Samsha Enterprises Pty Ltd (Migration)

Samsha Enterprises Pty Ltd (Migration) [2022] AATA 4463 (13 October 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Samsha Enterprises Pty Ltd
REPRESENTATIVE:  Mr Joshi Thalluri (MARN: 0210891)
CASE NUMBER:  1919893
HOME AFFAIRS REFERENCE(S):          BCC2017/4888052
MEMBER:Karen McNamara
DATE:13 October 2022
PLACE OF DECISION:  Sydney
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Statement made on 13 October 2022 at 4:28pm
CATCHWORDS
MIGRATION – Employer Nomination – approval of nominated position – Direct Entry Nomination – Retail Manager (General) – term of employment of the visa holder – financial capacity – positive cash flow – positive net equity – decision under review set aside
LEGISLATION
Migration Regulations 1994 (Cth), r 5.19
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 10 July 2019 to reject the application by Samsha Enterprises Pty Ltd (the applicant) 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 20 December 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 regulation 5.19(4)(d)(i). The delegate found that the application failed to demonstrate that the business had the financial capacity to be able to pay the full-time salary for the nominated position for at least 2 years.
The applicant lodged an application for review with the Tribunal on 22 July 2019. The review application was accompanied by a copy of the delegate’s decision. The Tribunal also has before it the Department file containing all information before the delegate at the time of their decision.
On 4 October 2022, the applicant represented by Mr Arumugam Palanithasan (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 Mrs Manoji Dilthuusha Ranawaka (the nominee) in the related matter for the subclass 187 visa (AAT Case file 1923561). The related matters were heard concurrently in a combined hearing.
The Tribunal exercised its discretion to hold the hearing by telephone. 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. The representative attended the Tribunal hearing.
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 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.
Background
On 20 December 2017, the applicant lodged an application for an employer nomination approval under the Regional Sponsored Migration Direct Entry stream for the position of Store Manager under the occupation of Retail Manager (General) (ANZSCO 142111). The nominated base rate salary and guaranteed earnings are $56,940 per annum.
At the time of application, the nominating business (the business) operated a United Petroleum Roadhouse at McKinlay Queensland. In March 2018 the business took over the lease of United Petroleum at Mount Isa and in October 2018 ceased to operate the McKinlay Roadhouse. The nominee relocated to Mount Isa and has undertaken the role of Store Manager Mount Isa United Petroleum since October 2018. The business was sold in January 2022 to the current owner/Director Mr Arumugam Palanithasan.
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: 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.
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. 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 an identified person, 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. This evidence includes the oral evidence received at the hearing by the applicant, written submission from the representative dated 24 June 2020 and genuine position statement by the applicant dated 8 August 2022.
At the hearing, the applicant told the Tribunal, the need to employ the nominee to work in the nominated position is essential to the operational and business needs of the applicant’s operations as a service station, providing fuel and convenience products in regional Queensland.
The Tribunal is satisfied on the information before it, that the application for approval 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. Accordingly, the requirement in r. 5.19(4)(a)(ii) is 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: reg 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 and operates a petrol station providing fuel and convenience store products. The business is located at Mt Isa Queensland. Based on the material provided to the Tribunal, including financial statements, BAS returns, company tax returns and ASIC details, the Tribunal is satisfied the applicant is actively and lawfully operating a business in Australia and directly operates that business.
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 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: 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 delegate refused the application on the basis the applicant’s nomination did not satisfy the requirements of r.5.19(4)(d)(i), because the applicant failed to demonstrate that the business had the financial capacity, to be able to pay the full-time salary for the nominated position for at least 2 years.
The Tribunal notes that a more comprehensive suite of evidence including contemporary financial statements was presented to it, than that provided to the delegate in the original application. The Tribunal has also had the benefit of discussing with the applicant at the hearing, the business’s current and financial history. The Tribunal therefore on the basis of this evidence, has formed a different view and accepts the evidence presented by the applicant in addressing the requirements of regulation 5.19(4)(d)(i).
In considering whether the nominee will be employed in the nominated position for at least two years, the Tribunal has considered the financial capacity of the business to pay the nominated full-time salary of $56,940 per annum, to the nominee for at least two years. In making its assessment, the Tribunal has afforded weight to information before it, including but not limited to; the applicant’s financial statements, letter from the applicant’s accountant dated 5 August 2022, BAS returns, nominee’s employment contract, the nominated salary amount and applicant’s oral evidence.
The Tribunal has carefully considered the financial evidence as presented by the applicant and notes the evidence before it (2022 Financial Statements and Company Tax return), supports the applicant trades profitably with positive cash flow and positive net equity. The Tribunal has also taken into consideration the applicant has continued to meet payroll and operational expenses and holds sufficient assets including cash at bank to cover liabilities.
The Tribunal has additionally afforded consideration to evidence supporting the nominee has been employed by the applicant since December 2017. The nominee’s bank account statements and payroll records support over the last two years, the nominee has received remuneration of the nominated salary of $56,940 per annum plus superannuation.
Based on the evidence before it, the Tribunal is satisfied the applicant has demonstrated the financial capacity to pay the nominee a full-time salary and maintain the employment of the nominee on a full-time basis for two years.
Accordingly, the requirement in r.5.19(4)(d)(i) is met.
The Tribunal has had regard to the nominee’s most recent employment contract (Workplace Agreement) 2 August 2022. The contract, which sets out the terms and conditions of employment, indicate that the period of employment is two years subject to the nominee’s approval of a subclass 187 visa. The contract stipulates the base salary is $56,940 plus 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 contract dated 2 August 2022 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: 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 employment contract dated 2 August 2022, sets out the terms and conditions of employment and indicate that the nominee’s salary will be $56,940 per annum and hours of work 38 hours per week. The Tribunal notes that the terms and conditions set out in the nominee’s contract appear consistent with the National Employment Standards.
The Tribunal has received copies of the nominee’s PAYG’s/Income statements and bank statements confirming that the nominee received regular payment of remuneration from the applicant. 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: 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.
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: 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.
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 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 under the relevant 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.
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 Mount Isa, Queensland postcode 4825, 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 the nominee as a paid employee to work in the position of Store Manager under the occupation Retail Manager (General) (ANZSCO 142111).
The evidence before the Tribunal indicates the applicant commenced operating the Mount Isa Roadhouse in March 2018. The nominee has been employed by the applicant since December 2017, however in October 2018 following the closure of the McKinlay Roadhouse, transferred to the Mount Isa Roadhouse, where she has been employed in the capacity of Store Manager since. Prior to her transfer to Mount Isa, the applicant had been responsible for the management of both locations.
The applicant has provided oral and written statements to the Tribunal attesting to the genuine need for the position and the employment of the nominee, in addition to position descriptions and job advertisements indicating the objective of the role, the contribution of the position to the applicant’s business. Additionally, the applicant and nominee provided evidence of the reporting relationship and role of the Director/owner in the management of the business.
In consideration as to the genuine need for the nominator (applicant) to employ the nominee as a paid employee to work in the position of Store Manager, the Tribunal has based its findings on the totality of the evidence before it, including the applicant’s evidence regarding the history of the nominee’s employment, current skills shortages in Regional Australia, and evidence supporting the business need for the nominated position.
Given the evidence before it, the Tribunal is satisfied on balance that the material and evidence provided by the applicant, supports there is a business need for the position which supports the genuine need for the nominator (applicant) to employ the nominee, to work in the position.
The Tribunal is therefore satisfied on the evidence before it, that there is a genuine need for the nominator to employ the nominee (the person identified under subparagraph (a)(ii)), as a paid employee, to work in the position under the nominator’s direct control. Accordingly, the requirement of r.5.19(4)(h)(ii) (B) is 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 before it, 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.
The Tribunal has reviewed the relevant descriptors stipulated under ANZSCO 142111 for the occupation Retail Manager (General) and the stated duties and responsibilities of the nominee. At the hearing the applicant and nominee provided a description of the daily duties and tasks carried out by the nominee and the reporting relationship of the position to the owner/Director. In undertaking its assessment as to whether the tasks to be performed in the position correspond to the tasks of an occupation specified in an instrument, the Tribunal has also afforded consideration to the environment in which the business operates, the size of the business and operational requirements, the autonomy of the position in regard to decision making and how the tasks of a Retail Manager (General) (as undertaken in the nominated position) are relevant to meeting these requirements.

Having afforded consideration to the evidence before it, the Tribunal is therefore satisfied that the tasks to be performed in the position, correspond to the tasks of a Retail Manager (General). Accordingly, the requirements of r.5.19(4)(h)(ii)(D) are met.
The occupation of Retail Manager (General) (ANZSCO 142111) is referred to in ANZSCO as a skill level 2 position. The Tribunal has considered evidence supporting the nominee’s suitability in so far as her experience and qualifications for the position. Department records show that the nominee holds a Certificate in Business Accounting from Chartered institute of Management Accounting (UK) and a Bachelor of Arts degree (Business Management) attained in the UK. The nominee has been employed by the applicant for approximately five years in the nominated position.
Having considered the evidence attesting to the nominee’s experience and qualifications, the Tribunal is satisfied that she is suitably qualified for the position and that 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) (DA) are met.
The Tribunal has before it, advice dated 20 December 2018, from the relevant RCB, Commerce North West Inc., indicating 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 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.
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 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).

[2022] AATA 4463

13 October 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Statutory Construction

Procedural Fairness

Jurisdiction