National Park Pty Ltd (Migration) - [2020] AATA 4943

National Park Pty Ltd (Migration) [2020] AATA 4943 (15 October 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  National Park Pty Ltd
CASE NUMBER:  1805166
HOME AFFAIRS REFERENCE(S):          BCC2016/2488757
MEMBER:De-Anne Kelly
DATE:15 October 2020
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision under review to refuse the nomination.

Statement made on 15 October 2020 at 5:06pm
CATCHWORDS
MIGRATION – Employer Nomination – approval of nominated position – Direct Entry Nomination – Gift Shop Manager or Retail Manager – tasks to be performed in the position – originally advertised as a supervisor role – considered against the ANZSCO tasks for the occupation – product mix, stock levels and service standards – purchasing and marketing policies and setting prices – promoting and advertising – maintaining records – budgeting – selection, training and supervision of staff – compliance with OH&S regulations – overarching responsibility – decision under review affirmed
LEGISLATION
Migration Regulations 1994 (Cth), r 5.19
CASES
Cargo First Pty Ltd v Minister for Immigration & Anor [2015] FCCA 2091
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 6 February 2018 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 applied for approval on 27 July 2016. 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 stream (r.5.19(3)) and a Direct Entry nomination stream (r.5.19(4)). 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)(h)(ii)(D) and r.5.19(4)(h)(ii) of the Regulations because the tasks to be performed in the nominated position did not correspond to the tasks of an occupation specified by the Minister.
The applicant appeared before the Tribunal on 7 July 2020 to give evidence and present arguments. This was a dual hearing of both the employer nomination refusal review and the visa application refusal review.
The applicant was represented in relation to the review by its registered migration agent, Mr Seddon John Crest MARN: 1101093 of Crest Migration, Surfers Paradise Qld Australia 4217. The representative attended the Tribunal hearing.
For the following reasons, the Tribunal has decided to affirm the decision under review to refuse 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…

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 National Park Pty Ltd (Migration)

Details

AGLC: National Park Pty Ltd (Migration) [2020] AATA 4943
Case: [2020] AATA 4943
Decision Date: 15 October 2020

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered a decision to refuse the nomination of a position by National Park Pty Ltd, trading as O’Reilly’s Rainforest Retreat, in favour of Ms Li Peng for the role of Gift Shop Manager or Retail Manager. The company, established in 1931 and operating a resort, vineyard, and associated retail operations, sought approval for the nomination under the Direct Entry stream of the Regional Sponsored Migration Scheme. The Managing Director represented the company at the hearing.

The primary legal issue before the Tribunal was whether the nominated position, as described by the tasks to be performed, corresponded to the duties outlined in the Australian and New Zealand Standard Classification of Occupations (ANZSCO) for a Gift Shop Manager or Retail Manager, and whether the applicant met the requirements of regulation 5.19(4) of the Migration Regulations 1994. Specifically, the Tribunal had to determine if the role involved overarching responsibility for aspects such as product mix, stock levels, service standards, purchasing and marketing policies, pricing, promotion, record-keeping, budgeting, staff selection, training, supervision, and compliance with OH&S regulations, as required for the nominated occupation.

The Tribunal affirmed the decision to refuse the nomination, finding that the applicant had not satisfied the criteria under regulation 5.19(4). The reasoning focused on the assessment of the tasks associated with the nominated position against the defined duties for the occupation. The Tribunal concluded that the evidence presented did not demonstrate that the applicant met the requirements for approval under the Direct Entry nomination stream. Consequently, the nomination could not be approved, and the Tribunal affirmed the original decision.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

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Evidence

Evidence Before The Court

For the following reasons, the Tribunal has decided to affirm the decision under review to refuse 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 business, National Park Pty Ltd ABN: 68 009 661 367 trading as O’Reilly’s Rainforest Retreat has been established since 1931 and remained in family hands. It is located at Lamington National Park, Canungra Qld 4275 and employs 98 staff of which 24 are foreign skilled workers. The Managing Director Mr Shane O’Reilly represented the company at the hearing. The company describes its operation as follows:The O’Reilly family group of companies is comprised of three entities; National Park Pty Ltd, Canungra Valley Pty Lid and Lamington Management Services Pty Ltd.National Park Pty Ltd is the holding company and Canungra Valley Vineyard Pty Ltd is 87.5% owned by National Park Pty Ltd. The O’Reilly’s businesses are managed by an executive team under the direction of the respective boards of the 2 main companies.Canungra Valley Vineyards fronts Lamington National Park Road and Canungra Creek and is situated approximately 8 kilometres from the township of Canungra on the road to the O’Reilly’s Rainforest Retreat. The vineyard property was purchased in 1997 and set up as an event/hospitality business built around a small vineyard and rural creek setting and a 1880s old historic homestead.O’Reilly’s Rainforest Retreat, Cafe and Spa are located 37 kilometres from Canungra Township and is situated in a World Heritage listed National Park. The Resort is the main business of the O’Reilly family and has been operating since 1926. On 27 July 2016, the applicant lodged a Regional Sponsored Migration Scheme – visa Subclass 187 in the Direct Entry stream for the position of Gift Shop Manager or Retail Manager ANZSCO142111 on a salary of $48,835 in favour of Ms Li Peng. The letter from the Managing Director dated 9 March 2020 gives an overview of the operation of the business as follows:The Senior Management org chart shows that there are two main parts of the business as follows:• Profit Centres• Support ServicesThe Senior Management org chart shows the two groups of profit centres are as follows:• O’Reilly’s Rainforest Retreat – managed by Brendan Long, Retreat Manager• Canungra Valley Vineyard Pty Ltd – managed by Tamil Mani, Vineyard ManagerThe support services (Finance and Sales & Marketing), based in Nerang, QLD 4211, provide advice and services for the O’Reilly’s group of businesses, including the Canungra Valley Vineyard as well as the O’Reillys Rainforest Retreat profit centres. The Sales & Marketing team is dedicated to marketing and promotion initiatives to drive more customers to visit the Canungra Valley Vineyard and O’Reilly’s Rainforest Retreat.None of the Sales & Marketing Staff based in Nerang are involved in marketing or promotion initiatives related to the Retail Division at O’Reilly’s Rainforest Retreat. This function is entirely the purview of the Retail Manager, Ms Peng.The senior management org chart also shows that The Café, Dining Room, Conference and Events and Kitchen divisions all report to the First Operations Manager (Damian Pio). The Front Office and Housekeeping Divisions report to the Second Operations Manager (Alistair Brown). The Retail Manager reports directly to the Retreat Manager rather than one of the Operations Managers.The Retail Manager attends the Heads of Department meetings at O’Reilly’s Rainforest Retreat

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 the 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.DECISION The 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 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).