Air Voice Group PTY LTD (Migration) - [2023] AATA 2077

Air Voice Group PTY LTD (Migration) [2023] AATA 2077 (3 July 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Air Voice Group PTY LTD
REPRESENTATIVE:  Mr Mark Glazbrook (MARN: 0100185)
CASE NUMBER:  1927745
HOME AFFAIRS REFERENCE(S):          BCC2018/940737
MEMBER:Karen McNamara
DATE:3 July 2023
PLACE OF DECISION:  Sydney
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Statement made on 03 July 2023 at 9:31am
CATCHWORDS
MIGRATION – application for approval of nomination of position – direct entry stream – retail manager – genuine need to employ nominee and tasks of position – directors reliant on autonomous management of each store – comparison of tasks and ANZSCO description – location of position in regional area just outside metropolitan area – nominee transferred from metropolitan store – nominee’s qualifications, experience and employment history with applicant – comprehensive, consistent and credible evidence from director and nominee – decision under review set aside
LEGISLATION
Migration Regulations 1994 (Cth), r 5.19(4)(h)(i)(D)
CASES
Cargo First Pty Ltd v MIBP [2015] FCCA 2091
Kartar Investments Pty Ltd v MICMSMA [2020] FCCA 5
Vishvam Pty Ltd ATF Vishvam Unit Trust v MICMSMA [2021] FCCA 758
Harinsco Pty Ltd v MICMSMA [2021] FCCA 528
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 12 September 2019 to reject the application by Air Voice Group Pty Ltd (the applicant) for approval of the nomination of a position in Australia under reg 5.19 of the Migration Regulations 1994 (Cth) (the Regulations).
The applicant operates numerous Vodafone dealerships predominately located in Western Australia, South Australia and New South Wales. In conjunction with a separate entity operated by the Directors (Air Voice International Group Pty Ltd) the entities are the largest independent Vodafone dealerships in Australia operating approximately 40 stores. Evidence before the Tribunal shows additional business interests distinct to the nominating entity, include IGA supermarkets and property development. ASIC records show the nominating entity was registered on 9 January 2014.
On 27 February 2018, the applicant lodged an application for an employer nomination approval under the Regional Sponsored Migration Direct Entry stream for the position of Retail Store Manager under the occupation of Retail Manager (General) (ANZSCO 142111). The nominated guaranteed annual earnings are $55,000. The application identified Mr Ajay Sharma.
The requirements for the approval of the nomination of a position in Australia are found in reg 5.19 of the Regulations which contains two alternative streams: a Temporary Residence Transition nomination stream (reg 5.19(3)) and a Direct Entry nomination stream (reg 5.19(4)). If the application is made in accordance with reg 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: reg 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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Air Voice Group PTY LTD (Migration)

Details

AGLC: Air Voice Group PTY LTD (Migration) [2023] AATA 2077
Case: [2023] AATA 2077
Decision Date: 3 July 2023

CaseChat Overview and Summary

This matter concerned an application by Air Voice Group Pty Ltd for approval of a nominated position under the Direct Entry stream. The applicant sought to nominate an individual for the position of Retail Manager. The core dispute revolved around whether the applicant had demonstrated a genuine need to employ the nominee and whether the tasks of the nominated position aligned with the relevant ANZSCO description. The decision was made by Karen McNamara, Member of the Tribunal.

The Tribunal was required to determine if the applicant met all the requirements for approval of the nomination under regulation 5.19(4) of the Migration Regulations 1994. Specifically, the Tribunal had to consider whether the application was compliant, if the nominator was actively and lawfully operating a business in Australia, if there was any adverse information known to Immigration, and if the nominator had a satisfactory record of compliance with workplace relations laws. Crucially, the Tribunal also had to assess whether the tasks of the position were genuine, corresponded to an applicable occupation, and if there was a genuine need for the nominee's employment, particularly in light of the position being located in a regional area.

The Tribunal's reasoning focused on the evidence presented, including oral testimony and written submissions. It was satisfied that the application met the formal requirements of regulation 5.19(4)(a), including identifying a genuine need for the nominator to employ the nominee under their direct control, with directors relying on autonomous store management. The Tribunal found that the applicant was actively and lawfully operating its Vodafone dealerships, satisfying regulation 5.19(4)(b). Furthermore, no adverse information was known to Immigration, and the applicant had a satisfactory record of workplace relations compliance, meeting regulations 5.19(4)(f) and (g) respectively. The Tribunal applied the criteria under regulation 5.19(4)(h)(ii), finding that the position in Mandurah, Western Australia, qualified as regional Australia. The Tribunal was satisfied that the evidence, including the nominee's qualifications and employment history with the applicant, demonstrated a genuine need for their employment in the nominated role.

Consequently, the Tribunal set aside the original decision under review and substituted a decision approving the nomination.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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 reg 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: reg 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 an identified person as a paid employee to work in the position under their direct control. Based on the material in the Department’s file, the Tribunal is satisfied that the application was made on the approved form. As the position is located in regional Australia, no fee is payable (r5.37(2)(a)). The application also included written certification relating to conduct that contravenes s.245AR(1) of the Migration Act 1958, declared and signed by the applicant. Accordingly, the requirements of r.5.19(4)(a)(i) are met. In considering whether the application for approval identifies a need for the nominator to employ an identified person, as a paid employee, to work in the position under the nominator’s direct control, the Tribunal has had regard to the evidence before it. This evidence includes the oral evidence received at the hearing, written statements and submissions to the Department and Tribunal including submission by the representative dated 20 May 2023. At the hearing, the applicant told the Tribunal, the need to employ the nominee to work in the nominated position is critical to the operational and business needs of the business, to ensure the business’s ongoing financial viability and compliance with Vodafone dealership licencing conditions. The Directors are not involved in the daily management and operations of the respective stores and are reliant on the autonomous management of each store by designated store managers. The Tribunal is satisfied on the information before it, that the application for approval identifies a need for the nominator to employ an identified person, as a paid employee, to work in the position under the nominator’s direct control. Accordingly, the requirement in r. 5.19(4)(a)(ii) is met. As the criteria in both r.5.19(4)(a)(i) and (ii) are satisfied, accordingly the requirements in r.5.19(4)(a) are met.Nominator is actively and lawfully operating a business in Australia: reg 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 accepts on the evidence before it that the applicant owns and operates numerous Vodafone dealerships located throughout Australia. The Tribunal has considered material provided to the Tribunal, including bank statements, financial statements, information submitted to the ATO, ASIC details, supplier invoices, and internal store communication and is therefore satisfied, the applicant is actively and lawfully operating Vodafone stores in Australia and directly operates that business.

Decision

Reasons for decision

Based on the findings above, the Tribunal is satisfied that the applicant meets the requirements of reg 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.Karen McNamaraMemberATTACHMENT - EXTRACTS FROM THE MIGRATION REGULATIONS 19945.19Approval 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 an identified person, as 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) all 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;(AA)there is a genuine need for the nominator to employ the person identified under subparagraph (a)(ii), as a paid employee, to work in the position under the nominator’s direct control;(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 the person identified under subparagraph (a)(ii), as 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).

Ratio Decidendi

Legal Principle Established

Accordingly, the requirements of r.5.19(4)(e) are met.No adverse information known to Immigration: reg 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 regs 1.13A and 1.13B. There is no evidence before the Tribunal to indicate that there is adverse information as per the meaning given in rr.1.13A and 1.13B, known to the Department about the applicant or an associated person. Accordingly, the requirements of r.5.19(4)(f) are met.Satisfactory compliance with workplace relations laws: reg 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 that indicates the applicant does not have a satisfactory record of compliance with the relevant Commonwealth and State workplace relations laws. Accordingly, the requirements of r.5.19(4)(g) are met.Tasks of the position, genuine need for the position and training requirements reg 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 that:·the tasks to be performed in the position will be performed in Australia and correspond to those of an occupation specified by the Minister under the relevant legislative instrument, the occupation is applicable to the proposed employee in accordance with any specifications made in that instrument, there is a genuine need for the nominee to be employed as a paid employee in the position, and certain specified training requirements are met; or·the position and nominator’s business is located in regional Australia, there is a genuine need for the nominee to be employed as a paid employee in the position under the nominator’s direct control, the position cannot be filled by a locally resident Australian citizen or permanent resident, the tasks of the position correspond to those of an occupation specified in the relevant legislative instrument, the occupation is applicable to the proposed employee in accordance with the specification of the occupation, and that a regional certifying body has advised the Minister about certain matters relating to the position. In this case the relevant criteria to be satisfied are those set out in the second limb, that is under r.5.19 (4)(h)(ii) where all subclauses r.5.19(4)(h)(ii)(A) to r.5.19(4)(h)(ii)(F) must be met. The evidence before the Tribunal indicates that the applicant’s business, which is operated by the applicant and the position, are located in Mandurah, Western Australia postcode 6210, which is a postcode specified in the relevant instrument as being in regional Australia, accordingly r.5.19(4)(h)(ii)(A) and (E) are met.