JD Management Services Pty Ltd ATF Burnell Trust (Migration) - [2021] AATA 2488

JD Management Services Pty Ltd ATF Burnell Trust (Migration) [2021] AATA 2488 (28 June 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  JD Management Services Pty Ltd ATF Burnell Trust
CASE NUMBER:  1818942
HOME AFFAIRS REFERENCE(S):          BCC2017/3755201
MEMBER:De-Anne Kelly
DATE:28 June 2021
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision under review to refuse the nomination.

Statement made on 28 June 2021 at 11:31am
CATCHWORDS
MIGRATION – approval of a nomination – Temporary Residence Transition nomination stream – position of Accommodation and Hospitality Manager – genuine need for the employee – employment for at least two years – tasks of the position correspond to the nomination occupation – skill shortage within the hospitality industry – many listed tasks undertaken by other staff – tasks of organising and controlling operations – position aligns to Head Housekeeper role – decision under review affirmed
LEGISLATION
Migration Act 1958, s 359
Migration Regulations 1994, rr 2.72, 5.19
CASES
Cargo First Pty Ltd v Minister for Immigration & Anor [2015] FCCA 2091
Vishvam Pty Ltd as Trustee for the Vishvam Unit Trust v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 758
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 June 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).
The applicant applied for approval on 13 October 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 stream (r.5.19(3)) and a Direct Entry nomination stream (r.5.19(4)). 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).
In this case, the applicant has applied for approval of a nomination, seeking to satisfy the criteria in the Temporary Residence Transition nomination stream.
The delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19(3)(i) of the Regulations because the business did not demonstrate a genuine need to employ the person as a paid employee, to work in the position under the nominator’s direct control.
The applicant appeared before the Tribunal on 11 February 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 its registered migration agent, Ms Suzanne Weel MARN: 0316130.
For the following reasons, the Tribunal has decided to affirm the decision under review to refuse 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…

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 2488
Decision Date: 28 June 2021

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered a review application lodged by JD Management Services Pty Ltd ATF Burnell Trust concerning the approval of a nomination for the Temporary Residence Transition stream. The nomination was for the position of Accommodation and Hospitality Manager (ANZSCO 141999) for Mrs Kanchan Walia. The applicant, JD Management Services Pty Ltd, operates The Grand Apartments, managing both body corporate services and the provision of accommodation and hospitality services.

The central legal issue before the Tribunal was whether the nominated position of Guest Services Manager met the requirements for approval under regulation 5.19(3) of the Migration Regulations 1994. This required determining if the nominee's duties and tasks genuinely corresponded to the nominated occupation, considering the broad responsibilities outlined in ANZSCO for Accommodation and Hospitality Managers nec, which include organising and controlling the operations of establishments providing accommodation and hospitality services. The Tribunal also had to assess whether the applicant had demonstrated a genuine need for the employee in that role and whether the tasks performed by the nominee aligned with the occupation as described by ANZSCO, applying the principle of qualitative analysis established in cases such as *Cargo First Pty Ltd v Minister for Immigration BP* [2015] FCCA 2091.

The Tribunal reasoned that while ANZSCO 141999 provides broad responsibilities, the nominated position must genuinely align with these. It considered the amended Job Description provided by the applicant, noting variations from earlier versions. The Tribunal found that many of the tasks listed in the job description were undertaken by other staff, including a Building Manager, a receptionist, maintenance personnel, and contract cleaners. Crucially, the Tribunal determined that the nominee's role did not sufficiently demonstrate the organising and controlling of the overall operations of the establishment in the context of accommodation and hospitality services. Instead, the Tribunal concluded that the position aligned more closely with the role of a Head Housekeeper, and therefore, the nomination did not meet the required criteria.

The Tribunal affirmed the decision under review to refuse the nomination.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

For the following reasons, the Tribunal has decided to affirm the decision under review to refuse 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 Temporary Residence Transition nomination stream set out in r.5.19(3), which is extracted in the attachment to this decision. For the nomination to be approved, all the requirements must be met. On 13 October 2017 the applicant JD Management Services Pty Ltd ATF Burnell Trust ABN: 78 719 489 436 lodged an employer nomination visa subclass 186 in the Temporary Residence Transition (TRT) stream for the position of Accommodation and Hospitality Manager nec ANZSCO 141999 on $54,000 per annum in favour of Mrs Kanchan Walia. Ms Jennie Burnell is the director of JD Management Services Pty Ltd and advised the business was acquired on 5 February 2016 and involves holiday and permanent letting as well as management of the building called The Grand Apartments located on the esplanade at Marine Parade, Labrador QLD 4215. There are 146 apartments in the building and a third are in the leasing pool. The tax returns for 2018 and 2019 show a business with strong revenue and healthy profits. Documents including the following were provided with the original application.1)Acknowledgement of nomination application received dated 13 October 2017.2)Online application for nomination dated 13 October 2017.3)Letter dated 3 February 2016 from previous owners of the business stating nominee commenced work on 25 January 2014 as a full-time guesthouse manager.4)ABN look up, trust deed,5)Settlement statement for the purchase of the business dated 5 February 2016.6)Employment contract dated 12 June 2013 signed by then manager and the nominee.7)Job Description - Guest House/Services ManagerSummaryThe general purpose of this position is to ensure all guest house business operations, including customer service, are up to the standard of the operational specifications.Guest House/Services managers organize and control the operations of accommodation and related services in a variety of accommodation establishments including but not limited to hotels, motels, and holiday apartments, to provide guest accommodation, meals and other services including the supervision of frontline staff.Duties and Responsibilities include but are not limited to:• Directing and overseeing reservation, reception, room service duties and assisting in housekeeping activities when necessary;• Greet guest warmly and perform registration procedures;• Facilitates guest departures providing accurate statements and ensuring guest satisfaction and collecting payments due;• Attend meetings and training as requested;• Assessing and maintaining customer satisfaction standards;• Produce and analyse operational reports;• Assist with recruiting, selection and training of front desk, reservations and night audit staff;• Overseeing financial/accounting/purchasing activities;• Assist and/or supervise the opening and closing of the property;• Implementing and maintaining compliance with occupational health and safety regulations;• May assist in training other frontline staff as and when required.• Assist with marketing activities to enhance the customer's experience;• Perform other duties as and when required.8)PAYG payment summaries, payslips for the nominee from FY 2014 and bank statements.9)Bank statements for the applicant.10)Financial statements for the applicant for FY 2016, FY 201711)Tax return FY 201712)Further copy of the job description.13)Market salary analysis.14)Evidence of meeting training benchmarks.15)BAS statements FY 2016, FY 2017, FY 201816)Employment contract dated 28 July 2017 signed by both nominee and applicant.17)Letter of support from the accountant dated 15 May 2018.Documents including the following were provided with the review application.18)Notification of refusal of nomination application dated 18 June 2018 including notice of decision.19)A further copy of all documents were submitted with the review application.20)Extract from the website.21)Tax return 2018.22)Further copy of the job description and ANZSCO extract from Australian bureau of statistics website for unit group 1419 other accommodation and hospitality managers. 23)Market salary analysis.24)Financial statements for the applicant for FY 2018 and FY 2019.25)ASIC registration.26)Grant notice dated 13 December 2013 for the nominee in nominated occupation “accommodation and hospitality managers nec.”27)Notice of approval of the nomination dated 31 May 2017 for the applicant for subclass 457 Visa stream for occupation/code-accommodation and hospitality managers nec - 141999.28)Balance sheet FY 2020.29)Letter from the registered migration agent dated 24 September 2020 addressing why there is a genuine need for the position and citing a skill shortage within the hospitality industry; the position of guest services manager reports directly to the owner; a further position description; a reference to the determination in Cargo First Pty Ltd v MIBP [2015] FCCA 2091 (Cargo First); an acknowledgement that the tasks recorded under the ANZSCO unit group of 141999 does not specifically provide an actual “list” of duties for a guest services manager and an observation that ANZSCO is to be used as a guide and not a definitive example. The agent states the position is well suited to the business and fits within the regular, ongoing business activity of the employer. She states the nominee has the required skills and knowledge sought by the employer which are affiliated with the general description of duties of the nominated occupation as described by the unit group of ANZSCO code 1419. She states without a guest services manager the company will likely suffer given the fact it is the manager’s duty to ensure guests are happy and comfortable and accommodation is meeting their needs which is the primary focus for the employer. She states that negative reviews published online are detrimental to a business while positive feedback is beneficial to the business.She states it is imperative that the manager ensures that the accommodation both private and guest arriving during the guests stay on after the guest departure is as smooth as possible. The manager must ensure the rooms and facilities are maintained and cleaned to a high standard and that the relevant utilities are stocked with appropriate equipment items e.g. extra bedding, kitchenware, laundry powder, towels, toiletries et cetera. The manager must immediately address customer queries feedback or concerns. The manager must ensure staff are trained accurately in order to properly book accommodation for customers and to appropriately handle customer queries et cetera. The nature of the position is demanding is a position requires a guest service manager to oversee the work colleagues and contractors, whilst also meeting the demand of guests. She submits that the position of guest service manager within the employer’s company is a strategic position, responsible for the day-to-day running of the customer management of the business and has a direct impact on the financial performance and general views of the company. She states the nominee’s appointment to the position resulted in an increase of customer satisfaction to the business.The agent addresses the other eligibility criteria for the grant of the nomination.30)Notification of approval as a temporary business entry standard business sponsorship dated 31 May 2017 of subclass 457 Visa.31)Profit and loss for FY 2020.32)BAS 2018, 2019, 2020.33)Payroll summary for the nominee to 30 June 2020.34)Notification of approval as a standard business sponsor dated 21 September 2020.35)Bank statements for the applicant for capital Y 202036)Employment agreement dated 25 August 2020 signed by applicant and nominee.37)PAYG for the nominee for FY 2019.38)Superannuation statement for the nominee.39)Superannuation payments for the nominee to 30 June 2020.40)Invitation from the Tribunal dated 20 November 2020 to provide information.41)Letter from the registered migration agent dated 3 December 2020 with list of attached documents and stating the applicant meets the requirements under regulation 5.19 for approval of the nomination.42)Organisation chart with director; guest services manager (nominee) and building manager (Ms H). A receptionist (Ms B), 2 x maintenance personnel and contract cleaners shown reporting to the nominee.43)Letter from the applicant dated 20 November 2020 explaining that they have the management rights for The Grand Apartments which has extensive common areas for the enjoyment of guests; reception Monday to Friday from 8.30am to 5.00pm, Saturday 9.00am to 12.00pm and Sunday 9.00am to 10.30am. They employ a Building Manager to deal with body corporate matters and the nominee as Guest Services Manager and now employ a part-time receptionist whose tasks are receiving visitors at the front desk, by greeting them and providing their room keys and settling payments; answering, screening and forwarding incoming calls; booking and allocating rooms in the system; receiving and sorting daily mail and performing other clerical duties such as filing, photocopying and faxing as required.They employ two maintenance workers who maintain the complex including common areas and any repairs and maintenance around the property.The cleaners are contractors who clean all rooms and ensure that common areas are clean.The applicant submitted a table showing the typical roles and responsibilities of the nominee with a % of time devoted to each of the tasks. It is noted that the Job Description is still the same however some subtasks have been added.

Ratio Decidendi

Legal Principle Established

Following the hearing, the registered migration agent submitted a letter dated 5 March 2021 stating.The description under Accommodation and Hospitality Managers nec ANSZCO 141999 does not set out clearly defined tasks of the occupation group, rather, advising that the position ‘organises and controls the operations of the establishments’ and that minor group 141 Accommodation and Hospitality Managers ANZSCO reports that “Accommodation and Hospitality Managers organise and control the operations of establishments which provide accommodation and hospitality services”. She quotes Cargo First Pty Ltd v Minister for Immigration BP [2015] FCCA 2091 (Cargo First), in which it was held that a qualitive analysis must be undertaken in determining whether the position was what it is purported to be.Inconsideration of the above, we are instructed that the duties and tasks performed by the nominee in the position of Guest Services Manager is demonstrated as follows.She then provided a table of the duties of the nominated position as below. The agent states that In accordance with Cargo First, “we submit that the position is genuine, and following a qualitative analysis of the position and the tasks undertaken, it is clear that the position of Guest Services Manager is what it purports to be.” It is noted that the agent stated in her letter of 24 September 2020 that “in Cargo First Pty Ltd v MIBP [2015] FCCA 2091 (Cargo First); an acknowledgement that the tasks recorded under the ANZSCO unit group of 141999 does not specifically provide an actual “list” of duties for a guest services manager and an observation that ANZSCO is to be used as a guide and not a definitive example.” It is common ground that the ANZSCO 141999 has not set out a detailed set of tasks for Accommodation and Hospitality Managers nec ANZSCO 141999 however it has given two broad responsibilities, for want of a better term, namely “organises and controls the operations of the establishments “ and for the minor group adds the rider that the establishments “provide accommodation and hospitality services”. It is common ground that the applicant has two contracts for the Grand Apartments, one for the Body Corporate Services and the other to manage the leasing or provision of “accommodation and hospitality services”. The Tribunal must consider whether the nominated position “organises and controls the operations of the establishment” with regard to the provision of accommodation and hospitality services from the Grand Apartments. It will consider the amended Job Description provided on 5 March 2021. It is noted that the version of the Job Description contained in the Table provided by the agent dated 20 November 2020 shows the percentage of time spent performing each task and that some of the tasks in the breakdown of tasks vary in a minor way from the task breakdown provided on 5 March 2021. The Tribunal considers the most recent version of the Job Description and the Task breakdown is the one that the applicant wishes to be used as evidence and the agent made that clear in her letter of 5 March 2021.The amended Job Description dated 5 March 2021.Task #1of the Job description.