B & E Knight Pty Ltd & A J Knight Pty Ltd (Migration) - [2021] AATA 3207

B & E Knight Pty Ltd & A J Knight Pty Ltd (Migration) [2021] AATA 3207 (26 July 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  B & E Knight Pty Ltd & A J Knight Pty Ltd
CASE NUMBER:  1916460
HOME AFFAIRS REFERENCE(S):          BCC2018/275594
MEMBER:Karen McNamara
DATE:26 July 2021
PLACE OF DECISION:  Sydney
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Statement made on 26 July 2021 at 11:44am
CATCHWORDS
MIGRATION – nomination – Direct Entry nomination stream – Café or Restaurant Manager – applicant is suitably qualified for the position – genuine need for the nominator to employ a paid employee – actively and lawfully operating a business in Australia – no less favourable terms and conditions of employment – decision under review set aside
LEGISLATION
Migration Act 1958, s 245AR
Migration Regulations 1994, rr 1.13, 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 June 2019 to reject the application by B & E Knight Pty Ltd & A J Knight Pty Ltd (the applicant) 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 17 January 2018. 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 stream (r.5.19(3)) and a Direct Entry nomination stream (r.5.19(4)). 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 nomination did not satisfy r.5.19(4)(h)(ii)(D) of the Regulations because the application did not demonstrate that the tasks to be performed in the position correspond to the tasks of an occupation that is specified in the relevant instrument for sub- subparagraph 5.19(4)(h)(ii)(D).
The applicant applied to the Tribunal on 24 June 2019, for review of the delegate’s decision. The applicant submitted a copy of the primary decision record with the review application.
On 20 July 2021, the applicant represented by Ms Alexia Knight (referred to below as the applicant) appeared before the Tribunal via video, to give evidence and present arguments. The Tribunal also received oral evidence from Mr Ravish Dhammi (the nominee) who appeared via telephone, in the related matter for the subclass 187 visa (AAT Case file 1920188). The related matters were heard concurrently in a combined hearing.
The Tribunal exercised its discretion to hold the hearing by video. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable…

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.

Keep reading for free

Create a free CaseChat account to read B & E Knight Pty Ltd & A J Knight Pty Ltd (Migration) and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2021] AATA 3207
Decision Date: 26 July 2021

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered an application by B & E Knight Pty Ltd & A J Knight Pty Ltd, trustees for family trusts operating roadhouses, hotels, and motels in remote western Queensland. The applicants sought approval for an employer nomination for the position of Restaurant Manager under the Direct Entry nomination stream. The core dispute revolved around whether the applicants met all the requirements stipulated in regulation 5.19(4) of the Migration Regulations 1994 for the approval of this nomination.

The Tribunal was required to determine if the applicants had satisfied each of the criteria outlined in regulation 5.19(4). This included assessing whether the application was in the approved form, identified a genuine need for a paid employee under the nominator's direct control, and whether the nominator was actively and lawfully operating a business in Australia. Further, the Tribunal had to consider if the terms and conditions of employment were no less favourable than those offered to Australian citizens or permanent residents, if there was no 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 nominated position met the requirements of regulation 5.19(4)(h), particularly concerning the tasks of the position and a genuine need for the role in regional Australia.

In its reasoning, the Tribunal found that the applicants had met the requirements of regulation 5.19(4)(a)(i) and (ii) by lodging a compliant application that identified a genuine need for a Restaurant Manager at their Camooweal Roadhouse and Julia Creek Hotel. The Tribunal was satisfied that the nominator was actively and lawfully operating its businesses, and that the nominated position's terms and conditions would not be less favourable than those provided to local workers, satisfying regulation 5.19(4)(e). Furthermore, the Tribunal found no adverse information concerning the nominator and noted a satisfactory record of compliance with workplace relations laws, fulfilling regulations 5.19(4)(f) and (g). The Tribunal specifically addressed regulation 5.19(4)(h)(ii), concluding that the position was located in regional Australia and that there was a genuine need for the role, which could not be filled locally, aligning with the specified occupation.

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

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

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.Background The applicant (B & E Knight Pty Ltd & A J Knight Pty Ltd) are trustees for separate family trusts that own and operate roadhouses, hotels and motels in remote western Queensland. The applicant’s business interests include the Camooweal, Julia Creek and Cloncurry Roadhouses, the Julia Creek Hotel and the Mount Isa Service Station. On 17 January 2018, the applicant lodged an application for an employer nomination approval for the position of Restaurant Manager under the occupation of Café or Restaurant Manager (ANZSCO 141111) under the Regional Sponsored Migration Direct Entry stream. The nominated base rate and guaranteed earnings is $54,000 per annum. The Tribunal notes that numerous evidence and submissions were lodged by or on behalf of the applicant. While the Tribunal has considered all of same, only that which was considered material to its decision has been expressly referred to herein. 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 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 (r.5.37(2)(a)). The application also included written certification relating to conduct that contravenes s.245AR(1) of the Migration Act 1958, declared 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 a paid employee to work in the position under the nominator’s direct control, the Tribunal has had regard to the evidence before it, including written submissions and the oral evidence received at the hearing by the applicant. In support of the need for the position the applicant has provided evidence in the form of references from the respective Federal and State Members of Parliament, representatives submission dated 21 May 2021, genuine position statement (undated) and oral evidence provided at the hearing on 20 July 2021. The applicant told the Tribunal the need to employ a paid employee to work in the nominated position is essential to the operational and business needs of the applicant’s restaurants located at the Camooweal Roadhouse and Julia Creek Hotel. Accordingly, the Tribunal is satisfied the requirement in r5.19(4)(a)(ii) is met.

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 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.Background The applicant (B & E Knight Pty Ltd & A J Knight Pty Ltd) are trustees for separate family trusts that own and operate roadhouses, hotels and motels in remote western Queensland. The applicant’s business interests include the Camooweal, Julia Creek and Cloncurry Roadhouses, the Julia Creek Hotel and the Mount Isa Service Station. On 17 January 2018, the applicant lodged an application for an employer nomination approval for the position of Restaurant Manager under the occupation of Café or Restaurant Manager (ANZSCO 141111) under the Regional Sponsored Migration Direct Entry stream. The nominated base rate and guaranteed earnings is $54,000 per annum. The Tribunal notes that numerous evidence and submissions were lodged by or on behalf of the applicant. While the Tribunal has considered all of same, only that which was considered material to its decision has been expressly referred to herein. 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 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 (r.5.37(2)(a)). The application also included written certification relating to conduct that contravenes s.245AR(1) of the Migration Act 1958, declared 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 a paid employee to work in the position under the nominator’s direct control, the Tribunal has had regard to the evidence before it, including written submissions and the oral evidence received at the hearing by the applicant. In support of the need for the position the applicant has provided evidence in the form of references from the respective Federal and State Members of Parliament, representatives submission dated 21 May 2021, genuine position statement (undated) and oral evidence provided at the hearing on 20 July 2021. The applicant told the Tribunal the need to employ a paid employee to work in the nominated position is essential to the operational and business needs of the applicant’s restaurants located at the Camooweal Roadhouse and Julia Creek Hotel.

Decision

Reasons for decision

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.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 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: 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 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: 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 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 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 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 in the relevant instrument, the occupation is applicable to the proposed employee in accordance with any specifications made in that instrument, and 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 evidence before the Tribunal indicates that the applicant’s business, which is operated by the applicant and the position are located in Camooweal & Julia Creek, North West Queensland, postcodes 4828 and 4823 which are postcodes specified in the relevant instrument as being in regional Australia, accordingly r.5.19(4)(h)(ii)(A) and (E) are met. The Tribunal next considered whether there is a genuine need for the applicant to employ a Restaurant Manager under the occupation of Café or Restaurant Manager (ANZSCO 141111) and for the tasks of that position.