Live It Travel Pty Ltd (Migration) - [2019] AATA 4416

Live It Travel Pty Ltd (Migration) [2019] AATA 4416 (12 July 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Live It Travel Pty Ltd
CASE NUMBER:  1719774
DIBP REFERENCE(S):  BCC2017/1304795
MEMBER:De-Anne Kelly
DATE:12 July 2019
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision under review to refuse the nomination.

Statement made on 12 July 2019 at 2:42pm

CATCHWORDS
MIGRATION – nomination – Travel Agency Manager – Direct Entry Nomination stream – no need for employee to work in identified position under nominator’s direct control – same position already filled at organisation – not feasible to have two senior management positions with overlapping tasks and responsibilities – decision under review affirmed

LEGISLATION
Migration Regulations 1994 (Cth), r 5.19

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 Immigration on 11 August 2017 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).
2. The applicant applied for approval on 7 April 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 (r.5.19(3)) stream and a Direct Entry nomination (r.5.19(4)) stream. 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).
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 r.5.19(4)(a)(ii) of the Regulations and therefore 5.19(4)(a) of the regulations because the application for approval has not identified a need for the applicant to employ a paid employee to work in the position of Travel Agency Manager under the nominator’s direct control. This was on the basis that there was already a Travel Agency Manager, Ms Kate Dever, at the nominating addess at the Sunshine Coast as listed on the organisation chart submitted with the employer nomination.
5. The applicant appeared before the Tribunal on 23 May 2019 to give evidence and present arguments. The applicant was represented in relation to the review by its registered migration agent.
6. For the following reasons, the Tribunal has decided to affirm the decision under review to refuse the nomination.
CONSIDERATION OF CLAIMS AND EVIDENCE
7. 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 r.5.19(4), which is extracted in the attachment to this decision. For the nomination to be approved, all the requirements must be met.
8. Live It Travel Pty Ltd is a travel agency with retail offices at two locations, one…

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.

Continue reading Live It Travel Pty Ltd (Migration)

Details

AGLC: Live It Travel Pty Ltd (Migration) [2019] AATA 4416
Case: [2019] AATA 4416
Decision Date: 12 July 2019

CaseChat Overview and Summary

This matter concerned an appeal by Live It Travel Pty Ltd against a decision to refuse its nomination of a position for a Travel Agency Manager under the Direct Entry Nomination stream. The core of the dispute revolved around whether the nominated position was genuinely required and distinct from existing roles within the company, particularly the General Manager position held by Ms Dever.

The Tribunal was required to determine whether the nominated Travel Agency Manager position met the requirements of regulation 5.19(4) of the Migration Regulations 1994. Specifically, the Tribunal had to consider whether there was a genuine need for the nominator to employ a paid employee to work in the nominated position under the nominator’s direct control, and whether the tasks of the nominated position corresponded to the ANZSCO occupation of Travel Agency Manager and were not already fully encompassed by the General Manager role.

The Tribunal reasoned that it was not feasible for two senior management positions, the General Manager and the nominated Travel Agency Manager, to have overlapping tasks and responsibilities, especially given the financial implications for the business. The applicant had submitted that the General Manager undertook all the tasks listed in ANZSCO for that role, including organising and controlling day-to-day operations, formulating and implementing marketing policies, and setting prices. The Tribunal found that these tasks, when undertaken by the General Manager, meant that the nominated Travel Agency Manager position did not have a distinct set of responsibilities that could be attributed to it, as the General Manager already fulfilled them. Consequently, the Tribunal was not satisfied that the applicant met the requirements of regulation 5.19(4).

Accordingly, 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 above reasons the Tribunal is not satisfied that the applicant meets the requirements of r.5.19(4). The applicant has not sought to satisfy the criteria in Temporary Residence Transition Nomination stream, and as such has not met the requirements in r.5.19(3). Accordingly, the nomination of the position cannot be approved. Therefore, the Tribunal must affirm the decision under review.DECISIONThe 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).

Ratio Decidendi

Legal Principle Established

The Tribunal has prepared a table below which show in column one the ANZSCO list of tasks for the position of General Manager. In the second column is the tasks as listed in ANZSCO which the applicant states are undertaken by Ms Dever’s position of General Manager. In the third column are the ANZSCO list of tasks for the position of Retail Manager or in this case Travel Agency Manager. In column four are the tasks as listed in the ANZSCO which the applicant states are shared by the General Manager and the nominated position or are delegated to the nominated position by the General Manager. In the fifth and final column are the ANZSCO list of tasks that the Tribunal accepts as part of the nominated position.Table 3 – Applicants and Tribunals consideration of the General Manager & Travel Agency Manager ANZSCO tasks. The ANZSCO list the following as a task for a Travel Agency Manager namely, ‘RETAIL MANAGERS organise and control the operations of establishments which provide retail services”. The ANZSCO list the following as a task for a General Manager, “GENERAL MANAGERS plan, organise, direct, control and review the day-to-day operations and major functions of commercial, industrial, government and defence organisations through departmental managers and subordinate executives.. Ms Devers’ position as the General Manager has the responsibility to organise and control the day-to day operations of the commercial organisation. .(Emphasis added) In the submission of the 6 June 2019, the applicant contends that the General Manager and the nominated position share this task or responsibility. The Tribunal needs to consider whether it is reasonable to attribute one task to two separate people. There are financial implications to consider. The business would not pay high salaries to two separate employees to undertake the same tasks and responsibilities, particularly when the business is constrained in its’ ability to employ and pay junior staff. The applicant has made it clear in his submission that all the tasks of the General Manager position as listed in ANZSCO are undertaken by Ms Dever’s position. The Tribunal does not accept that the nominated position has shared responsibility for tasks that the General Manager undertakes. The ANZSCO list the following as a task for a Travel Agency Manager namely “formulating and implementing purchasing and marketing policies, and setting prices’. The ANZSCO list the following as a task for a General Manager under task 10 ‘may undertake responsibility for some or all of accounting, sales, marketing, human resources and other specialist operations’. Ms Dever’s position has the responsibility for marketing, sales and other specialist operations such as setting prices. The applicant has made it clear in his submission that all the tasks of the General Manager position as listed in ANZSCO are undertaken by Ms Dever’s position. The Tribunal does not accept that the nominated position has shared responsibility for tasks that the General Manager undertakes. Therefore, the nominated position does not have responsibility for “formulating and implementing marketing policies and setting prices” since this is undertaken by the General Manager. The final task attributed to the ANZSCO Travel Agency Manager namely “formulating and implementing purchasing policies “ would again be part of the “other specialist operations” which are undertaken by the General Manager. (Emphasis added)