J.R Doran & L.R Doran (Migration)

J.R Doran & L.R Doran (Migration) [2021] AATA 3995 (1 October 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  J.R Doran & L.R Doran
CASE NUMBER:  1827144
HOME AFFAIRS REFERENCE(S):          BCC2016/2434635
MEMBER:Antonio Dronjic
DATE:1 October 2021
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Statement made on 01 October 2021 at 3:22pm

CATCHWORDS
MIGRATION – approval of a nomination – Direct Entry nomination stream – position of Motor Mechanic – genuine need for the employment – actively and lawfully operating a business in Australia – updated financial information – financial capacity to maintain the nominee’s salary – terms and conditions of employment no less favourable – decision under review set aside
LEGISLATION
Migration Act 1958, ss 245, 359
Migration Regulations 1994, rr 1.13, 5.19, 5.37
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 4 September 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 21 July 2016. 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 nominating business is J.R Doran & L.R Doran, and the nominated occupation is Motor Mechanic (ANZSCO 321211). The nomination was lodged in favour of Mr Gurmukh Singh.
The delegate refused the application on the basis the applicant’s nomination did not satisfy reg 5.19(4)(a)(ii) of the Regulations because the delegate was not satisfied that the nominator identified a need to employ Mr Singh, as a paid employee, to work in the position under the nominator’s direct control.
The applicant applied to the Tribunal on 17 September 2018 and with the application submitted a copy of the primary decision record. On 9 April 2021, the Tribunal wrote to the applicant pursuant to s 359(2) of the Migration Act 1958 (the Act). The letter invited the applicant to provide information in writing that will demonstrate that the applicant meets all of the requirements of reg 5.19(4).
On 29 April 2021 and 30 April 2021, the applicant’s representative submitted documentary evidence and submissions. The list of documents submitted to the Tribunal is attached to this decision record as Attachment A.
On 28 July 2021, the Tribunal wrote to the applicant advising that it had considered the material before it and was unable to make a favourable decision on this material alone and invited the authorised person to appear before the Tribunal on behalf of the nominating business at a hearing on 30 September 2021. With the hearing invitation letter, the Tribunal invited the applicant to provide specific documentary evidence.
On 28 September 2021, the applicant submitted documentary evidence and submissions. The list of documents submitted to the Tribunal is attached to this decision record as Attachment B.
On 29 September 2021, the applicant submitted documentary evidence and submissions. The list of documents submitted to the Tribunal is attached to this decision record as Attachment C.
Mr James Doran appeared on behalf of the nominating business before the Tribunal on 30 September 2021 to give evidence and present arguments. The applicant was represented in relation to the review. The representative attended the Tribunal hearing.
The nominating business is a father and son partnership which operates a small mechanic shop that provides car repair services at Hobart, Tasmania. It operates under the business name Doran’s Garage or GT Garage. Mr Doran’s father is a ‘silent partner’ and is not employed by the business.
As the business owner, Mr Doran oversees the day-to-day business operations. He is a qualified motor mechanic and auto electrician. He does not draw salary from the business but takes profit. During the past financial year, the net profit was $55,000.
Currently, the nominating business employs one full-time motor mechanic (the nominee), one fourth‑year apprentice (Mr Brendan Taylor) and one part-time mechanic who is a holder of a student visa and is not a qualified motor mechanic. In June 2021, another fourth‑year apprentice, Mr Damian Ross, ceased employment at the nominating business.
The nominee is the only qualified full-time motor mechanic employed by the business. His current annual salary is $46,771, excluding superannuation. Mr Doran gave evidence that, despite the nomination application being lodged in July 2016, Mr Singh was unable to commence his employment until June 2018 because his daughter was not well, and he had to stay in Melbourne. From 2016 to February 2018, the business employed an apprentice.
The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by video conference, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by video conferencing. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.
On 30 September 2021, the applicant submitted an updated employment contract with Mr Singh.
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 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.
Based on the information in the Department’s file, the Tribunal is satisfied that the application was made on the relevant form and that no application fee is payable pursuant to reg 5.37 of the Regulations. The relevant s 245AR(1) certification was also provided in the application form. The identified occupation in the application is Motor Mechanic (ANZSCO 321211).
Evidence has been given to the Tribunal, both documentary and verbal, at hearing regarding how the position was needed and the fact the nominee was and has been employed in the role since June 2018, which is sufficient to demonstrate the need for them to employ a paid employee to work in the position under their direct control.
The Tribunal accepts that the need for the nominee remains genuine and that the role of the nominee has been performed in consistency with the ANZSCO classification of Motor Mechanic since the commencement of employment to date.
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 is satisfied based on the material before it, including the business’s registration documents, activity statements, payroll activity information and other information about the business’s activities, that the applicant is actively and lawfully 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.
The applicant is not involved in labour-hire activities. Accordingly, the requirement in reg 5.19(4)(c) 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 two years full-time, and the terms and conditions of that employment do not expressly exclude the possibility of an extension.
The Tribunal has had regard to the employment contract between the parties. The contract confirms the nominee will be employed on a full-time basis for at least two years and that the employment contract does not expressly exclude the possibility of extending the period of employment.
The Tribunal has had regard to the documents provided on review, including current financial statements. The Tribunal notes that the nominator traded with profit during the past three years. The Tribunal is satisfied on the totality of the evidence that the applicant has the financial capacity to maintain the nominee’s salary as they have been doing since 2018.
The Tribunal is satisfied on the 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.
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 evidence before the Tribunal indicates that the nominee’s base salary is $46,771. Based on the evidence before it, the Tribunal is satisfied that there is no Australian performing equivalent work as a motor mechanic at the same location. Mr Taylor is a fourth‑year apprentice and Mr Rupindra is a part-time non-qualified mechanic working up to 20 hours per week.
The representative provided submissions regarding the nominee’s salary and how it is no less favourable than what would apply to an Australian citizen or an Australian permanent resident performing equivalent work at the same location. The submission contained reference to salary surveys and other salary data, including from the PayScale and SalaryExpert websites. According to PayScale data, the market salary for a Motor Mechanic is between A$38,000 and A$70,000. The Tribunal accepts the submission made by the representative on behalf of the nominator.
The Tribunal is satisfied that the terms and conditions applicable to the nominated 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.
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.
There is no information before the Tribunal to indicate that there is adverse information known to the Department about the nominator or an associated person.
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.
There is no evidence before the Tribunal that Fair Work or any other Government agency has taken action against the applicant in relation to workplace relations laws. As such, the Tribunal is satisfied that the applicant has satisfactorily complied with workplace relations laws.
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 in the relevant instrument, 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 a regional certifying body has advised the Minister about certain matters relating to the position.
The Tribunal is satisfied that the position and the nominator’s business are located in regional Australia, as the postcode of 7009 in Tasmania was specified as regional Australia in the relevant written instrument. The applicant must therefore meet the requirements of the second dot point above. As the position and the applicant are in regional Australia, the Tribunal is satisfied that reg 5.19(4)(h)(ii)(A) and (E) are met.
The Tribunal is further satisfied that the applicant has a genuine need for the paid position, and that it is under the nominator’s direct control. The Tribunal accepts that the nominee commenced his employment in June 2018 and has been employed by the applicant as a motor mechanic for more than three years.
Overall, having regard to the available evidence, the Tribunal is satisfied that the applicant’s business has a genuine need for the nominated role, and is therefore satisfied that reg 5.19(4)(h)(ii)(B) is met.
The Tribunal finds that the Tasmanian Department of State Growth (an approved regional certifying body specified in the relevant instrument) certified on 18 November 2016 that there was a need for a paid employee in the nominated position within the business activities of the nominating employer, that it could not be filled by an Australian citizen or permanent resident living in the same local area, and that its terms and conditions of employment were no less favourable than those that are or would be provided to an Australian employee. It is therefore satisfied that reg 5.19(4)(h)(ii)(F) is met.
Based on the certification above, and the documentary evidence provided by the applicant in relation to its recruitment exercise that led to the hiring of the nominee, the Tribunal accepts that the position cannot be filled by a locally resident Australian citizen or permanent resident. It is therefore satisfied that reg 5.19(4)(h)(ii)(C) is met.
Based on the evidence before it, and in particular the detailed job description and oral evidence received from Mr Doran at the hearing, the Tribunal is satisfied that the majority of the tasks of the nominated position correspond with those of the ANZSCO occupation of a Motor Mechanic. This occupation is specified by the Minister in the relevant instrument in writing for this sub-subparagraph, in Schedule 1 to IMMI 17/058,[1] which is, as required, an occupation listed in the ANZSCO with a skill level of 1, 2 or 3, being a skill level of 3 for this occupation.
[1] The Tribunal notes that IMMI 17/058 specifically states that it applies to applications made before 1 July 2017 but not finally determined and the latter IMMI 18/045 only applies to applications made after 18 March 2018.
The Tribunal is therefore satisfied that reg 5.19(4)(h)(ii)(D) is met.
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.
Antonio Dronjic
Member

Attachment A: Document List
1.On 29 April 2021 and 30 April 2021, the applicant’s representative provided the Tribunal with the following documentation:
·Current business name extract from ASIC
·Current and historical business name extract from ASIC
·Business activity statement for the period Jan 2019 to Dec 2020
·Partnership tax return for the year 2019 and 2020
·Organisational chart
·Position description (motor mechanic)
·Payslips issued by GT garage for the periods 2019 to 2021
·Notice of assessment for the year 2020
·Approved form 1404
·Gumtree job advertisement (motor mechanic)
·Genuine need statement by James Doran
·Employment contract for Gurmukh Singh.
Attachment B: Document List
2.On 28 September 2021, the applicant’s representative provided the Tribunal with the following documentation:
·Screenshot of the Average Automobile Mechanic Hourly Pay by PayScale
·Screenshot of Small Engine Mechanic Average Salary by SalaryExpert
·PAYG payment summaries of Damian Ross and Brendan Taylor for the periods 2020 to 2021
·PAYG payment summaries of Gurmukh Singh for the periods 2020 to 2021
·Submissions from the applicant’s representative dated 27/09/2021.
Attachment C: Document List
3.On 29 September 2021, the applicant’s representative provided the Tribunal with the following documentation:
·Business Activity Statement for the period Jan 2021 to Jun 2021
·Partnership Tax Return for the year 2020
·Partnership Tax Return for the year 2019.
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).

[2021] AATA 3995

1 October 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Statutory Construction

Procedural Fairness

Jurisdiction