Ramandeep Kaur (Migration)
[2020] AATA 4044
•28 September 2020
Ramandeep Kaur (Migration) [2020] AATA 4044 (28 September 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT: Ramandeep Kaur
CASE NUMBER: 1801172
HOME AFFAIRS REFERENCE(S): BCC2016/1883126
MEMBER:Glenn O'Brien
DATE:28 September 2020
PLACE OF DECISION: Brisbane
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.
Statement made on 28 September 2020 at 8:08am
CATCHWORDS
MIGRATION – application for approval of nomination of position – direct entry stream – genuine need for position – nominee and director related by marriage – director on maternity leave relies on nominee for day-to-day management – tasks of position compared to ANZSCO description – decision under review set asideLEGISLATION
Migration Regulations 1994 (Cth), r 5.19(4)(h)(ii)(D)CASES
Cargo First Pty Ltd v MIBP [2016] FCA 30
Lakash Supermarket Pty Ltd (Migration) [2019] AATA 2287STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW
This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 2 January 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).
The applicant applied for approval on 30 May 2016. 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 applicant provided the Tribunal a copy of the delegate’s reasons for decision with the application for review. The delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19(4)(h)(ii)(D) of the Regulations because the delegate was not satisfied the tasks to be performed by the nominee in the nominated position correspond to the tasks of the occupation of Retail Manager (General).
The applicant appeared before the Tribunal on 10 June 2020 via telephone to give evidence and present arguments.
The applicant was represented in relation to the review by its registered migration agent.
For the following reasons, the Tribunal has decided to set aside the decision under review and substitute a decision approving the nomination.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant meets the requirements for approval of the nomination under the Direct Entry nomination stream set out in 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.
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). The application must also identify a need for the nominator to employ a paid employee to work in the position under their direct control.
On the basis of the evidence before the Tribunal, the Tribunal is satisfied the nomination application was made using the relevant on-line form. Consistent with r.5.37(2)(a) of the Regulations there is no fee payable in respect of a nomination where the position is located in regional Australia. In completing the application, the required certification in relation to s.245AR(1) of the Act and the required identification of a need to employ a paid employee to work in the nominated position under the nominator’s control was provided in the application form.
Accordingly, the requirement in r.5.19(4)(a) is met.
Nominator is actively and lawfully operating a business in Australia: r.5.19(4)(b)
Regulation 5.19(4)(b) requires that the applicant is actively, lawfully and directly operating a business in Australia.
At the time of lodgement of the application the applicant owned and operated the Tinana Grocer (ABN 94 870 568 122) in Gympie, Queensland which commenced trading on 18 May 2015. The applicant entered into a Licence Agreement with Four Square Stores (QLD) Ltd on 26 May 2015 (the Agreement) which is a licence agreement rather than a franchise agreement.
The applicant has provided various documents including personal taxation returns, sales records, and other business records which indicate to the Tribunal the business is actively and lawfully operating.
Accordingly, the requirement in r.5.19(4)(b) is met.
Position is not labour-hire: r.5.19(4)(c)
Regulation 5.19(4)(c) applies to nominators whose business activities include those relating to labour hire to an unrelated business. In these cases, the nominated position must be within the business activities of the nominator.
The Tribunal has considered the employment contract between the applicant and the nominee initially made on 10 May 2016. The applicant told the Tribunal the nominee initially worked part-time and commenced full-time employment in August 2017. The contract provides for the nominee’s direct employment by the applicant in the role of Retail Manager.
Accordingly, the requirement in r.5.19(4)(c) does not apply.
Term of employment of the visa holder: r.5.19(4)(d)
Regulation 5.19(4)(d) requires the nominee to be employed in the nominated position for at least 2 years full time, and the terms and conditions of that employment do not expressly exclude the possibility of an extension.
The Tribunal had regard to the evidence of the applicant indicated the applicant will be employed for a minimum of two years after the date of the grant of his Subclass 187 visa. Further, the Tribunal had regard to the financial records provided to the Tribunal and the revenue generated since 2015. The Tribunal is satisfied that there is no information before the Tribunal that the applicant would not be in a financial position to employee the nominee for at least two years.
Accordingly, the requirement in r.5.19(4)(d) is met.
No less favourable terms and conditions of employment: r.5.19(4)(e)
Regulation 5.19(4)(e) requires that the terms and conditions of employment applicable to the nominated position will be no less favourable than those that are, or would be, provided to an Australian citizen or permanent resident performing equivalent work in the same workplace at the same location.
The applicant told the Tribunal the nominee’s current salary was increased to AUD54,000 per annum. The applicant provided to the Tribunal evidence of market research which indicated a market salary range of between AUD45,000 and AUD58,718.
Having regard to documentation provided, the Tribunal is satisfied that the terms and conditions of employment will be no less favourable than those that would be provided to an Australian citizen or permanent resident performing equivalent work in the same workplace at the same location.
Accordingly, the requirements of r.5.19(4)(e) are met.
No adverse information known to Immigration: r.5.19(4)(f)
Regulation 5.19(4)(f) requires that there is no adverse information known to Immigration about the nominator or person associated with the nominator; or it is reasonable to disregard any such information. For these purposes, ‘adverse information’ and ‘associated with’ have the meaning given in rr.1.13A and 1.13B.
There is no information before the Tribunal to indicate there is any adverse information known to the Department about the nominator of person associated with the nominator.
Accordingly, the requirements of r.5.19(4)(f) are met.
Satisfactory compliance with workplace relations laws: r.5.19(4)(g)
Regulation 5.19(4)(g) requires that the applicant has a satisfactory record of compliance with the laws of the Commonwealth, and of each State or Territory in which the applicant operates a business and employs employees in the business, relating to workplace relations.
There is no evidence before the Tribunal to suggest that the applicant does not have a satisfactory record of compliance with workplace relations laws in Australia.
Accordingly, the requirements of r.5.19(4)(g) are met.
Tasks of the position, genuine need for the position and training requirements r.5.19(4)(h)
Regulation 5.19(4)(h) contains a number of alternative requirements. These are set out in detail in the attachment to the decision but can be briefly summarised as requiring either that:
·the tasks to be performed in the position will be performed in Australia and correspond to those of an occupation specified by the Minister the occupation is applicable to the proposed employee in accordance with any specifications made in that instrument, and specified training requirements are met; or
·the position and nominator’s business is located in regional Australia, there is a genuine need for the paid position under the nominator’s direct control which cannot be filled by a locally resident Australian citizen or permanent resident, the tasks of the position correspond to those of an occupation specified in the relevant legislative instrument, the occupation is applicable to the proposed employee in accordance with the specification of the occupation and that a regional certifying body has advised the Minister about certain matters relating to the position.
The nominated position of Retail Manager is located in Gympie, Queensland. The application was lodged on 30 May 2016. The term ‘regional Australia’ was defined in r.5.19(7) of the Regulations to mean a part of Australia specified by the Minister in an instrument in writing for this definition. Although IMMI 17/059 was repealed by the current legislative instrument IMMI 18/037, the current legislative instrument only applies to nominations lodged on or after 18 March 2020.
In those circumstances, the Tribunal is satisfied that both the position and the business operated by the applicant are located in regional Australia and the requirements in r.5.19(4)(h)(ii)(A) are r.5.19(4)(h)(ii)(E) are met.
The nominated position of Retail Manager (General) is in the Unit Group 1421 ‘Retail Managers’. The ANZSCO sets out indicative skill level and task for the position as follows:
UNIT GROUP 1421 RETAIL MANAGERS
RETAIL MANAGERS organise and control operations of establishments which provide retail services.
Indicative Skill Level:
Most occupations in this unit group have a level of skill commensurate with the qualifications and experience outlined below.
In Australia:
AQF Associate Degree, Advanced Diploma or Diploma (ANZCO Skill Level 2)
…
At least three years of relevant experience may substitute for the formal qualifications listed above. In some instances, relevant experience and/or on-the-job training may be required in addition to the formal qualification.
Registration or licencing may be required.
Tasks include:
· Determining product mix, stock levels and service standards
· Formulating and implementing purchasing and marketing policies, and setting prices
· Promoting and advertising the establishments goods and services
· Selling goods and services to customers and advising them on product use
· Maintaining records of stock levels and financial transactions
· Undertaking budgeting for the establishment
· Controlling selection, training and supervision of staff
· Ensuring compliance with occupational health and safety regulations
The applicant’s registered migration agent has provided the Tribunal with a number of written submissions, particularly those dated 20 December 2019 and 9 June 2020 addressing this criterion.
The Tribunal considered the genuineness of the position associated with the nominated position. In Cargo First Pty Ltd v MIBP [2016] FCA 30, the Court upheld (at [34]) the Tribunal’s approach of qualitatively assessing the position comparing this with the occupation nominated in order to determine it was genuine.
The Tribunal was concerned in relation to the relationship between the applicant and the nominee. The applicant told the Tribunal that she met the nominee when they worked together in McDonalds at Moree.
The applicant told the Tribunal that she purchased the subject business in 2015. The applicant and her partner were married and had their first child in 2017. The applicant however applied to sponsor the nominee in May 2016 shortly after acquiring the business and he relocated to Gympie and worked part-time in the business. The nominee is married to the applicant’s husband’s sister and described him as her brother-in-law.
While the relationship is not of itself a basis for affirming the decision, it is a factor in considering the genuineness of the position. The applicant told the Tribunal that she is a sole trader and owner of the business and currently has minimal involvement in the business. Notably, at the time of assessing the application the applicant was a full-time carer of her first child, however she told the Tribunal that following return from her maternity leave she has been working full-time as a shift supervisor at McDonalds in Maryborough. The applicant however has since had another child shortly before the hearing and relies on the nominee to undertake the day-to-day management of the business.
The applicant’s registered migration agent directed the Tribunal to the decision of the Tribunal in Lakash Supermarket Pty Ltd (Migration) [2019] AATA 2287 (Lakash). The Tribunal is not bound by that decision and considers the current application for review on its merits. Notably however in that case the nominator while being an owner and sole director was domiciled in the United Kingdom. In this case the applicant resides in close proximity to the business and the degree of autonomy of the nominee in Lakash (as found by the Tribunal) given the domicile of the applicant offshore is not relevant to the current application under review albeit the applicant told the Tribunal she was not generally present in the store.
As noted previously the applicant has entered into an Agreement to use the Friendly Grocer brand. Notably, cl.13 of the Agreement provides “[N]ormal Shelf Prices as shown in the Friendly Grocer Shelf Price Book are ‘recommended prices only’ and there is no obligation on the Retailer to comply with the recommendation”. Other than weekly promotional items the store is free to set its own pricing and source products independently.
On the basis of the documentation before the Tribunal and the applicant’s evidence the Tribunal is satisfied that the nominee undertakes various tasks including:
a.Formulating and implementing purchasing and marketing policies and setting prices. The applicant told the Tribunal the nominee is responsible for ensuring the price fore advertised products are followed and reflected in store and sets prices on other products which are independently sourced. The applicant provided to the Tribunal documents evidencing the nominee generates reports evaluating sales, prices and products in order to make adjustments.
b.Promoting and advertising the establishments goods and services. The applicant has provided examples of independent advertising and marketing locally outside the Friendly Grocer Group advertised promotions including local store promotions, social media, and promotional flyers for which the applicant has responsibility.
c.Selling products to customers and advising them on product use. The applicant provided to the Tribunal a selection of signage and promotions as well as extracts from various social media outlets indicating to the Tribunal the nominee is involved in these tasks at the requisite level.
d.Maintaining records of stock and financial transactions. The Tribunal has reviewed the financial records and reports provided by the applicant in addition to letters from suppliers including Burton’s Fraser Coast Milk, ACB Suncity, and Bundy Juice evidencing that suppliers deal directly with the nominee in relation to stock and payment.
e.Budgeting. While the applicant as the owner of the business has involvement in the budgeting in accordance with her obligations as sole trader and owner, the nominee prepares weekly and monthly reports for sales. These reports are utilised by the nominee for the purposes of undertaking promotions and stock selection.
f.Selection, training and supervision of staff. The documentation indicates to the Tribunal the nominee is the point of contact from various recruitment agencies and the training records maintained by the applicant indicate the nominee provides ongoing on the job training to staff.
g.Ensuring compliance with occupational health and safety regulations. While the Tribunal considers this the responsibility of all employees, notably the nominee has authority to arrange maintenance repairs, pest control, and has more recently completed a Covid Safe Work Certificate from TAFE Qld.
While the Tribunal held initial concerns as to the genuineness of the position, given the nominee’s relationship with the applicant, the Tribunal has balanced these issues with a qualitative assessment of the actual tasks of the position. Based on the evidence before the Tribunal and having regard to the tasks of a Retail Manager (General) as set out in ANZCO, the Tribunal is satisfied that the tasks of the nominated position with the applicant correspond to the specified occupation of Retail Manager (General) ANZCO 142111 and that this is specified as a Skill Level 2 position.
Accordingly, the requirements of r.5.19(4)(h) are met.
Based on the findings above, the Tribunal is satisfied that the applicant meets the requirements of r.5.19 for approval of the nomination of the position in Australia.
DECISION
The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.
Glenn O'Brien
MemberATTACHMENT - 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).
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
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Statutory Interpretation
Legal Concepts
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Judicial Review
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Procedural Fairness
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Statutory Construction
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Jurisdiction
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