Australian Dispatch Company Pty Ltd (Migration)

[2019] AATA 4493

Australian Dispatch Company Pty Ltd (Migration) [2019] AATA 4493 (24 September 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Australian Dispatch Company Pty Ltd

CASE NUMBER:  1716312

DIBP REFERENCE(S):  BCC2016/1911382

MEMBER:C. Packer

DATE:24 September 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision under review to refuse the nomination.

Statement made on 24 September 2019 at 5:32pm

CATCHWORDS
MIGRATION – Employer Nomination – approval of nominated position – Direct Entry Nomination stream – failure to appear at scheduled hearing – genuine need – Project Coordinator – taxi industry – financial pressure – nominee no longer employed in nominated position – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 362B
Migration Regulations 1994 (Cth), r 5.19

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 21 July 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).

2. The applicant applied for approval on 1 June 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.

3. The delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19(4) of the Regulations because the delegate found the application had not identified a genuine need for the nominator to employ a paid employee to work in the position.

4. On 3 September 2019 the Tribunal wrote to the applicant advising that it had considered the material before it but was unable to make a favourable decision on this information alone. The Tribunal invited him to give oral evidence and present arguments at a hearing to be held on 24 September 2019 at 1pm (TAS time) by video link with Hobart. The invitation advised that if he did not attend the scheduled hearing and a postponement was not granted, the Tribunal may make a decision on the review without further notice or taking further action to enable him to appear before the Tribunal. The letter was sent by email, to the address for correspondence he had provided in the review application (his representative). He had not notified a change of address for correspondence.

5. The applicant did not appear before the Tribunal on the day and at the time and place he was scheduled to appear. He has not contacted the Tribunal to provide any reason why he could not attend at the scheduled time or to seek a further postponement. In these circumstances, and pursuant to s.362B(1A)(a) of the Act, the Tribunal has decided to make a decision on the review without taking any further action to enable the applicant to appear before the Tribunal.

6. For the following reasons, the Tribunal has decided to affirm the decision under review to refuse the nomination.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. 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.

   Tasks of the position genuine need for the position and training requirements r.5.19(4)(h)

8. Regulation 5.19(4)(h) contains a number of alternative requirements. In this case, the applicant seeks to satisfy r.5.19(4)(h)(ii) which requires 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.

9. A form 1404 Regional Sponsored Migration Scheme- Regional Certifying Body advice dated and stamped on 30 May 2016 shows the Department of State Growth Tasmania assessed the job title for proposed nominee of Project Coordinator in the nominating business. That Department is the correct Regional certifying body.

10. However, the applicant (the Managing Director Mr Stuart Iles) advises that the nominee was no longer employed in the nominated position. His letter dated 1 August 2019 letter stated in part that:

    In November 2016 the State Government gave legality to Uber to commence operations in Hobart. This had an effect on our revenue and put financial pressure on the Company to save costs as it had entered a loss making position. During the 2018 financial year ADC was unable to continue to employ Mr Kumar due to this fact. Mr Kumar then took a baillee position as a taxi operator for the firm and also continued in his role as a cultural mediator between ADC and the driver community. ADC made restitution to him for time spent to subsidise his baillee income as a taxi operator. ADC’s revenue continues to be challenged as taxi operators feel the effects of income loss to Uber. ADC’s costs continue to rise with inflation adjusted wage increases, rent, and utility expenses which it cannot recover by increasing revenue. Mr Kumar’s role for ADC has diminished of late however he still holds an important place in our organization as a taxi operator and when needed a cultural adviser to drivers and the Company.

11. His letter dated 29 August 2019 stated in part that:

    We employed Mr Kumar for a period of approximately twelve months and due to economic circumstances we were unable to continue his employment on a full time permanent basis. Mr Kumar has continued to be involved with our Company as a subscriber to our services operating a taxi on a baillee contract.

    Whilst employed Mr Kumar assisted with the rollout of new technology and the training of drivers and operators in the use of the new equipment, attended to issues of system misuse by drivers and provided education relating to expected conformity with operational procedures. We had struggled to achieve results in these areas due to perceptions of ethnic bias by those drivers against our employees.

    His skills in being a cultural influencer within our large community of Indian taxi operators and drivers is of great benefit to not only our Company but to our industry in general. Mr Kumar is very much part of our Company even though he is not in direct employment with us. His assistance in calming issues between participants in an industry where cultural difference can play an important part is significant.

    He is providing sufficient financial support for himself and family from his operations and is not taking the place of an Australian citizen in that role. We have taxi owners who need taxi drivers but can’t find one. This industry is one that finds it is difficult to attract labour into.

12. Based on the applicant’s advice, the nominee had been employed for a period estimated to be about 12 months, until his employment had been terminated on an unspecified date in 2018. Due to economic circumstances in the taxi industry the business had been unable to continue the nominee’s employment as a Project Coordinator (ANZSCO 511112), and does not propose to employ the nominee in the future. Instead, the nominee currently works as a taxi driver on a bailee contract. In light of the applicant’s evidence that the nominated position will not be filled by the applicant due to economic circumstances, the Tribunal finds that there is not a genuine need for the paid position of Project Coordinator (ANZSCO 511112) under the nominator’s direct control.

13. The applicant states the nominee currently works as a taxi driver (ANZSCO 731112) on a bailee contract. Bailee drivers are self-employed and are individual small businesses. They agree to terms with Permit Holders to take possession of and use a licensed taxi for a period of time and in exchange pay a percentage of the earnings, and at the end of that period of time return the taxi to the Permit Holder. The applicant also claims the nominee is a cultural influencer within a large community of Indian taxi operators and drivers. However, his assistance in the workplace as a cultural influencer is not employment in an occupation. For nominations made on or after 1 July 2015 in the Direct Entry stream in regional Australia, r.5.19(4)(h)(ii)(D) requires the tasks to be performed in the position to correspond to the tasks of an occupation specified in an instrument. However, the tasks of a taxi driver (ANZSCO 731112) do not correspond to the tasks of an occupation specified in the relevant instrument (IMMI 17/058). Accordingly, the position of taxi driver cannot satisfy r.5.19(4)(h)(ii)(D). Accordingly the requirements of r.5.19(4)(h) are not met.

    The application is compliant: r.5.19(4)(a)

14. Regulation 5.19(4)(a) also requires that the application identifies a need for the nominator to employ a paid employee to work in the position under their direct control. However, the applicant does not employ or propose to employ the nominee as a paid employee to work in any position under the nominator’s direct control. Accordingly, the requirement in r.5.19(4)(a) is also not met.

    Term of employment of the visa holder: r.5.19(4)(d)

15. 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. However, based on the applicant’s advice the business had been unable to continue the nominee’s employment as a Project Coordinator (ANZSCO 511112), and does not propose to employ the nominee in the future. Accordingly, the applicant will not be employed in the nominated position for at least 2 years full time. Accordingly, the requirement in r.5.19(4)(d) is not met.

    Conclusion

16. For the above reasons the Tribunal is not satisfied that the applicant meets the requirements of r.5.19(4). The applicant has not sought to satisfy the criteria in Temporary Residence Transition Nomination stream, and as such has not met the requirements in r.5.19(3). Accordingly, the nomination of the position cannot be approved. Therefore, the Tribunal must affirm the decision under review.

    DECISION

17. The Tribunal affirms the decision under review to refuse the nomination.

    C. Packer
    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).