Revolusun Power Pty Ltd (Migration)

Revolusun Power Pty Ltd (Migration) [2023] AATA 122 (9 January 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT: Revolusun Power Pty Ltd

REPRESENTATIVE:  Mr Kris Ahn
CASE NUMBER:  1915818
HOME AFFAIRS REFERENCE(S):          BCC2017/3175796
MEMBER:De-Anne Kelly
DATE:9 January 2023
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Statement made on 09 January 2023 at 3.38PM
CATCHWORDS
MIGRATION – approval of a nomination – Direct Entry nomination stream – position of Office and Operations Manager – tasks of the position correspond to nominated occupation – actively and lawfully operating a business in Australia – financial capacity to employ the nominee for at least two years – updated financial information – terms and conditions of employment no less favourable – genuine need for the employment – relevant qualifications – decision under review set aside
LEGISLATION
Migration Act 1958, ss 245, 359, 360
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 29 May 2019 to reject the applicant’s application for approval of the nomination of a position in Australia under reg 5.19 of the Migration Regulations 1994 (Cth) (the Regulations).
The applicant applied for approval on 1 September 2017. The requirements for the approval of the nomination of a position in Australia are found in reg 5.19 of the Regulations which contains two alternative streams: a Temporary Residence Transition nomination stream (reg 5.19(3)) and a Direct Entry nomination stream (reg 5.19(4)). If the application is made in accordance with reg 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: reg 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 reg 5.19(4)(h)(ii)(D) of the Regulations because given the nature of business being a solar installation business the tasks of the nominated position would support the core function of the business and as such it was not demonstrated that the tasks to be performed in the position correspond toto the tasks of an occupation specified by the Minister in an instrument.
The applicant appeared before the Tribunal on 5 December 2022 to give evidence and present arguments.
The applicant was represented in relation to the review by Mr Kris Ahn.
For the following reasons, the Tribunal has decided to set aside the decision under review and substitute a decision approving the nomination.
Section 359AA of the Act
At the commencement of the hearing, the Tribunal explained that it may put information to the applicant, under s.359AA of the Act, that would be the reason, or a part of the reason, for affirming the decision that is under review and that it would explain why this information was relevant to the decision and how it may be relied upon in reaching a decision. The Tribunal also advised that the applicant would be given an opportunity to respond to this information in one of three ways: they could request an adjournment and the hearing could be stopped for 15 or 20 minutes or whatever period of time they wished and they could seek advice from the registered migration agent and they could respond in the hearing. Under s.360 of the Migration Act 1958 (Cth.) the Tribunal must invite the applicant to a hearing to give evidence and present arguments relating to issues arising in relation to the review and this affords the applicant the opportunity to canvas information before the Tribunal.
Section 359AA provides as follows:
(a) The Tribunal may orally give to the applicant clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b) if the Tribunal does so—the Tribunal must:
(i)ensure, as far as is reasonably practicable, that the applicant understands why the information is relevant to the review, and the consequences of the information being relied on in affirming the decision that is under review; and
(ii) orally invite the applicant to comment on or respond to the information; and
(iii) advise the applicant that he or she may seek additional time to comment on or respond to the information; and
(iv) if the applicant seeks additional time to comment on or respond to the information—adjourn the review, if the Tribunal considers that the applicant reasonably needs additional time to comment on or respond to the information.
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 reg 5.19(4), which is extracted in the attachment to this decision. For the nomination to be approved, all the requirements must be met.
On 1 September 2017, the applicant lodged a Regional Sponsored Migration Scheme employer nomination visa subclass 187 in the Direct Entry Stream for the position of Office and Operations Manager (ANZSCO 512111) on $55,000 per annum now increased to $65,000 per annum to be employed at Garbutt QLD 4814 in favour of Mr Navjeevanjot Singh BATTH.
Mr Pankaj Parashar represented the applicant, and the business plan states he has 8 years sales and marketing experience and a master’s degree in management and Finance. The business was registered from 29 August 2016.
The director explained that they undertake solar installation in North Queensland, and they do the marketing, monitor the health and safety and need to be mindful that their marketing complies with the Australian Competition and Consumer Commission legislation
The installation is undertaken by the electrical contractors who hold the electrical licence. However, the installer needs to be a Clean Energy Council (CEC) approved installer and they are audited at random by the CEC and must ensure that all the aspects of the work undertaken are properly recorded in the client contract and can send someone onsite to check the installation if a customer is dissatisfied. All communication and approvals have to go through the director.
COVID affected them a lot and everything stopped and the restrictions were very hard.They had good support from the state and federal governments and they have a good marketing team and are trying to grow their business in another state. They have met all their tax and employee obligations.
They have a pool of contractors, but the senior is Mr S and he monitors all jobs and ensures the work is carried out to specification and health and safety requirements. They have 5 to 10 jobs per week for which Mr S ensures that quality assurance is met and he also works with the nominee.
The director’s wife is the full-time administration and she passes customer phone calls to Ms N who does the design and liaises with the electricians to create a proposal for the client.
They service Townsville, Mackay and Cardwell and are always on the road. The director gave a detailed overview of the responsibility flows in the organisation and it is evidence that this is a largely marketing based company bringing in the leads for the installers. The Tribunal found that despite the organisation chart and the concerns the Department had with it, that this is a business where each position is part of the overall successful completion of a number of complex and interrelated tasks.
Advertisement Adzuna 12 June 2017.
Employment contract 30 August 2017.
The application is compliant: reg 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 an identified person as a paid employee to work in the position under their direct control.
Applications must be in the approved form and must be accompanied by the prescribed fee to be valid and acknowledged by the Department of Home Affairs. An acknowledgement dated 1 September 2017 was sent by the Department to the nominator as evidence of a valid application. The Department accepted a declaration made on the online form that the nominator had responded yes in the online form to the following: ‘the applicant certifies that they have not engaged in conduct in relation to this nomination that constitutes a contravention of subsection 245AR (1) of the Migration Act 1958’.
The Tribunal is satisfied that the application was made on the approved form 1395 (Internet) for post 23 March 2013 applications, accompanied by the prescribed fee and the nominator has included a written certification stating the nominator has not engaged in conduct in relation to the nomination that contravenes s.245AR(1) of the Act.
Regulation 5.19(4)(a)(ii) requires the nominator to identify a need for the nominator to employ a paid employee to work in the position under the nominator’s control. The assessment of the need for a paid employee comprises two parts: establishing the need for an employee (i.e. there exists a vacancy for the nominated position) and ascertaining that the relationship between the nominator and nominee is that of employer and employee.
The nomination does not have to specify the nominee but needs to identify a nominee before, or at the time, the associated visa application is made. Mr Navjeevanjot Singh BATTH was identified in the nomination application, and this indicates there is a need for the position.
Accordingly, the requirement in r.5.19(4)(a) is met.
Nominator is actively and lawfully operating a business in Australia: reg 5.19(4)(b)
Regulation 5.19(4)(b) requires that the applicant is actively, lawfully and directly operating a business in Australia.
It is noted that BAS statements from FY 2020 to September 2022 indicate that the business is actively, lawfully and directly operating a business in Australia.
Accordingly, the requirement in reg 5.19(4)(b) is met.
Position is not labour-hire: reg 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 that the business labour hires.
Accordingly, the requirement in reg 5.19(4)(c) is met.
Term of employment of the visa holder: reg 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 company tax return for FY 2022 shows a business with a turnover of $1,110,377 with a profit of $11,372. It is noted that the director and his wife work in the business and are paid wages as such. The business is profitable and has excellent revenue.
Latest employment contract 14 July 2022 is for three years and renewable on mutual agreement
Accordingly, the requirement in reg 5.19(4)(d) is met.
No less favourable terms and conditions of employment: reg 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 latest employment contract shows a wage of $65,000 per annum which is more than reasonable for such a position in a regional area.
Accordingly, the requirements of reg 5.19(4)(e) are met.
No adverse information known to Immigration: reg 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 regs 1.13A and 1.13B.
The Tribunal has no information before it from the Department that would constitute adverse information and a search of the ASIC website finds no adverse information about the nominator or a person associated with the nominator.
Accordingly, the requirements of r.5.19(4)(f) are met.
Satisfactory compliance with workplace relations laws: reg 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.
The Tribunal can find no unsatisfactory record of compliance for the applicant with the laws of the Commonwealth relating to workplace relations. This was confirmed by the owner at the hearing.
Accordingly, the requirements of r.5.19(4)(g) are met.
Tasks of the position, genuine need for the position and training requirements reg 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 a legislative instrument, the occupation is applicable to the proposed employee in accordance with any specifications made in that instrument, there is a genuine need for the nominee to be employed as a paid employee in the position, and certain specified training requirements are met; or
·the position and nominator’s business is located in regional Australia, there is a genuine need for the nominee to be employed as a paid employee in the position under the nominator’s direct control, the position 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.
Position in regional area – r.5.19(4)(h)(ii)(A)
The Tribunal needs to determine if the position is in regional Australia. The business is located in Garbutt QLD 4814. The definition of ‘Regional Australia’ is found in IMMI 16/045. This postcode is included in the list of postcodes for designated regional areas (IMMI 16/045) therefore the position and business are located in regional Australia. The applicant can choose therefore to meet either r.5.19(4)(h)(i) or r.5.19(4)(h)(ii). The applicant has chosen to meet r.5.19(4)(h)(ii) which provides for the second dot point above.
Accordingly, r.5.19(4)(h)(ii)(A) is met.
Genuine need for the position r.5.19(4)(h)(ii)(B).
The Tribunal needs to consider if there is a genuine need for the applicant to employ a paid employee to work in the position under the nominator’s control. It is noted that the applicant states the nominee has been working in the position for several years and notice of assessment show that the nominee has been employed by the business.
From the evidence given by the director as above there is a genuine need to employ the nominated position. This matter was ventilated at length in the hearing and the Tribunal carefully as curtained the tasks and responsivities of each position in the firm and determined that despite the initial misgivings the business is complex and has a strong marketing role to bring in leads and the nominated position is central to the success of this position.
The Tribunal finds for the reasons above that there is a genuine need for the nominator to employ a person, identified under r.5.19(4)(a)(ii) as a paid employee to work in the position under the nominator’s direct control.
Accordingly, r.5.19(4)(h)(ii)(B) is met.
Cannot be filled. r.5.19(4)(h)(ii)(C)
The Tribunal needs to consider if the position cannot be filled by an Australian citizen or permanent resident who is living in the same local area.
The applicant advertised on Adzuna in June 2017 and provided a recruitment summary which showed on one applicant as well resumes from other applicants whose qualifications and experience were not sufficient for the position. The employment contract was signed 14 July 2017 so well after the advertisement.
The Tribunal found that the position could not be filled by an Australian citizen or Australian permanent resident.
Accordingly, r.5.19(4)(h)(ii)(C) is met.
Tasks of the position correspond to ANZSCO. r.5.19(4)(h)(ii)(D)
The Tribunal has carefully considered the evidence and the Position Description provided and finally determined that the tasks of the position generally correspond to the tasks of a position specified by the Minister in an instrument being the position of Office Manager.
The Tribunal noted the latest ANZSCO job description.
OFFICE MANAGERS organise and control the functions and resources of offices such as administrative systems and office personnel.
Tasks Include:
•contributing to the planning and review of office services, and setting priorities and office service standards
•allocating human resources, space and equipment
•assigning work to and monitoring work performance of staff
•managing records and accounts of the office
•liaising with Professionals to coordinate office business and to facilitate resolution of
problems
•ensuring office equipment and supplies are maintained
•ensuring compliance with occupational health and safety regulations
•ensuring work complies with relevant government legislation, policies and procedures
•coordinating personnel activities such as hiring, promotions, performance management, payroll, training and supervision.
The duties of the nominated position have been described in the position description to include the following duties.
The Tribunal took the applicant through each of these tasks many of which it appeared were undertaken by either the Senior Sales Consultant or the Project Co-ordinator. However, after a detailed discussion the Tribunal found that the tasks are actually undertaken by the nominated position and although there appears to be overlap with other positions because the business relies so heavily on marketing and leads for new work there is a role for the Office Manager.
a)Providing fair leadership and direction to your team of employees including allocating
duties, responsibilities and resources.
b)Effective planning, management and delivery of all projects within time and against
WHS/OH & S requirements.
c)Liaising with the sales teams to manage scheduling of jobs.
d)Analyse current and new product offerings, market opportunities, competitors and
business models; drive towards recommendations on pricing architecture and necessary software initiatives
e)Coordination and management of the customer service and logistics teams to ensure
overall compliance and the best outcomes to clients.
f)Promote the business through traditional activities, expos and conferences and through
more creative and intuitive marketing approaches.
g)Managing policy changes and compliance with fairwork and other legislative changes as
Required.
h)Support management to achieve industry KPIs and monitoring work performance of staff.
i)Managing recruitment and induction of new staff.
j)Coordinating our bookkeeper by providing instructions / support with invoicing, payroll
and reconcilitaions.
k)Evangelise (sic) pricing, strategy and roadmap with various functional groups across
RevoluSun (particularly with sales team) an drive excitement (sic).
l)Ensure the office is up to date on changes to our industry and business processes,
identify impact of changes on all processes, materials, and messaging and work with
departments to ensure changes are absorbed.

The office manager position is more “like a glue”, according to the director and looks after everything that goes wrong. He managers all the cold calling by the sales staff and ensures that their sales pitch and paperwork complies with ACCC legislation. He trains and oversees the sales staff for their cold calls.
Accordingly, r.5.19(4)(h)(ii)(D) is met.
Occupation applicable to nominee. r.5.19(4)(h)(ii)(DA)
The nominee provided evidence that he has a Master of Business Administration as well several years’ experience as a manager. The Tribunal finds that the occupation is applicable to the person, identified under subparagraph (a)(ii) in accordance with the specification of the occupation.
Accordingly, r.5.19(4)(h)(ii)(DA) is met.
Business operated at that place. r.5.19(4)(h)(ii)(E)
The business of the nominator is located at Garbutt QLD 4814 and is in ‘that place’ that was specified in the employer nomination.
Accordingly, r.5.19(4)(h)(ii)(E) is met.
Regional certifying body r.5.19(4)(h)(ii)(F)
The Chamber of Commerce and Industry Queensland (CCIQ) as the regional certifying body RCB specified in the Ministerial instrument on 19 September 2017 certified the application as meeting r.5.19(4)(e) and r.5.19(4)(h)(ii)(B) & (C) and has therefore advised the Minister about the matters mentioned in paragraph (e) and sub-subparagraph (B) and (C).
Accordingly, r.5.19(4)(h)(ii)(F) is met. Accordingly, the requirements of r.5.19(4)(h) and r.5.19(4) are met.
Based on the findings above, the Tribunal is satisfied that the applicant meets the requirements of reg 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.
De-Anne Kelly
Member

ATTACHMENT - Extracts from the Migration Regulations 1994
5.19Approval of nominated positions (employer nomination)
…
(2)The application must:
(a)be made in accordance with approved form 1395…; and
(aa) include a written certification by the nominator stating whether or not the nominator has engaged in conduct, in relation to the nomination, that constitutes a contravention of subsection 245AR(1) of the Act; and
(b)be accompanied by the fee mentioned in regulation 5.37.
…
Direct Entry nomination
(4)The Minister must, in writing, approve a nomination if:
(a)the application for approval:
(i)       is made in accordance with subregulation (2); and
(ii)      identifies a need for the nominator to employ an identified person, as 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).

[2023] AATA 122

9 January 2023

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Immigration

Administrative Law

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Judicial Review

Procedural Fairness

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