DANTA PETROLEUM PTY LTD (Migration)

[2021] AATA 1667

DANTA PETROLEUM PTY LTD (Migration) [2021] AATA 1667 (6 April 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  DANTA PETROLEUM PTY LTD

CASE NUMBER:  1803446

HOME AFFAIRS REFERENCE(S):          BCC2016/3058166

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 3:29pm

CATCHWORDS
MIGRATION – Employer Nomination – approval of nominated position – Direct Entry Nomination – Retail Manager (General) – 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
Cargo First Pty Ltd v MIBP [2016] FCA 30

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 19 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).

2. The applicant applied for approval on 14 September 2016. 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).

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 applicant provided the Tribunal with 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)(h)(ii)(D) of the Regulations because the delegate was not satisfied the tasks of the nominated position correspond to the task of an occupation specified by the Minister in this case, Retail Manager (General) ANZSCO 142111).

5. Mr Sanjaykumar Dhirubhai Panseriya, a Director appeared before the Tribunal on 8 October 2020 to give evidence and present arguments. The Tribunal also received oral evidence from the nominee Mr Akash Sharma. 

6. The applicant was represented in relation to the review by its registered migration agent.

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 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)

9. 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.

10. 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.

11. 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)

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

13. The applicant company was established on 12 March 2015.  The applicant provided to the Tribunal various documents including ASIC extracts, taxation returns, and other financial records.  The taxation return for the year ending 30 June 2019 showed income of $2,812,950 with a profit of some $25,389. The taxation return for the year ending 30 June 2020 shows income of $3,778,052 with a profit of $52,915.

14. On reviewing the financial information provided by the applicant, the Tribunal is satisfied the applicant is actively and lawfully operating a business in Australia.

15. Accordingly, the requirement in r.5.19(4)(b) is met.

    Position is not labour hire: r.5.19(4)(c)

16. 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 initially made in 2016.

17. Mr Panseriya told the Tribunal the nominee commenced employment in 2016 as evidenced by an earlier employment contract.  The applicant provided the Tribunal with the applicant’s most recent contract of employment dated 10 June 2020.  The contract provides for the nominee’s direct employment by the applicant in the role of Retail Manager.

18. Accordingly, the requirement in r.5.19(4)(c) does not apply.

    Terms of employment of the visa holder: r.5.19(4)(d)

19. Regulation 5.19(4)(d) requires the nominee to be employed in the nominated position for at least two years full time, and the terms and conditions of that employment do not expressly exclude the possibility of an extension. 

20. The Tribunal had regard to the evidence of the applicant indicating the nominee will be employed for a minimum of two years after the date of the grant of his Subclass 187 visa.  Further, the Tribunal had regard to the financial records provided to the Tribunal and the revenue generated since 2017.  The Tribunal is satisfied that there is no information before the Tribunal that the applicant would not be in a financial position to employee the nominee for at least two years.

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

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

22. 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.

23. The applicant told the Tribunal the nominee’s current salary was increased to $64,000 per annum.  The applicant provided to the Tribunal evidence of market research from which indicated a market range consistent with the nominee’s current salary.

24. Having regard to documentation provided, the Tribunal is satisfied that the terms and conditions of employment will be no less favourable than those that would be provided to an Australian citizen or permanent resident performing equivalent work in the same workplace at the same location.

25. Accordingly, the requirements of r.5.19(4)(e) are met.

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

26. 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. 

27. 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.

28. Accordingly, the requirements of r.5.19(4)(f) are met.

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

29. 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.

30. 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. 

31. 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)

32. 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 (see legislative instrument IMMI 083/15); 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.

    33. The nominated position of Retail Manager is located in Krambach, NSW 2429. 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.

    34. In those circumstances, the Tribunal is satisfied that both the position and the business operated by the applicant are located in regional Australia and the requirements in r.5.19(4)(h)(ii)(A) and r.5.19(4)(h)(ii)(E) are met.

    35.      The nominated position of Retail Manager (General) is in the Unit Group 1421 ‘Retail Managers’. The ANZSCO sets out indicative skill level and tasks for the position as follows:

    UNIT GROUP 1421 RETAIL MANAGERS

    RETAIL MANAGERS organise and control operations of establishments which provide retail services.

    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 (ANZCO Skill Level 2)

    …

    At least 3 years of relevant experience may substitute for the formal qualifications listed above. In some instances, relevant experience and/or on-the-job training may be required in addition to the formal qualification.

    Registration or licencing may be required.

    Tasks include:

    ·     Determining product mix, stock levels and service standards

    ·     Formulating and implementing purchasing and marketing policies, and setting prices

    ·     Promoting and advertising the establishment’s goods and services

    ·     Selling goods and services to customers and advising them on product use

    ·     Maintaining records of stock levels and financial transactions

    ·     Undertaking budgeting for the establishment

    ·     Controlling selection, training and supervision of staff

    ·     Ensuring compliance with occupational health and safety regulations.

    36.      The applicant’s registered migration agent has provided the Tribunal with a number of written submissions, particularly those dated 26 August 2020 (and attachments).  These documents have been carefully considered by the Tribunal.

    37.      The Tribunal considered the genuineness of the position associated with the nominated position. In Cargo First Pty Ltd v MIBP [2016] FCA 30, the Court upheld (at [34]) the Tribunal’s approach of qualitatively assessing the position comparing this with the occupation nominated in order to determine it was genuine.

    38.      The applicant provided a range of documents evidencing the tasks of the nominee including correspondence with suppliers, invoicing, and marketing activities.  The position description provided by the applicant as part of its response to the Tribunal’s request for information received on 30 September 2020, describes the responsibilities and main duties for the role of Store Manager as:

    • Developing and reviewing pricing and purchasing policies for the store;
    • Executing marketing product strategy which includes day-to-day product management and product compliance activity to appeal to customers;
    • Managing the store budget;
    • Lead by example and manage and coach team members as required;
    • Managing merchandising, stock control;
    • Maintaining a high level of customer service;
    • Ensuring accuracy of financial transactions and preparing sales reports;
    • Ensuring the establishment complies with the relevant OH&S regulations.

33. At the hearing, Mr Panseriya gave evidence that at the time of recruitment of the nominee he was working 60 hours per week.  He told the Tribunal that at that stage the business expanded, and he acquired a service station at Thirlmere and Narooma.  Due to this expansion it was decided that a Retail Manager was required to undertake management of the Krambach station. 

34. The nominee resides next door to the station and has responsibility for all activities within the station. Mr Panseriya does not live locally, and the responsibility of the station rests with the nominee.  The applicant provided evidence of the tasks of the nominee including financial reporting, budgeting, stock selection and monitoring, OH&S and staffing.  In addition, evidence was provided to the Tribunal of the nominee’s activities locally in relation to marketing and community involvement including relationships with local businesses and sporting organisations.

35. While it is evident to the Tribunal that Mr Panseriya has an active role in the management of the stations, it is clear from his evidence that the nominee has responsibility for the day to day management of the store and broader responsibility for marketing and OH&S, particularly given the Director does not live locally and now has a broader focus across three stations.  While the Tribunal accepts that the nominee reports performance to the Director in relation to all KPIs and seeks input from him, this is consistent with the Director’s corporate governance obligations and aligns with the Tribunal’s expectations of a Retail Manager (General) reporting directly to the Directors of the business.  The Tribunal is satisfied that the nominee’s role is significantly above that of a retail supervisor who, consistent with the ANZSCO, merely supervises and coordinates the activities of retail workers.

36. Based on the evidence provided and having regard to the tasks of a Retail Manager (General) as set out in the ANZSCO, the Tribunal is satisfied that the tasks of the nominated position with the applicant correspond to the specified occupation of Retail Manager (General) (ANZSCO 142111) and that this is specified as a Skill Level 2 occupation.

37. Having considered the evidence before the Tribunal including the Genuine Need statement by Mr Panseriya and the oral evidence of the nominee, the Tribunal is satisfied there is a genuine need to employ a paid employee to work in the position under the nominator’s direct control. 

38. The applicant provided to the Tribunal evidence of advertising for the position.  Mr Panseriya told the Tribunal that he advertised for the position in July 2016 and provided the Tribunal with details of 18 applicants who applied for the position and the reasons why those applicants were not considered suitable.  Notably, the nominee was the only candidate to hold an MBA.  Other applicants were considered less suitable through lack of relevant experience, being overqualified or lacking sufficient information.  Notably, three candidates were interviewed for the position.  Having considered the documentary evidence and the oral testimony of Mr Panseriya the Tribunal is satisfied that the position cannot be filled by an Australian citizen or permanent resident living in the same local area as the applicant’s business in Krambach NSW.

39. The Tribunal is also satisfied that an RCB located in NSW 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. Consistent with the Federal Circuit Court of Australia decision in Bharaj Construction Pty Ltd v MIBP (No 3) [2019] FCCA 31, certification is not sufficient, or determinative of the matters set out in the subject Regulations. Accordingly, the Tribunal, while having regard to the advice provided by the RCB, has reached its own conclusions about the matters which are the subject of the RCB advice for the reasons set out herein.

40. Accordingly, the requirements of r.5.19(4)(h) are met.

41. 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

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

    Glenn O’Brien
    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).