Atlantic Petroleum Pty Ltd (Migration)

Atlantic Petroleum Pty Ltd (Migration) [2018] AATA 5299 (16 November 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Atlantic Petroleum Pty Ltd
CASE NUMBER:  1718374
DIBP REFERENCE(S):  BCC2016/1613336
MEMBER:Mr S Norman
DATE:16 November 2018
PLACE OF DECISION:  Sydney
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Statement made on 16 November 2018 at 1:25pm
CATCHWORDS
MIGRATION – Employer Nomination – approval of nominated position – Direct Entry Nomination – Retail Manager – financial capacity – company tax return for 2017 – profit before tax – lack of proper management – potential for growth and profitability – decision under review set aside
LEGISLATION
Migration Regulations 1994 (Cth), r 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 Immigration on 4 August 2017 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 2 May 2017. 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(d)(i) of the Regulations because the delegate was not satisfied the applicant had demonstrated they have the financial capacity to offer full time employment to the nominee for a period of two years at a salary of $55,000 per annum.
The applicant (Mr Desh Deepak AGGARWAL – representing Atlantic Petroleum P/L) appeared before the Tribunal on 31 July 2018 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Abhishek Sood (the applicant’s accountant). 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.
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 nominator/applicant (Atlantic Petroleum P/L) lodged an online application for a Regional Sponsored Migration Scheme nomination through the Direct Entry stream for the position of Retail Manager (ANZSCO – 142111). The salary offered was $55,000 per annum and the nominee (visa applicant) was Shavinder Kaur (female – DOB 28 November 1983). The nominator had then owned and operates three service stations (Lake Cargelligo, Yenda & Portland[1]). The position for this nomination approval is located in Lake Cargelligo.
[1] Tribunal – Certificate of Title (folio 282); and Lease (folio 271).
Based on the evidence before the Tribunal, the nomination application is on the approved form, was accompanied by the prescribed fee, and included a written certification relating to conduct that contravenes s.245AR(1).[2]
[2] Tribunal – folio 222.
Next, for nominations made before 1 July 2017, r.5.19(4)(a)(ii) requires that the application for approval ‘identifies a need for the nominator to employ a paid employee to work in the position under the nominator’s direct control’. For reasons not elaborated herein, the Tribunal understands it is unclear whether this requirement is directed just at (first) a statement to this effect[3] or (second) something of a more qualitative nature.[4] However, and for the purposes of this decision, the Tribunal will accept the aforementioned first interpretation of r.5.19(4)(a)(ii). Therefore, the Tribunal accepts the nominator has identified a need for the nominator to employ a paid employee to work in the position under the nominator’s direct control.
[3] It may be argued that r.5.19(4)(a) as a whole is directed towards requirements for the application form / process of a more administrative nature, such that r.5.19(4)(a)(ii) could be met by a simple statement or certification of need.
[4] The wording ‘identifies a need’ arguably suggests more is required to meet this criterion than simply a statement or declaration that there is such a need. This appears to reflect Department policy (PAM3: Migration Regulations – Divisions – Div 5.3 – General > Approval of nominated positions (employer nomination) > Part C - Criteria applicable to Direct Entry stream nominations > Need for a paid employee > Applicability and overview (reissued 12/05/17 – last reissue prior to 1 July 2017).
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. Based on the evidence before the Tribunal (including but not limited to, proof of ABN number,[5] BAS statements, Current & Historical Company Extract,[6] a Contract for the sale of business,[7] and financial documents), I am satisfied the nominator actively and lawfully operates a business in Australia, and they directly operate that business.
[5] Tribunal – folio 92.
[6] Tribunal – folio 159.
[7] Tribunal – from folio 281.
Accordingly, the requirement in r.5.19(4)(b) is met.
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. In these cases, the nominated position must be within the business activities of the nominator. There is no evidence on the Department or Tribunal files, that the nominator’s business activities include those relating to labour hire to an unrelated business.
Accordingly, 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 2 years full time, and the terms and conditions of that employment do not expressly exclude the possibility of an extension.
As noted above, the nominator lodged an online application for a Regional Sponsored Migration Scheme nomination through the direct entry stream for the position of Retail Manager (ANZSCO – 142111). The salary offered was $55,000 per annum and the nominee (visa applicant) was Ms Shavinder Kaur. The nominator said the business had been ‘established’ on 18 June 2015 (he purchased the business from its previous owner – see Contract for sale of business[8]) and the head office was located at 149 Meurants Lane, Glenwood NSW 2768. The nominator claimed the business employed eight Australian workers and four foreign workers - though at hearing the nominator explained the Lake Cargelligo service station (where the nominee was to be employed) then employed around 5 or 6 casual staff - and that in the past 12 months it had spent $66,416 in gross payroll expenditure.
[8] Tribunal – folio 112.
After referring to r.5.19(4)(d)(i), the delegate noted the nominator must demonstrate they have the financial capacity to employ the visa applicant on the nominated salary for a period of no less than two years. The delegate then referred to the following documents lodged with the Department:
·Business Activity Statements for the periods July to September 2016, and October to December 2016[9]
·Business Plan – provided to RCB on 2 May 2016
·Evidence of Business Operations and Financial Status – Bank Statement of Account of Business
·Financial Projections of the Business – Three Year – provided to RCB
·Financials of Atlantic Petroleum – FY 2016
·Letter of support from Accountant – May 2017
·Letter of support from Account is provided to RCB
[9] Tribunal – from folio 90.
The delegate noted the two BAS statements indicated a six-month wage bill of $44,290. The delegate then noted the Trading Profit and Loss Statement for the year ended 30 June 2016 (indicated profit after income tax of $16,086[10]); and a Balance Sheet as at 30 June 2016. The delegated acknowledged that the accountants letter[11] said the business was “financially healthy”, however the BAS and the Profit and Loss statements indicated the business was then running at a loss. The delegate believed the financial projections for the business were speculative, and gave them little weight. The delegate then concluded that the applicant had failed to demonstrate the financial capacity to offer full-time employment to the nominee for a period of two years at a salary of $55,000 per annum. Therefore, the delegate was not satisfied that reg 5.19(4)(d)(i) was met; and therefore the applicant did not meet reg. 5.19(4).
[10] Tribunal – folio 83.
[11] See Tribunal – folio 76.
The delegate then noted the applicant only provided claims against reg 5.19; and since insufficient evidence had been submitted against reg 5.19(3), the applicant did not meet that alternative regulation.
With the Tribunal, the applicant lodged:
·Business Registration Documents
·Business Activity Statements from July 2016 to June 2017[12]
·Business Financial Statements for FY 2016 / 2017[13]
·Tax Return of FY 2017
·Evidence of Business Operations in the form of miscellaneous invoices[14]
·Letter from Accountant as submitted to the Department
·Recent Bank Statements of Atlantic Petroleum[15]
·Tax Return of Director showing income as evidence of financial capacity to run the business and for the position[16]
·Account information page of the Directors Bank Account showing equity available as evidence of financial capacity to run the business and for the position
·A Balance Sheet as at 30 June 2017,[17] indicated a total equity in the business of $56,720.
[12] Tribunal – from folio 89.
[13] Tribunal – from folio 84; and from folio 171.
[14] Tribunal – from folio 75.
[15] Tribunal – folio 63.
[16] See Tribunal – folio 62.
[17] Tribunal – folio 79.
Migration agent submissions dated 22 December 2017 were lodged.[18] It was claimed the nominator operated three petrol stations; that the FY June 2017 statement demonstrated the business is operating at a profit before tax of $55,909; it was claimed while this was not a substantial figure it was a “big improvement” on the previous year profit before tax which was $22,498; and that the business is “suffering from a lack of efficiency due to it not being managed properly”. It was said the business had a “very good potential for growth and profitability and what it lacked was proper management”.
[18] Tribunal – from folio 51.
Also lodged was a Company tax return for 2017.[19] That indicated ‘Total Profit or Loss Amount’ as $55,909.
[19] Tribunal – from folio 48.
In the above-mentioned migration agent submissions, it was also claimed the nominator’s business had advertised for the position but had only nominated an overseas person for the role; the business was being managed part-time by the Director; and that the business was in urgent need of the services of a dedicated manager. It was also claimed the position could not be filled using the local labour market and the terms and conditions were in accordance with Australian standards.
By migration agent submissions dated 26 February 2018, further submissions were lodged.[20] This included but was not limited to a submission, business financial documents tax returns, bank statements,[21] organisation charts,[22] employment contract, proof of advertisements,[23] and a letter from the Australian Dental Association. On 27 July 2018, the applicant also lodged a BAS for ‘Jan 2018 to Mar 2018’, showing total sales as AUD$907,940; and ‘Total salary, wages and other payments’ as AUD$57,881.[24] At the same time the PAYG summary (01/07/2017 – 30/06/2018) was lodged. That showed ‘gross payments’ as $55,000. Also lodged were bank account details.
[20] Tribunal - from folio 198.
[21] Tribunal – from folio 193.
[22] Tribunal – from folio 155.
[23] Tribunal – from folio 190; and from folio 230; and folio 233 (reverse side).
[24] Tribunal – folio 217.
That being said, the Tribunal notes the retained profits for year ended 30 June 2016 were shown as $16,086 (after the business had been purchased in September 2015[25]); the company tax return for 2017 indicated a ‘Total Profit or Loss Amount’ as $55,909[26]; and based on the company accountant’s evidence at hearing, it was claimed that based on the information before them, the total estimated profit for 2018 may be in excess of $60,000 or $70,000. Based on the evidence before it, the Tribunal accepts this to be correct.
[25] Tribunal – folio 112.
[26] Tribunal – from folio 48.
Next, at hearing, the nominator said he owned and operated two dental practises and three service stations. He works part time in the two dental practises (his wife is also a dentist and works at the practises), and he largely undertakes the ‘paperwork’ for the three service stations (though he has to attend the service stations on occasion to oversee some of the work). At the Lake Cargelligo service station, he employs around 5 or 6 casual staff. They are now performing the work the nominator would like the visa applicant to undertake. However, as most of the staff are mothers with children, they do not wish to take up the Retail Manager position full time (to manage the Lake Cargelligo service station).
The Tribunal put to the applicant that based on the financial information, the profit of the three service stations was apparently increasing even with him not being present on a day to day basis. The nominator then explained that the nature of the service station work, was that (ie) many sales representatives would attend the stations and substantial savings could be made if purchases were made in bulk (including for cigarettes, soft drinks etc). As the nominator’s business owned/operated three service stations, the opportunity to purchase in bulk, and to receive the consequent discounts, was available. However, the staff at Lake Cargelligo were not confident to engage in and negotiate such purchases. If he was otherwise engaged (ie operating in one of his dental practises), he was not available to make these types of decisions. He therefore believed, that the increasing profits of the business, would be enhanced by employing a ‘professional’ manager who could make these (and other decisions) on his behalf.
When discussing the qualifications and experience of the nominee (visa applicant), it was claimed she had obtained an MBA and currently worked in the Punjab in India. She was employed as a manager, whose tasks included maintaining stocks, negotiating with representatives, and banking.
After then considering all the evidence, the Tribunal is satisfied the nominee will 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 Tribunal is also satisfied the nominator’s business (at Lake Cargelligo) has the capacity to pay the nominee/visa applicant the nominated wage for a two year period.
Accordingly, the requirement in r.5.19(4)(d) is met.
No less favourable terms and condition 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.
Based on the evidence (including but not limited to an employment contract,[27] organisation chart,[28] evidence of comparative earnings in the Australian Government ‘Job Outlook’[29]) the Tribunal is satisfied the terms and conditions of employment are 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.
[27] Tribunal – from 162 (reverse side).
[28] Tribunal – folio 155.
[29] Tribunal – from folio 186.
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 adverse information known to the Department or the Tribunal 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 that the nominator/applicant does not have a satisfactory record of compliance with workplace relations laws in the locations in which it operates a business and employs staff.
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)
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, for the purposes of this case, be briefly summarised as requiring that:
·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 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.
The applicant lodged submissions from their migration agent dated 22 December 2017.[30] Amongst other things, it was claimed the nominator operated three petrol stations. The Tribunal is satisfied the position and relevant business is located in ‘regional Australia’ (being Lake Cargelligo, NSW 2672 – see IMMI 16/045). The Tribunal is also satisfied that a Regional Certifying Body has advised the Minister that there is a genuine need for the nominator to employ a paid employee to work in the position under the nominator’s direct control; and 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.[31]
[30] Tribunal – from folio 51.
[31] Tribunal – folio 172.

Next, the tasks to be performed in the position must correspond to the tasks of an occupation specified by instrument. The relevant Instrument is IMMI 17/058; and r.5.19(4)(h)(ii)(d) is a time of decision criteria. The position of Retail Manager (Gen) (ANZSCO – 142111) is identified in the above instrument and the tasks to be performed in the position correspond to those specified.
Regarding whether there is a genuine need to employ a paid employee to work in the position under the nominator’s direct control, based on the evidence and discussion under the above sub-heading (Term of employment of the visa holder: r.5.19(4)(d)), the Tribunal is satisfied there is a genuine need to employ a paid employee to work in the position under the nominator’s direct control.
Regarding whether the position could be filled by an Australian citizen or permanent resident who is living in the same local area, the Tribunal notes the population of Lake Cargelligo is less than 1500; and that mining, farming and other small business, are the most significant opportunities for local employment. That being said, and regarding the claimed response to print and online advertisements,[32] the (Lake Cargelligo) business was claimed to have received a very limited number of applications (when the position had been advertised in early 2016). Further, it was claimed that “almost all applicants were unsuitable”, given “none of them had the required mix of suitable qualifications and experience”. One applicant had a Diploma in Management but had no relevant experience (some but not all of the resumes were lodged with the Tribunal). One person was not able to start work for some time. After considering all the applications, the only person shortlisted was the nominee. It was claimed she had a MBA qualification and a Manager level experience (discussed above). The nominee was selected based on a phone interview – in which she was able to demonstrate that she had confidence and good personal skills and had a good knowledge of management skills and the factors involved in managing a business professionally.
[32] Tribunal – folio 194.
Further, given the length of time the nomination approval process had taken, and given the increasing need to engage a person for the Retail Manager position in Lake Cargelligo, the nominator also advertised the position again in early 2018.[33] After the hearing, the nominator lodged an affidavit confirming that which was claimed at hearing – being that no persons had applied for the position. The nominator said he had not made enquiries with Centrelink (given he usually only remained briefly at the Lake Cargelligo service station to engage in necessary tasks for the business, before departing to work in his other businesses). However, the evidence before the Tribunal does indicate that three advertisements were made (one in a local paper, one online in ‘Indeed’, and one in Gumtree) in early 2018. Along with the other evidence considered herein, the Tribunal is satisfied that suitable efforts were made to identify local persons for the position.
[33] Tribunal – from folio 180 (reverse side).
After considering the evidence, the Tribunal is not satisfied the position could be filled by an Australian citizen or permanent resident who is living in the same local area. 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.
Mr S Norman
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).

[2018] AATA 5299

16 November 2018

Key Legal Topics

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Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

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