ATWAL & PANNU PTY LTD (Migration)

ATWAL & PANNU PTY LTD (Migration) [2022] AATA 2073 (2 May 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  ATWAL & PANNU PTY LTD
REPRESENTATIVE:  Mr GAGANJOT SINGH BHATIA (MARN: 0963188)
CASE NUMBER:  1837550
HOME AFFAIRS REFERENCE(S):          BCC2018/889509
MEMBER:Joanne Bakas
DATE:2 May 2022
PLACE OF DECISION:  Adelaide
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Statement made on 02 May 2022 at 6:31pm
CATCHWORDS
MIGRATION–nomination – Direct Entry stream – tasks to be performed in the position correspond to the tasks of an occupation specified in the relevant instrument ––genuine need to employ a paid employee to work in the position– nominated position is based in regional Australia – no adverse information – decision under review set aside
LEGISLATION
Migration Act 1958, ss 65, 140GB, 245AR
Migration Regulations 1994, rr 2.57, 2.72, 2.73, 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 11 December 2018 to reject the applicant’s application for approval of the nomination of a position in Australia under reg 5.19 of the Migration Regulations 1994 (Cth) (the Regulations).
The applicant applied for approval on 24 February 2018. 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 stream.
The delegate refused the application on the basis the applicant’s nomination did not satisfy a number of criteria as follows:
a.reg 5.19(4)(h)(ii)(C) of the Regulations because the delegate was not satisfied that 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;
b.reg 5.19(4)(h)(ii)(D) of the Regulations because they were not satisfied the nominator had demonstrated that the tasks of the nominated position correspond to the tasks of an occupation specified by the Minister in an instrument for this subparagraph.
Mr Paramveer Singh Atwal appeared on behalf of the applicant before the Tribunal on 15 March 2022 and on 11 April 2022 via audio and video conference on MS Teams to give evidence and present arguments.
The applicant was represented in relation to the review. The representative attended the Tribunal hearing by MS Teams
The Tribunal exercised its discretion to hold the hearing by audio and video conference on MS Teams. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by MS Teams, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by MS Teams. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.
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.
The application identified Ms Gagandeep Kaur Atwal as the person to work in the position of Cook under the nominated ANZSCO occupation of Cook (ANZSCO 351311) under the applicant’s direct control.
The Tribunal finds that the application for approval:
·was made on the approved online form and was accompanied by the fee prescribed in r.5.37;
·includes a written certification stating whether the nominator has engaged in conduct in relation to the nomination that contravenes s. 245AR(1); and
·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) is 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 documents submitted to the Tribunal and ASIC extract dated 19 August 2021 that shows Atwal and Pannu Pty Ltd have the ACN 600 911 377 and were first registered on 25 July 2014. The registered address is 35 Main North Road Clare.
The applicant also provided a copy of their 2020 and 2021 company tax return as well as financial reports for the same years completed by RCA Business and Tax Accountants. Business Activity Statements for the period July 2019 to June 2021 also provided.
At the hearing the applicant also gave evidence that they operate a roadhouse in a regional area that offers dine in and take away food. The food offerings generally include Indian curries, pizza and fast food. The trading name is Caltex roadhouse Clare.
Having considered all of the documents before it, the Tribunal is satisfied that the nominator is actively and lawfully operating a business in Australia and directly operates that business.
Accordingly, the requirement in reg 5.19(4)(b) is met.
Position is not labour-hire: reg 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 information before the Tribunal that indicates the applicant is involved in labour hire activities or in the hiring of labour to other unrelated businesses.
Accordingly, the requirement in r.5.19(4)(c) does not apply.
Term of employment of the visa holder: reg 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.
The applicant provided a copy of an employment agreement dated 23 February 2018. The agreement details that the appointment is for the position of Cook on a full-time basis for at least two years commencing seven days after the visa approval for the Cook position. The offer is without exclusion of renewal. The salary detailed in the agreement is $55,000 per annum in addition to superannuation. The agreement also lists the employee duties and responsibilities.
At the hearing the applicant clarified that the employment agreement was dated 23 February 2018 but that this must have been in error as it was actually signed by both the applicant and the nominee on 24 February 2018.
The Tribunal notes that the financial information indicates that the revenue of the business increased from $727,779 in the 2019/2020 year to $984,608 in the 2020/2021 year. Net profit also increased in these two years from $14,043 to 37,905.
The evidence of the applicant at the hearing included that there has been some fluctuation financially due to the impact of the COVID-19 pandemic. As the business is in a tourist area, when the borders were shut due to COVID-19 the number of tourists of course declined in that period. Nevertheless the applicant had no concerns as the business is continuing to grow.
Based on all of the evidence before it, the Tribunal is satisfied that the applicant has the financial capacity to employ the nominee on a full time basis in the nominated position for two years full time and that the nominee will be employed in the nominated position for at least two years. The Tribunal has had regard to the employment agreement and is satisfied that the terms and conditions of the nominee’s employment does not include an express exclusion of the possibility of extending the period of employment.
Accordingly, the requirement in r.5.19(4)(d) is met.
No less favourable terms and conditions of employment: reg 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 applicant’s evidence included that there were no other Australian citizens or permanent residents in an equivalent position. In determining the salary, the applicant stated that they considered other job advertisements in South Australia for similar positions on Indeed.com showing a salary of $40,000-$60,000. They also investigated the salary range according to PayScale which showed a salary range in Adelaide South Australia of about $44,000-$55,000 with the median salary being $51,116. The terms and conditions of the position were formulated having taken into consideration the guidelines of the Fair Work Act 2009 (Cth).
Further, the Tribunal notes that a Regional Certifying Body Advice dated 25 July 2018, advises that 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.
On the evidence before it, the Tribunal is satisfied that the terms and conditions of employment relating to the nominated position will be no less favourable than those that are provided or 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: 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 that suggests there is any adverse information 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: 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 laws of the Commonwealth or of, relevantly, the South Australia, relating to workplace relations.
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 (see legislative instrument IMMI18/005) 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.
The applicant applied for the nomination as a Regional Sponsored Migration Scheme position. They are therefore required to meet the second set of requirements stated above.
To meet the second set of requirements detailed in r.5.19(4)(h)(ii), all of the following must apply:
·the position is located in ‘regional Australia’ (r.5.19(4)(h)(ii)(A));
·there is a genuine need to employ a paid employee to work in the position under the nominator’s direct control (r.5.19(4)(h)(ii)(B));
·the position cannot be filled by an Australian citizen or permanent resident who is living in the same local area (r.5.19(4)(h)(ii)(C));
·the tasks to be performed in the position correspond to the tasks of an occupation specified by instrument (r.5.19(4)(h)(ii)(D));
·the occupation is applicable to the person identified under subparagraph (a)(ii) in accordance with the specification of the occupation (r.5.19(4)(h)(ii)(DA));
·the business operated by the nominator is located at that place ((r.5.19(4)(h)(ii)(E)); AND
·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) - (r.5.19(4)(h)(ii)(F)).
The Tribunal is satisfied from the evidence before it that the nominated position and business is located in Clare, South Australia which has the postcode 5453.
‘Regional Australia’ is defined in r.5.19(7) by reference to a written instrument by the Minister specifying which areas are considered to constitute ‘regional Australia’ for the purposes of r.5.19(4)(h)(ii)(F). At the time that the nomination was lodged, the relevant instrument was IMMI 17/059 which specified that all postcodes in South Australia were in ‘regional Australia’. While there has been a new legislative instruments that has come into effect and repealed IMMI 17/059, it has continued to consider all of the postcodes in South Australia as being in ‘regional Australia’.
Accordingly, the Tribunal finds that the nominated position is based in regional Australia, satisfying r.5.19(4)(h)(ii)(A).
The Tribunal now turns to consider whether the applicant satisfied the remainder of the criteria as set out in r.19.(4)(h)(ii)(B) to (F).
In regard to there being a genuine need to employ a paid employee to work in the position of Cook, the applicant’s evidence included that the restaurant used to employ two part-time Cooks. When one of the part-time Cooks resigned in early February 2018 the part-time Cook remaining and casual kitchen staff were not able to handle the workload. Moreover this resulted in inconsistency in quality and taste which did not go well with the customers. The business therefore decided to hire a full-time professionally qualified Cook. This position is considered by the applicant to be essential to meet the needs of their growing business, expand the business, increase profitability, meet the customer expectations, strengthen their operations and train existing and new staff thereby serving the visitors in the local community in a much better way. Since October 2019 the business hours for the roadhouse are from 5:00am to 10:00pm every day seven days a week. The business now employs two full-time Cooks of which the nominee is one. As such there is always a Cook on at all times.
In regard to being unable to fill the role with an Australian citizen or permanent resident living in the same local area, the applicant’s evidence at hearing and written documentation and submissions included that they advertised the position in February 2018 on Seek.com.au. There were five applicants of which the nominee was one. The nominee was the only applicant deemed to have the desired qualifications, experience and skills and attributes required for the position. In particular three of the applicants did not have relevant qualifications and one did not send her resume in.
The submitted documents include a duty statement for the role of the nominee. Tribunal has had regard to the submissions provided in regard to the tasks already performed by the nominee and is satisfied that they correspond to the tasks of the occupation of Cook (ANZSCO 351411), (specified in the relevant instrument (IMMI 17/058)). A detailed summary of the tasks to be performed in the position as detailed in the duty statement for the position provided by the applicant, are consistent with the tasks for the position in ANZSCO (351411) which include:
a.examining foodstuffs to ensure quality
b.regulating temperatures of ovens, grills and other cooking equipment
c.preparing and cooking food
d.seasoning food during cooking
e.portioning food, placing it on plates, and adding gravies, sauces and garnishes
f.storing food in temperature controlled facilities
g.preparing food to meet special dietary requirements
h.may plan menus and estimate food requirements
i.may train other kitchen staff and apprentices
In addition at the hearing the applicant gave evidence that the Indian cuisine served at the business is not considered fast food as everything is prepared on site and there is a menu that dine in customers can order from. Further over the last couple of years the menu has increased from what was originally considered by the delegate. The restaurant part of the roadhouse offers a bain-marie area with a limited range of grab and go food as well as a dine in area where people order food and it is brought to their table. They always have a Cook on site.
The position of Cook nominated by the applicant is recorded in ANZSCO as a Skill Level 3 position. The evidence before the Tribunal includes that the nominee obtained a Certificate III and IV in Commercial Cookery. Both of the Certificate III and IV were completed at the International Institute of Business and Management in Australia and issued on 24 January 2018 and 22 February 2018 respectively. The nominee also now has more than three years’ experience working as a Cook.
The Tribunal notes that a Regional Certifying Body Advice dated 25 April 2018, advises that 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. It also advises that it was satisfied that there is a need for a paid employee in the nominated position within the business activities of the nominating employer.

Based on the evidence before it, including the applicant’s written and oral submissions and documentary evidence, the Tribunal is satisfied that there is a genuine need to employ a paid employee to work in the position under the nominator’s direct control, that the position cannot be filled by an Australian citizen or permanent resident who is living in the same local area, that the occupation is applicable to the nominee, that the business is located in regional Australia and that a regional certifying body, located in the same State as the position, has advised the Minister (in Form 1404) about the matters in r.5.19(4)(e), 5.19(4)(h)(ii)(B),and 5.19(4)(h)(ii)(C) as is required by regulation 5.19(4)(h)(ii)(F). In addition, the Tribunal is satisfied that the occupation is applicable to the nominee.
Accordingly, the requirements of r.5.19(4)(h) are met.
For the sake of completeness, the Tribunal notes that the nominee is the sister-in-law of the director of the business, Mrs Dilshad Kaur Atwal, and that she arrived in Australia on the day the application was lodged. Because of the relationship between the applicant and the nominee as well the timing of the application, the Tribunal did look at the relevant criteria quite closely but nevertheless decided to set aside the matter.
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.
Joanne Bakas
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)       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).

[2022] AATA 2073

2 May 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Statutory Construction

Jurisdiction

Procedural Fairness