Bhagwati Redcliffe Pty Ltd (Migration)

Bhagwati Redcliffe Pty Ltd (Migration) [2019] AATA 1075 (15 May 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division
APPLICANT:  Bhagwati Redcliffe Pty Ltd
CASE NUMBER:  1611837
HOME AFFAIRS REFERENCE(S):           BCC2015/3048082
MEMBER:Ian Berry
DATE:15 May 2019
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal sets aside the decision not to approve the nomination and substitutes a decision that the nomination is approved.
Statement made on 15 May 2019 at 10:19am

CATCHWORDS
MIGRATION – Nomination – genuine position – customer service manager – organisational restructure – role now has more responsibility – decision under review set aside

LEGISLATION
Corporations Act 2001, s 50AAA
Fair Work Act 2009
General Retail Industry Award 2010
Migration Act 1958, ss 65, 140GB
Migration Regulations 1994, Schedule 2, rr 1.03, 1.13A 1.13B, 2.57, 2.72, 2.73
Superannuation Guarantee (Administration) Act 1992

CASES
Cargo First Pty Ltd v MIBP [2016] FCA 30

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 Immigration and Border Protection on 13 July 2016 to refuse to approve the nomination of the applicant under s.140GB of the Migration Act 1958 (Act) and r.2.72 of the Migration Regulations 1994 (Regulations).
The applicant applied for approval on 19 October 2015. A nomination of an occupation for a Subclass 457 visa is made under s.140GB of the Act and r.2.73 of the Regulations. Regulations 2.72(3) to (12) prescribe the criteria that must be satisfied for the Minister to approve a nomination by a person. These criteria are extracted in the attachment to this decision. For nomination applications made from 23 November 2013, additional criteria are specified in s.140GBA.
The delegate decided not to approve the nomination on the basis that the applicant did not satisfy r.2.72(10)(f) because the delegate was not satisfied that the nominated position was genuine.
The applicant appeared before the Tribunal on 15 November 2017 to give evidence and present arguments. The Tribunal also received oral evidence from Niraj Shekhawatia, the applicant’s sole director and The Freshii Group Pty Ltd (Freshii).
The applicant was represented in relation to the review by its registered migration agent. The representative attended the Tribunal hearing.
For the following reasons, the Tribunal has decided to set aside the decision not to approve the nomination and substitute a decision that the nomination is approved.

CONSIDERATION OF CLAIMS AND EVIDENCE

The issue in the present case is whether the applicant meets the criteria for approval of the nomination. The Tribunal must approve the nomination if it is an approved sponsor and meets the requirements in r.2.72: s.140GB(2).
The applicant is the sponsor of the nominee Mr Manes (nominee) who has been identified as the person who will fill the position of ‘customer service manager’ ANZSCO[1] code 149212 (nominated position). At the time of making the nomination, the nominee was employed by the applicant. At the time of the hearing the nominee was employed by Freshii.
[1] Acronym means Australian and New Zealand Standard Classification of Occupations
Background and Chronology
The applicant is a corporation established to operate one of six IGA supermarkets. The relevant IGA Supermarket is in Redcliffe and is known as ‘IGA Redcliffe’, a greenfield site employing approximately 25 employees.
The employees include three full-time Australian citizens or permanent residents, two part-time employees and casuals (consisting of students, Australian citizens, permanent residents and noncitizens) numbering around 25 employees. In all, casual workers including students represent about 30% to 40% of that segment of the applicant’s workforce.
The organisational chart[2] consists of five levels. This chart initially submitted by the applicant places the nominated position at the second level; with five other managers all are directly responsible to the director. These managers are in control of produce, grocery, merchandising, bakery and deli. At the third level, the floor supervisor and retail buyer and the fourth level are the customer service assistants and attendants, the deli assistants and the grocery fillers and produce assistants. The fourth level is casual workers. The organisational chart identifies 22 employees.
[2] Department file: folio 134
In July 2016, the applicant was part of an organisational restructure. Then, there were six IGA supermarkets situated in southeast Queensland and one in New South Wales. From July 2016, all employees of the six IGA supermarkets were employed by Freshii, including the nominee. These supermarkets are:
·IGA Redcliffe
·IGA Castle Hill
·IGA Algester
·IGA Pine Mountain Road Brassall
·IGA Pullenvale
·IGA Hatton Vale
Corporate Structure
The applicant is beneficially owned by Shekhawatia Holdings Pty Ltd (Shekhawatia), by it holding 100 fully paid shares.[3] The director of the applicant is the same sole director of Shekhawatia. Its shareholder is Dr Niraj Shekhawatia who beneficially owns 100 fully paid shares.
[3] Tribunal File: Folio 157. Corporations Extract from ACIS, provided by the applicant
The restructure caused the nominee, with all the employees of the various businesses, to be employed by Freshii. Freshii’s shareholders are Ms Neetu Bansal and Dr Niraj Shekhawatia (as joint members), neither of whom are the beneficial owners of 100 fully paid shares.[4]
[4] Tribunal File: Folio 161. Neither the Dr Niraj Shekhawatia nor Ms Neetu Bansal are the beneficial owners of those shares according to the ASIC’s current & historical Company extract dated 11 February 2019, as supplied by the migration agent on 11 February 2019.
Post Re-organisation
The location of the nominated position has changed from Redcliffe to Ipswich. From being employed by the applicant to now being employed by Freshii, the identified nominee is now undertaking the duties and tasks of the nominated position at Freshii’s head office. Information recently received from the applicant indicates that Freshii employs over 300 employees, and has a number of 7 Eleven businesses within Freshii.
Dr Niraj Shekhawatia explained in his evidence that the nominated position, now involves the nominee as the ‘customer and service manager’ of all six IGA supermarkets. This is reasonable to assume, given the 7 Eleven businesses operated by Freshii, which information was given after the hearing.
Associated Entities
The Tribunal provided the applicant with an invitation (email dated 14 November 2018)[5] to respond to information concerning the relationship of the applicant and the other corporations under the umbrella of Freshii. The Tribunal requested the information below:
[5] Tribunal File: Folio 140 section 359A letter.
The particulars of the information are:
●Redcliffe Pty Ltd ABN 81 161 935 324 (the approved sponsor) was approved as a standard business sponsor for 5 years (19 June 2015 to 19 June 2020) with the sponsored location being at postcode 4020.
●The approved sponsor made application to the Department of Immigration and Border Protection (the Department) nominating the position of ‘customer service manager’ (ANZSCO 149212), on 19 November 2015(the application date).
●On the application date, the sponsor submitted information and documents to the Department relating to the operation of the approved sponsors business at the IGA Redcliffe supermarket. Specifically, it was emphasised in the submissions to the Department that the nominated position was to be located at the business conducted by the approved sponsor located at Anzac Parade Redcliffe.
●The information and documents submitted to the Department in support of the application relate exclusively to the sponsor at the location of its supermarket store at Redcliffe.
●The director/general manager, Mr Niraj Shekhawatia (the director) gave evidence at the hearing on 15 November 2017 that:
oA re-organisation and restructure of the IGA stores had taken place.
oThis restructure placed Freshii as the controlling corporation with the supermarkets coming under its direct control.
oThe following supermarkets came under the direct control of Freshii:
oIGA Redcliffe
oIGA Castle Hill
oIGA Xpress Graceville
oThe applicant L Jester Pty Ltd
oThe applicant Pullenvale Pty Ltd
oIGA Pine Mountain Road Brassall
oAll employees were now employed by Freshii.
oThe nominated position of ‘customer service manager’ is involved in all the supermarket stores, and the customer service manager is now working (or is based) at the headquarters of Freshii.
The invitation was met by the response from The applicant’s migration agent that, in summary, made the following points:
oReference made to ‘Associated entities’ under the Corporations Act 2001 – section 50AAA.If any of the subsections is satisfied then as an associated entity, Freshii can employ the identified nominee.
oFurther, if the identified nominee held a 457 visa granted to him because he satisfied cl. 457.223(2) or (4) (in force before 18 March 2018):
oHe must work only in the occupation listed in the most recently approved nomination. If the sponsor was a standard business sponsor who was lawfully operating a business in Australia

The nomination must comply with the prescribed process

Regulation 2.72(3) requires that the applicant has made the nomination in accordance with the process set out in r.2.73.
The Departmental file corroborates that the applicant has made the nomination in accordance with that process, and the Tribunal is satisfied that:
·The applicant Redcliffe Pty Ltd has nominated the position of ‘customer service manager’ ANZSCO code 149212, for the purpose of s.140GB(1)(b): r.2.73(1A)(a).
·The applicant Redcliffe Pty Ltd identified in the nomination a proposed applicant for a Subclass 457 visa as the person who will work in the nominated position: r.2.73(1A)(b).
·The nomination was made using the approved form and fee: r.2.73(2), 2.73(3) 2.73(5) and 2.73(9).
·The applicant Redcliffe Pty Ltd identified the nominee in the nomination: r.2.73(4A)
For these reasons the requirements of r.2.72(3) are met.

Nominator is a standard business sponsor

Regulation 2.72(4) requires that the person making a nomination is either a standard business sponsor or a party to a labour agreement other than a Minister. The sponsor is a standard business sponsor which was approved on 19 June 2015.
For these reasons the requirements of r.2.72(4) are met.

Identification of the nominee

Regulation 2.72(5) requires that the applicant identify in the nomination, the visa holder, or proposed applicant for the visa who will work in the nominated occupation.
On the basis of information within the nomination application, the Tribunal is satisfied that the applicant has identified Mr Sarbjeet Singh Manes as the person to undertake the nominated position and that he is the Subclass 457 visa applicant.
For these reasons the requirements of r.2.72(5) are met.

Requirements for existing Subclass 457 visa holders

The criteria for approval of a nomination contain several requirements if a Subclass 457 visa holder is identified as the person to work in the nominated occupation.
As the nominee is not the holder of a Subclass 457 visa, the requirements of r.2.72(6), (7A) and (10)(g) do not apply.

Information about the nominated occupation

Regulation 2.72(8A) requires the applicant to provide the following information as part of the nomination:
·the name of the occupation and the corresponding 6-digit ANZSCO code if there is one;
·if there is no such code, and the applicant is a standard business sponsor, the name of the occupation and the corresponding 6-digit code as specified in the relevant written instrument; or if the applicant is a party to a work agreement the name of the occupation and the corresponding 6-digit code (if any) as specified in the work agreement; and
·the location(s) at which the nominated occupation is to be carried out.
The name of the occupation is ‘customer service manager’ ANZSCO code 149212. The location at which the nominated occupation is to be carried out is at the headquarters of the Freshii Group at Brookwater, Queensland. As the customer service manager responsible for the six IGA supermarkets, one of his tasks is traveling to all the IGA supermarkets. It is assumed the nominee will undertake the customer service manager tasks with the 7 Eleven businesses now forming part of Freshii.
The Tribunal is satisfied that the applicant is an approved standard business sponsor, and the nomination included the 6-digit ANZSCO code for the nominated occupation as stated above and specified the location.
For these reasons the requirements of r.2.72(8A) are met.

No adverse information known to Immigration

Regulation 2.72(9) requires that either: there is no adverse information known to Immigration about the applicant or a person associated with the applicant; or it is reasonable to disregard such information. For these purposes, ‘adverse information’ and ‘associated with’ have the meaning given in rr.1.13A and 1.13B.
Having reviewed the Department’s file and its electronic records, the Tribunal finds that there is no evidence to indicate that there is anything adverse that is known to Immigration (or the Tribunal) about the applicant or any person associated with it. There is no adverse information of the type described above known to the Department or to the Tribunal about either the applicant or an ‘associated person’.
For these reasons the requirements of r.2.72(9) are met.

Specified occupation

Subclause 2.72(10)(aa) as it applies in this case, requires that the nominated occupation and its 6-digit code correspond to an occupation and 6-digit code specified in instrument IMMI 17/060, and the occupation must be applicable to the person identified in the nomination in accordance with the instrument. In certain circumstances this instrument may also require the nomination of an occupation to be supported in writing to the Minister, by a specified organisation before the nomination can be approved: r.2.72(10)(b).
IMMI 17/060 is expressed to apply to any nomination applications that have not been finally determined, including those under consideration by the Tribunal as at 1 July 2017, and thus includes the nomination that is the subject of this review. Accordingly, the Tribunal finds that IMMI 17/060 must be taken into account when assessing whether r.2.72(10)(aa) is met.
IMMI 17/060 specifies the nominated occupation of ‘customer service manager’ (ANZSCO code 149212) on the short term skilled occupation list at section 7.
For these reasons the requirements of r.2.72(10)(b) are met.
The Tribunal is satisfied that the nominated position as the identified nominee having a salary in excess of the base salary of $65,000. The nominated position is not based on frontline retail setting or direct line transactional interaction on a regular basis. The business has a turnover well in excess of $1 million.
Based on the evidence before it (which was not included in the evidence provided to the Department by the applicant), the Tribunal is satisfied that Freshii employs the identified nominee in the nominated occupation at its headquarters and the six IGA supermarkets and 7 Eleven businesses. The nominee’s position is not based on a front line retail setting. In reaching this conclusion, the Tribunal gives weight to the evidence provided by the managing director.
For these reasons the requirements of r.2.72(10)(aa) are met.

Terms and conditions of employment

Regulation 2.72(10)(c) requires that the terms and conditions of employment of the nominee will be no less favourable than those that are, or would be, provided to an Australian citizen or permanent resident performing equivalent work at the same location. For nomination applications made after 1 December 2015, this expressly includes, if applicable, the terms and conditions provided by an enterprise agreement under the Fair Work Act 2009.
A set of terms and conditions of employment is less favourable than another set if the earnings provided for in the first set are less than those in the other set and there is no substantial contrary evidence that the first set is not less favourable than the other set: r.2.57(3A). ‘Earnings’ is defined in r.2.57A and includes the person’s wages; amounts applied or dealt with in any way on the person’s behalf or as the person directs; and the agreed money value of non-monetary benefits. Non-monetary benefits are benefits other than an entitlement to a payment of money to which the employee is entitled in return for the performance of work and for which a reasonable money value has been agreed by the employee and the employer. Reimbursements are specifically excluded, as are payments the amount of which cannot be determined in advance, and certain contributions to a superannuation fund.
In circumstances where there are no Australian citizens or permanent residents performing equivalent work at the same location, the person must determine the terms and conditions of employment that would otherwise be provided by a method specified in instrument IMMI 09/113: r.2.72(10AA).
These requirements do not apply if the annual earnings of the nominee are equal to or greater than those specified in the written instrument IMMI 13/028: r.2.72(10)(AB).
Based on the evidence before the Tribunal, it finds that the nominee’s current annual salary is $1278 per week ($66,500 annually) plus 9.5% superannuation for a full-time position as stated in the letter of employment dated 16 November 2017, provided to the Tribunal.
As this is not equal to or greater than $250,000, the applicant is not exempted from the above requirements. Therefore, the Tribunal must be satisfied that the terms and conditions of employment of the nominee will be no less favourable than those that are, or would be, provided to an Australian citizen or permanent resident performing equivalent work at the same location.
The Tribunal is satisfied from the organisational chart of the Freshii Group as well as the organisational chart of the sponsor, that there is no Australian citizen or permanent resident performing equivalent work at the same location.
Accordingly, the Tribunal must determine the terms and conditions of employment that would otherwise be provided to an equivalent Australian employee by the method specified in the written instrument IMMI 09/113.
Having regard to IMMI 09/113, the Tribunal is satisfied that the General Retail Industry Award 2010 includes the occupation of customer service manager. Under this award the adult full-time weekly rate for an employee performing work in or in connection with a retail establishment at a higher level than a Retail Employee level 8. The person has a diploma qualification and includes a shop manager of a shop with departments/sections. Under the classification a retail employee level 8 has a weekly minimum wage of $966.50 (a minimum annual salary of $50,250). In addition, there are various loadings for weekend work and other overtime. The Tribunal opines that this award closely relates to the occupation nominated by the applicant. However it is not entirely clear to the Tribunal whether it specifically refers to the nominated position.
The Tribunal has consulted a range of sources, including:
· Fairwork Ombudsman website and General Retail Industry Award 2010 noting that the minimum annual salary for a manager in a retail setting is $50,250;
· Job Outlook website (as at January 2019) which indicates the average weekly earnings before tax for customer service managers at a high skill level attracts a weekly pay a $1274 (annualised at $66,248 approximately).

The Tribunal is satisfied from the recent salary survey information from Job Outlook that the salary package attached the nominated position is within the range of salaries for the occupation.
On balance, the Tribunal is satisfied that the nominee’s salary is no less favourable than those that would be offered to the relevant Australian equivalent.
The Tribunal is further satisfied that the original contract of employment provided to the Department for the nominee has standard provisions relating to leave and termination that are consistent with those in the Fair Work Act 2009.
Accordingly, the Tribunal is satisfied that the nominee’s terms and conditions will be no less favourable than the terms and conditions that would apply to the equivalent Australian employee.
For these reasons the requirements of r.2.72(10)(c) are met.

Base rate of pay

Regulation 2.72(10)(cc) requires the base rate of pay under the terms and conditions of employment that are, or would be, provided to an Australian citizen or permanent resident will be greater than the temporary skilled migration income threshold (TSMIT) specified in instrument IMMI 13/028.
However, this requirement may be disregarded if the base rate of pay will not be greater than the TSMIT, the annual earnings are equal to or greater than the TSMIT and the Minister considers it reasonable to do so: r.2.72(10A). The ‘base rate of pay’ means the rate of pay payable to an employee for his or her ordinary hours of work, but does not include incentive-based payments and bonuses, loadings, monetary allowances, overtime or penalty rates or any other separately identifiable amounts: r.2.57. The meaning of ‘earnings’ is provided in r.2.57A.
Likewise, the requirement in r.2.72(10)(cc) does not apply if the annual earnings of the nominee are equal to or greater than those specified in the instrument IMMI 13/028: r.2.72(10AB).
The identified person by the letter of employment dated 16 November 2017 with the applicant’s Associated Entity is $66,500 plus superannuation payments in accordance with the Superannuation Guarantee (Administration) Act 1992 at the rate of 9.5% per annum. These annual earnings are greater than the income threshold specified in the instrument for r.2.72(10AB).
For these reasons the requirements of r.2.72(10)(cc) are met.

Certification under r.2.72(10)(e)

As part of the nomination, The applicant must certify various matters in writing: r.2.72(10)(e). These include that:
·the tasks of the position include a significant majority of the tasks of the nominated occupation listed in the ANZSCO or specified in the instrument IMMI 17/060;
·if the applicant is lawfully operating a business outside, but not in, Australia, the nominated occupation is in the business of the standard business sponsor or is specified in the relevant written instrument;
·if the applicant lawfully operates a business in Australia, the nominated occupation is with a business, or an associated entity, of the applicant or else, is an occupation specified in IMMI 13/067; and
·the qualifications and experience of the nominee are commensurate with those specified for the occupation in the ANZSCO or, if there is no ANZSCO code, in IMMI 17/060.
From the evidence provided to the Department and to the Tribunal, it is satisfied that the applicant has certified the above matters.
For these reasons the requirements of r.2.72(10)(e) are met.

Position must be genuine

Regulation 2.72(10)(f) requires that the position associated with the nominated occupation is genuine. This was considered in Cargo First Pty Ltd v MIBP [2016] FCA 30, where the Court, at [34], upheld the Tribunal’s approach of qualitatively assessing the position and comparing this with the occupation nominated in order to determine whether it was genuine.
The customer service manager is expected to:
·Do the induction process for all new employees and to do refreshing courses if required;
·To try and all employees on all the online training modules at the site nominated by IGA;
·To train all employees on food safety regulations;
·Train relevant employees to operate and manage terminals of Golden Casket;
·Manage and train school trainees;
·Action on customer complaints and provide a satisfactory solution;
·Enhance customer shopping experience by creating a festive theme for events and celebrations including Father’s Day, Mother’s Day, Valentine’s Day, Easter, Australia Day, Anzac Day and Christmas et cetera;
·Motivate read tail assistance/customer service assistance to improve and provide excellent customer services;
·Make adjustments to policy and rules according to the circumstances of each of the 6 IGA stores;
·Trying, notify or implement any new instructions from met cash from time to time; and
·Ensure compliance with legislation and licensing as relevant to the retail sector.
The Tribunal has had regard to ANZSCO description of the occupation ‘customer service manager’ (code 19212). The Unit Group for the customer service manager is set out:
CALL OR CONTACT CENTRE AND CUSTOMER SERVICE MANAGERS organise and control the operations of call or contact centres, review customer services, and maintain sound customer relations.
Indicative Skill Level:
Most occupations in this unit group have a level of skill commensurate with the qualifications and experience outlined below.
In Australia:
AQF Associate Degree, Advanced Diploma or Diploma (ANZSCO Skill Level 2)

In New Zealand:
NZ Register Diploma (ANZSCO Skill Level 2)

At least three years of relevant experience may substitute for the formal qualifications listed above. In some instances relevant experience and/or on-the-job training may be required in addition to the formal qualification.
Tasks Include:
o   developing and reviewing policies, programs and procedures concerning customer relations and goods and services provided
o   ensuring operational efficiency within a call centre
o   providing direction and feedback to team members and assisting with recruitment
o   managing, motivating and developing staff providing customer services
o   planning and implementing after-sales services to follow up customer satisfaction, ensure performance of goods purchased, and modify and improve services provided
o   liaising with other organisational units, service agents and customers to identify and respond to customer expectations
o   may work in a call centre
Occupations:
149211 Call or Contact Centre Manager
149212 Customer Service Manager

149211 CALL OR CONTACT CENTRE MANAGER

Organises and controls the operations of a call or contact centre. May work in a call centre.
Skill Level: 2
149212 CUSTOMER SERVICE MANAGER
Alternative Titles:
Client Service Manager
Service Manager

Plans, administers and reviews customer services and after-sales services, and maintains sound customer relations.
Skill Level: 2
The nominee has also set out his daily routine concerning his being the customer service manager to the 6 IGA supermarkets under the umbrella of the Freshii Group.
The Tribunal considers that the change in the organisation and structure undertaken by Freshii has substantially increased the role of the customer service manager. The organisational chart of Freshii refers to a position of Area Manager which the evidence indicates has been vacated and not yet filled (at the date of the hearing).
The Tribunal accepts that Freshii is a larger business than it was at the time of the making of the nomination application. Now the customer service manager is responsible to the duties involving the increased employee numbers which have increased from approximately from 30 to substantially over 300. His duties also require he visit the IGA supermarkets to attend to his duties.
It is reasonable that the organisation, having the six IGA supermarkets, with the addition of the 7 Eleven businesses would require a full-time customer service manager. The managing director gave evidence that initially he did not undertake the customer service management initially, but now the position is undertaken by the nominee.
The applicant is the sponsor, though it is not now the employer of the nominee. The Tribunal is satisfied the nominee is undertaking the duties of the nominated occupation. The employer does not need to be an approved sponsor, provided both the applicant and Freshii are associated entities. The Tribunal makes that finding.
Regulation 2.72(10)(e) provides one of many criteria to be satisfied. This regulation is satisfied if:
·     The applicant has certified that tasks of the position include a significant majority of tasks of the nominated position listed in ANZSCO.
·     The nominated occupation is specified in a particular instrument in writing
·     If the person is lawfully operating a business in Australia, the nominated occupation is a position with a business or an associated entity of the person
Regulation 2.72(10)(e) states:
(e) if the nomination is made on or after 1 July 2010 — the person has certified as part of the nomination, in writing, that:
(i) the tasks of the position include a significant majority of the tasks of:
(A) the nominated occupation listed in the ANZSCO; or
(B) the nominated occupation specified in an instrument in writing for paragraph (aa); and
(ii) if the person is lawfully operating a business outside Australia but does not lawfully operate a business in Australia:
(A) the nominated occupation is a position in the business of the standard business sponsor; or
(B) the nominated occupation is an occupation specified by the Minister in an instrument in writing for this sub-subparagraph; and
(iii) if the person lawfully operates a business in Australia:
(A) the nominated occupation is a position with a business, or an associated entity, of the person; or
(B) the nominated occupation is an occupation specified by the Minister in an instrument in writing for this sub-subparagraph; and
(iv) the qualifications and experience of the visa holder, or the applicant or proposed applicant for the visa, identified in relation to the nominated occupation are commensurate with the qualifications and experience specified:
(A) for the occupation in the ANZSCO; or
(B) if there is no ANZSCO code for the nominated occupation — for the occupation in the instrument in writing made for paragraph (aa); and
Associated entity is defined in r.1.03 by reference to s.50AAA of the Corporations Act 2001 which provides as follows:
(1) One entity (the associate) is an associated entity of another entity (the principal) if subsection (2), (3), (4), (5), (6) or (7) is satisfied.
(2) This subsection is satisfied if the associate and the principal are related bodies corporate.
(3) This subsection is satisfied if the principal controls the associate.
(4) This subsection is satisfied if:
(a) the associate controls the principal; and
(b) the operations, resources or affairs of the principal are material to the associate.
(5) This subsection is satisfied if:
(a) the associate has a qualifying investment (see subsection (8)) in the principal; and
(b) the associate has significant influence over the principal; and
(c) the interest is material to the associate.
(6) This subsection is satisfied if:
(a) the principal has a qualifying investment (see subsection (8)) in the associate; and
(b) the principal has significant influence over the associate; and
(c) the interest is material to the principal.
(7) This subsection is satisfied if:
(a) an entity (the third entity) controls both the principal and the associate; and
(b) the operations, resources or affairs of the principal and the associate are both material to the third entity.
(8) For the purposes of this section, one entity (the first entity) has a qualifying investment in another entity (the second entity) if the first entity:
(a) has an asset that is an investment in the second entity; or
(b) has an asset that is the beneficial interest in an investment in the second entity and has control over that asset.
The Australian Securities and Investments Commission (ASIC) search of the applicant’s Australian Company Number (ACN) 161 935 324 reveals Niraj Shekhawatia has been appointed as the sole Director and is the sole member (shareholder) holding 100 fully paid ordinary shares and having the beneficial interest. The ASIC search of The Freshii Group Pty Ltd ACN 606 374 350 reveals Niraj Shekhawatia was appointed as its sole director on 11 June 2015. The shareholders of that corporation are Neetu Bansal and Niraj Shekhawatia both of whom reside at the same address.
The applicant has provided evidence as to the relationship between it and Freshii. The Tribunal has been provided with the corporation search results and is satisfied that Freshii has a relationship (is an associated entity) with the applicant. Further, the Tribunal is satisfied the associated entity and the principal have influence over the applicant.
The Tribunal is satisfied and finds that the position associated with the nominated occupation is genuine.
For these reasons the requirements of r.2.72(10)(f) are met.

Employment under contract

Regulation 2.72(10)(h) requires that the applicant will engage the nominee only as an employee under a written contract of employment and give a copy of that to the Minister, unless the nominated occupation is specified in the written instrument.
The Tribunal is satisfied that the applicant provided a contract of employment dated 16 November 2017 for the nominee to this Tribunal indicating the nominee’s salary was $66,500 plus superannuation. This contract is to remain current.
For these reasons the requirements of r.2.72(10)(h) are met.

Work agreements

Separate criteria apply where the applicant is a party to a work agreement (other than a Minister): r.2.72(11), (12). In these circumstances, the nominated occupation must be specified in the work agreement as an occupation that the person may nominate. Certain matters relating to the tasks of the position and the qualifications and experience of the nominee must be certified as part of the nomination. In addition, if the work agreement specifies requirements that must be met by applicant, these must have been met.
As the applicant is not a party to a work agreement, the requirements of r.2.72(11) and(12) are inapplicable. For these reasons the requirements of rr.2.72(11) and (12) are inapplicable.

Labour Market Testing

Section 140GBA requires a standard business sponsor who nominates an occupation and associated position, to fulfil the ‘labour market testing condition’ unless the major disaster or skill and occupational exemptions in s.140GBB-140GBC apply, or the Minister has determined it would be inconsistent with a specified international trade obligation.
For these purposes, labour market testing means testing of the Australian labour market to demonstrate whether a suitably qualified and experienced Australian citizen or permanent resident is readily available to fill the position. The position of customer service manager is a skill level 2. Both skill level 1 and 2 are exempt from Labour market testing: s.140GBC.
For these reasons, the labour market testing requirements in s.140GBA are inapplicable to this nomination application

DECISION

The Tribunal sets aside the decision not to approve the nomination and substitutes a decision that the nomination is approved.

Ian Berry
Member

ATTACHMENT - EXTRACTS FROM THE MIGRATION REGULATIONS 1994

2.72 Criteria for approval of nomination — Subclass 457…
(1)This regulation applies to a person who is:
(a)is any of the following:
(i) a standard business sponsor;
(ii) a person who has applied to be a standard business sponsor;
(iii) a party to a work agreement (other than a Minister);
(iv) a party to negotiations to a work agreement (other than a Minister); and
(b)a party to a work agreement (other than a Minister);

who, under paragraph 140GB (1) (b) of the Act, has nominated an occupation in relation to a holder of, or an applicant or a proposed applicant for, a [Subclass 457 visa].
(2)For subsection 140GB (2) of the Act, the criteria that must be satisfied for the Minister to approve a nomination by a person are set out in subregulations (3) to (12).
(3)The Minister is satisfied that the person has made the nomination in accordance with the process set out in regulation 2.73.
(4)The Minister is satisfied that the person is:
(a)a standard business sponsor; or
(b)a party to a work agreement (other than a Minister).

(5)The Minister is satisfied that the person has identified in the nomination the visa holder, or the applicant or proposed applicant for the visa, who will work in the nominated occupation.
(6)If the person identifies a holder of a [Subclass 457 visa] (the visa holder) for subregulation (5), the Minister is satisfied that the person:
(a)has listed on the nomination each other holder of a visa of that kind who was granted the visa on the basis of having the necessary relationship with the visa holder as mentioned in clause 457.321 of Schedule 2; and
(b)if the Minister requires the visa holder to demonstrate that he or she has the skills necessary to perform the occupation — the visa holder demonstrates that he or she has those skills in the manner specified by the Minister.

(7)For paragraph (6) (a), the Minister may disregard the fact that 1 or more persons required to be listed on the nomination are not listed, if the Minister is satisfied it is reasonable in the circumstances to do so.
(7A)In addition to subregulation (6):
(a)if:
(i)     the person identifies a holder of a [Subclass 457 visa] (the visa holder) for subregulation (5); and
(ii)    the [Subclass 457 visa] was granted after the Minister had waived the requirements of paragraph 4006A (1) (c) of Schedule 4 on the basis of a written undertaking made by the current sponsor of the visa holder (as set out in subclause 4006A (2) of that Schedule);
the Minister is satisfied that the person has provided, in writing, an undertaking that is equivalent to the undertaking made by the current sponsor of the visa holder; and
(b)if:
(i)     the person identifies a holder of a [Subclass 457 visa] (the visa holder) for subregulation (5); and
(ii)    the person has listed on the nomination a person described in paragraph (6) (a); and
(iii)     the [Subclass 457 visa] was granted to the person described in paragraph (6) (a) after the Minister had waived the requirements of paragraph 4006A (1) (c) of Schedule 4 on the basis of a written undertaking made by the current sponsor of the visa holder (as set out in subclause 4006A (2) of that Schedule);
the Minister is satisfied that the person has provided, in writing, an undertaking that is equivalent to the undertaking made by the current sponsor of the visa holder.

(8)If the nomination was made before 1 July 2010 — the Minister is satisfied that the person has provided the following information as part of the nomination:
(a)if there is a 6‑digit ASCO code for the nominated occupation — the 6-digit ASCO code;
(b)if there is no 6-digit ASCO code for the occupation, and the person is a standard business sponsor — the name of the occupation as it appears in the instrument in writing made for the purposes of paragraph (10) (a);
(c)if there is no 6-digit ASCO code for the occupation and the person is a party to a work agreement — the name of the occupation as it appears in the work agreement;
(d)the location or locations at which the nominated occupation is to be carried out.

(8A)If the nomination is made on or after 1 July 2010 – the Minister is satisfied that the person has provided the following information as part of the nomination:

(a)if there is a 6-digit ANZSCO code for the nominated occupation - the name of the occupation and the corresponding 6-digit ANZSCO code;
(b)if:
(i)     there is no 6-digit ANZSCO code for the nominated occupation; and
(ii)    the person is a standard business sponsor;
the name of the occupation and the corresponding 6-digit code as they are specified in the instrument in writing made for paragraph (10)(aa);
(c)if:
(i)     there is no 6-digit ANZSCO code for the nominated occupation; and
(ii)    the person is a party to a work agreement;
the name of the occupation and the corresponding 6-digit code (if any) as they are specified in the work agreement;
(d)the location or locations at which the nominated occupation is to be carried out.

(9)The Minister is satisfied that either:
(a)there is no adverse information known to Immigration about the person or a person associated with the person; or
(b)it is reasonable to disregard any adverse information known to Immigration about the person or a person associated with the person.

(10)If the person is a standard business sponsor — the Minister is satisfied that:
(a)if the nomination was made before 1 July 2010 - the nominated occupation corresponds to an occupation specified by the Minister in an instrument in writing for this paragraph; and
(aa)if the nomination is made on or after 1 July 2010 – the nominated occupation and its corresponding 6-digit code correspond to an occupation and its corresponding 6-digit code specified by the Minister in an instrument in writing for this paragraph and the occupation is applicable to the person identified in the nomination in accordance with the specification of the occupation; and
(b)if required by the instrument mentioned in paragraph (a) or (aa) — the nomination of an occupation mentioned in the instrument is supported, in writing to the Minister, by an organisation specified by the Minister in an instrument in writing for this paragraph; and
(c)the terms and conditions of employment of the person identified in the nomination 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 at the same location; and
(cc)the base rate of pay, under the terms and conditions of employment mentioned in paragraph (c), that:
(i)     are provided; or
(ii)    would be provided;
to an Australian citizen or an Australian permanent resident, will be greater than the temporary skilled migration income threshold specified by the Minister in an instrument in writing for this paragraph; and
(d)if the nomination was made before 1 July 2010 - the person has certified as part of the nomination, in writing, that:
(i)     the tasks of the position include a significant majority of the tasks of:
(A)the nominated occupation listed in the ASCO; or
(B)the nominated occupation specified in an instrument in writing for paragraph (a); and

(ii) if the person is lawfully operating a business outside Australia but does not lawfully operate a business in Australia:
(A)the nominated occupation is a position in the business of the standard business sponsor; or
(B)the nominated occupation is an occupation specified by the Minister in an instrument in writing for this sub-paragraph; and

(iii) if the person lawfully operates a business in Australia:
(A)the nominated occupation is a position with a business, or an associated entity, of the person; or
(B)the nominated occupation is an occupation specified by the Minister in an instrument in writing for this sub-paragraph; and

(iv) the qualifications and experience of the visa holder, or the applicant or proposed applicant for the visa, identified in relation to the nominated occupation are commensurate with the qualifications and experience specified:
(A)for the occupation in the ASCO; or
(B)if there is no ASCO code for the nominated occupation — for the occupation in the instrument in writing made for the purpose of paragraph (a); and

(e)if the nomination is made on or after 1 July 2010 – the person has certified as part of the nomination, in writing, that:
(i) the tasks of the position include a significant majority of the tasks of:
(A)the nominated occupation listed in the ANZSCO; or
(B)the nominated occupation specified in an instrument in writing for paragraph (aa); and

(ii) if the person is lawfully operating a business outside Australia but does not lawfully operate a business in Australia:
(A)the nominated occupation is a position in the business of the standard business sponsor; or
(B)the nominated occupation is an occupation specified by the Minister in an instrument in writing for this sub-subparagraph; and

(iii) if the person lawfully operates a business in Australia:
(A)the nominated occupation is a position with a business, or an associated entity, of the person; or
(B)the nominated occupation is an occupation specified by the Minister in an instrument in writing for this sub-subparagraph; and

(iv) the qualifications and experience of the visa holder, or the applicant or proposed applicant for the visa, identified in relation to the nominated occupation are commensurate with the qualifications and experience specified:
(A)for the occupation in the ANZSCO; or
(B)if there is no ANZSCO code for the nominated occupation - for the occupation in the instrument in writing made for paragraph (aa).

(f)the position associated with the nominated occupation is genuine; and
(g)if the person has identified in the nomination the holder of a Subclass 457 (Temporary Work (Skilled)) visa in relation to whom the requirements in subclause 457.223(6) of Schedule 2 were met—one of the following applies:
(i) the requirements in subclause 457.223(6) of Schedule 2 continue to be met;
(ii) if:
(A)the holder would be required to hold a licence, registration or membership that is mandatory to perform the occupation nominated in relation to the holder; and
(B)in order to obtain the licence, registration or membership, the holder would need to demonstrate that the holder has undertaken a language test specified by the Minister under subparagraph 457.223(4)(eb)(iv) of Schedule 2 and achieved a score that is better than the score specified for the test by the Minister under subparagraph 457.223(4)(eb)(v) of Schedule 2;

the holder demonstrates that he or she has proficiency in English of at least the standard required for the grant (however described) of the licence, registration or membership;
(iii) the holder is an exempt applicant within the meaning of subclause 457.223(4) of Schedule 2;
(iv) unless subparagraph (ii) applies—the holder:
(A)has undertaken a language test specified by the Minister under subparagraph 457.223(4)(eb)(iv) of Schedule 2; and
(B)achieved within the period specified by the Minister in a legislative instrument for this subparagraph, in a single attempt at the test, the score specified by the Minister under subparagraph 457.223(4)(eb)(v) of Schedule 2; and

(h)either:
(i) the person will:
(A)engage the visa holder, the applicant for a visa or the proposed applicant for a Subclass 457(Temporary Work (Skilled)) visa only as an employee under a written contract of employment; and
(B)give a copy of that contract to the Minister; or

(ii) the nominated occupation is an occupation specified by the Minister in an instrument in writing for sub-subparagraph (e)(iii)(B).

(10AA)For paragraphs (10) (c) and (cc), if no Australian citizen or Australian permanent resident performs equivalent work in the person’s workplace at the same location, the person must determine, using the method specified by the Minister in an instrument in writing for this subregulation:
(a)the terms and conditions of employment; and
(b)the base rate of pay, under the terms and conditions of employment;

that would be provided to an Australian citizen or an Australian permanent resident to perform equivalent work in the person’s workplace at the same location.
(10AB)Paragraphs (10) (c) and (cc) do not apply if the annual earnings of the person identified in the nomination are equal to or greater than the amount specified by the Minister in an instrument in writing for this subregulation.
(10A)The Minister may disregard the criterion in paragraph (10) (cc) for the purpose of subregulation (2) if:
(a)the base rate of pay will not be greater than the temporary skilled migration income threshold specified for that paragraph; and
(b)the annual earnings are equal to or greater than the temporary skilled migration income threshold; and
(c)the Minister considers it reasonable to do so.

(11)If the person is a party to a work agreement (other than a Minister) — the Minister is satisfied that:
(a)the nominated occupation is specified in the work agreement as an occupation that the person may nominate; and
(b)if the nomination was made before 1 July 2010 - the person has certified as part of the nomination, in writing, that:
(i) the tasks of the position include a significant majority of the tasks of:
(A)if the nomination is made using an ASCO code - the nominated occupation listed in the ASCO; or
(B)if the nomination is not made using an ASCO code -the nominated occupation specified in the work agreement; and

(ii) the qualifications and experience of the visa holder, or the applicant or proposed applicant for the visa, identified in relation to the nominated occupation are commensurate with the qualifications and experience specified for the occupation in the work agreement; and
(c)if the nomination is made on or after 1 July 2010 - the person has certified as part of the nomination, in writing, that:
(i) the tasks of the position include a significant majority of the tasks of:
(A)if the nomination is made using an ANZSCO code - the nominated occupation listed in the ANZSCO; or
(B)if the nomination is not made using an ANZSCO code -the nominated occupation specified in the work agreement; and

(ii) the qualifications and experience of the visa holder, or the applicant or proposed applicant for the visa, identified in relation to the nominated occupation are commensurate with the qualifications and experience specified for the occupation in the work agreement.

(12)If the person is a party to a work agreement and the work agreement specifies requirements that must be met by the party to the work agreement — the Minister is satisfied that the requirements of the work agreement have been met.

[2019] AATA 1075

15 May 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Natural Justice

Statutory Construction