Frontrunner Consolidated Holdings Pty Ltd (Migration)

Frontrunner Consolidated Holdings Pty Ltd (Migration) [2020] AATA 2562 (13 April 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Frontrunner Consolidated Holdings Pty Ltd
CASE NUMBER:  1925371
DIBP REFERENCE(S):  BCC2018/875030
MEMBER:Stavros Georgiadis
DATE:13 April 2020
PLACE OF DECISION:  Adelaide
DECISION:The Tribunal affirms the decision under review to refuse the nomination.

Statement made on 13 April 2020 at 4:40pm

CATCHWORDS
MIGRATION – nomination – Direct Entry Nomination stream – no evidence of any other advertising for the role – genuine need for the paid position – the role cannot be filled by a locally resident Australian citizen or permanent resident – decision under review affirmed
LEGISLATION
Migration Regulations 1994, r 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 Immigration on 23 August 2019 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 23 February 2018. 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 the 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)(D) of the Regulations because the delegate concluded that the tasks and skill level of the nominated role are not that of Retail Manager ANZSCO 142111.
The applicant’s Director, Mr Matthew Merrick Brown, appeared before the Tribunal on 9 April 2020 to give evidence and present arguments. The Tribunal also received oral evidence from Ms Sumanpreet Kaur Bhattal who is the person nominated for the position,
The applicant was represented in relation to the review by its registered migration agent.
For the following reasons, the Tribunal has decided to affirm the decision under review to refuse 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.
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 applicant company operates a retail food outlet in the Adelaide metropolitan suburb of Richmond, South Australia trading as Unique Lunch Stop. At the hearing the applicant’s Director, Mr Brown, described the business as a fish-and-chip shop providing lunch for truckies and other passing traffic. He explained to the Tribunal that he was appointed sole Director of the company from October 2016 which took over the business from a former three-way Partnership that had involved the applicant’s father, the applicant’s company and another company named Marlas Pty Ltd. This followed a falling out between the Partnership entities.
Mr Brown’s oral evidence at the hearing is that the applicant will pay the nominee, Ms Bhattal, an annual salary of $47,008 (exclusive of superannuation of 9.5%) for work undertaking the full time role of Retail Manager in the applicant’s business with reference to the employment contract of 5 December 2016. The Tribunal accepts the applicant’s oral evidence as it is consistent with the certification from the Regional Certifying Body (RCB), Department of State Development South Australia, dated 23 February 2017 and the nominee’s own oral evidence at the hearing who confirmed this level of remuneration when asked.
The Tribunal questioned the applicant about any other person employed in the full-time role of Retail Manager in the business prior to the nominee and whether that person was an Australian Citizen or Permanent Resident. In response, the applicant told the Tribunal that just prior to engaging the nominee for the role in late 2016 the full-time position of Retail Manger was occupied by Ms Renee Graham who is an Australian citizen. The applicant told the Tribunal, when asked about Ms Graham’s level of remuneration, that she was paid at the rate of $25 per hour with an annual salary of $47,500 (plus superannuation) for that position working between 30 and 38 hours per week.
The Tribunal accepts the oral evidence that Ms Graham was paid at the rate of $25 per hour for the role with an annual salary of $47,500 (plus 9.5% superannuation). At the hearing, the Tribunal put to the applicant that in those circumstances, the nominee, Ms Bhattal would be paid less that an Australian citizen or permanent resident performing equivalent work in the same workplace at the same location and invited the applicant to submit how the applicant could therefore, meet the requirements of r.5.19(4)(e) relating to no less favourable terms and condition applicable to the position. The applicant’s response was that Ms Graham was engaged on a casual basis and therefore, attracted a loading of 25% as she was nor provided with holiday or sick leave entitlements.
At the hearing, the Tribunal asked for further details relating to the terms and conditions applicable to Ms Graham as comparator. The applicant’s evidence is that Ms Graham was engaged with the business for several years up until just before Ms Bhattal replaced her in the role of Retail Manager in late 2016. The oral evidence is that Ms Graham worked for a continuous period of 9 years as Retail Manager with the applicant working regular hours of between 6am and 1:30pm weekdays except Thursdays when she stayed on a little later every week. The Tribunal considers that these regular and consistent hours over the substantial period of 9 years are not consistent with the nature of an employee engaged on casual terms, notwithstanding the applicant maintaining the absence of leave provisions to Ms Graham. The Tribunal considers the comparative level of remuneration is Ms Graham’s annual salary of $47,500 (plus superannuation at 9.5%) contrasted with Ms Bhattal’s annual salary of $47,008 (plus superannuation at 9.5%) for the same role.
As the salary level for the nominee is less than that of an Australian citizen for the same work in the role, the Tribunal is not satisfied that the terms and condition applicable to the position will be no less favourable than those that are/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 not 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 in the relevant legislative instrument, 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 has advised the Minister about certain matters relating to the position.
The Tribunal accepts the oral evidence from the applicant and the nominee that Ms Bhattal has been engaged in the business since late 2016 and has continued in the role of Retail Manger since that time. When asked about any advertising to recruit for the role, the applicant responded that he undertook advertising for the nominated position in The Advertiser and on the Internet, on Seek.com
At the hearing, the Tribunal raised the issue of whether the applicant could demonstrate that the position cannot be filled by an Australian citizen or permanent resident who is living in the same local area as that place for the purposes of the requirements r.5.19(4)(h)(ii)(C).
There is evidence before the Tribunal to substantiate the applicant’s oral evidence in response to the above, that an advertisement was placed for the full-time role of Retail Manager in The Advertiser print media on 27 January 2018 and online, on Seek.com at the same time in January 2018. The nominee’s evidence is that she was interviewed by the applicant at the end of September 2016 after finding out about the position from the former Retail Manager, Renee Graham. She was successful and accepted that role at that time. The aforementioned employment contracts and arrangements establish that the nominee became formally engaged by the applicant in the full-time role of Retail Manager from the end of 2016. This is consistent with the payslips provided to the Tribunal which clearly show Frontrunner Consolidated Holdings Pty Ltd as the employer named on the nominee’s payslips prior to the advertising undertaken in January 2018. There is no evidence of any other advertising for the role.
The Tribunal put to the applicant that it had concerns the nominee was employed and commenced in the role of Retail Manager at the end of 2016 before the advertising for the position had been undertaken or completed in January 2018. The Tribunal referred in this regard to the accepted oral evidence from the applicant about the Seek.com advertisement and that of The Advertiser placed on 27 January 2018 well after the nominee was engaged by the applicant.
The applicant sought to explain the difficulties in the nature of recruiting for the nominated position at a time of transition from the former three-way Partnership to that of his own company following a falling out with the former partners. The Tribunal accepts the applicant’s oral evidence that Ms Bhattal had, in fact, been secured (and was being paid) by the applicant from late 2016 in the ongoing role of Retail Manager well before the advertising undertaken for that role in January 2018 to secure an Australian citizen or permanent resident.
The Tribunal finds that the nominee was contracted at the end of 2016 to commence in the nominated position of Retail Manager for at least 2 years with the applicant and that this predates the advertising for the nominated position carried out in January 2018. The Tribunal is not persuaded, in these circumstances, that the applicant has established that the position cannot be filled by an Australian citizen or permanent resident who is living in the same local area as that place - as required under r.5.19(4)(h)(ii)(C). The Tribunal finds that the position had already been filled by Ms Bhattal, when the applicant was purportedly undertaking advertising to find a suitable Australian citizen or permanent resident to fill positions of Retail Manager. The Tribunal therefore, finds the requirements of r.5.19(4)(h)(ii) are not satisfied.
Accordingly, the requirements of r.5.19(4)(h) are not met.
For the above reasons the Tribunal is not satisfied that the applicant meets the requirements of r.5.19(4). The applicant has not sought to satisfy the criteria in Temporary Residence Transition Nomination stream, and as such has not met the requirements in r.5.19(3). Accordingly, the nomination of the position cannot be approved. Therefore, the Tribunal must affirm the decision under review.
DECISION
The Tribunal affirms the decision under review to refuse the nomination.
Stavros Georgiadis
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)       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).

[2020] AATA 2562

13 April 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Statutory Construction

Procedural Fairness

Jurisdiction