J&B Investors Pty Ltd (Migration) - [2021] AATA 5555

J&B Investors Pty Ltd (Migration) [2021] AATA 5555 (16 November 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  J&B Investors Pty Ltd
CASE NUMBER:  1838174
HOME AFFAIRS REFERENCE(S):          BCC2017/2031703
MEMBER:De-Anne Kelly
DATE:16 November 2021
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision under review to refuse the nomination.

Statement made on 16 November 2021 at 9:49am
CATCHWORDS
MIGRATION – Employer Nomination – approval of nominated position – Direct Entry Nomination – Retail Manager – genuine need – small-town supermarket – organisation chart – job description – ANZSCO tasks – higher level tasks which require managerial decisions – duties of position more closely aligned with retail supervisor – decision under review affirmed
LEGISLATION
Migration Regulations 1994 (Cth), r 5.19
CASES
Cargo First Pty Ltd v Minister for Immigration & Anor [2015] FCCA 2091
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 18 December 2018 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 June 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)(B) of the Regulations because the applicant did not demonstrate a genuine need to employ a person in the nominated position of Retail Manager ANZSCO 142111.
The applicant appeared before the Tribunal on 5 November 2021 to give evidence and present arguments. This was a dual hearing of both the employer nomination refusal review and the visa application refusal review.
The applicant was represented in relation to the review by Mr Amanjeet Singh MARN: 0964645 and later by Mr Vikram Bir MARN: 0851838.
For the following reasons, the Tribunal has decided to affirm the decision under review to refuse the nomination.
Postponements, adjournments and extensions of time.
The applicant requested and was granted an adjournment of 19 minutes during the hearing.
Evidence
The Tribunal advised the applicant that evidence that would be considered was information and documents provided to the Department with the original application and subsequently; the evidence at hearing and any information or documents provided to the Tribunal following the hearing.
Documentation is listed at Schedule 1 and was considered by the Tribunal.
Section 359AA…

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.

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Details

Case: [2021] AATA 5555
Decision Date: 16 November 2021

CaseChat Overview and Summary

The Administrative Appeals Tribunal (AAT) considered an application by J&B Investors Pty Ltd (the applicant) concerning the approval of a nominated position for a Retail Manager under the Direct Entry stream of the Employer Nomination scheme. The core dispute revolved around whether there was a genuine need for the applicant's business, a small-town supermarket, to employ a person in the nominated position, and whether the duties described aligned with the requirements of a Retail Manager as defined by the Australian and New Zealand Standard Classification of Occupations (ANZSCO).

The legal issues before the Tribunal were to determine if the nominated position of Retail Manager was genuinely needed by the applicant's business and if the described duties corresponded to the ANZSCO tasks for that occupation. Specifically, the Tribunal had to assess whether the responsibilities outlined for the role were more aligned with a supervisory position rather than a managerial one, as required for the nomination to be approved. The Tribunal also considered the applicant's compliance with procedural fairness regarding the submission of evidence, particularly in light of documents lodged shortly before the hearing.

The Tribunal reasoned that the duties described for the nominated position, including tasks such as managing rosters, maintaining inventory, and handling merchandise display, were more characteristic of a retail supervisor than a Retail Manager. While the applicant argued for a genuine need due to extended operating hours and the director's other responsibilities, the Tribunal found that the evidence did not sufficiently demonstrate that the higher-level managerial tasks, such as strategic decision-making and significant financial oversight, were integral to the role. The Tribunal also noted that the applicant had ample time to provide supporting evidence for their claim of a genuine need, and the late submission of documents did not warrant post-hearing consideration on grounds of procedural fairness.

Consequently, the Tribunal affirmed the decision under review to refuse the nomination, finding that the nominated position's duties were not sufficiently aligned with the requirements of a Retail Manager and that a genuine need for such a role had not been established.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

The applicant requested and was granted an adjournment of 19 minutes during the hearing.Evidence The Tribunal advised the applicant that evidence that would be considered was information and documents provided to the Department with the original application and subsequently; the evidence at hearing and any information or documents provided to the Tribunal following the hearing. Documentation is listed at Schedule 1 and was considered by the Tribunal.Section 359AA of the Act At the commencement of the hearing, the Tribunal explained that it may put information to the applicant, under s.359AA of 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 Migration Act 1958 (Cth.) 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. It does not oblige the Tribunal to send a s.359(2) letter with a request for documents nor does it oblige the Tribunal to provide time post-hearing for the filing of documents. It is clear from the Invitation to Attend Hearing that the applicant is expected to file relevant material at least seven (7) days prior to the hearing date. It was noted that the agent lodged documents the day prior to the hearing and when queried by the Tribunal as to why they had not complied with the Presidents direction advised that they were not provided the documents by the employer. The Tribunal would permit an applicant to file documents after a hearing only where it is clear those documents could not be obtained prior to the hearing; where a new matter has been raised by the Tribunal that the applicant may not have reasonably been aware of or similar circumstances that would necessitate it to allow post hearing filing on the basis of procedural fairness or natural justice. What is before the Tribunal is the same issue before the department delegate, the question of the genuine need for the nominator to employ a person in the nominated position of Retail Manager. The applicant has been aware of this concern since the review application was lodged on 31 December 2018 and had almost three (3) years to provide evidence and information to support their case. The applicant did not put forward any matters that would enliven concerns regarding procedural fairness or natural justice. As such, the Tribunal did not allow the applicant a formal opportunity to file post-hearing submissions or evidence.

Decision

Reasons for decision

For the following reasons, the Tribunal has decided to affirm the decision under review to refuse the nomination.Postponements, adjournments and extensions of time. The applicant requested and was granted an adjournment of 19 minutes during the hearing.Evidence The Tribunal advised the applicant that evidence that would be considered was information and documents provided to the Department with the original application and subsequently; the evidence at hearing and any information or documents provided to the Tribunal following the hearing. Documentation is listed at Schedule 1 and was considered by the Tribunal.Section 359AA of the Act At the commencement of the hearing, the Tribunal explained that it may put information to the applicant, under s.359AA of 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 Migration Act 1958 (Cth.) 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. It does not oblige the Tribunal to send a s.359(2) letter with a request for documents nor does it oblige the Tribunal to provide time post-hearing for the filing of documents. It is clear from the Invitation to Attend Hearing that the applicant is expected to file relevant material at least seven (7) days prior to the hearing date. It was noted that the agent lodged documents the day prior to the hearing and when queried by the Tribunal as to why they had not complied with the Presidents direction advised that they were not provided the documents by the employer. The Tribunal would permit an applicant to file documents after a hearing only where it is clear those documents could not be obtained prior to the hearing; where a new matter has been raised by the Tribunal that the applicant may not have reasonably been aware of or similar circumstances that would necessitate it to allow post hearing filing on the basis of procedural fairness or natural justice. What is before the Tribunal is the same issue before the department delegate, the question of the genuine need for the nominator to employ a person in the nominated position of Retail Manager. The applicant has been aware of this concern since the review application was lodged on 31 December 2018 and had almost three (3) years to provide evidence and information to support their case. The applicant did not put forward any matters that would enliven concerns regarding procedural fairness or natural justice. As such, the Tribunal did not allow the applicant a formal opportunity to file post-hearing submissions or evidence.

Ratio Decidendi

Legal Principle Established

The Tribunal affirms the decision under review to refuse the nomination.De-Anne KellyMemberATTACHMENT - 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 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).Schedule 1Documents including the following were provided with the original application.1)Online application for employer nomination dated 8 June 2017.2)Market salary analysis including sample advertisements.3)Bank statements for the applicant.4)Business activity statements for 2015, 2016,5)Financial statements and company tax return from FY 2016, FY 2017, FY 20186)Orders to suppliers including tax invoices.7)Advertisement for the position on Adzuna dated 5 May 2017.8)Lease agreement.9)Photos of the interior and exterior of the store.10)ASIC and ABN registration.11)Employment contract dated 7 June 2017.12)Regional certifying advice dated 8 November 2017.13)Business plan for the applicant.14)Letter dated 10 July 2017.15)Candidate for the position responding to advertisement.16)Selection of BAS statements.Documents including the following were provided with the review application.17)Letter to the Tribunal from the applicant dated 15 September 2020 giving an overview of the store and it’s products. The applicant states that that they have a genuine need for the position because the business is open seven (7) days a week from 8.00am to 7pm. He states that the nominated position starts her shift half an hour before opening and finishes half an hour after closing. The director states that he and the nominee both work 40 hours per week and that he assists with the Management for the remaining 40 hours of the week not covered by the nominee. The director states that the nominee recruits, hires and trains new employees and manages rosters; maintains store inventories; keeps track of earnings and creates reports from them for the director; displays, cleans and rotates the merchandise; has responsibility for promotions and marketing including specials and ensures compliance with occupational health and safety regulations.The director states that he has a need for the position because he wishes to grow the business and has acquired a news agency and Lotto business; the opening hours of 80 hours per week are shared equally between the nominee and the director; he has other financial responsibilities which keep him busy during the week; the previous retail manager had resigned and they have the financial capacity to pay the salary of the position. He states that the nominee is essential to the business.18)Employment Contract dated 21 December 2019.19)Personal tax return for nominee.20)Bank statement for the nominee.21)Payslips for the nominee.22)Assorted BAS statements from FY 2018, FY 201923)Financial statement FY 2019.24)Contract for purchase of the newsagency business.25)Bank statements for the applicant FY 2019.26)Invitation from the Tribunal to provide information dated 5 August 2021.27)Registration documents from ASIC and ABN.28)BAS FY 2020.29)Taxation estimate FY 2019 and FY 2020.30)Company tax return for FY 2019 and FY 2020.31)Organisation chart.32)Regional certifying body advice.33)Advertisement for the position.34)Employment contract dated 17 August 2021.35)BAS statements FY 2020, FY 2021.36)Selection of emails between the nominee and suppliers.37)Letter from the agent dated 17 August 2021.38)Letter from the director dated 3 November 2021 addressing the candidates who responded to the advertisement.39)Resumes from the candidates.40) Market salary analysis with comparisons of advertisements for other vacancies.