Banta Singh Holdings Pty Ltd AFT The Banta Singh Family Trust (Migration)

Banta Singh Holdings Pty Ltd AFT The Banta Singh Family Trust (Migration) [2023] AATA 1769 (18 April 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Banta Singh Holdings Pty Ltd AFT The Banta Singh Family Trust
CASE NUMBER:  1925118
HOME AFFAIRS REFERENCE(S):          BCC2017/2255249
MEMBER:Amanda Mendes Da Costa
DATE:18 April 2023
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Statement made on 18 April 2023 at 8.36am

CATCHWORDS
MIGRATION – Employer Nomination – approval of nominated position – Direct Entry Nomination – Retail Manager – genuine need – four Subway franchise stores – operating without one for over three years – difficulties associated in securing suitably qualified and experienced staff – growing business activities – decision under review set aside

LEGISLATION
Migration Regulations 1994 (Cth), r 5.19

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 19 August 2019 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 26 June 2017. 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 reg 5.19(4)(h)(ii)(B) and reg 5.19(4)(h)(ii)(D) of the Regulations because the applicant had not demonstrated a genuine need for it to employ a paid employee to work in the nominated position of Retain Manager under the applicant’s direct control. Nor was the delegate satisfied that the applicant had demonstrated that the tasks to be performed in the nominated position corresponded to the tasks of an occupation specified by the Minister in an instrument in writing.
Via an internet-enabled audio-visual platform, Mr Savneet Dhillon and Mr Ikwinder Dhillon appeared (on behalf of the applicant) before the Tribunal on 3 April 2023 to give evidence and present arguments.
Although the applicant was represented in relation to the review, its representative did not participate in the hearing.
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 a paid employee to work in the position under their direct control.
The Tribunal has had regard to the material provided and oral evidence and is satisfied that the application is compliant and in particular:
·the application was made on the approved form and was accompanied by the fee prescribed in reg 5.37;
·The application includes a written certification stating that the nominator has not engaged in conduct in relation to the nomination that contravenes s 245AR(1); and
·The application identifies a need for the nominator to employ an identified person, Mr Gurbinder Singh Grewal, as a paid employee to work in the position of Retail Manager (General) under the direct control of the applicant.
Accordingly, the requirement in reg 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 applicant has provided current ASIC documents and financial reports and other documents that demonstrate to the satisfaction of the Tribunal that the applicant has a business which is actively operating. That evidence is supported by the oral evidence of Messrs. Dhillon and Singh about the current operation for the business, which is accepted by the Tribunal.
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.
Documentary evidence including financial statements and organisation chart indicate the applicant is not operating a labour hire business. In oral evidence Messrs. Dhillon and Singh stated that their business is not involved in labour hire activities and the nominated position is within the applicant’s business and not for hire to unrelated businesses.
Accordingly, the requirement in reg 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 Tribunal has had regard to the Contract of Employment provided, dated 28 October 2022 and updated Contract of Employment dated 30 January 2023 between the applicant and the nominee, together with various financial documents.
The employment contracts confirms that the nominee will be employed full time and for a minimum of two years. An extension of the term of employment is not expressly excluded. The financial documents indicate that the business is in a financial position to employ the nominee for at least two years.
Accordingly, the requirement in reg 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 updated Contract of Employment dated 30 January 2023 between the applicant and the nominee, shows the nominee’s annual salary is $60,5000 per annum and that the applicant will also make superannuation payments in accordance with the Superannuation Guarantee (Administration) Act 1992. The Contract of Employment and updated Contract of Employment each contain a standard set of terms and conditions of employment which are consistent with the National Employment Standards.
The Tribunal notes that the applicant does not currently employ an Australian citizen or permanent resident in the nominated position.
The Tribunal is further satisfied that information from Payscale.com[1] indicates that the salary range for a Retail Store Manager (General) in Australia is from $49,000 to $73,000 per annum with a median figure of $56,000. Given the proposed salary for the nominee is $60,500 per annum (plus superannuation), the Tribunal is satisfied it is within the PayScale range.
[1] >
Based on the above matters, the Tribunal is satisfied that the terms and conditions applicable to the nominated position will be no less favourable than those that 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 reg 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.
The Tribunal notes that the Department provided it with a Certificate pursuant to s375A of the Act (dated 19 August 2019) which applies to information which identifies the source of information received in the TRIM reference numbers of OPD2018/513336 and OPD2019/340559 and notes contained in TRIM reference number ADD2019/4889228 of file number BCC2017/2255249. The Delegate certifies that the disclosure of this material would be contrary to the public interest because it may:
·Prejudice a current or pending investigation of a possible breach of the law or enforcement of the law in a particular instance.
·Disclose lawful methods for preventing, detecting and investigating breaches or evasions of the law which would or be likely to prejudice the effectiveness of those methods.
·Where information was provided ‘in confidence’, the provider of the information has not consented to the disclosure of the information to the applicant.
The Tribunal has considered the contents of both the certificate and the information to which is applies. It is satisfied that the Certificate is valid and therefore has not disclosed the information to which it refers to the applicant or its representative. The Tribunal explained this to Messrs. Dhillon and Singh during the hearing.
However, the Tribunal considers that the information referred to in the s375A certificate does not indicate that the information amounts to ‘adverse information’ for the purpose of reg 1.13A.
Accordingly, the requirements of reg 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 nothing before the Tribunal with regard to a failure to comply 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. Messrs. Dhillon and Singh told the Tribunal that they were not aware of any breaches in relation to workplace relations laws by the applicant.
For these reasons the Tribunal is satisfied that the applicant has a satisfactory record of compliance with workplace relations laws in the locations in which it operates a business and employs staff.
Accordingly, the requirements of reg 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 in the relevant legislative 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 paid position under the nominator’s direct control which cannot be filled by a locally resident Australian citizen or permanent resident, the tasks of the position correspond to those of an occupation specified in the relevant legislative instrument, the occupation is applicable to the proposed employee in accordance with the specification of the occupation and that a regional certifying body has advised the Minister about certain matters relating to the position.
The Tribunal has had regard to the documents provided by the applicant together with the oral evidence of Messrs. Dhillon and Singh. In particular, the Tribunal has considered the organisational chart, job description, the Australia and New Zealand Standard Classification of Occupations (ANZSCO), and the Regional Certifying Body advice, dated 2 August 2017.
The applicant operates four franchise businesses located in regional Victoria - Leongatha, Wonthaggi, Warragul, Moe, all trading as Subway stores as franchises of Subway Australia Pty Ltd. The applicant has also recently[2] established a further business in Leongatha which operates a restaurant providing Indian cuisine and specialising in Tandoori food.
[2] The restaurant commenced trading in February 2023.
The applicant commenced its business in 2012 when it commenced trading in Leongatha and established two further stores in 2015. The fourth store commenced trading in 2022. The nominated position is in the Leongatha store, located at 7B Anderson Street, Leongatha, Victoria, 3953.
During the hearing the Tribunal discussed with Messrs. Singh and Dhillon their role in the business and the need for the nominated position in the Leongatha store. They explained that they divide the responsibility for the operation of the business into day-to-day operations which are undertaken by Mr Dhillon and the administration for the business (including financial documentation, payroll and superannuation records and taxation obligations) which are the responsibility of Mr Singh. In addition, Messrs. Singh and Dhillon are responsible for operating their new restaurant where Mr Singh is currently the Chef.
Messrs. Dhillon and Singh explained that the staff of the applicant’s four Subway stores are part-time or casual employees and most are students. The applicant has experienced difficulties in recruiting and retaining suitable staff, which is partially due to their location in regional Victoria but has also been exacerbated by staff shortages due to the Covid-19 pandemic. Messrs. Dhillon and Singh further explained that the opening of their Indian restaurant had been delayed for nearly two years due to the difficulties associated with securing suitable staff, including the services of a Tandoor chef.
The nominee was previously employed in the nominated position for a period of two years. However, when the nomination application was refused by the delegate, he resigned his employment and returned to Melbourne. Messrs. Dhillon and Singh told the Tribunal that when the applicant lodged its review application with the Tribunal, the applicant told them that he would return to his employment with them in Leongatha if the review application was successful. Messrs. Dhillon and Singh explained to the Tribunal that if the nomination is granted, they will re-employ the nominee in the nominated position.
The Tribunal questioned them about the need for the nominated position, given that the business has been operating without one for over three years. Messrs Dhillon and Singh explained that the difficulties associated in securing suitably qualified and experienced staff in regional Victoria and the effect on the business of Covid-19 restrictions led them to assume the day-to-day management of the business. However, with the growth of their business Messrs. Dhillon and Singh are experiencing considerable difficulties in managing all of their business interests, particularly given two of the Subway stores are located in Gippsland and the remaining two are in the La Trobe valley, a distance of over 65 kilometres. This involves them in considerable travel to oversee their employees. They explained that the recent opening of their restaurant leaves them with little time to devote to the day-to-day operations of the Subway businesses.
The Tribunal discussed with Messrs. Dhillon and Singh the tasks of a Retail Store Manager (General) as set out in the ANZSCO dictionary for that occupation. They explained that although the Leongatha Subway store (together with the three other stores) is a franchise business, the nominated position still involves a substantial degree of autonomy and individual decision making about the operation of the business. This includes:
·Undertaking weekly stock taking and submitting online orders for stock each Wednesday.
·Maintaining stock levels and submitting orders for vegetables three times per week.
·Controlling the selection, supervision and training of staff.
·Ensuring that staff are well-presented and dressed appropriately.
·Ensuring compliance with occupational health and safety regulations.
·Undertaking budgeting for the business.
·Promoting the business within the local community.
Messrs. Dhillon and Singh explained that although Subway undertakes national marketing of their menu and stores, it is important for the Leongatha business to undertake its own promotion and marketing schemes, particularly within the sporting, school and social groups in the local community, which involves the Store Manager visiting those groups and offering deals with discount prices for group purchasing.
They further explained that although Subway stores offer the same menu, socio demographic differences mean that certain menu items are more popular in some stores than others, and the nominated position involves taking this into account in ordering stock.
Messrs. Dhillon and Singh further explained to the Tribunal that given the employees of the Leongatha store are young and employed on a part-time or casual basis, there is an increased requirement for a full-time Store Manager to ensure their punctuality and work-performance.
The organisational chart indicates that the positions comprise one Store Manager (the nominated position) overseeing five part-time store assistant positions and four casual employees (as required during peak periods and holidays). According to the organisational chart, the Store Manager reports to the Directors of the business.
The Tribunal notes that the ANZSCO dictionary describes the role of a Retail Manager (General) (ANZSCO 142111) as organising and controlling the operations of establishments which provide retain services. The tasks of the role include:
·Determining product mix, stock levels and service standards.
·Formulating and implementing purchasing and marketing policies, and setting prices.
·Promoting and advertising the establishments goods and services.
·Selling goods and services to customers and advising them on product use.
·Maintaining records of stock levels and financial transactions.
·Undertaking budgeting for the establishment.
·Controlling selection, training and supervision of staff.
·Ensuring compliance with occupational health and safety regulations.
Based on the oral and documentary evidence before it, the Tribunal finds:
·The position and business are located in regional Victoria which is specified in the relevant legislative instrument IMMI 17/059 as ‘regional Australia’.
·Whilst the nominee is not currently employed by the applicant, it notes that he was employed it notes that he was previously employed in the nominated position for a period of two years, until the nomination application was refused by the delegate. The Tribunal accepts the oral evidence of Messrs. Dhillon and Singh that the reason for not replacing him in the interim was due to the difficulties in recruiting a suitable person to manage the Leongatha store. The Tribunal is further satisfied that the applicant’s growing business activities and Messrs. Dhillon and Singh’s increased commitments (particularly to their new restaurant) leave them with limited time to devote to the management of their individual businesses, including the Leongatha store. This leads the Tribunal to find that the applicant has a genuine need to employ a Retail Manager (General) in its Leongatha Subway outlet.
·The applicant has provided recruitment records and oral evidence from Messrs. Dhillon and Singh which describe the difficulty in filing and retaining staff in regional Victoria. The Tribunal is satisfied that the position cannot be filled by an Australian citizen or permanent resident who is living in the same local area.
·The position of Retail Manager (General) ANZSCO 142111to be filled by the nominee will be the only position of that type employed in the applicant’s Leongatha Subway store. The Tribunal is satisfied that the applicant requires a store manager, to perform the tasks set out I the job description provided. The Tribunal is further satisfied that these tasks substantially correspond to those set out for the nominated occupation in ANZSCO 142111, which is specified in IMMI 17/058 as an occupation for subclass 187 visas.
·A Regional Certifying Body, Regional Development Victoria, is listed in the relevant instrument IMMI 17/059, and located in the same State or Territory as the position, has advised the Minister (on 2 August 2017) about the matters in reg 5.19(4)(e) and reg 5.19(4)(h)(ii)(B) and (C). The Tribunal accepts the information contained in that advice.

Accordingly, the requirements of reg 5.19(4)(h) are met.
Based on the findings above, the Tribunal is satisfied that the applicant meets the requirements of reg 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.
Amanda Mendes Da Costa
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).

[2023] AATA 1769

18 April 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction