Shiv Blessings Pty. Ltd. (Migration) - [2022] AATA 816

Shiv Blessings Pty. Ltd. (Migration) [2022] AATA 816 (6 April 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Shiv Blessings Pty. Ltd.
REPRESENTATIVE  Vanessa De Pretis (MARN: 1388116)
CASE NUMBER:  1901401
HOME AFFAIRS REFERENCE(S):          BCC2017/1166426
MEMBER:De-Anne Kelly
DATE:6 April 2022
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision under review to refuse the nomination.

Statement made on 06 April 2022 at 9:51am
CATCHWORDS
MIGRATION – application for approval of nomination of position – direct entry nomination stream – retail manager – position in franchise – no franchise agreement or position description provided – owners perform most and higher tasks – labour market testing – nominee’s franchise training undertaken three months before position advertised – purpose and scope of training – employment agreement signed before position advertised – job advertisement did not specify required experience – advice of regional certifying body not binding – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 359AA, 360
Migration Regulations 1994 (Cth), r 5.19(4)(h)(ii)(C), (D)
CASE
Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27
Bharaj Construction Pty Ltd v MIBP [2016] FCCA 902
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW
1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 14 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).
2. The applicant applied for approval on 27 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).
3. In this case, the applicant has applied for approval of a nomination, seeking to satisfy the criteria in the Direct Entry nomination stream.
4. The delegate refused the application on the basis the applicant’s nomination did not satisfy reg 5.19(4)(h)(ii)(D) of the Regulations because it was noted the position was in a Brumbies retail outlet in Mountain Creek, QLD 4557 and that Brumbies was a franchise, but no franchise agreement was provided to provide context to the nominated position within the business. It was noted the organisation chart showed the nominated position has baker/assistant positions and retail/customer service positions reporting to it. The delegate noted that for many businesses like Brumby’s the nature of the franchise arrangement is such that a significant proportion of the business operation is pre-determined by the franchise agreement, which exercises influence over many areas of the business operation.
5. The delegate accepted that the nominated person had completed Retail Food Group courses, but given…

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 Shiv Blessings Pty. Ltd. (Migration)

Details

AGLC: Shiv Blessings Pty. Ltd. (Migration) [2022] AATA 816
Case: [2022] AATA 816
Decision Date: 6 April 2022

CaseChat Overview and Summary

This matter concerned an application by Shiv Blessings Pty. Ltd. for approval of a nomination for a position under the Direct Entry stream of the Regional Sponsored Migration Scheme. The nominated position was that of a Retail Manager, with the nominee being Mr. Sandeep Kumar. The application was reviewed by the Tribunal following a refusal of the nomination by the Department.

The primary legal issue before the Tribunal was whether Shiv Blessings Pty. Ltd. met all the legislative requirements for the approval of the employer nomination under regulation 5.19(4) of the Migration Regulations 1994. This involved assessing various aspects of the nomination, including the nature of the business, the genuineness of the need for the position, the labour market testing conducted, and the suitability of the nominee for the role.

The Tribunal's reasoning focused on several key deficiencies in the application. It was noted that the owners of the Brumby's Bakery franchise performed most of the higher-level tasks associated with managing the business, raising questions about the genuine need for a separate Retail Manager. Furthermore, the training undertaken by the nominee, Mr. Kumar, occurred three months prior to the advertisement of the position, and the employment agreement was signed before the advertisement, suggesting a pre-determined outcome rather than a genuine recruitment process. The job advertisement itself was also found to be lacking, as it did not specify the required experience for the role. While the advice of the Regional Certifying Body was considered, it was not determinative of the application's compliance with all regulatory requirements.

Ultimately, the Tribunal affirmed the decision under review to refuse the nomination. The Tribunal found that not all the requirements for approval under regulation 5.19(4) had been met, leading to the refusal of the employer nomination.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

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Evidence

Evidence Before The Court

Section 359AA provides as follows:(a) The Tribunal may orally give to the applicant clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and(b) if the Tribunal does so—the Tribunal must:(i)ensure, as far as is reasonably practicable, that the applicant understands why the information is relevant to the review, and the consequences of the information being relied on in affirming the decision that is under review; and(ii) orally invite the applicant to comment on or respond to the information; and(iii) advise the applicant that he or she may seek additional time to comment on or respond to the information; and(iv) if the applicant seeks additional time to comment on or respond to the information—adjourn the review, if the Tribunal considers that the applicant reasonably needs additional time to comment on or respond to the information.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 Tribunal considered the documents at Schedule 1 and it is noted that the applicant through their agent stated that documents submitted online to the visa applicants review case number 1906388 must be considered as part of the employer nomination review which the Tribunal has respected and listed in the Schedule. On 27 March 2017 the applicant Shiv Blessings Pty Ltd trading as Brumby’s Bakery lodged a Regional Sponsored Migration Scheme employer nomination in the Direct Entry Stream for the position of Retail Manager on $50,000 per annum in favour of Mr Sandeep Kumar to be employed at Mountain Creek QLD 4557. Mrs Ravisha Bai represented the applicant and gave an overview of the business. Shiv Blessing Pty Ltd is the name of the company and operates as Brumby’s Bakery Mountain Creek and she is the director. Mrs Bai has several businesses and this one opened in 2017 but when she became pregnant with her second child she could not look after the business on her own and she asked her husband to employ a manager. Mr Kumar, the nominee was employed in another business and worked alongside Ms Bai’s husband. The question for the Tribunal is whether all the employer nomination legislative requirements are met. She advised they advertised on Seek.com and got a few candidates but not as good as Mr Kumar as they were technicians or electricians and were not right for the role and the nominee already had a lot of experience and leadership qualities and was working with them already. Mrs Bai advised the nominee had already done the training for 6 weeks at head office. The Tribunal asked when he had done this training and Mrs Bai said she could not remember as it was a long time ago, maybe March 2017. The Tribunal referred her to the certificate it had from Retail Training Group dated 16 December 2016 and asked if that would be the training to which she was referring. She said “Yes, that is correct”. The Tribunal asked if that was the training run by Brumby’s and she responded “Yes”. When the Tribunal asked if Brumby’s charged a fee for the training, Mrs Bai answered yes, but she could not remember the amount she had paid.Cannot be filled. r.5.19(4)(h)(ii)(C)

Decision

Reasons for decision

For the following reasons, the Tribunal has decided to affirm the decision under review to refuse the nomination.Interpretation On a number of occasions, the Tribunal asked if the interpretation was clear and understood and each occasion the applicant indicated that it was clear and there was nothing “difficult”. The answers to enquiries from the Tribunal were in context and again indicated the interpretation was clear and unambiguous.Section 359AA of the Act At the commencement of the hearing, the Tribunal explained that it may put information to the applicant, under s.359AA of the Act, that would be the reason, or a part of the reason, for affirming the decision that is under review and that it would explain why this information was relevant to the decision and how it may be relied upon in reaching a decision. The Tribunal also advised that the applicant would be given an opportunity to respond to this information in one of three ways: they could request an adjournment and the hearing could be stopped for 15 or 20 minutes or whatever period of time they wished and they could seek advice from the registered migration agent and they could respond in the hearing. Under s.360 of the Migration Act 1958 (Cth.) the Tribunal must invite the applicant to a hearing to give evidence and present arguments relating to issues arising in relation to the review and this affords the applicant the opportunity to canvas information before the Tribunal. Section 359AA provides as follows:(a) The Tribunal may orally give to the applicant clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and(b) if the Tribunal does so—the Tribunal must:(i)ensure, as far as is reasonably practicable, that the applicant understands why the information is relevant to the review, and the consequences of the information being relied on in affirming the decision that is under review; and(ii) orally invite the applicant to comment on or respond to the information; and(iii) advise the applicant that he or she may seek additional time to comment on or respond to the information; and(iv) if the applicant seeks additional time to comment on or respond to the information—adjourn the review, if the Tribunal considers that the applicant reasonably needs additional time to comment on or respond to the information.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 Tribunal considered the documents at Schedule 1 and it is noted that the applicant through their agent stated that documents submitted online to the visa applicants review case number 1906388 must be considered as part of the employer nomination review which the Tribunal has respected and listed in the Schedule.

Ratio Decidendi

Legal Principle Established

The Tribunal affirms the decision under review to refuse the nomination.De-Anne KellyMemberATTACHMENT - EXTRACTS FROM THE MIGRATION REGULATIONS 19945.19Approval 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).Schedule 1 – Documents – 1901401 – Shiv Blessings Pty LtdDocuments including the following were provided with the original application.1)Online employer nomination 27 March 2017.2)Acknowledgment of nomination application received 27 March 2017.3)Employment contract 1 March 2017 signed by Brumby’s Bakery and the nominee.4)Organisation chart showing Rvaishabai as Owner/Director and Sandeep Kumar as Owner/ Director with baker/ assistants and retail Customer Service officers.5)Regional Certifying Body approval including Form 1404 and RCB assessment 21 March 2017.6)Photos of interior of business.7)Brumby’s Mountain Creek – Business plan.8)Market salary analysis.9)Advertisement for position on Seek.com.10)Seek receipt for advertisement 8 February 2017.11)ABN registration.12)BAS statements 2017, 201813)Retail Food Group Training certificate “Sandeep Kumar, BBH, Mountain Creek, QLD You have graduated from the foundation training program of Retail Food Group (Australia) Academy. 16 December 2016. (Ms L) learning & Development Manager – Franchise. (Mr N) Managing Director. A statement of Attainment was attached that stated “Retail Food Group – Training – BBH” with a list of subjects as follows, Marketing & local area marketing, Business financials, training fundamentals, Customer Service, Industrial 101, Recruitment, Operational Excellence, BBH Operations Accounting, Task Retail and BBH COGS. At the banner bottom of the certificate is the following “retail Food Group- Strength in Brands” and a list of brands as follows ”Donut King, Brumby’s Bakery, Michel’s Patisserie, Crust Gourmet Pizza, Pizza Capers, Gloria Jeans Coffees, Di Bella Coffee, Esquires Coffee, BB’s Coffee(?), The Coffee Guy, Cafe2u, It’s a Grind – Coffee House, Evolution and Roasting Australia.”14)Selection of invoices from suppliers.15)Letter from the accountant 10 October 2018 regarding turnover.Documents including the following were provided with the review application.16)Notice of Decision – Employer nomination refusal.17)Franchise Agreement – Brumby’s Bakery.18)BAS 2019, 2020 and 2021.19)Text exchange between the nominee and staff in the business.20)Excel spreadsheet of menu items and prices.21)Seek advertisement for the position dated 7 February 2017.22)Letter from the applicant undated regarding the position and stating that the position was advertised on 7 February 2017 and “received few applicants apart from the nominee. The business does not believe there were any suitable/skilled Australian applicants interested in this role”.23)RCB assessment dated 21 March 2017.24)Sample of job Advertisements to demonstrate market salary analysis.25)ABN registration.26)Supplier tax invoices.27)CCIQ Assessment Statement.28)Employment contract dated 1 March 2017.29)Seek receipt.30)Resume for the nominee showing he worked for Nando’s from October 2013 – October 2016 and states he then worked from February 2017 – Current.31)Retail Food Group Training certificate and “Statement of Attainment”.32)ASIC extract showing that the nominee was appointed a director of the company on 6 April 2016 and that he holds 50% of the shares in the business.33)Notice of assessment for the nominee FY 2021, FY 2020 with respective gross income of $53,698 and $32,465.34)Food Safety Supervisor certificate granted to nominee on 25 November 2016.35)Samples of work output of the nominee as Manager.36)Financial statements 202037)Staff Roster.38)Organisation chart.39)Tax returns FY 2019, FY 2020.40)Brumby’s Bakery – “BBH Consumer View Checklist”.41)Retail Price Review.42)Sunshine Coast health inspection of premises.43)Payslips for the nominee FY 2021.44)Correspondence with ATO regarding superannuation compliance.45)Letter from the accountant regarding financial statements.46)Letter 23 November 2021 from the agent for both Case number 1901401 and 1906388.Documents including the following were provided following the hearings.47) Response by Agent 10 February 2022 to concerns raised in the hearing.