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

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).
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).
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 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.
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.
The applicant was represented in relation to the review
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 Tribunal had before it a copy of the Department’s file.
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).
On 22 July 2021, the Tribunal wrote to…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Checkpoint Car Detailing Pty Ltd (Migration)

Details

AGLC: Checkpoint Car Detailing Pty Ltd (Migration) [2022] AATA 2951
Case: [2022] AATA 2951
Decision Date: 18 May 2022

CaseChat Overview and Summary

The Administrative Appeals Tribunal reviewed a decision made by a delegate of the Department of Home Affairs concerning a nomination application by Checkpoint Car Detailing Pty Ltd. The company sought approval for a nominated position under the Direct Entry stream, specifically for a Customer Service Manager. The delegate had refused to approve the nomination, finding that the applicant had not demonstrated a genuine need for a paid employee in that role under its direct control.

The primary legal issue before the Tribunal was whether Checkpoint Car Detailing Pty Ltd met all the requirements for the approval of its nomination under regulation 5.19(4) of the Migration Regulations 1994. This involved assessing various criteria, including the application's compliance, the absence of adverse information or the reasonableness of disregarding it, satisfactory compliance with workplace relations laws, and crucially, the genuine need for the nominated position and the tasks associated with it.

The Tribunal considered extensive additional information provided by the applicant, including financial statements, company records, evidence of recruitment efforts, and explanations regarding past payroll tax non-compliance. The Tribunal found that while the applicant had a payroll tax debit assessment and penalty, this occurred more than three years prior and had been rectified with updated systems and procedures, leading the Tribunal to reasonably disregard this adverse information under regulation 5.19(4)(f). Furthermore, the Tribunal was satisfied that the applicant had demonstrated a genuine need for the Customer Service Manager position, supported by its organisational structure and recruitment efforts, thus meeting the requirements of regulation 5.19(4)(h).

Consequently, the Tribunal set aside the delegate's decision and substituted a decision approving the nomination.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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

Decision

Reasons for decision

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 The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.P. MaishmanMemberATTACHMENT - Extracts from the Migration Regulations 19945.19Approval 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).

Ratio Decidendi

Legal Principle Established

Accordingly the requirements of reg 5.19(4)(e) are met.No adverse information known to Immigration: reg 5.19(4)(f) Regulation 5.19(4)(f) requires that there is no adverse information known to Immigration about the nominator or person associated with the nominator; or it is reasonable to disregard any such information. For these purposes, ‘adverse information’ and ‘associated with’ have the meaning given in regs 1.13A and 1.13B. 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. 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. The Tribunal finds the applicant’s non-compliance with the payroll tax requirements is adverse information as defined in reg 1.13A. 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. Accordingly the requirements of reg 5.19(4)(f) are met.Satisfactory compliance with workplace relations laws: reg 5.19(4)(g) Regulation 5.19(4)(g) requires that the applicant has a satisfactory record of compliance with the laws of the Commonwealth, and of each State or Territory in which the applicant operates a business and employs employees in the business, relating to workplace relations. There is no evidence before the Tribunal 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. Accordingly the requirements of reg 5.19(4)(g) are met.Tasks of the position, genuine need for the position and training requirements reg 5.19(4)(h) Regulation 5.19(4)(h) contains a number of alternative requirements. These are set out in detail in the attachment to the decision.