Shevaroys Pty Ltd (Migration) - [2023] AATA 1669

Shevaroys Pty Ltd (Migration) [2023] AATA 1669 (7 June 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Shevaroys Pty Ltd
REPRESENTATIVE:  Mr Claudio Garzini (MARN: 1803676)
CASE NUMBER:  1918717
HOME AFFAIRS REFERENCE(S):          BCC2017/4246797
MEMBER:Terrence Baxter
DATE:7 June 2023
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Statement made on 07 June 2023 at 9:13am
CATCHWORDS
MIGRATION – application for approval of nomination of position – direct entry stream – accommodation manager – genuine need to employ nominee in position – joint hearing of nomination and visa reviews – extensive documentation and consistent oral evidence from director and nominee – director living at a distance and expansion of nominee’s role – nominee’s skills and experience – decision under review set aside
LEGISLATION
Migration Regulations 1994 (Cth), r 5.19(4)(h)(ii)(B)
CASES
Bharaj Construction Pty Ltd v MIBP [2016] FCCA 902
MIBP v Jayshree Enterprises Pty Ltd [2017] FCA 264
Singh v MIBP [2017] FCAFC 105
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 2 July 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, Shevaroys Pty Ltd, applied for approval on 13 November 2017. The applicant nominated Mr Ezequiel Fernandez Aguirre (the nominee) in the position of Accommodation Manager. Mr Brian Spitteler, a director of the applicant, has been involved in the tourism and hospitality industries in Western Australia since 1978. The applicant has provided, either directly or as a part owner of related entities, tourist accommodation in the Margaret River region since 2001. The applicant has also been involved in other tourism-related activities since 2018. The applicant has employed the nominee since November 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 that the applicant’s nomination did not satisfy reg 5.19(4)(h)(ii)(B) of the Regulations because the delegate found that the applicant had not demonstrated that there is a genuine need for the applicant to employ the nominee as a paid employee to work in the position under the applicant’s direct control.
The applicant lodged an application for review of the delegate’s decision with the Tribunal on 11 July 2019.
Mr Spitteler appeared before…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Shevaroys Pty Ltd (Migration)

Details

AGLC: Shevaroys Pty Ltd (Migration) [2023] AATA 1669
Case: [2023] AATA 1669
Decision Date: 7 June 2023

CaseChat Overview and Summary

Shevaroys Pty Ltd (Migration) concerned an application for approval of a nomination of a position under the Direct Entry stream of the Regional Sponsored Migration Scheme. The applicant, Shevaroys Pty Ltd, sought to nominate an accommodation manager. The core of the dispute revolved around whether the applicant had demonstrated a genuine need to employ the nominee in the nominated position, a requirement under the relevant migration regulations. The matter was heard by Terrence Baxter.

The legal issues before the court were whether the applicant had satisfied the requirements of Regulation 5.19(4) of the Migration Regulations 1994 (Cth) for the approval of the nomination. Specifically, the court had to determine if there was a genuine need for the nominator to employ the nominee in the position, and if the applicant had provided sufficient evidence to demonstrate compliance with all other applicable regulatory criteria, including those relating to the applicant's business operations, compliance with workplace laws, and the nature of the nominated occupation.

The court's reasoning focused on the extensive documentation and consistent oral evidence provided by both the director of Shevaroys Pty Ltd and the nominee. The court noted that the nominee had been employed full-time since November 2017 and that the director's role had expanded, with the director living at a distance from the business operations. The court considered a wide array of evidence presented both before and after the hearing, including financial statements, tax records, company extracts, the nominee's qualifications, employment contracts, payslips, and market salary evidence. The court found that the applicant had met the requirements of Regulation 5.19(4)(e), (f), and (g), and crucially, Regulation 5.19(4)(h)(ii), which pertains to positions located in regional Australia.

Ultimately, the court decided to set aside the original decision under review and substitute a decision approving the nomination. This outcome was based on the court's satisfaction that the applicant had provided sufficient evidence to demonstrate a genuine need for the nominee in the accommodation manager position and had met all other regulatory requirements for the nomination approval.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The applicant has employed the nominee on a full-time basis since November 2017.Evidence presented after the hearing After the hearing, the applicant produced to the Tribunal the following documents: a.A submission from the representative dated 14 March 2023. b.An ASIC current and historical extract of Margaret River Ventures Pty Ltd ACN 615 567 603. c.An ASIC current and historical extract of Bushland Cottages Pty Ltd ACN 009 139 477. d.An ASIC current and historical extract of All About Margaret River Pty Ltd ACN 602 897 236. e.Market salary evidence. f.Activity statements of the applicant for the period from July to December 2022. g.A record of activity statements submitted to the Australian Taxation Office (ATO). h.A record of tax return lodgements submitted to the ATO and of the applicant’s current income tax balance. i.A financial projections table of the applicant for the 2023 to 2025 financial years. j.Financial statements of the applicant for the 2022 financial year. k.A tax return of the applicant for the 2022 financial year. l.A Diploma of Hospitality Management awarded to the nominee accompanied by an academic transcript and a letter of completion. m.An invoice dated 1 March 2021 submitted by the nominee to All About Margaret River Pty Ltd.n.A submission from the applicant dated 10 March 2023. o.Notices of taxation assessment of the nominee for the 2019, 2020 and 2021 financial years. p.An amendment of the employment contract dated 13 March 2023. q.Payslips of the nominee. r.An employment reference by a former employer of the nominee dated 27 September 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) of the Migration Act 1958 (Cth). 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. Having regard to the documentation in the file of the Department, the Tribunal is satisfied that the application for approval was in the approved form. The application relates to a visa in the Direct Entry nomination stream seeking to meet the requirements in the Regional Sponsored Migration Scheme (RSMS) and consequently no fee is payable (reg 5.19(2) and reg 5.37(4) of the Regulations). The application included a written certification stating that the applicant had not engaged in conduct in relation to the nomination that contravenes s 245AR(1) of the Act. The requirements of reg 5.19(2) and consequently of reg 5.19(4)(a)(i) are therefore met. Regulation 5.19(4)(a)(ii) requires that the application 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. It is unclear whether this requirement is directed just at a statement to this effect or something of a more qualitative nature. The wording ‘identifies a need’ arguably suggests more is required to meet this criterion than simply a statement or declaration that there is such a need. ‘Identify’ is defined as ‘to recognise or establish as being a particular person or thing; verify the identity of’.[1] On that view, which is consistent with that reflected in Departmental policy, a decision maker would need to be satisfied there is a genuine need on the part of the nominator to employ a paid employee in the nominated position.[2] However, it could alternatively be argued that reg 5.19(4)(a) as a whole is directed towards requirements for the application form/process of a more administrative nature, such that reg 5.19(4)(a)(ii) could be met by a simple statement or certification of need. Support for this view can also be found in the contrast between the wording of reg 5.19(4)(a)(ii) and, for example, reg 5.19(4)(h)(ii)(B) (for applications relating to positions in regional Australia), which requires that there be a genuine need for the nominator to employ the person identified in the application as a paid employee to work in the position under the nominator’s direct control, clearly requiring a qualitative assessment, and reg 5.19(4)(d)(i), which requires satisfaction that the employee will be employed on a full-time basis in the position for at least two years. Given the uncertain scope of reg 5.19(4)(a)(ii), and the requirement in relation to this application to satisfy reg 5.19(4)(h)(ii)(B), the Tribunal considers that this issue is more appropriately considered under reg 5.19(4)(h)(ii)(B) later in these Reasons.[1] Dictionary.com (accessed June 2023).[2] In Bharaj Construction Pty Ltd v MIBP [2016] FCCA 902 (Bharaj) (Judge Barnes, 28 April 2016), the Court considered a similarly worded provision in respect of a pre-1 July 2012 RSMS nomination, i.e., ‘the employer nomination is made by an employer in respect of a need for a paid employee’. Whilst on the one hand reg 5.19(4)(a)(ii) does not appear to impose a different requirement beyond emphasising the requirement for an applicant to identify the need (unlike the pre-1 July 2012 version of regs 5.19(2)(a) and (4)(a)), the wording of the criteria does differ slightly and the Tribunal exercises caution in applying the reasoning of Bharaj to a post-1 July 2012 nomination as is currently being considered.

Decision

Reasons for decision

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.Evidence presented prior to the hearing The applicant produced to the Department of Immigration and Border Protection (now the Department of Home Affairs) (the Department) the following documents: a.A job advertisement of the position. b.An employment contract of the nominee dated 24 November 2017. c.An organisational chart. d.Market salary evidence. e.A position description. f.Activity statements of the applicant for the period from July 2016 to June 2017 and from April 2018 to September 2018. g.Income tax returns of the applicant for the 2016 and 2017 financial years. h.Financial reports of the applicant for the 2016 and 2017 financial years. i.A current ABN Lookup form of the applicant. j.Correspondence and a Form 1404 advice from the Regional Certifying Body (RCB), the Government of Western Australia Department of Training and Workforce Development, dated 12 December 2017. k.A declaration from Mr Spitteler. l.Payslips of the nominee for periods in April and May 2019. The applicant produced to the Tribunal the following documents: a.A copy of the delegate’s decision. b.An ASIC current and historical company extract of the applicant. c.Financial statements of the applicant for the 2020 and 2021 financial years. d.A submission from the applicant's representative dated 2 September 2022. e.Activity statements of the applicant for the period from April 2020 to March 2022. f.An ASIC company statement of the applicant and an invoice dated 26 November 2021. g.Income tax returns of the applicant for the 2020 and 2021 financial years. h.An updated organisational chart. i.An excel spreadsheet titled AMR Sales Report. j.Evidence of the nominee completing tasks required of the position. k.A payroll summary of the nominee for the 2022 financial year. l.Payslips of the nominee. m.Submission from the applicant dated 3 December 2017 and 1 September 2022.n.Copies of various documents provided to the Department. Evidence presented prior to and at the hearing regarding the applicant’s operations Mr Spitteler and his wife, Catherine Ann Spitteler, are the sole shareholders of the applicant company. They, together with the applicant and an associated company, One Destiny Pty Ltd, are the shareholders of Bushland Cottages Pty Ltd which purchased tourist accommodation cottages in 2001 (Bussells Bushland Cottages) and 2003 (Peppermint Brook Cottages). Mr and Mrs Spitteler and the applicant hold 47.96% of the units of a Unit Trust which purchased further accommodation premises in 2009 (Margaret River Hideaway and Farmstay). The applicant acquired two further accommodation cottages in 2010 and 2016 and, in 2017, acquired a 50% interest in a joint venture which purchased a further accommodation cottage. The total holding comprised 30 units of accommodation with 65 bedrooms.

Ratio Decidendi

Legal Principle Established

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 that there is any adverse information of the type described in the relevant definitions known to the Department about the applicant or any associated person. 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 to suggest that the applicant has an unsatisfactory record of compliance with workplace relations laws of the Commonwealth or any State or Territory in which the applicant operates a business. The Tribunal is satisfied that the applicant does have a satisfactory record of compliance. 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 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 (see legislative instrument IMMI 17/058), the occupation is applicable to the proposed employee in accordance with the specification of the occupation, and an RCB has advised the Minister about certain matters relating to the position. The applicant indicated in the nomination application that it was applying under the RSMS in the Direct Entry nomination stream. The applicant indicated that the postcode where the position was to be filled was 6285 (Margaret River, Western Australia). Based on the evidence, the Tribunal is satisfied that the position and the applicant’s business are located at Margaret River, Western Australia 6285. As this postcode is specified in the relevant instrument as being in regional Australia, the requirements of reg 5.19(4)(h)(ii) must be met by the applicant.Regulation 5.19(4)(h)(ii)(A) – the position is located in regional Australia