C & L Family Trust (Migration)

C & L Family Trust (Migration) [2018] AATA 4019 (23 August 2018)
CORRIGENDUM
DIVISION:Migration & Refugee Division
APPLICANT:  C & L Family Trust
CASE NUMBER:  1733076
DIBP REFERENCE(S):  BCC2016/1724853
MEMBER:Peter Emmerton
DATE OF DECISION:  23 August 2018
DATE CORRIGENDUM
SIGNED:27 August 2018
PLACE OF DECISION:  Adelaide
AMENDMENT:  The following corrections are made to the decision:
At page 4, paragraph 25, the words ‘3 children’   should be amended to ‘a young child’.

Peter Emmerton
Member

DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  C & L Family Trust
CASE NUMBER:  1733076
DIBP REFERENCE(S):  BCC2016/1724853
MEMBER:Peter Emmerton
DATE:23 August 2018
PLACE OF DECISION:  Adelaide
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Statement made on 23 August 2018 at 3:38pm

CATCHWORDS
MIGRATION – Employer Nomination – approval of nomination – genuine need for employee – job market – vacancy of position – need for more delegation – operating hours of business – knowledge of business – employment agreement – alignment of position and job description – passion for the role – decision under review set aside
LEGISLATION
Migration Act 1958 (Cth), s 245AR
Migration Regulations 1994 (Cth), rr 1.13A, 1.13B
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 on 11 December 2017 to reject the applicant’s application for approval of the nomination of a position in Australia under r.5.19 of the Migration Regulations 1994 (the Regulations).
The applicant C & L Family Trust applied for approval of the position of Retail Manager (General) ANZSCO 142111, on 13 May 2016. Mr Manpreet Singh was sponsored by the applicant to work in the nominated position.
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 (r.5.19(3)) stream and a Direct Entry nomination (r.5.19(4)) stream. If the application is made in accordance with r.5.19(2) and meets the requirements of either stream, then the application must be approved. If any of the requirements are not met then the application must be refused: r.5.19(5).
In this case, the applicant has applied for approval of a nomination, seeking to satisfy the criteria in the Direct Entry Nomination stream.
The delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19 (4)(h)(ii)(B) of the Regulations because they were not satisfied that the nominator had identified a need for the paid employee to work full-time in the position under the direct control of the nominator.
The applicant represented by Mr Xue Xin Chen, the Director, appeared before the Tribunal on 23 August 2018 in a joint hearing with MRT file ref 180318 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Manpreet Singh, the nominee. The Tribunal found all those presenting evidence to be credible and appeared to answer questions in an open and honest manner without obfuscation.
The Tribunal hearing was conducted with the assistance of interpreters in the Mandarin, Punjabi and English languages.
The applicant was represented in relation to the review by its registered migration agent.
For the following reasons, the Tribunal has decided to set aside the decision under review and substitute a decision approving the nomination.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant meets the requirements for approval of the nomination under the Direct Entry nomination stream set out in r.5.19(4), which is extracted in the attachment to this decision. For the nomination to be approved all the requirements must be met.
In determining the applicant’s claims the Tribunal must first make findings of fact on material matters in dispute. This may involve an assessment of credibility and in so doing, the Tribunal is aware of the need and importance of being sensitive to the circumstances and the difficulties applicants often face before the Tribunal in their particular circumstances.
The applicants rely on the evidence given before the Tribunal together with written submissions and supporting evidence provided to the Tribunal and previously to the department.
The nominating entity operates an IGA supermarket as well as a joint-venture apartment construction company and an Asian supermarket at Westfield shopping centre at West Lakes.
The Co-Director Ms Yan Li had prior to the recruitment of the nominee been acting as the Supermarket Manager but subsequently submitted her registration to focus upon their children and the responsibilities associated with aging parents. She remained on a part-time basis until a suitable replacement was fully trained and able to take over her responsibilities.
The nominee started working on a part-time basis until he completed his studies and then commenced full-time employment.
The employment contract signed by both parties on 1 April 2016, shows remuneration exclusive of Superannuation of $48, 412, paid fortnightly, based upon a 38 hour week averaged over a 4 week period. This amount has now increased to $50,258 according to the evidence presented at the hearing.
The nominee has a Diploma and an Advanced Diploma of Marketing and a Diploma of Management, all awarded in Australia.
The visa applicants responsibilities are:
·Develop business plans and sales strategies;
·Determine product mix, stock levels and service standards;
·Monitor Budgets and costs;
·Maintain records of stock levels and financial transactions;
·Sell products and services to customers and advise them on product use;
·Ensure that store premises, fixtures and fittings are cleaned and maintained;
·Supervise store security and cash handling procedures;
·Assign work schedules to hourly employees;
·Handle customer concerns;
·Ensure merchandise is well presented to enhance the store’s image;
·Hire, train, and delegate daily jobs to entry-level workers.
The Tribunal questioned Mr Chen in detail about the need for Mr Singh’s position and why it could not be filled by an Australian citizen. The challenges associated with hiring and subsequently retaining a Retail Manager with Mr Singh’s qualifications and background, into their relatively small organisation, were clearly articulated. Evidence was provided to the Tribunal of the salary determination, detailed recruitment process undertaken by Southern Cross Personnel, and associated advertising, which was utilised when recruiting for this role.
The Tribunal perused popular employment web sites prior to the hearing in order to ascertain the current state of the market in this field. The Tribunal observed a substantial number of related vacancies, in a wide variety of locations and organisations currently under recruitment. The Tribunal is cognisant that many of the observed positions may appear to be equally or more attractive environments to some candidates than the nominated position. This may add further weight to the argument that recruitment and retention has proven challenging.
The Tribunal also notes that an RCB Certificate has been issued by the relevant certifying body, following their acceptance of the compliance measures undertaken by the nominating entity. The date of the certificate is 6 June 2016.
The application is compliant: r.5.19(4)(a)
Regulation 5.19(4)(a) requires that the application for approval must be in the approved form, must be accompanied by the prescribed fee, and, where applicable, must include the required written certification relating to conduct that contravenes s.245AR(1). The application must also identify a need for the nominator to employ a paid employee to work in the position under their direct control.
The Tribunal finds that the application was lodged electronically using the elodgement facility. The nomination was made under the RSMS Direct Entry stream (r.5.19(4)(h)(ii)) and consequently no fee is payable. The Tribunal finds the applicant meets r.5.19(2).
The delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19 (4)(h)(ii)(B) of the Regulations because they were not satisfied that the nominator had identified a need for the paid employee to work full-time in the position under the direct control of the nominator.
The Tribunal notes that the delegate’s assertion that there was already a Retail Manager operating in the store, which negated the genuine need for the nominee, does not, in the Tribunals view accurately represent the current reality. It is noted that the previously incumbent Director, acting as the Retail Manger, had announced her intention of retiring from the position in order to undertake family responsibilities encompassing 3 children and her aging parents. Additionally evidence was presented to the Tribunal of her health challenges.
The Tribunal is cognisant that the IGA Supermarket operates 7 days per week and is open 12 hours per day. It is neither desirable nor practical to have only 1 Manager covering an 84 hour per week retail operation. The Co-Directors operate part-time in that management role in addition to their other personal and business interests.
The delegate asserted that the IGA supermarket was a directly controlled franchise of Metcash. The franchising license agreement stipulates certain strict operating parameters under which the owner of the business is permitted to join their buying group, utilise the well-known IGA brand and benefit from the associated group marketing. The Tribunal is of the view that to interpret their requirement that the owner of the business is directly responsible, is not the same as being always present and solely managing the business. This is neither possible, nor desirable, particularly as some supermarket proprietors own several stores. Whilst ultimate responsibility remains with the supermarket owner, a pragmatic approach dictates the need for delegation of many or in some cases most of the day-to-day management tasks.
The Tribunal is satisfied that the application has identified a need for a paid employee to work in the position of Retail Manager (General), under direct control of the applicant. Accordingly, the requirement in r.5.19(4)(a) is met.
Nominator is actively and lawfully operating a business in Australia: r.5.19(4)(b)
Regulation 5.19(4)(b) requires that the applicant is actively, lawfully and directly operating a business in Australia.
The Tribunal was provided with a range of Business Activity Statements including the 2017-18 FY Statements, Profit and Loss Statements for 2016 and 2017, structural business documents including the Metcash Franchise Agreement and ASIC Registration. The Tribunal also checked the status of the listed ABN. The Tribunal is satisfied that the applicant is actively, lawfully and directly, operating a business in regional Australia. Accordingly, the requirement in r.5.19(4)(b) is met.
Position is not labour-hire: r.5.19(4)(c)
Regulation 5.19(4)(c) applies to nominators whose business activities include those relating to labour hire to an unrelated business. In these cases, the nominated position must be within the business activities of the nominator. The Tribunal finds that r. 5.19(4)(c) is not relevant to the current nomination.
Term of employment of the visa holder: r.5.19(4)(d)
Regulation 5.19(4)(d) requires the nominee to be employed in the nominated position for at least 2 years full time, and the terms and conditions of that employment do not expressly exclude the possibility of an extension.
The Tribunal notes that the business appears to be in a healthy state and is stable. The nominating entity claims that this is in some part due to the quality of the nominee as it assists the Directors to adequately, focus upon their diverse leadership and management responsibilities.
The Tribunal questioned the visa applicant in depth to test his knowledge of the skills required to function in the business and engage in the management activities claimed by the nominating entity. The answers showed a clear and detailed knowledge in regards to the day-to-day required activities. The Tribunal is satisfied that the business will be able to sustainably employ the nominee for the required 2-year minimum period.
The Tribunal has had regard to the signed Employment Agreement dated 1 April 2016 and is satisfied that the nominee will be appointed for a period of at least 2 years employment from grant of visa and the terms of employment do not include an express exclusion of the possibility of extending the period of employment.
No less favourable terms and condition of employment: r.5.19(4)(e)
Regulation 5.19(4)(e) requires that the terms and conditions of employment applicable to the nominated position will be no less favourable than those that are, or would be, provided to an Australian citizen or permanent resident performing equivalent work in the same workplace at the same location.
The Tribunal has been provided with the visa applicant’s employment contract. The Tribunal accepts that the nominee’s annual salary of $50,258 exclusive of Superannuation as appropriate and is reflective of his experience relevant to the nominated position. Additionally the Tribunal researched the salaries offered for similar positions and had regard for the salary determination evidence presented by the nominating entity prior to the hearing. The Tribunal is satisfied that the terms and conditions of employment are equivalent to other employees with the same experience performing equivalent work in the same workplace. Accordingly the requirements of r.5.19(4)(e) are met.
No adverse information known to Immigration: r.5.19(4)(f)
Regulation 5.19(4)(f) requires that there is no adverse information known to Immigration about the nominator or person associated with the nominator; or it is reasonable to disregard any such information. For these purposes, ‘adverse information’ and ‘associated with’ have the meaning given in rr.1.13A and 1.13B. There is no evidence before the Tribunal that the applicant has anything but a satisfactory record of compliance with the immigration laws of Australia. Accordingly the requirements of r.5.19(4)(f) are met.
Satisfactory compliance with workplace relations laws: r.5.19(4)(g)
Regulation 5.19(4)(g) requires that the applicant has a satisfactory record of compliance with the laws of the Commonwealth, and of each State or Territory in which the applicant operates a business and employs employees in the business, relating to workplace relations. When the Tribunal questioned the parties regarding workplace conditions, it was evident that both parties were cognisant of workplace relations expectations. Furthermore, they were able to demonstrate an understanding of appropriate employee conditions as a way of retaining employees and subsequently provide quality business outcomes for their company. The Tribunal has reflected upon the fact that this industry employs a well-educated workforce, which operates in a competitive environment. There is no evidence before the Tribunal that the applicant has anything but a satisfactory record of compliance with workplace relations law in Australia. Accordingly the requirements of r.5.19(4)(g) are met.
Tasks of the position, genuine need for the position and training requirements r.5.19(4)(h)
Regulation 5.19(4)(h) contains alternative requirements. These are set out in detail in the attachment to the decision. As stated above the nomination was made under the RSMS Direct Entry stream and the Tribunal has proceeded to assess the application against the criteria in r.5.19(4)(h)(ii) which require that:
·the position and nominator’s business are located in regional Australia;
·there is a genuine need for the paid position under the nominator’s direct control which cannot be filled by a Australian citizen or permanent resident;
·the tasks of the position correspond to those of an occupation at the ANZCO skill level 1, 2 or 3; and
·a regional certifying body has advised the Minister about certain matters relating to the position.
The Tribunal has had regard to the size and scope of the nominating entity’s business operations, the length of the visa applicant’s employment, experience and qualifications and is satisfied that there is a genuine need for the nominator to employ a paid employee to work in the position under the nominator’s direct control.
The Tribunal is satisfied the position cannot be filled by an Australian citizen or permanent resident. The Tribunal is satisfied that the nominator’s business is located in regional Australia.
Regulation r.5.19(4)(h)(ii)(D), requires that the tasks to be performed in the position correspond to those at ANZSCO skill level 1, 2 or 3. The position of Retail Manager (General) nominated by the applicant is referred to in ANZSCO as a skill level 2 position.
The Tribunal considered the tasks found in ANZSCO for this position and compared them to the job description provided by the applicant and the evidence provided at the hearing. A clear alignment between the 2 has been demonstrated.
Detailed questioning was undertaken by the Tribunal of both the nominating entity and the visa applicant in order to arrive at a clear and comprehensive understanding of the information before it. The visa applicant was able to demonstrate to the Tribunal that he regularly undertakes the tasks of the nominated position and anticipates that he will continue to do so. The passion for his role was self-evident. The Tribunal is satisfied that the position located in suburban Adelaide, can properly be classified as a position for a Retail Manager (General), ANZSCO Skill Level 2. The Tribunal therefore finds that the nomination satisfies r.5.19(4)(h)(ii)(D) of the Regulations.
The Tribunal has had regard to Form 1404 issued by a RCB (Department of Trade Business and Innovation), dated 6 June 2016 and is satisfied that the applicant has advised the Minister about matters relating to the terms and conditions of employment, the genuine need for the position and that the position cannot be filled locally.
Based on the findings above, the Tribunal is satisfied that the applicant meets the requirements of r.5.19 for approval of the nomination of the position in Australia.
DECISION
The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.
Peter Emmerton
Member

ATTACHMENT - EXTRACTS FROM THE MIGRATION REGULATIONS 1994
5.19Approval of nominated positions (employer nomination)
…
(2)The application must:
(a)be made in accordance with approved form 1395…; and
(aa) include a written certification by the nominator stating whether or not the nominator has engaged in conduct, in relation to the nomination, that constitutes a contravention of subsection 245AR(1) of the Act; and
(b)be accompanied by the fee mentioned in regulation 5.37.
…
Direct Entry nomination
(4)The Minister must, in writing, approve a nomination if:
(a)the application for approval:
(i)       is made in accordance with subregulation (2); and
(ii)      identifies a need for the nominator to employ a paid employee to work in the position under the nominator’s direct control; and
(b)the nominator:
(i)       is actively and lawfully operating a business in Australia; and
(ii)      directly operates the business; and
(c)for a nominator whose business activities include activities relating to the hiring of labour to other unrelated businesses — the position is within the business activities of the nominator and not for hire to other unrelated businesses; and
(d)both of the following apply:
(i)       the employee will be employed on a full-time basis in the position for at least 2 years;
(ii)      the terms and conditions of the employee’s employment will not include an express exclusion of the possibility of extending the period of employment; and
(e)the terms and conditions of employment applicable to the position will be no less favourable than the terms and conditions that:
(i)       are provided; or
(ii)      would be provided;
to an Australian citizen or an Australian permanent resident for performing equivalent work in the same workplace at the same location; and
(f)either:
(i)       there is no adverse information known to Immigration about the nominator or a person associated with the nominator; or
(ii)      it is reasonable to disregard any adverse information known to Immigration about the nominator or a person associated with the nominator; and
(g)the nominator has a satisfactory record of compliance with the laws of the Commonwealth, and of each State or Territory in which the applicant operates a business and employs employees in the business, relating to workplace relations; and
(h)either:
(i)       both of the following apply:
(A)the tasks to be performed in the position will be performed in Australia and correspond to the tasks of an occupation specified by the Minister in an instrument in writing for this sub-subparagraph;
(AAA)the occupation is applicable to the person identified under subparagraph (a)(ii) in accordance with the specification of the occupation;
(B)either:
(I)the nominator’s business has operated for at least 12 months, and the nominator meets the requirements for the training of Australian citizens and Australian permanent residents that are specified by the Minister in an instrument in writing for this sub-sub-subparagraph; or
(II)the nominator’s business has operated for less than 12 months, and the nominator has an auditable plan for meeting the requirements specified in the instrument mentioned in sub-sub-subparagraph (I); or
(ii)      all of the following apply:
(A)the position is located in regional Australia;
(B)there is a genuine need for the nominator to employ a paid employee to work in the position under the nominator’s direct control;
(C)the position cannot be filled by an Australian citizen or an Australian permanent resident who is living in the same local area as that place;
(D)the tasks to be performed in the position correspond to the tasks of an occupation specified by the Minister in an instrument in writing for this sub-subparagraph;
(DA)the occupation is applicable to the person identified under subparagraph (a)(ii) in accordance with the specification of the occupation;
(E)the business operated by the nominator is located at that place;
(F)a body that is:
(I)specified by the Minister in an instrument in writing for this sub-subparagraph; and
(II)located in the same State or Territory as the location of the position;
has advised the Minister about the matters mentioned in paragraph (e) and sub-subparagraphs (B) and (C).

[2018] AATA 4019

23 August 2018

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Statutory Construction

Procedural Fairness

Remedies

Jurisdiction