1500265 (Migration)

[2016] AATA 3705

1500265 (Migration) [2016] AATA 3705 (10 April 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Tonic Enterprises Pty Ltd

CASE NUMBER:  1500265

DIBP REFERENCE(S):  BCC2014/1811292

MEMBER:Steve Georgiadis

DATE:10 April 2016

PLACE OF DECISION:  Adelaide

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

Statement made on 10 April 2016 at 4:40pm

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 18 December 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).

2. The applicant applied for approval on 24 July 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).

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) of the Regulations as the delegate was not satisfied: that there was a genuine need for a Licenced Club Manager r.5.19(4)(a); that the salary offered was at market rate, i.e. 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 r.5.19(4)(e); that the nominated position of Licensed Club Manager (ANZSCO 141411) cannot be filled by an Australian citizen of permanent resident who is living at the same local area as that place of work, in the suburb of Subiaco, Perth, Western Australia, r.5.19(4)(h)(ii)(C). A copy of the delegate’s decision was provided with the review application.

5. Directors, Mr Umberto Mondello and Mr Damian Wilson appeared before the Tribunal on behalf of the applicant, by videoconference on 17 September 2015 to give evidence and present arguments. The Tribunal also received oral evidence from the nominee for the position, Mr Navish Obhoyram, who is the visa applicant in the related case-file matter number 1502234.  The related matters were heard together. 

6. The applicant was represented in relation to the review by its registered migration agent. Mr Obhoyram had his own representative who was also present at the hearing.

7. For the following reasons, the Tribunal has decided to affirm the decision under review to refuse the nomination.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. 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.

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

9. 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:

   ·r.5.19(4)(h)(i) - 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

   ·r.5.19(4)(h)(ii) - 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 ANZSCO skill level 1, 2 or 3; and that a regional certifying body has advised the Minister about certain matters relating to the position.

10. The applicant’s submission, which the Tribunal accepts, is that r.5.19(4)(h)(i) with respect to an occupation specified by the Minister in a legislative instrument and certain specified training benchmarks, is not applicable in this case. Accordingly, the Tribunal has considered the criteria required under r.5.19(4)(h)(ii) in the alternative, and whether all of the following apply:

    ·the position and business is located in ‘regional Australia’ as per the relevant IMMI instrument ‘Register of Instruments - Business visas’);

    ·there is a genuine need to employ a paid employee to work in the position under the nominator’s direct control;

    ·the position cannot be filled by an Australian citizen or permanent resident who is living in the same local area;

    ·the tasks to be performed in the position correspond to those at ANZSCO skill level 1, 2 or 3;

    ·a Regional Certifying Body located in the same State or Territory as the position has advised the Minister about the matters in r.5.19(4)(e) and r.5.19(4)(h)(ii)(B) & (C).

11. In respect of r.5.19(4)(h)(ii), one of the criteria to be satisfied is that the position cannot be filled by an Australian citizen or permanent resident who is living in the same local area as that place - r.5.19(4)(h)(ii)(C).

12. The Tribunal accepts from the oral evidence provided at the hearing and the available documentary evidence from the application, that the nominated position is located at the intersection of Hay Street and Rokeby Road Subiaco, 6008 in metropolitan Perth, Western Australia and that it names Mr Navish Obhoyram as the nominee for the position of Licensed Club Manager (ANZSCO 141411).  The Tribunal accepts from this that the nominated position is located in ‘regional’ Australia, as defined by the relevant IMMI instrument, as this covers the whole of the state of Western Australia.

13. The Tribunal raised at the hearing the issue of whether the position cannot be filled by an Australian citizen or permanent resident who is living in the same local area as that place of work.  The applicant’s response at the hearing was that the position was advertised on the Internet, on Seek.com and that there were 5 respondents to the job advertisement.  At the hearing the directors of the company were not sure when the advertisement had been placed and sought additional time to provide relevant information in respect of this issue. It appeared the advertisement had been placed on Seek.com on 6 May 2014 in circumstances where Mr Obhoyram had been undertaking the role of the nominated position since October 2013. The Tribunal allowed additional time and following the hearing, the applicant made further written submissions under cover e-mail of 17 September 2015, which have been considered together with the previous material provided to the Tribunal and the Department.

14. The Tribunal notes the letter of 19 May 2014 referred to in the delegate’s decision and by the applicant at the hearing, which had been sent to the Regional Certifying Body (RCB), Skilled Migration WA. The letter refers to advertising of the position on Seek.com on 6 May 2014 and that the applicant “could not find any local suitable qualified person to fill this position.” In support of this, the applicant provided details in written submissions under cover letter of 11 September 2015 which summarised the reasons why ‘during the period after the advertisement was placed on Seek.com [the] 5 responses [that] were received’ had been unsuccessful. The reasons include: not having any hospitality work experience, low level hospitality qualifications, location outside of Western Australia, no experience with the ‘Perth hospitality scene’, insufficient experience at the ‘required level’, not having ‘the personality we require’ and not holding an Unrestricted Approved Manager certification.  The applicant submits in summary that it ‘did not find someone with the experience, personality and local knowledge of the incumbent.’  The relevant test however, is not one of comparison to the incumbent.  The submissions do not stipulate whether there were other local applicants who were suitable but excluded, only that the nominee incumbent was preferred in comparison by reference to his experience, personality and local knowledge. The Tribunal notes that there were 22 applications (listed) made in response to the Seek.com advertisement as set out in the ‘Expired’ advertisement created on 6 March 2014 provided by the applicant. This is inconsistent with the written submissions above of 11 September 2015 that ‘5 responses were received’ after the advertising was placed. There is also no information whether these were local Australian citizens or permanent residents. When the Directors were questioned at the hearing about advertising of the position and the applicants, their response was that they did not know about this because they were not ‘hands on’. They could not confirm at the hearing that there were no suitable locally resident Australian citizens or permanent residents for the nominated role.

15. The Tribunal notes that the nominee, Mr Obhoyram, is the incumbent venue Manager. The evidence before the Tribunal is that he started working at the Purl Bar and Restaurant in March 2011 (prior to the purchase of the business by the applicant), initially as a Bartender, then as Bar Manager in March 2013, and then was promoted to Licensed Club Manager in October 2013.

16. At the hearing, the Tribunal carefully probed the nominee’s work history in the business. The oral evidence from Mr Obhoyram is that he held discussions with the applicant’s Directors approximately at the end of his three month probationary period after he was first engaged as Licensed Club Manager in October 2013.  The Tribunal accepts that oral evidence that these discussions took place in approximately January 2014 (being three months after the October 2013 promotion) and places weight on this evidence.  Mr Obhoyram’s evidence is that he was provided with expectations relating to his full-time duties as Licensed Club Manager, feed-back in areas for improvement and a discussion of his good qualities. The Tribunal accepts Mr Obhoyram’s oral evidence that at the end of these discussions he was told he would be retained for a period of ‘at least two years’ and that subject to satisfactory work performance, he would be retained on an ongoing basis with no express exclusion of the possibility of extending the period of employment.  The Tribunal accepts Mr Obhoyram’s oral evidence that he then continued in his role of Licensed Club Manager immediately following these discussions without interruption. 

17. The Tribunal accepts that a short while after these discussions Mr Obhoyram was presented with an Offer of Employment by the applicant for the full-time position of Approved Licence Venue Manager with a commencement date of 12 March 2014 for at least two years.  This is consistent with the evidence of the discussions described above held in January 2014. The documents before the Tribunal include the employment contract signed by Obhoyram on 29 April 2014. When the Tribunal noted the date, Mr Obhoyram said there was a slight delay finalising the contract because of the availability of the Directors, who would often travel.

18. The Tribunal finds from this evidence discussed, that Mr Obhoyram has occupied the position of Licensed Club Manager since October 2013.  The Tribunal accepts that his ongoing employment was confirmed by the applicant, as new owners of the business, in January 2014 in the aforementioned discussions. The Tribunal accepts that this occurred at the end of Mr Obhoyram’s probationary period in January 2014, after the applicant’s purchase of the business, at a time when Mr Obhoyram had already been working in the business for some time including as the Licensed Club Manager since October 2013.

19. The Tribunal notes the statutory declaration made by the applicant’s registered migration agent of 17 September 2015 (following the hearing) that a typographical error was made in the document that was provided to the applicant to be submitted to the Regional Certifying Body, Skilled Migration WA. The date of the advertisement for the nominated position was stated as being made on 6 May 2014 whereas it was actually advertised on 6 March 2014. The Tribunal considers that the certification by the RBC is therefore unreliable, as it was predicated on incorrect information provided to it for the purpose of the certification under r.5.19(4)(h)(ii). This includes that the position cannot be filled by an Australian citizen or permanent resident who is living in the same local area (r.5.19(4)(h)(ii)(C)) and the other matters in r.5.19(4)(e) and r.5.19(4)(h)(ii)(B).

20. The Tribunal accepts the available evidence that the job advertisement for the position was made in the way described above, on 6 March 2014. As aforementioned, the Tribunal has had regard to the Offer of Employment between the applicant and the nominee stating a commencement date for two years from 12 March 2014 for the position of Licensed Club Manager. The Tribunal finds that the position was filled and had already been committed to Mr Obhoyram in January 2014, when the applicant was in March 2014, purportedly advertising to find a suitable local Australian citizen or permanent resident to fill the position. The Tribunal places weight on the oral evidence of the discussions held at the end of Mr Obhoyram’s three month probation in January 2014 when ongoing employment had been confirmed, at then later formalised with the nominee by the signed employment document of 29 April 2014 in the context that the advertising was being undertaken. The Tribunal is not persuaded that the applicant has established that the position cannot be filled by an Australian citizen or permanent resident who is living in the same local area as that place - as required under r.5.19(4)(h)(ii)(C).

21. The Tribunal therefore, finds the requirements of r.5.19(4)(h)(ii) are not met.

22. Accordingly, neither r.5.19(4)(h)(i) applies, nor are the requirements of r.5.19(4)(h)(ii) met.

23. 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

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

    Steve Georgiadis
    Member

    
    

    ATTACHMENT - Extracts from the Migration Regulations 1994

    5.19Approval of nominated positions (employer nomination)

    …

    (2)The application must:

    (a)be made in accordance with approved form 1395…; and

    (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).