this;
·her conclusion that the applicant had tailored the position for the nominee was incorrect and inappropriate and she should have focussed on the nominated position itself;
·the applicant was a buyer and recycler of ferrous and non-ferrous scrap metal, including brass, aluminium, copper, heavy metal steel, cast iron and stainless steel. It exported all types of scrap metal mainly to India, Malaysia, Singapore, Pakistan, Thailand and the United Arab Emirates;
·the management team of the business had been in business since 2003 and the company was formally incorporated in 2007. It operated from 2 locations: Sunshine North in Melbourne, and Horsham in regional Victoria;
·the nominated position of Purchasing Manager/Procurement Manager was relevant to the nature and scope of the business activities of the applicant. It had been occupied by a temporary resident for more than 11 months, indicating that there was a genuine need for the position, and the position contributed to maintaining or enhancing the volume and/or quality of procurement of scrap metals;
·the business had grown since its establishment, and financial statements and Business Activity Statements (BAS) were provided to substantiate this and this underlined the need for a Procurement Manager;
·the relevant Regional Certifying Body (RCB) had certified that the nominated position could not be filled locally, contrary to the delegate’s conclusions; and
·the nominee had gained experience in the industry through his work as a truck driver for the applicant for the past 11 months.
The documents provided with the submission included the balance sheet and profit and loss statements for the employer as at June 2014, Business Activity Statements (BAS) for Manhari Metals for the period July 2013 to November 2014, Australian Business Register details for Manhari International Pty Ltd, Regional Certifying Body (RCB) certification dated 17 February 2014, financial statements for the company for 2012/13 financial year, PAYG summary statement for the nominee for 2013/14 financial year, payroll activity summary for Manhari Metals for the nominee for 1 April 2014 to 12 February 2015, financial statements for Manhari International Pty Ltd for 2009/10 and 2010/11 financial years, organisational structure chart for Manhari International Pty Ltd, letter of offer of employment to the nominee dated 8 January 2014, advertising material for Manhari Metals, and payslips for the nominee for the position of Purchasing Manager for period January to February 2015.
On 2 July 2015, the Tribunal wrote again to the applicant via its agent to advise that the Presiding Member had reviewed the material provided and requested additional clarification and/or material; namely:
·    2013/14 financial statements for the applicant company, plus its BAS for the first quarter of 2015;
·    organisational charts for the Sunshine North and Horsham branches of the business clearly identifying the position titles and whether the incumbents were permanent or temporary residents;
·    evidence (if any) of advertising undertaken to fill the nominated position, and if none had been undertaken, a statement (preferably in the form of a statutory declaration) as to why not, and when and why the position of Procurement Manager was introduced into the business;
·    updated employment agreement or confirmation that the letter of offer of 8 January 2014 remained current (noting that it contained no termination provisions); and
·    updated position description for the nominated position.
On 17 July 2015, the Tribunal received from the applicant’s agent the applicant’s 2013/14 financial statements, its BAS for January 2015 to May 2015, organisational charts for the Sunshine North and Horsham branches with temporary and permanent resident employees identified, evidence of advertising undertaken on Seek.com in October 2013 for a Procurement Manager, confirmation that the employment offer letter of 8 January 2014 remained current and an updated position description for the nominated position.
On 22 September 2015, the Tribunal wrote to the applicant via its agent to invite a representative of the applicant to attend a hearing on 6 November 2015. The Tribunal also indicated that it would be assisted to take evidence from the nominee Mr Iqbal Singh in person or by telephone at the hearing, and it requested that the applicant provided any additional documents or submissions it wished the Tribunal to take into account no later than 1 week prior to the hearing.
On 25 September 2015, the applicant’s agent indicated that he, Mr Iqbal Singh and Mr Madhur Gupta would attend the hearing. Subsequently, the applicant’s agent provided the following additional material:
·article from the Wimmera Mail Times dated 3 July 2015, ‘Manhari Aftermath’ referring to a recent fire at Mahhari Metals in Horsham and quoting the manager, Iqbal Singh, causing a significant loss of metal due to melting; and
·material downloaded from the website of Manhari Metals referring to its role as a buyer and recycler of large quantities of ferrous and non-ferrous scrap metals, cars, and of other industrial and household waste, and exporting them to India, Malaysia, Thailand, Singapore, Pakistan and Dubai.
Mr Madhur Gupta, director of the applicant appeared before the Tribunal on 6 November 2015 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Iqbal Singh and submissions from the applicant’s agent.
Following the hearing, the applicant’s agent provided additional material in support of the case, consisting of:
·further submission addressing r.5.19(4)(a)(iii), the need for the applicant/nominator to employ a paid employee to work in the nominated position under the nominator’s direct control. It was submitted that the nominator was a well-established company operating in 2 locations, Horsham and Melbourne (Sunshine North) and that the nominated position was relevant to the nature and scope of the nominator’s business, which was to buy large quantities of ferrous and non-ferrous metals for export. The position was currently occupied by a temporary resident (the nominee) and had been for almost 20 months, indicating that there was a genuine need for the position. The position would contribute maintaining or enhancing the volume and/or quality of procurement of scrap metals at Horsham, which was critical for the business. The business was growing, as evidenced by the 2013/14 financial statements and BAS to May 2015 provided to the Tribunal, plus earlier ones already provided to the Department and Tribunal. In particular, figures from 2009 to date showed that the sales of the business had increased steadily from $2,079,997 in 2009 to $10,653,137 in 2014 and were anticipated to exceed $10,000,000 in 2015. It was submitted that these factors clearly fell within examples contained in the Department’s PAM3 guidelines;
·an updated employment contract between the applicant and nominee, dated 10 November 2015, now including termination provisions and indicating that the nominee will be paid a base salary of $55,000 plus superannuation from 1 December 2015, to be reviewed annually. The applicant’s agent submitted that this salary was in line with Payscale market report information for Purchasing Managers, dated 8 November 2015;
·further submission addressing r.5.19(4)(e), the requirement that the terms and conditions of employment applicable to the position would be no less favourable than those that are or would be provided to an Australian performing equivalent work in the same workplace at the same location. The applicant’s agent confirmed that there was no other Purchasing Manager working in the Horsham location of the business. He acknowledged that Mr Gupta, director of the applicant, gave evidence at the hearing that the 2 Procurement Managers in Melbourne had higher salary packages as they had many more years of experience than the nominee, and that the positions in the Melbourne location involved greater responsibility for staff supervision and sales and greater volumes of sales. The Payscale report of November 2015 indicated the salary offered to the nominee of $55,000 plus super was consistent with a Purchasing Manager with 1 to 2 years of experience;
·evidence of the Yarriamback Shire Council’s decision in September 2012 to award the tender for scrap metal collection in the municipality to the applicant, in part due to its ‘excellent service response… with the base being in Horsham;’
·balance sheet and profit and loss statement for the applicant as at June 2015, showing net profits of $559,504;
·BAS for the applicant to June 2015;
·Payscale Market Report for Purchasing Manager with 1-2 years of experience, 8 November 2015; and
·updated position description dated 10 November 2015.
For the following reasons, the Tribunal has decided to set aside the decision under review and substitute a decision approving the nomination.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant meets the requirements for approval of the nomination under the Direct Entry nomination stream set out in r.5.19(4), which is extracted in the attachment to this decision. For the nomination to be approved, all the requirements must be met.
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.
From the material on the Department’s file, the Tribunal is satisfied that the application for approval was made on the approved form and that no prescribed fee was payable in this case. It is further satisfied that the application form identified a need for the applicant to employ a paid employee to work in the position of Procurement Manager under the direct control of the applicant.
The delegate found that r.5.19(4)(a)(ii) was not met, which requires that the applicant had identified a need to employ a paid employee to work in the position under the applicant’s direct control, as she expressed concerns about whether the experience and qualifications of the nominee matched the skill level and required qualifications for the nominated occupation. The Tribunal considers that this largely overlaps with the issue of whether the there is a genuine need for the nominated position, and has considered this issue below in its assessment of whether r.5.19(4)(h)(ii)(B) is met.
The Tribunal finds that 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 applicant is actively, lawfully and directly operating a business in Australia.
From the material provided to the Department and to the Tribunal, which included 2012/13 and 2013/14 financial statements, BAS to the second quarter of 2015 and evidence of relevant ASIC and ABN registration, the Tribunal is satisfied that the applicant is actively and lawfully operating a business in Australia.
Accordingly, the Tribunal is satisfied that the requirement in r.5.19(4)(b) is met.
Position is not labour-hire: r.5.19(4)(c)
Regulation 5.19(4)(c) applies to nominators’ whose business activities include those relating to labour hire to an unrelated business. In these cases, the nominated position must be within the business activities of the nominator.
The Tribunal is satisfied from the material on its file and the Department’s file that the applicant’s business activities do not include those relating to labour hire to an unrelated business, and that the nominated position is located within the applicant’s business.
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.
The Tribunal finds that the applicant provided the Department with a copy of a letter of offer to the nominee from the applicant dated 8 January 2014, which states that (provided he is granted a subclass 187 visa), the nominee’s full time position will be available for a minimum of 24 months from the date of visa grant and was expected to continue beyond this until either party should decide to end the agreement. While this explicit statement is not replicated in the most recent contract of employment dated 12 November 2015, the contract is expressed to be for continuing full-time permanent employment, and there is no limitation on this contained in the contract. The Tribunal also notes that Mr Gupta of the applicant gave evidence at hearing that he wishes the nominee to remain longer than 2 years if possible.
Accordingly, the Tribunal is satisfied that 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.
The Tribunal is satisfied from the most recent organisational structure chart provided in July 2015 that there is no other Australian citizen or permanent resident performing equivalent work in the same workplace at the same location. There are, however, 2 Procurement Managers in the Melbourne yard, as well as Mr Gupta himself, who is paid on a separate basis as a director (that is, he does not receive a salary as an employee).
The letter of offer of employment dated 8 January 2014 provided that the nominee would be paid $51,500 per year plus 9.25% superannuation pursuant to the relevant award (not identified by name) for a full-time (38 hour) week. The letter also specifies that the nominee will be entitled to 4 weeks paid holiday leave and 10 days paid sick/carer’s leave per year.
In his submission to the Department dated 3 April 2014, the applicant’s agent indicated that the salary of the office manager of the applicant (an Australian permanent resident based in the Horsham office) was $49,500, and that information from the PayScale website indicated that the average salary for a Procurement Manager with 1 to 4 years of experience started at $47,600. He submitted that the nominee was offered a salary of $51,500 plus superannuation on the basis that he had no prior experience and thus was at the lower end of the band outlined on the PayScale website.
At the hearing, the Tribunal queried the fact that the employment contract had no termination provisions, and also queried what the other Procurement Managers earned, noting that they were not in the same location even though they did equivalent work. Mr Gupta and his agent confirmed that they set the nominee’s package at $51,500 because Mr Gupta considered it reasonable to start the nominee on this as he had little previous experience in the field. David and Hiren, the 2 Procurement Managers in the Melbourne yard, both had about 15 years of experience, so their packages were $70,000 to $80,000. Another reason that Mr Gupta and his agent gave for the nominee’s salary was that the Department officer assessing the case had expressed a view that the position seemed to be overpaid and might not be genuine. They therefore determined to keep the salary package for the nominee at $51,500 for 2 years and review it with a view to increasing it after that period. Mr Gupta said that it was his standard employment practice to employ a person on a particular rate and then review that after 18 to 24 months. He said that he was happy to improve the pay of employees who worked hard, and wanted to keep them.

Following the hearing, the Tribunal received additional material addressing this issue, as set out at paragraph 14 above. From this, the Tribunal is satisfied that the updated employment contract between the applicant and nominee, dated 10 November 2015, now includes termination provisions and a base salary of $55,000 plus superannuation, effective from 1 December 2015, to be reviewed annually. The applicant’s agent submitted that this salary was in line with Payscale market report information for Purchasing Managers, dated 8 November 2015, and the Tribunal accepts this based on that report.
While there is a discrepancy between the package offered to the nominee and the packages offered to the 2 employee Procurement Managers in Melbourne, the Tribunal is satisfied that the Melbourne positions have higher salary packages as the incumbents had many more years of experience than the nominee, and that the positions in the Melbourne location involve greater responsibility for staff supervision and sales and greater volumes of sales. The Tribunal is satisfied that the discrepancy does not indicate that the nominee is being inappropriately underpaid and it notes that the current contract provides for an annual salary review.
Having considered all the evidence, and under the circumstances, the Tribunal is satisfied that the terms and conditions applicable to the nominated position would be no less favourable than those that would be provided to an Australian citizen or permanent resident performing equivalent work in the same workplace at the same location (that is, Horsham, not Melbourne/Sunshine North).
Accordingly, the Tribunal finds that the requirements of r.5.19(4)(e) are met.
No adverse information known to Immigration: r.5.19(4)(f)
Regulation 5.19(4)(f) requires that there is no adverse information known to Immigration about the nominator or person ‘associated with’ the nominator; or it is reasonable to disregard any adverse information known to Immigration about the nominator or a person ‘associated with’ the nominator. For these purposes, ‘adverse information’ and ‘associated with’ have the meaning given in r.2.57 (2) and (3): r.5.19(7).
[2.57] (2) In this Part:
(a) a person (the associated person) is associated with a person that is a corporation if the associated person is an officer of the corporation, a related body corporate or an associated entity; and
(b) a person (the associated person) is associated with a person that is a partnership if the associated person is a partner of the partnership; and
(c) a person (the associated person) is associated with a person that is an unincorporated association if the associated person is a member of the association’s committee of management; and
(d) a person (the associated person) is associated with a person that is an entity not mentioned in paragraphs (a), (b) and (c) if the associated person is an officer of the entity.
[2.57] (3) In this Part, adverse information means any adverse information relevant to a person's suitability as an approved sponsor, and includes information that:
(a) the person, or a person associated with the person:
(i) has been found guilty by a court of an offence under a Commonwealth, State or Territory law; or
(ii) has, to the satisfaction of a competent authority, acted in contravention of a Commonwealth, State or Territory law; or
(iii) has been the subject of administrative action (including being issued with a warning), by a competent authority, for a possible contravention of a Commonwealth, State or Territory law; or
(iv) is under investigation, subject to disciplinary action or subject to legal proceedings in relation to an alleged contravention of a Commonwealth, State or Territory law; or
(v) has become insolvent within the meaning of subsections 5(2) and (3) of the Bankruptcy Act 1966 and section 95A of the Corporations Act 2001; and
(b) the law mentioned in subparagraphs (a)(i) to (iv) relates to one or more of the following matters:
(i) discrimination;
(ii) immigration;
(iii) industrial relations;
(iv) occupational health and safety;
(v) people smuggling and related offences;
(vi) slavery, sexual servitude and deceptive recruiting;
(vii) taxation;
(viii) terrorism;
(ix) trafficking in persons and debt bondage; and
(c) the conviction, finding of non-compliance, administrative action, investigation, legal proceedings or insolvency occurred within the previous 3 years.
The Tribunal has reviewed the Department’s records, including its Integrated Client Services Environment (ICSE) and has found nothing to indicate that there is any adverse information known to Immigration about the nominator or person associated with the nominator.
The Department’s records do, however, indicate that the applicant’s nominee was charged with driving a heavy vehicle in breach of mass limitation (severe risk) and fined $1,000 on 11 June 2014. The Tribunal has considered whether this falls within the scope of r.2.57(3) but is of the view that the nominee, as a mere employee of the applicant, is not an associated person within the meaning of r.2.57(2). Accordingly, while his conduct may affect his own visa application (which is the subject of a separate review by this Tribunal), it does not fall within r.5.19(4)(f).
Accordingly, the Tribunal is satisfied that the requirements of r.5.19(4)(f) are met.
Satisfactory compliance with workplace relations laws: r.5.19(4)(g)
Regulation 5.19(4)(g) requires that the applicant has a satisfactory record of compliance with the laws of the Commonwealth, and of each State or Territory in which the applicant operates a business and employs employees in the business, relating to workplace relations.
There is no evidence in the Department’s records, or otherwise before the Tribunal, suggesting that the applicant does not have a satisfactory record of compliance with Commonwealth and Victorian laws relating to workplace relations.
Accordingly, the Tribunal finds that the requirements of r.5.19(4)(g) are met.
Tasks of the position genuine need for the position and training benchmarks r.5.19(4)(h)
Regulation 5.19(4)(h) contains a number of alternative requirements. These are set out in detail in the attachment to the decision but can be briefly summarised as requiring either:
· the tasks to be performed in the position will be performed in Australia and correspond to those of an occupation specified by the Minister in the relevant legislative instrument, and certain specified training benchmarks will be met; or
· the position and nominator’s business is located in regional Australia, there is a genuine need for the paid position under the nominator’s direct control which cannot be filled by a locally resident Australian citizen or permanent resident, the tasks of the position correspond to those of an occupation at the ANZCO skill level 1, 2 or 3; and that a regional certifying body has advised the Minister about certain matters relating to the position.
The Tribunal is satisfied that the position and the nominator’s business are located in Horsham (postcode 3400), which is specified as being in regional Australia by the relevant written instrument, IMMI 13/049. Accordingly, the requirements of the second dot point above must be met by the applicant.
The applicant provided a copy of a Regional Certifying Body (RCB) advice dated 17 February 2014 from the Wimmera Development Association (one of the RCBs specified in IMMI 13/049) that:
·there was a need for a paid employee in the nominated position within the business activities of the nominated employer;
·the nominated position could not be filled by an Australian who was living in the same area; and
·the terms and conditions of employment were no less favourable than those that were or would be provided to an Australian employee performing equivalent work in the same workplace at the same location.
In addition, the applicant provided evidence of having advertised for a Procurement or Purchasing Manager on Seek.com on 25 October 2013. No evidence was provided to the Tribunal as to the number of responses (if any) and the reasons why any candidates applying were unsuitable for the position, apart from the nominee. However, a submission from the applicant’s agent dated 3 April 2014, on the Department’s file, indicates that 3 potential candidates were interviewed, with the nominee being considered the most suitable. Reference was also made to the difficulties of recruiting and retaining skilled staff in regional areas.
The position description provided to the Tribunal in July 2015 indicates that the position of Procurement Manager/Purchasing Manager is a full-time one located in Horsham, reporting to the General Manager in Melbourne. The required qualification was stated to be an undergraduate degree in a relevant discipline, and the skills required were listed as:
·intermediate level Microsoft office skills, including Word, Excel and Outlook;
·knowledge of the scrap metal industry (this was preferred but not essential);
·effective communication skills and willingness to travel;
·excellent time management, planning and organisational skills;
·able to work well under pressure;
·strong work ethic and ‘can do’ attitude; and
·proficiency in an Asian language (this was preferred but not essential).
The key responsibilities of the position were listed as follows:
·liaising with internal and external stakeholders to ensure positive results are achieved;
·monitoring suppliers to ensure best price and timely delivery of materials;
·obtaining and negotiating prices/quotes for equipment;
·liaising with stake holders on price differences/changes;
·maintaining accurate supplier details on intranet and public folder;
·overseeing the supply and delivery of goods;
·liaising with other managers on all inventory matters including cataloguing, additions and deletions and inventory rationalisation;
·identifying opportunities for best practice and continuous improvement and communicating these effectively with the team and the organisation;
·contributing to and implementing the organisation’s strategic purchasing/procurement plan in line with overall business performance goals;
·developing and implementing procurement procedures to achieve outcomes that meet these strategies;
·ensuring that, as far as practicable, employees’ workplace, together with work methods, systems and procedures are safe; and
·ensuring that safety procedures are understood and followed by the team, and that safety issues, incidents and potential hazards are identified and reported.
In addition, it is stated that the successful applicant should have the capacity to travel interstate and the ability to drive for periods in excess of 3 hours.
The purpose of the position is stated to be ‘to manage Manhari International Pty Ltd’s purchasing function to ensure that goods and services are procured according to specified quantity, quality and cost requirements, and delivered within given timeframes. The role will promote continuous improvement and the development of technology improvements to ensure a focus on best practice IT solutions in the provision of procurement. Strategically investigate best practice outcomes of procurement activities, and maintaining inventory levels that are effective and meet customer needs… Manhari Metal Pty Ltd (trading name: Manhari Metals) are buyers and recyclers of large quantities of ferrous and non-ferrous scrap metal including brass, aluminium, copper, heavy metal steel, cast iron and stainless steel. [The company exports] all types of ferrous and non-ferrous scrap metals mainly to India, Malaysia, Singapore, Pakistan, Thailand and the United Arab Emirates.’
The updated position description dated 10 November 2015 largely replicates the July 2015 one, but the roles and responsibilities have been modified slightly and are now listed as:
·responsible for buying different scrap metals for the company at the most competitive prices;
·identifying potential suppliers in Wimmera and surrounding region, visiting existing suppliers and building and maintaining good relationships with them;
·maintaining accurate supplier details on computer and monitoring supplies to ensure best price;
·liaise with stakeholders on price differences/changes and identify competitors’ prices;
·oversee the supply and delivery of goods on time;
·identify opportunities for best practice and continuous improvement and communicate these effectively with the team and organisation;
·develop and implement procure procedures to improve efficiency;
·ensure that, as far as it is practicable, employees’ workplace, together with work methods, system and procedures are safe; and
·ensure that safety procedures are understood and followed by the team, and that safety issues, incidents and potential hazards are identified and reported.
The Tribunal is satisfied that the most recent position description is largely consistent with earlier ones provided to the Department and Tribunal by the applicant’s agent on behalf of the applicant.
The Tribunal further notes that the position description for a Procurement Manager in the Australian and New Zealand Standard Classification of Occupation (ANZSCO) dictionary online is as follows:
UNIT GROUP 1336 SUPPLY, DISTRIBUTION AND PROCUREMENT MANAGERS

SUPPLY, DISTRIBUTION AND PROCUREMENT MANAGERS plan, organise, direct, control and coordinate the supply, storage and distribution of goods, products and services produced and used by organisations.
Indicative Skill Level:

In Australia and New Zealand:
Most occupations in this unit group have a level of skill commensurate with a bachelor degree or higher qualification. At least five years of relevant experience may substitute for the formal qualification. In some instances relevant experience and/or on-the-job training may be required in addition to the formal qualification (ANZSCO Skill Level 1).

Tasks Include:
·determining, implementing and monitoring purchasing, storage and distribution strategies, policies and plans
·preparing and implementing plans to maintain required stock levels at minimum cost
·negotiating contracts with suppliers to meet quality, cost and delivery requirements
·monitoring and reviewing storage and inventory systems to meet supply requirements and control stock levels
·operating recording systems to track all movements of supplies and finished goods, and ensuring re-ordering and re-stocking at optimal times
·liaising with other departments and customers concerning requirements for outward goods and associated forwarding transportation
·overseeing the recording of purchase, storage and distribution transactions
·directing staff activities and monitoring their performance
·provision of products and services to meet customer or client requirements

Occupation:
133611 Supply and Distribution Manager
133612 Procurement Manager
…

133612 PROCUREMENT MANAGER

Plans, organises, directs, controls and coordinates the procurement and purchasing of materials, products and services for an organisation.
Skill Level: 1
Alternative Title:
Purchasing Manager
At the hearing, Mr Gupta on behalf of the applicant gave additional evidence concerning these issues. He clarified that he established Manhari Metals Pty Ltd from scratch in Melbourne in 2007. In 2009, he bought an existing scrap metal yard in Horsham and took over the business from the original owners. It was a very good deal and, unlike Melbourne, there was little competition in the business in that area of regional Victoria. Although he retained some of the staff working there for the old owners, he formed the view over time that the person acting as the Procurement Manager and Officer Manager (combined) did not have a good work ethic and was making money on the side from various deals. He therefore terminated her employment in 2012. Mr Gupta said that he then covered the responsibilities of the position himself but was spending a lot of time in Horsham to do this to the detriment of the Melbourne business. He therefore advertised for a Procurement Manager in October 2013. He had no specific candidate in mind and had not consulted with existing staff, as that is not his policy. The nominee applied, along with several other candidates. At this time, the nominee was already working in the Horsham business as a driver and he simply responded to the advertisement.
Mr Gupta told the Tribunal that the nominee was referred to him in about May 2013 for a driving job, as one of the nominee’s friends worked in the Melbourne business. Mr Gupta gave the nominee a trial period of employment in Melbourne, under his observation. He was impressed and took him on and transferred him to the Horsham business. When the nominee applied for the Procurement Manager position, he had been driving for the Horsham business for about 6 months. Mr Gupta said that he had inquiries from several people, but for some, the fact the position was in Horsham was a disincentive. He said that he interviewed 2 other candidates besides the nominee, but one wanted a salary that was too high for the business to afford, while the other had only been with his current employer 18 months, which made Mr Gupta concerned about his likely long-term commitment to the applicant.
Mr Gupta said he employed the nominee because he was the best candidate, and he had proven himself to be an excellent employee since being appointed to the role. Mr Gupta stressed that he needed good, reliable, trustworthy people and that he rewarded loyalty if he found good employees. He stated that he had been able to relinquish much of the responsibility for the Horsham business due to the nominee taking over the Procurement Manager role, and that both the Melbourne and Horsham businesses had improved as a result. Mr Gupta said that the nominee has indicated he has a long term commitment to staying and he (Mr Gupta) was happy with this, as it would be very difficult to replace him and to do so would be disruptive to the business. Moreover, in country areas such as Horsham, continuity of contacts within a business and the ability of a person to get along well with people and retain loyal customers, is significant. The nominee has proven he has these skills.
Mr Gupta explained that he sets the prices and budget for the Procurement Managers on a monthly basis, and they have autonomy within this to make whatever purchases they see fit. They need to get clearance from him if there are out of the ordinary transactions. Mr Gupta said that the prices of various metals changes constantly and it is a demanding job to make a good profit. In the Melbourne business, they have greater turnover but a smaller profit margin. In Horsham, the reverse is true. Mr Gupta said that the nominee is very astute at pricing and operating within his budget. He needs to be on top of competitors’ prices and to offer customers (both new and existing) competitive prices. The nominee needs to be on the road for significant periods to be quoting and seeking customers to generate business, and must also liaise with Mr Gupta and the Horsham office manager. He manages quotes electronically and the applicant has a computer system whereby all transactions are logged and can be reviewed by Mr Gupta. Mr Gupta also noted that the nominee had on occasions been asked to do deliveries and so on when they were short-staffed and had demonstrated that he was willing to do whatever he could to help the business. He was a very hard worker, which is why Mr Gupta nominated him for permanent residence.

The Tribunal took evidence separately from the nominee, Mr Iqbal Singh, who gave consistent evidence with Mr Gupta concerning the circumstances in which he applied for, and was appointed to, the role of Procurement Manager for the applicant’s Horsham business. His evidence regarding his duties and responsibilities was consistent with both the most recent position description and with the earlier oral evidence of Mr Gupta.
Having had regard to all of the information before it, the Tribunal is satisfied that the applicant does have a genuine need to employ a paid employee in the position of Procurement Manager (ANZSCO code 133612) in its Horsham business.
The Tribunal is satisfied, from the RCB certification and the written and oral evidence from Mr Gupta, that the position cannot be filled by an Australian citizen or permanent resident living in the same area. Moreover, the Tribunal is satisfied that a specified RCB has also certified that the position and nominator’s business is located in regional Australia, and that there is a genuine need for the paid position under the nominator’s direct control.
The Tribunal is satisfied that the tasks of the nominated position correspond with those of a Procurement Manager, and that the relevant description in ANZSCO for the Unit Group 1336, within which the occupation falls, specifies that the indicative skill level is a bachelor degree or higher qualification (or at least 5 years of relevant experience, which may substitute for the formal qualification). In reaching this conclusion, the Tribunal is satisfied that the tasks of the nominated position involve a higher degree of responsibility and autonomy than those of the lower skill level occupation of Purchasing and Supply Logistics Clerks (ANZSCO Unit Group 5911).
Accordingly, the Tribunal is satisfied that the requirements of r.5.19(4)(h) are met.
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.
Alison Mercer

Member
ATTACHMENT - EXTRACTS FROM THE MIGRATION REGULATIONS 1994
5.19Approval 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 3696

19 November 2015

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Immigration

Administrative Law

Legal Concepts

Judicial Review

Statutory Construction

Procedural Fairness

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