MARK'S FUEL DELIVERY PTY (Migration)

MARK'S FUEL DELIVERY PTY (Migration) [2018] AATA 4142 (4 September 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  MARK'S FUEL DELIVERY PTY
CASE NUMBER:  1721018
DIBP REFERENCE(S):  BCC2017/257407
MEMBER:Mr S Norman
DATE:4 September 2018
PLACE OF DECISION:  Sydney
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.
Statement made on 04 September 2018 at 3:40pm

CATCHWORDS
MIGRATION – Employer nomination – approval of nomination – expansion in business – payslips – profit and loss statement – market salary analysis – received numerous applications – decision under review set aside
LEGISLATION
Migration Act 1958 (Cth), s 245AR
Migration Regulations 1994 (Cth), rr 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 Immigration on 22 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). The Department delegate’s decision was lodged with the Tribunal.
The applicant applied for approval on 19 January 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).
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 the applicant’s nomination did not satisfy r.5.19(4)(a)(ii) of the Regulations.
The applicant (represented by Ms Julie Steven (or Stephen) – the owner/operator’s wife and the ‘administrative officer’) appeared before the Tribunal on 27 August 2018 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Mark Collins (the owner/operator). The applicant was represented in relation to the review by its registered migration agent.
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 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.
The application is compliant: r.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.
On 19 January 2017, Mark’s Fuel Delivery P/L (hereinafter the ‘nominator’ or the ‘applicant’), lodged a nomination application online in relation to the position of Office Manager (ANZSCO: 512111). The approval was under the Direct Entry stream; and the nominee was Mr Sukhminder Singh Gill (the ‘nominee’).
Based on the evidence before the Tribunal, I am satisfied the application was made online on the approved form; and was accompanied by the fee prescribed in r.5.37. Written certification relating to s.245AR(1) is at page 7 of the online application form.
Next, for nominations made before 1 July 2017, r.5.19(4)(a)(ii) requires that the application for approval ‘identifies a need for the nominator to employ a paid employee to work in the position under the nominator’s direct control’. For reasons not elaborated herein, the Tribunal understands it is unclear whether this requirement is directed just at first, a statement to this effect[1] or second, something of a more qualitative nature.[2] However, and for the purposes of this decision, the Tribunal will accept the aforementioned first interpretation of r.5.19(4)(a)(ii). Therefore, and also in light of the evidence set out below, the Tribunal accepts the nominator has identified a need for the nominator to employ a paid employee to work in the position under the nominator’s direct control.
[1] It may be argued that r.5.19(4)(a) as a whole is directed towards requirements for the application form / process of a more administrative nature, such that r.5.19(4)(a)(ii) could be met by a simple statement or certification of need.
[2] 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. This appears to reflect Department policy (PAM3: Migration Regulations – Divisions – Div 5.3 – General > Approval of nominated positions (employer nomination) > Part C - Criteria applicable to Direct Entry stream nominations > Need for a paid employee > Applicability and overview (reissued 12/05/17 – last reissue prior to 1 July 2017).
Accordingly, the requirement in r.5.19(4)(a) is met.
Nominator is actively and lawfully operating a business in Australia: r.5.19(4)(b)
Regulation 5.19(4)(b) requires that the applicant is actively, lawfully and directly operating a business in Australia. Based on the evidence before the Tribunal (including but not limited to, ASIC search, indicating the company was registered on 21 July 2010[3]; ABN number for the nominator’s business[4]; banking and other details), I am satisfied the nominator is actively and lawfully operating a business in Australia, and that they directly operate that business.
[3] Tribunal – folio 29.
[4] Tribunal – folio 31.
Accordingly, the requirement in r.5.19(4)(b) is met.
Position is not labour-hire: r.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 Tribunal also understands that if the nominator’s business activities relate to the hiring of labour to other unrelated business, the position is within the business activities of the nominator and not for hire to other unrelated businesses.
That said, there is no evidence on the Department or Tribunal files, that the nominator’s business activities include those relating to labour hire to an unrelated business.
Accordingly, the requirement in r.5.19(4)(c) does not apply.
Term of employment of the visa holder: r.5.19(4)(d)
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.
As noted above, on 19 January 2017 the applicant lodged a nomination approval application for the position of Office Manager (ANZSCO: 512111). The approval was sought under the Direct Entry stream; and the nominee was a Mr Sukhminder Singh Gill (the ‘nominee’).
On 19 January 2017, the Department’s acknowledgement letter advised the nominator the Department may make a decision on the application without requesting further information. However, the Department letter also invited the nominator to provide any further information they believed relevant. By way of assistance, the nominator was referred to the online ImmiAccount, where the Department provides guidance with respect to information that may be lodged. The delegate subsequently noted the nominator said they had a need to employ the nominee as a paid employee to work in the nominated position under the nominator’s direct control. However, based on the evidence then before them, the delegate was not satisfied there was sufficient evidence to substantiate this claim. Accordingly, the delegate was not satisfied the nominator had met r.5.19(4)(a)(ii) of the Regulations; and that therefore r.5.19(4) was not satisfied.
Next, the delegate also assessed the nomination application against r.5.19(3); however, given insufficient evidence had been submitted against that alternative sub-regulation, the delegate was not satisfied the applicant met r.5.19(3).
By s.359(2) letter of 13 February 2018, the Tribunal wrote to the applicant and invited them to provide further evidence and/or submissions with respect to whether the relevant criteria in r.5.19(2) or (4) were met. By migration agent response, the following was lodged:
·An offer of employment dated 30 August 2017,[5] by the nominator to the nominee – showing a base salary of AUD$45,000 per annum[6] (evidence at hearing included the visa applicant had been employed in the nominator’s business since January 2018 – and that his salary had recently been increased to $47,500 per annum[7]).
·A document dated 1 September 2017 titled ‘Re: determination of the terms and conditions of employment being offered to’ the nominee[8] - which also indicated that the nominator had ‘enlisted the services of a [named] recruitment company’[9], and that job advertisements had been posted on job seeking websites but it ‘proved difficult to find a suitably qualified person’. It was claimed there were few people in the area with the right qualifications and work ethic
·An ASIC search, indicating the company was registered on 21 July 2010[10] (at hearing it was explained the applicant had purchased the business in 2010, but that it had operated prior to that time in a different name)
·An ABN number for the nominator’s business[11]
·A document titled ‘Labour Market testing’; indicating that other candidates were not considered suitable[12]
[5] Tribunal – from folio 27 (reverse side).
[6] Tribunal – from folio 26 – salary comparisons provided from folio 49 (reverse side).
[7] Tribunal – folio 218 (reverse side).
[8] Tribunal – folio 28.
[9] See also Tribunal – from folio 69.
[10] Tribunal – folio 29.
[11] Tribunal – folio 31.
[12] Tribunal – folio 34 (reverse side); see also folio 69 (reverse side).
Also lodged was a written submission titled ‘Need for a Paid Employee’.[13] The document said inter alia the nominator had attempted to hire local staff but “experienced considerable skills shortage and difficulties in securing a full-time Office Manager” (at hearing, it was also explained that 5 or 6 persons had worked in the position previously, but that all had left after short periods due to family and or other reasons). The nominator had also placed advertisements in online portals however, no candidates were considered to match the nominee’s qualifications and skills. It was also claimed the nominator’s business was expanding and it was “paramount for the nominated business to have a permanent full-time office manager” in Forbes. At hearing it was explained the nominator’s business had recently expanded to include over 100 persons (not all full time). Also, and though not set out herein, at hearing the applicant provide specific and detailed reasons why the visa applicant was selected, and why it was necessary to have full time officer manager at the Forbes base.
[13] Tribunal – from folio 42; and from folio 70. .
Migration agent submissions,[14] said the delivery trucks (operated by the nominating business) were equipped with computers (also a tracking device); that due to its remote location (Forbes, NSW), the nominator’s business was “always in dire need of skilled professional staff”. Also, due to needing to streamline document handling and organise paperwork there was a need to employ a full-time paid Office Manager (this was explained in greater detail at hearing). Amongst other things, it was also said the position of Office Manager was “continuously advertised from August 2017 onwards in the INDEED and AWSAM database”. It was then said that “during a period of two months [they] received … 40 applications out of which six were Australian citizens”. Six were deemed highly qualified but most “held travelling visas or were Australian citizens travelling around the country showing lack of commitment”. Four applicants sought full-time employment but did not agree with the salary package and withdrew their application. Two applicants were international students. Of the final two applicants both were qualified and experienced however the nominee was found to have “exceptional management, customer service, document handling and leadership skills and the owner thought they would be a perfect fit”. It was also said the Regional Certifying Body (RDA Central West – Orange) “provided an approval advice”.[15]
[14] Tribunal – from folio 71.
[15] Tribunal – folio 70.
The aforementioned migration agent submissions also explained that the nominator’s business had a total of seven employees at Forbes NSW (including the applicant – and where the applicant was to be employed). Further, it was claimed the nominee had commenced working within the nominator’s business at Forbes (payslips lodged)[16] Other evidence lodged included:
·A Balance Sheet as at 30 June 2016[17] - which showed net assets as $275,418.41 - up from $4,832.81 in the previous year. The June 2016 ‘Trade Debtors’ amount was shown as $1,198.258.29.
·A Profit and Loss statement for year ending 30 June 2016[18], which showed profit after income tax of $270,585.60.
·A Profit and Loss for the nominator’s business to 30 June 2017[19] - showing a net profit of $237,485.08
·Business Activity Statements[20]
·Evidence of payment of PAYG Tax and superannuation for the nominee[21]
·An “Org Chart”[22]
[16] Also see Tribunal – folio 68.
[17] Tribunal – from folio 50 (reverse side).
[18] Tribunal – from folio 51.
[19] Tribunal – folio 57.
[20] Tribunal – from folio 56; and form folio 62 (reverse side).
[21] Tribunal – from folio 67.
[22] Tribunal – folio 72.
Further evidence and submissions dated 14 August 2018,[23] included (but were not limited to):
[23] Tribunal – from folio 206.
·     a letter of reference dated 31 August 2018 (sic) from the Director of Mark’s Fuel Delivery P/L.[24] That stated the nominee had been engaged since January 2018; was a model employee (performance appraisal lodged[25]) who was professional and courteous; and his duties included:
[24] Tribunal – folio 2014.
[25] Tribunal – from folio 191 (reverse side).
·     contributing to the planning and review of office services and setting priorities and office service standards
·     allocating human resources, space and equipment
·     assigning work to an monitoring work performance of staff
·     managing records and accounts of the office
·     liaising with professionals to coordinate office business and to facilitate resolution of problems
·     managing physical facilities and ensuring buildings and equipment are maintained
·     ensuring compliance with Occupational Health & Safety regulations
·     insuring work complies with relevant government legislation, policies and procedures
·     co-ordinating personnel activities such as hiring, performance management, training and supervision.
·     Payroll Activity Details from October 2017 to 30 June 2018 and Paroll Employee Summary[26]
[26] Tribunal – from folio 202.
The agent said that a regional certifying body (RDA Central West – Orange) provided an approval; and that based on their market salary analysis, $45,000 per year was considered fair and market appropriate.
Also lodged was a Profit and Loss statement for 30 June 2018,[27] indicating a net profit of $496,392.18. Also lodged was an Activity Statement, including for the period April 2018 to June 2018.[28] Also lodged:
·Evidence of business activity (principally banking activities[29])
·A Certificate of Currency NSW – workers insurance[30]
·a company tax return for 2017 indicating a taxable net income or loss of $86,038[31]
[27] Tribunal – from folio 186.
[28] Tribunal – folio 179.
[29] Tribunal – from folio 171; and from folio 145.
[30] Tribunal – folio 154.
[31] Tribunal – folio 152.
After having considered all the written and oral evidence, the Tribunal is satisfied the nominee will 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.
Accordingly, the requirement in r.5.19(4)(d) is met.
No less favourable terms and condition of employment: r.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.
As noted above, the applicant lodged an offer (contract) of employment dated 30 August 2017[32]; and a document dated 1 September 2017 titled ‘Re: determination of the terms and conditions of employment being offered to’ the nominee.[33] After considering same, the Tribunal is satisfied 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.
[32] Tribunal – from folio 27 (reverse side).
[33] Tribunal – folio 28.
Accordingly the requirements of r.5.19(4)(e) are met.
No adverse information known to Immigration: r.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 rr.1.13A and 1.13B.
There is no adverse information known to the Department or the Tribunal about the nominator or a person associated with the nominator.
Accordingly the requirements of r.5.19(4)(f) are met.
Satisfactory compliance with workplace relations laws: r.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 the nominator/applicant does not have a satisfactory record of compliance with workplace relations laws in the locations in which it operates a business and employs staff (Forbes).
Accordingly the requirements of r.5.19(4)(g) are met.
Tasks of the position genuine need for the position and training requirements r.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 (for the purposes of this decision) as requiring that:
·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.
At hearing, the nature of the nominator’s business was explained in detail, as was the specific tasks to be performed by the visa applicant at the Forbes’ base for the nominator’s business (the head office being in Prestons NSW). That being said, based on the evidence before the Tribunal (including that which is set out above), I am satisfied the position in the nominator’s business is located in regional Australia (being Forbes NSW 2871 – see IMMI 16/045). The Tribunal is also satisfied there is a genuine need for the paid position under the nominator’s direct control which cannot be filled by a local Australian citizen or permanent resident. I am satisfied the tasks of the position correspond to those of an occupation specified in the relevant legislative instrument (being either IMMI 15/083 - time of application; or 17/058 - time of decision). I am also satisfied the occupation is applicable to the proposed employee (who holds inter alia an Advanced Diploma of Business) 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.[34]
[34] See Tribunal – folio 70.

Accordingly the requirements of r.5.19(4)(h) are met.
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
The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.
Mr S Norman
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).

[2018] AATA 4142

4 September 2018

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Statutory Construction

Procedural Fairness

Jurisdiction