Dutt, Anil (Migration)

[2023] AATA 1762

Dutt, Anil (Migration) [2023] AATA 1762 (18 April 2023)

DECISION RECORD

DIVISION:  Migration & Refugee Division

APPLICANT:  Dutt, Anil

REPRESENTATIVE:  Ms Yiyi Su (MARN: 1808171)

CASE NUMBER:  1918429

HOME AFFAIRS REFERENCE(S):           BCC2017/3569268

MEMBER:  Angela Julian-Armitage

DATE:  18 April 2023

PLACE OF DECISION:  Brisbane

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

Statement made on 18 April 2023 at 5:20pm

CATCHWORDS
MIGRATION – Employer Nomination – approval of nominated position – Direct Entry Nomination – genuine need – lack of staff – measurable growth in clientele – decision under review set aside

LEGISLATION
Migration Regulations 1994 (Cth), r 5.19

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 June 2019 to refuse the applicant’s application for approval of the nomination of a position in Australia pursuant to reg 5.19 of the Migration Regulations 1994 (Cth) (the Regulations).

1. The nomination was applied for on 29 September 2017. The requirements for the approval of the nomination of a position in Australia are contained 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, the application must be refused: reg 5.19(5).

1. In the present case, the applicant seeks approval of the nomination in relation to the Direct Entry stream and needs to satisfy the relevant criteria.

1. The delegate refused the application on the basis the applicant’s nomination did not satisfy reg 5.19.(4)(h)(ii)(B) of the Regulations on the basis that the evidence provided did not demonstrate that that there is a genuine need for the applicant to employ the identified person to work in the nominated position under their direct control.

1. The applicant appeared before the Tribunal on 9 January 2023 to give evidence and present arguments and was accompanied by his representative.

1. For the following reasons, the Tribunal decision is to set aside the decision under review and substitute it with the decision to approve the nomination.

CONSIDERATION OF CLAIMS AND EVIDENCE

1. 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.

The application is compliant: reg 5.19(4)(a)

1. 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). In addition, 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.

1. The nomination application was made electronically and complied with all requirements for a valid application which identifies the person who is to be a paid employee under the nominator’s control. It also contained the required written certification in relation to s 245AR(1).

1. Accordingly, the requirement in reg 5.19(4)(a) is met.

Nominator is actively and lawfully operating a business in Australia: reg 5.19(4)(b)

1. Regulation 5.19(4)(b) requires that the applicant is actively, lawfully and directly operating a business in Australia. The Tribunal is satisfied that the nominator is actively and lawfully operating a business called A Taste of Spice in Australia which is currently registered with ASIC (renewal date 30/10/25). Further, the nominator directly operates the business

1. Hence, the requirement in reg 5.19(4) is met.

Position is not labour hire: reg 5.19(4)(c)

1. 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.

1. The there nothing before this Tribunal to indicate that the nominator is involved in any labour- hire activities.

1. Accordingly, the requirement in reg 5.19(4)(c) does not apply.

Term of employment of the visa holder: reg 5.19(4)(d)

1. 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.

1. The nominator and nominee entered into a contract of employment which provided for an initial 3 years to be extended by agreement. The Tribunal heard evidence that the nominee has been in the employ of the nominator for in excess of 6 years and neither party have any intention to terminate the position. The oral evidence was that a fresh contract of employment was entered into in September 2022 which mirrored most of the terms and conditions contained in the previous one without any explicit end date.

1. Accordingly, the requirement in reg 5.19(4)(d) is met.

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

1. 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.

1. The Tribunal is satisfied that the terms and condition applicable to the subject position are no less favourable than those that are provided to an Australian citizen or permanent resident performing equivalent work in the same workplace at the same location. The contract of employment for the position references the Fair Work Act 2009 as underpinning the terms and conditions.

1. Therefore, the requirements of reg 5.19(4)(e) are met.

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

1. 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.

1. There is no information before the Tribunal or in the Departmental documents to show that there is any adverse information with respect to either the nominator or a person associated with the nominator.

1. Accordingly, the requirements of reg 5.19(4)(f) are met.

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

1. 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.

1. The evidence does not disclose anything that would put in doubt that the applicant has a satisfactory record of compliance with workplace relations laws in the locations in which it operates a business and employs staff.

1. Thus, the requirements of reg 5.19(4)(g) are met.

Tasks of the position, genuine need for the position and training requirements reg 5.19(4)(h)

1. 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 the relevant 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.

1. In the present case, the position and business are located in ‘regional Australia’. The Tribunal heard evidence from the nominator in relation to the longstanding difficulties it has endured in order to source and employ suitably qualified and skilled persons since the business opened some 13 years ago. The evidence is that the business started off opening 7 days a week but had to curtail the opening days and time due to a lack of staff despite a measurable growth in clientele on a weekly basis. This evidence is supported by the RCB (Qld Chamber of Commerce and Industry) located in the same State as the position which advised the Minister about the matters in reg 5.19(4)(e) and reg 5.19(4)(h)(ii)(B) & (C) with respect to the genuine need for the position. In addition, the tasks of the position substantially correspond those tasks of occupation specified in the relevant instrument.

1. Furthermore, the applicant has provided substantial evidence of its attempts to fill the position with an Australian citizen or permanent resident who is living in the same local area which has not provided any suitably candidates other than the nominee.

1. Accordingly, the requirements of reg 5.19(4)(h) are met.

1. Therefore, and 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

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

Angela Julian-Armitage Member

ATTACHMENT - EXTRACTS FROM THE MIGRATION REGULATIONS 1994

5.19  Approval 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).