Central Cleaning Supplies (Aust) Trust (Migration) - [2019] AATA 6460

Central Cleaning Supplies (Aust) Trust (Migration) [2019] AATA 6460 (12 December 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Central Cleaning Supplies (Aust) Trust
CASE NUMBER:  1803134
DIBP REFERENCE(S):  BCC2017/884871
MEMBER:Mark Bishop
DATE:12 December 2019
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Statement made on 12 December 2019 at 10:32am
CATCHWORDS
MIGRATION – nomination refusal – 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, s 245
Migration Regulations 1994, rr 1.13, 5.19, 5.37
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 25 January 2018 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 applied for approval on 7 March 2017. 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 applicant provided a copy of the decision record to the Tribunal. The Tribunal has reviewed the decision record.
The decision record is not binding on the Tribunal. The review application is a de novo hearing. The Tribunal brings and independent and fresh mind to the review application proceedings.
The nominator appeared before the Tribunal on 12 December 2019 to present argument and give evidence.
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.
On 7 March 2017, CENTRAL CLEANING SUPPLIES (AUST) TRUST, trading as Central Cleaning Supplies (Aust) Pty. Ltd. lodged a Regional Employer Nomination (Permanent) (Class RN) nomination under the Direct Entry stream for the position of Retail Manager (ANZSCO 142111). The nomination was lodged in favour of Mr Amit Kumar.
The nominator provided information in the application (and supplemented in evidence by the nominator) that the business commenced trading in Australia in February…

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.

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Details

Case: [2019] AATA 6460
Decision Date: 12 December 2019

CaseChat Overview and Summary

Central Cleaning Supplies (Aust) Trust sought review of a decision to refuse its nomination under the Direct Entry stream for the position of Retail Manager. The nominator, Central Cleaning Supplies, a wholesale and retail distributor of cleaning materials, chemicals, and equipment, operates multiple outlets across Australia and has plans for further expansion. The nomination was made in favour of Mr Amit Kumar, who was intended to manage the Hobart, Tasmania outlet.

The primary legal issue before the Tribunal was whether the nominator met the requirements for approval of the nomination under regulation 5.19(4) of the Migration Regulations. Specifically, the Tribunal considered whether there was a genuine need for the nominator to employ a paid employee in the nominated position and whether the terms and conditions of employment offered to the nominee were no less favourable than those provided to Australian employees in similar roles. The Tribunal also considered the requirement that no adverse information be known to Immigration about the nominator or associated persons, or that any such information could be reasonably disregarded.

The Tribunal reasoned that the comprehensive business plan provided by the nominator, detailing the business's history, operations, expansion plans, and the specific role of the nominee, sufficiently demonstrated a genuine need for the position. The Tribunal found that the application met the requirements of regulation 5.19(4)(a) by being in the approved form and identifying the need for a paid employee under the nominator's direct control. Furthermore, the Tribunal concluded that the nominator had provided sufficient information to satisfy regulation 5.19(4)(f) regarding adverse information, finding no adverse information known to Immigration and, in any event, that any potential concerns could be reasonably disregarded based on the provided evidence and policy considerations.

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

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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. On 7 March 2017, CENTRAL CLEANING SUPPLIES (AUST) TRUST, trading as Central Cleaning Supplies (Aust) Pty. Ltd. lodged a Regional Employer Nomination (Permanent) (Class RN) nomination under the Direct Entry stream for the position of Retail Manager (ANZSCO 142111). The nomination was lodged in favour of Mr Amit Kumar. The nominator provided information in the application (and supplemented in evidence by the nominator) that the business commenced trading in Australia in February 2005 and currently employs 76 Australians/Permanent Residents and three foreign employees. The business operates as a wholesale and retail distributor of cleaning materials, chemicals and equipment. Central Cleaning Supplies has six sales outlets in Victoria along with the National Head Office, as well as two sales outlets in New South Wales and one is Tasmania. It has plans for immediate and ongoing expansion to other states and regions of Australia. Full detail is outlined in the document discussed in paragraph 13 below. Per the organisation chart provided, the Head Office appears to accommodate a number of high-level positions within the business including the Managing Director, General Manager, Customer Service Manager, Operations Manager, Finance and IT Manager, Purchasing Manager as well as the accounts receivable payable/payroll section. The nominator is seeking approval to sponsor the nominee to manage the store in Hobart Tasmania as Retail Manager as defined in the ANZSCO code. Information provided in the Labour Market Test Market Salary Report submitted with the application indicates that the Hobart outlet has been in operation since 2002 and currently trades five days a week. This position reports to the Tasmania State Manager. On 11 December 2019 the nominator provided a lengthy business plan for Central Cleaning Supplies to the Tribunal. This document addressed information relevant to the nominee, a business overview of the company, the business history of the company, site location and products, a SWOT analysis and vision statement, regulatory and legal matters, marketing sales aspects of the business, the personnel and organisational basis of the company, the educational qualifications of the nominee and how the nominated position fits within the company business. This business plan was comprehensive and address all relevant aspects of r.5.19(4). The Tribunal has considered it at length.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 an identified person as a paid employee to work in the position under their direct control.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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. Adverse information Nominations must comply with r 5.19(4)(f) which requires that no adverse information is known to immigration about the nominator or a person associated, or that it is reasonable to disregard any adverse information. Adverse information as defined in r.1.13A (previously r.2.57(3)) includes information that the person:·has been found guilty by a court, of an offence under a Commonwealth, State or Territory law; or·has, to the satisfaction of a ‘competent authority’,[1] acted in contravention of a Commonwealth, State or Territory law; or·has been the subject of administrative action (including the issue of a warning) by a competent authority for the possible contravention of a Commonwealth, State or Territory law; or·is under investigation, subject to disciplinary action or subject to legal proceedings in relation to an alleged contravention of a Commonwealth, State or Territory law; or·has become insolvent within the meaning of s.5(2) and (3) of the Bankruptcy Act 1966 and s.95A of the Corporations Act 2001.[2][1] ‘Competent Authority’ is defined as a Department or regulatory authority that administers or enforces a law that is alleged to have been contravened: r.2.57(1) as inserted by SLI 2009 No.115.[2] r.1.13A(1). When there is adverse information, the Member must determine whether it is reasonable to disregard that information. Policy guidance[3][3] From Legal Commentary Departmental policy and operational guidelines on assessing adverse information provisions state: · Under policy, decision-makers should take the following factors into account when deciding whether it is reasonable to disregard the adverse information:· the nature and seriousness of the adverse information· whether the adverse information arose recently or a long time ago· how the adverse information arose, including the credibility of the source of the adverse information· whether the allegations have been substantiated or not – e.g. whether the applicant has been convicted of an offence under Australian law or investigations are ongoing· whether the applicant has acknowledged the issues with their previous behaviour· whether the applicant has provided evidence to demonstrate that they have rectified any issues where relevant (such as repaying monies to an underpaid employee) and taken steps to ensure the circumstances that led to the adverse information do not reoccur· whether the applicant has demonstrated subsequent compliance· whether the conduct of concern is likely to recur· information about relevant findings made by a competent authority· whether there are any compelling circumstances affecting the interests of Australia.[4][4] Policy – Migration Regulations – Division 1.2 Interpretation – Division 1.2/reg 1.13A Adverse information and skilled visas (regulation 1.13A AND 1.13B > 4. Procedural Instruction > 4.4 Assessing adverse information provisions> 4.4.2.1 Factors that should be considered (reissued 12 August 2018).