BGA Trading Pty Ltd (Migration) - [2023] AATA 891

BGA Trading Pty Ltd (Migration) [2023] AATA 891 (12 April 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  BGA Trading Pty Ltd
REPRESENTATIVE:  Mr Gagan Butalia (MARN: 1791504)
CASE NUMBER:  1921307
HOME AFFAIRS REFERENCE(S):          BCC2018/1250673
MEMBER:Terrence Baxter
DATE:12 April 2023
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Statement made on 12 April 2023 at 9:39am
CATCHWORDS
MIGRATION – application for approval of nomination of position – direct entry stream – store manager – tasks of position – nominee the brother-in-law of director – position in regional area cannot be filled locally – evidence of advertising for position provided – comparison of tasks of position and ANZSCO classification – scope of business operations and nominee’s qualifications, experience and performance of position – decision under review set aside
LEGISLATION
Migration Regulations 1994 (Cth), r 5.19(4)(h)(ii)(D)
CASES
Bharaj Construction Pty Ltd v MIBP [2016] FCCA 902
MIBP v Jayshree Enterprises Pty Ltd [2017] FCA 264
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 16 July 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, BGA Trading Pty Ltd, applied for approval on 15 March 2018. The applicant nominated Mr Navdeep Singh (the nominee) in the position of Store Manager. At the time of the application, the applicant’s business traded as 5Star Supermarket Gulargambone from premises situated at 10 Bourbah Street, Gulargambone, New South Wales. The applicant’s business now trades from the same address as Friendly Grocer Gulargambone. The applicant has employed the nominee as Assistant Store Manager on a part-time basis from June 2016, as Store Manager (part-time) from July 2017 and full-time in that position since August 2021.
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 that the applicant’s nomination did not satisfy reg 5.19(4)(h)(ii)(D) of the Regulations because the delegate found that the tasks to be performed in the position did not correspond to the tasks of an occupation specified by the Minister in the relevant instrument.
The applicant lodged an application for review of the delegate’s decision with the Tribunal on 2 August 2019.
The sole director and shareholder of…

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.

Continue reading BGA Trading Pty Ltd (Migration)

Details

AGLC: BGA Trading Pty Ltd (Migration) [2023] AATA 891
Case: [2023] AATA 891
Decision Date: 12 April 2023

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered an application by BGA Trading Pty Ltd for approval of a nomination for a position under the Direct Entry stream of the Regional Sponsored Migration Scheme. The nominated position was that of a store manager in a regional area, and the nominee was the brother-in-law of a director of the applicant company. The core of the dispute revolved around whether the applicant had demonstrated a genuine need for the position and that it could not be filled by a local Australian resident, as well as whether the nominee's duties aligned with the relevant ANZSCO classification.

The Tribunal was required to determine if the applicant met the requirements for approval of the nomination as set out in regulation 5.19(4) of the Migration Regulations 1994. Specifically, the Tribunal had to assess whether the position was located in regional Australia, if there was a genuine need for the nominee to be employed, if the position could not be filled locally, and if the tasks of the position corresponded to an occupation specified in the relevant legislative instrument. The Tribunal also considered whether the applicant had a satisfactory record of compliance with workplace relations laws and if there was any adverse information known to the Department of Home Affairs.

The Tribunal's reasoning focused on the evidence presented, including extensive documentation relating to the applicant's business operations, financial standing, and recruitment efforts, as well as the nominee's qualifications and employment history. The Tribunal noted that the applicant's business was located in Gulargambone, New South Wales, a designated regional area. Crucially, the Tribunal found that the applicant had provided evidence of advertising for the position and that it could not be filled locally. The Tribunal also compared the duties of the nominated position with the ANZSCO classification for Retail Manager (General) and was satisfied that they corresponded. The Tribunal concluded that the applicant had met the requirements of regulation 5.19(4), including demonstrating a genuine need for the position and that the nominee's qualifications and experience were suitable.

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

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

The nominee gave evidence of his employment in the position and the tasks performed by him in the position.Evidence presented after the hearing After the hearing, the applicant produced to the Tribunal the following documents: a.A business activity statement of the applicant for the period from July 2021 to September 2021. b.A company tax return for the 2021 financial year. c.Financial statements of the applicant for the 2021 and 2022 financial years. d.Job advertisements for the position accompanied by submissions of the applicant to the RCB regarding the recruitment efforts dated 5 March 2018 and 13 September 2018. e.A comparison of the duties of the nominated position against the duties of the occupation of Retail Manager (General) specified in the Australian and New Zealand Standard Classification of Occupations (ANZSCO). f.A market salary report dated 20 February 2023 accompanied by current market salary evidence. g.An employment contract of the nominee dated 17 February 2023. h.An ASIC business name registration and extract of the name Friendly Grocer Gulargambone. i.A business bank account transaction statement of the applicant for the period of 13 May 2022 to 15 June 2022. j.A submission from the applicant’s accountant dated 21 February 2023. k.An ATO transaction statement of the applicant for the period from 21 February 2021 to 21 February 2023. l.An Advanced Diploma of Leadership and Management awarded to the nominee accompanied by an academic transcript. m.Confirmation that the nominee had completed the requirements for the degree of Bachelor of Business Information Systems accompanied by an academic transcript. n.PAYG payment summaries of the nominee for the 2017, 2018, 2019, 2020, 2021 and 2022 financial years. o.A taxation notice of assessment of the nominee for the 2022 financial year. p.A PAYG payment summary of Mr Singh for the 2022 financial year. q.A taxation notice of assessment of Mr Singh for the 2022 financial year.r.An Income Statement of the nominee for the period from 1 July 2022 to 29 January 2023. s.A submission of the representative dated 21 February 2023. 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) of the Migration Act 1958 (Cth) (the Act). 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. Having regard to the documentation in the file of the Department, the Tribunal is satisfied that the application for approval was in the approved form. The application relates to a visa in the Direct Entry nomination stream seeking to meet the requirements in the Regional Sponsored Migration Scheme (RSMS) and consequently no fee is payable (reg 5.19(2) and reg 5.37(4) of the Regulations). The application included a written certification stating that the applicant had not engaged in conduct in relation to the nomination that contravenes s 245AR(1) of the Act. The requirements of reg 5.19(2) and consequently of reg 5.19(4)(a)(i) are therefore met.

Decision

Reasons for decision

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.Evidence presented prior to the hearing The applicant produced to the Department of Home Affairs (the Department) the following documents:a.Market salary evidence. b.An employment contract of the nominee dated 28 February 2018. c.A lease agreement of the applicant’s business premises. d.Submissions from the applicant’s accountant dated 23 February 2018 and 12 March 2019. e.Payslips of Mr Singh evidencing his full-time employment as a Senior Functional Analyst. f.Job advertisements for the position. g.Submissions of the applicant to the Regional Certifying Body (RCB) Regional Development Australia Orana, Dubbo dated 2 March 2018 and 5 March 2018. h.A PAYG payment summary of the nominee for the 2017 financial year. i.Medical documents regarding Mr Singh’s father, Mr Baldev Singh. j.Financial statements of the applicant for the 2017 and 2018 financial years. k.An organisational chart. l.An ASIC business name registration certificate and business name extract for the name 5Star Gulargambone. m.Tax invoices from multiple suppliers addressed to the applicant. n.Business activity statements of the applicant for the period of July 2017 to December 2018. o.A franchise agreement with SPAR Licensing Pty Ltd dated 9 May 2016. p.Correspondence and a Form 1404 from the RCB dated 6 November 2018.q.A submission from the applicant dated 10 July 2019. The applicant produced to the Tribunal the following documents: a.A copy of the delegate’s decision.b.An ASIC Company extract of the applicant. c.Financial statements of the applicant for the 2020 and 2021 financial years and a draft statement for the 2022 financial year. d.Business activity statements of the applicant for the period from October 2018 to June 2021, and from October 2021 to September 2022. e.Reference letters of the nominee dated 25 July 2022, 27 July 2022 and 14 August 2022. f.Copies of various documents provided to the Department. g.Company tax returns of the applicant for the 2019 and 2020 financial years. h.An updated organisational chart. i.Franchise agreements with Liquor Marketing Group Limited dated 14 November 2016 and with Four Squares Stores (QLD) Limited dated 3 May 2021. j.Business bank account transaction statements for periods from 16 September 2022 to 13 January 2023. k.A submission of the applicant dated 24 January 2023.l.A submission of the representative dated 30 January 2023. Evidence presented regarding the applicant’s operations The applicant’s business is conducted in Gulargambone, New South Wales which is a town in rural New South Wales approximately 490 km by road from Sydney. Gulargambone is located on the Castlereagh Highway between the towns of Gilgandra and Coonamble and is approximately 40 km each way from those towns.

Ratio Decidendi

Legal Principle Established

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. There is no evidence before the Tribunal that there is any adverse information of the type described in the relevant definitions known to the Department about the applicant or any associated person. 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 no evidence before the Tribunal to suggest that the applicant has an unsatisfactory record of compliance with workplace relations laws of the Commonwealth or any State or Territory in which the applicant operates a business. The Tribunal is satisfied that the applicant does have a satisfactory record of compliance. 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 IMMI, the occupation is applicable to the proposed employee in accordance with any specifications made in that instrument, there is a genuine need for the nominee to be employed as a paid employee in the position, and certain 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 (see legislative instrument IMMI 17/058), 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 applicant indicated in the nomination application that it was applying under the RSMS in the Direct Entry nomination stream. The applicant indicated that the postcode where the position was to be filled was 2828 (Gulargambone, New South Wales). Based on the evidence, the Tribunal is satisfied that the position and the applicant’s business are located at 10 Bourbah Street, Gulargambone, New South Wales 2828. As this postcode is specified in the relevant instrument as being in regional Australia, the requirements of reg 5.19(4)(h)(ii) must be met by the applicant.Regulation 5.19(4)(h)(ii)(A) – the position is located in regional Australia