Pakridge Pty Ltd (Migration) - [2023] AATA 2867

Pakridge Pty Ltd (Migration) [2023] AATA 2867 (28 August 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Pakridge Pty Ltd
REPRESENTATIVE:  Ms Suzanne Lee Weel
CASE NUMBER:  1925724
HOME AFFAIRS REFERENCE(S):          BCC2018/948845
MEMBER:Alison Mercer
DATE:28 August 2023
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Statement made on 28 August 2023 at 5:17pm

CATCHWORDS
MIGRATION – application for approval of nomination of position – direct entry stream – retail manager of petrol station and convenience store – duties of position – franchise where higher-level decisions made by head office or directors – certification from regional certifying body – franchise agreement provides branding and fuel supply, with all other operations independent – director’s active role among other business interests and reliance on nominee’s day-to-day responsibility – nominee’s work in position and at related site – rebuilding business after COVID and floods – attempts to fill positions locally – certification from regional certifying body made before COVID and floods, and not determinative – comparison of position description and ANZSCO listing – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), s 359
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 28 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, Pakridge Pty Ltd (trading as BP Penoil, Lismore, NSW), applied for approval of its nominated position of Retail Manager (General) on 27 February 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 the applicant’s nomination did not satisfy reg 5.19(4)(h)(ii)(D) of the Regulations, which required that the duties of the nominated position correspond with those of an occupation listed in the relevant written instrument. The delegate was not satisfied that the position nominated by the applicant would carry out the full range of duties for a Retail Manager (General) as set out in the Australian and New Zealand Standard Classification of Occupations (ANZSCO) as the applicant’s business was part of a franchise operation, where higher level decision-making would be performed by the head office or the company’s directors. The delegate further found that the applicant…

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.

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Details

Case: [2023] AATA 2867
Decision Date: 28 August 2023

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered an application by Pakridge Pty Ltd for approval of a nomination for a position under the Direct Entry stream. The dispute concerned whether the nominated position of Retail Manager (General) at a BP petrol station and convenience store in Lismore, New South Wales, met the requirements of regulation 5.19(4) of the Migration Regulations 1994. The Tribunal was tasked with determining if the nominator, Pakridge Pty Ltd, and the nominated position satisfied all the stipulated criteria for approval.

The Tribunal was required to assess several legal issues, including whether the application was compliant, if the nominator was actively and lawfully operating a business in Australia, and if the nominated position was not a labour-hire arrangement. Further, it needed to consider the terms of employment for the visa holder, the absence of adverse information known to Immigration, and the nominator's satisfactory compliance with workplace relations laws. Crucially, the Tribunal had to determine if the tasks of the position corresponded to an occupation specified by the Minister, if there was a genuine need for the nominee, and if the position could not be filled by a local Australian citizen or permanent resident, particularly given the location in regional Australia.

In its reasoning, the Tribunal found that Pakridge Pty Ltd had met all the requirements of regulation 5.19(4). It was satisfied that the application was in the approved form, that no fee was payable, and that a need for the nominee, Ms Gurpreet Kaur Dhaliwal, was identified under the nominator's direct control. The Tribunal also confirmed that Pakridge Pty Ltd was actively and lawfully operating its business, that the position was not a labour-hire arrangement, and that the terms of employment met the required standards. Furthermore, no adverse information was known to Immigration, and the nominator had a satisfactory record of compliance with workplace relations laws. The Tribunal specifically addressed the regional nomination criteria, finding that the position in Lismore qualified as regional Australia and that there was a genuine need for the nominee, with evidence suggesting attempts to fill the position locally had been unsuccessful.

Consequently, the Tribunal set aside the original decision under review and substituted it with a decision approving the nomination.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

For the following reasons, the Tribunal has decided to set aside the decision under review and substitute a decision approving the nomination.CONSIDERATION OF LAW, 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.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). 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. The Tribunal has reviewed the Department’s file and is satisfied that the applicant made the application on the approved form, that no fee was payable as it is a regional nomination application, and that the nomination application contained the required s.245AR(1) certification. The Tribunal is also satisfied that the applicant identified a need to employ the nominee, Ms Gurpreet Kaur Dhaliwal, as a paid employee in the nominated position of Retail Manager (General) under the applicant’s direct control. Accordingly, the Tribunal finds that the requirement in reg 5.19(4)(a) is met.Nominator is actively and lawfully operating a business in Australia: reg 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 has reviewed the recent financial information provided by the applicant, including BAS for July - September 2022 – April 2023 and its draft financial statements for the financial year 2021/2022, and is satisfied that the applicant is actively and lawfully operating a business in Australia. The information provided indicates that the applicant’s business involves operating a BP petrol station/road house (including takeaway food sales) under a franchise agreement, in Lismore, regional New South Wales (NSW), postcode 2480. Accordingly, the Tribunal finds that the requirement in reg 5.19(4)(b) is met.Position is not labour-hire: reg 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. There is no evidence that the applicant’s business activities include labour hire to unrelated businesses. Accordingly, the Tribunal finds that r.5.19(4)(c) does not apply in this case.Term of employment of the visa holder: reg 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.

Decision

Reasons for decision

Based on the findings above, the Tribunal is satisfied that the applicant meets the requirements of reg 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.Alison MercerMemberATTACHMENT - 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 an identified person, as 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) all 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;(AA)there is a genuine need for the nominator to employ the person identified under subparagraph (a)(ii), as a paid employee, to work in the position under the nominator’s direct control;(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 the person identified under subparagraph (a)(ii), as 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

Accordingly, the Tribunal finds that 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 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. The Tribunal has reviewed the Department’s records, including its electronic Integrated Client Services Environment (ICSE) records, and is satisfied that there is no adverse information known to Immigration about the applicant or any person associated with it. Accordingly, it finds that r.5.19(4)(f) is 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 that the applicant does not have a satisfactory record of compliance with Commonwealth and New South Wales laws relating to workplace relations. Accordingly, the Tribunal finds that 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 written 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, 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. The nomination application indicates that the applicant’s business and the location at which the nominee will be employed is Lismore, NSW, postcode 2480. This is specified in the relevant instrument, IMMI 17/059 as regional Australia, and therefore the requirements of the second dot point above must be met by the applicant in this case.