Raf Partners Pty Ltd (Migration)

[2021] AATA 2468

Raf Partners Pty Ltd (Migration) [2021] AATA 2468 (24 June 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Raf Partners Pty Ltd

CASE NUMBER:  1835556

HOME AFFAIRS REFERENCE(S):          BCC2018/948038

MEMBER:Susan Trotter

DATE:24 June 2021

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decision under review to refuse the nomination.

Statement made on 24 June 2021 at 5:41pm

CATCHWORDS

MIGRATION – approval of a nomination – Direct Entry nomination stream – occupation of Corporate Services Manager – genuine need for the employee – employment for at least two years – tasks of the position correspond to the nomination occupation – local labour market shortages – employer’s focus on regional Queensland – position remained unfilled three years – strategic planning – proposed tasks – certification by a regional authority – decision under review affirmed          

LEGISLATION

Migration Act 1958
Migration Regulations 1994, rr 5.19, 5.37

CASES

Bharaj Construction Pty Ltd v MIBP [2016] FCCA 902

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 20 November 2018 to reject the applicant’s application for approval of the nomination of a position in Australia under r.5.19 of the Migration Regulations 1994 (the Regulations).

2. 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).

3. The applicant applied for approval of a nomination on 27 February 2018 seeking to satisfy the criteria in the Direct Entry nomination stream, nominating the occupation of Corporate Services Manager (ANZSCO 132111) to be undertaken by Mr Rupinder Singh Suraj (the nominee).

4. On 28 February 2018, the nominee lodged a related Subclass 187 Regional Employer Nomination (Permanent) (Class RN) visa application with the Department.

5. The Tribunal’s reference to the Regulations are the Regulations as in force at the time of the application on 27 February 2018, assessed now at the time of decision.

6. The delegate refused the application on the basis that the applicant’s nomination did not satisfy r.5.19(4)(a)(ii) because the delegate was not satisfied that the applicant had demonstrated a need for a paid employee (to work in the position under the nominator’s direct control). Nor was the delegate satisfied that the applicant had demonstrated the ability to provide a full-time permanent position for the nominee for at least the next two years as required: r.5.19(4)(d). The delegate was also not satisfied that r.5.19(4)(e), requiring the terms and conditions of employment applicable to the position would be no less favourable than the terms and conditions that are provided or would be provided to an Australian citizen or an Australian permanent resident for performing equivalent work in the same workplace at the same location, was met.

7. On 4 December 2018, the applicant lodged an application for review of the delegate’s decision with the Tribunal and provided a copy of the delegate’s decision to the Tribunal.

8. Mr Amer Tehreem, director of the applicant, appeared before the Tribunal on 11 March 2021 by video to give evidence and present arguments at a joint hearing. The Tribunal also received oral evidence from the applicant’s business consultant, Mr Salinder Salindera, and the nominee by video conference.

9. The Tribunal adjourned following the hearing to enable the applicant to provide additional evidence.

10. The Tribunal resumed for further hearing on 13 May 2021. Mr Tehreem again appeared before the Tribunal by video to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s business consultant, Mr Salindera, by video conference and from the nominee in person.

11. Mr Tehreem and Mr Salindera were located in Woolgoolga at the time of the hearings and the Tribunal Member in Brisbane (at least four and a half hours driving distance apart) and the Tribunal considered that a video hearing was appropriate in the circumstances and no objection was made to this mode of hearing. The audio and video connections were clear throughout the hearings and the Tribunal was satisfied that Mr Tehreem, Mr Salindera and the nominee were appropriately able to give evidence and present arguments throughout the hearing.

12. For the following reasons, the Tribunal has decided to affirm the decision under review to refuse the nomination.

    CONSIDERATION OF CLAIMS AND EVIDENCE

13. For the nomination application in relation to the applicant to be approved, the applicant must meet 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.

14. Although not considered by the delegate in his decision, as discussed with the applicant at hearing, for the nomination to be approved, all the requirements must be met, including, in addition to those considered by the delegate, r.5.19(4)(h) which was canvassed at length at hearing.

    The application is compliant: r.5.19(4)(a)

15. As at the date of the nomination application, r.5.19(4)(a) together with r.5.19(2) required that the application for approval must be in the approved form and must be accompanied by the prescribed fee (r.5.19(4)(a)(i)) and must also identify a need for the nominator to employ a paid employee to work in the position under their direct control (r.5.19(4)(a)(ii)).

16. Having regard to documentation in the file of the Department, the Tribunal is satisfied that the application was made on the relevant form. The application relates to a visa in a Direct Entry stream seeking to meet the requirements in the Regional Sponsored Migration Scheme and consequently no fee is payable (r.5.37(2)(a)). The requirements of r.5.19(2) and consequentially also r.5.19(4)(a)(i) are therefore satisfied.

17. As already noted, one of the requirements that the delegate was not satisfied was met was r.5.19(4)(a)(ii) because the delegate was not satisfied that the applicant had demonstrated a need for a paid employee. It is unclear whether this requirement is directed just at a statement to this effect or something of a more qualitative nature. The wording ‘identifies a need’ arguably suggests more is required to meet this criterion than simply a statement or declaration that there is such a need. ‘Identify’ is defined as ‘to recognise or establish as being a particular person or thing; attest or prove to be as claimed or asserted.’[1] On that view, which is consistent with that reflected in Departmental policy,[2] a decision maker would need to be satisfied there is a genuine need on the part of the nominator to employ someone in the nominated position.[3] However, it could alternatively be argued that r.5.19(4)(a) as a whole is directed towards requirements for the application form/process of a more administrative nature, such that r.5.19(4)(a)(ii) could be met by a simple statement or certification of need. Support for this view can also be found in the contrast between the wording of r.5.19(4)(a)(ii) and, for example, r.5.19(4)(h)(ii)(B) (for applications relating to positions in regional Australia), which requires that there be a genuine need for the nominator to employ a paid employee to work in the position under the nominator’s control – clearly requiring a qualitative assessment, and r.5.19(4)(d)(i), which requires satisfaction that the employee will be employed on a full-time basis in the position for at least two years. Given the uncertain scope of r.5.19(4)(a)(ii), and the requirement in relation to this application to also consider r.5.19(4)(h)(ii)(B), the Tribunal considers this issue is more appropriately considered under r.5.19(4)(h)(ii)(B).

    [1] Macquarie Dictionary online

    [2] PAM3: Migration Regulations – Divisions – Div 5.3 – General > Approval of nominated positions (employer nomination) > Part C - Criteria applicable to Direct Entry stream nominations > Need for a paid employee > Applicability and overview (reissued 12/05/17 – last reissue prior to 1 July 2017).

    [3] In Bharaj Construction Pty Ltd v MIBP [2016] FCCA 902 (Judge Barnes, 28 April 2016), the Court considered a similarly worded provision in respect of a pre-1 July 2012 RSMS nomination, i.e. “the employer nomination is made by an employer in respect of a need for a paid employee”. Whilst on the one hand r.5.19(4)(a)(ii) does not appear to impose a different requirement beyond emphasising the requirement for an applicant to identify the need (unlike the pre-1 July 2012 version of r.5.19(2)(a) and (4)(a)), the wording of the criteria does differ slightly and the Tribunal therefore exercise cautions in applying the reasoning of Bharaj to a post-1 July 2012 nomination as is currently being considered.

18. For the purposes of r.5.19(4)(a)(ii), the Tribunal considers that r.5.19(4)(a)(ii) is more directed to the administrative process, consistent with the requirements of r.5.19(4)(a) as a whole.

19. The Tribunal is satisfied that in nominating and naming the nominee and the nominated position and occupation in the nomination application, the applicant identified a need to employ a nominated employee in the position of Corporate Services Manager under the applicant’s control. Regulation 5.19(4)(a)(ii) is therefore satisfied.

20. Regulation 5.19(4)(a) is therefore met overall.

    Tasks of the position, genuine need for the position and training requirements: r.5.19(4)(h)

21. Mr Tehreem told the Tribunal that he has been in the service station and roadhouse business in rural New South Wales for approximately the last 12 years, having previously lived and worked in Sydney. He has an interest in 11 United Petroleum franchised service stations including three outlets at Glen Innes, Woolgoolga and Mullaway, New South Wales operated by the applicant of which he is the director. His interest in the other eight outlets is via other legal entities than the applicant. The Glen Innes location has been operated by the applicant for approximately eight or nine years, the Woolgoolga outlet for maybe about six months less than the Glen Innes outlet and the Mullaway outlet has been operated by the applicant since about a year after Glen Innes.

22. Regulation 5.19(4)(h) contains a number of alternative requirements. As the nominated position is located in Woolgoolga, New South Wales, and the postcode of 2456 is specified as regional in the relevant written instrument in force at the time the nomination application was made, IMMI 17/059,[4] r.5.19(4)(h)(ii) requires that:

    (a)  the position and nominator’s business is located in regional Australia (rr.5.19(4)(h)(ii)(A) and (E));

    (b)  there is a genuine need for the paid position under the nominator’s direct control (r.5.19(4)(h)(ii)(B));

    (c)   the position cannot be filled by an Australian citizen or permanent resident who is living in the same local area (r.5.19(4)(h)(ii)(C));

    (d)  the tasks of the position correspond to those of an occupation specified in the relevant legislative instrument (r.5.19(4)(h)(ii)(D)),

    (e)  a specified regional certifying body has advised the Minister about certain matters relating to the position (r.5.19(4)(h)(ii)(F)).

    Position and business located in regional Australia: rr.5.19(4)(h)(ii)(A) and (E)

    [4] The Tribunal notes that there is some uncertainty as to the applicable instrument given the most recent instrument IMMI 18/037 repealed previous instruments without any saving provisions and yet specifically states it only applies to applications made on or after 18 March 2018. In any event, for the purposes of this application the current instrument and its predecessors specify the postcode locality of 2456 as being regional.

23. The Tribunal is satisfied that the position and the nominator’s business are located in Woolgoolga, New South Wales, which, as already canvassed, given a postcode of 2456 is in regional Australia as specified in the relevant instrument.

24. Accordingly, the requirements in rr.5.19(4)(h)(ii)(A) and (E) are met.

    Genuine need to employ the nominee as a paid employee to work in the position under the nominator’s direct control: r.5.19(4)(h)(ii)(B)

    And

    The tasks of the position correspond to those of an occupation specified in the relevant legislative instrument: r.5.19(4)(h)(ii)(D)

25. As canvassed earlier in these Reasons, the delegate was not satisfied that the applicant had demonstrated a need for the nominated position in its business operation or the purposes of r.5.19(4)(a)(ii). However, for the reasons canvassed earlier in these Reasons, the Tribunal has concluded that whether there is a genuine need to employ a paid employee to work in the position under the nominator’s direct control is more properly considered under r.5.19(4)(h)(ii)(B).

26. Further, the Tribunal considers the question of whether there is a genuine need to employ the nominee as a paid employee to work in the position under the nominator’s direct control and whether the tasks of the position correspond to those of an occupation specified in the relevant legislative instrument require consideration of many of the same matters and considered both of these requirements together.

27. The applicant has nominated the position of Corporate Services Manager (ANZSCO 132111).

28. In considering whether the tasks to be performed in the position correspond to the tasks of an occupation specified by the Minister in an instrument in writing, the Tribunal has considered ANZSCO’s classification of the occupation of Corporate Services Manager (ANZSCO 132111) which states as follows:

    UNIT GROUP 1321 CORPORATE SERVICES MANAGERS

    CORPORATE SERVICES MANAGERS plan, organise, direct, control and coordinate the overall administration of organisations.

    Indicative Skill Level:
    In Australia and New Zealand:

    Most occupations in this unit group have a level of skill commensurate with a bachelor degree or higher qualification. At least five years of relevant experience may substitute for the formal qualification. In some instances relevant experience and/or on-the-job training may be required in addition to the formal qualification (ANZSCO Skill Level 1).

    Tasks Include:

    oproviding high level administrative, strategic planning and operational support, research and advice to senior management on administrative matters such as staff management, financial planning, facility management and information services

    odeveloping and managing the organisation's administrative, financial, physical and staff resources

    odeveloping and implementing administrative, financial and operational procedural statements and guidelines for use by staff in the organisation

    oanalysing complex resource management issues and initiatives that affect the organisation, and preparing associated reports, correspondence and submissions

    oproviding information and support for the preparation of financial reports and budgets

    oleading, managing and developing administrative staff to ensure smooth business operations and the provision of accurate and timely information

    orepresenting the organisation in negotiations, and at conventions, seminars, public hearings and forums, and promoting existing and new programs and policies

    Occupation:

    132111 Corporate Services Manager

    132111 CORPORATE SERVICES MANAGER

    Alternative Titles:
    Administration Manager
    Business Services Manager

    Plans, organises, directs, controls and coordinates the overall administration of an organisation.
    Skill Level: 1

29. The Tribunal has considered relevant documentary evidence provided by the applicant in relation to this issue as follows:

    (a)  Jobactive job advertisement closing 28 February 2018 for Corporate Services Manager with the description of the job as follows:

    Corporate Services Manager RAF Partners Pty Ltd is a medium sized business based throughout Northern NSW and QLD operating in the Retail Fuel Sector. As an organisation we own and operate 7 retail fuel terminals across the region and are constantly seeking new growth opportunities. As a result of organisational consolidation applications are invited for the position of Corporate Services Manager. Reporting to the Director, the position is full time and would require travel between terminals from a base in Woolgoolga. The Corporate Services Manager is responsible for managing the financial and administrative affairs of the company that consist of Financial Management, Business Planning, Project Management, Marketing and Communications, Resource Management and Organisation Risk Management. The role also provides advice and governance support. The successful applicant will hold a recognised management qualification and be able to demonstrate a breadth of experience and ability across all functions required of the role.

    (b)  Letter from nominee to applicant dated 25 January 2018 as follows:

    Application for Role of Corporate Services Manager

    Dear Management,

    Along with my enclosed resume I would like to express my genuine interest in the Corporate Services manager role within your business. I am an accomplished professional who brings a breadth of knowledge and skills with me; I believe my professional knowledge gained through my Bachelor of Business combined with my natural affinity and love of business will make me an ideal candidate for the role.

    I am not afraid to work hard and understand long hours of a reality of success. In my personal life I did not have a family yet and as such I believe I am not afraid to travel for work and embrace the opportunity to work in regional areas of your state. I understand y our businesses are spread geographically and I believe without any firm commitments tying me down I can offer my professional experience across your network as you require.

    I have both a Bachelor Degrees in Business and a number of technical certificates and have well established communication skills, strong fiscal and accounting literacy and excellent IT fluency. I genuinely believe I am the best possible candidate for your business and would sincerely appreciate the opportunity to interview with you subject to your satisfaction with my experience and qualifications detailed in my resume.

    (c)   Letter of offer from the applicant to the nominee dated 1 February 2018 as follows:

    We are pleased to offer you a full-time position in the role of Corporate Services Manager at Raf Partners Pty Ltd.

    Your role will commence at the time of your successful visa grant and will be available for a period of four years, 38 hours per week.

    You will reporting directly to myself, managing director of Raf Partners Pty Ltd and will be expected to travel between all operating sites along with our head office. We believe your skills and experience are an excellent match for our company.

    In this role, you will be required to perform the duties of a corporate services manager as defined in our position description summary attached.

    …

    (d)  Position Description summary attached to letter of offer – Job Description Corporate Services Manger ANZSCO 132111 as follows (unedited):

    The standard busines sponsor directly operates three retail fuel stations located within Coffs Harbour, Grafton and it’s flagship store at Glenn Innes along with operating several other sites by way of Partnership agreement throughout Queensland.

    The position is predominantly focused on the consolidation of the management requirements of the NSW Division and implementing further expansion plans throughout regional NSW.

    The nominee’s position includes 38 hours per week, with a base remuneration of $75,000 per annum.

    The salary being offered for the position is the same as would be offered for a local employee and reference has been given to the ABS salary date for Administrative and support staff, Hays recruitment salary guide and Job outlook data for ‘Other hospitality, retail and service manager’

    The position key duties include:-

    ·     Planning staffing levels including recruitment, interviewing, induction, rostering.

    ·     Providing direction to employees to practice organisations policies and procedures.

    ·     Developing and managing the organisation’s administrative, financial, physical and staff resources

    ·     Providing information and support for the preparation of financial reports and budgets to company accountants

    ·     Representing the organisation in negotiations and promoting existing business outlets

    ·     Providing high level administrative, strategic planning and operational support, research and advice to senior management on administration matters such as staff management, financial planning, facility management and information services

    ·     Identifying and securing future investment opportunities for expansion into additional outlets

    (e)  A letter from Mr Tehreem dated 6 January 2021 as follows:

    8a. Need for employee and local labour market shortages

    In 2018 my family and I relocated from regional NSW (Grafton) to Queensland. The decision came as a result of my ambition to continue to expand my United Petroleum Holdings, over the course of the past two years I have attempted to invest in and acquire several new outlets with a particular focus on regional Queensland such as Harvey Bay. As a result of the physical relocation and diversion of my skills and time to Queensland I noted that my NSW regional outlets were fledging without my managerial guidance.

    It is my view that our business requires the position of Corporate Services Manager to be fulfilled so as to ensure the outlets we have already acquired operate effectively whilst also having the professional and strategic capacity to expand our outlet holdings further throughout regional NSW. As a result of note being able to employ the nominee at the time of the nomination refusal the business sustained gradual losses from the absence of strong strategic management in the NSW division, particularly evidence in the forced sale of our outlet at Cessnock.

    The difficulties experienced by small business attempting to recruit and retain skilled staff have been significant; we advertised this position locally and received no responses from with the local labour market.

    (f)    Letter from Mr Gary Fry, Regional Development Australia, Northern Inland NSW dated 23 March 2021 as follows:

    The purpose of this document is to convey our support for the RSMS nomination by Raf Partners of Rupinder Suraj – nominated position: Corporate Services Manager.

    Regional Development Australia Norther Inland has advised the Australian Government on such matters for decades, as a Regional Certifying Body. In this case, the position was initially located in Grafton and the Northern Rivers region was consulted.

    Having considered supporting documentation and talked at length with the business owner, I concur that the nominated position of Corporate Services Manager is genuinely needed and that it could not be readily filed.

    It would certainly be difficult to find a qualified and experienced Corporate Services Manager in our region of NSW or in the North Coast of the State, where the petrol station chain extended to. I would also concur that it would be extremely difficult to attract somebody to relocate to Glen Innes from elsewhere for the nominated position. I am confident that the employer undertook recruitment efforts which were genuine and unsuccessful.

    Raf Partners Pty Ltd and the United Petroleum terminals under their operation are contributing to our communities by employing Australian citizens throughout their operations.

    We believe the appointments of a non-resident in the role of corporate services manager would not potentially be taking a job away from a local. From discussions with the employer, we understand that the appointment would allow the Directors to instead focus on further expanding their retail fuel outlets and in doing so, create additional jobs for Australians and contribute to economic activity within the regional market.

    In 2018 the company appropriately advertised the appointment and received limited responses. The company’s proposed nominee was selected as the only applicant possessing the required qualifications and experience and more over, willingness to live and travel throughout regional communities.

    (g)  Letter from Director of Development, Planning Glen Innes Severn Council dated 29 March 2021 as follows:

    Glen Innes United Petroleum Roadhouse is a well-known and convenient rest area for freight drivers and members of the local community alike. It operates 24 hours per day and contributes positively to driver fatigue management and provides essential fuel and retail services to the local community.

    The employment of a non-resident manager who possess Australian university qualifications and local experience may help the business continue to operate whilst also allowing the Directors to explore future growth opportunities.

    Council supports the Australian Government Migration Program to attract migrants to fill positions where no Australian workers are available, particularly in regional areas. The program provides an opportunity to provide skills and labour which can’t be sourced locally, as well as encouraging investment and promoting local spending in regional areas.

    Any business expansion by Raf Partners will create additional jobs for Australian employees and contribute to positive development in regional areas.

1. Mr Tehreem’s evidence to the Tribunal included as follows:

   (a)The applicant under his command has over 10 years’ experience in roadhouse and fuel services businesses. He has a lot of people who want to set up their own business in this area but not many have the skills necessary as he does. The applicant, of which he is the sole director and shareholder, operates three of these types of businesses. He has various interests in other legal entities with shareholding arrangements with other persons with essentially the arrangement being that he runs the businesses, based on his expertise and experience, and the other owners/investors live in Sydney or elsewhere.

   (b)When queried as to whether there is a need for someone in the position in circumstances where the application was first lodged in February 2018 and no-one has been doing the job since then, Mr Tehreem responded that the more business increases the more administrative work and compliance tasks increase and there are plenty of things that need to be done. He would split what he currently does between him and the nominee if the nominee is employed.

   (c)He himself lives between the Gold Coast and Brisbane.

   (d)When queried as to what his different roles are, and how he splits his time, across the 11 business, he said that each business has a site manager and staff working there. He oversees all the businesses.

   (e)There is a lot of work required for administration because auditing is required on a monthly basis. He sometimes seeks assistance from site managers and his wife and daughter also assist with this. Someone has to go through emails on a day-to-day basis and deal with any customer complaints. There are a lot of new developments in the franchise company, United Petroleum. There are three kinds of audits for them. He also has to do audits from his side assessing how the business is going, looking if they are losing money anywhere, whether there are staff issues etc.

   (f)The main things to be done by the nominee in the position are looking after the emails, with a lot of emails coming through from the franchisor every day, directing staff to perform some duties, paying bills and dealing with customer complaints.

   (g)Every site sells fuel, food and different items. The manager of each site (with one manager currently employed at each of the three sites) has to do a reconciliation on a daily basis and he has to put it into the software system. He has to seek some accounting assistance with this. Every night he has to do a couple of hours of entering this information into the system.

   (h)The position he is seeking to have the nominee fill (although identified in the nomination application as Corporate Services Manager) is identified on the applicant’s organisational chart as Group Facilities Manager. The position has never been filled before. It has been done by him, his wife and his daughter to date. It is a very hands-on day-to-day position dealing with emails, paying bills, dealing with customer complaints etc.

   (i)Every site has a site manager with three managers/operators as identified on the organisation chart for the applicant provided to the Tribunal. They are each full-time positions. The manager for each site has to be full time.

   (j)When queried as to how the nominee became known to him, Mr Tehreem said that he was known to him via Mr Salindera.

   (k)When queried as to whether he had any discussions with the nominee about being employed in the position pending approval of the nomination application, given his stated need for someone in the position, Mr Tehreem said that he did not have any such discussion, he cannot recall doing that. The Tribunal discussed with Mr Tehreem that it might have concerns as to whether there was a genuine need for someone to fill the nominated position in circumstances where it is submitted that need has existed since February 2018 and Mr Tehreem has not even canvassed with the proposed employee whether he could do the job, nor sought out any other assistance, in the interim. Mr Tehreem responded that he has been doing the job himself and his wife has been helping him but mostly it is done by him. The Tribunal indicated that it might continue to hold a concern about whether there is a genuine need in circumstances where the position has remained unfilled since 2018 and Mr Tehreem had not either canvassed the possibility that the nominee could work in the position pending the outcome of the visa process or explored other options.

   (l)As regards the 23 March 2021 letter from Regional Development Australia and the 29 March 2021 letter from the Glen Innes Severn Council, Mr Salindera arranged for those letters. He (Mr Tehreem) did not speak to anyone from those organisations.

2. Mr Salindera’s evidence to the Tribunal included as follows:

   (a)He is a business adviser for the applicant company.

   (b)The employment of the nominee would reduce the workload of Mr Tehreem. Mr Tehreem would be able to concentrate more on expansion of the business if the nominee could do some of the day-to-day duties that Mr Tehreem otherwise has to do.

   (c)He arranged for the advertising for the position of Corporate Services Manager for the applicant in January 2018. There were six or seven applicants for the job in addition to the nominee. There were mostly telephone interviews for them but then they found the nominee and he made the decision that he was a very suitable person for the job and from the type of community who had good working habits and would not just be thinking it was 10 minutes left when it was nearly 5 o’clock. He also took into account that the nominee would be answerable to his (Punjabi) community in the local area if he did not do the job well. He took all of those things into account.

   (d)He did the basic selection work and then discussed with Mr Tehreem that he found the person he was looking for and that he would take the responsibility that if the nominee was selected for the job, no complaints would be made.

   (e)He prepared the nomination application and had Mr Tehreem check it out and it was then submitted.

   (f)When queried as to why the nomination application for the nominee was submitted prior to the end of the job advertisement period, Mr Salindera responded that the other person who had applied at that time was over 50 years of age, did not want to move from the Gold Coast and was less mentally prepared to take the job.

   (g)After the first hearing, he spoke to Mr Fry at Regional Development Australia and the Glen Innes Severn Council to obtain the letters of 23 March 2021 and 29 March 2021. He provided the relevant documents (the advertisement and the documents from the nominee) and gave them a brief history of the company. When queried as to what he told them his role is in relation to the applicant, he responded that he told them that he is a consultant and assists in providing money but did not tell them that he was the owner of the business. The Tribunal noted that the letter from Mr Fry said that he talked at length with the business owner but that Mr Tehreem’s evidence was that he had not spoken with anyone from Regional Development Australia. Mr Salindera said he explained everything to Mr Fry. The Tribunal indicated its concern that Mr Fry says in his letter that he had spoken at length with the business owner but based on the evidence of Mr Tehreem and Mr Salindera, he did not speak with the business owner Mr Tehreem. Mr Salindera said that it was probably an assumption that Mr Fry made and there is not a great deal of difference between him as the business consultant and Mr Tehreem as the business owner. Mr Salindera said that his responsibility is to make sure that the businesses are running in the right format and that he and Mr Tehreem are basically talking on a daily basis and they discuss any problems that come along and that is what he discussed with Mr Fry, including about the difficulties in finding a suitable person for the business.

   (h)When queried as to whether the nominee had been requested to work in the business for the applicant pending the nomination application, Mr Salindera responded that he was not too keen for ‘my person, who is related to my people and his relatives are to me as well’, to leave his regular job in Brisbane until it was more secure for him to move from there and to live in the area as long as required. That was his decision morally for the nominee to stay in Brisbane in a job where he was earning money until he had certainty in relation to the job with the applicant. They did not realise it would take two years to come to this point.

   (i)When queried as to his understanding of the duties that the nominee would have to carry out in this role, he responded that he would do day-to-day reporting, prepare financials, do overall supervising and relieving and deal with any grievances from the public. However, mainly his job would be to do more of what Mr Tehreem is doing so that Mr Tehreem would be able to do more to expand the business and that Mr Tehreem would have ready-made reports on a daily and weekly basis (from the nominee).

   (j)He confirmed that at any one time, as stated by Mr Tehreem, there would be one to two staff on site at each of the Glen Innes, Woolgoolga and Mullaway sites. He said in particular at Glen Innes there would be more than one person on site because the Cook was based at Glen Innes.

   (k)The Tribunal discussed with Mr Salindera that one of the requirements for the nomination application to be approved is that the tasks of the position that has been nominated correspond to the nominated occupation of Corporate Services Manager having regard to the classification of that occupation in ANZSCO and its query as to how the tasks of the role described by Mr Tehreem, Mr Salindera and the nominee line up with the occupation of Corporate Services Manager. Mr Salindera responded that the nominee’s qualifications and experience fit the role. He said that the need is there because Mr Tehreem is under very high pressure and he cannot concentrate on that role fully, and it sometimes comes to him (Mr Salindera) to assist him. If the nominee is appointed, Mr Tehreem’s job is then to expand business further and create more employment and business in the regional area.

3. The nominee’s evidence to the Tribunal included as follows:

   (a)He is currently employed in Brisbane, Queensland and has been working with his employer in Brisbane since March 2015.

   (b)His intention would be to move from Brisbane to a regional area if the visa the subject of the nomination application is granted.

   (c)When initially asked if he has had an opportunity to discuss what the role would encompass, he said that he had discussed that and the role would mainly be to look after the emails and all the financial bills. It will be similar to his current job, inducting and training new people. That is his understanding.

   (d)When queried as to whether he understands he would have any role to play in terms of strategic planning, he said he did not think he would have that role in that job.

   (e)When queried as to whether he would have any role to play in terms of finances, he said that he would like to learn how to do finances. When asked what his understanding is of what his responsibility would be in relation to finances, he responded that he would definitely take care of the finances and look after all the bills and payments.

   (f)When queried whether he had had an opportunity to look at the main duties and responsibilities set out in the position description attached to the letter of offer, he said he had looked at that.

   (g)When queried as to his understanding of how his previous qualifications, skills and experience would assist him with the role, he stated that he finished his degree at university and said he had also done some courses about transport and logistics management.

   (h)He understands that his day-to-day duties would be hiring new staff and training, preparation of financial reports and sending all the budgets to the company accountant, ordering fuels and looking at new opportunities for fuel station outlets.

   (i)He became aware of the job when visiting relatives in Glen Innes. He emailed Mr Salindera to apply for the job and provided details of his previous qualifications and experience.

   (j)When queried as to whether it had been raised with him to do the job temporarily, pending the visa outcome, to assist the applicant, he responded that Mr Tehreem was doing the job. He said that he did discuss with Mr Salindera the option of moving to Glen Innes and doing the job in the meantime, but he remained in his job in Brisbane.

   (k)The Regional Development Australia and the Council understand that it is hard to get good staff in the regional area and that the applicant’s service station, including the Glen Innes one, are valuable parts of the community.

4. The Tribunal discussed with both Mr Tehreem and Mr Salindera its concern that, the tasks of the actual position that it is suggested the nominee would be occupying did not align with the tasks of a Corporate Services Manager. The Tribunal noted that the tasks of the occupation of Corporate Services Manager in ANZSCO included:

   ·     providing high level administrative, strategic planning and operational support, research and advice to senior management on administrative matters such as staff management, financial planning, facility management and information services

   ·     developing and managing the organisation's administrative, financial, physical and staff resources

   ·     developing and implementing administrative, financial and operational procedural statements and guidelines for use by staff in the organisation

   ·     analysing complex resource management issues and initiatives that affect the organisation, and preparing associated reports, correspondence and submissions

   ·     providing information and support for the preparation of financial reports and budgets

   ·     leading, managing and developing administrative staff to ensure smooth business operations and the provision of accurate and timely information

   ·     representing the organisation in negotiations, and at conventions, seminars, public hearings and forums, and promoting existing and new programs and policies

5. The Tribunal noted that those specified tasks suggested that the occupation of a Corporate Services Manager is a high-level specialised role which is a role that would normally be making strategic contributions to an organisation and significantly shaping a business’ direction and might be a position typically associated with organisations operating in a complex business environment with a significant number of staff resources and client commitments. The Tribunal noted that it accepted that some of the things the nominee might do may touch on some of the tasks specified for a Corporate Services Manager but it held a concern that the occupation nominated was not aligned with the role which is proposed by Mr Tehreem the nominee would do, which is a role which seems more to be a day-to-day operating role leaving Mr Tehreem free to do more strategic planning and take on bigger expansion plans. The Tribunal asked whether Mr Tehreem and Mr Salindera understood its concern and whether they wished to respond or provide further information. Mr Salindera responded that a Corporate Services Manager role is applicable to small and large businesses. He said that the applicant is of that size, and includes other businesses that Mr Tehreem is involved in. He said that the nominee is capable of providing day-to-day or weekly reports to management and is also capable of giving suggestions of what changes are needed to make the business more attractive and also, mainly, to be present there to answer any questions raised by the clients/public who use the facilities, such as e.g. ‘this food is cold – it is not up to standard’, ‘this petrol…’, ‘this is not working/that is not working’ etc. Those complaints can go directly to the nominee for him to try to rectify them. The nominee can also see from the financial reports what is needed, and can be trained to put the takings in to a spreadsheet. He is capable of doing that which will show straight away, for example, which section is performing well and which is not and that will help Mr Tehreem and Mr Salindera know what problems there are and how they can make everyone happier and can assist making the facility more useful and convenient and safer for the general public.

6. The Tribunal noted Mr Salindera’s response and said it does hold a concern that the role envisaged for the nominee is a lower level role than that of a Corporate Services Manager, and maybe is more at the level of a role like a Customer Services Manager or similar. The Tribunal indicated that based on the description in ANZSCO for Corporate Services Manager, it seems to be a role that is a much more complex role than is proposed for the nominee.

7. Mr Tehreem responded by saying that there is a lot of work to do and everything is becoming more delicate and challenging. It is more regulated and monitored. Surveillance is being increased. There is a lot of foot traffic coming in and people have a lot of different mentalities and they want everything to be perfect. He said you have to make sure you are staying on top of things and that communication is 100% with staff and customers. There is a lot more involved in day-to-day practices. It is getting a lot more complicated.

8. At the end of the hearing the Tribunal indicated it still held concerns about whether there was a genuine need for a Corporate Services Manager taking into account whether the nominated occupation aligns with the actual role. Mr Salindera responded that the current climate is very difficult. The applicant doesn’t have 200 or 400 people but the nominee can report on financial matters and give guidance to Mr Tehreem about what is needed to increase business and it is a lovely area for the nominee to be in and it will help the small business to increase efficiency, to employ more people and to create more jobs which is what the economy needs at this stage – a young person who can contribute to taxes and the community for another 30 years. He said that the nominee’s appointment would be a great help for Mr Tehreem to help to develop more higher level businesses and free up Mr Tehreem more to do that.

9. The Tribunal has regard to the evidence before it, principally the oral evidence at hearing, in relation to the need for someone to be employed in the nominated position and the tasks to be undertaken in the position. Notably, as discussed at hearing, no-one has been employed in the position between February 2018, the date of the application, to date.

10. The Tribunal discussed at hearing its concern that in circumstances where the applicant’s business has been able to continue, and expand, since February 2018, without the position being filled might suggest that there is not actually a need for the position to be filled. Mr Tehreem’s and Mr Salindera’s response to that concern included variously that Mr Tehreem’s wife and 16-year-old daughter have been assisting him in the meantime and that Mr Tehreem is working too many hours and needs assistance. The Tribunal accepts that Mr Tehreem’s wife and daughter have assisted, and do assist, him. However, having had regard to the evidence overall, and in particular the evidence in relation to the tasks of the nominated position, the Tribunal continued to hold a concern about a genuine need to employ the nominee as a paid employee to work in the position under the nominator’s direct control and whether the tasks of the position correspond to those of the nomination occupation Corporate Services Manager.

1. The Tribunal has had regard to the position description attached to the nominee’s letter of offer. Notably, the duties in that position description largely mirror the tasks in ANZSCO for a Corporate Services Manager. As regards the actual tasks contemplated for the nominated position, the Tribunal placed more weight on the spontaneous oral evidence of Mr Tehreem, Mr Salindera and the nominee as to the proposed tasks for the nominated position rather than on listed tasks in a position description which are clearly based on the ANZSCO description. Based on the oral evidence, the Tribunal is not satisfied that the tasks to be performed in the position sought to be filled by the nominee correspond to the tasks of the occupation of Corporate Services Manager as described in ANZSCO. To the extent that there were specific tasks identified to be undertaken in the position by Mr Tehreem, Mr Salindera and the nominee in evidence, the tasks were identified as being in the nature of administrative tasks such as answering emails, including from the franchisor, and paying bills etc, dealing with customer complaints, passing on feedback to Mr Tehreem, and not the higher level tasks specified in ANZSCO for a Corporate Services Manager. At best, based on the oral evidence, the tasks of the nominated position only in part correspond to the occupation of Corporate Services Manager. In this regard, the Tribunal accepts that it is envisaged that some part of the role will include providing information and support for the preparation of financial reports and budgets and leading, managing and developing administrative staff to ensure smooth business operations and the provision of accurate and timely information. However there was no suggestion in the evidence of Mr Tehreem, Mr Salindera or the nominee that in filling the nominated position the nominee would be undertaking tasks such as:

   ·     providing high-level administrative, strategic and operational support, development and managing the organisation’s resources,

   ·     developing and implementing procedural statements and guidelines,

   ·     analysing complex resource management issues and initiatives, or

   ·     representing the organisation in negotiations, and at conventions, seminars, public hearings and forums, and promoting existing and new programs and policies.

2. Rather, it seems that what is sought in the nominated position is for someone to attend to lower level administrative tasks. The Tribunal recognises that Mr Tehreem’s obligations are significant, including in addition to the three outlets owned by the applicant, operating eight additional businesses in which he has part interests through other legal entities and that he may have a need for someone to assist him to free up his time for more strategic business matters and to give him more free time and family time. However, it does not necessarily follow that that need is for a Corporate Services Manager or that the tasks to be performed in the proposed position correspond to the tasks of Corporate Services Manager having regard to ANZSCO’s classification of that occupation.

3. The Tribunal discussed at hearing that the nomination application indicates that the applicant has 12 employees, three of whom on Mr Tehreem’s evidence are full-time managers, one at each of the sites. The Tribunal raised a concern with Mr Tehreem at hearing that the wages disclosed in the financial statements for the business, of $143,724 in the 2018 financial year and $132,363.67 in the 2019 financial year, do not seem consistent with a level of 12 employees including three full-time employees on salaries of approximately $50,000 per annum each, but rather is indicative of lower staffing levels. The Tribunal accepts, as explained by Mr Tehreem at hearing, that sometimes one of the managers might be unavailable or overseas during those periods such that he or one of his family members filled in, resulting in a lower wages cost than might otherwise be the case. Nonetheless, given the reported wages and the oral evidence that there are one to two staff members on site at each of the three outlets at any time, the Tribunal concluded that the staff numbers of the applicant are relatively low.

4. The Tribunal has also taken into account the 23 March 2021 letter from Regional Development Australia and the 29 March 2021 letter from the Glen Innes Severn Council. The letter from Regional Development Australia refers to Mr Fry having spoken with the business owner at length. As canvassed at hearing, it was Mr Salindera rather than Mr Tehreem to whom Mr Fry spoke. However, as was clear given his evidence at the hearings, the Tribunal is satisfied that Mr Salindera as business adviser for the applicant is fully familiar with the applicant’s business and circumstances and places no adverse weight on Mr Fry’s description of Mr Salindera as the business owner. The Tribunal has taken into account these letters as regards whether there is a genuine need to employ the nominee as a paid employee to work in the position under the nominator’s direct control as required by r.5.19(4)(h)(ii)(B). However, consistent with the Federal Circuit Court of Australia, in the matter of Bharaj Construction Pty Ltd v MIBP (No. 3) [2019] assessment or certification by a regional authority of this nature is not sufficient or determinative of whether a requirement such as 5.19(4)(h)(ii)(B) is met and the Tribunal must perform its own assessment, having regard to such an assessment and certification, as well as other relevant matters.

5. Having considered all of the evidence, including the oral evidence, when the relatively small number of staff employed by the applicant is considered in conjunction with the evidence regarding the duties to be performed in the position, on balance the Tribunal is not satisfied that the applicant has demonstrated a genuine need to employ a person as a Corporate Services Manager. Rather, based on the evidence, it appears that the role it is envisaged the nominee would fill is one where the predominant tasks would be of an administrative and day-to-day nature dealing with emails, paying bills, giving feedback to Mr Tehreem and dealing with customer complaints. The Tribunal is similarly not satisfied that the tasks to be performed in the position correspond to the tasks of Corporate Services Manager as specified in ANZSCO.

6. Accordingly, for the reasons outlined above, the Tribunal is not satisfied that the requirements of r.5.19(4)(h)(ii)(B) or r.5.19(4)(h)(ii)(D) are met as required.

   Conclusion

7. The Tribunal accepts all of the matters raised by Mr Tehreem and Mr Salindera including of the need for someone to assist Mr Tehreem, of the difficulty of obtaining staff in regional areas, of the importance of the applicant’s businesses to the community, of the need to create more jobs for the economy and of the value of employing young people who can contribute to taxes and the community for many decades. However, the issues for determination by the Tribunal are not in relation to any of those matters, but rather whether there is a genuine need to employ the nominee as a paid employee to work in the position under the nominator’s direct control and whether the tasks of the position correspond to those of an occupation specified in the relevant legislative instrument. For the reasons given above, the Tribunal is not satisfied that the applicant meets r.5.19(4)(h)(ii)(B) and r.5.19(4)(h)(ii)(D) as required. Regulation 5.19(4)(h) is therefore not met overall. As r.5.19(4)(h) is not met, it is therefore not necessary to consider any of the other requirements of r.5.19(4). The nomination cannot be approved in the Direct Entry stream.

8. 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

9. The Tribunal affirms the decision under review to refuse the nomination.

   Susan Trotter
   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)       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).