Hridaan Enterprise (Migration)

[2020] AATA 98

Hridaan Enterprise (Migration) [2020] AATA 98 (17 January 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Hridaan Enterprise

CASE NUMBER:  1801509

DIBP REFERENCE(S):  BCC2017/1056755

MEMBER:Andrew George

DATE:17 January 2020

PLACE OF DECISION:  Darwin

DECISION:The Tribunal affirms the decision under review to refuse the nomination.

Statement made on 17 January 2020 at 3:26pm

CATCHWORDS
MIGRATION – Employer Nomination – approval of nominated position – Direct Entry Nomination stream – Retail Manager – tasks of the position – applicant’s business plan – owner largely performs the tasks of retail manager – tasks of the nominated position more closely align with retail supervisor – decision under review affirmed

LEGISLATION
Migration Regulations 1994 (Cth), r 5.19

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 Immigration on 16 January 2018 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).

2. The applicant applied for approval on 17 March 2017. 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).

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 applicant was represented in relation to the review by its registered migration agent, Mr Sahan Mawanane Hewa (MARN: 0965044).

5. 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’s decision is detailed. Materially, it states:

“I have taken in account the information submitted with the application and have taken into account the RCB’s advice. However, considering the evidence overall, I am of the view that the predominant tasks of the position are not those of an ANZSCO Skill Level 2 Retail Manager, rather they are more closely aligned with those of an ANZSCO Skill Level 4 retail supervisory position.

Accordingly, based on the information submitted, I am not satisfied the tasks to be performed in the position correspond to the tasks of an occupation specified in the relevant instrument.”

6.    The Tribunal notes that the “RCB” referred to is the Form 1404 Regional Certifying Body advice provided by the Department of Trade, Business and Innovation of the Northern Territory Government, dated 7 April 2017.

7.    On 25 July 2019 the Tribunal invited the applicant to provide updated and current information to the Tribunal. Unhelpfully, the Tribunal did not receive a response.

8.    For the following reasons, the Tribunal has decided to affirm the decision under review to refuse the nomination.

CONSIDERATION OF CLAIMS AND EVIDENCE

9. 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.

Tasks of the position genuine need for the position and training requirements r.5.19(4)(h)

1. Regulation 5.19(4)(h) contains a number of alternative requirements. These are set out in detail in the attachment, but in summary all of the following need to apply:

   ·the position and business is located in ‘regional Australia’;

   ·a Regional Certifying Body located in the same State or Territory as the position has advised the Minister about the matters in r.5.19(4)(e) and r.5.19(4)(h)(ii)(B) & (C);

   ·there is a genuine need to employ a paid employee to work in the position under the nominator’s direct control;

   ·the position cannot be filled by an Australian citizen or permanent resident who is living in the same local area;

   ·the tasks to be performed in the position correspond to the tasks of an occupation specified by instrument; and

   ·any additional applicability requirements for that occupation are met.

2. It is clear that the nominated position is located in ‘regional Australia’, being in the Northern Territory. It is also clear that the a Regional Certifying Body, being the Northern Territory Government, has advised the Minister in its Form 1404 dated 7 April 2017. Materially, at paragraph [15] of that form, the Northern Territory Government has advised the following:

   ·“there is a need for a paid employee in the nominated position within the business activities of the nominating employer;

   ·the nominated position cannot be filled by an Australian citizen or Australian permanent resident who is living in the same local area as the nominated position; and

   ·the terms and conditions of employment that are applicable to the nominated position will be no less favourable than the terms and conditions that are or would be provided to an Australian citizen or Australian permanent resident for performing equivalent work in the same workplace at the same location.”

3. Given the authority of the Northern Territory Government’s advice, the Tribunal would usually be reticent to attempt to look behind such advice without good reason. In this matter, the Tribunal notes that the Northern Territory Government has not strictly advised on the tasks to be performed in the nominated position: r.5.19(4)(h)(ii)(D). Such tasks may be distinguished from a ‘genuine need’ criterion that has been advised upon: r.5.19(4)(h)(ii)(B). As such, it was proper for the delegate to examine the nominated position’s tasks in detail as to do so does not in fact attempt to go behind the Northern Territory Government’s advice.

4. It is unnecessary to repeat the delegate’s decision in detail, suffice to note that the Tribunal also places weight on the applicant’s own business plan in independently reaching its decision. In that business plan, a material paragraph reads:

   “The Owner will have direct hands on control of the business. Financial decisions and business strategy will be completed by consultation between the Owner and Store Manager with a decision being reached by the Owner and implementation being completed by the Manager. The Manager will direct all staff in any matter as required. Performance of the staff will be monitored by the Store Manager and required reporting will be given to the Owner on a case by case basis”.

5. Based on this paragraph the Tribunal infers that the owner largely performs the tasks of retail manager, whilst the nominated position in fact performs the tasks of a lesser supervisor. This is consistent with the delegate’s reasoning that the tasks of the nominated position more closely align with an ANZSCO Skill Level 4 Retail Supervisor – 621511 rather than a Skill Level 2 Retail Manager – 142111.

6. It is material that the Tribunal invited the applicant to provide updated and current information to the Tribunal, but the applicant failed to do so. The applicant has offered no rebuttal of the delegate’s detailed reasoning, or sought to clarify its business plan. This has assisted neither the Tribunal, nor the applicant’s case.

7. Given the strength of the delegate’s reasoning, the Tribunal’s inference in paragraph [14] above, and the lack of assistance provided by the applicant, the Tribunal is not satisfied that the tasks to be performed in the position correspond to the tasks of an occupation specified by instrument. Accordingly, the requirements of r.5.19(4)(h) are not met.

8. 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

9. The Tribunal affirms the decision under review to refuse the nomination.

   Andrew George
   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).