Sareen and Rao Pty. Ltd (Migration)

Sareen and Rao Pty. Ltd (Migration) [2022] AATA 27 (4 January 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Sareen and Rao Pty. Ltd
CASE NUMBER:  1828482
HOME AFFAIRS REFERENCE(S):          BCC2017/1053021
MEMBER:Amanda Mendes Da Costa
DATE:4 January 2022
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.
Statement made on 4 January 2022 at 3.17pm

CATCHWORDS
MIGRATION – application for approval of nomination of position – direct entry nomination stream – term of employment – full-time employment for at least two years – contract of employment and oral evidence from company director – combined hearing with review of refusal of nominee’s visa application – decision under review set aside
LEGISLATION
Migration Regulations 1994 (Cth), r 5.19(4)(d)

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 September 2018 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 16 March 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 r.5.19(4)(d) of the Regulations because the applicant had not demonstrated that the nominee will be employed on a full-time basis in the nominated position for at least two years.
Mr Manjeet Singh, a director of the company appeared before the Tribunal on 9 September 2021 and 12 November 2021 to give evidence and present arguments on behalf of the company.
The applicant was represented in relation to the review. Its migration agent also participated in the hearing.
The Tribunal exercised its discretion to hold the hearing by video. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by video, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal has taken into account that the applicant was prepared to participate in a video hearing, that the technology for facilitating the hearing was successfully trialled with the applicant prior to the hearing and the applicant was offered the opportunity to provide the Tribunal with further documentation and submissions following the hearing.
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 was given a fair opportunity to give evidence and present arguments.
The hearing was held as a joint hearing with Tribunal Case Number 1829897. At the commencement of the hearings, Mr Singh and the applicant’s representative indicated that they had no objection to the two cases being heard together.
The documentation provided by the applicant for the purpose of the review includes:
·     ASIC Current and Historical Company extract.
·     Organisational chart.
·     Letter, GN Accounting Solutions, dated 12 July 2021.
·     Financial statements for the financial years ended 30 June 2019 and 2020.
·     Company taxation returns for the financial years ended 30 June 2019 and 2020.
·     Updated employment contract for the nominee, dated 11 October 2021.
·     Regional Certifying Body Advices dated 8 June and 20 June 2017.
·     PAYG Payment Summary for the nominee in TCN 1829897 , for the financial year ended 30 June 2021.
·     PAYG Payment Summary for the nominee in this case, for the financial year ended 30 June 2019, 2020 and 2021.
·     Lease renewal agreement dated 21 October 2016.
·     Liquor Licence for Horsham Masala Indian Restaurant for 2021.
·     Business Activity Statements for the periods April 2019 to December 2020 and April to June 2021.
·     Gas accounts dated 16 February and 27 April 2021.
·     Meat accounts dated 30 April, 5 June and 31 July 2021.
·     Job descriptions.
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.
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 a paid employee to work in the position under their direct control.
From the Department’s file, the Tribunal is satisfied that the application was made on the approved form and accompanied by any prescribed fee as it relates to a regional employer. It is further satisfied as to the completion of a written certification relating to conduct that contravenes s.245AR(1) which was signed by the nominator.
The Tribunal further notes that the nomination application form identifies a nominee, Ms Navdeep Kaur Bhullar for the nominated occupation of Café or Restaurant manager, a paid position. The Tribunal is satisfied from the position description and information in the application form that the nominated position is under the direct control of the applicant.
Accordingly, the requirement in reg 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.
The Tribunal is satisfied from the detailed documents provided to it, including the applicant’s recent financial statement, its current ASIC and ABN registration and the oral evidence of Mr Singh, that it 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.
The material before the Tribunal indicates that the applicant operates an Indian restaurant and there is no suggestion that its business activities include any relating to labour hire to an unrelated business.
Accordingly, the requirement in reg 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.
Based on the updated contract of employment (dated 11 October 2021) provided to the Tribunal and the oral evidence of Mr Singh, the Tribunal is satisfied that the nominee will be employed in the nominated position for at least two years full time, and that the terms and conditions of that employment do not expressly exclude the possibility of an extension.
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 updated contract of employment (dated 11 October 2021) provided to the Tribunal indicates that the nominee’s salary will be $47,000 per annum plus superannuation. The evidence before the Tribunal indicates that there is no equivalent position in the applicant’s business operations and that there is no equivalent Australian employee.
Accordingly, the Tribunal has considered the evidence put forward to determine whether the proposed salary and terms and conditions of employment would 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. Based on the evidence before it the Tribunal is satisfied that the terms and conditions relating to hours of work and leave and termination entitlements in the nominee’s contract of employment are in line with those contained in the National Employment Standards.
The Tribunal is further satisfied that the proposed salary for the nominee is in line with Payscale ranges.
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.
There is no evidence before the Tribunal which indicates there is any adverse information known to the Department about the applicant or a person associated with the applicant.
Accordingly the requirements of reg 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 of breaches of workplace relations laws of the Commonwealth or of any State or Territory where the applicant operates its business.
Accordingly the requirements of reg 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 the relevant written instrument, the nominated occupation is applicable to the proposed employee in accordance with any specifications made in that instrument, and specified training requirements are met (r.5.19(4)(h)(i); 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 (t.5.19(4)(h)(ii).
The Tribunal has considered the nominated position duties as listed by the applicant in the position description for the position of Café or Restaurant Manager. The Tribunal is satisfied that tasks set out in this position description are consistent with those contained in the occupational description in the ANZSCO dictionary for the position of Café or Restaurant Manager (ANZSCO 141111).
Having considered all of the available evidence, the Tribunal is satisfied that the applicant has a genuine need for the nominated position of Café or Restaurant Manager in the business. The Tribunal is also satisfied 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 written instrument.
With regard to whether the position can be filled by an Australian citizen or permanent resident who is living in the same local area, the Tribunal has had regard to the information submitted on behalf of the applicant to the Department and Tribunal. The Tribunal has also taken into account the oral evidence of Mr Singh. The information indicates that the applicant advertised the nominated position via local advertising platforms and this evidence along with the submissions provided by the applicant satisfy the Tribunal that the position was not able to be filled locally.
The Tribunal also accepts that a accepts a Regional Certifying Body (Wimmera Development Association) which is located in the same State or Territory as the position has advised the Minister about the matters in r.5.19(4)(e) and r.5.19(4)(h)(ii) (B) & (C)[1].
[1] IMMI 16/045.
Having considered all of the evidence before it the Tribunal is satisfied that the position cannot be filled by an Australian citizen, or permanent resident, who is living in the same local area.
Accordingly the requirements of reg 5.19(4)(h) 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.
Amanda Mendes Da Costa
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).

[2022] AATA 27

4 January 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction