Empire Bay Service Station Pty Ltd (Migration)

Empire Bay Service Station Pty Ltd (Migration) [2017] AATA 1447 (21 August 2017)
CORRIGENDUM
DIVISION:Migration & Refugee Division
APPLICANT:  Empire Bay Service Station Pty Ltd
CASE NUMBER:  1512688
DIBP REFERENCE(S):  BCC2015/1270988
MEMBER:Rania Skaros
DATE OF DECISION:  21 August 2017
DATE CORRIGENDUM
SIGNED:31 August 2017
PLACE OF DECISION:  Sydney
AMENDMENT:  The following corrections are made to the decision:

The words: ‘The Tribunal affirms the decision under review to refuse the nomination’ at paragraph 43 should be replaced with: ‘The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.’

Rania Skaros
Member

DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Empire Bay Service Station Pty Ltd
CASE NUMBER:  1512688
DIBP REFERENCE(S):  BCC2015/1270988
MEMBER:R. Skaros
DATE:21 August 2017
PLACE OF DECISION:  Sydney
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.
Statement made on 21 August 2017 at 3:08pm

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 on 31 August 2015 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 1 May 2015. 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 Direct Entry Nomination stream.
The delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19(4)(h)(ii) of the Regulations. The delegate gave weight to the advice received from the relevant Regional Certifying Body indicating that they were not satisfied that the position cannot be filled by an Australian citizen or permanent resident who is living in the same local area.
Mr Rao appeared before the Tribunal on 16 March 2017 to give evidence and present arguments on behalf of the applicant. Mr Rao informed the Tribunal that he is a director. The Tribunal also received oral evidence from Mr David Jones, an employment consultant who assisted the applicant in identifying the nature of the position required by the business.
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 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.
Based on the material in the Department’s file, the Tribunal is satisfied that the application was made on the appropriate form. As the position is located in regional Australia, no fee is payable (r.5.37(2)(a)).
In considering whether the application for approval identifies a need for the nominator to employ a paid employee to work in the position under the nominator’s direct control, the Tribunal has had regard to the evidence before it, including written submission and the oral evidence received at the hearing from Mr Rao and Mr Jones.
The Tribunal accepts on the evidence before it that the nominator operates a service station in Empire Bay in the Central Coast which, in addition to being a fuel station, also provides the following services, full service grocery store, take away cooked foods, newsagency, car wash and ATM services. The business’ annual turnover is over $3 million and employs approximately 12 people at any one time, the majority of whom are Australian citizens or permanent residents who live in the local area.
Mr Rao gave evidence at the hearing that since purchasing the business three years ago they have struggled to fill the nominated position of Retail Manager as many of the business’ staff did not want the additional responsibility of managing the multi service retail operation. The Tribunal received supporting material from a recruitment agent, which included evidence of numerous advertisements for the position and resumes of applicants for the position. The recruitment agent indicated that while a number of people had applied for the position none were suitably qualified for the role. Mr Rao gave evidence that none of the job applicants interviewed were prepared to undertake the full range of tasks involved in performing the position and this made it difficult to fill the role. He stated that they have made a significant investment in purchasing the business, and while he could undertake some of the more senior tasks himself, the business operates 24 hours and he would struggle to manage the business. He gave evidence that without a senior manager to oversee the staff and manage the business’ multi service retail operations on a day to day basis he would not be able to maintain the business’ operations and staff at the current level.
The Tribunal also had the opportunity to discuss with Mr Rao the nature of the position and tasks involved and it also had regard to the photographs of the business’ premises and other supporting material.
On the totality of evidence before it, the Tribunal is satisfied that the application has identified a need for the nominator to employ a paid employee to work in the position under the nominator’s direct control. 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 applicant is actively, lawfully and directly operating a business in Australia.
On the basis of the material provided to the Tribunal, including the business’ activity statements, financial reports, certificate of registration, superannuation records for employees and Mr Rao’s oral evidence about the business’ operations, the Tribunal is satisfied the applicant is actively and lawfully operating a service station business in Australia and directly operates that business. 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.
There is no evidence before the Tribunal to suggest that the applicant’s business is involved in labour hire.
Accordingly, the requirement in r.5.19(4)(c) does not apply.
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 has had regard to the letter of engagement dated 6 January 2016 which sets out the terms and conditions of the nominee’s employment. The contract stipulates that the position is full time for a period of two years from the date the permanent residence visa is granted by the Department.
The Tribunal has also considered whether the applicant has the financial capacity to provide the stated employment. The financial statements provided with the application indicated that the applicant had been operating at a loss and this raised the concern that the applicant may not be able to provide the two years full time employment to the nominee. However, the more recent financial documents that were provided to the Tribunal, including the 2015 and 2016 financial reports, and the letter from the accountant regarding the business’ performance in 2017 indicate that the business has operated profitably. The Tribunal is accordingly satisfied that the applicant has the financial capacity to employ the nominee.
Given the above, the Tribunal is satisfied that the nominee will 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. Accordingly, the requirement in r.5.19(4)(d) is met.
No less favourable terms and condition of employment: r.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 letter of engagement sets out the terms and conditions of employment and indicates that the nominee’s salary is $48,000 plus superannuation. The Tribunal has received recent payslips confirming that the nominee has been paid in accordance with the terms of employment.
The Tribunal has also received a number of documents regarding the rate of pay that would be provided to an equivalent worker, including Payscale, which indicates that the salary for retail store managers in Australia is between $42,969 and $67,723) with the average being $49,905) and a number of job vacancy advertisements indicating that the salary is between $47,000 and $55,000.
The Tribunal also notes that on form 1404 the relevant Regional Certifying Body, Regional Development Australia (Central Coast), has indicated that they are satisfied that the terms and conditions of employment are no less favourable.
The Tribunal is satisfied on the totality of the evidence before it that the terms and condition applicable to the position 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. 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 evidence before the Tribunal to indicate that there is adverse information known to the Department about the applicant or an associated person. 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 that indicates the applicant does not have a satisfactory record of compliance with the relevant Commonwealth and State workplace relations laws. Accordingly the requirements of r.5.19(4)(g) are met.
Tasks of the position, genuine need for the position and training benchmarks r.5.19(4)(h)
Regulation 5.19(4)(h) contains a number of alternative requirements.
In this case, the applicant claims to meet the requirements in r.5.19(4)(h)(ii), which requires that the following is satisfied: 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 at the ANZSCO skill level 1, 2 or 3 and that a regional certifying body has advised the Minister about certain matters relating to the position.
The Tribunal has considered each of these requirements as follows.
The evidence before the Tribunal indicates that the applicant’s business, which is operated by the applicant, and the position are located in Empire Bay NSW 2257, which is a postcode specified in the relevant instrument as being in regional Australia. Accordingly, r.5.19(4)(h)(ii)(A) and (E) are met.
The Tribunal has next considered whether there is a genuine need for the applicant to employ a retail manager and the tasks of that position. The evidence before the Tribunal indicates that the applicant operates a large 24-hour multi-retail business. Mr Jones gave evidence at the hearing that the position of retail manager is critical to the success of the business’ operations and viability. Mr Rao gave evidence at the hearing that the nominee has been employed in the position of retail manager and has been responsible for managing the day to day operations. The tasks of the position as submitted include managing and motivating the staff, managing stock levels and making key decisions regarding stock control, analysing sales and interpreting sales trends to facilitate planning, hiring staff, quality control, overseeing health and safety requirements and handling customer complaints. In considering the totality of the evidence, the Tribunal is satisfied that there is a genuine need for a paid employee to work in the position of retail manager under the nominator’s control. The Tribunal is also satisfied that the tasks of the position correspond to the occupation of Retail Manager, which is a skill level 2 occupation as specified in the ANZSCO. Accordingly, the requirements of r.5.19(4)(h)(ii)(B) and (D) are met.
As discussed above, the material and evidence provided supports the applicant’s claims that they have made efforts to fill the position locally but have had considerable difficulty doing so. The Tribunal also gives weight to the RCB’s advice that the position cannot be filled locally. On the evidence, the Tribunal is satisfied that the position cannot be filled by an Australian citizen/permanent resident living in the same local area. Therefore, the requirements of r.5.19(4)(h)(ii)(C) are met.
The Tribunal has received the completed form 1404 dated 13 July 2017 from the relevant RCB, the Regional Development Australia – Central Coast Inc., indicating that they are satisfied regarding the matters specified in paragraph (e) and subparagraphs (B) and (C). On this basis, the Tribunal is satisfied that r.5.19(4)(h)(ii)(F) is met.
Given the above, the Tribunal finds that the requirements of r.5.19(4)(h)(ii) are met and accordingly r.5.19(4)(h) is met as a whole.
Conclusion
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 affirms the decision under review to refuse the nomination.
R. Skaros
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
(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;
(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 at a skill level of ANZSCO skill level 1, 2 or 3;
(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).

[2017] AATA 1447

21 August 2017

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Statutory Construction

Procedural Fairness

Jurisdiction