Coober Pedy Roadhouse Pty Ltd ATF CHRIS PANTELIS FAMILY OTHERS (Migration)

Coober Pedy Roadhouse Pty Ltd ATF CHRIS PANTELIS FAMILY OTHERS (Migration) [2019] AATA 5081 (19 August 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Coober Pedy Roadhouse Pty Ltd ATF CHRIS PANTELIS FAMILY TRUST & OTHERS
CASE NUMBER:  1801197
DIBP REFERENCE(S):  BCC2017/439245
MEMBER:Stavros Georgiadis
DATE:19 August 2019
PLACE OF DECISION:  Adelaide
DECISION:The Tribunal affirms the decision under review to refuse the nomination.

Statement made on 19 August 2019 at 5:50pm

CATCHWORDS
MIGRATION – Employer Nomination – approval of nominated position – Direct Entry Nomination stream – Retail Store Manager – position cannot be filled by an Australian citizen or permanent resident – Internet employment site advertisement – hours of work identified – limiting the field of potential applicants – decision under review affirmed
LEGISLATION
Migration Regulations 1994 (Cth), r 5.19
CASES
Old Swanport Investments Pty Ltd v Minister for Immigration & Anor [2015] FCCA 2139

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 5 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 2 February 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 delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19(4)(h(ii)(D) of the Regulations because the delegate considered that the tasks to be performed in the position by the nominee do not correspond to the tasks of the occupation of Retail Store Manager (ANZSCO 142111) specified in the relevant instrument.
The applicant is a family owned business that trades as a fuel and mini-market roadhouse 24 hours per day, 7 days per week. The business is located in regional Australia at Coober Pedy, South Australia. One of the applicant’s six directors, Mr Chris Pantelis, appeared on behalf of the applicant before the Tribunal on 19 August 2019 (by teleconference) to give evidence and present arguments. The Tribunal also received oral evidence from the nominee for the position, Mr Pamuditha V Rathnayake Mudiyanselage (in person).
The applicant was represented in relation to the review by its registered migration agent.
For the following reasons, the Tribunal has decided to affirm the decision under review to refuse 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.
Tasks of the position genuine need for the position and training requirements r.5.19(4)(h)
Regulation 5.19(4)(h) contains a number of alternative requirements. These can be briefly summarised as requiring either that:
·(i) - the tasks to be performed in the position will be performed in Australia and correspond to those of an occupation specified by the Minister by legislative instrument, the occupation is applicable to the proposed employee in accordance with any specifications made in that instrument, and specified training requirements are met; or
·(ii) - the position and nominator’s business is 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 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.
Relevantly, r.5.19(4)(h)(ii)(C) requires the applicant to satisfy the Tribunal that the position cannot be filled by an Australian citizen or permanent resident who is living in the same local area.
The Tribunal accepts the oral evidence that the applicant advertised the position which is the subject of this application on the Internet employment site SEEK.com and that the position was listed on 28 November 2016. A copy of the advertisement was before the Tribunal and discussed at the hearing. The applicant confirmed that the advertisement was for the nominated position of Store Manager in the applicant’s business. There is only one such role listed on the applicant’s Organisational Chart as confirmed in the oral evidence provided. The nominee confirmed at the hearing that he saw the advertisement on Seek.com and responded by contacting Mr Chris Pantelis by phone a day or two after the advertisement was placed, to express interest in the position and to arrange an interview.
The applicant confirmed at the hearing that the nominee was interviewed for the role shortly after the initial phone contact. At the interview they discussed the nature of the position, the duties required and other matters. Mr Mudiyanselage told the Tribunal that he has qualifications and experience relevant to the role. This includes a Bachelor degree in Management and some practical experience. His qualifications and experience for the role are not at issue. Mr Mudiyanselage told the Tribunal that at the interview with Chris Pantelis, the work hours for the position were discussed. He told the Tribunal that as Store Manager, he would be expected to work regular hours of between 10:00am and 6:00pm, Monday to Friday. Mr Mudiyanselage told the Tribunal that at the end of the interview, Chris Pantelis offered him the job, which he accepted. A formal employment contract was subsequently executed on 1 February 2017.
The Tribunal noted to the applicant and the nominee at the hearing, that the Seek.com advertisement for the role specifically sets out that the business is “looking for a Night Manager for our site.” The advertisement is also headed Store Manager (night). Furthermore, particular features of the role (highlighted in bold in the advert) include the stipulation - 40 hours / week and 9:00pm-7:00am.
It is evident from this that any person reading the advertisement could reasonably conclude that the work for the role involves overnight work. However, it is clear from the aforementioned discussions between Chris Pantelis and the nominee that the actual work hours are daytime between 10:00am and 6:00pm. In this regard, the advertisement is misleading. The Tribunal raised with the applicant at the hearing that overnight work is something that might not appeal to a number of potential job seekers, and that including such work hours in the advertisement would serve to limit the range and scope of persons potentially attracted to apply for the position of Sore Manager. This would include Australian citizens or permanent residents living in the same local area as that place. The Tribunal invited comment or response to this issue and the Tribunal’s concern as to whether the requirement in r.5.19(4)(h)(ii)(C) could be met in the circumstances.
The applicant responded that there was no intent to mislead, as the difference was not intentional. The applicant explained at the hearing there were two e-mails received from unsuccessful overseas applicants for the role but none from any local permanent residents or Australian citizens. The applicant said, when asked, that there had been no further or recent advertisements for Store Manager placed by the business beyond that of the aforementioned Seek.com advert listed on 28 November 2016. Mr Mudiyanselage submits that Cooper Pedy is an opal-mining town and therefore, most people would not apply for a daytime position anyway as they would be otherwise occupied opal mining. However, there is no evidence provided to support of such a contention and the Tribunal accepts the submission as speculative.
The Tribunal notes the certificate from the Regional Certifying Body (RCB) being the Department of State Development SA issued on 29 September 2017. The evidence from Chris Pantelis is that the RCB had been provided with a copy of the aforementioned Seek.com advertisement. The Tribunal has independently considered the requirement under r.5.19(4)(h)(ii)(C) having had regard also to the RCB certificate of 29 September 2017. The Tribunal places considerable weight on the particulars listed in the job advertisement placed by the applicant for this position (including the hours of work identified) as those criteria would influence (attract or detract) responses from potentially suitable persons for the role. The Tribunal considers that the purpose of the advertisement is to attract applicants from the open market that could potentially meet the job requirements for the role. Indeed the nominee’s own evidence is that he had been a Retail Manager for IGA grocers immediately before this position and there may been others with similar backgrounds or experience relevant to the role of Retail Manager. He responded, when asked, that he is not an opal miner.
The Tribunal considers that the additional stipulation of overnight work hours (when this was not, in fact, a requirement for the role) has served to limit significantly the potential field of applicants available to perform the work or attracted to the role by the advertisement. In this regard, the Tribunal has considered the appeal before the Federal Circuit Court in the case of OLD SWANPORT INVESTMENTS PTY LTD v MINISTER FOR IMMIGRATION & ANOR - [2015] FCCA 2139. In that case the Court discussed matters limiting the field of potential applicants from particulars included an a job advertisement as follows (at paragraphs 108 to 111):
... “The major piece of evidence before the Tribunal was the text of the advertisement itself, which contained the job criterion Asian language highly preferred”.
Necessarily, in my view, a possible and logical conclusion to be drawn from a plain reading of the advertisement was that a number of applicants would be deterred from applying for the position because they had no Asian language skills. This follows from the use of the phrase highly preferred, which literally means that applicants with an Asian language would be liked better (preferred) by the applicant to a significant degree (highly).
As such, in my view, it cannot be said that the conclusion reached by the Tribunal that “the additional stipulation of the Asian language preference criterion in the skill set advertised for the position serves to limit significantly the potential field of applicants available to perform the work or attracted to the role” was in some way illogical or unsupported by evidence, when the plain text of the advertisement in question must logically have supported such a conclusion.
Although there was evidence, provided by the applicant, who on its submission indicated that the proviso did not limit the number of applicants, the text of the advertisement itself indicated otherwise. Accordingly, in my view, it is erroneous to assert that there was no evidence to support the Tribunal’s conclusion or that the evidence available to the Tribunal can only have led to the conclusion that the proviso had no effect. ...”
In light of the evidence and circumstances discussed above, the Tribunal is not satisfied that the position cannot be filled by an Australian citizen or permanent resident who is living in the same local area for the purpose of meeting r.5.19(4)(h)(ii)(C).
Accordingly, the requirements of r.5.19(4)(h) are not met.
For the above reasons the Tribunal is not satisfied that the applicant meets the requirements of r.5.19(4). The applicant has not sought to satisfy the criteria in Temporary Residence Transition Nomination stream, and as such has not met the requirements in r.5.19(3). Accordingly, the nomination of the position cannot be approved. Therefore, the Tribunal must affirm the decision under review.
DECISION
The Tribunal affirms the decision under review to refuse the nomination.
Stavros Georgiadis
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).

[2019] AATA 5081

19 August 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Statutory Construction

Procedural Fairness

Jurisdiction