1511117 (Migration)

[2016] AATA 3799

1511117 (Migration) [2016] AATA 3799 (22 April 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Five Stones Pty Ltd

CASE NUMBER:  1511117

DIBP REFERENCE(S):  BCC2015/527190

MEMBER:Carolyn Wilson

DATE:22 April 2016

PLACE OF DECISION:  Adelaide

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

Statement made on 22 April 2016 at 3:06pm

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 3 August 2015 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 17 February 2015. 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 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)(D) of the Regulations because the tasks of the position did not correspond to the tasks of an occupation at ANZSCO skill level 1, 2, or 3.

5. The applicant, represented by the directors Ms Seow and Mr Liew, appeared before the Tribunal on 6 April 2016 to give evidence and present arguments. The Tribunal also received oral evidence from the nominated visa applicant Ms Jhoanna Odero. 

6. The applicant was represented in relation to the review by its registered migration agent.

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:

   ·the tasks to be performed in the position will be performed in Australia and correspond to those of an occupation specified by the Minister 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 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 position was nominated under the Regional Sponsored Migration Scheme, and therefore the applicant must meet the second set of these requirements.

11. The nominated position is for a Retail Manager at the Marmion Post and Newsagency.  To date that position has been filled by the owners of the business, Albert Liew and Esther Seow.   The nominated visa applicant has worked at the newsagency since before to the current owners took over the business in 2013.  She was the niece of the previous owner.

12. Of concern to the Tribunal is that despite the applicant nominating the need for a Retail Manger in February 2015, to date they have not employed the visa applicant, or anyone else, in that position.  Even more concerning is that the visa applicant has only been employed for only 20 or 30 hours a week on a casual basis. 

13. The applicant claims they cannot install the visa applicant in the position until it the visa is granted. They say it is too onerous to notify Australia Post that there has been a change in Manager, and will only do so once it is known if the visa applicant can remain.  The Tribunal does not accept this submission. The Tribunal considers the nomination and application for review processes are quite onerous, yet the applicant has managed to put the time and effort in to that.  When asked to describe what was required in notifying Australia Post they said it required them to write a letter.  The Tribunal does not consider this an onerous task. The applicant later clarified the visa applicant would need AUSTRAC and Police checks, but would also require a substantive visa before Australia Post would accept her as the Postal Manager.  No evidence of this was provided, however the Tribunal considers this is plausible.

14. The Tribunal notes the business has three main areas:   the post office, the lottery sales, and the general sales of a newsagency.  Even accepting the visa applicant would not be authorised without a substantive visa in the position of Postal Manager, the applicant could still manage the general running of the newsagency.  However, she has not done so to date, and as noted above, has not worked more than 20 to 30 hours a week.

15. The Tribunal acknowledges the applicant’s claim that they will install the visa applicant in the position of Retail Manager once the visa is approved.  They intend then to focus on other businesses, which includes business interests in Kuala Lumpur where they travel to frequently.  

16. The position of Retail Manager is described in ANZSCO as someone who ‘organises and controls the operations of establishments which provided retail services’. The Tribunal notes this position is currently held by the Ms Seow and Mr Liew, and considers the owners will continue their active hands-on role in the shop.  That is, they will continue to organise and control the operations of the business. The Tribunal notes in the employment contract the position is stated as one that reports to the directors.  In the job description her duties require her to ‘be able to open and close the shop in the absence of the owners’. If the position was genuinely that of Retail Manager this is a duty she would do daily, not just in the absence of the owners.

17. The Tribunal finds the nominated position is one that reports to and works under the owners direction, and that it is the owners who will maintain an active role in managing the business.   The Tribunal finds the position is more akin to a second-in-charge or duty manager, and may only step up as Retail Manager when the owners travel.  Also, given the history of the applicant not employing the visa applicant full-time, the Tribunal is not satisfied the position will provide full-time hours on a consistent basis. 

18. The Tribunal is not satisfied the applicant has demonstrated a genuine need for a full-time Retail Manager. The Tribunal finds the applicant does not meet r.5.19(4)(h)(ii)(B).

19. Accordingly the requirements of r.5.19(4)(h) are not met.

20. 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 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

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

    Carolyn Wilson
    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).