D M Shapes Pty Ltd (Migration) - [2021] AATA 1677

D M Shapes Pty Ltd (Migration) [2021] AATA 1677 (6 April 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  D M Shapes Pty Ltd
CASE NUMBER:  1819254
HOME AFFAIRS REFERENCE(S):          BCC2017/2241763
MEMBER:Glenn O’Brien
DATE:6 April 2021
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Statement made on 06 April 2021 at 1:33pm
CATCHWORDS
MIGRATION – Employer Nomination – approval of nominated position – Direct Entry Nomination – Technician and Trade Worker – financial capacity to maintain term of employment – financial records provided – decision under review set aside
LEGISLATION
Migration Regulations 1994 (Cth), r 5.19
CASES
Bharaj Construction Pty Ltd v MIBP (No 3) [2019] FCCA 31
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 20 June 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 25 June 2017. It is unclear why the applicant utilised a previous name, but ASIC records indicate the applicant changed its name to D M Shapes Pty Ltd on 17 November 2015. Since this time the applicant has changed its registered name to D M Shapes Pty Ltd. 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 stream (r.5.19(3)) and a Direct Entry nomination stream (r.5.19(4)). If the application is made in accordance with r.5.19(2) and meets the requirements of either stream, then the application must be approved. If any of the requirements are not met then the application must be refused: r.5.19(5).
In this case, the applicant has applied for approval of a nomination, seeking to satisfy the criteria in the Direct Entry nomination stream.
The applicant provided the Tribunal a copy of the delegate’s decision record with the application for review. The delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19(4)(d)(i) of the Regulations because the delegate was not satisfied the applicant had demonstrated the nominee would be employed on a full-time basis in the position for at least two years.
Mr Daniel MacDonald, a Director appeared for the applicant before the Tribunal on 15 January 2021 to give evidence and present arguments.
The applicant was represented in relation to the review by its registered migration agent.
For the following reasons, the Tribunal has decided to set aside the decision under review and substitute a decision approving the nomination.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant meets the requirements for approval of the nomination under the Direct Entry nomination stream set out in r.5.19(4), which is extracted in the attachment to this decision. For the nomination to be approved, all the…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

Case: [2021] AATA 1677
Decision Date: 6 April 2021

CaseChat Overview and Summary

The Administrative Appeals Tribunal reviewed a decision concerning D M Shapes Pty Ltd's employer nomination for a Technician and Trade Worker position under the Direct Entry stream. The core dispute revolved around whether the nominated position met the requirements stipulated in regulation 5.19(4) of the Migration Regulations 1994.

The Tribunal was tasked with determining if D M Shapes Pty Ltd satisfied all the criteria for the approval of its nomination. Specifically, the Tribunal had to assess compliance with requirements relating to the application form, the nominator's active and lawful operation of a business, the nature of the nominated position (not being labour hire), the terms of employment for the visa holder, the absence of adverse information known to Immigration, satisfactory compliance with workplace relations laws, and the genuine need for the position, its tasks, and any associated training requirements.

In its reasoning, the Tribunal systematically addressed each subregulation of 5.19(4). It found that the application was compliant, the nominator was actively and lawfully operating a business supported by financial records, and the position was not for labour hire. The Tribunal also considered the terms of employment and found no adverse information or non-compliance with workplace relations laws. Crucially, despite initial deficiencies in the application, the Tribunal allowed the applicant further time to provide essential information, including Regional Certifying Body advice, and ultimately concluded that the nominated position, located in regional Australia, met the genuine need criteria.

Consequently, the Tribunal set aside the original decision and substituted it with a decision approving the employer's 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 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.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. On the basis of the evidence before the Tribunal, the Tribunal is satisfied the nomination application was made using the relevant online form. Consistent with r.5.37(2)(a) of the Regulations, there is no fee payable in respect of a nomination where the position is located in regional Australia. In completing the application, the required certification in relation to s.245AR(1) of the Act and the required identification of a need to employ a paid employee to work in the nominated position under the nominator’s control was provided in the application form. Accordingly, the requirement in r.5.19(4)(a) is met.Nominator is actively and lawfully operating a business in Australia: r.5.19(4)(b) Regulation 5.19(4)(b) requires that the applicant is actively, lawfully and directly operating a business in Australia. Financial records provided by the Tribunal indicate the applicant had a turnover of $381,549.82 for the year ending 30 June 2018. The taxation return for the year ending 30 June 2019 shows a turnover of $575,781. The more recent financial information provided by the applicant to the Tribunal was scant. In post hearing submissions the applicant provided the Tribunal with BAS statements to 25 August 2020. This indicates the applicant continues to operate. On reviewing the financial information provided by the applicant, the Tribunal is satisfied the applicant is actively and lawfully operating a business in Australia. Accordingly, the requirement in r.5.19(4)(b) is met.Position is not labour hire: r.5.19(4)(c) 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. The Tribunal has considered the employment contract between the applicant and the nominee dated 25 November 2020. The contract provides for the nominee’s direct employment by the applicant in the role of Technician and Trade Worker. Accordingly, the requirement in r.5.19(4)(c) does not apply.Terms of employment of the visa holder: r.5.19(4)(d)

Decision

Reasons for decision

Based on the findings above, the Tribunal is satisfied that the applicant meets the requirements of r.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.Glenn O’BrienMemberATTACHMENT – 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 r.5.19(4)(e) are met. No adverse information known to Immigration: r.5.19(4)(f) Regulation 5.19(4)(f) requires that there is no adverse information known to Immigration about the nominator or person associated with the nominator; or it is reasonable to disregard any such information. For these purposes, ‘adverse information’ and ‘associated with’ have the meaning given in rr.1.13A and 1.13B. There is no information before the Tribunal to indicate there is any adverse information known to the Department about the nominator or person associated with the nominator. Accordingly the requirements of r.5.19(4)(f) are met.Satisfactory compliance with workplace relations laws: r.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 to suggest that the applicant does not have a satisfactory record of compliance with workplace relations laws in Australia. Accordingly, the requirements of r.5.19(4)(g) are 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 are set out in detail in the attachment to the decision but can be briefly summarised as requiring either that:·the tasks to be performed in the position will be performed in Australia and correspond to those of an occupation specified by the Minister, the occupation is applicable to the proposed employee in accordance with any specifications made in that instrument, and specified training requirements are met; or·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 (RCB) has advised the Minister about certain matters relating to the position. It is apparent that the application submitted to the Department was ill prepared and the applicant was not properly advised. The applicant’s previous migration agent, is no longer registered, and on the basis of the information before the Department the nomination application was properly refused. Before the Tribunal essential information was still not provided, such as the RCB advice. The Tribunal provided the applicant a further period of time after the hearing to obtain further information in support of the application. The nominated position of Technician and Trade Worker is located in Tweed Heads, NSW. The term ‘regional Australia’ was defined in r.5.19(7) of the Regulations to mean a part of Australia specified by the Minister in an instrument in writing for this definition. Although IMMI 17/059 was repealed by the current legislative instrument IMMI 18/037, the current legislative instrument only applies to nominations lodged on or after 18 March 2020.