Batra Group Pty Ltd (Migration)

[2020] AATA 6146

Batra Group Pty Ltd (Migration) [2020] AATA 6146 (12 April 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Batra Group Pty Ltd

CASE NUMBER:  1912136

HOME AFFAIRS REFERENCE(S):          BCC201//282475

MEMBER:Andrew George

DATE:12 April 2020

PLACE OF DECISION:  Darwin

DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Statement made on 12 April 2021 at 6:24pm

CATCHWORDS
MIGRATION– Direct Entry nomination stream – Retail Manager – genuine need for the nominator to employ a paid employee – no less favourable terms and condition of employment –applicant lawfully operating a business in Australia–decision under review set aside

LEGISLATION
Migration Act 1958, ss 245AR, 360
Migration Regulations 1994, rr 5.19, 5.37

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 Home Affairs on 26 April 2019 to refuse 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 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).

3. In this case, the applicant has applied for approval of a nomination, seeking to satisfy the criteria in the Direct Entry stream. The applicant was represented by Ms Boston of Visalinkz. The nominated person is Ms Prabhjot Kaur Cheema. The proposed occupation is Retail Manager (General) – 142111.

4. The delegate refused the application, finding:[1]

   Overall, I am of the view that the nominator has failed to demonstrate 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. Therefore regulations 5.19(4)(h)(ii)(B) and 5.19(4)(h)(ii) are not met and the nominator does not meet regulation 5.19(4)(h).

   [1] Notice of Decision/6.

5. In making this finding, the delegate materially reasoned:

   The nominator provided an RCB [Regional Certifying Body advice] satisfied outcome form in respect to regulation 5.19(4)(h)(ii)(B). Whilst I place some weight on this advice, I am not compelled by legislation to accept the RCB’s advice.

6. This review was listed for hearing on 8 December 2020 by MS Teams, combined with the associated visa application in Case Number 1915088. The related nomination in Case Number 1808932 and its associated visa application in Case Number 1812577.

7. The hearing was cancelled due to non-compliance with the practice directions. The review was re-listed for 9 February 2021 by MS Teams. This hearing did not proceed due to technical difficulties and proceeded as a telephone directions hearing instead due to the absence of witness statements. A statutory declaration dated 16 February 2021 was subsequently received from Mr Harry Batra on 17 February 2021.

8. Following compliance with the practice directions, the Tribunal has concluded that a further hearing is unnecessary: s.360(2)(a). On the material now before it, the Tribunal can find in favour of the visa applicant and set aside the decision under review and substitute a decision approving the nomination. It does so for the following reasons.

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. 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.

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

10. 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.

11. The Tribunal has before it a copy of the application submitted on 17 January 2018 at 19:21pm. The Tribunal is satisfied that this is the approved form and that it was accompanied by the fee prescribed in r.5.37. Page 7 of the form includes a written certification that the nominator has not engaged in conduct in relation to the nomination that contravenes s.245AR(1) of the Act.

12. The application was accompanied by a Form 1404 Regional Sponsored Migration Scheme – Regional Certifying Body advice dated 21 December 2017. This was the ‘RCB’ referred to by the delegate, upon which ‘some weight’ was placed.

13. The Regional Certifying Body is the State of Western Australia, through Skilled Migration WA in the Department of Training and Workforce Development. The Form 1404 contains a formal declaration from the State of Western Australia to the Minister, advising that the nomination satisfies the certain requirements:

    As a body approved by the Minister for Immigration and Border Protection (in an instrument in writing) for the purposes of regulation 5.19 (4) I have assessed the nomination referred to in this document against the following requirements:

    • there is a need for a paid employee in the nominated position within the business activities of the nominating employer;
    • the nominated position cannot be filled by an Australian citizen or Australian permanent resident who is living in the same local area as the nominated position; and
    • the terms and conditions of employment that are applicable to the nominated position will be no less favourable than the terms and conditions that are or would be provided to an Australian citizen or Australian permanent resident for performing equivalent work in the same workplace at the same location.

14. The delegate may not be obliged by legislation to accept the advice of the State of Western Australia, but this is not strictly relevant. The State of Western Australia remains an authoritative source and respect should be paid to its advice, particularly in the absence of contradicting evidence.

15. The Tribunal places significant weight on the advice of the State of Western Australia and, in the absence of contradicting evidence, the Tribunal accepts the advice contained in the Form 1404.

16. 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)

17. Regulation 5.19(4)(b) requires that the applicant is actively, lawfully and directly operating a business in Australia.

18. Mr Batra’s sworn evidence is that he is the sole Director of the applicant and was appointed on 1 June 2016. Mr Batra owns half of the applicant company. This evidence is consistent with the Australian Securities and Investment Commission extract before the Tribunal.[2] The Tribunal also notes the detailed evidence in Mr Batra’s statement regarding the duties of the nominated person contained in his statement. On this evidence, the Tribunal is satisfied that applicant is directly operating its restaurant business.

    [2] Hearing Book/14-21.

19. The Tribunal notes the wealth of financial documentation before it,[3] and the business leases of the Haweli and Curries by Harry restaurants.[4] The Tribunal notes the accounting evidence of Westindo Group, which says:

    We have reviewed the past and present financial position of the company, in our opinion the company is viable and a going concern and has the capacity to meet all employment obligations relating to the employment of the employees under the 187 permanent visa Scheme.

    We fully aware that the company has nominated the following employee under 187 visas –

    ·Prabhjot Cheema

    And is able to meet all financial requirements for this position with employee’s salary of $53,900 plus superannuation.

    [3] ibid/98-183.

    [4] ibid/40-

20. The Tribunal notes that Westindo Group has prepared the applicant’s financial statements and places weight on its opinion.

21. On the evidence before it, the Tribunal is satisfied that the applicant is actively and lawfully operating a business in Australia. Accordingly, the requirement in r.5.19(4)(b) is met.

    Position is not labour-hire: r.5.19(4)(c)

22. Regulation 5.19(4)(c) applies to nominators whose business activities include those relating to labour hire to an unrelated business. As there is no evidence before the Tribunal to suggest that the nominator is involved in labour hire activities, the requirement in r.5.19(4)(c) does not apply.

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

23. Regulation 5.19(4)(d) requires the nominee to be employed in the nominated position for at least two years full time, and the terms and conditions of that employment do not expressly exclude the possibility of an extension.

24. The Tribunal has before the nominated person’s employment contract dated 23 October 2020.[5] Clause 1(a) of that contract causes it to commence upon the grant of the nominated person’s visa. The same clause appeared in the nominated person’s contract dated 12 December 2017, which the Tribunal obtained from the departmental file of the associated visa application (Case Number 1915088).

    [5] ibid/197-206.

25. It is clear from Mr Batra’s evidence that the nominated person has been employed by the applicant since at least 2017, presumably under the contract dated 12 December 2017, meaning that cl.1(a) in that contract would seem to be void. In any event, the Tribunal is satisfied from the employment contracts and Mr Batra’s evidence that the nominated person has been employed full-time by the applicant. As an extension of employment beyond two years is not expressly excluded, the requirement in r.5.19(4)(d) is met.

    No less favourable terms and conditions of employment: r.5.19(4)(e)

26. 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.

27. The Tribunal notes its finding in paragraphs [11]-[13] above. The Tribunal also notes from the organisation chart that there are no comparative positions in the applicant’s business.[6] On this evidence, the Tribunal is satisfied that that the terms and conditions applicable to the position are no less favourable than those that would be provided to an Australian citizen or permanent resident performing equivalent work in the same workplace in Geraldton. Accordingly, the requirements of r.5.19(4)(e) are met.

    [6] ibid/96.

    No adverse information known to Immigration: r.5.19(4)(f)

28. 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.

29. There is adverse information before the Tribunal regarding conviction of 7 February 2020 for a failure to obtain insurance for four workers between 31 October 2017 and 18 December 2017.[7] Of this, Mr Batra has admitted the following:

    With reference to workers compensation conviction dated 2017, it was agreed by business and court that it was due to administrative error. Controls have been implemented to ensure that no such breaches cab be repeated. Fundamentally it was the result of internal restructure that involved changes to domain, email address and bank accounts, the combination resulting in the business paying a suitable penalty and the matter was resolved.

    [7] ibid/36.

30. Indeed, the applicant was fined $2,000 and paid the sum of the total insurance premiums avoided. Given the measures that the applicant has put in place to prevent reoffending, the Tribunal regards it as reasonable to disregard this adverse information.

31. Accordingly, the requirements of r.5.19(4)(f) are met.

    Satisfactory compliance with workplace relations laws: r.5.19(4)(g)

32. 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.

33. There is no evidence before the Tribunal that the applicant has had a less than satisfactory record of compliance with workplace relations laws in the locations in which it operates and employs staff. Accordingly, the requirements of r.5.19(4)(g) are met.

    Tasks of the position, genuine need for the position r.5.19(4)(h)

34. Regulation 5.19(4)(h) contains several alternative requirements. These are set out in detail in the attachment to the decision. From findings already made in paragraphs [11] to [13] above, the Tribunal is satisfied of the following.

    a.the position and business is located in ‘regional Australia’, being Geraldton in the State of Western Australia, and a Regional Certifying Body, being the State of Western Australia, has advised the Minister about the matters in r.5.19(4)(e) and r.5.19(4)(h)(ii)(B) & (C): paragraph

    b.there is a genuine need for the nominator to employ the person identified under r.5.19(4)(a)(ii) as a paid employee to work in the position under the nominator’s direct control; and

    c.the position cannot be filled by an Australian citizen or permanent resident who is living in the same local area.

35. Ms Boston has made detailed written submissions as to the tasks to be performed in the nominated position and how they apply to those specified for a Retail Manager (General) – 142111. The Tribunal’s concern is that the nominated position is in fact more akin to that of a Café or Restaurant Manager – 141111, which would be consistent with the VETASSESS Skilled Migration Assessment dated 5 June 2020.[8]

    [8] ibid/209-212.

36. The Tribunal notes Mr Batra’s evidence that, “In summary, the position encompasses numerous responsibilities that ensure the business not only is capable of trading everyday but also that ensures we meet any state regulatory/compliance audits and functions”. This is material given the ‘adverse information’ known to Immigration about the applicant’s conviction for not properly maintaining its insurance.

37. The Tribunal accepts Mr Batra’s evidence, including that which relates to the decision making, staff management, rostering and training, and marketing functions of the nominated position across two restaurants. The substance of these tasks is consistent with those of a Retail Manager (General) – 142111, rather than a Café or Restaurant Manager – 141111, albeit by a narrow margin.

38. Accordingly, the requirements of r.5.19(4)(h) are met.

39. 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

40. The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

    Andrew George
    Member

    
    

    ATTACHMENT  -  EXTRACTS FROM THE MIGRATION REGULATIONS 1994

    5.19Approval of nominated positions (employer nomination)

    …

    (2)The application must:

    (a)be made in accordance with approved form 1395…; and

    (aa) include a written certification by the nominator stating whether or not the nominator has engaged in conduct, in relation to the nomination, that constitutes a contravention of subsection 245AR(1) of the Act; and

    (b)be accompanied by the fee mentioned in regulation 5.37.

    …

    Direct Entry nomination

    (4)The Minister must, in writing, approve a nomination if:

    (a)the application for approval:

    (i)       is made in accordance with subregulation (2); and

    (ii)      identifies a need for the nominator to employ a paid employee to work in the position under the nominator’s direct control; and

    (b)the nominator:

    (i)       is actively and lawfully operating a business in Australia; and

    (ii)      directly operates the business; and

    (c)for a nominator whose business activities include activities relating to the hiring of labour to other unrelated businesses — the position is within the business activities of the nominator and not for hire to other unrelated businesses; and

    (d)both of the following apply:

    (i)       the employee will be employed on a full-time basis in the position for at least 2 years;

    (ii)      the terms and conditions of the employee’s employment will not include an express exclusion of the possibility of extending the period of employment; and

    (e)the terms and conditions of employment applicable to the position will be no less favourable than the terms and conditions that:

    (i)       are provided; or

    (ii)      would be provided;

    to an Australian citizen or an Australian permanent resident for performing equivalent work in the same workplace at the same location; and

    (f)either:

    (i)       there is no adverse information known to Immigration about the nominator or a person associated with the nominator; or

    (ii)      it is reasonable to disregard any adverse information known to Immigration about the nominator or a person associated with the nominator; and

    (g)the nominator has a satisfactory record of compliance with the laws of the Commonwealth, and of each State or Territory in which the applicant operates a business and employs employees in the business, relating to workplace relations; and

    (h)either:

    (i)       all of the following apply:

    (A)the tasks to be performed in the position will be performed in Australia and correspond to the tasks of an occupation specified by the Minister in an instrument in writing for this sub-subparagraph;

    (AA)there is a genuine need for the nominator to employ the person identified under subparagraph (a)(ii), as a paid employee, to work in the position under the nominator’s direct control;

    (AAA)the occupation is applicable to the person identified under subparagraph (a)(ii) in accordance with the specification of the occupation;

    (B)either:

    (I)the nominator’s business has operated for at least 12 months, and the nominator meets the requirements for the training of Australian citizens and Australian permanent residents that are specified by the Minister in an instrument in writing for this sub-sub-subparagraph; or

    (II)the nominator’s business has operated for less than 12 months, and the nominator has an auditable plan for meeting the requirements specified in the instrument mentioned in sub-sub-subparagraph (I); or

    (ii)      all of the following apply:

    (A)the position is located in regional Australia;

    (B)there is a genuine need for the nominator to employ the person identified under subparagraph (a)(ii), as a paid employee, to work in the position under the nominator’s direct control;

    (C)the position cannot be filled by an Australian citizen or an Australian permanent resident who is living in the same local area as that place;

    (D)the tasks to be performed in the position correspond to the tasks of an occupation specified by the Minister in an instrument in writing for this sub-subparagraph;

    (DA)the occupation is applicable to the person identified under subparagraph (a)(ii) in accordance with the specification of the occupation;

    (E)the business operated by the nominator is located at that place;

    (F)a body that is:

    (I)specified by the Minister in an instrument in writing for this sub-subparagraph; and

    (II)located in the same State or Territory as the location of the position;

    has advised the Minister about the matters mentioned in paragraph (e) and sub-subparagraphs (B) and (C).