PRONTO DELIVERIES PTY LTD (Migration)

PRONTO DELIVERIES PTY LTD (Migration) [2019] AATA 5082 (15 August 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Pronto Deliveries Pty Ltd
CASE NUMBER:  1731940
DIBP REFERENCE(S):  BCC2017/2307251
MEMBER:De-Anne Kelly
DATE:15 August 2019
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision under review to refuse the nomination.

Statement made on 15 August 2019 at 12:23pm

CATCHWORDS
MIGRATION – Employer Nomination – approval of nominated position – Direct Entry Nomination stream – tasks of the position – Maintenance Engineer – ‘correspond’ with the occupation Mechanical Engineer – management of ‘workers and work units’ – interaction with drivers – establish work measurement programs – develop standards for labour utilisation – 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 Immigration on 29 November 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 applied for approval on 29 June 2017. 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)(a)(ii) of the Regulations because the delegate of the Minister found that the applicant did not identify a need for the nominator to employ a paid employee to work in the position under the applicant’s direct control.
The applicant appeared before the Tribunal on 22 May 2019 and again on 9 July 2019 to give evidence and present arguments. The nominee Mr Juan Carlos Calderon Gutierrez attended and gave evidence. The applicant was represented in relation to the review by its registered migration agent.
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.
Pronto Deliveries Pty Ltd is located at 497 Beatty Road, Acacia Ridge, Queensland, Australia 4110 and provides parcel deliveries and distributes mail bags for Australia Post. They have held Australia Post contracts since 2003. Their 2018 Tax Return shows income of $823,063, cost of sales of $456,916, leaving a total income of $368,709. After total expenses of $309,695, the company made a profit of $59,014 before tax. The P&L to 31 March 2019 shows a profit before tax of $247,617.
The business has 13 vans that deliver the parcels and they contract drivers to operate the vans and undertake the deliveries. The only employees of the business are the Director and owner Mr Hugo Rico, his wife Patricia Arias who manages the administration of the business and the nominated position of Maintenance Engineer.
The applicant provided documents on 20 May, 30 May, 22 July, 24 July and 6 August 2019. The Tribunal has considered these documents.
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) of the Act. The application must also identify a need for the nominator to employ a paid employee to work in the position under their direct control.
Applications must be in the approved form and must be accompanied by the prescribed fee to be valid and acknowledged by the Department of Home Affairs (the Department). An acknowledgement dated 29 June 2017 was sent by the Department to the nominator as evidence of a valid application. At the time the nomination application was lodged on 29 June 2017 there was no separate ‘No Payment for Sponsorship’ certification and it was part of the online application which was located at page six ‘Paying for Visa Sponsorship’. The Department accepted a declaration made on page six of the online form that the nominator had responded yes in the online form to the following: ‘The applicant certifies that they have not engaged in conduct in relation to this nomination that constitutes a contravention of subsection 245AR(1) of the Migration Act 1958.’
The Tribunal is satisfied that the application was made on the approved form 1395 (Internet) for post 23 March 2013 applications, accompanied by the prescribed fee and the nominator has included a written certification stating the nominator has not engaged in conduct in relation to the nomination that contravenes s.245AR(1).
Regulation 5.19(4)(a)(ii) requires the nominator to identify a need for the nominator to employ a paid employee to work in the position under the nominator’s control. The nomination does not have to specify the nominee but needs to identify a nominee before, or at the time, the associated visa application is made. Mr Juan Carlos Calderon Gutierrez was identified in the employer nomination as the nominee.
The Tribunal is not making a finding on whether the applicant identified a need for the nominator to employ a paid employee to work in the position under their direct control as there is another regulation that is more relevant to a decision.
Accordingly, the requirement in r.5.19(4)(a) is neither met nor not met.
Tasks of the position, genuine need for the position and training requirements: r.5.19(4)(h)
Regulation 5.19(4)(h) states as follows:
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;
(B) either:
(I) the applicant’s business has operated for at least 12 months, and the applicant 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 applicant’s business has operated for less than 12 months, and the applicant 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 applicant to employ a paid employee to work in the position under the applicant’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;
(E) the business operated by the applicant 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).
Consideration of need to meet r.5.19(4)(h)(i) or r.5.19(4)(h)(ii)
The Tribunal must determine whether the applicant needs to meet r.5.19(4)(h)(i) or r.5.19(4)(h)(ii). In order to meet r.5.19(4)(h)(ii) the business must firstly be in a regional area. The definition of ‘Regional Australia’ is found in IMMI 16/045. The definition of ‘Regional’ for the State of Queensland states as follows: ‘QUEENSLAND (Excluding the greater Brisbane area and the Gold Coast)’.
The applicant’s business is located in Stones Corner, Brisbane and the postcode for this location is 4120. This postcode is not included in the list of postcodes for designated regional areas in IMMI 16/045.
The Tribunal finds that the business is not located in a regional area. Therefore the applicant cannot meet r.5.19(4)(h)(ii) and must meet r.5.19(4)(h)(i).
Consideration of need to meet r.5.19(4)(h)(i)(A) and r.5.19(4)(h)(i)(B)
Regulation 5.19(4)(h)(i) is comprised of two sub-subparagraphs (A) and (B) relating to the tasks corresponding to those in a legislative instrument and training requirements respectively.
The nominated position is Maintenance Engineer under the ANZSCO code 233512 Mechanical Engineer. The Tribunal considered sub-subparagraph (A) and found the occupation Mechanical Engineer ANZSCO 233512 is specified in writing by the Minister in Column A of Schedule 1, The Consolidated Sponsored Occupation List (CSOL) of IMMI 16/059 and thus the occupation is specified by the Minister in writing.
At the hearing, the nominee gave a detailed description of the tasks and duties of the nominated position of Maintenance Engineer. Mr Gutierrez stated that there are 13 vans that are used for delivery of parcels on behalf of Australia Post. He has a checklist for each van in the morning; he uploads a spreadsheet regarding the mechanical status of each van; he analyses the maintenance of each van; schedules every van for maintenance; notes the kilometres each van has travelled; compares the KPI for each van to see which needs more maintenance; and speaks with each driver before the commencement of the morning shift about the state of each van. He books any servicing for the vans with Priority Motor Mechanics at Oxley.
The Tribunal asked Mr Gutierrez whether he has any responsibility or interaction with the drivers of the vans and he responded that he only speaks with them in the morning before they commence their shift to determine if they have any issues with the vans. This is significant because it corresponds with the evidence that the Director Mr Hugo Rico gave at the hearing; namely, there are only three employees of the business: Mr Hugo Rico, his wife Patricia Arias in administration and Mr Juan Gutierrez in the nominated position of Maintenance Engineer. The other 12 people are contract drivers and report directly to Mr Hugo Rico as shown on the organisation chart.
The applicant provided a job description for the nominated position of Maintenance Engineer as follows:
·Develop a weekly, monthly and yearly Maintenance plan for the fleet.
·Identify, prioritise and schedule routine maintenance, repairs and exchanges of the spare part of all fleet.
·Identify, prioritise and present maintenance KPIs such as availability, reliability and maintainability of each van and all fleet.
·Detect, analyse and mitigate of repetitive failures, with its respective recommendations for ideal van operation.
·Performs audits of authorised workshops for maintenance services.
·Planning of preventative and corrective maintenance cost of fleet presenting annual maintenance budget forecasts.
·Responsible for arranging maintenance of all Pronto vehicles as required. This requires regular review of the fleet vehicles, ensure routine mechanical maintenance and keeping records of such.
The Tribunal noted that the applicant, following the hearing, had added the following task to the above list of tasks for the nominated position:
·Identify, prioritise and schedule routine maintenance, repairs and exchanges of the spare parts of all fleet.
The Tribunal noted that the ANZSCO lists the tasks of a Mechanical Engineer ANZSCO 233512 as follows:
INDUSTRIAL, MECHANICAL AND PRODUCTION ENGINEERS design, organise and oversee the construction, operation and maintenance of mechanical and process plant and installations, establish programs for the coordination of manufacturing activities, and ensure usage of resources is cost effective.
Tasks Include:
(1)   studying functional statements, organisational charts and project information to determine functions and responsibilities of workers and work units and to identify areas of duplication
(2)   establishing work measurement programs and analysing work samples to develop standards for labour utilisation
(3)   analysing workforce utilisation, facility layout, operational data and production schedules and costs to determine optimum worker and equipment efficiencies
(4)   designing mechanical equipment, machines, components, products for manufacture, and plant and systems for construction
(5)   developing specifications for manufacture, and determining materials, equipment, piping, material flows, capacities and layout of plant and systems
(6)   organising and managing project labour and the delivery of materials, plant and equipment
(7)   establishing standards and policies for installation, modification, quality control, testing, inspection and maintenance according to engineering principles and safety regulations
(8)   inspecting plant to ensure optimum performance is maintained
(9)   directing the maintenance of plant buildings and equipment, and coordinating the requirements for new designs, surveys and maintenance schedules
The applicant’s representative on 6 August 2019 provided a table comparing the tasks of the ANZSCO Mechanical Engineer with the nominated position of Maintenance Engineer. The applicant’s representative submitted that all the tasks of the nominated position match a task of the ANZSCO.
The Tribunal will now consider this submission and its conclusions. The tasks of the ANZSCO are numbered for ease of identification.
The Tribunal is mindful that ANZSCO is not prescriptive; however, the Tribunal is also aware of the need for qualitative analysis as stated by Judge Smith. He was referring to r.2.72(10)(f); nonetheless the statement is applicable to the Tribunal’s decision making in regard to r.5.19(4)(h)(ii)(D):
... what is required … is a determination of not only whether or not the position in question is genuine in that it exists but also whether it really is what it purports to be. The second part of the determination necessarily requires a qualitative analysis of the position and a comparison of that with the occupation which has been nominated by the proposed sponsor. If it were otherwise, the scheme envisaged for the protection of the Australian workforce could be readily undermined simply by describing one thing as being another… (Judge Smith, Cargo First Pty Ltd v Minister for Immigration & Anor [2015] FCCA 2091 at [30].)
Task (1) of the ANZSCO requires ‘studying functional statements, organisational charts and project information to determine functions and responsibilities of workers and work units and to identify areas of duplication.’ (Emphasis added.) The applicant claims that the nominated position tasks that correspond with this are as follows: ‘Develop a weekly, monthly and yearly Maintenance plan for the fleet’. The ANZSCO task is directed toward the management of ‘workers and work units’ and establishing their ‘functions and responsibilities’. The nominee Mr Gutierrez has already confirmed that he does not interact with the drivers other than speaking with them in the morning when they commence their morning shift. The only other employees of the business are the Director, Mr Hugo Rico and his wife, Patricia Arias. The organisation chart for the business shows the nominated position as subordinate to the positions of the Director Mr Hugo Rico and the Administrator Ms Patricia Arias. Therefore, the nominated position has no oversight of workers and work units because there are no workers in the business for whom the nominated position has responsibility. The contract drivers report to Mr Hugo Rico and Ms Arias’s position reports to Mr Hugo Rico as does the nominated position. This information is shown on the organisation chart for the business. The Tribunal finds that the nominated position does not determine functions and responsibilities of workers and work units and task (1) of the ANZSCO does not correspond with any of the tasks in the nominated job description. It follows that task (1) does not correspond with the specific task in the job description put forward by the applicant ‘Develop a weekly, monthly and yearly Maintenance plan for the fleet’. The Tribunal does not accept the applicant’s submission that task (1) of the ANZSCO is performed by the nominated position.
Task (2) of the ANZSCO states ‘establishing work measurement programs and analysing work samples to develop standards for labour utilisation.’ (Emphasis added.) The applicant claims that the nominated position tasks that correspond with this are as follows: ‘Develop a weekly, monthly and yearly Maintenance plan for the fleet’ and ‘Identify, prioritise and present maintenance KPI’s such as availability, reliability and maintainability of each van and all fleet’. This ANZSCO task is directed towards standards for labour utilisation but the nominated position does not manage any aspect of the labour force employed or contracted by the business. This is shown on the organisation chart submitted for the business and confirmed by the nominee in the hearing when he stated that he does not interact with the drivers other than speaking with them in the morning when they commence their morning shift. This ANZSCO task is also directed to establishing ‘work measurement programs’ and ‘analysing work samples’ but the only work that the nominated position establishes is the booking of servicing for the vans with Priority Motor Mechanics at Oxley. The Tribunal finds that the nominated position does not ‘establish work measurement programs’, does not ‘analyse work samples’ and does not ‘develop standards for labour utilisation’. The Tribunal finds that task (2) of the ANZSCO does not correspond with any of the tasks in the nominated job description. It follows that task (2) does not correspond with the specific tasks from the job description put forward by the applicant, namely ‘Develop a weekly, monthly and yearly Maintenance plan for the fleet’ and ‘Identify, prioritise and present maintenance KPI’s such as availability, reliability and maintainability of each van and all fleet’. The Tribunal does not accept the applicant’s submission that task (2) of the ANZSCO is performed by the nominated position.
Task (3) of the ANZSCO states ‘analysing workforce utilisation, facility layout, operational data and production schedules and costs to determine optimum worker and equipment efficiencies.’ The applicant claims that the nominated position tasks that correspond with this are: ‘Develop a weekly, monthly and yearly Maintenance plan for the fleet’; ‘Identify, prioritise and schedule routine maintenance, repairs and exchanges of the spare part of all fleet’; ‘Identify, prioritise and present maintenance KPI’s such as availability, reliability and maintainability of each van and all fleet’; ‘Detect, analyse and mitigate of repetitive failures, with its respective recommendations for ideal van operation’; ‘Performs audits of authorised workshops for maintenance services’; and ‘Planning of preventative and corrective maintenance cost of fleet presenting annual maintenance budget forecasts’. This ANZSCO task is directed toward optimising worker efficiencies and equipment efficiencies. To achieve these efficiencies, the Mechanical Engineer must analyse ‘workforce utilisation’ but the nominated position does not manage any aspect of the workforce employed or contracted by the business. This is shown on the organisation chart submitted for the business and confirmed by the nominee in the hearing when he stated that he does not interact with the drivers other than speaking with them in the morning when they commence their morning shift. All employees, including the nominated position report to the Director and owner Mr Hugo Rico.

To achieve these efficiencies, the Mechanical Engineer must analyse ‘facility layout’ but this is not mentioned anywhere in the range of tasks on the job description of the nominated position. To achieve these efficiencies, the Mechanical Engineer must analyse ‘operational data’ but the operation of the parcel delivery service is for Mr Hugo Rico and not the responsibility of the nominated position and does not appear in the job description. To achieve these efficiencies, the Mechanical Engineer must analyse ‘production schedules’ but the productivity of the parcel delivery service is the responsibility of Mr Hugo Rico not the responsibility of the nominated position and does not appear in the job description. To achieve these efficiencies, the Mechanical Engineer must analyse ‘costs’ but the costs associated with the parcel delivery service are the responsibility of Mr Hugo Rico not the responsibility of the nominated position and do not appear in the job description. The maintenance costs of the vans appears to be part of the budgeting forecast undertaken by the nominated position.
The Tribunal finds that the nominated position does not analyse workforce utilisation; does not analyse facility layout; does not analyse operational data; does not analyse production schedules; and does not analyse costs for the parcel delivery service. The Tribunal finds that task (3) of the ANZSCO does not correspond with any of the tasks in the nominated job description with the exception of the maintenance cost of the fleet. It follows that task (3) does not correspond with the specific tasks in the job description put forward by the applicant, namely, ‘Develop a weekly, monthly and yearly Maintenance plan for the fleet’; ‘Identify, prioritise and schedule routine maintenance, repairs and exchanges of the spare part of all fleet’; ‘Identify, prioritise and present maintenance KPI’s such as availability, reliability and maintainability of each van and all fleet’; ‘Detect, analyse and mitigate of repetitive failures, with its respective recommendations for ideal van operation’; ‘Performs audits of authorised workshops for maintenance services’; and ‘Planning of preventative and corrective maintenance cost of fleet presenting annual maintenance budget forecasts’. The only exception to this is the maintenance cost but this cost does not allow the nominated position to analyse the maintenance costs of the 13 vans with a view to determine optimum worker and equipment efficiencies of the overall parcel delivery operation. At best, an analysis of the maintenance costs of the 13 vans might lead to the decision to change the service station that undertakes the servicing of the 13 vans but it does not go to the optimum driver performance or to the optimum van efficiency in scheduling the delivery of parcels. The Tribunal does accept that part of task (3) of the ANZSCO is performed by the nominated position.
Task (4) of the ANZSCO states ‘designing mechanical equipment, machines, components, products for manufacture, and plant and systems for construction’. The applicant claims that the nominated position tasks that correspond with this are: ‘Detect, analyse and mitigate of repetitive failures, with its respective recommendations for ideal van operation.’ This ANZSCO task requires the position to ‘design mechanical equipment’ but the nominated position does not undertake any design work and it does not appear in the job description. This ANZSCO task requires the position to ‘design machines’ but the nominated position does not undertake any design work and it does not appear in the job description for the nominated position. This ANZSCO task requires the position to ‘design components’ but the nominated position does not undertake any design work and it does not appear in the job description for the nominated position. This ANZSCO task requires the position to ‘design products for manufacture’ but the nominated position does not undertake any design work nor does the business undertake any manufacturing and it does not appear in the job description for the nominated position. This ANZSCO task requires the position to ‘design plant and systems for construction’ but the nominated position does not undertake any design work nor does the business undertake any construction work and it does not appear in the job description for the nominated position. The Tribunal finds that the nominated position does not design mechanical equipment; does not design machines; does not design components; does not design products for manufacture; and does not design plant and systems for manufacture. The Tribunal finds that task (4) of the ANZSCO does not correspond with any of the tasks in the nominated job description. It follows that task (4) does not correspond with the specific task in the job description put forward by the applicant, namely ‘Detect, analyse and mitigate of repetitive failures, with its respective recommendations for ideal van operation.’ The Tribunal does not accept that task (4) of the ANZSCO is performed by the nominated position.
Task (5) of the ANZSCO states: ‘developing specifications for manufacture, and determining materials, equipment, piping, material flows, capacities and layout of plant and systems’. The applicant claims that the nominated position tasks that correspond with this are: ‘Detect, analyse and mitigate of repetitive failures, with its respective recommendations for ideal van operation.’ This ANZSCO task requires the position to ‘develop specifications for manufacturing’ but the nominated position does not ‘develop specifications’ as this is not in the job description and the business is parcel delivery not manufacturing. This ANZSCO task also requires the position to ‘determine materials’ for ‘plant and systems’ but this is not in the job description of the nominated position. This ANZSCO task requires the position to determine ‘equipment, piping, material flows, capacities’ for plant and systems but this is not in the job description for the nominated position. This ANZSCO task also requires the position to determine the ‘layout of plant and systems’ but this is not in the job description for the nominated position. The Tribunal finds that the nominated position does not ‘develop specifications for manufacture; does not determine ‘materials’ for ‘plant and systems’; does not determine ‘equipment, piping, material flows, capacities’ for ‘plant and systems’; and does not determine ‘layout of plant and systems’. The Tribunal finds that task (5) of the ANZSCO is not found in the job description of the nominated position and it follows that it does not correspond with the specific task in the job description put forward by the applicant namely ‘Detect, analyse and mitigate of repetitive failures, with its respective recommendations for ideal van operation.’ The Tribunal does not accept that task (5) of the ANZSCO is performed by the nominated position.
Task (6) of the ANZSCO states ‘organising and managing project labour and the delivery of materials, plant and equipment’. The applicant claims that the nominated position tasks that correspond with this are: ‘Develop a weekly, monthly and yearly Maintenance plan for the fleet’; ‘Identify, prioritise and present maintenance KPI’s such as availability, reliability and maintainability of each van and all fleet’; and ‘Performs audits of authorised workshops for maintenance services.’ This ANZSCO task requires the organising and managing of ‘project labour’ but the nominated position has no responsibilities for any drivers or other staff in the business and the business is not managing a ‘project’, it is a parcel delivery business. This ANZSCO task requires the delivery of ‘materials, plant and equipment’. The business does deliver parcels and these could be described as materials however, the operation of the delivery side of the business is not the responsibility of the nominated position and it does not appear in the job description for the nominated position. The Tribunal finds that the nominated position does not ‘organise and manage project labour’ and does not ‘organise and manage the delivery of materials, plant and equipment’. The Tribunal finds that task (6) of the ANZSCO is not found in the job description of the nominated position. It follows that it does not correspond with the specific tasks in the job description put forward by the applicant namely ‘Develop a weekly, monthly and yearly Maintenance plan for the fleet’; ‘Identify, prioritise and present maintenance KPI’s such as availability, reliability and maintainability of each van and all fleet’; and ‘Performs audits of authorised workshops for maintenance services.’ The Tribunal considers that task (6) of the ANZSCO is not performed by the nominated position.
Task (7) of the ANZSCO states as follows: ‘establishing standards and policies for installation, modification, quality control, testing, inspection and maintenance according to engineering principles and safety regulations.’ The applicant claims that the nominated position tasks that correspond with this are: ‘Identify, prioritise and present maintenance KPI’s such as availability, reliability and maintainability of each van and all fleet’; ‘Performs audits of authorised workshops for maintenance services’; and ‘Responsible for arranging maintenance of all Pronto vehicles as required. This requires regular review of the fleet vehicles, ensure routine mechanical maintenance and keeping records of such.’ This ANZSCO task requires the establishment of standards and policies for ‘installation’ however the nominated position according to the job description does not have responsibility for installation. This ANZSCO task requires the establishment of standards and policies for ‘modification’ however the nominated position according to the job description does not undertake any modification duties. This ANZSCO task requires the establishment of standards and policies for ‘quality control’ however the nominated position according to the job description does not undertake any quality control duties. This ANZSCO task requires the establishment of standards and policies for ‘testing’ however the nominated position according to the job description does not undertake any testing duties. This ANZSCO task requires the establishment of standards and policies for ‘inspecting’ however the nominated position according to the job description does not undertake any inspection duties. This ANZSCO task requires the establishment of standards and policies for ‘maintenance’ and the nominated position does have responsibility for maintenance. The Tribunal finds that of the six responsibilities in task (7) of the ANZSCO namely ‘installation, modification, quality control, testing, inspection and maintenance’ only maintenance is undertaken by the nominated position. Therefore, the Tribunal finds that one sixth of task (7) of the ANZSCO is performed by the nominated position.
Task (8) of the ANZSCO states as follows: ‘inspecting plant to ensure optimum performance is maintained’. The applicant claims that the nominated position’s tasks that correspond with this are as follows: ‘Performs audits of authorised workshops for maintenance services.’ The Tribunal accepts that task (8) of the ANZSCO is performed by the nominated position.
Task (9) of the ANZSCO states as follows: ‘directing the maintenance of plant buildings and equipment, and coordinating the requirements for new designs, surveys and maintenance schedules.’ The applicant claims that the nominated position tasks that correspond with this are as follows: ‘Develop a weekly, monthly and yearly Maintenance plan for the fleet’; ‘Identify, prioritise and schedule routine maintenance, repairs and exchanges of the spare part of all fleet’; ‘Identify, prioritise and present maintenance KPI’s such as availability, reliability and maintainability of each van and all fleet’; ‘Detect, analyse and mitigate of repetitive failures, with its respective recommendations for ideal van operation’; ‘Performs audits of authorised workshops for maintenance services’; and ‘Responsible for arranging maintenance of all Pronto vehicles as required. This requires regular review of the fleet vehicles, ensure routine mechanical maintenance and keeping records of such.’ The Tribunal accepts that task (9) is performed by the nominated position.
The Tribunal finds of the tasks to be performed in the position of Maintenance Engineer only two full tasks and part of two other tasks, which combined could represent a full task, correspond with the nine tasks of Mechanical Engineer ANZSCO 233512. The Oxford Dictionary online provides the following definition of correspond: ‘Have a close similarity; match or agree almost exactly.’ Three out of nine tasks corresponding would not reasonably be said to have a ‘close similarity’ or to ‘match or agree almost exactly’.
The applicant’s submission of 6 August 2019 submits that the nominated position is employed 38 hours a week to complete the tasks in the job description. Even if that were the case, the tasks undertaken by the nominated position do not correspond to the tasks of the occupation Mechanical Engineer.
The applicant submitted a ‘Maintenance Program – Business Plan’ dated 7 July 2019 which envisages Pronto Deliveries Pty Ltd becoming the maintenance firm of choice for other parcel delivery businesses contracted to Australia Post in the same area. The applicant submitted that this demonstrates the need for the nominated position. This would see an automotive technician and motor mechanic reporting to the nominated position of Maintenance Engineer. The plan anticipates providing maintenance for 36 vans for the first year of operation. The plan has no financial costings. The Tribunal asked Mr Hugo Rico whether they had attempted to secure any maintenance contracts from other parcel delivery businesses or companies that ran delivery vehicles and he responded that they had not tried to secure contracts at this time. The Tribunal considers the business plan an aspirational plan to be implemented at some undetermined time in the future. This is particularly so when there are no financial figures included in the plan. The Tribunal does not give weight to the business plan.
The Tribunal considers the tasks to be performed in the nominated position of Maintenance Engineer do not correspond to the tasks of the occupation Mechanical Engineer ANZSCO 233512 specified by the Minister in writing. Therefore r.5.19(4)(h)(ii)(D) and r.5.19(4)(h)(ii) are not met.
Accordingly the requirements of r.5.19(4)(h) are not met.
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 Kelly
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).

[2019] AATA 5082

15 August 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Statutory Construction

Procedural Fairness

Jurisdiction