Debbie's Seafood Pty Ltd (Migration)

Debbie's Seafood Pty Ltd (Migration) [2023] AATA 901 (31 March 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Debbie's Seafood Pty Ltd
REPRESENTATIVE:  Mr Vikram Bir (MARN: 0851838)
CASE NUMBER:  1924334
HOME AFFAIRS REFERENCE(S):          BCC2018/600021
MEMBER:De-Anne Kelly
DATE:31 March 2023
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Statement made on 31 March 2023 at 9:53am
CATCHWORDS
MIGRATION–nomination – Direct Entry stream– Retail Manager – application is compliant –– genuine need to employ a paid employee to work in the position under the nominator’s direct control – nominated position is based in regional Australia – no adverse information – position associated with the nominated occupation is genuine –no less favourable terms and condition of employment –applicant lawfully operating a business in Australia– decision under review set aside
LEGISLATION
Migration Act 1958, ss 65, 245AR
Migration Regulations 1994, rr 1.13, 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 Home Affairs on 16 August 2019 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 5 February 2018. 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)(h)(ii)(D) of the Regulations because the nominated tasks do not correspond to the tasks of an occupation specified by the Minister being Retail Manager.
The applicant appeared before the Tribunal on 27 March 2023 to give evidence and present arguments.
The applicant was represented in relation to the review by Mr Vikram Bir.
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 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.
ON 5 February 2018, the applicant lodged a Regional Sponsored Migration Scheme employer nomination visa subclass 187 in the Direct Entry Stream for the position of Retail Manager on $52,000 per annum to be employed in Mackay QLD 4740 in favour of Ms Harmeet Kaur.
The applicant was represented by Ms Debra Ahern an impressive and forthright person who advised that the business is an icon of Mackay and well known with local seafood from local fishers. They have a large café, large retail shop and seafood trucks which travel around Mackay and the hinterland. They load and re-load boats. The business is loved y locals.
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 an identified person as a paid employee to work in the position under their direct control.
Applications must be in the approved form and must be accompanied by the prescribed fee to be valid and acknowledged by the Department of Home Affairs. An acknowledgement dated 5 February 2018 was sent by the Department to the nominator as evidence of a valid application. The Department accepted a declaration made on the online form that the nominator had responded yes in the online form to the following: ‘the applicant certifies that they have not engaged in conduct in relation to this nomination that constitutes a contravention of subsection 245AR (1) of the Migration Act 1958’.
The Tribunal is satisfied that the application was made on the approved form 1395 (Internet) for post 23 March 2013 applications, accompanied by the prescribed fee and the nominator has included a written certification stating the nominator has not engaged in conduct in relation to the nomination that contravenes s.245AR(1) of the Act.
Regulation 5.19(4)(a)(ii) requires the nominator to identify a need for the nominator to employ a paid employee to work in the position under the nominator’s control. The assessment of the need for a paid employee comprises two parts: establishing the need for an employee (i.e. there exists a vacancy for the nominated position) and ascertaining that the relationship between the nominator and nominee is that of employer and employee.
The nomination does not have to specify the nominee but needs to identify a nominee before, or at the time, the associated visa application is made. Ms Harmeet Kaur was identified in the nomination application, and this indicates there is a need for the position.
Accordingly, the requirement in r.5.19(4)(a) is met.
Nominator is actively and lawfully operating a business in Australia: reg 5.19(4)(b)
Regulation 5.19(4)(b) requires that the applicant is actively, lawfully and directly operating a business in Australia.
It is noted that tax returns for FY 2020 and FY 2021 and recent BAS statements indicate that the business is actively, lawfully and directly operating a business in Australia.
Accordingly, the requirement in reg 5.19(4)(b) is met.
Position is not labour-hire: reg 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.
There is no evidence that the business labour hires.
Accordingly, the requirement in reg 5.19(4)(c) is met.
Term of employment of the visa holder: reg 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.
Tax returns provided show a successful business with increasing and strong revenue and overall excellent profit despite a loss in FY 2021 when COVID made it difficult for people to shop and dine out and it was difficult to secure workers.

Year 2021 2020

Revenue       4,245,776 4,468,813

Wages       962,847      923,085

Expenses     4,556,359 4,315,788

Profit -     310,583      224,709

The latest employment contract 23 January 2018 does not expressly exclude the possibility of the period of employment being extended beyond two years.
Accordingly, the requirement in reg 5.19(4)(d) is met.
No less favourable terms and conditions of employment: reg 5.19(4)(e)
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.
The nominee is paid $53,000 per annum which is within the salary range for such a position which indicates the position is no less favourable than the conditions that would be provided to an Australian citizen or Australian permanent resident
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 Tribunal has no information before it from the Department that would constitute adverse information. The director confirmed this at the hearing.
Accordingly, the requirements of r.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.
The Tribunal can find no unsatisfactory record of compliance for the applicant with the laws of the Commonwealth relating to workplace relations. This was confirmed by the owner at the hearing.
Accordingly, the requirements of r.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 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 in a legislative instrument, the occupation is applicable to the proposed employee in accordance with any specifications made in that instrument, there is a genuine need for the nominee to be employed as a paid employee in the position, and certain specified training requirements are met; or
·the position and nominator’s business is located in regional Australia, there is a genuine need for the nominee to be employed as a paid employee in the position under the nominator’s direct control, the position 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.
The applicant can choose therefore to meet either r.5.19(4)(h)(i) or r.5.19(4)(h)(ii). The applicant has chosen to meet r.5.19(4)(h)(ii) which provides for the second dot point above.
Position in regional area – r.5.19(4)(h)(ii)(A)
The Tribunal needs to determine if the position is in regional Australia. The business is located in Mackay QLD 4740. The definition of ‘Regional Australia’ is found in IMMI 16/045. This postcode is included in the list of postcodes for designated regional areas (IMMI 16/045) therefore the position and business are located in regional Australia.
Accordingly, r.5.19(4)(h)(ii)(A) is met.
Genuine need for the position r.5.19(4)(h)(ii)(B).
The Tribunal needs to consider if there is a genuine need for the applicant to employ a paid employee to work in the position under the nominator’s control. It is noted that the applicant states the nominee has been working in the position for the past five years.
The Tribunal noted that the nominee has been working for the applicant for several years.
Ms Ahern stated that she wants to retire and travel the world. She became ill some years ago and has slowly recovered. Her husband is a fisher and on his large boat supplies fish for the business so he is unable to assist with managing the business. Ms Ahern keeps her finger on the pulse by randomly checking invoices and having regular conversations with staff. The nominee Ms Kaur answers to Ms Ahern’s daughter Natalie and to Ms Ahern herself. The nominee is in the retail business and took over MS Ahern’s job undertaking the budgeting, buying records, managing safety and negotiating with fishers and determining the stock levels. The nominee manages the filleting team of 3 to 5 people and manages the man who cooks the prawns, crabs and bugs. She determines how much needs ti be cooked ad what is left over and needs to be put on special. There is also a lady who does the packaging, Yvette does stock take and also helps behind the counter as does Annie.
The Tribunal found Ms Aherns evidence very compelling and finds there is a there is a genuine need for the applicant to employ a paid employee to work in the position of Retail manager under the nominator’s control.
Accordingly, r.5.19(4)(h)(ii)(B) is met.
Cannot be filled. r.5.19(4)(h)(ii)(C)
The Tribunal needs to consider if the position cannot be filled by an Australian citizen or permanent resident who is living in the same local area.
The position was advertised on Job Active on 22 January 2018 with 25 applicants whom Ms Ahern looked at very carefully. However, none were what she was looking for as they either had no business qualifications or had no experience in stock control and nothing that would make them viable for the role.
The Tribunal accepted the director’s evidence that the position could not be filled by an Australian citizen or Australian permanent resident.
Accordingly, r.5.19(4)(h)(ii)(C) is met.
Tasks of the position correspond to ANZSCO. r.5.19(4)(h)(ii)(D)
The Tribunal has carefully considered the evidence and the Position Description provided and the advice of Ms Ahern on the positions tasks and responsibilities.
The tasks to be performed in the position correspond to the tasks of an occupation Retail Manager specified by the Minister in an instrument in writing for this sub-subparagraph IMMI 17/048.
Accordingly, r.5.19(4)(h)(ii)(D) is met.
Occupation applicable to nominee. r.5.19(4)(h)(ii)(DA)
The nominee provided evidence that she has several years’ experience as a Retail Manager and a Master of Business Administration. The Tribunal finds that the occupation is applicable to the person, identified under subparagraph (a)(ii) in accordance with the specification of the occupation.
Accordingly, r.5.19(4)(h)(ii)(DA) is met.
Business operated at that place. r.5.19(4)(h)(ii)(E)
The business of the nominator is located at Mackay QLD 4740 and is in ‘that place’ that was specified in the employer nomination.
Accordingly, r.5.19(4)(h)(ii)(E) is met.
Regional certifying body r.5.19(4)(h)(ii)(F)
Chamber of Commerce and Industry Queensland as the regional certifying body RCB specified in the Ministerial instrument on 5 February 2018 and certified the application as meeting r.5.19(4)(e) and r.5.19(4)(h)(ii)(B) & (C) and has therefore advised the Minister about the matters mentioned in paragraph (e) and sub-subparagraph (B) and (C).
Accordingly, r.5.19(4)(h)(ii)(F) is met.
Accordingly, the requirements of r.5.19(4)(h) and r.5.19(4) are met.
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.
De-Anne Kelly
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 an identified person, as 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)       all 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;
(AA)there is a genuine need for the nominator to employ the person identified under subparagraph (a)(ii), as a paid employee, to work in the position under the nominator’s direct control;
(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 the person identified under subparagraph (a)(ii), as 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).

[2023] AATA 901

31 March 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Statutory Construction

Procedural Fairness

Jurisdiction

Year	2021	2020
Revenue	4,245,776	4,468,813
Wages	962,847	923,085
Expenses	4,556,359	4,315,788
Profit	- 310,583	224,709