Gem (Aust) Pty Ltd (Migration) - [2023] AATA 178

Gem (Aust) Pty Ltd (Migration) [2023] AATA 178 (27 January 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Gem (Aust) Pty Ltd
REPRESENTATIVE:  Dr Etienne De Villiers Hugo
CASE NUMBER:  1920350
HOME AFFAIRS REFERENCE(S):          BCC2017/3863072
MEMBER:Karen McNamara
DATE:27 January 2023
PLACE OF DECISION:  Sydney
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Statement made on 27 January 2023 at 11:08am

CATCHWORDS
MIGRATION – approval of a nomination – Direct Entry nomination stream – position of Retail Manager (General) – nominated occupation and its code correspond to a specified occupation – actively, lawfully and directly operating a business in Australia – financial capacity for two years full-time employment – terms and conditions no less favourable - genuine need – decision under review set aside
LEGISLATION
Migration Act 1958, ss 245, 359
Migration Regulations 1994, rr 1.13, 5.19, 5.37
CASES
Cargo First Pty Ltd v MIBP [2015] FCCA 2091
Kartar Investments Pty Ltd v MICMSMA [2020] FCCA 5
Vishvam Pty Ltd as Trustee for the Vishvam Unit Trust v MICMSMA [2021] FCCA 758
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 10 July 2019 to reject the application by Gem (Aust) Pty Ltd (the applicant) 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 20 October 2017. 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 regulation 5.19(4)(h)(ii)(D) because the application did not demonstrate that the tasks to be performed in the position corresponded to the occupation of Retail Manager (General) (ANZSCO 142111).
The applicant lodged an application for review with the Tribunal on 25 July 2019. The review application was accompanied by a copy of the delegate’s decision. The Tribunal also has before it the Department file containing all information before the delegate at the time of their decision.
Having consideration to the totality of evidence before it, the Tribunal considered that it could decide the review in the applicant’s favour without a hearing.
On 15 December 2022, the applicant through their representative consented to a decision on the papers and provided additional information to the Tribunal in support of their review application.

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Gem (Aust) Pty Ltd (Migration)

Details

AGLC: Gem (Aust) Pty Ltd (Migration) [2023] AATA 178
Case: [2023] AATA 178
Decision Date: 27 January 2023

CaseChat Overview and Summary

This matter concerned an application by Gem (Aust) Pty Ltd for approval of a nomination under the Direct Entry stream of the Regional Sponsored Migration Program. The applicant sought to nominate a position of Retail Manager (General) (ANZSCO 142111) for Mr Taranjeet Singh Virk, with a nominated salary of $55,328 per annum. The applicant operated a service station in Merriwa, New South Wales. The Tribunal was required to determine whether the applicant met all the requirements for approval of the nomination as set out in regulation 5.19(4) of the Migration Regulations 1994.

The primary legal issues before the Tribunal were whether the applicant's nomination application was compliant, whether the nominator was actively and lawfully operating a business in Australia, whether there was any adverse information known to Immigration, whether the nominator had a satisfactory record of compliance with workplace relations laws, and crucially, whether the nominated position met the criteria under regulation 5.19(4)(h). This latter regulation contained alternative requirements relating to the tasks of the position, a genuine need for the nominee, and specific training or regional employment considerations.

The Tribunal found that the applicant had met the requirements of regulation 5.19(4)(a) by lodging a compliant application that identified a need for the nominated employee. It was also satisfied that the nominator was actively and lawfully operating its business, that no adverse information was known to Immigration, and that the nominator had a satisfactory record of compliance with workplace relations laws, satisfying regulations 5.19(4)(b), (f), and (g) respectively. Critically, the Tribunal determined that the applicant met the requirements of regulation 5.19(4)(h)(ii), finding that the position was located in regional Australia, there was a genuine need for the nominee, and that the nominated occupation corresponded to a specified occupation.

Consequently, the Tribunal set aside the original decision and substituted a decision approving the nomination.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

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.Background The applicant operates a service station located at Merriwa, NSW, trading as Cross Country Merriwa. The business derives income from the provision of fuel, convenience store and automotive mechanical services. On 20 October 2017, the applicant lodged an application for an employer nomination approval under the Regional Sponsored Migration Direct Entry stream for the position of Store Manager under the occupation of Retail Manager (General) (ANZSCO 142111). The nominated base rate and guaranteed earnings is $55,328 per annum. The application identified Mr Taranjeet Singh Virk. The Tribunal notes that numerous evidence and submissions were lodged by or on behalf of the applicant. While the Tribunal has considered all of same, only that which was considered material to its decision has been expressly referred to herein. 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. Based on the material in the Department’s file, the Tribunal is satisfied that the application was made on the approved form. As the position is located in regional Australia, no fee is payable (r5.37(2)(a)). The application also included written certification relating to conduct that contravenes s.245AR(1) of the Migration Act 1958, declared and signed by the applicant. Accordingly, the requirements of r.5.19(4)(a)(i) are met. In considering whether the application for approval 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, the Tribunal has had regard to the evidence before it, including written submissions by the representative dated 1 September 2022 and written submission contained on the Department file by the applicant to RDA Hunter, dated 15 March 2017. The Tribunal is satisfied on the information before it that the application for approval 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. Accordingly, the requirement in r. 5.19(4)(a)(ii) is met. As the criteria in both r.5.19(4)(a)(i) and (ii) are satisfied, accordingly the requirements in r.5.19(4)(a) are 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.

Evidence

Evidence Before The Court

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.Background The applicant operates a service station located at Merriwa, NSW, trading as Cross Country Merriwa. The business derives income from the provision of fuel, convenience store and automotive mechanical services. On 20 October 2017, the applicant lodged an application for an employer nomination approval under the Regional Sponsored Migration Direct Entry stream for the position of Store Manager under the occupation of Retail Manager (General) (ANZSCO 142111). The nominated base rate and guaranteed earnings is $55,328 per annum. The application identified Mr Taranjeet Singh Virk. The Tribunal notes that numerous evidence and submissions were lodged by or on behalf of the applicant. While the Tribunal has considered all of same, only that which was considered material to its decision has been expressly referred to herein. 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. Based on the material in the Department’s file, the Tribunal is satisfied that the application was made on the approved form. As the position is located in regional Australia, no fee is payable (r5.37(2)(a)). The application also included written certification relating to conduct that contravenes s.245AR(1) of the Migration Act 1958, declared and signed by the applicant. Accordingly, the requirements of r.5.19(4)(a)(i) are met. In considering whether the application for approval 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, the Tribunal has had regard to the evidence before it, including written submissions by the representative dated 1 September 2022 and written submission contained on the Department file by the applicant to RDA Hunter, dated 15 March 2017. The Tribunal is satisfied on the information before it that the application for approval 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. Accordingly, the requirement in r. 5.19(4)(a)(ii) is met. As the criteria in both r.5.19(4)(a)(i) and (ii) are satisfied, accordingly the requirements in r.5.19(4)(a) are met.Nominator is actively and lawfully operating a business in Australia: reg 5.19(4)(b)

Decision

Reasons for decision

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.Karen McNamaraMemberATTACHMENT - Extracts from the Migration Regulations 19945.19Approval 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).

Ratio Decidendi

Legal Principle Established

Accordingly, the requirements of r.5.19(4)(e) are metNo 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. There is no evidence before the Tribunal to indicate that there is adverse information as per the meaning given in rr.1.13A and 1.13B, 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: 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. 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 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 under 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.In this case, the applicant claims to meet the requirements in r.5.19(4)(h)(ii). 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 Merriwa, New South Wales postcode 2329, 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.