Coolah Supermarket Pty Ltd (Migration)

Coolah Supermarket Pty Ltd (Migration) [2020] AATA 521 (26 February 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Coolah Supermarket Pty Ltd
CASE NUMBER:  1719601
DIBP REFERENCE(S):  BBC2017/1566953
MEMBER:Karen McNamara
DATE:26 February 2020
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision under review to refuse the nomination.

Statement made on 26 February 2020 at 12:38pm
CATCHWORDS
MIGRATION – Employer Nomination – approval of nominated position – Direct Entry Nomination stream – Facilities Manager – adverse information – previously cancelled visa – provision of false information to the Department – identification of need – position vacant for three years – nominee’s experience in nominated occupation – lack of verifiable supporting evidence – financial capacity to maintain term of employment – decision under review affirmed
LEGISLATION
Migration Regulations 1994 (Cth), r 5.19
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 (the delegate) on 21 August 2017 to reject the application by Coolah Supermarket Pty Ltd 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 May 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)(a) of the Regulations because the applicant did not satisfy r.5.19(4)(a)(ii) as they did not demonstrate a need for the applicant to employ a paid employee to work in the position under their direct control.
The applicant lodged an application for review with the Tribunal on 28 August 2017
The Tribunal received a copy of the delegate’s decision record with the application for review.
Documents provided to the Tribunal
On 1 November 2019, the Tribunal invited the applicant to provide updated and current information regarding the criteria in rr.5.19(2) and (4) for approval of the nomination. On 19 November 2019, the applicant provided via their representative the following in addition to requesting an extension to provide further documents:
·Letter dated 15 June 2017 RDA Orana NSW
·SEEK Job details dated 19 May 2017
·RCB Advice dated 15 June 2017
·Department Summary of domestic recruitment efforts dated 15 May 2017
·ASIC extract
·Financial Statements 30 June 2019
·Business Activity Statements (BAS) returns July 2017 to March 2018
·BAS returns July 2018 to June 2019
The Tribunal wrote to the applicant on 19 November 2019 advising that an extension was granted to 30 November 2019 for the applicant to provide additional information as per their request of 19 November 2019.
On 29 November 2019, the applicant via their representative wrote to the Tribunal seeking a further extension of time to provide information citing family illness as the reason for the request.
On 9 December 2019, the Tribunal advised the applicant via their representative that an extension was granted until 20 January 2020 for the applicant to provide additional information. Further, on this day, the Tribunal invited the applicant to appear before it on 30 January 2020 to give evidence and present arguments in relation to the decision under review.
On 23 January 2020, the applicant via their representative sought to postpone the hearing scheduled for 30 January 2020 on the grounds that both Directors of the business were overseas attending to sick relatives.
On 23 January 2020, the Tribunal advised the applicant via their representative that a postponement would not be granted and afforded the applicant the opportunity to attend the hearing via telephone from India.
On 28 January 2020 the applicant via their representative provided the Tribunal a signed response to hearing invitation noting that Mr Raminder Parmar (General Manager) would attend the hearing in Sydney on behalf of the applicant.
Mr Raminder Parmar appeared on behalf of the applicant before the Tribunal on 30 January 2020 to give evidence and present arguments. The Tribunal also received oral evidence from the nominee Harpreet Singh in the related matter for the Subclass 187 visa (AAT Case file 1724970). The related matters were heard concurrently in a combined hearing.
At the hearing the applicant provided the following documents;
·     Profit and Loss Statement June 2018
·     Balance Sheet as of June 2018
·     List of associated entities to Coolah Supermarket Pty Ltd
·     Coolah Supermarket Pty Ltd Organisation Chart
·     Letter of Engagement signed and dated 27 January 2020
·     Position Description
At the conclusion of the hearing, the Tribunal invited the applicant to provide further documentation including complete Business Activity Statements (BAS) returns as submitted via the ATO portal for the 2018 and 2019 financial years, copy of Workers Compensation policy showing wages declared and further submissions they may wish to make in support their review application.
The Tribunal advised the applicant the abovementioned documentation was required by close of business Friday 14^th February 2020.
On 14 February 2020, the Tribunal received the following documentation from the applicant:
·Email dated 24 June 2019 from Allworx Australia re floor works at Coolah
·Proposed plans for IGA Corryong Victoria
·Structural Engineer’s report IGA Coolah
·Emails re: Byron Bay Store fitout
·PAYG Summaries 2018 financial year - employees Coolah Supermarket Pty Ltd
·PAYG Summaries 2019 financial year - employees Coolah Supermarket Pty Ltd
·Email from icare NSW re: applicant’s reconciliation of policy
On 17 February 2020 the Tribunal received a copy of the position description.
On 24 February 2020 the Tribunal received a submission dated 18 January 2020 from the applicant.
The Tribunal notes that numerous evidence and submissions were lodged by or on behalf of the applicant. While the Tribunal has considered all of same, only that which was considered material to its decision has been expressly referred to herein.
The applicant was represented in relation to the review by its registered migration agent. The representative attended the Tribunal hearing.
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.
BACKGROUND
The business was registered with ASIC on 30 January 2015 and operates numerous IGA supermarkets in NSW and Victoria including Coolah located in Central Western NSW, where the nominated position is based. In their nomination application lodged with the Department on 2 May 2017, the applicant nominated Mr Harpreet Singh for the position of Facilities Manager (ANZSCO 149913).
ADVERSE INFORMATION – Invitation to comment
There is evidence before the Tribunal regarding the applicant that may be considered adverse. In accordance with s.359AA, the Tribunal put to the applicant information before the Tribunal that suggests there is adverse information known to the Department about the nominee. The Tribunal explained that under s.359AA of the Migration Act, the Tribunal is required to invite the applicant to comment on or respond to certain information which the Tribunal considers would, subject to the applicant’s comment or response, be the reason, or part of the reason, for affirming that decision under review.
The Tribunal told the applicant particulars of the information. The information relates to the Department cancelling the nominee’s 457 visa. The Tribunal told the applicant particulars of the information that being on 31 May 2017 the Department cancelled Mr Singh’s 457 visa and that Department records show that Mr Singh has a history of falsely declaring his employment to the Department. The applicant was invited to comment on or respond to this information. Mr Raminder Parmar advised that he was not aware of the allegations and that he has met the nominee twice. The applicant sought an extension of time to respond in writing.
The applicant’s representative who is also representing the nominee, told the Tribunal that Mr Singh whilst working in the position of Transport Manager, was stopped by Police while driving a truck. The Police then advised the Department that Mr Singh was not working in his nominated position and the Department then cancelled his 457 visa. The representative claimed that the nominee’s former sponsoring employer had requested Mr Singh as part of the Transport Manager’s role, to train new drivers hence why he was driving the truck. The nominee’s former employer lodged an application for review with the Tribunal of the Department’s sanctions against the sponsor, however prior to the Tribunal hearing the sponsor passed away and the review application was withdrawn.
The Tribunal confirmed with the applicant that he understood the information and its relevance in so far as the Tribunal must be satisfied the application meets r.5.19 (4) (f) which provides;
(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;”
The Tribunal told the applicant that this information is relevant, because it suggests that there is adverse information known to Immigration about the nominee (a person associated with the nominator) and that at the time of the hearing there was no information currently before the Tribunal to suggest it is reasonable to disregard this adverse information. If the Tribunal relies on this information, it may not be satisfied the applicant meets r 5.19(4)(f) and as such the Tribunal may then find that the applicant does not meet the requirements for approval of the nomination and the decision under review may be affirmed.
At the hearing the nominee voluntarily disclosed to the Tribunal that he had previously held a 457 visa which had been cancelled by the Department as he had been found by the Department to be working as a truck driver. The nominee told the Tribunal that he had been hired as a Transport Manager but his former employer required him to drive trucks.
On 24 February 2020, the Tribunal received a submission from the applicant dated 18 February 2020 which inter alia included a response to the s.359AA information. The applicant stated “At the time when we offered Mr. Singh the nominated position, his work visa had not been cancelled. He told us about the cancellation and the circumstances of the cancellation soon after it was cancelled. We accepted his explanation that the cancellation was the result of his previous employer breaching sponsorship obligations rather than Mr Singh’s own fault.”
The Tribunal acknowledges the applicant’s response and has not relied on the information adversely.
Hearing:
At the hearing, the applicant told the Tribunal that the business is expanding quickly and that the store at Coolah requires upgrading. The current Directors of the business are no longer in a position to travel between the stores hence the business is seeking to employ someone willing to travel. A Director of the business (Prashant Kariya) was responsible for sourcing the nominee for the position. Evidence in the form of a “summary of domestic recruitment efforts” signed and dated 15 May 2017 shows that the position was advertised on SEEK in April 2017. When asked by the Tribunal what attempts the applicant took to find a suitable Australian citizen or permanent resident for the position, the applicant told the Tribunal that they could not attract someone who was prepared to travel.
The nominee told the Tribunal that he applied for the position when he saw it advertised. Whilst he has been offered the position, the nominee has not commenced in the position. In the applicant’s submission dated 18 January 2020, the applicant states that Mr Singh was reluctant to relocate his family and take up in the position without the security of a granted visa.
At the hearing, the Tribunal asked the applicant why they needed the position, particularly as the business had been operating since 2016 without this position. The applicant told the Tribunal that the owners of the business can no longer travel between the stores and that the business is experiencing growth and requires a Facilities Manager to oversee renovations and manage the equipment.
The Tribunal raised its concerns with the applicant that the position had been vacant for almost three years and therefore on this basis the Tribunal may be of the view that the applicant does not demonstrate a need to employ someone in the position.
The applicant told the Tribunal that they have attempted to fill the position but could not find a suitable person. Last year the applicant employed a local from Coolah as an Operations Manager but this person was dismissed after two months due to a theft issue. The applicant has recently acquired an IGA store at Byron Bay and has employed a person who has the experience to perform the role of Facilities Manager but this person is not prepared to travel. The applicant placed significant emphasis on the preparedness of the positions incumbent to travel.
The Tribunal notes the evidence before it including the applicant’s submission dated 18 January 2020 in which the applicant claims they have attempted to fill the position and have offered the role to existing employees. However, the Tribunal finds that there is no corroborative evidence before it to support the applicant’s claims that they have offered the position to other people and that other people have undertaken the duties of the position over the last three years. Therefore, the Tribunal places little weighting on the applicant’s evidence in this regard.
The nominee told the Tribunal that he is currently working in Sydney as a truck driver and that he applied for the position because the salary is higher than that he is currently earning. He was not sure about his future in Australia after having his 457 visa cancelled and that he approached the applicant to suggest they lodge an application with the Department, nominating the applicant for the position of Facilities Manager.
At the hearing the Tribunal discussed with the nominee his experience as a Facilities Manager and asked the nominee specific questions in regard to the position description. The nominee told the Tribunal that he does not have experience as a Facilities Manager but managed a Transport company. The nominee told the Tribunal that he has also worked in a laundry, car wash and as a cleaner and drives a small truck. The Tribunal asked the nominee specific questions in regard to the facility management aspect of the applicant’s business and makes the observation that the nominee does not appear to possess an understanding of the role of a Facility Manager or the applicant’s facilities and asset management requirements.
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 considers that the law is unsettled about the effect of r.5.19(4)(a)(ii) in relation to whether this sub regulation is directed just at a statement or declaration that the position is needed or something of a more qualitative nature. The wording ‘identifies a need’ arguably suggests more is required to meet this criterion than simply a statement or declaration that there is such a need. ‘Identify’ is defined as ‘to recognise or establish as being a particular person or thing; attest or prove to be as claimed or asserted.’[1]
[1] Macquarie Dictionary online (accessed 7 January 2020).
Departmental policy[2] approach to this regulation suggests that something more qualitative is required and discusses the information that may identify a need for a position such as whether the position is relevant to the nature and scope of the business activities of the nominator and whether the position has arisen through attrition or expansion of the business including;
“ Delegates would need to be satisfied that the business has the intention and the financial capacity to support such business expansion. The type of additional information that may be sought in this particular example could include:
·            Evidence of appropriate market research
·            Business plans detailing proposed expansion and timelines
·            Financial budgets covering expenditure and anticipated revenue
·            Evidence of availability of funding (such as own funds or bank loans)[3].”
[2] Policy - Migration Regulations – Divisions – Div 5.3 – General > Approval of nominated positions (employer nomination) > Part C - Criteria applicable to Direct Entry stream nominations > Need for a paid employee > Applicability and overview (reissued 12/05/17 – last reissue prior to 1 July 2017).
[3] The Tribunal notes that whilst PAM3 may provide guidance, it is not bound to follow it. (see Brennan, J in Re Drake(no 2) (178-1980) 2 ALD 634).
There are alternate interpretations of r.5.19(4)(a)(ii) as r.5.19(4)(a) overall is a sub regulation that focuses on requirements of the application form and process of a more administrative rather than qualitative nature. This view is supported by the presence of other sub regulations in r.5.19(4) that are expressed more clearly as requiring a qualitative assessment rather than a mere procedural assessment.
In the present case, the Tribunal considers that subparagraph 5.19(4)(a)(ii) will be satisfied if the nomination application lodged by the applicant (the nominator) sets out why it believes it has a need for a paid employee in its business.
In undertaking this assessment, the Tribunal is aware that the concept of ‘onus of proof’ is not appropriate to administrative inquiries and decision-making. On the other hand, the Courts have held that an applicant will have to supply the relevant facts of the individual case, in as much detail as necessary to enable a decision maker to establish the relevant case, and in as much detail as is necessary to enable a decision maker to establish the relevant facts. As a result, a decision maker is not required to make the applicant’s case for it. Nor is the Tribunal required to accept uncritically any and all the claims an applicant puts forward.
The Tribunal has taken into consideration the evidence before it, including the applicant’s submissions. Based on the information before it, the Tribunal is not satisfied that the applicant meets the requirements of r.5.19(4)(a)(ii) for the following reasons:
·     The applicant has provided limited information that addressed their need to employ a paid employee to work in the position under the applicant’s direct control, other than they needed someone who will travel. There is no verifiable supporting evidence including a business plan or evidence of financial forecasting or budget analysis covering expenditure and anticipated revenue to support the applicant’s claims for the need to employ a paid employee to work in the position.
·     The applicant told the Tribunal that the position is required, as the applicant will be renovating the Coolah and Byron Bay stores. Apart from an email from Allworx providing a budget for the specific work to be carried out at the Coolah IGA, there is no project plan, work schedule, supply/building contracts or scope of works to indicate the timeline, budget and scope of the renovations or confirmation that the work is to actually to be undertaken.
·     The financial information provided by the applicant does not indicate or reveal to the Tribunal how the nominated position will contribute to the overall financial position of the business and how the position will reduce costs and add to the business’s operational efficiencies.
·     The applicant’s application, supporting information and evidence provided to the Tribunal does not reveal what research the applicant undertook when deciding to create the position and subsequently employ a paid employee to work in the position; and
·     The applicant’s application and supporting information does not reveal any financial or other performance targets for the position.

In the absence of persuasive and collaborative evidence to support the applicant has identified a need to employ a paid employee to work in the position under their direct control, the Tribunal finds the requirement in r.5.19(4)(a) (ii) is not met and therefore the applicant does not satisfy r.5.19(4)(a).
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 requested the applicant to provide updated and current information about the business’ financial circumstances. At the hearing the Tribunal requested the applicant to provide verifiable financial evidence to support the applicant’s financial capacity to provide the nominee with 2 years of full time employment. The Tribunal requested all BAS returns for the 2018 and 2019 financial years, a copy of the applicant’s most recent Workers Compensation policy showing wages declared and invited the applicant to make further submissions in support of their review application.
The Tribunal notes that on 14 February 2020 the applicant provided PAYG Summaries of employees for the 2018 and 2019 financial years and an email from icare payment services.
The Tribunal has considered the financial information before it and finds that the 2019 financial statements, 2018 profit and loss statement and balance sheet are unsigned and are not supported by verifiable information such as submitted company tax returns or a complete set of BAS returns. There is no corroborating evidence before the Tribunal to confirm the accuracy of the employee PAYG summaries and the icare email does not disclose the amount of wages declared for workers compensation purposes. The Tribunal therefore on balance places little weighting on the applicant’s financial evidence.
The Tribunal therefore finds that the applicant has not provided any verifiable information about its financial capacity to comply with the requirements to provide the nominee with 2 years of full time employment.
In addition, the applicant provided to the Tribunal a copy of a Letter of Engagement dated and signed by the Managing Director and the nominee on 27 January 2020. The letter of engagement does not specify the duration of the engagement with the applicant. It therefore provides limited insight into the proposed length of the employment.
The applicant has not supplied persuasive evidence to demonstrate that it has offered the nominee the position for a minimum of two years or that it has the financial resources to provide such employment.
In the circumstances, the Tribunal is unable to be satisfied that, at the time of its decision, the applicant will employ the nominee on a full time basis in the position for at least 2 years. Accordingly, the requirement in r.5.19(4)(d) is 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.
Karen McNamara
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).

[2020] AATA 521

26 February 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

Statutory Construction