Armaan Enterprises Pty Ltd ATF Haroop Family Trust (Migration)

Armaan Enterprises Pty Ltd ATF Haroop Family Trust (Migration) [2019] AATA 6362 (21 October 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Armaan Enterprises Pty Ltd ATF Haroop Family Trust
CASE NUMBER:  1801457
DIBP REFERENCE(S):  BCC2016/3883240
MEMBER:Mark Bishop
DATE:21 October 2019
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.
.

Statement made on 21 October 2019 at 2:38pm
CATCHWORDS
MIGRATION – application for approval of nomination of position – Direct Entry Nomination stream – position description in application did not match occupation specified in relevant instrument – tasks to be performed – position description compared with ANZSCO classification – decision under review set aside
LEGISLATION
Migration Regulations 1994 (Cth), r 5.19(4)(h)(ii)(D)
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 Immigration on 4 January 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 18 November 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 (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).
In this case, the applicant has applied for approval of a nomination, seeking to satisfy the criteria in the Direct Entry Nomination stream.
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 position description in the application did not match occupation specified in the relevant instrument.
The Tribunal resolved the review application on the papers.
The applicant was represented in relation to the review by its registered migration agent.
For the following reasons, the Tribunal has decided to set aside the decision under review and substitute a decision approving the nomination.
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.
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 applicant lodged the following material:
·an online form, RA certified it had not engaged in conduct that contrives subsection 245AR(1) of the Migration Act 1958 and fee paid;
·material that Identified a need for the nominator to employ an identified person as a paid employee to work in the position under the nominators direct control.
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)
The nominator appears to be actively and lawfully operating a business according to ASIC checks and financial records provided for 17/18, see:
·Current ABN detail
·ASIC information (Company Statement and Office Holders)
·ABN Lookup and Historical Extract
·Trust deed for Haroop Family Trust
·BAS July 2018 until June 2019
·Financial Statements for Armaan Enterprises Pty Ltd
Accordingly the requirement in r.5.19(4)(b) is met.
5.19(4)(c) for a nominator whose business activities include activities relating to the hiring of labour to other unrelated businesses
5.19(4)(c) applies to a nominator whose business activities include activities relating to the hiring of labour to other unrelated businesses. In these cases, the nominated position must be within the business activities of the nominator. There is no evidence before the Tribunal that the business activities of the applicant include labour hire
Accordingly the requirement in r.5.19(4)(c) is met.
5.19(4)(d) future employment of nominee - will be employed for at least two years with a no exclusion of extension
Regulation 5.19(4)(d) requires the nominee to be employed in the nominated position for at least 2 years full time, and the terms and conditions of that employment do not expressly exclude the possibility of an extension. The applicant provided information that showed the nominee will be employed for at least two years with no exclusion of extension.
The nominator provided copies of the following documents: Signed Employment Contract and Employer Statement attesting to the fact the nominated position is a genuine position.
Accordingly, the requirement in r.5.19(4)(d) is met.
No less favourable terms and condition of employment: r.5.19(4)(e)
The applicant provided the following information:
·Copy of employment contract between Haroop Family Trust t/a Tinamba General Store and Baltej Singh for the position of Retail Manager that identified a salary of $55,000 per annum, payment of relevant occupational superannuation obligations and appropriate leave obligations
·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.
·A google search conducted on 14 October showed no obvious adverse information results for the Haroop Family Trust, the nominator (applicant), the nominee or Tinamba General Store. .
·There is no adverse information before the Tribunal.
·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 was no information before the Tribunal that showed past breaches of workplace relations laws. Searches of the FWO website on 14 October 2019 showed no breaches for the Haroop Family Trust, the nominator (applicant), the nominee or Tinamba General Store.
·Accordingly the requirements of r.5.19(4)(g) are met.
Tasks of the position genuine need for the position and training requirements r.5.19(4)(h)(ii)
(A) Position is located in regional Australia
The nominating business is Haroop Family Trust t/a Tinamba General Store. The nominating business was trades at 2 Traralgon Maffra Road Tinamba Vic 3859. The relevant IMMI instrument provides that postcode 3859 is located in a regional area.
(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
The RA certified genuine need in his application to the Department (Df). The RA certified genuine need in his application to the Tribunal (Tf). The RA advised the Tribunal there was a genuine need for the nominator to employ a paid employee to work in the position under the nominator’s direct control. The nominator purchased the already established business in May 2016. The original plans provided for the wife (Ms Harpeet Kaur an equal shareholder in the company) of the nominator to work in the position of Retail Manager. Personal matters prevented this plan from being actioned after November 2016. At that time the nominator placed an advertisement for the position of Retail Manager. Since the time of application the need for a permanent full time Retail Store Manager has only strengthened. The nominee has been in employment in the business for more than 3 years. The store has grown under the guidance and control of the nominee. The applicant provided a copy of his current employment contract.
(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
The applicant provided signed submission stating the nominee has been employed in the nominated position on a full time basis since late 2016. The applicant provided considerable written detail as to the background to the purchase of the Tinamba General Store, the inability of his wife to work in the position for a range of personal and family reasons, advertising for the job and the qualifications and expertise of the nominee. The applicant stated he could not find a suitable local person for the position of Retail Manager so he decided to sponsor the nominee for the position.
(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;
The application was on 18 November 2016 so the relevant instrument is 15/083. The applicant applied for Retail Manager (General) 142111 (TF 9) which is a listed occupation under Schedule A of IMMI 15/083.
The tasks of a Retail Manager (General) 142111, per ANZSCO are as listed below:
·determining product mix, stock levels and service standards
·formulating and implementing purchasing and marketing policies, and setting prices
·promoting and advertising the establishment's goods and services
·selling goods and services to customers and advising them on product use
·maintaining records of stock levels and financial transactions
·undertaking budgeting for the establishment
·controlling selection, training and supervision of staff
·ensuring compliance with occupational health and safety regulations
One of the occupations listed under the relevant Ministerial Direction is Retail Manager (General) ANZSCO Code: 142111. It is a Skill Level 2 Occupation, for which an Associate Degree, Advanced Diploma, Diploma or three years relevant experience is generally required. The role of the position is described on the ANSCO website as: “Organises and controls the operations of a retail trading establishment.”
The employment contract for the position of Retail Manager provided for the following duties:
·     Maintain service standards and quality standards;
·     Provide a high level of courteous and professional service to all customers;
·     Analyse and forecast daily, week and monthly sales figures in order to maximise profits;
·     Staff management including supervision of staff, ensuring staff adhere to policies and procedures;
·     Ensure effective systems for cash handling and retail banking are in place, reviewing and updating business processes as necessary;
·     Organise and implement sales promotional and any marketing activities in conjunction with the operations and ensure that the setup is in line with operational policies and successful;
·     Ensure merchandise is sold at the correct price and that any discounts given are in accordance with company policies;
·     Manage and monitor inventory levels an stock control;
·     Able to assist tasks like rosters, breaks, performance reviews, and hiring processing when needed;
·     Oversee the implementation of customer service standards;
·     Ensure customer satisfaction and efficient handling of complaints;
·     Recruit, train, supervise and evaluate all employees;
·     Manage and motivate the team to increase sales and ensure efficiency;
·     Ensuring cleanliness throughout the shop and compliance to Occupational Health and Safety are achieved.
The applicant provided a lengthy submission to the Tribunal that identified tasks and responsibilities carried out by the nominee and current occupant of the position. The submission also stressed the significant growth in sales and turnover and increase in profit was solely the responsibility of the nominee. The submission outlined the following:
·Purchase and installation of capital equipment follow negotiations with local purchasers and suppliers;
·The utility of current reporting arrangements between the nominee and store owner;
·Responsibilities for devising and implementing sales and marketing strategies;
·Recommendations for purchase of capital items and other matters relating to the business come from the nominee and are generally well thought out and have a rational basis;
·The nominee has complete autonomy as to stock purchase up to a monthly budget of $40,000;
·The nominee is responsible for the substantial growth in turnover and financial strength of the business
The Tribunal is satisfied the nominee has effective management control of the Tinamba General Store. He is charged with responsibilities that go to the devising and implementation of strategies that ensure the continued financial viability and growth of the store. This requires hands on approach. It requires an awareness of the local market. It requires sound and informed relationships with local purchasers. It requires ongoing attention to the needs and abilities of local suppliers to provide services and products in a timely manner that allows for the generation of increased profits over time. It requires an understanding of pricing and costs. The Tribunal is satisfied the nominee consults with the owner on a regular basis. This does not mean the owner makes all critical decisions. The owner, of course, has a veto on the implementation of any decision particularly those that go to the purchase of capital items. That is his absolute right as the owner of the store. It does not mean the nominee does not make critical contributions for consideration of the owner. That is the way any sensible business owner would ensure his enterprise is being run properly. The Tribunal is satisfied the nominee currently carries out the duties of a Retail Manger as outlined above in paragraph 25.
(E) The business is operated by the nominator and is located at that place
The applicant provided material to the Tribunal that shows the tasks will be performed in Australia and these tasks correspond to the tasks of an occupation specified in the relevant instrument. The nominator meets the training requirements specified in the relevant instrument.
Accordingly the requirements of r.5.19(4)(h) are met.
CONCLUDING PARAGRAPHS
Based on the findings above, the Tribunal is satisfied that the applicant meets the requirements of r.5.19(4) 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.
Mark Bishop
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).

[2019] AATA 6362

21 October 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Statutory Construction

Procedural Fairness

Jurisdiction