Babylon MG Pty Ltd ATF Aria Family Trust (Migration)

Babylon MG Pty Ltd ATF Aria Family Trust (Migration) [2020] AATA 3887 (22 September 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Babylon MG Pty Ltd ATF Aria Family Trust
CASE NUMBER:  1802702
HOME AFFAIRS REFERENCE(S):          BCC2017/1475566
MEMBER:Peter Emmerton
DATE:22 September 2020
PLACE OF DECISION:  Adelaide
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Statement made on 22 September 2020 at 1:20pm
CATCHWORDS
MIGRATION – nomination of position – direct entry stream – tasks to be performed in position – size, complexity and extended operating hours of business – director’s responsibilities split between two businesses – need for general manager – tasks of occupation compared to ANZSCO description – ANZSCO not definitive statement of role – attempts to recruit citizen or permanent resident – decision under review set aside
LEGISLATION
Migration Act 1958 (Cth), s 376
Migration Regulations 1994 (Cth), rr 5.19(4)(h)(i), (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 Home Affairs on 29 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 24 April 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 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 applicant’s nomination did not satisfy r.5.19(4)(h)(ii)(D) as they were not satisfied that the tasks to be performed in the position correspond to the tasks of an occupation specified in the relevant instrument. Nor subsequently 5.19(4)(h)(i) of the Regulations because the nominated tasks do not therefore correspond to the tasks of an occupation specified by the Minister.
The applicant appeared before the Tribunal, via telephone, on 22 September 2020, represented by Mr Varun Mahajan, Director, on behalf of Babylon MG Pty Ltd ATF Aria Family Trust, in a combined hearing with MRT file reference 1808085, to give evidence and present arguments. The Tribunal also received oral evidence from Mr Siddharath Siddharath, the visa applicant.
The Tribunal exercised its discretion to hold the hearing by telephone. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, 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 telephone. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.
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.
In determining the applicant’s claims the Tribunal must first make findings of fact on material matters in dispute. This may involve an assessment of credibility and in so doing, the Tribunal is aware of the need and importance of being sensitive to the circumstances and the difficulties applicants often face before the Tribunal in their individual circumstances.
The applicants rely on the evidence given before the Tribunal together with written submissions and supporting evidence provided to the Tribunal and previously to the department.
The Tribunal notified the applicants that it was in possession of a non-disclosure certificate under Section 376. The information was provided anonymously and claimed unfair selection of the visa applicant during recruitment. As the information is anonymous and without any verification of its’ legitimacy being possible, the Tribunal informed the applicants that it would not be taken into consideration, would be put aside and would form no part in the decision making process.
The nominating entity runs a substantial hotel and bottle shop retail complex. The business is located in Perth, Western Australia. The total number of staff employed in the complex is currently 11. The Managing Director and nominator is in partnership in a separate bottle shop retail operation which he jointly manages.
The Tribunal notes that the total number of operational hours in the combined facility totals 84 hours per week in the bottle shop and 87 hours per week in the hotel, over a 7 day per week operating cycle.
The visa applicant’s substantial responsibilities, previous experience, current years of management responsibilities, formal qualifications and attributes, clearly align with the duties associated with a Retail Manager (General), ANZSCO 142111.
The visa applicant possesses a Diploma of Business and an Advanced Diploma of Business and an Associate Degree of Business, all gained in Australia.
The Tribunal is cognisant of the challenges associated with recruiting and retaining suitably experienced management and staff working in businesses with limited opportunities for advancement in challenging environments.
The Tribunal is also aware that the relatively isolated location of the business in Perth Western Australia is more likely to limit the available candidate pool and increase the possibility of constant staff churn.
The Tribunal received and accepted written evidence from the nominator of the recruitment process., which was corroborated at the hearing. This included details of their challenge to fill the role and utilisation of a major on-line recruitment site and associated advertising. A total of approximately 30 applicants responded with 10 applicants initially short-listed and interviewed. The nominator’s internal and external business network was also utilised. The visa applicant was ultimately determined to be the only suitable candidate. The Tribunal has noted the relatively long-term employment status of the visa applicant. The Tribunal notes and accepts the statement provided by the nominator attesting to their recruitment efforts and associated challenges associated with the lack of suitable qualifications, experience or commitment to the role.
The Tribunal accepts that the employment contract does not include an express exclusion of the possibility of extending the period of employment beyond the initial 2-year minimum period with the provision for extension. The contract of employment dated 17 February 2017 stated the salary as $48,800 plus 9.5%. It is observed by the Tribunal that the visa applicant was recruited very shortly after the nominator took ownership of the business in December 2019. The claim was made by the nominator that he was unable to run the business without a manager as his business partner at the time was without relevant experience. The Tribunal has seen no evidence to suggest that this claim should not be accepted.
The Tribunal perused popular employment web sites in order to ascertain the current state of the market in this field. The Tribunal observed a large number of related vacancies, in a wide variety of locations and organisations currently under recruitment. The Tribunal is not without understanding of the considerable challenges associated with recruiting and retaining specialist knowledge required in this relatively isolated geographic location. The Tribunal is cognisant that many of the observed positions may appear to be equally or more attractive environments to some candidates than the nominated position.
The Tribunal notes an RCB Certificate issued by the relevant certifying body. The date of the certificate is 12 April 2017.
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 Tribunal finds that the application was lodged electronically using the e lodgement facility. The nomination was made under the RSMS Direct Entry stream (r.5.19(4)(h)(ii)) and consequently no fee is payable. The Tribunal finds the applicant meets r.5.19(2).
The Tribunal notes that the liquor sales outlet business, under the management of the visa applicant is operating on a moderate staffing ratio of 7-8 part-time, full-time and casual staff including the visa applicant.
The Tribunal again notes the extended working hours associated with the overall complex and the extended hours, over 7 days per week of the sales outlets. This coupled with the number of employees and the complexity of tasks associated with a multi-department operation of this size would in the experience of the Tribunal, strongly suggest the need for a General Manager in each of the business divisions as demonstrated by the current Organisation Chart and verified verbally in the hearing.
The Tribunal notes and accepts that the Director states that his focus is upon the higher-level duties associated with a Director level role of a large business plus supervising the hotel operations coupled with joint management of a second bottle shop. It was obvious to the Tribunal that whilst the Director did not participate in all of the day-to-day operations of the bottle shop, he was clearly across his businesses in substantial detail and allowed a fair degree of autonomy in order to attract and retain key personnel.
It would appear logical that regardless of the skilful utilisation of technology, the Director is unable to undertake the daily duties of a Retail Manager (General) in the bottle shop under review unless present for the substantial operating hours. Nor is it likely that the operation could successfully sustain itself, maintain quality customer focussed outputs or meet its’ legal responsibilities in regards to OH&S and general HR matters, whilst complying with stringent liquor licensing regulations without a relatively autonomous, locally employed Manger ultimately overseeing each of the 2 main operational departments. The Tribunal is aware that the service of alcohol adds an additional layer of legal, individual safety and moral complexity in respect to clients and the staff employed.
The Tribunal is satisfied that the application has identified a need for a paid employee to work in the position of Retail Manager (General), under direct control of the applicant. The application has included the required written certification relating to conduct that contravenes s.245AR(1) 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.
The Tribunal has been provided with Business Tax Returns, and Profit and Loss Statements, including those produced for FY 2019, FY 2018, all of which correlated. The Tribunal also researched ASIC Registration details. It checked the status of the listed ABN and perused the company web sites. The Tribunal is satisfied that the applicant is actively, lawfully and directly, operating a business in regional Australia. 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. The Tribunal finds that r. 5.19(4)(c) is not relevant to the current nomination.
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.
The Tribunal notes that the business appears to have substantial revenues and proportionally aligned increasing gross profit. ATO Tax Returns and correlating financial statements for the business show that the revenues can sustain the ongoing employment of the visa applicant.
The growth of the nominating entity in a competitive and complex market, coupled with evidence of the organisation having multiple income stream and business units attests to its’ ability to employ the visa applicant. The Tribunal enquired about the current financial viability of the business following the impact of the Covid-19 Pandemic. It was reassured by the nominator’s explanation and saw no reason to doubt the statements made in the positive. He stated that the increase in revenue was somewhere between 10% and 20% directly attributed to the current Covid-19 pandemic. The Tribunal is satisfied that the business will be able to sustainably, employ the nominee for the required 2-year minimum period therefore r.5.19(4)(d)(i) is met.
The Tribunal has had regard to the Employment Agreement and position description. It is satisfied that the nominee will be appointed for a period of at least 2 years employment from grant of visa and the terms of employment do not include an express exclusion of the possibility of extending the period of employment.
The Tribunal observes that one of the potential challenges facing the business is retaining the visa applicant and the nominator’s obvious reliance upon their services. The Tribunal is aware that the workforce in this industry is traditionally highly mobile. The specialist skills associated with this type of operation are sought-after and readily transferable between competing businesses, frequently via industry networking. It is also cognisant of competitors cannibalising competing businesses and targeting their key staff in order to obtain a market advantage.
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.
The Tribunal has been provided with the visa applicant’s employment contract. The Tribunal accepts that the nominee’s stated annual salary of $48,800 plus Superannuation at the rate of 9.5% as reflective of their qualifications and experience.
The Tribunal researched the salaries offered for similar positions and had regard for the salary determination evidence provided by the applicant. The remuneration appears to fall within the mid-quartiles of similar positions on offer. It is satisfied that the terms and conditions of employment are equivalent to other employees with the same experience performing equivalent work in the same workplace or a similar workplace. 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 that the applicant has anything but a satisfactory record of compliance with the immigration laws of Australia. 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. The Tribunal notes that there is no evidence before the Tribunal that the applicant has anything but a satisfactory record of compliance with workplace relations law in Australia. 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 alternative requirements. These are set out in detail in the attachment to the decision. As stated above the nomination was made under the RSMS Direct Entry stream and the Tribunal has proceeded to assess the application against the criteria in r.5.19(4)(h)(ii) which require that:
·the position and nominator’s business are 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 Australian citizen or permanent resident;
·the tasks of the position correspond to those of an occupation at the ANZCO skill level 1, 2 or 3; and
·a regional certifying body has advised the Minister about certain matters relating to the position.
The Tribunal has had regard to the substantial size and scope of the nominating entity’s diverse and relatively complex business operations and the extended staffing hours required due to the operating hours of the business under review. It is self-evident that the nominator cannot operate this business entity without a relatively self-contained significant general management structure in place. Whilst the hotel complex and the bottle shop are co-located, the magnitude of marketing and retail sales in a modern outlet requires a dedicated manager who is not distracted by bars, kitchen and restaurant operations and sales.
The Tribunal again acknowledges the nominator’s split responsibilities across another separately located bottle shop in which he is a partner and joint General Manager. The combined revenues for the 2 bottle shops exceeds $4m annually.
The Tribunal is satisfied 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.
Evidence was presented to the Tribunal regarding the recruitment process including personal and professional networks, on-line job sites and proof of advertising and the subsequent challenges of finding a suitably qualified and experienced individual in a relatively isolated regional setting. There were 30 applicants, 10 initial short-listed candidates, 1 successful candidate, (the visa applicant). The Visa applicant walked into the bottle shop and presented his resume’ having seen the role advertised on Seek. He was later called in for a formal interview. The Tribunal acknowledges that there are a large number and range of related roles readily available in Perth, Western Australia and throughout Australia. The demands of the job and hours of this role may not have proven overly attractive to some candidates. The isolated location may also provide a negative employment circumstance further limiting the potential candidate pool.

The Tribunal observes that a substantially more comprehensive and complete evidence base was provided to it, than was presented to the delegate at the time of their decision. The Tribunal is satisfied that the nominator’s business is located in regional Australia.
Regulation r.5.19(4)(h)(ii)(D), requires that the tasks to be performed in the position correspond to those at ANZSCO skill level 1, 2 or 3. The delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19(4)(h)(ii)(D) as they were not satisfied that the tasks to be performed in the position correspond to the tasks of an occupation specified in the relevant instrument. Nor 5.19(4)(h)(i) of the Regulations because the nominated tasks do not subsequently correspond to the tasks of an occupation specified by the Minister.
The Tribunal has formed a different view. The Tribunal has reviewed both the relevant descriptors supplied in ANZSCO 142111 for Retail Manager (General) and the stated duties of the visa applicant. The written evidence provided prior to the hearing was tested and verified against the verbal answers provide at the hearing. Once again it notes that the business owner and nominator must by necessity occupy the role of Director in relation to this operation and is directly responsible for overseeing the general hotel operations. Whilst the Tribunal accepts that the ANZSCO descriptors are not a definitive statement regarding the role under review, nor must the Tribunal accept them as the only measurement, it has formed the view that they are a substantive useful guide.
The substantial opening hours of the combined business coupled with the number of staff selling alcohol clearly indicates the need for a General Manager to operate and manage this high-volume fast-moving consumer goods business held within the group. This would by necessity most likely lead to a substantial degree of autonomy and flexibility of tasks being associated with the role, as is reasonably expected of a Retail manager (General) in an ANZSCO level 2 designated role.
Whilst the visa applicant, would most likely report performance in all KPI areas via established systems and seek input from the Director of the business, this coincides with the Tribunal’s expectations of a Retail Manager (General) reporting directly to the Director of a business.
The Tribunal acknowledges that this is a relatively large and complex multi-faceted business currently operating in a challenging environment. It again acknowledges one of the biggest challenges facing this expanding business is the ability to recruit and retain suitable staff. The Tribunal explored with the Managing Director, that staffing is one of the biggest impediments to the continued expansion of the operation. It is in no doubt the visa applicant requires a degree of flexibility performing the many and varied work duties, as you might expect in such an operation, this is further complicated by the substantial liquor licensing requirements and regulations.
The Tribunal has concluded that a Retail Manager (General) is required to oversee the business and does operate largely in-line with the ANZSCO 142111 specifications in order to meet logistic, security and work health and safety regulations, whilst satisfying customer service and product quality expectations within the bounds of current stringent licensing requirements.
The Tribunal notes a range of business related documents, which acknowledge the visa applicant’s designation, which coincides with the complete Organisation Chart and the statements made in the hearing. It also observes the statements regarding the role he occupies provided by the Director of the business.
The position of Retail Manager (General), ANZSCO 142111, nominated by the applicant is referred to in ANZSCO as a skill level 2 position and the Tribunal is satisfied that the visa applicant is operating at that level.
The Tribunal is satisfied that the applicant meets 5.19(4)(h)(ii).
The Tribunal has had regard to Form 1404 issued by an RCB (SA Department of State Development), dated 12 April 2017 and is satisfied that the applicant has advised the Minister about matters relating to the terms and conditions of employment, the genuine need for the position and that the position cannot be filled locally.
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.
Peter Emmerton

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).

[2020] AATA 3887

22 September 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Statutory Construction

Procedural Fairness

Jurisdiction