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

1. 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).

2. 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).

3. In this case, the applicant has applied for approval of a nomination, seeking to satisfy the criteria in the Direct Entry nomination stream.

4. 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).

5. 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.

6. 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.

7. 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.

8. The Tribunal has resolved this matter on the papers.

9. The applicant was represented in relation to the review.

10. 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

11. 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

12. 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.

13. 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.

14. 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)

15. 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.

16. 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.

17. 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.

18. 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.

19. 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)

20. Regulation 5.19(4)(b) requires that the applicant is actively, lawfully and directly operating a business in Australia.

21. The Tribunal accepts on the evidence before it that the applicant owns and operates a service station trading as Cross Country Merriwa, located at Merriwa, NSW. Based on the material provided to the Tribunal, including financial statements, BAS returns, ASIC details, business bank statements, delivery dockets and supplier invoices, the Tribunal is satisfied the applicant is actively and lawfully operating a fuel retail business in Australia and directly operates that business.

22. Accordingly, the requirement in reg 5.19(4)(b) is met.

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

23. 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. 

24. There is no evidence before the Tribunal to suggest that the applicant’s business is involved in labour hire.

25. Accordingly, the requirement in r.5.19(4)(c) does not apply

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

26. 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. 

27. In considering whether the nominee will be employed in the nominated position for at least two years, the Tribunal has considered the financial capacity of the business to pay the nominated full-time salary of $55,328 per annum to the nominee for at least two years. In making its assessment, the Tribunal has afforded weight to information before it, including the applicant’s financial statements, BAS returns, bank statements and payroll records, which show the applicant has met payroll and operating costs.

28. The Tribunal notes that the applicant’s most recent (2021/22) financial statements show that the business has reported substantial revenue with proportionally aligned profit. The submitted BAS returns and financial statements indicate that the applicant’s revenue can sustain the ongoing employment of the nominee.

29. The Tribunal has also considered the totality of the applicant’s financial evidence before it, including bank account statements, company tax returns, financial statements, BAS returns and payroll records, which show the applicant has continued to meet payroll and operating costs since 1 July 2016. Additionally, the Tribunal has taken into consideration the nominee has been employed by the applicant on a full-time basis since September 2017. The nominee’s bank account statements, PAYG’s/income statements, NOA’s and applicant’s payroll records, support the nominee has received remuneration in excess of the nominated salary of $55,328 per annum. The nominee’s superannuation statement provided to the Tribunal, supports that the applicant has met their superannuation obligations and paid the nominee superannuation.

30. Based on the evidence before it, the Tribunal is satisfied the applicant has the financial capacity to pay the nominee a full-time salary and maintain the employment of the nominee on a full-time basis for two years.

31. Accordingly, the requirement in r.5.19(4)(d)(i) is met.

32. The Tribunal has had regard to the nominee’s contract of employment signed and dated by the parties on 1 April 2019 and letter dated 22 August 2022. The contract sets out the terms and conditions of employment and indicate that the period of employment is ongoing. The letter dated 22 August 2022 stipulates the salary is $63,806 per annum plus superannuation and the position is a permanent full-time role available for a period of at least two (2) years with no restrictions to continue beyond this term.

33. The Tribunal is satisfied based on the contract of employment dated 1 April 2019 and letter dated 22 August 2022 and other material before it, that the nominee will be employed on a full-time basis for at least two years on terms that do not exclude the possibility of extending the period of employment.

34. Accordingly, the requirement in r.5.19(4) (d) (ii) is met.

35. As the criteria in both r.5.19(4)(d)(i) and (ii) are satisfied, accordingly the requirements in r.5.19(4)(d) are met.

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

36. 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.

37. The contract of employment dated 1 April 2019 sets out the terms and conditions of employment and indicate that the nominee’s salary will be $29.09 per hour ($57,500.04 per annum) plus superannuation and hours of work 38 hours per week. The Tribunal notes an addendum letter dated 22 August 2022 stipulating that the nominee’s salary had increased to $63,806 per annum plus superannuation. The Tribunal additionally notes that that the terms and conditions set out in the nominee’s contract appear consistent with the National Employment Standards.

38. The Tribunal has received copies of the nominee’s payroll records, Income statements and bank statements confirming that the nominee has received regular payment of remuneration from the applicant. Superannuation information provided to the Tribunal, support that the nominee is being paid superannuation. The Tribunal is therefore satisfied based on the evidence before it, that the nominee will be paid in accordance with the terms of employment.

39. The Tribunal is satisfied on the totality of the evidence before it that the terms and conditions 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. 

40. Accordingly, the requirements of r.5.19(4)(e) are met

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

41. 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.

42. 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.

43. Accordingly, the requirements of r.5.19(4)(f) are met.

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

44. 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.

45. 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.

46. 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)

47. 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;

48. 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.

49. The Tribunal next considered whether there is a genuine need for the applicant to employ the nominee as a paid employee to work in the position of Store Manager under the nominator’s (the applicant’s) direct control.

50. The applicant has provided written submissions to the Tribunal detailing the genuine need for the position in addition to position descriptions indicating the objective of the role and the contribution of the position to the applicant’s business.

51. The Tribunal is satisfied that the material and evidence provided by the applicant, supports there is a genuine need for the nominator (applicant) to employ the nominee as a paid employee to work in the position under the nominator’s direct control. In reaching this conclusion, the Tribunal gives weight to the nature of the applicant’s business, its size and activities, the tasks to be undertaken in the position and the nominee's experience and qualifications. 

52. The Tribunal is satisfied on the evidence before it, that on balance there is a business need for the position which supports the genuine need for the nominator (applicant) to employ the nominee as a paid employee to work in the position under the nominator’s direct control. Accordingly, the requirement of r.5.19(4)(h)(ii) (B) is met.

53. The Tribunal is satisfied that the material and evidence provided by the applicant, supports the applicant’s claims that they have made efforts to fill the position locally by an Australian citizen or an Australian permanent resident. The applicant provided evidence at the hearing that they have been unsuccessful in sourcing an experienced and qualified Australian citizen or an Australian permanent resident to the position and the challenges the applicant has faced in attracting and retaining staff to work at Merriwa. The Tribunal also gives weight to the RCB’s advice that the position cannot be filled locally.

54. On the evidence before it, the Tribunal is satisfied that the position cannot be filled by an Australian citizen/permanent resident living in the same local area. Accordingly, the requirements of r.5.19(4)(h)(ii)(C) are met.

55. 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. The delegate formed the view that the tasks to be performed in the position did not correspond to the tasks of a Retail Manager (General) as specified by the Minister in an instrument in writing for sub-subparagraph 5.19(4)(h)(ii)(D).

56. The Tribunal has formed a different view and accepts the evidence presented by the applicant attesting to the tasks and duties of the position.

57. The Tribunal notes that a more comprehensive suite of evidence was presented to it than was given to the delegate in the original application, including evidence of the Director’s other business interests and his role in the management of the business.

58. For nominations made on or after 1 July 2015, regulation 5.19(4)(h)(ii)(D) requires the tasks to be performed in the position correspond to the tasks of an occupation specified in an instrument.[1] This requires a qualitative analysis of whether the position is what it really purports to be in a practical sense, which is more than a line by line comparison of the tasks for example in the employment contract and the tasks of ANZSCO description.[2] It is a question of fact and the weight the decision maker gives to various considerations and evidence is a matter for it.[3]

    [1] reg 5.19(4)(h)(ii)(D) as amended by SLI 2015, No 103.

    [2] Vishvam Pty Ltd as Trustee for the Vishvam Unit Trust v MICMSMA [2021] FCCA 758 at [34]–[37]. The Court accepted that the qualitative analysis required for reg 2.72(10)(f) (whether the position associated with the nominated occupation is genuine) endorsed in Cargo First Pty Ltd v MIBP [2015] FCCA 2091 was applicable to reg 5.19(4)(h)(ii)(D) assessment of whether the tasks to be performed in the position correspond to the tasks of an occupation specified by the Minister in an instrument.

    [3] In Kartar Investments Pty Ltd v MICMSMA [2020] FCCA 5, the Court found that it was open for the Tribunal to consider not only the documentary material but the oral evidence at hearing concerning the nominee’s role, and the Tribunal was not bound to treat the description in the contract as definitive but was open to take preference for one evidence over another (at [66]-[69]).

59. The Tribunal has reviewed the relevant descriptors stipulated under ANZSCO 142111 for the occupation Retail Manager (General) and the stated duties and responsibilities of the nominated position. In submissions before the Tribunal the applicant has provided comprehensive description of the daily duties and tasks carried out by the nominee. In undertaking its assessment as to whether the tasks to be performed in the position correspond to the tasks of an occupation specified in an instrument, the Tribunal has also afforded consideration to the environment in which the business operates, the size of the business and operational requirements, the autonomy of the position in regard to decision making and how the tasks of a Retail Manager (General) (as undertaken in the nominated position) are relevant to meeting these requirements.

1. Having afforded consideration to the evidence before it, the Tribunal is therefore satisfied that the tasks to be performed in the position, correspond to the tasks of a Retail Manager (General). Accordingly, the requirements of r.5.19(4)(h)(ii)(D) are met.

2. The occupation of Retail Manager (General) (ANZSCO 142111) is referred to in ANZSCO as a skill level 2 position. The Tribunal has considered evidence supporting the nominee’s suitability in so far as his experience and qualifications for the position. Department records show that the nominee holds relevant to the position a Diploma of Business and Advanced Diploma of Management attained from Apex Institute of Education 2015 and 2014 respectively. The nominee has worked approximately seven years in service station retail management, including over five years in the nominated position. 

3. Having considered the evidence attesting to the nominee’s experience and qualifications the Tribunal is satisfied that he is suitably qualified for the position and that the occupation is applicable to the person identified under subparagraph (a)(ii) in accordance with the specification of the occupation. Accordingly, the requirements of r.5.19(4)(h)(ii) (DA) are met.

4. The Tribunal has before it, advice dated 8 December 2017 from the relevant RCB, Regional Development Australia (RDA) Hunter, indicating that they are satisfied regarding the matters specified in r.5.19(4)(e) and r.5.19(4)(h)(ii)(B) & (C). On this basis, the Tribunal is satisfied that r.5.19(4)(h)(ii)(F) is met.

5. 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.

6. 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

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

   Karen McNamara
   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).