MINAKSHI PRAKASH (Migration)

MINAKSHI PRAKASH (Migration) [2018] AATA 1795 (1 May 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  MINAKSHI PRAKASH
CASE NUMBER:  1719375
DIBP REFERENCE(S):  BCC2017/1166859
MEMBER:Peter Emmerton
DATE:1 May 2018
PLACE OF DECISION:  Adelaide
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Statement made on 01 May 2018 at 12:09pm

CATCHWORDS
Migration – Business sponsor – Nomination approval – Regional Australian business – Genuine need for a paid employee – r5.19 requirements met – Decision under review set aside
LEGISLATION
Migration Act 1958 s 245AR
Migration Regulations 1994 rr 1.13A, 1.13B, 5.19
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 8 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 applicant Minakshi Prakash, applied for approval of Transport Company Manager, ANZSCO 149413 on 27 March 2017. Ms Jaswant Kaur was sponsored by the applicant to work in the nominated position.
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 because the delegate was not satisfied that the nominating entity had demonstrated the need for a paid employee to work in the position under the direct control of the nominator.
The applicant appeared before the Tribunal on 1 May 2018, to give evidence and present arguments.
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.
In determining the applicant’s claims the Tribunal must first make findings of fact on material matters in dispute. This may involve an assessment of credibility and in so doing, the Tribunal is aware of the need and importance of being sensitive to the circumstances and the difficulties applicants often face before the Tribunal in their particular circumstances.
The applicant relies on the evidence given before the Tribunal together with written submissions and supporting evidence provided to the Tribunal and previously to the department.
The nominating entity operates as a transportation company which commenced operation in 2013 and its’ registered office is located in Woodville, South Australia.
According to the Organisation Chart and the information supplied by the nominating entity, there are approximately 56 positions, operating 19 taxis which report directly to the nominee’s position, all of which are sub-contractors, working on a part-time or full-time basis. The position of Transport Company Manager in turn reports to the Director who is also the owner of the entity.
The offer of employment was signed by both parties on 26 October 2017.
The nominee is currently working in the business and has a Bachelor of Arts, Certificate 3 in Business, ACS Professional Year Program in Computing/ICT, Diploma of Management and Master Degree of Information Systems.
The nominee’s duties include the following:

•      Organising the purchase and maintenance of transport vehicles, equipment and fuel
•      Keeping track of vehicle’s use-by dates as per laws and regulations, and disposing of vehicles which have passed their use by dates
•      Ensure vehicles are being kept clean and respected by drivers at all times
•      Control and supervise maintenance schedules
•      Being the first point of contact for all drivers, and to be “on call” at all times (phone provided)
•      Undertake checks on every vehicle, including a driving assessment, at least once a week
•      Manage current drivers and also seek out and interview prospective new drivers
•      Interact with drivers for feedback on vehicle performance
•      Ensure that drivers complete shifts and that drivers pay-in correctly
•      Ensuring only accredited drivers are driving company’s taxis
•      Liaising with departments such as Department of transport, Taxi Council, central booking system providers
•      Report any transgressions of company policy by drivers
•      Plan and implement driver shift schedules and transportation schedules
•      Maintaining accurate records of vehicles, business records and preparing operational statements and reports
•      Ensuring compliance with occupational health and safety regulations and relevant Government compliance of all vehicles
•      Promote the taxi industry in general and promote ‘Highway Cabs’ within the industry

The Tribunal questioned Ms Prakash in detail about the need for the position and the suitability of Ms Kaur over the other applicants for the role and why the role could not be filled by an Australian citizen. The challenges of finding and retaining a suitable Transport Manager were clearly articulated by Ms Prakash. It was noted that the role became vacant due to the resignation of the previous incumbent, who had been in the role for approximately 3 years.
Upon inspection of the job vacancy advertisements and a summary of the applications received, the Tribunal was satisfied that a genuine attempt had been made to employ an Australian citizen prior to offering the role to Ms Kaur. The Tribunal notes that an initial recruitment round was followed up with a second recruitment process. The recruitment process was clearly articulated by Ms Prakash, to the satisfaction of the Tribunal. A total of 20 applications were received in the second recruitment activity, several were interviewed and Ms Kaur was the only applicant with both the requisite experience and skills.
The Tribunal also notes that the position of Transport Manager is viewed as being important within the rapidly expanding organisation and the role had previously been filled by a long-term employee. This vacancy was the direct result of a legitimate employee resignation, as verified by a resignation letter presented to the Tribunal, it is not a newly created position. It was pointed out to the Tribunal that not having a Transport Manager reduced the expansion opportunities in the future and greatly impacted on the owner as she has a young family.
The Tribunal in perused popular employment web sites prior to the hearing in order to ascertain the current state of the market in this field. It observed a substantial number of vacancies, in a wide variety of transport industry establishments currently under recruitment.
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.
The Tribunal finds that the application was lodged electronically using the elodgement facility. The nomination was made under the RSMS Direct Entry stream (r.5.19(4)(h)(ii)) and consequently no fee is payable. The Tribunal finds the applicant meets r.5.19(2). The Tribunal is satisfied that the application has identified a need for a paid employee to work in the position of Transport Company Manager under direct control of the applicant. 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.
The Tribunal was provided with some of the applicant’s Business Activity Statements including recent documents and vehicle Registration Certificates by the nominating entity. The Tribunal has also had regard to financial records provided by the entity’s accountants, an associated statement supporting the business’s viability and a Tax Return for FY 2016. The Tribunal viewed the ASIC Current Company Abstract and in addition checked the status of the listed ABN. The Tribunal is satisfied that the applicant is actively, lawfully and directly operating a business in regional Australia. 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 finds that r. 5.19(4)(c) is not relevant to the current nomination.
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.
The Tribunal notes that the delegate refused the nomination based on their concern that the business had not demonstrated that there was a need for the nominator to employ a paid employee to work in the position, under the nominator’s direct control, as they were not satisfied that evidence had been provided to substantiate the claim. The Tribunal was supplied with substantially more detailed evidence than was provided to the delegate, when they were required to reach a decision.
The Tribunal has perused Profit and Loss information, some current BAS statements subsequently provided by the nominating entity. The Tribunal notes that the business has grown its profit by around 90% in the period between 2015 and 2016 financial year and a further 75% between the 2016 and 2017 financial year, according to the Profit and Loss Statements furnished to the Tribunal. Tax Returns supported the financial statements for FY 2015 and FY 2016.
The Tribunal can appreciate that the business requires someone in this role of Transport Manager if Ms Prakash is to continue with her business expansion, in the manner outlined to the Tribunal, whilst caring for her young family. The Tribunal again acknowledges that this is a role previously occupied by a long-term employee. The Tribunal is satisfied that the business will be able to sustainably employ the nominee for the required 2 year period.
The Tribunal has had regard to the signed Letter of Engagement dated 22 May 2017 and is satisfied that the nominee will be appointed for a period of at least 2 years employment from grant of visa and the terms of employment do not include an express exclusion of the possibility of extending the period of employment. Accordingly the requirements of r.5.19(4)(d) are 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.
The Tribunal has been provided with the visa applicant’s employment contract and research undertaken by the nominating entity in support of the wage calculation. The Tribunal accepts that the nominee’s annual salary at $55,000 is reflective of her experience relevant to the nominated position. The Tribunal is satisfied that the terms and conditions of employment are equivalent to other employees with the same experience performing equivalent work in the same workplace. 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 evidence before the Tribunal that the applicant has anything but a satisfactory record of compliance with the immigration laws of Australia. 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. The Tribunal questioned Ms Prakash regarding work place conditions, it was evident that she is cognizant of workplace relations expectations. She also demonstrated an understanding of appropriate employee conditions as a way of retaining drivers and quality service. There is no evidence before the Tribunal that the applicant has anything but a satisfactory record of compliance with workplace relations law in Australia. 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 alternative requirements. These are set out in detail in the attachment to the decision. As stated above the nomination was made under the RSMS Direct Entry stream and the Tribunal has proceeded to access the application against the criteria in r.5.19(4)(h)(ii) which require:
·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 Australian citizen or permanent resident,
·the tasks of the position correspond to those of an occupation at the ANZCO skill level 1, 2 or 3; and
·a regional certifying body has advised the Minister about certain matters relating to the position.
The Tribunal has had regard to the size and scope of the applicant’s business operations, the length of the visa applicant’s employment, and her qualifications and is satisfied that there is a genuine need for the nominator to employ a paid employee to work in the position, under the nominator’s direct control.
The Tribunal is satisfied the position cannot be filled by a Australian citizen or permanent resident. The Tribunal is satisfied that the nominator’s business is located in regional Australia.
Turning to the requirement prescribed in r.5.19(4)(h)((ii)(D), this requires that the tasks to be performed in the position correspond to those at ANZSCO skill level 1, 2 or 3. The position of Transport Company Manager nominated by the applicant is referred to in ANZSCO as a skill level 2 position. The Tribunal considered the tasks found in ANZSCO for this position and compared them to the job description provided by the applicant. The Tribunal is satisfied that the position located in, South Australia, can properly be classified as a position for a Transport Company Manager, ANZSCO Skill Level 2. The Tribunal therefore finds that the nomination does satisfy r.5.19(4)(h)(ii)(D) of the Regulations.
The Tribunal has had regard to Form 1404 issued by a the RCB (Department of Manufacturing, Innovation, Trade Resources and Energy). The first RCB is dated 23 February 2017, and the second RCB is dated 9 March 2018. The Tribunal is satisfied that the applicant has advised the Minister about matters relating to the terms and conditions of employment, the genuine need for the position and that the position cannot be filled locally.
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.
Peter Emmerton
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 1795

1 May 2018

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Remedies

Jurisdiction