RASLEEN PTY LTD (Migration)

RASLEEN PTY LTD (Migration) [2021] AATA 2461 (29 June 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  RASLEEN PTY LTD
CASE NUMBER:  1823515
HOME AFFAIRS REFERENCE(S):          BCC2016/4333290
MEMBER:Karen McNamara
DATE:29 June 2021
PLACE OF DECISION:  Sydney
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Statement made on 29 June 2021 at 11:14am

CATCHWORDS
MIGRATION – approval of a nomination – position of Retail Manager – financial capacity to employ the nominee for at least two years – genuine need for the employment – applicant’s prior knowledge of the nominee – nominee paid in cash – superannuation payments – actively and lawfully operating a business in Australia – updated financial information – terms and conditions of employment no less favourable – relevant qualifications – decision under review set aside
LEGISLATION
Fair Work Act
Migration Act 1958, ss 245, 359
Migration Regulations 1994, rr 1.13, 5.19, 5.37
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 9 August 2018 to reject the application by Rasleen Pty Ltd (the applicant) 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 22 December 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 delegate refused the application on the basis the applicant’s nomination did not satisfy 5.19(4)(d)(i) of the Regulations because the delegate found that the business failed to demonstrate that it had the financial capacity to employ the nominee for at least two years.
The applicant applied to the Tribunal on 14 August 2018 for review of the delegate’s decision. The applicant submitted a copy of the primary decision record with the review application
On 26 May 2021, the applicant represented by Mrs Manpreet Kaur (referred to below as the applicant) appeared before the Tribunal via telephone, to give evidence and present arguments. The Tribunal also received oral evidence from Mr Parminder Singh (the nominee) in the related matter for the subclass 187 visa (AAT Case file 1826982). The related matters were heard concurrently in a combined hearing. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.
The Tribunal exercised its discretion to hold the hearing by telephone. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant and nominee. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone. The Tribunal is satisfied that the applicant and nominee were given a fair opportunity to give evidence and present arguments.
The applicant was represented in relation to the review by its registered migration agent. The representative attended the Tribunal hearing.
Non-Disclosure Certificate (s.375A of the Act) – Invitation to comment
At the hearing the Tribunal told the applicant that a non-disclosure certificate has been issued pursuant to s.375A of the Migration Act 1958 (the Act) in relation to certain material which is on the Department’s case file.
The Department has sought to restrict the disclosure of information on the Department’s file. The reason stated for non-disclosure is that to disclose the information would be contrary to public interest because it discloses Department internal investigation planning and lawful methods used for detecting breaches of the law. Disclosing lawful methods would be likely to prejudice the effectiveness of those methods.
The Tribunal considers that the s.375A certificate is valid and provided the applicant with particulars of the information to enable them to comment on the validity of the certificate and whether the information should be released.
The applicant accepted that the certificate is valid and did not request the information to be released.
A second hearing was held on 17 June 2021. Appearing before the Tribunal was the applicant, Mrs Manpreet Kaur and the nominee Mr Parminder Singh. The hearing was conducted via telephone with the assistance of an interpreter in the Punjabi and English languages.
The Tribunal invited the applicant and nominee to attend a second hearing on 17 June 2021, to afford them the opportunity to be heard in relation to issues arising in the review. In accordance with s.359AA of the Migration Act, at the hearing of 17 June 2021, the Tribunal put to the applicant and nominee information before the Tribunal that suggested there is not a genuine need for the nominator to employ a paid employee to work in the position under the nominator’s direct control.
ADVERSE INFORMATION – Invitation to comment:
The Tribunal explained that under s.359AA of the Migration Act, the Tribunal is required to invite the applicant to comment on or respond to certain information which the Tribunal considers would, subject to the applicant’s comment or response, be the reason, or part of the reason, for affirming that decision under review.
The Tribunal divided the information into separate sections and provided the applicant the opportunity to comment at the end of each section. The Tribunal advised the applicant that they could respond to the information straight away or request additional time to respond to the information, in which the Tribunal will then consider any request for additional time.
Regarding the first section of information, the Tribunal told the applicant particulars of the information that being as follows;
·At the hearing on 26 May 2021 you told the Tribunal that you first met the nominee Mr Parminder Singh when you purchased the business and he was already working in the business. You told the Tribunal that you purchased the business in 2018.
·Information before the Tribunal including the employment agreement dated 14 November 2016 (Manpreet Kaur is a witness), National Police Certificates issued to Mr Parminder Singh ( 27 July 2016) and secondary applicant subclass 187 visa applicant Sumanpreet Kaur Mahal (27 June 2016), and their child Aavin Singh’s birth certificate record Mr Singh and Ms Mahal’s residential address is the same address listed for yourself on ASIC records[1].
·Organisation chart provided to the Department with the application that shows you working in the business as a console operator (application lodged 22 December 2016).
·This information suggests to the Tribunal that contrary to the evidence you provided to the Tribunal during the hearing, that you knew Mr Singh prior to your purchase of the business.
This information suggests that you misled the Tribunal and therefore I may form the view that this casts doubt on your credibility as a witness and may lead me to not accept your evidence that the position is genuine and that I may form the view that the position has been created to facilitate the stay of the nominee.
[1] At the hearing the actual address was provided. The Tribunal has chosen not to disclose the applicant’s residential address in this decision.
The Tribunal told the applicant that this information is relevant because Regulation 5.19(4)(h)(ii)(B) requires that there is a genuine need for the nominator to employ a paid employee to work in the position under the nominator’s direct control. If the Tribunal relies on this information it may not be satisfied the applicant meets the requirements of regulation 5.19(4)(h)(ii)(B) and as such the Tribunal may then find that that the applicant does not meet the requirements for approval of the nomination and the decision under review may be affirmed.
The Tribunal invited the applicant to comment on this information. The applicant requested 14 days to respond in writing to which the Tribunal asked why. The applicant then chose to respond orally and told the Tribunal that Mr Singh is her brother in law and that the reason they had not disclosed their relationship is because Mr Singh was scared that the relationship would affect his visa application.
The Tribunal told the applicant particulars of the second section of information, that being;
The Tribunal also notes that you told the Tribunal that you pay the nominee in cash and that the non-payment of superannuation until 7 May 2021 was due to a miscommunication with your accountant.
From the evidence you have provided I may form the view;
1.There is no evidence to support that these payments have been met by the business in so far as there is no evidence of the source of the cash and the source of the $15,946.39 paid to the ATO as Superannuation guarantee on 7 May 2021.
2.There is no evidence to support that superannuation has been paid into Mr Singh’s superannuation account (Host Plus).
3.There is no persuasive evidence to support that the business has been paying Mr Singh a regular wage and that the lump sum superannuation payment was not an attempt to further the merits of the permanent residency employer nomination subclass 187 visa review before the Tribunal.
The Tribunal told the applicant that this information is relevant because Regulation 5.19(4)(D)(i) requires that the employee will be employed on a full time basis in the position for at least 2 years. If the Tribunal relies on this information, together with other evidence before it, it may not be satisfied under 5.19(4)(D)(i) that the business has the financial capacity to pay the nominated salary to the employee for at least 2 years and as such the Tribunal may then find that you do not meet the requirements for approval of the nomination and the decision under review may be affirmed.
The Tribunal invited the applicant to comment on this information. The applicant chose to respond orally and told the Tribunal that she had been paying superannuation and could provide evidence from her accountant to support the superannuation payments and evidence to support the business paying the nominee in cash. The Tribunal granted the applicant until the 24 June 2021 (7 days) to provide said evidence and a written response to the aforementioned information.
On 24 June 2021, the applicant provided a written response to the Tribunal as follows;
‘Honourable Member
I refer to the hearings held on 26 May 2021 and on 17 June 2021. In response to the question whether I knew the nominee Mr Parminder Singh, I had given an incorrect answer. I reiterate what I had said in my evidence on 17 June 2021. Parminder Singh is my brother-in-law. He was hired as a Retail Manager in 2016 by Mr. Jamail Singh the director of Rasleen Pty Ltd at that time to manage his business running under the business name Cowra Supermarket. In 2018 Mr. Jamail Singh decided to sell the business. He told Parminder of his intentions to sell the business. He also informed Parminder that it would be up to the next business owner whether to continue with his sponsorship application. This scared Parminder. He had been working there for more than 2 years and was looking forward to getting his PR and getting settled in Australia. He could foresee this coming to an end. He approached me with a proposal that I takeover the business. This would ensure that his sponsorship application would remain active. In return I would make some money from the business without much effort as Parminder was managing the business independently. This being a mutually beneficial proposal, I agreed to it. However, he told me not to disclose our relationship to anybody as according to him, his friends had told him that if there is any relationship between the owner of the business and the nominee, the application for sponsorship fails. I was uncomfortable with this but decided to go along for his sake. When this question came up during the hearing on 26 May 2021, I withheld that information from you.
I understand and acknowledge that it was a wrong thing to do. I regret my behaviour and apologise for that. I am a law-abiding Australian citizen and assure you against the recurrence of this behaviour. I take this opportunity to assure you that the aim of this sponsorship application was not to get a PR for Parminder. He was genuinely hired by the previous owner and has been performing his job diligently. I stepped in just to save his career and the application. In the hindsight, I realise I should have advised Parminder against concealing our relationship and arguing that just because we are related does not render this sponsorship application non genuine.
In response to your query regarding the source of cash which is used to pay wages, I wish to submit that a significant portion of our sales is cash sales. We generate sufficient cash to pay wages. I have attached cash receipts of sales for a few random days which will give you an idea of the quantum of cash sales.
I have also attached the evidence of payment of superannuation to Parminder Singh. This payment was done through card.
I hope this will address your queries.’[2]
[2] Transcribed as prepared and submitted by the applicant
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.
Background
The applicant owns and operates a small independent supermarket located at Cowra NSW. The current owner/Director purchased the entity Rasleen Pty Ltd which trades as Cowra Supermarket in October 2018.
On 22 December 2016, the applicant lodged an application for an employer nomination approval for the position of Retail Manager (ANZSCO 142111) under the Regional Sponsored Migration Direct Entry stream. The nominated base rate and guaranteed earnings is $52,000 per annum.
The Tribunal notes that numerous evidence and submissions were lodged by or on behalf of the applicant. While the Tribunal has considered all of same, only that which was considered material to its decision has been expressly referred to herein.
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.
Based on the material in the Department’s file, the Tribunal is satisfied that the application was made on the approved form. As the position is located in regional Australia, no fee is payable (r5.37(2)(a)). The application also included written certification relating to conduct that contravenes s.245AR(1) of the Migration Act 1958, declared and signed by the applicant. Accordingly, the requirements of r.5.19(4)(a)(i) are met.
In considering whether the application for approval identifies a need for the nominator to employ a paid employee to work in the position under the nominator’s direct control, the Tribunal has had regard to the evidence before it, including written submissions and the oral evidence received at the hearing by Ms Manpreet Kaur. In support of the need for the position, the applicant has provided evidence in the form of a Business Plan dated 11 November 2016, statement by the applicant (undated submitted on 9 February 2021) and oral evidence provided at the hearings on 26 May 2021 and 17 June 2021.
The applicant told the Tribunal, the need to employ a paid employee to work in the nominated position is essential to the operational and business needs of the supermarket. The owner of the business resides in Sydney (approximately 380 kms distance from Cowra) and requires the nominee to manage the business on her behalf. Evidence before the Tribunal shows that the nominee was working in the position prior to the sale of the business by the former owner. The applicant and nominee provided evidence that the applicant purchased the business as an investment and a means for allowing the nominee to continue his employment and application for a subclass 187 visa.
Whilst the Tribunal is mindful of the motivation for the applicant’s purchase of the business, on balance the Tribunal recognises that the applicant is reliant upon employing a paid employee to manage the business on her behalf and that the nominee was working in the nominated position approximately two years before the applicant purchased the business.
Accordingly, the requirements in r5.19(4)(a)(ii) are met.
As the criteria in both r.5.19(4)(a)(i) and (ii) are satisfied, accordingly the requirements in r.5.19(4)(a) are 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.
The Tribunal accepts on the evidence before it that the applicant owns a supermarket located at Cowra, NSW. Based on the material provided to the Tribunal, including; financial statements, BAS returns, ASIC details, payroll records, and workers compensation policy details, the Tribunal is satisfied the applicant is actively and lawfully operating a retail business in Australia and directly operates that business.
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.
There is no evidence before the Tribunal to suggest that the applicant’s business is involved in labour hire.
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 delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19(4)(d) of the Regulations because the delegate was not satisfied that the application demonstrated that the business had the financial capacity to employ the nominee on a full time basis for at least two years.
The Tribunal has formed a different view and accepts the evidence presented by the applicant attesting to the business’ financial viability and capacity to employ the nominee for at least two years. The Tribunal notes that a more comprehensive suite of evidence was presented to it than was given to the delegate in the original application.
In considering whether the business has the financial capacity to pay a full-time salary of $52,000 per annum to the nominee for two years, the Tribunal has taken into consideration evidence before it including the employment agreement, nominated salary amount, the business’s financial statements, payroll records and documents submitted to the ATO. The Tribunal has afforded weight to information before it including the applicant’s financial statements, company tax returns, BAS returns and payroll records which show the applicant has met payroll and operating costs.

The Tribunal examined the financial information submitted by the applicant. The business’s consolidated 2019/20 financial statements record for the 2019 financial year the business reported sales of $423,688. In the 2020 financial year the business reported sales of $432,456. In 2020 the business recorded a net profit of $19,626 and retained earnings/net equity of $78,577. The Tribunal has taken into consideration the financial evidence provided by the applicant which shows that the business as at 30 June 2020 reported no external financial liabilities and net equity of $78,577 with $58,473 cash at bank.
At the hearing the Tribunal discussed with the applicant the impact of the COVID -19 pandemic on her business. The applicant told the Tribunal that there has not been much of an impact as the supermarket’s services were not impacted much and continued to trade through the restrictions.
In undertaking its assessment that the employee will be employed on a full time basis in the position for at least 2 years the Tribunal has also taken into consideration the nominee has been employed by the applicant since December 2016. The nominee’s PAYG’s and applicant’s payroll records, support the nominee has received regular salary payments of the nominated salary of $52,000.
Evidence before the Tribunal shows that the nominee is paid in cash. At the hearing on 17 June 2021, the Tribunal put to the applicant under s 359AA of the Migration Act , that inter alia there is no persuasive evidence to support that the business has been paying Mr Singh a regular wage and that the lump sum superannuation payment was not an attempt to further the merits of the permanent residency employer nomination subclass 187 visa review before the Tribunal.
The Tribunal told the applicant that this information is relevant because Regulation 5.19(4)(D)(i) requires that the employee will be employed on a full time basis in the position for at least 2 years. If the Tribunal relies on this information, together with other evidence before it, it may not be satisfied under 5.19(4)(D)(i) that the business has the financial capacity to pay the nominated salary to the employee for at least 2 years and as such the Tribunal may then find that you do not meet the requirements for approval of the nomination and the decision under review may be affirmed.
On 24 June 2021, the applicant provided evidence to the Tribunal to support cash transactions and evidence to support the payment of superannuation to the nominee. The Tribunal is satisfied on the evidence now before it, that the nominee has received regular cash payments of remuneration from the business.
Based on the evidence before it, the Tribunal is satisfied that the applicant has the financial capacity to maintain the nominee’s full-time employment as they have done since the nominee commenced full-time employment with the applicant in December 2016.
Accordingly, the requirement in r.5.19(4)(d)(i) is met.
The Tribunal has had regard to the employment agreement dated 14 November 2016. The agreement, which sets out the terms and conditions of employment, indicate that the period of employment is for a minimum period of two years after the grant of the subclass 187 visa. The contract stipulates the base salary is $52,000 per annum exclusive of superannuation with hours of work 38 hours per week. There is no term excluding an extension of the contract.
The Tribunal is satisfied based on the employment agreement dated 14 November 2016 and other material before it, that the nominee will be employed on a full-time basis for at least two years on terms that do not exclude the possibility of extending the period of employment. Accordingly, the requirement in r.5.19(4) (d) (ii) is met.
As the criteria in both r.5.19(4)(d)(i) and (ii) are satisfied, accordingly the requirements in r.5.19(4)(d) are 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 employment agreement dated 14 November 2016, sets out the terms and conditions of employment and indicates that the nominee’s salary will be $52,000 per annum and hours of work 38 hours per week. The nominee’s leave entitlements include annual, long service, personal and parental leave in accordance with the Fair Work Act.
The Tribunal has received copies of the nominee’s PAYG’s and payroll information confirming that the nominee has been paid by the applicant the nominated salary amount of $52,000 per annum. Superannuation information provided to the Tribunal support that the nominee has received superannuation payments. The Tribunal is therefore satisfied based on the evidence that the nominee will be paid in accordance with the terms of employment.
The Tribunal is satisfied on the totality of the evidence before it that the terms and conditions applicable to the position 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 evidence before the Tribunal to indicate that there is adverse information as per the meaning given in rr.1.13A and 1.13B, known to the Department about the applicant or an associated person.
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 that indicates the applicant does not have a satisfactory record of compliance with the relevant Commonwealth and State workplace relations laws.
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 in the relevant instrument, 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.
In this case, the applicant claims to meet the requirements in r.5.19(4)(h)(ii). The Tribunal has considered each of these requirements as follows;
The evidence before the Tribunal indicates that the applicant’s business, which is operated by the applicant and the position are located in Cowra, postcode 2794, which is a postcode specified in the relevant instrument as being in regional Australia, accordingly r.5.19(4)(h)(ii)(A) and (E) are met.
The Tribunal next considered whether there is a genuine need for the applicant to employ a Retail Manager (ANZSCO 142111) and for the tasks of that position.
In considering whether there is a genuine need for the nominator to employ the nominee as a paid employee, to work in the position under the nominator’s direct control, the Tribunal has had regard to the evidence before it, including written submissions and the oral evidence received at the hearing by Mrs Manpreet Kaur.
Evidence before the Tribunal shows that contrary to the evidence provided by the applicant and nominee during the hearing of 26 May 2021, they did in fact know each other before the applicant purchased the business in 2018. At the second hearing on 17 June 2021, the Tribunal put to the applicant and nominee under s.359AA of the Migration Act, that information before it suggests that they misled the Tribunal and therefore the Tribunal may form the view that this casts doubt on their credibility as a witness and may lead the Tribunal to not accept the applicant’s evidence that the position is genuine and that the Tribunal may form the view that the position has been created to facilitate the stay of the nominee.
The Tribunal told the applicant that this information is relevant because Regulation 5.19(4)(h)(ii)(B) requires that there is a genuine need for the nominator to employ a paid employee to work in the position under the nominator’s direct control. If the Tribunal relies on this information it may not be satisfied the applicant meets the requirements of regulation 5.19(4)(h)(ii)(B) and as such the Tribunal may then find that that the applicant does not meet the requirements for approval of the nomination and the decision under review may be affirmed.
At the hearing on 17 June 2021 and in a subsequent written submission dated 24 June 2021, the applicant told the Tribunal that the nominee is her brother in law and that she purchased the business in 2018 when the previous owner advised the nominee of his intention to sell the business. At the time the nominee was concerned about his visa application, particularly as he had relocated to Cowra and had been working in the nominated position for over two years. The nominee proposed to the applicant that she purchase the business as an investment and continue to sponsor the nominee’s application for a 187 visa.
In undertaking its assessment as to whether the applicant has demonstrated there is a genuine need for the nominator (the applicant) to employ a paid employee to work in the position, the Tribunal has afforded consideration to the evidence before it including that pertaining to the applicant and nominee’s motivation in failing to disclose their relationship. Whilst the applicant and nominee have demonstrated poor judgement in misleading the Tribunal as to the nature of their relationship, the Tribunal notes that the nomination application was lodged with the Department on 22 December 2016 approximately two years before Mrs Kaur purchased the business. Evidence before the Tribunal shows that the applicant commenced as a Director of the business in October 2018 and that the nominee has been working in the nominated position and residing in Cowra since December 2016.
The Tribunal acknowledges the evidence before it in regard to the personal circumstances of the nominee which contributed to the applicant purchasing the business and the reasons purported by the applicant as to why she did not disclose the true extent of the relationship between her and the nominee. The Tribunal is satisfied that the applicant and nominee understand the potential consequences of misleading the Tribunal and that their motivation for doing so was an error of poor judgement on their part.
The Tribunal has then turned its mind to whether the evidence before the Tribunal supports the claim that there is a genuine need for the applicant to employ a Retail Manager. In undertaking this assessment, the Tribunal has considered the evidence before it, including the nominee’s employment history with the applicant at the time the nomination application was lodged with the Department.
The applicant gave evidence at the hearings that the position is key to the operational requirements of the business, in so far as the position of Retail Manager is needed to oversee the operational management activities of the supermarket. The applicant told the Tribunal that the genuine need to employ a paid employee to work in the nominated position arose as the previous owner and current owner purchased the business as an investment with the intent to be hands off managers and that a Retail Manager would be responsible for the day to management of the business. This management arrangement has been in place since the nominee commenced in the position in December 2016 and is reflected in the business’s organisational charts.
The Tribunal discussed with the applicant and nominee at the hearing, the precise tasks and responsibilities associated with the position and has considered evidence supporting the nominee’s suitability in so far as his experience and qualifications for the position.
Department records show that the nominee attained a Certificate IV in Marketing, Advanced Diploma of Management (Human Resources) Diploma of Human Resource Management, Advanced Diploma of Management, Diploma of Management and Graduate Diploma of Management whilst studying in Australia and holds a Bachelor of Arts degree from Punjab University. The applicant has worked in the nominated position since December 2016. Having considered the evidence attesting to the nominee’s experience and qualifications the Tribunal is satisfied that he is suitably qualified for the position.
The Tribunal is satisfied that there is a genuine need for a paid employee to work in the position of Retail Manager (ANZSCO 142111) under the nominator’s direct control. The Tribunal is also satisfied that the tasks of the position to be performed correspond to the tasks of an occupation specified by the Minister in a relevant instrument in writing for this sub-subparagraph. Furthermore, the Tribunal is satisfied the occupation is applicable to the person identified under subparagraph (a)(ii) in accordance with the specification of the occupation. Accordingly, the requirements of r.5.19(4)(h)(ii) (B) and (D) and (DA) are met.
The Tribunal is satisfied that the material and evidence provided by the applicant, supports the applicant’s claims that they have made efforts to fill the position locally by an Australian citizen or an Australian permanent resident. The applicant provided evidence that they have been unsuccessful in sourcing an experienced and qualified Australian citizen or an Australian permanent resident to the position.
The Tribunal also gives weight to the RCB’s advice that the position cannot be filled locally. On the evidence, the Tribunal is satisfied that the position cannot be filled by an Australian citizen/permanent resident living in the same local area. Accordingly, the requirements of r.5.19(4)(h)(ii)(C) are met.
As discussed previously in this decision the Tribunal invited the applicant to provide evidence of obtaining RCB advice indicating that they are satisfied regarding the matters specified in r.5.19(4)(e) and r.5.19(4)(h)(ii)(B) & (C). The Tribunal notes that on 19 December 2016 the relevant RCB (regional Development Australia, Central West) indicated that they are satisfied regarding the matters specified in r.5.19(4)(e) and r.5.19(4)(h)(ii)(B) & (C). On this basis, the Tribunal is satisfied that r.5.19(4)(h)(ii)(F) is met.
Given the above, the Tribunal finds that the requirements of r.5.19(4)(h)(ii) are met and accordingly r.5.19(4)(h) is met as a whole.
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.
Karen McNamara
Member

ATTACHMENT - EXTRACTS FROM THE MIGRATION REGULATIONS 1994
5.19Approval of nominated positions (employer nomination)
…
(2)The application must:
(a)be made in accordance with approved form 1395…; and
(aa) include a written certification by the nominator stating whether or not the nominator has engaged in conduct, in relation to the nomination, that constitutes a contravention of subsection 245AR(1) of the Act; and
(b)be accompanied by the fee mentioned in regulation 5.37.
…
Direct Entry nomination
(4)The Minister must, in writing, approve a nomination if:
(a)the application for approval:
(i)       is made in accordance with subregulation (2); and
(ii)      identifies a need for the nominator to employ a paid employee to work in the position under the nominator’s direct control; and
(b)the nominator:
(i)       is actively and lawfully operating a business in Australia; and
(ii)      directly operates the business; and
(c)for a nominator whose business activities include activities relating to the hiring of labour to other unrelated businesses — the position is within the business activities of the nominator and not for hire to other unrelated businesses; and
(d)both of the following apply:
(i)       the employee will be employed on a full-time basis in the position for at least 2 years;
(ii)      the terms and conditions of the employee’s employment will not include an express exclusion of the possibility of extending the period of employment; and
(e)the terms and conditions of employment applicable to the position will be no less favourable than the terms and conditions that:
(i)       are provided; or
(ii)      would be provided;
to an Australian citizen or an Australian permanent resident for performing equivalent work in the same workplace at the same location; and
(f)either:
(i)       there is no adverse information known to Immigration about the nominator or a person associated with the nominator; or
(ii)      it is reasonable to disregard any adverse information known to Immigration about the nominator or a person associated with the nominator; and
(g)the nominator has a satisfactory record of compliance with the laws of the Commonwealth, and of each State or Territory in which the applicant operates a business and employs employees in the business, relating to workplace relations; and
(h)either:
(i)       both of the following apply:
(A)the tasks to be performed in the position will be performed in Australia and correspond to the tasks of an occupation specified by the Minister in an instrument in writing for this sub-subparagraph;
(AAA)the occupation is applicable to the person identified under subparagraph (a)(ii) in accordance with the specification of the occupation;
(B)either:
(I)the nominator’s business has operated for at least 12 months, and the nominator meets the requirements for the training of Australian citizens and Australian permanent residents that are specified by the Minister in an instrument in writing for this sub-sub-subparagraph; or
(II)the nominator’s business has operated for less than 12 months, and the nominator has an auditable plan for meeting the requirements specified in the instrument mentioned in sub-sub-subparagraph (I); or
(ii)      all of the following apply:
(A)the position is located in regional Australia;
(B)there is a genuine need for the nominator to employ a paid employee to work in the position under the nominator’s direct control;
(C)the position cannot be filled by an Australian citizen or an Australian permanent resident who is living in the same local area as that place;
(D)the tasks to be performed in the position correspond to the tasks of an occupation specified by the Minister in an instrument in writing for this sub-subparagraph;
(DA)the occupation is applicable to the person identified under subparagraph (a)(ii) in accordance with the specification of the occupation;
(E)the business operated by the nominator is located at that place;
(F)a body that is:
(I)specified by the Minister in an instrument in writing for this sub-subparagraph; and
(II)located in the same State or Territory as the location of the position;
has advised the Minister about the matters mentioned in paragraph (e) and sub-subparagraphs (B) and (C).

[2021] AATA 2461

29 June 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Remedies