Sur Holdings Pty. Ltd. (Migration)

Sur Holdings Pty. Ltd. (Migration) [2020] AATA 3111 (2 June 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Sur Holdings Pty. Ltd.
CASE NUMBER:  1800144
HOME AFFAIRS REFERENCE:               BCC2016/2941905
MEMBER:Lilly Mojsin
DATE:2 June 2020
PLACE OF DECISION:  Sydney
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Statement made on 2 June 2020 at 1.00 pm
CATCHWORDS
MIGRATION – Employer Nomination – approval of nominated position – Direct Entry nomination stream – Retail Manager – service station – tasks of the nominated position – business located in regional Australia – difficulty in finding qualified staff – 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 Immigration on 18 December 2017 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).
On 5 September 2016, Sur Holdings Pty Ltd trading as Shell Denham lodged a Regional Employer Nomination (Permanent) (Class RN) nomination under the direct entry stream for the position of Retail Manager (ANZSCO 142111). The nominee was Deepak Setia[1].
[1] AAT 1804005
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 (r.5.19(3)) stream and a Direct Entry nomination (r.5.19(4)) stream. 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 review, 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) of the Regulations because the delegate found that tasks to be performed in the position did not correspond to the tasks of an occupation specified by the Minister in an instrument in writing.
The applicant appeared before the Tribunal, by telephone, on 29 April 2020, to give evidence and present arguments in joint hearing with the nominee, Deepak Setia.
The Tribunal received oral evidence from Vikas Bansal representing the applicant and Deepak Setia, the nominee.
The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this review and the individual circumstances of the applicant.
The Tribunal also had regard to the Tribunal's objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone.
The applicant and the nominee both consented to the hearing being conducted by telephone. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.
The applicant was represented in relation to the review by its registered migration agent who attended the Tribunal hearing.
CONSIDERATION OF CLAIMS AND EVIDENCE
The applicant owns a service station in Denman NSW 2128. The business commenced in March 2007. The submitted organisation chart indicates Vikas Bansal, Brijesh Kalra and Rupinder Bhatia are the Directors of the company and the nominated position reports to the Managing Director, Vika Bansal. A letter from the applicant’s accountant states that Vikal Bansal and Brijesh Kalra are multi businesses operators and have business network spread across NSW and QLD. They have more than a dozen businesses/properties that they manage from their head office located at 7/14 Coal street, Bundamba, QLD 4304. They are not directly involved in the day to day operations of any of the businesses.
The applicant provided to the Department the following documents:
-ABN Lookup
-ASIC basic extract
-Org structure chart x2
-ATO lodged BAS 04/15 to 03/16
-Financial statements FY16 x2
-Financial statements FY15
-Employee contract 23/08/2016
-Fair work ombudsman report – 14/07/2016
-Employer letter re: genuine need
-Job advertisement 27/07/2016
-Payscale
-Retail manager pay stats
-RSMS – RCB advice 04/11/16
-Summary of recruitment efforts DHA form – 07/10/2016
The applicant provided to the Tribunal the following documents:
-Summary of recruitment efforts DHA form – 07/10/2016
-Job advertisement 27/07/2016
-Statement re: unsuitability of applicants
-PAYG FY18
-PAYG FY19
-Income tax assessment FY18
-Income tax assessment FY19
-Payroll receipts x2
-Promotions work examples
-Photos of store
-RSMS – RCB advice 04/11/16
-Sales actual/expected
-Fuel customer checklist
-Weekly sales comparison
-Bank statements
-New employee instruction checklist
-Invoices
-Nominee reference
-Employee duty checklist 12/11/17
-Fuel supply agreement
-Organisation chart (Caltex Denman)
-Organisation chart (head office)
-Elgas invoice
-Petroleum invoice
-Repair and maintenance invoices
-Supplier list
-Communications with directors
-Communication with staff and diary notes
-ATO lodged BAS 01/18 to 12/19
-ASIC historical extract
-ASIC Registration of Business Name
-Financial statements FY18
-Company tax return FY18
-Financial statements FY19
-Company tax return FY19
-Communications with suppliers
-Lease 18/04/2007
-Letter from accountant 19/02/2020
-Offer of employment to nominee 23/08/2016
-Letter from accountant 19/02/2020
-Payscale
-Seek
-Written submission 19/02/2020
-Employment contract signed 02/2020
-Offer letter 02/2020
-Statutory Declaration Rebecca Cruickshanks
At the Tribunal hearing, the Tribunal drew to the attention of the applicant that whilst the delegate decided the application on criteria found in r.5.19(4)(h)(ii) and found that tasks to be performed in the position did not correspond to the tasks of an occupation specified by the Minister in an instrument in writing, the Tribunal would make a decision based on meeting all the relevant criteria in r.5.19.
REASONS AND FINDINGS
The issue in this review 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.
In this review, the applicant is seeking to satisfy the criteria in the Regional Sponsored Migration nomination stream.
The Tribunal has had regard to the Department file and the submission made by the applicant’s adviser.
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 (the Act). 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 Tribunal finds that the application was made in accordance with the approved form, accompanied by the fee prescribed in r.5.37 and included a written certification by the nominator stating the nominator has not engaged in conduct, in relation to the nomination, that constitutes a contravention of s.245AR(1) of the Act.
The Tribunal finds that the applicant meets r.5.19(4)(a)(i).
The Tribunal has considered Departmental Policy guidance in assessing r.5.19(4)(a)(ii) that requires the nomination to identify a need for a paid employee to work in the position under the direct control of the nominator. Documents provided by the applicant show the organisational structure of the applicant business, and the nominator attests to a need to employ a paid employee to work in the position under the nominator's direct control.
The position and occupation was identified as Retail Manager (ANZSCO 142111). At present the nominator only has one position for the role of Retail Manager, being the nominated position. The applicant’s representative is the Managing Director who appeared before the Tribunal. The nominee has been employed by the nominator since 2015, firstly in the position of assistant manager working on a part-time basis and since December 2019 in the full-time role of Retail Manager. The applicant now has 5 employees including the nominee. The 4 others are console operators. They had 5 previously.
A written certification stating that the nominator has not engaged in conduct in relation to the nomination that contravenes s.245AR(1) of the Act was provided.
The Tribunal finds that the applicant meets r.5.19(4)(a)(ii).
Accordingly, the requirement in r.5.19(4)(a) is met.
Regulation 5.19(4)(b) requires that applicant is actively, lawfully and directly operating a business in Australia. The applicant has provided financial details, taxation information and ASIC information. The applicant’s business in 2019 had a $4 800 000 turnover and the business generated a profit. On the information before the Tribunal, the Tribunal finds that the applicant is actively and lawfully operating a business in Australia and the applicant directly operates that business.
Accordingly, the requirement in r.5.19(4)(b) is met.
Regulation 5.19(4)(c) applies to nominators whose business activities include those relating to labour-hire to an unrelated business. There is no information to indicate that it is involved in labour-hire activities.
Accordingly, the requirement in r.5.19(4)(c) does not apply.
According to the employment contract provided, the nominee will be employed as a Retail Manager (ANZSCO 142111) on a full-time basis for a minimum term of 2 years. There is nothing in the terms of the contract to exclude the possibility of an extension. The nominee commenced working for the applicant in 2015 initially on a casual basis. Thereafter he worked on a permanent part time basis with variable working hours until the approval of the visa. The applicant has provided details of the nominee’s salary. The Tribunal accepts that there is a continual growth in the revenue of the business and that expenditure on wages and salaries in the year ended 30 June 2019 is consistent with the current staffing structure and there is sufficient income generated by the business for the employment of the nominee.
The Tribunal is satisfied that the applicant has the financial capacity to employ the nominee and the Tribunal accepts that the employment will be employed full-time for at least two years.
Accordingly, the requirement in r.5.19(4)(d) is met.
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.
There is no Australian citizen or Australian permanent resident currently performing the equivalent work to the nominated position in the nominator’s business.
The applicant explained that the nominee was offered $48000 initially when the offer was made in December 2017. Now the contract is for $55 000. Information provided to the Tribunal[2] indicates that a Manager role will attract a salary of $52,364 per annum plus superannuation (9.5% per annum)”. The applicant only earned $36 646 in 2017 [PAYG summary]. The Tribunal accepts that at that time he was not working 38 hours in a manager role, he could only work 20 hours at that time. When he obtained full time work rights in 2019 he worked 38 hours from December 2019. Until then the role of manager had been split between the applicant and Rebecca Cruickshanks, who has attested that she no longer works in the business in management, but as a console operator due to her personal circumstances.
[2] Document Market Based Salary
There is provision for annual and personal leave under the employment contract between the nominator and nominee and the Tribunal accepts that it is consistent with the National Employment Standards.
The Tribunal finds that the terms and condition applicable to the position will be no less favourable than those that are/would be provided to an Australian citizen or permanent resident performing equivalent work in the same workplace at the same location.
Accordingly, r.5.19(4)(e) is satisfied.
Regulation 5.19(4)(f) requires that there is no adverse information known to the Department 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 adverse information about the nominator or a person 'associated with' the nominator before the Tribunal.
Accordingly the requirements of r.5.19(4)(f) are met.
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 adverse information about the applicant before the Tribunal, in this regard. Therefore the Tribunal is satisfied that the applicant has a satisfactory record of compliance.
Accordingly the requirements of r.5.19(4)(g) are met.
Regulation 5.19(4)(h) contains a number of alternative requirements. Relevantly:
· the tasks to be performed in the position will be performed in Australia and correspond to those of an occupation specified by the Minister (legislative instrument IMMI 18/043), 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 nomination was made on the basis that tasks to be performed in the position will be performed in Australia and correspond to those of an occupation specified by the Minister.
The tasks to be performed in the nominated position are detailed Retail Manager as described in Position Description document[3]. The applicant attests to the nominee having responsibilities and tasks as detailed in ANZSCO: 141311.
[3] BCC2016/2941905
The Tribunal is satisfied that the tasks correspond to the tasks of the occupation of Retail Manager (ANZSCO 142111) as specified in the relevant instrument IMMI 16/059.
Accordingly the requirements of r.5.19(4)(h)(i)(A) are met.
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, 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.
51.     The nomination was made on the basis that the position and business is located in regional Australia. The Tribunal finds that Denman postcode 2128, is a New South Wales postcode, and is a part of Australia specified as 'regional Australia', and the business is located there.
52.     The Tribunal accepts the evidence of the applicant that the applicant has difficulty in finding qualified staff due to the location of Denman in regional Australia.
53.     The occupation of Retail Manager (ANZSCO 142111) is listed in the relevant instrument.
Description
organise and control the operations of establishments which provide retail services.
Tasks
·     determining product mix, stock levels and service standards
·     formulating and implementing purchasing and marketing policies, and setting prices
·     promoting and advertising the establishment's goods and services
·     selling goods and services to customers and advising them on product use
·     maintaining records of stock levels and financial transactions
·     undertaking budgeting for the establishment
·     controlling selection, training and supervision of staff
·     ensuring compliance with occupational health and safety regulations
Skill Level
Most occupations in this unit group have a level of skill commensurate with the qualifications and experience outlined below.
In Australia:
AQF Associate Degree, Advanced Diploma or Diploma (ANZSCO Skill Level 2)

At least three years of relevant experience may substitute for the formal qualifications listed above. In some instances relevant experience and/or on-the-job training may be required in addition to the formal qualification.
54.     The Tribunal was provided with submissions and evidence that the nominee is to be engaged as a Retail Manager in accordance with, and as prescribed in, the instrument.
55.     The applicant attests to the nominee having responsibilities and tasks as detailed in ANZSCO: 142111. The Tribunal finds that the details of the tasks provided by the applicant correspond to those of a Retail Manager, an occupation that listed in the relevant instrument.
56.     The relevant Regional Certifying Body (RCB) must certify that the terms and conditions applicable to the nominated position were no less favourable that the terms and conditions that were, or would be, provided to an Australian citizen or permanent resident performing equivalent work in the same workplace at the same location
57. Regional Development Australia - Hunter, which is a Regional Certifying Body (RCB) located in the same State as the position, completed a Form 1404 and has advised the Minister about the matters in r.5.19(4)(e) and r.5.19(4)(h)(ii)(B) & (C) on 4 November 2016. Accordingly, the requirements of r.5.19(4)(h) are met.
58. 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
59.     The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.
Lilly Mojsin
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).

[2020] AATA 3111

2 June 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Appeal