Scheduled Services Pty Ltd (Migration)

Scheduled Services Pty Ltd (Migration) [2021] AATA 2798 (16 June 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Scheduled Services Pty Ltd
CASE NUMBER:  1823460
HOME AFFAIRS REFERENCE(S):          BCC2017/535526
MEMBER:Joanne Bakas
DATE:16 June 2021
PLACE OF DECISION:  Adelaide
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Statement made on 16 June 2021 at 12:32pm
CATCHWORDS
MIGRATION – Employer Nomination – approval of nominated position – Direct Entry nomination stream – Customer Service Manager – tasks of the nominated position – 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 25 July 2018 to reject the applicant’s application for approval of the nomination of a position in Australia under r.5.19 of the Migration Regulations 1994 (the Regulations).
The applicant applied for approval on 8 February 2017. 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 r.5.19(4)(h)(ii)(D) of the Regulations because it had not been demonstrated that 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 subparagraph 5.19(4)(h)(ii).
Mr Brett Blades, appeared on behalf of the applicant before the Tribunal on 25 May 2021 via audio and video conference on MS Teams to give evidence and present arguments. The Tribunal also received oral evidence from Mr Dupinder Singh (the nominated employee) and Mr Abhishek Singh (a nominated employee in another nomination by this applicant).
The applicant was represented in relation to the review by its registered migration agent. 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 r.5.19(4), which is extracted in the attachment to this decision. For the nomination to be approved, all the requirements must be met.
The application is compliant: r.5.19(4)(a)
Regulation 5.19(4)(a) requires that the application for approval must be in the approved form, must be accompanied by the prescribed fee, and, where applicable, must include the required written certification relating to conduct that contravenes s.245AR(1). The application must also identify a need for the nominator to employ a paid employee to work in the position under their direct control.
The applicant identified Mr Dupinder Singh as the person to work in the position of Customer Service Manager (ANZSCO – 149212) under their direct control.
The Tribunal finds that the application for approval:
·was made on the approved online, and was accompanied by the fee prescribed in r.5.37;
·includes a written certification stating whether the nominator has engaged in conduct in relation to the nomination that contravenes s. 245AR(1); and
·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) is met.
Nominator is actively and lawfully operating a business in Australia: r.5.19(4)(b)
Regulation 5.19(4)(b) requires that the applicant is actively, lawfully and directly operating a business in Australia.
The documents before the Tribunal show the nominating business, Scheduled Services Pty Ltd was first registered on 31 March 2016 with the ACN 611 595 512 and is currently active.
Company tax returns for the 2019 and 2020 financial years were submitted to the tribunal as well as financial accounts for these years as well as for 2018, 2019 and 2020. A number of Business Activity Statements were also submitted to the Tribunal for the 2020 financial year.
Having considered all of the evidence before it, the Tribunal is satisfied that the nominator is actively and lawfully operating a 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 information before the Tribunal that indicates the applicant is involved in labour hire activities or in the hiring of labour to other unrelated businesses.
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 applicant stated in the application form dated 8 February 2017 that they will provide full time employment for the visa applicant for at least two years in the role of Area Service Manager and pay a salary of $50,000 per annum in addition to superannuation.
The applicant provided an employment contract dated 19 February 2021 for a period of at least two years as a Client Services Manager (ANZSCO 149212) from the date of visa application approval with no exclusion of extending the term. .
I accept the applicant’s and nominee’s evidence at hearing that the nominee was employed at the beginning of 2017 in the role of Area Service Manager (now called Customer Service Manager).
The applicant also provided the Tribunal with financial statements and company tax returns that show a loss before tax losses of $83,528 in the 2018 year and $10,292 in the 2019 year and a profit of $25,488 for the 2020 year. The applicant explained at the hearing and in written submissions that the business has been restructured to reduce costs but that the role of the nominee had not changed. In addition, many of the losses were incurred in purchasing specialised equipment required to undertake the contracted services. As a result of the restructure, the business has improved it profitability.
The applicant also provided the Tribunal with a letter from their accountant, Regency Chartered Accountants, dated 23 February 2021. The letter states that based on the information they have been provided it is their opinion that Scheduled Services Pty Ltd can pay any debts, as and when they fall due and meet the employment obligations associated with employing the nominee on an annual salary of $50,000 for at least two years. A similar letter dated 23 September 2016 from the same firm was also provided.
The Tribunal notes that this accounting firm has undertaken the financial reporting for the applicant for at least the last four years. The Tribunal also notes that the nominee has been employed by the business on a full time basis for more than three years after the nomination was lodged. The business has paid the nominee in recent years and based on the financial evidence submitted, it is reasonable to assume it will do so into the future.
Based on all of the evidence before it, the Tribunal is satisfied that the applicant has the financial capacity to employ the nominee on a full time basis in the nominated position for two years full time and that the nominee will be employed in the nominated position for at least two years. The Tribunal has had regard to the employment agreement and is satisfied that the terms and conditions of the nominee’s employment does not include an express exclusion of the possibility of extending the period of employment.
Accordingly, the requirement in r.5.19(4)(d) is met.
No less favourable terms and conditions of employment: r.5.19(4)(e)
Regulation 5.19(4)(e) requires that the terms and conditions of employment applicable to the nominated position will be no less favourable than those that are, or would be, provided to an Australian citizen or permanent resident performing equivalent work in the same workplace at the same location.
The applicant provided the Tribunal with documentation from payscale.com that demonstrates the range for salaries in Perth, Western Australia for the role of Client Service Manager, is $48,000 to $95,000. A job advertisement dated 25 May 2021 was also provided for the role of Client Services in Perth with a salary range of $50,000 to $64,999.
The Tribunal also researched salaries offered for similar positions and had regard to the salary determination evidence provided by the applicant. The remuneration appears to fall within the starting salary range of similar positions. The Tribunal is satisfied that the proposed salary for the nominee of $50,000 in addition to superannuation falls within the current salary range for the nominated position in that location.
Further, the Tribunal notes that a Regional Certifying Body Advice dated 19 December 2016, advises that the terms and conditions of employment that are applicable to the nominated position will be no less favourable than the terms and conditions that are or would be provided to an Australian citizen or Australian permanent resident for performing equivalent work in the same workplace at the same location.
While this Advice refers to the previous contract, the Tribunal finds that the new employment contract dated 19 February 2021 has similar terms and conditions.
On the evidence before it, the Tribunal is satisfied that the terms and conditions of employment relating to the nominated position will be no less favourable than those that are provided or 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 that suggests there is any adverse information known to the Department 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: 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 laws of the Commonwealth or of, relevantly, South Australia, relating to workplace relations.
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 (see legislative instrument IMMI 16/059 the occupation is applicable to the proposed employee in accordance with any specifications made in that instrument, and specified training requirements are met; or
·the position and nominator’s business is located in regional Australia, there is a genuine need for the paid position under the nominator’s direct control which cannot be filled by a locally resident Australian citizen or permanent resident, the tasks of the position correspond to those of an occupation specified in the relevant legislative instrument, the occupation is applicable to the proposed employee in accordance with the specification of the occupation and that a regional certifying body has advised the Minister about certain matters relating to the position.
The applicant applied for the nomination as a Regional Sponsored Migration Scheme position. They are therefore required to meet the second set of requirements stated above.
To meet the second set of requirements detailed in r.5.19(4)(h)(ii), all of the following must apply:
·the position is located in ‘regional Australia’ (r.5.19(4)(h)(ii)(A));
·there is a genuine need to employ a paid employee to work in the position under the nominator’s direct control (r.5.19(4)(h)(ii)(B));
·the position cannot be filled by an Australian citizen or permanent resident who is living in the same local area (r.5.19(4)(h)(ii)(C));
·the tasks to be performed in the position correspond to the tasks of an occupation specified by instrument (r.5.19(4)(h)(ii)(D));
·the business operated by the nominator is located at that place ((r.5.19(4)(h)(ii)(E)); AND
·a Regional Certifying Body 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) - (r.5.19(4)(h)(ii)(F)).
The Tribunal is satisfied from the evidence before it that the nominated position and business are located in Osborne Park, Western Australia, postcode 6017.
‘Regional Australia’ is defined in r.5.19(7) by reference to a written instrument by the Minister specifying which areas are considered to constitute ‘regional Australia’ for the purposes of r.5.19(4)(h)(ii)(F). At the time that the nomination was lodged, the relevant instrument was IMMI 16/045 which specified that all postcodes in Western Australia were in ‘regional Australia’.
However, since that time, two new legislative instruments have come into effect in succession. The first is IMMI 17/059 came into effect on 17 November 2017 and revoked IMMI 16/045 and excluded the Perth metropolitan area (including 6017) from the definition of ‘regional Australia’. Subsequently, IMMI 18/037 came into force on 18 March 2018. It is stated only to apply to nominations lodged on or after 18 March 2018. It also excludes the Perth metropolitan area (including 6017) from the definition of ‘regional Australia’.
The question for the Tribunal is which instrument should apply in the present circumstances. IMMI 17/059 did not include any saving or transitional provisions and was silent on how applications that had been made but were not yet fully determined as at that date, were to be treated. As noted above, IMMI 17/059 excluded metropolitan Perth from being included in ‘regional Australia’ but was then itself repealed by IMMI 18/037 on 18 March 2018. IMMI 18/037 expressly only applies to nominations made on or after 18 March 2018. The absence of saving or transitional provisions in these instruments gives rise to a lack of clarity as to which instrument applies in the present case.
The current instrument (IMMI 18/037) was introduced on 18 March 2018 by the Migration Amendment (Temporary Skill Shortage Visa and Complementary Reforms) Regulations 2018 (the amending regulations). For nominations made before 18 March 2018, item 6705(1) of the amending regulations preserves the operation of any instruments made under r.5.19 that were in force immediately prior to that date. In light of this, it appears to the Tribunal that there are sound arguments for concluding that IMMI 16/045, the instrument that was in force at the time of the nomination application, should be taken to be the applicable instrument (despite the reference to the wording ‘as in force immediately before’ the commencement of 18/037, which would suggest IMMI 17/059). However, the more beneficial reading is that this preserves the instrument in force at the time of the nomination application.
Accordingly, the Tribunal considers that this is the appropriate course to take in relation to this case; that is, it finds that the nominated position is based in regional Australia, satisfying r.5.19(4)(h)(ii)(A).
The Tribunal now turns to consider whether the applicant satisfied the remainder of the criteria as set out in r.19.(4)(h)(ii)(B) to (F).
The Tribunal notes that the delegate was not satisfied that the applicant had demonstrated that 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 subparagraph 5.19(4)(h)(ii).
The Tribunal has had regard to evidence that has been provided in regard to the tasks already performed by the visa applicant and is satisfied that they correspond to the tasks of the occupation of Customer Service Manager specified in the relevant instrument (IMMI 15/083). In particular, the summary of the occupation of Customer Service Manager (ANZSCO – 149212) provided by the Australian Bureau of Statistics is detailed as planning, administering and reviewing customer services and after-sales services and maintaining sound customer relations. The Tribunal is satisfied that this encompasses the role undertaken by the visa applicant. Further, the Tribunal is also satisfied that a detailed summary of the tasks to be performed in the position as detailed in the submissions of the applicant and the oral evidence at the hearing, are consistent with the tasks for the position which include: planning and implementing after-sales services to follow up customer satisfaction; ensure performance of goods purchased, and modify and improve services provided; providing direction and feedback to team members; providing direction and feedback to team members and assisting with recruitment.
The position of Customer Service Manager nominated by the applicant is referred to in ANZSCO as a Skill Level 2 position.
For the sake of clarity, the Tribunal notes that the role at the time of the application was called Area Service Manager (South) by the business and is now called Customer Service Manager (South Metro) (consistent with the organisation charts provided). However, for all intents and purposes, the Tribunal finds that the roles have not significantly changed and have always met the description as detailed in the ANZSCO summary as detailed above. Further, while the employment contract refers to the role of Client Service Manager, the Tribunal views this as the same role as Customer Service Manager.
At the hearing the evidence of the applicant included that at the time of the application and currently, the nature of the business is such that the role of customer service manager is critical to the ongoing survival and profitability of the business. It was a new role created at the time to meet the needs of the applicant business. This is also detailed in the written submissions of the applicant. The aim of the role is to keep clients satisfied with the service provided and to be the liaison should there be any issues.
The Tribunal notes that the applicant is nominating two positions for the same role, both before this Tribunal. This particular position related to the Southern metropolitan area and the other to the northern area. The applicant submitted that the business operates in a highly competitive commercial cleaning sector providing cleaning services to commercial and residential clients. The positions are pivotal to the business structure as the customers for the business have high expectations of customer service before and after service. Due to strong growth, it was important for the business to have a Customer Service Manager for each of the two main areas, effectively split on either side of the river. One role could not effectively manage and address all of the client service needs.

Having considered all of the evidence before it, the Tribunal is satisfied that there is a genuine need for the applicant to employ a paid employee to work in this position under the applicant’s direct control and that there is a need for two such positions.
Having considered all of the evidence before it, the Tribunal is satisfied that there is a genuine need for the applicant to employ a to work in this position under the applicant’s direct control.
In regard to being unable to fill the role with an Australian citizen or permanent resident living in the same local area, the applicant’s evidence included that they advertised the position on 10 November 2016 in the West Australian Newspaper which includes print and online. The evidence of the applicant included that there were minimal responses. The nominee’s evidence at the hearing included that he has completed a Certificate IV in Business and a Diploma of Business.
Further, the Tribunal notes that a Regional Certifying Body Advice dated 19 December 2016, advises that the nominated position cannot be filled by an Australian citizen or Australian permanent resident who is living in the same local area as the nominated position. It also advises that it was satisfied that there is a need for a paid employee in the nominated position within the business activities of the nominating employer.
Based on the evidence before it, including the applicant’s evidence at hearing and written submissions, the Tribunal is satisfied that there is a genuine need to employ a paid employee to work in the position under the nominator’s direct control, that the position cannot be filled by an Australian citizen or permanent resident who is living in the same local area, that the business is located in regional Australia and that a regional certifying body, Skilled Migration WA, Department of Training and Workforce Development, located in the same State as the position, has advised the Minister (in Form 1404) about the matters in r.5.19(4)(e), 5.19(4)(h)(ii)(B),and 5.19(4)(h)(ii)(C) as is required by regulation 5.19(4)(h)(ii)(F). In addition, the Tribunal is satisfied that the occupation is applicable to the nominee.
Accordingly, the requirements of r.5.19(4)(h) are met.
Based on the findings above, the Tribunal is satisfied that the applicant meets the requirements of r.5.19 for approval of the nomination of the position in Australia.
DECISION
The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.
Joanne Bakas
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 2798

16 June 2021

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