1NAS Foods Pty Ltd (Migration)

1NAS Foods Pty Ltd (Migration) [2021] AATA 1151 (10 March 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  1NAS Foods Pty Ltd
CASE NUMBER:  1804161
HOME AFFAIRS REFERENCE(S):          BCC2016/3619255
MEMBER:Andrew George
DATE:10 March 2021
PLACE OF DECISION:  Darwin
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Statement made on 10 March 2021 at 9:59pm

CATCHWORDS
MIGRATION – nomination of a position – Direct Entry Nomination stream – position of Retail Manager (General) – tasks of the position correspond to the specified occupation – demonstrated need for the employment – regional certifying body advice – terms and conditions of employment – position cannot be filled by an Australian citizen – actively and lawfully operating a business in Australia – decision under review set aside
LEGISLATION
Migration Act 1958, s 245
Migration Regulations 1994, rr 1.13, 5.37, 5.19

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 Home Affairs on 6 February 2018 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 31 October 2016. 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 stream (r.5.19(3)) and a Direct Entry nomination stream (r.5.19(4)). 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 the Direct Entry nomination stream. The nominee is Mr Simranjeet Singh. The proposed occupation is Retail Manager (General) – 142111.
The delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19(4)(h)(ii) of the Regulations. The delegate found:[1]
On assessment of the information submitted, it has not been demonstrated that the tasks to be performed in the position correspond to the tasks of an occupation specified by the Minister in an instrument in writing for sub-paragraph 5.19(4)(h)(ii));
[1] Notice of Decision/4.
Materially, the delegate also found:[2]
The nominator has provided a copy of a regional certifying body (RCB) advice that, amongst other things, indicates that there is a need for a paid employee in the nominated position. I have taken the advice into account. However, I have considered all of the evidence submitted and have formed a view about whether the tasks of the position correspond to those of an occupation specified in the relevant instrument.
[2] ibid/6.
This matter was heard by MS Teams on 21 January 2021 as a combined hearing with the related visa application in Case Number 1807435. The Tribunal received evidence from Mr Ali Syed, a Director of the applicant company, and the nominee.
The applicant was represented by Mr Walker of Active Migration Australia. Prior to the hearing, and in compliance with the practice directions, the Mr Walker submitted a hearing bundle and outlines of evidence from the witnesses.
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, where applicable, 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.
The Tribunal has before it a copy of the application submitted on 31 October 2016 at 13:25pm. This application was made on the approved form and accompanied by the fee prescribed in r.5.37. It also includes a written certification that the applicant has not engaged in conduct in relation to the nomination that constitutes a contravention of s.245AR(1) of the Act.[3]
[3] Application/7-8.
The application was accompanied by a Form 1404 Regional Sponsored Migration Scheme – Regional Certifying Body advice dated 12 October 2016.[4] The regional certifying body is the State of Western of Australia through Skilled Migration WA in the Department of Training and Workforce Development. In that advice, the authorised representative declared that the nomination satisfies the following requirements:
As a body approved by the Minister for Immigration and Border Protection (in an instrument in writing) for the purposes of regulation 5.19 (4) I have assessed the nomination referred to in this document against the following requirements:
• there is a need for a paid employee in the nominated position within the business activities of the nominating employer;
• the nominated position cannot be filled by an Australian citizen or Australian permanent resident who is living in the same local area as the nominated position; and
• the terms and conditions of employment that are applicable to the nominated position will be no less favourable than the terms and conditions that are or would be provided to an Australian citizen or Australian permanent resident for performing equivalent work in the same workplace at the same location.
[4] Hearing Bundle/20-21.
The Tribunal notes that the delegate took this advice into account in formulating its decision. However, the Tribunal’s concern is that insufficient weight was placed on this document. The Form 1404 constitutes formal advice from the Crown in right of the State of Western Australia to the Crown in right of the Commonwealth of Australia. Significant weight should be placed on this document unless direct evidence contradicting its accuracy can be found. The Tribunal is unaware of any such contradictory material. Any lack of material positively corroborating the Form 1404 are insufficient grounds to diminish the weight that should properly be placed on it when provided by a source as authoritative as a State of the Commonwealth of Australia. Accordingly, the Tribunal is satisfied of the following:
a.there is a need for a paid employee in the nominated position within the business activities of the nominating employer;
b.the nominated position cannot be filled by an Australian citizen or Australian permanent resident who is living in the same local area as the nominated position; and
c.the terms and conditions of employment that are applicable to the nominated position will be no less favourable than the terms and conditions that are or would be provided to an Australian citizen or Australian permanent resident for performing equivalent work in the same workplace at the same location.
Furthermore, the Tribunal accepts Mr Syed’s letter of 16 September 2016 stating that the position of Retail Manager reports directly to him as a Director of the applicant company.
Accordingly, the requirement in r.5.19(4)(a) is met.
Nominator is actively and lawfully operating a business in Australia: r.5.19(4)(b)
Regulation 5.19(4)(b) requires that the applicant is actively, lawfully and directly operating a business in Australia.
The Tribunal notes that, for a period, the applicant’s business registration lapsed. This was addressed by Mr Syed in his outline of evidence. It may have been fatal to the nomination had the applicant not applied for reinstatement from the Australian Securities & Investment Commission.[5] As at the date of the decision, the applicant is actively and lawfully and directly operating a business in Australia.[6] Accordingly, the requirement in r.5.19(4)(b) is met.
[5] ibid/1-7; email from AAT to Mr Walker of 14 October 2020 14:56pm.
[6] ibid/8.
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. As there is no evidence before the Tribunal that the nominator is involved in labour hire activities, 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 two years full time, and the terms and conditions of that employment do not expressly exclude the possibility of an extension.
The Tribunal has before it the applicant’s contract of employment dated 19 August 2020.[7] This contract is largely a repetition of a previous contract dated 16 September 2016. Both documents contain the following clause:
[7] ibid/9-11.
Commencement Date
This contract will commence on the date of the grant of your 187 permanent resident visa and will continue for two (2) years and beyond.
The flaw in these contracts is that Mr Singh’s evidence is that he is presently an employee. Nevertheless, on the evidence before it, the Tribunal is satisfied that Mr Singh has been an employee since 16 September 2016 except for a period during 2019 and 2020 when the applicant business was deregistered. An extension of employment beyond two years has not been expressly excluded. Accordingly, the requirement in r.5.19(4)(d) is met.
No less favourable terms and conditions 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 that no Australian employees in the applicant’s workplace do the same work as the nominated person.[8]
[8] Application/4.
The Tribunal accepts that the nominee’s salary is $52,000 per annum,[9] which is slightly higher that the figure of $51,766 prescribed by the General Retail Industry Award [MA000004].[10]
[9] Hearing Bundle/9.
[10] ibid/14.
Noting paragraph [13(c)] above, and on the evidence before it, the Tribunal is satisfied that the nominee’s terms and conditions of employment are 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.
Accordingly, 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 such information. For these purposes, ‘adverse information’ and ‘associated with’ have the meaning given in rr.1.13A and 1.13B.
There is no evidence before the Tribunal of adverse information that is known to the Department about the nominator or a person ‘associated with’ the nominator. Accordingly, 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 before the Tribunal of any breach of any workplace law by the applicant. Accordingly, the Tribunal is satisfied that the requirements of r.5.19(4)(g) are met.
Tasks of the position, genuine need for the position: r.5.19(4)(h)
Regulation 5.19(4)(h) contains alternative requirements. These are set out in detail in the attachment to the decision.
The Tribunal notes its findings in paragraphs [13(a)-(c)] and [14] above and is satisfied that:
a.the position and business is located in ‘regional Australia’ and a Regional Certifying Body, namely the State of Western Australia, has advised the Minister about the matters in r.5.19(4)(e) and r.5.19(4)(h)(ii)(B) & (C);
b.the position cannot be filled by an Australian citizen or permanent resident who is living in the same local area; and
c.there is a genuine need to employ a paid employee to work in the position under the nominator’s direct control.
The Tribunal notes that the delegate was “… of the view that the predominant tasks of the position are not those of an ANZSCO Skill Level 2 Retail Manager, rather they are more closely aligned with those of an ANZSCO Skill Level 4 retail supervisory position”.[11] There is some strength to the delegate’s reasoning although the distinction is, in practice, a fine one.
[11] Notice of Decision/9.
The Tribunal has the benefit of direct evidence from the nominee that addresses the tasks listed in ANZSCO. The Tribunal accepts the contents of the outline of evidence from the nominee in this regard. This is not material that was before the delegate.
The Tribunal notes that the nominee has a Diploma of Business from the Technical College of Western Australia dated 10 February 2012. This qualification is consistent with a Skill Level 2 position, such as Retail Manager. Noting the weight the Tribunal places on the advice from the State of Western Australia as a Regional Certifying Body, the Tribunal accepts that the tasks to be performed in the position correspond to the tasks of an Retail Manager (General) – 142111.
Accordingly, 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.
Andrew George
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
(aa) include a written certification by the nominator stating whether or not the nominator has engaged in conduct, in relation to the nomination, that constitutes a contravention of subsection 245AR(1) of the Act; 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;
(AAA)the occupation is applicable to the person identified under subparagraph (a)(ii) in accordance with the specification of the occupation;
(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 specified by the Minister in an instrument in writing for this sub-subparagraph;
(DA)the occupation is applicable to the person identified under subparagraph (a)(ii) in accordance with the specification of the occupation;
(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).

[2021] AATA 1151

10 March 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Statutory Construction

Procedural Fairness

Jurisdiction

Remedies