Hueken Pty Ltd (Migration)
[2022] AATA 3201
•22 August 2022
Hueken Pty Ltd (Migration) [2022] AATA 3201 (22 August 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT: Hueken Pty Ltd
REPRESENTATIVE: Mr Joshua Ferreira (MARN: 1276739)
CASE NUMBER: 1913768
HOME AFFAIRS REFERENCE(S): BCC2018/1108915
MEMBER:Stephen Witts
DATE:22 August 2002
PLACE OF DECISION: Melbourne
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.
Statement made on 22 August 2022 at 9:33am
CATCHWORDS
MIGRATION – nomination – Direct Entry stream – retail buyer – nominee is genuinely carrying out the duties and responsibilities of a retail buyer – application is compliant – tasks performed in the nominated position correspond to the tasks of the occupation specified in the ANZSCO – position associated with the nominated occupation is genuine – decision under review set asideLEGISLATION
Migration Act 1958, ss 65, 245AR, 359, 360
Migration Regulations 1994, rr 1.13, 5.19STATEMENT 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 17 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 March 2018. 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 to work in the nominated occupation of retail buyer ANZSCO code 639211.
The delegate refused the application on the basis the applicant’s nomination did not satisfy reg 5.19(4) of the Regulations because the delegate was not satisfied that there was a genuine need for the position to work in the nominated occupation of retail buyer under the nominator’s direct control.
The applicant, Mr Gary Lee from Hueken Pty Ltd, appeared before the Tribunal on 18 August 2022 to give evidence and present arguments.
The Tribunal also received oral evidence from the nominee, Mrs Ho.
The applicant was represented in relation to the review.
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.
The Tribunal has considered all the material before it including evidence provided prior to the hearing and evidence given at the hearing.
The Tribunal notes that it has been provided with a copy of the relevant delegate’s decision record by the applicant. In this decision it was contended that it was not satisfied that the nominee was carrying out the duties and responsibilities of a retail buyer in accordance with ANZSCO code 639211. In particular it was asserted that the applicant was carrying out such tasks as ordering price labels, checking stock levels, creating documents to monitor sales, creating promotional posters, editing the wholesale and retail price list, and converting file formats; and that these tasks appear to have been usually delegated by an assistant or a general manager and that they would generally be low level tasks that did not necessitate decision-making responsibility and that although the position description provided by the nominator might appear to correspond with some of the tasks listed in the relevant code that in actual fact the evidence provided via emails sent in the business amongst other things suggest that the tasks correspond to a more low-level position description for roles such as purchasing and supply logistics personnel that may be more appropriately covered by a lower skill level occupation such as ANZSCO unit group 5911 referring to purchasing and supply logistics clerks.
The Tribunal notes that evidence has been provided by the applicant prior to the hearing including an agent’s submission, financial and company tax material, profit and loss statements, an employment contract for the nominee, an organisation chart, pay information and tax information for the nominee, some material relating to the business including supplier lists and stock lists, some photos situated in the business, and a position description for a retail buyer; and other information.
The Tribunal notes that in the submission provided by the applicant’s agent dated 30 June 2022 it was stated that the applicant operates an Asian food retail store in Cairns in Queensland, a regional area in Australia, that it has operated since 1980 and that the current owner purchased it in 2016. It was stated that the nominee was employed in 2016, that the base salary offered to the nominee is $57,000 per annum which it was stated is a salary commensurate with her qualifications and experience based on an analysis of the annual market salary rate for a retail buyer, and that the owner of the business is Mr Gary Lee.
It was stated that the owner has daily input into the business operation and that he and the business manager, Ms Helen Chia, the owner’s wife, make high-level decisions and that the staff have different levels of autonomy in decision-making, that the store stocks approximately 5000 different products, that it purchases its products wholesale from approximately 70 different suppliers and sells direct to the public; and that a business of this size must have a dedicated retail buyer to ensure efficient operation. It was further stated that most of the product prices are pre-set but that the nominee can negotiate some prices based on quantity and that the nominee is responsible for the direct contact with all suppliers and that she speaks multiple languages including Vietnamese, Chinese, and English.
The Tribunal notes that it was further stated that the position cannot be filled by an Australian citizen or permanent resident who is living in the same local area, that it was advertised on various platforms nationally and locally, that no application of interest was received from local people with the relevant skills and experience, and that there is a genuine need for a paid employee to run the operations as a retail buyer. It was also stated that the owner and the manager is occupied with other duties and that therefore a dedicated employee is required to look after the purchase and management of all stock. It was further stated that the application should not be refused and that the business is operating and has demonstrated significant growth in its operations and that it now operates two stores under its name and that the nominee is responsible for the products of both stores.
The Tribunal notes that in the financial material provided company business register material including an ABN was provided, and that in the financial statements it was stated that to the year ending June 2020 the business made a loss of approximately $130,000 and that in the previous year it made a profit of approximately $80,000. Information was also provided indicating that the total trading income business in those years was approximately $2 million.
Tribunal notes that an employment offer letter was provided dated 8 March 2018 for the nominee to work as a full-time “shop manager”.
The Tribunal notes that an organisation chart was provided indicating that there is a director in the business as stated above and that there is also a general manager, Ms Helen Chia the owner’s wife, who is an Australian citizen, the nominee who is a buyer, and other members of staff including 3 warehouse and delivery driver employees and 5 retail staff some of which are Australian citizens and some of which are temporary visa holders.
The Tribunal notes that it is also stated that the duties and responsibilities of the position reflect those defined as a retail buyer under the ANZSCO code and includes: analysing product sales figures and warehouse inventory, developing and implementing purchasing plans for the product range, working with all levels of staff to monitor sales targets, maintaining frequent contacts with restaurants and other wholesale clients, negotiating purchase, promotion and supply arrangements, conducting market research, negotiating with suppliers and vendors, managing the purchasing and delivery of products, monitoring inventory, managing administrative tasks such as purchase orders, assisting with marketing and sales strategies, presenting analytical reports such as market research, reporting issues with suppliers to the manager or owner, and keeping abreast of competitors and products on the market.
At the hearing the Tribunal had a discussion with the parties regarding the application.
The nominator stated that he and his wife work in the business and that over recent times they now own another business which they are part owners with other business colleagues and provided evidence that the business has grown significantly over recent times. The nominator also gave evidence that he and his wife are at retirement age and no longer work in the business for significant amounts of time but oversee the businesses as they develop. The nominator also provided evidence in regard to his strategy to franchise this form of Asian food and other ancillary services more widely in North Queensland. The Tribunal found this evidence credible after discussion regarding the new business in Townsville. The Tribunal discussed with the nominator the role of the nominee in both these businesses as a retail buyer.
The nominee stated that she first came to Australia from Singapore in 2015 on a student visa and achieved a bachelor level qualification and that she has worked in the business first as a part-time employee from 2016 and then as a full-time employee over the last few years. The Tribunal had a detailed discussion with the applicant regarding the duties and responsibilities of the nominee noting the nominee’s responsibility for cash balancing and the budget generally, her buying activities, her staff management, and the other activities she has worked in and progressed for the new business.
After careful consideration the Tribunal finds that the nominee is genuinely carrying out the duties and responsibilities of a retail buyer, that she has been doing this now with the same nominator for several years, and that it can be anticipated that she can remain employed with the applicant for at least the next two years.
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.
The Tribunal finds that the application was made in the approved manner and that it identified a need for the nominator to employ an identified person to work as a retail buyer under ANZSCO code 639211 under the nominator’s direct control.
Accordingly, the requirement in reg 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.
The Tribunal finds that the nominator is actively and lawfully operating a business in Australia and directly operates that business.
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.
The Tribunal finds that the nominator is not involved in labour hire activities.
Accordingly, this requirement does not apply.
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, noting that the nominee has now worked in the business for six years on a full-time basis, finds that an extension beyond two years from now is not expressly excluded.
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.
The Tribunal notes the evidence provided and finds that the terms and conditions applicable to the nominee 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.
In particular the Tribunal notes that the applicant is being paid a rate of pay that is above the minimum income threshold for a temporary visa holder.
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 finds that there is no adverse information known to the Department about the nominator or a person associated with the nominator.
Accordingly the requirements of reg 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 finds that there is no evidence before it that the applicant does not have a satisfactory record of compliance with workplace relations laws in the locations in which it operates a business and employs staff.
Accordingly the requirements of reg 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, 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.
The Tribunal finds that the tasks will be performed in Australia and correspond to the tasks of an occupation specified as above in the relevant instrument and that there is a genuine need for the nominator to employ the person identified as a paid employee to work in the position under the nominator’s direct control and that the position has not been able to be filled by an Australian citizen or permanent resident who is living in the same local area.
Accordingly the requirements of reg 5.19(4)(h) 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.
Stephen Witts
MemberATTACHMENT - 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).
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
Legal Concepts
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Judicial Review
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Statutory Construction
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Procedural Fairness
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Standing
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