Jai Sitaram Pty Ltd (Migration)

[2021] AATA 4042

Jai Sitaram Pty Ltd (Migration) [2021] AATA 4042 (20 October 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Jai Sitaram Pty Ltd

CASE NUMBER:  1836453

HOME AFFAIRS REFERENCE(S):          BCC2017/1792389

MEMBER:De-Anne Kelly

DATE:20 October 2021.

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Statement made on 20 October 2021 at 7.49AM

CATCHWORDS
MIGRATION – application for approval of nomination of position – position cannot be filled by citizen or permanent resident living in same area – advertised locally but no suitable applicant found – employer nomination lodged the day before advertisement posted – time a crucial factor for applicant – nominee now working in position for more than 4 years – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), s 359AA
Migration Regulations 1994 (Cth), r 5.19(4)(h)(ii)(C)

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 Home Affairs on 4 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).

2. The applicant applied for approval on 19 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).

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 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 the applicant failed to demonstrate that the position cannot be filled by an Australian citizen or Australian permanent resident who was living in the same local area as that place.

5. The applicant appeared before the Tribunal on 5 October 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.  

6. The applicant was represented in relation to the review by Ms Athina Stephanou MARN: 0103875.

7. For the following reasons, the Tribunal has decided to set aside the decision under review and substitute a decision approving the nomination.

   Section 359AA of the Act

8. 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. 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 then the hearing would recommence and they could respond to the concern. The Tribunal is not required to grant additional time to respond further with information however a reasonable request would be considered.

9. 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

10. 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.

11. On 19 May 2017, the applicant Jai Sitaram Pty Ltd ABN: 91 613 995 645 lodged a Regional Sponsored Migration Scheme employer nomination - Visa subclass 187 in the direct entry stream for the position of Office Manager on $48,000 to be employed at Beaudesert QLD 4285 in favour of Mr Devalkumar Ajitkumar PATEL.

12. The applicant was represented by the director Mr Aniket Saravaiya who gave an overview of the business. They are in the renewable energy sector and the director is a gradate in engineering and wants to contribute to the environment and sustainability. They have a solar sales and installation business in Sydney and Brisbane and would like to target South Australia as a key market. They have 13 employees in the Beaudesert branch, namely three (3) full time, one (1) Part time employees and nine (9) contractors. They have continued to trade effectively during COVID-19.

    The application is compliant: reg 5.19(4)(a)

13. 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.

14. 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 19 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’.

15. 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.

16. 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.

17. 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 Devalkumar Ajitkumar PATEL was identified in the nomination application.

18. In the hearing it was advised, and evidence was provided that Mr Devalkumar Ajitkumar PATEL has worked for the nominator since April 2017 or some four (4) and a half years. The Tribunal considers that if a nominee has worked in the position for such a long period of time this is clear evidence the position is genuinely needed. The evidence provided demonstrates that the business has a need for an Office Manager.

19. 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)

20. Regulation 5.19(4)(b) requires that the applicant is actively, lawfully and directly operating a business in Australia.

21. The applicant provided Tax returns for FY 2020 and FY 2019 and has a current ABN number.

22. Accordingly, the requirement in r.5.19(4)(b) is met.

    Position is not labour-hire: reg 5.19(4)(c)

23. 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. 

24. The applicant advised that the position is not labour hire and there is no evidence that the company hires labour to unrelated entities.

25. Accordingly, the requirement in r.5.19(4)(c) is met.

    Term of employment of the visa holder: reg 5.19(4)(d)

26. 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.

27. The applicant provided a tax return for FY 2020 and FY 2019 which are summarised below.

Tax return	2020	2019
Income	939,919	510,269
Wages	99,906	72,719
Expenses	926,174	505,675
Profit	3,745	4,594

1. The figures show an increase in revenue and a modest profit over these financial years. There is no doubt that the business is operational and despite COVID-19 is continuing to meet it’s expenses and employee costs and has provided a modest profit.

2. The Tribunal finds from the employment agreement dated 13 April 2017 that the employee will be employed in the position of Office Manager for at least two (2) years full time and the terms and conditions of employment do not expressly exclude the possibility of an extension

3. Accordingly, the requirement in r.5.19(4)(d) is met.

   No less favourable terms and conditions of employment: reg 5.19(4)(e)

4. 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.

5. Current salary $53,900. No.

6. The applicant undertook a market salary analysis and found that the pay for an Office Manager ranges from $50,000 to $60,000 per annum.

7. The salary in the 2017 employment contract is  $53,900 and the Tribunal finds that this is no less favourable than the terms and conditions that would be provided to an Australian citizen or Australian permanent resident performing the work of Office Manager in the same workplace at Beaudesert QLD.

8. Accordingly, the requirements of r.5.19(4)(e) are met.

   No adverse information known to Immigration: reg 5.19(4)(f)

9. 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.

10. 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 nominator or a person associated with the nominator. This was confirmed by the applicant at the hearing.

11. Accordingly, the requirements of r.5.19(4)(f) are met.

    Satisfactory compliance with workplace relations laws: reg 5.19(4)(g)

12. 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.

13. The Tribunal has conducted a search of the Fair Work Ombudsman’s website and finds no unsatisfactory record of compliance for the applicant with the laws of the Commonwealth relating to workplace relations. This was confirmed by the applicant at the hearing.

14. 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)

15. 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 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)

16. The Tribunal needs to determine if the position is in regional Australia. The business is located in Beaudesert QLD 4285. 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 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.

17. Accordingly, r.5.19(4)(h)(ii)(A) is met.

    Genuine need for the position r.5.19(4)(h)(ii)(B).

18. 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.

19. The nominee has worked since April 2017 or some four (4) and a half years. The Tribunal considers that if a nominee has worked in the position for such a long period of time this is clear evidence the position is genuinely needed The Tribunal finds for the reasons above that there is a genuine need for the nominator to employ a person, Mr Devalkumar Ajitkumar PATEL identified under r.5.19(4)(a)(ii) as a paid employee to work in the position of Office Manager under the nominator’s direct control.

20. Accordingly, r.5.19(4)(h)(ii)(B) is met.

    Cannot be filled. r.5.19(4)(h)(ii)(C)

21. 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.

22. The Tribunal is mindful that the delegate refused the original application on this basis and has examined the evidence very carefully but finds that the applicant for the reasons below has met the criterion.

23. The Tribunal noted that the position was advertised in Beaudesert Times on 5 April 2017 and there were fifteen responses with 6 to 8 people suitable, 2 -3 shortlisted but some did not respond to the invitation to an interview.  

24. The employment contract was signed on 13 April 2017 or 8 days following the advertisement. The employer nomination was lodged on 19 May 2017. The Tribunal put to the applicant under s359AA of the Act that the form “Certification – No Payment for Sponsorship” had been signed by the director and listed the employer nomination TRN: EGOEE1Y2LO listed on it and dated 4 April 2017. This appeared to suggest that the director had made a decision to employ and nominate the nominee the day before the advertisement was posted.

25. The director responded and said that time was crucial factor for him in finding the right person to manage the office as he lived in Sydney and could not do this himself. He did not want to travel back and forth and needed to find a Manager, so they consulted the agent in the event that they were unable to locate a suitable local person.

26. The Tribunal had earlier asked the nominee how he became aware of the vacancy and he advised that he saw the advertisement in the Beaudesert Times and applied for the position. It is very likely that the nominee mislead the Tribunal over this information because the day before the director had consulted the agent and commenced lodging an employer nomination in favour of the nominee with the IMMI account providing a TRN number which the applicant listed on the Certification form. The Tribunal found the explanation somewhat shallow but accepts there were no suitable applicants for the position and the nominee has been working for the applicant for more than four (4) years.

27. Accordingly, r.5.19(4)(h)(ii)(C) is met.

    Tasks of the position correspond to ANZSCO. r.5.19(4)(h)(ii)(D)

28. The Tribunal finds that the tasks of the nominated position in the Job description correspond to the tasks of the occupation of Office Manager specified by the Minister in an instrument in writing being the ANZSCO on the website of the Australian Bureau of Statistics.

29. Accordingly, r.5.19(4)(h)(ii)(D) is met.

    Occupation applicable to nominee. r.5.19(4)(h)(ii)(DA)

30. The nominee has a Diploma of Management and has some four (4) years’ experience as an Office 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 Office Manager.

31. Accordingly, r.5.19(4)(h)(ii)(DA) is met.

    Business operated at that place. r.5.19(4)(h)(ii)(E)

32. The business of the nominator is located at Beaudesert QLD 4285 and is in ‘that place’ that was specified in the employer nomination.

33. Accordingly, r.5.19(4)(h)(ii)(E) is met.

    Regional certifying body r.5.19(4)(h)(ii)(F)

34. The Chamber of Commerce and Industry (CCIQ) as the responsible regional certifying body on 18 May 2017 certified the application on Form 1404 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).

35. Accordingly, r.5.19(4)(h)(ii)(F) is met.

36. Accordingly, the requirements of r.5.19(4)(h) are met.

37. Based on the findings above, the Tribunal is satisfied that the applicant meets the requirements of r.5.19 for approval of the nomination of the position in Australia.

    DECISION

38. 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).