Patel Traders Pty Ltd ATF J & B Patel Family Trust (Migration)

Patel Traders Pty Ltd ATF J & B Patel Family Trust (Migration) [2022] AATA 4209 (16 September 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Patel Traders Pty Ltd ATF J & B Patel Family Trust
REPRESENTATIVE:  Mr Prashant Naik (MARN: 0965222)
CASE NUMBER:  1914767
HOME AFFAIRS REFERENCE(S):          BCC2017/5017891
MEMBER:George Hallwood
DATE:16 September 2022
PLACE OF DECISION:  Adelaide
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Statement made on 16 September 2022 at 3:56pm
CATCHWORDS
MIGRATION – Employer Nomination – approval of nominated position – Direct Entry nomination stream – Retail Manager (General) – genuine need – director oversees four companies with businesses across seven locations – decision under review set aside
LEGISLATION
Migration Act 1958 (Cth), s 360
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 23 May 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 applied for approval on 31 December 2017. 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) of the Regulations because they were not satisfied the evidence provided demonstrated a genuine need for the nominator to employ a paid employee to work in the nominated position under their direct control.
In reaching its decision the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the visa applicant on the basis of the material before it, pursuant to s 360(2)(a) of the Act.
The applicant was represented in relation to the review.
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.
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.
I have had regard to the written material provided and I am satisfied that the application was compliant with the process set out in r.5.19(4)(a) as the application:
·was made on the approved form and was accompanied by the fee prescribed in r.5.37;
·the completed form includes a written certification stating that the nominator has not engaged in conduct in relation to the nomination that contravenes s. 245AR(1); and
·the completed form identifies a need for the applicant to employ a paid employee to work in the position under the applicant’s direct control and the Tribunal is satisfied that this meets the requirement of r.5.19(4)(a)(ii).
Accordingly, the requirement in r.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 nomination application dated 31 December 2017 states that the applicant commenced trading on 11 April 2012 and the site in question trades as Metro Petroleum Temora. A submission to the Tribunal from Mr Jamin Patel outlines that the applicant’s business is in service stations and convenience stores. A submission dated 27 June 2022 relevantly provided: ASIC current and historical extract; Tax returns and financial statements for the years 2020 and 2021 and Business Activity Statements for the last 24 months.
Based on the information provided the Tribunal is satisfied that the applicant is actively, lawfully and directly operating a business in Australia.
Accordingly, 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.
Documentary evidence provided to the Tribunal including the nomination application, employment contract, contract of employment, and a submission dated 27 June 2022 all confirm to the Tribunal’s satisfaction:
·the applicant is not involved in labour hire activities; and
·the nominated position is employed wholly within the nominator’s business and is not for hire to unrelated businesses.
Accordingly, the requirement in r.5.19(4)(c) is met.
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.
The employment contract between the applicant and Mr Harminder Singh Patel dated 1 July 2021 states:
1)The Employee will commence Permanent full-time employment with the company upon subclass 187 visa grant.
2)Subject to termination as provided in this employment agreement, the Employee is employed for the permanent full-time basis with minimum of 2 years employment.
There is nothing in the contract that expressly precludes an extension beyond two years.
Accordingly, the requirement in reg 5.19(4)(d) is met.
No less favourable terms and conditions of employment: reg 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 organisation chart demonstrates that there is only one position, that is the one nominated, of the sort in the same workplace in the same location.
The applicant has provided a market salary report that demonstrates to the satisfaction of the Tribunal 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.
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 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 information before the Tribunal which suggests there is any adverse information known to the Department about the nominator or a person ‘associated with’ the nominator.
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.
The written submission from the applicant states:
We have never been subject to any investigation about any contravention of the law.
We have never been subject to monitoring by the department as such.
There is no information before the Tribunal indicating an unsatisfactory 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.
For this reason, the Tribunal finds that the applicant has a satisfactory record of compliance with the relevant laws relating to workplace relations.
Accordingly, the requirements of r.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 (see legislative instrument IMMI 18/005), 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 instrument IMMI 17/059 sets out the postcodes specified as Regional Australia. The nominated position of Retail Manager and the business Metro Petroleum Temora are located in Temora NSW with the postcode 2666 which is included in Schedule 2 of the instrument as being located in Regional Australia. For these reasons the Tribunal is satisfied the position and business are located in regional Australia.
The applicant has provided organisation charts, financial information, and a submission specifically addressing the genuine need for the nominated position. In brief, the director, Mr Patel, oversees four companies with businesses across seven locations in NSW and Victoria. Metro Petroleum Temora is located 418 kilometres from Sydney where the directors are based. A retail manager is required to manage the Temora operation including organising and controlling its day-to-day operations as it is a stand-alone business operation including a retail manager, a permanent part time console operator, and a casual console operator. The nominee has the skills and knowledge to provide retail management in this regional location. The Tribunal is satisfied there is a genuine need for the nominator to employ the person identified under reg 5.19(4)(a)(ii) as a paid employee to work in the position under the nominator’s direct control.
The applicant provided a labour market testing report which the Tribunal is satisfied demonstrates that the position cannot be filled by an Australian citizen or permanent resident who is living in the same local area.
The instrument IMMI 17/058 specifies the occupations for subclass 187 visas. The occupation Retail Manager (General) – ANZSCO code 142111 is specified in Schedule 1 of the instrument. The tasks set out in the Genuine Position submission of the applicant correspond to the tasks of a Retail Manager (General) as specified in the instrument.
The instrument IMMI 17/059 specifies regional certifying bodies for the purposes of subclass 187 visas. Regional Development Australia (RDA), Riverina Inc is specified in Schedule 1 of instrument. The RDA advised the Minister on 7 February 2018 that they were satisfied the matters in reg 5.19(4)(e) and reg 5.19(4)(h)(ii)(B) & (C) had been met.
For these reasons the Tribunal is satisfied the requirements of reg 5.19(4)(h) are met.
CONCLUDING PARAGRAPH
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.
George Hallwood
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 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).

[2022] AATA 4209

16 September 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Statutory Construction

Procedural Fairness