Monkey Boy (QLD) Pty Ltd (Migration) - [2023] AATA 3898

Monkey Boy (QLD) Pty Ltd (Migration) [2023] AATA 3898 (19 July 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Monkey Boy (QLD) Pty Ltd
REPRESENTATIVE:  Ms Ying Li (MARN: 1575480)
CASE NUMBER:  1925756
HOME AFFAIRS REFERENCE(S):          BCC2018/820352
MEMBER:Terrence Baxter
DATE:19 July 2023
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Statement made on 19 July 2023 at 8:45am
CATCHWORDS
MIGRATION – Employer Nomination – approval of nominated position – Direct Entry Nomination stream – Dental Technician – identification of need – administrative process – genuine need – busy practice – replace departed employee – decision under review set aside

LEGISLATION
Migration Regulations 1994 (Cth), r 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 Home Affairs on 27 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, Monkey Boy (QLD) Pty Ltd, applied for approval on 20 February 2018. The applicant nominated Mr Chun-Yuan Lin (the nominee) in the position of Dental Technician. The applicant operates a denture clinic under the business name West Street Denture Clinic at 90 West Street, Toowoomba, Queensland. The applicant has employed the nominee as a Dental Technician since January 2018.
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)(a)(ii) of the Regulations because the delegate found that the application did not identify a need for the applicant to employ the nominee as a paid employee to work in the position under the applicant’s direct control.
The applicant lodged an application for review of the delegate’s decision with the Tribunal on 13 September 2019.
Mrs Christine Topalov, the Financial Manager of the applicant, appeared before the Tribunal on 30 May 2023 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Peter Topalov, the sole director and shareholder of the applicant, and from the nominee.
The Tribunal exercised its discretion to hold the hearing by video conference. The Tribunal determined it was reasonable to hold a hearing by video conference, having regard to the nature of this matter and the individual circumstances of the applicant. 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.

Continue reading Monkey Boy (QLD) Pty Ltd (Migration)

Details

AGLC: Monkey Boy (QLD) Pty Ltd (Migration) [2023] AATA 3898
Case: [2023] AATA 3898
Decision Date: 19 July 2023

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered an application by Monkey Boy (QLD) Pty Ltd for approval of a nominated position under the Direct Entry stream of the Employer Nomination scheme. The dispute concerned whether the applicant had demonstrated a genuine need for the nominated position of Dental Technician, a requirement for the approval of the nomination.

The Tribunal was required to determine whether the applicant had satisfied the requirements of Regulation 5.19(4) of the Migration Regulations 1994 (Cth), specifically concerning the identification of a need for the nominated position and the genuine need for the nominee to be employed in that role within a regional area. The Tribunal also considered whether the applicant had met other regulatory requirements, including compliance with workplace relations laws and the absence of adverse information.

The Tribunal reasoned that while Regulation 5.19(4)(a)(ii) could be interpreted as requiring only a statement of need, the broader context and specific requirements for regional nominations under Regulation 5.19(4)(h)(ii)(B) necessitated a qualitative assessment of a genuine need. The Tribunal found that the applicant had provided substantial evidence, including amended employment agreements, payslips, market salary data, job advertisements, recruitment reports, and financial statements, which collectively demonstrated a genuine need for the Dental Technician position. This evidence indicated a busy practice and the need to replace a departed employee, supporting the applicant's claim.

The Tribunal decided to set aside the original decision and substitute it with a decision approving the nomination. This outcome was based on the Tribunal's satisfaction that the applicant had met all the relevant regulatory requirements for the approval of the nominated position under the Direct Entry stream.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The applicant employed the nominee as a Dental Technician on a part-time basis in January 2018 and the nominee’s employment has been full-time since early March 2018. Prior to the nominee’s employment in January 2018, he had been employed by the applicant on a casual basis.Evidence presented after the hearing After the hearing, the applicant produced to the Tribunal the following documents: a.An amended employment agreement dated 31 May 2023.b.Recent payslips of the nominee and of an equivalent worker.c.Market salary evidence from the platform Seek.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 June 2023).[2] In Bharaj Construction Pty Ltd v MIBP [2016] FCCA 902 (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 produced to the Department of Home Affairs (the Department) the following documents: a.A job advertisement for the position accompanied by a recruitment report and resumes of unsuccessful job applicants.b.Correspondence, a Form 1404 and an Assessment Statement from the Regional Certifying Body (RCB), the Chamber of Commerce & Industry Queensland, Toowoomba, dated 19 February 2018.c.Profit and loss statements for the 2017 and part of the 2018 financial years.d.A submission from the applicant regarding prior employment of the nominee.e.An ABN Lookup report in respect of the applicant’s ABN.f.A business activity statement for the period from July 2017 to September 2017.g.ASIC evidence in respect of the applicant and its business name, West Street Denture Clinic.h.An employment agreement dated 29 January 2018.i.An organisational chart.j.Evidence of the applicant’s tenancy of its business premises. The applicant produced to the Tribunal the following documents in addition to documents provided to the Department: a.A copy of the delegate’s decision.b.Submissions from the former representative dated 16 November 2022 and 19 May 2023.c.Current ASIC evidence in respect of the applicant and its business name.d.Business activity statements for the period from July 2020 to March 2023.e.Financial statements and tax returns for the 2021 and 2022 financial years.f.A current organisational chart and a position description.g.Photographs of the nominee performing tasks of the position.h.An Australian and New Zealand Standard Classification of Occupations (ANZSCO) classification for the occupation of Dental Technician.i.An employment agreement dated 4 July 2022.j.A further job advertisement for the position and a further recruitment report with resumes of unsuccessful job applicants.k.A submission from the applicant dated 1 September 2019 regarding the delegate’s decision.l.PAYG payment summaries and income statements of the nominee for the 2017 to 2022 financial years.m.Various payslips of the nominee.n.An ATO transaction statement of the applicant for the period from 17 May 2021 to 17 May 2023.o.A job application from the nominee to the applicant dated 29 November 2017 and the nominee’s resume.p.Evidence of the nominee’s qualifications as a Dental Technician.q.An employment reference from a former employer of the nominee.r.Bank statements of the applicant.s.A submission from the current representative dated 26 May 2023.t.Tax returns of a former employee of the applicant for the 2017 and 2018 financial years.Evidence presented 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 4350 (Toowoomba, Queensland). Based on the evidence, the Tribunal is satisfied that the position and the applicant’s business are located at 90 West Street, Toowoomba, Queensland 4350. 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