Checkpoint Car Detailing Pty Ltd (Migration)

[2022] AATA 2951

Checkpoint Car Detailing Pty Ltd (Migration) [2022] AATA 2951 (18 May 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Checkpoint Car Detailing Pty Ltd

CASE NUMBER:  1836517

HOME AFFAIRS REFERENCE(S):          BCC2017/923492

MEMBER:P. Maishman

DATE:18 May 2022

PLACE OF DECISION:  Perth

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

Statement made on 18 May 2022 at 11:51am

CATCHWORDS
MIGRATION – Employer Nomination – approval of nominated position – Direct Entry nomination stream – Customer Service Manager – car detailing services – identification of need – genuine need – company organisation chart – genuine recruitment efforts – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), s 360
Migration Regulations 1994 (Cth), r 5.19

CASES
Bharaj Construction Pty Ltd v MIBP [2016] FCCA 902

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 30 November 2018 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).

2. The applicant applied for approval on 8 March 2017. 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).

3. In this case, the applicant has applied for approval of a nomination, seeking to satisfy the criteria in the Direct Entry nomination stream.

4. The delegate refused the application on the basis the applicant’s nomination did not satisfy reg 5.19(4)(a)(ii) of the Regulations because the delegate was not satisfied the nominator identified a need to employ a paid employee to work in the position of Customer Service Manager under the direct control of the nominator.

5. In reaching its decision the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the visa applicant on the basis of the material before it, pursuant to s 360(2)(a) of the Act.

6. The applicant was represented in relation to the review

7. 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

8. The Tribunal had before it a copy of the Department’s file.

9. The applicant gave the Tribunal a copy of the delegates decision record with the review application. . The delegate found the applicant had not demonstrated a genuine need to employ a paid employee to undertake work under its direct control in the position of Customer Service Manager (ANZSCO 149212).

10. On 22 July 2021, the Tribunal wrote to the applicant and invited it to provide further information to demonstrate all the relevant requirements of r.5.19(2) and (4). The applicant responded and provided to the Tribunal additional and updated material in support of its application, including but not limited to:

    ·ASIC records in relation to the applicant company;

    ·A draft Financial Statement for 2021 and Financial Statements and company tax returns for the years ended 30 June 2019, and 2020;

    ·Business Activity Statements (BAS) for the period July 2019 to June 2021;

    ·Current organisational structure chart;

    ·contracts of employment between the applicant and the nominee, signed March 2018 and February 2020;

    ·Evidence of advertising the nominated position and responses in 2016 and 2021;

    ·Position description for the nominated position, including examples of work duties relevant to the role;

    ·Updated PayScale, Indeed and Jora average salary reports; and

    ·Letter from Department of Finance, Government of Western Australia dated 1 February 2021 and accountant’s letter of explanation dated 4 August 2021.

11. The applicant’s representative also provided to the Tribunal a written submission.  The submission provides a focused response to the concerns set out by the delegate in the decision record, as well as addresses the relevant requirements for the approval of the nomination. 

12. 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.

    The application is compliant: reg 5.19(4)(a)

13. 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.

14. The Tribunal had regard to the documents on the Department’s file. The Tribunal is satisfied the applicant made an application online in accordance with the approved form 1395; the application included written certification confirming the applicant had not engaged in conduct in contravention of subsection 245AR(1) of the Act; and the nomination application was paid.

15. The Tribunal notes the delegate found the applicant’s nomination did not meet the requirements of reg 5.19(4)(a)(ii) because it did not identify a need for a paid employee to work in a position under the applicant’s direct control. It is unclear whether the requirement of reg 5.19(4)(a)(ii) is directed simply at a statement identifying a need, or to a more qualitative assessment of need. Given the nature of reg 5.19(4)(a) overall, the Tribunal has considered the requirement in reg 5.19(4)(a)(ii) to be more directed towards a requirement for the application form. The Tribunal considers it more appropriate to assess the existence of a genuine need for the nominator to employ a paid employee to work in the position under the nominator’s control under reg 5.19(4)(h)(ii)(B).

16. The application identifies a need for the nominator to employ Baljit Kaur as a paid employee to work in the position of Customer Service Manager under the applicant’s direct control. 

17. Accordingly, the requirement in reg 5.19(4)(a) is met.

    Nominator is actively and lawfully operating a business in Australia: reg 5.19(4)(b)

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

19. Having considered the material before it, including the nominator's financial statements and business registration records, the Tribunal is satisfied that the nominator is actively and lawfully operating a business in Australia and directly operates that business.

20. Accordingly, the requirement in reg 5.19(4)(b) is met.

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

21. 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.

22. There is no evidence before the Tribunal to indicate that the applicant is involved in labour hire activities. The Tribunal is satisfied that the employment contract and organisational chart confirm that the nominee will work in the applicant's direct employ.

23. Accordingly, the requirement in reg 5.19(4)(c) does not apply.

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

24. 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.

25. It is now over two years since the delegate's decision, and documents provided by the applicant show that the nominee has continued to be employed in the nominated position. The Tribunal has also had regard to the terms and conditions of employment as set out in the employment contract (re-signed by the parties in February 2020). The contract indicates that the nominee will be employed as Customer Service Manager (ANZSCO 149212) on a full-time basis for at least two years after the grant of her Subclass 187 visa with a base salary of $72,799.98 plus 9.5% superannuation. There is nothing in the contract that expressly excludes the possibility of extending the employment period.

26. Having regard to the totality of the evidence before it, the Tribunal is satisfied that the applicant has the financial capacity to provide the nominee with employment in the nominated position for at least two years full time and that the terms and conditions of that employment do not exclude the possibility of an extension.

27. Accordingly, the requirement in r.5.19(4)(d) is met.

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

28. 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.

29. The applicant provided an employment contract dated 25 November 2016 for an Australian resident employee. The nominee’s employment contract dated 20 February 2017 is comparable and offers similar salary, terms and conditions of employment as that offered to the Australian resident employee. The applicants updated organisational chart indicates there are no Australian citizen or permanent resident employees performing equivalent work in the same workplace or at the same place. The terms and conditions contained in the employment offer dated 24 February 2020 indicates a base wage of $72,800 per annum for a 38 hour week. The conditions include leave entitlements in line with the Fair Work Act. PayScale, Jora and Indeed websites indicate Customer Service Manager positions earn from $60,000 to $80,000 per annum. The Tribunal is satisfied the applicant’s base wage is in the range expected for the nominated position.

30. The Tribunal is satisfied 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.

31. Accordingly the requirements of reg 5.19(4)(e) are met.

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

32. 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.

33. The applicant gave the Tribunal information from the Department of Finance in Western Australia dated 1 February 2021 in relation to an audit. The assessor found the applicant had a payroll tax debit assessment of $28,090.54 for non-declared wages and salaries, superannuation and workers compensation payments in the 2017 (part year) and 2018 financial years. The assessor applied a penalty tax of $7,763.26. The information includes that penalty tax of up to 100% may be applied for understated primary tax payable. A lower penalty can be applied by the Commissioner if there is no attempt to evade tax or mislead the Commissioner is evident. The Tribunal notes the assessment and penalty were paid promptly after receipt of the assessment.

34. The applicant’s accountant provided a written explanation in relation to the applicant’s non-compliance with payroll tax requirements dated 4 August 2021. The accountant was engaged by the applicant in May 2018 and observed the applicant had no proper systems in place to record and reconcile its payroll liabilities. The applicant advised the bookkeeper of discrepancies but they were not followed up. The accountant updated the applicant’s recording systems, software and procedures from 1 July 2018 and the problem has been rectified.       

35. The Tribunal finds the applicant’s non-compliance with the payroll tax requirements is adverse information as defined in reg 1.13A.

36. The Tribunal is satisfied the non-compliance occurred more than 3 years ago and the applicant has implemented systems and corrections to its procedures to ensure compliance with the requirements. The Tribunal finds it is reasonable in the circumstances to disregard the adverse information.

37. Accordingly the requirements of reg 5.19(4)(f) are met.

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

38. 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.

39. There is no evidence before the Tribunal the applicant has not operated in compliance with the laws of the Commonwealth or the relevant workplace laws in Western Australia, where the applicant operates its business and employs staff.

40. 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)

41. Regulation 5.19(4)(h) contains a number of alternative requirements. These are set out in detail in the attachment to the decision.

42. Relevantly to this matter the requirements of reg 5.19(4)(h)(ii) but can be briefly summarised as requiring that 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; 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.

    Location of the position and the business

43. The Tribunal first considered reg 5.19(4)(h)(ii)(A) and (E) which require that the position is located in regional Australia and the applicant’s business is located at that place. Regulation 5.19(16) provides that 'regional Australia' is defined by the relevant legislative instrument, in this case IMMI 16/045.

44. The nominated position is for a Customer Service Manager to work at the applicant’s car detailing business located in East Victoria Park, Western Australia, 6101. At the time of application, this location/postcode was considered regional Australia, as per Schedule B of IMMI 16/045

45. The Tribunal is satisfied that the position and the nominator's business are located in regional Australia, as all of Western Australia was specified as regional Australia in the relevant written instrument.

46. As the position and the applicant are in regional Australia, the Tribunal is satisfied that reg 5.19(4)(h)(ii)(A) and (E) are met.

    There is a genuine need for the paid position under the nominator's direct control which cannot be filled by a locally resident Australian citizen or permanent resident.

47. Subparagraph 5.19(4)(ii)(h)(B) requires the Tribunal to be satisfied that there is a genuine need for the applicant, as the nominator, to employ a paid employee to work in the position under the nominator’s direct control. Subparagraph 5.19(4)(ii)(h)(C) requires that the position cannot be filled by an Australian citizen or permanent resident who is living in the same local area.

48. The Tribunal had regard to the applicant’s business case expressed in statutory declarations dated 16 January 2017 and 5 August 2021 and letter dated 28 January 2018 from the applicant’s director, Yun Hwa Voon. The Tribunal also had regard to evidence of an advertisement for Customer Service Managers placed by the applicant with Seek on 24 November 2016. The applicant gave the Tribunal evidence of having advertised the position again in January 2021.

49. The applicant contracts car detailing services to a number of car dealerships across the Perth metropolitan area. The company organisation chart shows the company structure provides the nominated position is responsible for four supervisors overseeing various dealerships and reports directly to the director, Mr Voon. The applicant advertised to fill the position in 2016. From 59 applicants, two of the final four shortlisted for face to face interview attended. The applicant chose the nominee on the basis she held the appropriate diploma and had the requisite work experience. The applicant advertised again in January 2021 and received nine applications displaying no relevant experience or qualifications. Mr Voon is involved in another business and cannot dedicate his concentration full time to the applicant business. Mr Voon takes the nominee to networking meetings with potential clients so she can establish a working relationship as their contact. He requires the nominee to set guidelines for supervisors in relation to staff selection, induction and training. The nominee is required to hold regular meetings with the supervisors and accounts manager to assist identification and resolution of operational issues and to motivate supervisor’s performance. 

50. Having considered the evidence, the Tribunal is satisfied the applicant has a genuine need to employ a paid customer service manager under Mr Voon’s direct control. The Tribunal is also satisfied the applicant could not fill the position by a locally resident Australian citizen or permanent resident.

51. Accordingly reg 5.19((h)(ii)(B) and (C) are met.

    Tasks of the position          

52. Regulation 5.19(h)(ii)(D) requires the tasks of the nominated position must correspond to those of an occupation specified in the relevant legislative instrument, in this case IMMI 15/083.   

53. The nominated position of customer service manager is specified in Item 2, Schedule 1 of IMMI 15/083 for the purpose of r.5.19(4)(h)(ii)(D) of the Regulations, specifying that the tasks to be performed in the position correspond to the tasks of an occupation in ANZSCO at Skill level 2.

54. ANZSCO 149212 says:

    UNIT GROUP 1492 CALL OR CONTACT CENTRE AND CUSTOMER SERVICE MANAGERS

    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)

    
    …

    Tasks Include:

    odeveloping and reviewing policies, programs and procedures concerning customer relations and goods and services provided

    oensuring operational efficiency within a call centre

    oproviding direction and feedback to team members and assisting with recruitment

    omanaging, motivating and developing staff providing customer services

    oplanning and implementing after-sales services to follow up customer satisfaction, ensure performance of goods purchased, and modify and improve services provided

    oliaising with other organisational units, service agents and customers to identify and respond to customer expectations

    omay work in a call centre

    
    Occupations:

    149211 Call or Contact Centre Manager
    149212 Customer Service Manager

    
    …
    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

1. The applicant provided a position description outlining the roles and responsibilities of the nominated position:

   • Identify customer service needs according to each dealership or car yard on your Group, determining improvements and implementing change;
   • Ensure customer satisfaction by developing efficient customer service procedures for client interaction by team members;
   • Investigate clients' problems, reviewing strategic plans and proposing solutions;
   • FEEDBACK FORM – Weekly and Daily-Communication to Managing Director, reporting on the outcome of clients’ relations;
   • Meeting with other managers on a regular basis to exchange experiences and discuss possible improvements to customer service procedures in general;
   • Accomplish customer service objectives on human resource by orienting, training,

   assigning, coaching and counselling employees on interaction with clients;

   • Communicating company’s expectations related to customer service standards on employee induction;
   • Organise regular meetings with your group to motivate and renew commitment to company’s expectation on customer service;
   • planning and reviewing compensation actions to clients;
   • Providing after-sales relationship to dealerships, collecting feedback and evaluating current customer service standards in your group.

   [8678481] 359(2) Response - see comments2021 11:36:10

2. The applicant has provided examples of work undertaken in the nominated position, including meeting minutes and customer feedback forms.

3. The Tribunal has carefully considered the information before it and is satisfied that the tasks of the nominated position correspond to the tasks of the occupation customer service manager as specified in ANZSCO. 

4. Accordingly, the Tribunal finds that r.5.19(4)(h)(ii)(D) is met.

   Regional Certification

5. The Tribunal has considered the Form 1404 Regional Sponsored Migration Scheme – Regional Certifying Body Advice, issued on 28 February 2017 by Skilled Migration WA, Western Australian Department of Training and Workforce Development.

6. On the basis of the advice set out in the Form 1404 Regional Sponsored Migration Scheme – Regional Certifying Body Advice provided, the Tribunal is satisfied that the regional certifying body has advised the Minister about the matters set out in r.5.19(4)(e ) and r.5.19(4)(h)(ii)(B) and (C) of the Regulations. The regional certifying body states that:

   ·There is a need for a paid employee in the nominated position within the business activities of the nominating employer;

   ·The nominated position cannot be filled by an Australian citizen or an Australian permanent resident who is living in the same local area as the nominated position; and

   ·The terms and conditions of employment that are applicable to the nominated position will be no less favourable than the terms and conditions that are or would be provided to an Australian citizen or Australian permanent resident for performing the equivalent work in the same workplace at the same location.

7. Consistent with the decision of the Federal Circuit Court of Australia in Bharaj Construction Pty Ltd v MIBP [2016] FCCA 902, certification by a regional certifying body is not sufficient or determinative in relation to whether the nominator meets r.5.19(4)(e) , r.5.19(4)(h)(ii)(B) and r.5.19(4)(h)(ii)(C) of the Regulations. Accordingly, the Tribunal notes that, whilst having regard to the advice provided by the regional certifying body, it has reached its own conclusions about the matters the subject of the regional certifying body’s advice.

8. Having considered the Form 1404 provided, the Tribunal is satisfied that the requirements of r.5.19(4)(h)(ii)(F) are met by provision of the requisite Form 1404.

9. Accordingly the requirements of reg 5.19(4)(h) are met.

10. Based on the findings above, the Tribunal is satisfied that the applicant meets the requirements of reg 5.19 for approval of the nomination of the position in Australia.

    DECISION

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

    P. Maishman
    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).