1514898 (Migration)

[2016] AATA 4286

1514898 (Migration) [2016] AATA 4286 (25 August 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  FORCE 3 Pty Ltd

CASE NUMBER:  1514898

DIBP REFERENCE(S):  BCC2015/1448731

MEMBER:Steve Georgiadis

DATE:25 August 2016

PLACE OF DECISION:  Adelaide

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

Statement made on 25 August 2016 at 9:27am

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 23 October 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 20 May 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 the Direct Entry Nomination stream.

4. The delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19(4)(h) of the Regulations. The delegate considered the tasks to be performed in the nominated position of Retail Manager ANZSCO 142111 within the nominating business do not correspond to the tasks of an occupation at ANZSCO skill level 1, 2 or 3 and therefore did not meet r.5.19(4)(h)(ii)(D) or r.5.19(4)(h)(i).

5. Director, Shabbir Mithaiwalla appeared on behalf of the applicant before the Tribunal on 17 August 2016 to give evidence and present arguments. The Tribunal also received oral evidence from the nominee for the position, Mr Mohit Chopra.

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.

   The application is compliant: r.5.19(4)(a)

9. 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 in circumstances where the application is made from 14 December 2015 (not here on the facts), must include the required written certification relating to conduct that contravenes s.245AR(1). The application must also identify a need for the nominator to employ a paid employee to work in the position under their direct control.

10. The application was made using e-lodgement on the appropriate form and no fee is payable.

11. The applicant presented a contract of employment to the nominee dated 10 May 2015 for a period of two years with the option of extension beyond two years. The nominee accepted the offer and both parties executed the contract on 15 June 2015. The visa application was lodged on 20 May 2015 at which time the employment contract offer had not been withdrawn.

12. The Tribunal finds that at the time of application for approval of the nomination of 20 May 2015 the nominee had been offered the position of Retail Store Manager at the Allphones Ellenbrook site. The Tribunal further finds from the wording of the Gumtree job advertisement for this role produced as part of the applicant’s further written submissions dated 24 August 2016 that the advertisement was listed on 18 April 2015 some weeks after the employment contract had already been offered to the nominee.

13. The oral evidence before the Tribunal, confirmed by both the nominee and the applicant when asked, is that another of the applicant’s employees Mr Bahtia, was at that time, working full time in the position of Retail Store Manager at the Ellenbrook store. The oral and other available evidence accepted by the Tribunal is that Mr Bahtia is an Australian permanent resident. The available payslips and submissions show that Mr Bahtia had commenced work with the applicant on 19 November 2014.

14. The Tribunal accepts from the nominee’s oral evidence that he was appointed full time to the role of Retail Store Manager at Ellenbrook in “September or October 2015.”  The nominee confirmed at the hearing that prior to that he had been working for the applicant in a different capacity including on a part-time or casual basis. All this was confirmed by the applicant at the hearing. The Tribunal accepts that Mr Bahtia occupied the nominated position immediately before the nominee, Mr Chopra, took up that role full-time from September or October 2015. 

15. From the above evidence the Tribunal considers the applicant has not identified a need for the nominator to employ a paid employee to work in the position under the nominator’s direct control at the time the visa application was lodged on 20 May 2015 or even for a considerable time after that so as to satisfy 5.19(4)(a)(ii).  Indeed, Mr Bahtia stayed on with the applicant at the Ellenbrook site for a period of several further months in the role of Retail Store Manager before being transferred to one of the applicant’s other Allphones stores as a Retail Store Manager.

16. Having considered the available evidence before it, the Tribunal is satisfied that there was no need for the nominator to employ a paid employee to work in the position under the nominator’s direct control because the position was already filled by Mr Bahtia.

17. Accordingly, the requirement in r.5.19(4)(a) is not met.

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

18. 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 a relevant legislative instrument for Business Visas, 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 (RCB) has advised the Minister about certain matters relating to the position.

19. As stated earlier, the nomination was made under the RSMS Direct Entry stream and the Tribunal has proceeded to assess the application against the criteria in r.5.19(4)(h)(ii) which requires a consideration of whether all of the following are satisfied:

    ·the position and business is located in ‘regional Australia’;

    ·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).

20. The Tribunal accepts that the primary office of the applicant’s business is located in Western Australia which for the purposes of this review satisfies the requirement of location in ‘regional Australia’ (here being the whole of the State of Western Australia) but notes that one of the franchised stores is located in the Northern Territory.

21. The Tribunal notes the certification by the Regional Certifying Body, Skilled Migration WA, dated 16 September 2015 advising about the matters in r.5.19(4)(e) and r.5.19(4)(h)(ii)(B) & (C). The Tribunal has had the benefit of hearing oral evidence and receiving the supplementary material provided by the applicant following the hearing relating to particulars of advertising the position, summary of responses to the advertisement and other matters. The Tribunal places weight on and prefers the applicant’s spontaneous oral evidence given at the hearing that he received applications from local Australian citizens and permanent residents for the nominated role, including an engineer, a chartered accountant and a medical doctor. The applicant explained to the Tribunal that he deemed those applicants ‘not suitable’ for the role as they would likely move on to other work, given their qualifications notwithstanding that they were prepared to lodge their respective job applications. The Tribunal observed at the hearing that maintaining records of financial transactions and undertaking budgeting for the business was part of the role outlined by the nominee and that these are set out in the job tasks listed in ANZSCO 142111 for a Retail Manager. The Tribunal considers that the job application from a chartered accountant relates to relevant knowledge and skills of “a business background” for the nominated role as set out in the job advertisement provided to the Tribunal in the supplementary written submissions under cover e-mail of 24 August 2016. The written submissions, in response, do not refer to a chartered accountant but merely state “The 1 Australian that applied was not qualified for the position...” Further, the Tribunal notes that the nominee has a qualification of Bachelor of Commerce degree from India.

22. The Tribunal has carefully considered the job advertisement provided by the applicant. The Tribunal accepts from the wording of the job advertisement placed on 18 April 2015 that “previous experience working in a mobile phone store will be advantageous” but this is not listed as being essential for the role. There is also evidence of relevant training provided by the applicant in the past to others who had since left the store or had been ‘poached by competitors’.

23. The applicant explained to the Tribunal that he preferred the nominee for the role as he had already been working for him for quite a while and was satisfied with his performance adding that he was good at his job. The Tribunal considers that the nominee’s performance in the role is not the relevant legal test nor is it simply a matter of preference over other suitably qualified applicants. The criterion 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 the work.

24. The advertising undertaken by the applicant from 18 April 2015 reflects the circumstances for filling the nominated role at that time. When the nominee actually took up the position of Retail Store Manager several months later, in September or October 2015 (once Mr Bahtia had been transferred to another store), there is no evidence to satisfy the Tribunal that the position cannot be filled by an Australian citizen or an Australian permanent resident who is living in the same local area as the work. Indeed the person who occupied the position at the time of application and at the time of advertising and for some months thereafter was an Australian permanent resident who, as aforementioned, continued in the employ of the applicant in Western Australia as a Retail Store Manager. In these circumstances, the Tribunal considers that the requirements of r.5.19(4)(h)(ii)(C) are not met.

25. For the same reasons as set out under the heading above for r.5.19(4)(a) already discussed, the Tribunal finds that the applicant has not established that there is a genuine need to employ a paid employee to work in the position under the nominator’s direct control as the role was already filled. Therefore, the applicant does not satisfy r.5.19(4)(h)(ii)(B).

26. Accordingly, the requirements in r.5.19(4)(h) are not met.

27. 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

28. 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).