PRONTO DELIVERIES PTY LTD (Migration) - [2019] AATA 5082

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…

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 PRONTO DELIVERIES PTY LTD (Migration)

Details

AGLC: PRONTO DELIVERIES PTY LTD (Migration) [2019] AATA 5082
Case: [2019] AATA 5082
Decision Date: 15 August 2019

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered a decision to refuse the nomination of a Maintenance Engineer position by Pronto Deliveries Pty Ltd. The company, which provides parcel delivery services, sought approval for the nomination under the Direct Entry stream. The core of the dispute revolved around whether the nominated position's duties corresponded to the occupation of Mechanical Engineer, as required by migration regulations.

The Tribunal was tasked with determining if the nominated Maintenance Engineer position met the criteria for approval under Regulation 5.19(4) of the Migration Regulations 1994. Specifically, the Tribunal had to assess whether the tasks of the Maintenance Engineer corresponded to those of a Mechanical Engineer (ANZSCO 233512), and whether the business operated in a regional area, which would trigger different regulatory pathways.

The Tribunal found that while the application was compliant in form and fee, and the nominated occupation was listed on the Consolidated Sponsored Occupation List, the business was not located in a regional area. Consequently, the applicant had to satisfy Regulation 5.19(4)(h)(i). The Tribunal examined the duties of the Maintenance Engineer, including scheduling van maintenance, analysing mechanical status, and communicating with drivers about vehicle issues. However, it noted that the nominee's interaction with drivers was limited to pre-shift checks regarding van condition, and the drivers reported directly to the company director. The Tribunal concluded that the tasks performed did not sufficiently correspond to the broader responsibilities typically associated with a Mechanical Engineer, particularly in terms of managing workers and work units or establishing work measurement programs, as suggested by the job description and the nominee's evidence.

Ultimately, the Tribunal affirmed the decision to refuse the nomination, finding that the applicant had not met the requirements of Regulation 5.19(4). The Tribunal noted that the applicant had not sought to satisfy the criteria for the Temporary Residence Transition nomination stream, and therefore, the nomination could not be approved.

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 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).

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 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.