Shiloh KMJ Pty Ltd (Migration)

Shiloh KMJ Pty Ltd (Migration) [2022] AATA 1217 (18 February 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Shiloh KMJ Pty Ltd
CASE NUMBER:  1902094
HOME AFFAIRS REFERENCE(S):          BCC2017/1741393
MEMBER:Warren Stooke AM
DATE:18 February 2022
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision under review to refuse the nomination.

Statement made on 18 February 2022 at 10:05am

CATCHWORDS
MIGRATION – nomination – Direct Entry nomination stream – Retail Manager – applicant did not satisfy the genuine need for the position – financial capacity to employ the nominee for a 2 year period – Tribunal is not satisfied that the position can be classified as a Retail Manager – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 65, 140GBA, 245AR, 359, 360, 363
Migration Regulations 1994, rr 1.13, 2.72, 2.73, 5.19
CASES
Hasran v MIAC [2010] FCAFC 40
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 15 January 2019 to reject the applicant’s application for approval of the nomination of a position in Australia under reg 5.19 of the Migration Regulations 1994 (Cth) (the Regulations).
The applicant applied for approval on 16 May 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 for the nominated position of Retail Manager – ANZSCO Code: 142111.
The delegate refused the application on the basis the applicant’s nomination did not satisfy reg 5.19(4)(a) and 5.19(4)(d) of the Regulations because the applicant did not satisfy the genuine need for the position and the financial capacity to employ the nominee for a 2 year period on the salary of $60,000.
On 12 January 2022, the Tribunal wrote to the applicant pursuant to s.359(2) of the Act, inviting the applicant to comment on information that it considered would be the reason or part of the reason for affirming the decision under review. The Tribunal advised in order for the Tribunal to approve the business nomination, it must be satisfied that all of the
relevant criteria in r.5.19 of the Regulations are met at the time of its decision. As the application for nomination was made under the Direct Entry nomination stream, the relevant criteria are in rr.5.19(2) and (4) of the Regulations.
The invitation contained within the invitation, that if the comments were not provided in writing by 27 January 2022, the Tribunal may make a decision on the review without taking further steps to obtain the comments and the applicants would lose any entitlements they might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.
The applicant has not provided the comments within the prescribed period and no extension has been sought or granted. In these circumstances s.359C applies and pursuant to s.360(3) the applicant is not entitled to appear before the Tribunal. The effect of s.363A of the Act is that if an applicant has no entitlement to a hearing, the Tribunal has no power to permit them to appear: Hasran v MIAC [2010] FCAFC 40.
As of the date of decision there has been no response from the applicant. Given that there has been no response by the required date of 27 January 2022, the applicant has lost the right to a hearing and accordingly, the Tribunal has proceeded to determine the matter without recourse to a hearing. The Tribunal has decided to proceed to decision.
On 30 January 2019, the applicant provided the Tribunal with a copy of the delegate’s decision subject to review with their application for review.
For the following reasons, the Tribunal has decided to affirm the decision under review to refuse 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.
On 12 January 2022 the Tribunal corresponded with the applicant with a request for the applicant to provide information pertaining to the application for the sponsorship of the position of Retail Manager – ANZSCO Code: 142111 as follows:
“INVITATION TO PROVIDE INFORMATION – SHILOH KMJ PTY LTD
I am writing on instruction from the Member conducting your review, about the
application for review made by Shiloh KMJ Pty Ltd (“the applicant”) in respect of a
decision to refuse their application for approval of a nominated position under r.5.19 of the Migration Regulations 1994 (the Regulations).
In order for the nomination of a position to be approved, the Tribunal must be satisfied that all of the relevant criteria in r.5.19 of the Regulations are met at the time of its decision. As the application for nomination was made under the Direct Entry
nomination stream, the relevant criteria are in rr.5.19(2) and (4) of the Regulations.
The Tribunal now requires updated and current information addressing these
criteria. Accordingly, and without limiting the information that may be given, you or
another person authorised by the applicant are invited to give the following information in writing. We have given examples of the type of information you could provide:
1. Information about the identity of any person authorised to speak and make
decisions on behalf of the applicant;
§ If the applicant is a company or registered business, an ASIC company or business name extract ( If the applicant is a company or registered business, current and historical
information about its owners or office holders’ registration details;
§An ASIC current and historical extract ( Information about the applicant directly operating an active and lawful business in
Australia, including its financial circumstances;
§The applicant’s lodged tax returns for the last two full financial years,
business activity statements that have been lodged with the ATO for the
last 24 months and financial statements prepared in accordance with
Australian accounting standards, including profit and loss statements and
balance sheets, for the most recent two financial years.
4. Information about the applicant’s current organisational structure and where the
nominated position sits in relation to that structure;
§An organisational structure chart that includes all of the applicant’s
current and proposed employees, their position title/duties and their
immigration status (i.e. Australian citizen, permanent resident or temporary
visa holder).
5. Information about the roles and duties of the nominated position and how they
correspond to the nominated occupation’s position description in ANZSCO;
§Job descriptions, work samples, emails, correspondence and other
examples of the daily tasks performed in the nominated position, and also
the nominated occupation’s position description in ANZSCO (go to
and type the nominated
occupation’s 6 digit ANZSCO code number into the ‘Search’ function).
6. Information about the terms and conditions of employment in the nominated
position, including whether they are more or less favourable than those provided
for an Australian citizen or permanent residence performing equivalent work in the
same workplace at the same location, and whether the nominee will be employed
on a full time basis for at least 2 years with terms and conditions not expressly
excluding the possibility of extension;
§A current employment contract in respect of the nominee or letter of
engagement that complies with relevant awards for the nominated position
(if any).
7. If the nominated position is not located in regional Australia and the applicant has
paid the non-regional position application fee, information about:
a.the need to employ the nominee in the nominated position; AND
b.the applicant’s business operating for at least 12 months and its recent training
expenditure; OR
c. the applicant’s business operating for less than 12 months and its plan for future
training expenditure
§Invoices or contracts for employee training, a training program that
includes a course outline, attendance and identifies increased work
competencies, or records of investment in certain industry training funds
or recognised industry bodies
8. If the nominated position is located in regional Australia, information about:
a.the need to employ the nominee in the nominated position and why the position
cannot be filled by an Australian citizen or permanent resident living in the
same local area; and
b.whether a specified Regional Certifying Body located in the same State or
Territory as the nominated position has provided advice that:
i. the terms and conditions of employment are no less favourable than those
provided to Australian citizens or permanent residents performing
equivalent work in the same workplace; and
ii. there is a genuine need to employ the nominated person as a paid
employee to work in the nominated position under the applicant’s direct
control; and
iii. the position cannot be filled by an Australian citizen or permanent resident
living in the same area.
§Local job advertisements for the nominated position that were not
successfully filled, and the Regional Certifying Body’s certificate issued to
the applicant in respect of this position.
9. Information about whether the applicant has been subject to monitoring by the
Department and, if relevant, the outcome of the monitoring audit;
10. Information about whether the applicant has been the subject of any investigation
about a possible contravention of the law.
This information, in writing, should be received by 27 January 2022. If the information is in a language other than English, it must be accompanied by an English translation from an accredited translator.
If you or another person authorised by the applicant cannot provide the information by 27 January 2022, you or another person authorised by the applicant may ask us for an extension of time in which to provide the information. If an extension of time
request is made, it must be received by us before 27 January 2022 and it must state
the reason why the extension of time is required.
We will carefully consider any request for an extension of time and will advise whether or not the extension has been granted.
If we do not receive the information within the period allowed or as extended, we may
make a decision on the review without taking any further action to obtain the
information. The applicant will also lose any entitlement it might otherwise have
had under the Migration Act to appear before us to give evidence and present
arguments.
Alternatively, if the applicant’s circumstances have changed and the applicant no
longer wishes to proceed with this application for review, please complete a withdrawal form by clicking on the link directly below.
Click here to access the online Withdrawal form
If you have any questions, please email [email protected], or contact me on the
number listed below, or telephone our national enquiry line on 1800 228 333. For
language assistance, please contact the Translating and Interpreting Service (TIS) on 131 450.”
The applicant provided evidence to the Department that a Regional Sponsored Migration System – Certifying Body of Regional Development Victoria – Bendigo had approved the nomination for a Retail Manager – ANZSCO Code: 142111 on 9 May 2017 for Mr Bamrah Mandeep Singh on a salary of $60,000.
The applicant described the business as a Caltex service station in the town of Heathcote, Victoria with a contract of employment to commence for the nominee on 9 May 2017. The business was identified as being registered with ASIC and assigned the ABN 85 611 310 797 dated 15 March 2016.
The applicant provided the Department with evidence of a contract of employment dated 1 October 2016 for Mr Bamrah Mandeep Singh on a salary of $60,000 and superannuation of 9.5 per cent.
The applicant stated in the application to the Department that the business had 6 employees that included 5 Australian citizens and I foreign employee.
The applicant provided evidence to the Department that the position was advertised in the Bendigo Advertiser and the Shepparton Newspaper Pty Ltd.
The applicant certified in the application of 16 May 2017 that the nominator has not engaged in conduct in relation to the nomination that contravenes s 245AR(1).
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.
In the absence of any contemporary evidence that the applicant has met their obligations concerning the financial and taxation obligations of the business, including superannuation contributions, the Tribunal is not satisfied that the applicant has met these obligations.
Accordingly, the requirement in reg 5.19(4)(b) is not 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 in the Department file that the nominated position is labour hire.
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.
In the absence of any contemporary evidence that the applicant has met their obligations concerning the currency of the contract of employment, payment of wages and superannuation contributions, the Tribunal is not satisfied that the applicant has met these obligations.
Accordingly, the requirement in reg 5.19(4)(d) is not 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.
In the absence of any contemporary evidence that the applicant has met their obligations concerning the payment of wages and superannuation contributions, the Tribunal is not satisfied that the applicant has met these obligations.
Accordingly the requirements of reg 5.19(4)(e) are not met.
No adverse information known to Immigration: reg 5.19(4)(f)
Regulation 5.19(4)(f) requires that there is no adverse information known to Immigration about the nominator or person associated with the nominator; or it is reasonable to disregard any such information. For these purposes, ‘adverse information’ and ‘associated with’ have the meaning given in regs 1.13A and 1.13B.
The Tribunal is not aware of any adverse information on the Department or Tribunal file concerning 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.
In the absence of any contemporary evidence that the applicant has met their obligations concerning the payment of wages and superannuation contributions, the Tribunal is not satisfied that the applicant has met these obligations.
Accordingly the requirements of reg 5.19(4)(g) are not 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 as contained in the IMMI Register of Instruments: Business Visas, 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.
A Retail Manager as defined in ANZSCO is responsible for setting the overall direction and objectives of the business. The Tribunal is not satisfied that the nominee will be responsible for those higher level tasks of a Retail Manager given that the Director of the Business remains working in the business.
Whilst the Tribunal accepts, on the basis of the evidence submitted to the Department, that the application was identified as ‘satisfied’ by Regional Development Victoria – Bendigo on 9 May 2017, the Tribunal is not satisfied that the role and duties undertaken by the owner (with the support of the franchisor’s materials and services) permit the nominated position to be capable of fulfilling all the intended duties of a Retail Manager. This was confirmed in the correspondence provided by the applicant, who stated that she would continue to remain in the business and reduce her hours of work.
Further, the business has been described as a service station and as such, the Tribunal finds that the extent to which the nominee is proposed to engage in managerial functions is limited in scope and the priority is more likely to be attending to instore sales activities with limited supervision. As such, the Tribunal finds that the descriptor of Retail Supervisor ANZSCO 621511 more correctly fits the description of the position.
The Tribunal finds that the owner provides substantive support to the business in terms of budgeting, financial planning, financial management, and the supply agreement with Caltex Australia, the franchisor.
The Tribunal considers in the absence of the opportunity to test the evidence provided by the applicant concerning the job description for the nominated position that the Tribunal is not satisfied that the following three critical functions identified as pertaining to the ANZSCO descriptor for a Retail Manager are genuinely performed by the nominee with the director continuing to oversee the operation of the business:
a.Undertaking budgeting for the establishment;
b.Controlling selection, training and supervision of staff. In this regard, the applicant has the critical decision with respect to the appointment of permanent staff, where no evidence of the exercise of this responsibility has been demonstrated;
c.Formulating and implementing purchasing and marketing policies, and setting prices, which is basically part of the franchise contract services.

The Tribunal is not satisfied that the scale and size of the operation of the business warrants or supports the position of a Retail Manager. In the Tribunal’s view, it is a quantum leap to place the nominated supervisory position within a Service Station, with limited staff and transactional responsibility, with that of a genuine retail outlet of scale, that would encompass the full scope of managerial duties and responsibilities, as is intended in the ANZSCO Code: 142111 descriptor. As such, the Tribunal is not satisfied that the position can be classified as a Retail Manager and is in fact, in the Tribunal’s view, a Retail Supervisor, particularly given the retention of higher-level functions by the owner, which would include budgeting and financial planning, franchise management, and business accounting and payroll services.
Accordingly, the requirements of r.5.19(4)(h) are not met.
For the above reasons the Tribunal is not satisfied that the applicant meets the requirements of r.5.19(4). The applicant has not sought to satisfy the criteria in Direct Entry Nomination stream, and as such has not met the requirements in r.5.19(3). Accordingly, the nomination of the position cannot be approved. Therefore, the Tribunal must affirm the decision under review.
DECISION
The Tribunal affirms the decision under review to refuse the nomination.
Warren Stooke AM
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 1217

18 February 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Statutory Construction

Procedural Fairness

Jurisdiction