Green Joe Australia Pty Ltd (Migration)

Green Joe Australia Pty Ltd (Migration) [2023] AATA 123 (9 January 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT: Green Joe Australia Pty Ltd

REPRESENTATIVE:  Mr John Young (MARN: 9251554)
CASE NUMBER:  1915220
HOME AFFAIRS REFERENCE(S):          BCC2017/2832132
MEMBER:De-Anne Kelly
DATE:9 January 2023
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Statement made on 09 January 2023 at 12:01pm
CATCHWORDS
MIGRATION – approval of a nomination – Direct Entry stream – position of Retail Manager – labour market testing – evidence of job advertisement – genuine need for the position – actively and lawfully operating a business in Australia – full-time employment for at least 2 years – terms and conditions of employment no less favourable – decision under review set aside
LEGISLATION
Migration Act 1958, ss 245, 359, 360
Migration Regulations 1994, rr 1.13, 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 Home Affairs on 23 May 2019 to reject the applicant’s application 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 8 May 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 reg 5.19(4)(h)(ii)(C) of the Regulations because they were not satisfied the position cannot be filled by an Australian citizen or Australian permanent resident who lives in the local area as that place because it appeared the nominee was employed prior to the limited recruitment process and had an involvement and connection with the business as a shareholder and director. The delegate believed the position was pre-determined to be filled by the nominee rather than a genuine recruitment process being followed to test the local labour market.
The applicant appeared before the Tribunal on 27 October 2022 to give evidence and present arguments. The Tribunal also received oral evidence from the other owner Mr Anders.
The applicant was represented in relation to the review by Mr John Young.
For the following reasons, the Tribunal has decided to set aside the decision under review and substitute a decision approving the nomination.
Evidence
At the commencement of the hearing, the Tribunal explained that it may put information to the applicant, under s.359AA of the Migration Act 1958 (Cth) (the Act), that would be the reason, or a part of the reason, for affirming the decision that is under review and that it would explain why this information was relevant to the decision and how it may be relied upon in reaching a decision. The Tribunal also advised that the applicant would be given an opportunity to respond to this information in one of three ways: they could request an adjournment and the hearing could be stopped for 15 or 20 minutes or whatever period of time they wished and they could seek advice from the registered migration agent and they could respond in the hearing. Under s.360 of the Act the Tribunal must invite the applicant to a hearing to give evidence and present arguments relating to issues arising in relation to the review and this affords the applicant the opportunity to canvas information before the Tribunal.
Section 359AA provides as follows:
(a) The Tribunal may orally give to the applicant clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b) if the Tribunal does so—the Tribunal must:
(i)ensure, as far as is reasonably practicable, that the applicant understands why the information is relevant to the review, and the consequences of the information being relied on in affirming the decision that is under review; and
(ii) orally invite the applicant to comment on or respond to the information; and
(iii) advise the applicant that he or she may seek additional time to comment on or respond to the information; and
(iv) if the applicant seeks additional time to comment on or respond to the information—adjourn the review, if the Tribunal considers that the applicant reasonably needs additional time to comment on or respond to the information.
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.
On 8 August 2017 the applicant trading as Green Joe Wok and Sushi lodged a Regional Sponsored Migration Scheme employer nomination visa subclass 187 in the Direct Entry Stream for the position of Retail Manager on $50,000 to be employed at Hermit Park QLD 4812 in favour of Mr Baiguo JIANG. Mr Ander also attended.
The applicants acquired the business in 2016 and applied for the visa in 2017. Both the partners work in the business but Mr Jiang the nominee controls the business. They serve Asian food, sushi and noodle and are open 5 days per week from 11.00am to 7.30pm.
12 August 2016 onwards fortnightly payment marked salary to Baiguo JIANG
Advertised Gumtree 18 July 2017?? No evidence of advertisement.
3 Candidates – none suitable.
RCB – 5 Sep 2017 Gumtree advertisement. Letter from recruitment agency & results.
Letter 4 Sep 2017 from nominee
Employment contract – 1 August 2017.
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 a paid employee to work in the position under their direct control.
Applications must be in the approved form and must be accompanied by the prescribed fee to be valid and acknowledged by the Department of Home Affairs. An acknowledgement dated 8 May 2017 was sent by the Department to the nominator as evidence of a valid application. The Department accepted a declaration made on the online form that the nominator had responded yes in the online form to the following: ‘the applicant certifies that they have not engaged in conduct in relation to this nomination that constitutes a contravention of subsection 245AR (1) of the Migration Act 1958’.
The Tribunal is satisfied that the application was made on the approved form 1395 (Internet) for post 23 March 2013 applications, accompanied by the prescribed fee and the nominator has included a written certification stating the nominator has not engaged in conduct in relation to the nomination that contravenes s.245AR(1) of the Act.
Regulation 5.19(4)(a)(ii) requires the nominator to identify a need for the nominator to employ a paid employee to work in the position under the nominator’s control. The assessment of the need for a paid employee comprises two parts: establishing the need for an employee (i.e. there exists a vacancy for the nominated position) and ascertaining that the relationship between the nominator and nominee is that of employer and employee.
The nomination does not have to specify the nominee but needs to identify a nominee before, or at the time, the associated visa application is made. Mr Baiguo JIANG. was identified in the nomination application, and this indicates there is a need for the position.
Accordingly, the requirement in r.5.19(4)(a) is 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.
It is noted that BAS statements to Q4 2022 and a financial statement for FY 2022 indicate that the business is actively, lawfully and directly operating a business in Australia.
Accordingly, the requirement in reg 5.19(4)(b) is met.
Position is not labour-hire: reg 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 that the business labour hires.
Accordingly, the requirement in reg 5.19(4)(c) is met.
Term of employment of the visa holder: reg 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 was concerned that the lease was expiring on 30 April 2024 or 18 months’ time and there were nil options for renewal. It was also concerned over the financial figures from FY 2016 to FY 2022 which show accumulated tax losses of $83,406 and a negative equity in the business of the same amount.

Year 2022 2021 2020 2019 2018 2017 2016

Income     302,812     293,229     253,923     266,367 246,803     207,867     29,117

Wages     108,027     97,600     84,456     79,090    71,182       60,800       4,000

Expenses     310,338     314,535     266,165     254,684 243,925     231,735     62,141

Profit -7,526 -    21,306 -     12,242     11,683      2,878 -     23,868 -     33,024

Accum. losses -83,406 -    75,880 -     54,574

Equity -83,404 -    75,878 -     54,572

This was put to the applicant under s 359AA of the Act and they chose to have a 20-minute adjournment.
Following this the agent advised that the business has gone through some tough times with the COVID-19 pandemic. They are confident of an extension to the lease. They put a lot of hardware in the shop in 2021 and they have a car which they is a personal item but used for the business.
Following the hearing the applicant provided evidence from Knight Frank real estate that they were confident of securing a further three-year lease agreement from the applicant.
The accountant Ms Macklin provided a very professional and relevant support letter explaining that the applicant had never lodge any late material with the ATO and does not have any credit facilities as all obligations are met as goods are received. They have written off assets over the years including a shop-fit out of $45,924 which accounts for half the losses shown. The applicants were not eligible for Job seek or keeper and worked their own way through the pandemic. The applicants have a personal care which they use for the business, and they deduct lawfully cents pre kilometre for this which amounts to $3,400. Moreover, they are not required to undertake a stocktake but estimate that at the end of June 2022 this would amount to a few thousand dollars.
Taking all this information into account t the Tribunal finds that the applicant has a commitment to the business has invested in a fit out and weathered a difficult COVID -19 period without government assistance. It is noted that the nominee’s waged are always paid and there is a modest amount paid to the other owner Mr Ander.
The Tribunal finds that the employee will be employed on a full-time basis in the position for at least 2 years.
Accordingly, the requirement in reg 5.19(4)(d) is met.
No less favourable terms and conditions of employment: reg 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.
Current wage $52,000.
The salary is $52,000 per annum and Market salary analysis shows this is consistent with the salary for a retail manager in a regional area.
Accordingly, the requirements of reg 5.19(4)(e) are met.
No 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.
The Tribunal has no information before it from the Department that would constitute adverse information and a search of the ASIC website finds no adverse information about the either of the owners of the business.
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.
The Tribunal can find no unsatisfactory record of compliance for the applicant with the laws of the Commonwealth relating to workplace relations. This was confirmed by the owner at the hearing.
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 in a 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.
Position in regional area – r.5.19(4)(h)(ii)(A)
The Tribunal needs to determine if the position is in regional Australia. The business is located in Hermit Park QLD 4812. The definition of ‘Regional Australia’ is found in IMMI 16/045. This postcode is included in the list of postcodes for designated regional areas (IMMI 16/045) therefore the position and business are located in regional Australia. The applicant can choose therefore to meet either r.5.19(4)(h)(i) or r.5.19(4)(h)(ii). The applicant has chosen to meet r.5.19(4)(h)(ii) which provides for the second dot point above.
Accordingly, r.5.19(4)(h)(ii)(A) is met.
Genuine need for the position r.5.19(4)(h)(ii)(B).
The Tribunal needs to consider if there is a genuine need for the applicant to employ a paid employee to work in the position under the nominator’s control. It is noted that the applicant states the nominee has been working in the position for the past several years.
From the evidence given by the director as above there is a genuine need to employ the nominated position.
The Tribunal finds for the reasons above that there is a genuine need for the nominator to employ a person, identified under r.5.19(4)(a)(ii) as a paid employee to work in the position under the nominator’s direct control.
Accordingly, r.5.19(4)(h)(ii)(B) is met.
Cannot be filled. r.5.19(4)(h)(ii)(C)
The Tribunal needs to consider if the position cannot be filled by an Australian citizen or permanent resident who is living in the same local area.
The applicant advised that they advertised on Advertisement in Gumtree and three applicants applied none of whom were suitable and as such it does accept the evidence of the applicant that they could not fill this position with a suitably qualified person at the time of the nomination.
The Tribunal accepted the director’s evidence that the position could not be filled by an Australian citizen or Australian permanent resident.
Accordingly, r.5.19(4)(h)(ii)(C) is met.
Tasks of the position correspond to ANZSCO. r.5.19(4)(h)(ii)(D)
The Tribunal has carefully considered the evidence and the Position Description provided and finally determined that the tasks of the position generally correspond to the tasks of a position specified by the Minister in an instrument being the position of Retail Manager.
Accordingly, r.5.19(4)(h)(ii)(D) is met.
Occupation applicable to nominee. r.5.19(4)(h)(ii)(DA)
The nominee provided evidence that he has an Diploma o f Leadership and Management as well several years’ experience as a Retail Manager. The Tribunal finds that the occupation is applicable to the person, identified under subparagraph (a)(ii) in accordance with the specification of the occupation.
Accordingly, r.5.19(4)(h)(ii)(DA) is met.
Business operated at that place. r.5.19(4)(h)(ii)(E)
The business of the nominator is located at Hermit Park QLD 4812 and is in ‘that place’ that was specified in the employer nomination.
Accordingly, r.5.19(4)(h)(ii)(E) is met.
Regional certifying body r.5.19(4)(h)(ii)(F)
The Chamber of Commerce and Industry Queensland (CCIQ) as the regional certifying body RCB specified in the Ministerial instrument on 5 September 2017 certified the application as meeting r.5.19(4)(e) and r.5.19(4)(h)(ii)(B) & (C) and has therefore advised the Minister about the matters mentioned in paragraph (e) and sub-subparagraph (B) and (C).
Accordingly, r.5.19(4)(h)(ii)(F) is met.
Accordingly, the requirements of r.5.19(4)(h) and r.5.19(4) are met.
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.
De-Anne Kelly
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)       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;
(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 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).

[2023] AATA 123

9 January 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Statutory Construction

Procedural Fairness

Jurisdiction

Year	2022	2021	2020	2019	2018	2017	2016
Income	302,812	293,229	253,923	266,367	246,803	207,867	29,117
Wages	108,027	97,600	84,456	79,090	71,182	60,800	4,000
Expenses	310,338	314,535	266,165	254,684	243,925	231,735	62,141
Profit	-7,526	- 21,306	- 12,242	11,683	2,878	- 23,868	- 33,024
Accum. losses	-83,406	- 75,880	- 54,574
Equity	-83,404	- 75,878	- 54,572