K Dhother & S.S Dhother (Migration) - [2023] AATA 1586

K Dhother & S.S Dhother (Migration) [2023] AATA 1586 (30 May 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  K Dhother & SS Dhother
REPRESENTATIVE:  Mr Natale Menniti (MARN: 1066082)
CASE NUMBER:  1923280
HOME AFFAIRS REFERENCE(S):          BCC2018/869340
MEMBER:Terrence Baxter
DATE:30 May 2023
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Statement made on 30 May 2023 at 8:56am
CATCHWORDS
MIGRATION – application for approval of nomination of position – direct entry stream – banana inspector – financial capacity to employ nominee for two years – financial losses in two years before application made – more recent financial documents provided to tribunal show trading profits – decision under review set aside
LEGISLATION
Migration Regulations 1994 (Cth), r 5.19(4)(d)(i)
CASES
Bharaj Construction Pty Ltd v MIBP [2016] FCCA 902
MIBP v Jayshree Enterprises Pty Ltd [2017] FCA 264
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 9 August 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, the partnership of K Dhother and SS Dhother, applied for approval on 23 February 2018. The applicant nominated Ms Sukhvir Kaur Sekhon (the nominee) in the position of Banana Inspector. The applicant operates a primary industry business, growing and supplying bananas from a farm located at Garradunga, near Innisfail in Queensland.
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 that the applicant’s nomination did not satisfy reg 5.19(4)(d)(i) of the Regulations because the delegate found that the applicant had not established that it had the financial capacity to provide the nominee with full-time employment for at least two years and therefore that the applicant had not established that the nominee would be employed on a full-time basis in the position for at least that period of two years.
The applicant lodged an application for review of the delegate’s decision with the Tribunal on 21 August 2019.
Mr Shangara Singh Dhother, a partner of the applicant partnership, appeared before the Tribunal by video conference on 28 March 2023 to give evidence and present arguments. The hearing was a joint hearing with another application for review by 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: [2023] AATA 1586
Decision Date: 30 May 2023

CaseChat Overview and Summary

This matter concerned an application for approval of a nomination for a position under the Direct Entry stream of the Regional Sponsored Migration Scheme. The applicants, K Dhother and S.S Dhother, sought approval for the nomination of a Banana Inspector. The primary dispute revolved around whether the applicants demonstrated sufficient financial capacity to employ the nominee for a period of two years, particularly in light of financial losses incurred in the two years preceding the application. The case was heard by Terrence Baxter.

The court was required to determine whether the applicants had met all the requirements for the approval of the nomination under Regulation 5.19(4) of the Migration Regulations 1994 (Cth). Specifically, the court needed to assess the applicants' financial capacity to employ the nominee for at least two years, as stipulated by Regulation 5.19(4)(d)(i), and whether there was a genuine need for the nominator to employ the nominee as a paid employee in the nominated position, as required by Regulation 5.19(4)(h)(ii)(B). The court also considered other regulatory requirements, including the application being in the approved form, the absence of adverse information, and satisfactory compliance with workplace relations laws.

The court reasoned that while earlier financial statements submitted by the applicants indicated losses, more recent financial documents, including trading profits shown in financial statements for the 2020, 2021, and 2022 financial years, demonstrated a sufficient financial capacity to meet the employment requirement. The court also found that the applicants had satisfied the requirement for a genuine need for the nominee, supported by evidence of labour market testing and the ongoing employment of the nominee since 2018. The court concluded that all relevant requirements of Regulation 5.19(4) had been met.

The court set aside the decision under review and substituted a decision approving the nomination.

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 has employed the nominee as a Banana Inspector since 2018.Evidence presented after the hearing After the hearing, the applicant produced to the Tribunal the following documents:a.A submission from the representative dated 3 April 2023.b.Bank statements of the nominee.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) of the Migration Act 1958 (Cth) (the Act). 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. Having regard to the documentation in the file of the Department, the Tribunal is satisfied that the application for approval was in the approved form. The application relates to a visa in the Direct Entry nomination stream seeking to meet the requirements in the Regional Sponsored Migration Scheme (RSMS) and consequently no fee is payable (reg 5.19(2) and reg 5.37(4) of the Regulations). The application included a written certification stating that the applicant had not engaged in conduct in relation to the nomination that contravenes s 245AR(1) of the Act. The requirements of reg 5.19(2) and consequently of reg 5.19(4)(a)(i) are therefore met. Regulation 5.19(4)(a)(ii) requires that the application identifies a need for the nominator to employ an identified person as a paid employee to work in the position under the nominator’s direct control. It is unclear whether this requirement is directed just at a statement to this effect or something of a more qualitative nature. The wording ‘identifies a need’ arguably suggests more is required to meet this criterion than simply a statement or declaration that there is such a need. ‘Identify’ is defined as ‘to recognise or establish as being a particular person or thing; verify the identity of’.[1] On that view, which is consistent with that reflected in Departmental policy, a decision maker would need to be satisfied there is a genuine need on the part of the nominator to employ a paid employee in the nominated position.[2] However, it could alternatively be argued that reg 5.19(4)(a) as a whole is directed towards requirements for the application form/process of a more administrative nature, such that reg 5.19(4)(a)(ii) could be met by a simple statement or certification of need. Support for this view can also be found in the contrast between the wording of reg 5.19(4)(a)(ii) and, for example, reg 5.19(4)(h)(ii)(B) (for applications relating to positions in regional Australia), which requires that there be a genuine need for the nominator to employ the person identified in the application as a paid employee to work in the position under the nominator’s direct control, clearly requiring a qualitative assessment, and reg 5.19(4)(d)(i), which requires satisfaction that the employee will be employed on a full-time basis in the position for at least two years. Given the uncertain scope of reg 5.19(4)(a)(ii), and the requirement in relation to this application to satisfy reg 5.19(4)(h)(ii)(B), the Tribunal considers that this issue is more appropriately considered under reg 5.19(4)(h)(ii)(B) later in these Reasons.[1] Dictionary.com (accessed March 2023).[2] In Bharaj Construction Pty Ltd v MIBP [2016] FCCA 902 (Bharaj) (Judge Barnes, 28 April 2016), the Court considered a similarly worded provision in respect of a pre-1 July 2012 RSMS nomination, i.e. ‘the employer nomination is made by an employer in respect of a need for a paid employee’. Whilst on the one hand reg 5.19(4)(a)(ii) does not appear to impose a different requirement beyond emphasising the requirement for an applicant to identify the need (unlike the pre-1 July 2012 version of regs 5.19(2)(a) and (4)(a)), the wording of the criteria does differ slightly and the Tribunal exercises caution in applying the reasoning of Bharaj to a post-1 July 2012 nomination as is currently being considered.

Decision

Reasons for decision

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.Evidence presented prior to the hearing The applicant provided to the Department of Home Affairs (the Department) the following documents:a.Various business activity statements.b.A contract of employment dated 6 February 2018 with a position description.c.Evidence of approval of the nomination by the applicant of Mr Jarmanjit Singh for the occupation of Primary Products Inspectors nec (not elsewhere classified) and a copy of Mr Jarmanjit Singh’s Subclass 187 visa and his contract of employment.d.A submission of the applicant dated 16 February 2018.e.An organisational chart.f.Financial statements for the 2016, 2017 and 2018 financial years.g.Evidence of registration of the applicant’s business name Garradunga Bananas.h.An ABN Lookup report in respect of the applicant’s ABN.i.A letter of advice, Assessment Statement and Form 1404 issued by the regional certifying body (RCB), the Chamber of Industry and Commerce, Cairns dated 23 February 2018.j.Various codes, manuals and correspondence relating to biosecurity. k.The applicant’s 2018 tax return.l.A submission from the applicant’s accountant dated 27 March 2019.m.Labour market testing evidence.n.The nominee’s PAYG payment summary for the 2019 financial year and a payslip. The applicant produced to the Tribunal the following documents:a.A copy of the delegate’s decision.b.A submission from the representative dated 3 October 2022.c.Current ABN Lookup information in respect of the applicant’s ABN.d.Current ASIC evidence of registration of the applicant’s business name.e.Financial statements for the 2020, 2021 and 2022 financial years and tax returns for the 2020 and 2021 financial years.f.The applicant’s Australian Taxation Office activity statement 001.g.Business activity statements for the period from January 2020 to December 2022.h.A submission from the applicant dated 1 October 2022.i.A current organisational chart.j.Various documents relating to the applicant’s farming operations including rates notice, location map, certificates issued to the applicant, evidence of the applicant’s WorkCover insurance and marketing reports.k.Evidence of advertising for the position with a recruitment letter, resumes of job applicants and a recruitment report.l.Current market salary evidence.m.A submission from the applicant’s accountant dated 29 September 2022.n.Various documents provided to the Department.o.Income statements of the nominee for the 2020, 2021 and 2022 financial years together with payslips.p.An employment contract dated 29 September 2022. Evidence presented prior to and at the hearing regarding the applicant’s operations

Ratio Decidendi

Legal Principle Established

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 a 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 evidence before the Tribunal that there is any adverse information of the type described in the relevant definitions known to the Department about the applicant or any 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 to suggest that the applicant has an unsatisfactory record of compliance with workplace relations laws of the Commonwealth or any State or Territory in which the applicant operates a business. The Tribunal is satisfied that the applicant does have a satisfactory record of compliance. 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 legislative instrument, 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 (see legislative instrument IMMI 17/058), 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 applicant indicated in the nomination application that it was applying under the RSMS in the Direct Entry nomination stream. The applicant indicated that the postcode where the position was to be filled was 4860 (Innisfail, Queensland). Based on the evidence, the Tribunal is satisfied that the position and the applicant’s business are located at Lot 237 Dinner Creek Road, Garradunga, Innisfail, Queensland 4860. As this postcode is specified in the relevant instrument as being in regional Australia, the requirements of reg 5.19(4)(h)(ii) must be met by the applicant.Regulation 5.19(4)(h)(ii)(A) – the position is located in regional Australia