Swanstar Nominees Pty Ltd ATF Creasey Family Trust (Migration)

Swanstar Nominees Pty Ltd ATF Creasey Family Trust (Migration) [2021] AATA 2789 (17 June 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Swanstar Nominees Pty Ltd ATF Creasey Family Trust
CASE NUMBER:  1826903
HOME AFFAIRS REFERENCE(S):          BCC2018/1401532
MEMBER:Michelle East
DATE:17 June 2021
PLACE OF DECISION:  Perth
DECISION:The Tribunal affirms the decision under review to refuse the nomination.

Statement made on 17 June 2021 at 11:41am
CATCHWORDS
MIGRATION – Employer Nomination – approval of nominated position – Temporary Residence Transition stream – Retail Supervisor – 24-hour full-service McDonalds stores – holder of specified visa – Subclass 457 visa – labour agreements – decision under review affirmed
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 3 September 2018 to reject the applicant’s application for approval of the nomination of a position under reg 5.19 of the Migration Regulations 1994 (Cth) (the Regulations).
The applicant applied for approval on 26 March 2018. The requirements for the approval of the nomination of a position in Australia are found in reg 5.19 of the Regulations, which contains general requirements for approval and additional requirements for approval set out in three alternative streams: a Temporary Residence Transition stream, a Direct Entry stream and a Labour Agreement stream. If the application meets the requirements for approval then the application must be approved: reg 5.19(3)(a). If any of the requirements are not met then the application must be refused: reg 5.19(3)(b).
In this case, the applicant has applied for approval of a nomination, seeking to satisfy the criteria in the Temporary Residence Transition (‘TRT’) stream.
The applicant trades as McDonald’s Melville, O’Connor, Bicton, Beeliar Village, Spearwood and Murdoch in Western Australia. It has nominated the position of Retail Supervisor for approval.
The delegate refused the application on the basis the applicant’s nomination did not satisfy reg 5.19(5)(a)(i) of the Regulations because the identified person was not granted the subclass 457 visa on the basis of satisfying the criterion in subclause 457.223(4) of Schedule 2 as in force before 18 March 2018.
Mr Terence Creasey, Owner and Director of the applicant appeared before the Tribunal on 14 June 2021 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Brad Stannard who is the General Manager.
The applicant was represented in relation to the review by its registered migration agent who also attended the hearing.
The Tribunal would like to acknowledge the assistance given by Ms Tan, the representative, in this matter. The Tribunal is grateful for her efforts in these applications. The Tribunal would also like to state that it found both Mr Creasey and Mr Stannard to be genuine and forthright witnesses. They both gave credible and heartfelt evidence in relation to the business and to their nominees. The Tribunal was impressed with their level of commitment to their nominees and the genuine relationship which appears to exist between the parties.
Unfortunately, however, for the following reasons, the Tribunal has no choice other than 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 general requirements for approval of the nomination set out in reg 5.19(4) and the stream specific requirements set out in TRT reg 5.19(5). For the nomination to be approved, all the requirements must be met.
Visa held by identified person at time of application - reg 5.19(5)(a)
Regulation 5.19(5)(a) requires that the identified person holds a visa of a particular kind at the time the application for approval of the nominated position was made. There are several alternatives including:
·a Subclass 457 visa granted on the basis of satisfying the Standard Business Sponsorship stream (cl 457.223(4)); or
·a Subclass 482 visa in the Medium-term stream; or
·for persons specified in a legislative instrument, a Subclass 482 visa in the Short-term stream; or
·if the last substantive visa held was one of the above three visa types, a bridging visa granted on the basis they are an applicant for one of those visa types (for a Subclass 482 in the Short-term stream, only those persons specified in the legislative instrument), or for a Subclass 186 or 187 visa.
In this matter, the applicant nominated their nominee, Mr Dinno Aberin CANLAS, for the position of Retail Supervisor (ANZSCO 621511). The applicant owns and successfully operates several 24-hour full-service McDonalds stores in Perth, Western Australia.
During the review process, the applicant was invited by the Tribunal to provide a written submission on whether the requirement in r.5.19(5)(a)(i) is met in this case, or whether the alternative requirements in r.5.19(5)(a)(ii), (iii), (iv) or (v) apply. The applicant in their response conceded that at the time of the nomination application, Mr Canlas was the holder of a Subclass 457 visa granted under a labour hire agreement (valid until 5 September 2015). They further submitted that a request for a new labour agreement was submitted by Swanstar Nominees Pty Ltd on 24 February 2017, however on 2 March 2017, the then Minister of Immigration and Citizenship announced the immediate cessation of labour agreements for the fast food industry. After visiting the Melville McDonald’s store on 1 August 2017, the Minister indicated that if an individual business was able to demonstrate it required access to labour arrangements, a ‘company specific’ labour agreement request could be submitted for consideration. The applicant company then amended its labour agreement request previously submitted on 24 February 2017 to a ‘company specific’ request on 26 April 2017. On or about 17 March 2017, the Western Australian government suspended issuing regional certification advices in anticipation of changes to the Regional Sponsored Migration Scheme postcodes, with the Perth metropolitan area ultimately being removed from the definition of ‘regional Australia’ on 17 November 2017. The applicant has submitted that these changes have directly impacted its ability to make a nomination application in the Direct Entry stream and/or company specific labour arrangements, with the Department of Home Affairs on 8 May 2018 formally notifying the applicant that it would not be entering into a labour agreement with it because the business was not in a ‘regional’ area.
The Perth metropolitan area has been since included within the definition of ‘regional Australia’ and the applicant attempted to have another labour agreement approved by the Department of Home Affairs. In August 2020 the Department stated that approving a labour agreement during the Covid-19 pandemic may negatively impact re-employment prospects for recently displaced local Australians.
It is clear to the Tribunal that the applicant has used every possible effort in pursuing visa options so as to retain the proposed nominee in the position of Retail Supervisor. In these circumstances, the applicant has had little choice other than to proceed with the review of the decision to refuse the nomination, with a view to ultimately bringing the matter to the Minister for Intervention with the assistance of its qualified representative.
Mr Creasey gave compelling evidence at the hearing regarding the close bond he has with his nominees. He has a large workforce across his stores with a small component consisting of workers he has sponsored. In his evidence he described the investment his company has made in training his nominees. It is clear to the Tribunal that the applicant has invested a significant amount of time and resources in its nominees.
Mr Creasey repeatedly told the Tribunal in his evidence that he is committed to the employment, training and development of Australian citizens and permanent residents. He said it is often difficult to retain staff in times of a mining boom when salaries cannot be matched. He further stated that in the current pandemic environment, attracting and securing staff is even more difficult. The Tribunal notes anecdotal evidence of labour shortages within the hospitality industry at the moment which is well reported.
The Tribunal is very sympathetic to the applicant’s position. It has no doubt that Mr Creasey’s concern for his proposed nominee’s welfare is genuine, both as an employer and also what he describes as part of his McDonald’s ‘family’.
For the applicant to succeed in this review, it is required to demonstrate that at the time of the nomination application, the proposed nominee held a Subclass 457 visa on the basis of satisfying the standard business sponsorship stream.
A review of the nominee’s immigration records, as outlined in the delegate’s decision demonstrates that at the time of the nomination application, the nominee held a subclass 457 visa on the basis of satisfying the criterion in subclause 457.223(2). That is, the subclass 457 visa was granted on the basis of having their nomination made under a labour agreement.
For this nomination to be successful, the nominee needs to have been granted his subclass 457 visa on the basis of satisfying the criterion in subclause 457.223(4). That is, the nomination needs to have been made under the standard business sponsorship stream.
The Tribunal finds on the information available to it that the subclass 457 visa which the nominee held at the time of this application was not a Subclass 457 Temporary Work (Skilled) visa granted on the basis that the nominee satisfied the criterion in subclause 457.223(4) of Schedule 2 as in force before 18 March 2018. Instead it finds that the nominee was granted a Subclass 457 visa granted on the basis that the nominee satisfied the criterion in subclause 457.223(2) which relates to nominations made under a labour agreement.
Therefore, subparagraph 5.19(5)(a)(i) is not met.
As the proposed nominee held a Subclass 457 visa at the time the nomination application was made, the alternative requirements in subparagraphs 5.19(5)(a)(ii), (iii), (iv), (v) and (vi) are not met.
Given the above findings, the Tribunal is not satisfied that reg 5.19(5)(a) is met. Accordingly, reg 5.19(4)(e) is not met.
For these reasons the Tribunal is not satisfied that the applicant meets the requirements of reg 5.19. Accordingly, reg 5.19(3)(b) requires that the nomination must be refused. The decision under review must be affirmed.
DECISION
The Tribunal affirms the decision under review to refuse the nomination.
Michelle East
Member

ATTACHMENT – EXTRACTS FROM THE MIGRATION REGULATIONS 1994
5.19Approval of nominated positions—Subclass 186 (Employer Nomination Scheme) visa and Subclass 187 (Regional Sponsored Migration Scheme) visa
Application
(1)A person (the nominator) (including a partnership or unincorporated association) may apply to the Minister for approval of the nomination of a position in Australia.
(2)The application must:
(a)be made in accordance with approved form 1395 (Internet); and
(b)identify the position; and
(c)identify a person (the identified person) in relation to the position; and
(d)identify an occupation in relation to the position; and
(e)identify the subclass and stream to which the nomination relates, which must be one of the following:
(i)a Subclass 186 (Employer Nomination Scheme) visa in the Temporary Residence Transition stream;
(ii)a Subclass 187 (Regional Sponsored Migration Scheme) visa in the Temporary Residence Transition stream;
(iii)a Subclass 186 (Employer Nomination Scheme) visa in the Direct Entry stream;
(iv)Subclass 187 (Regional Sponsored Migration Scheme) visa in the Direct Entry stream;
(v)a Subclass 186 (Employer Nomination Scheme) visa in the Labour Agreement stream; and
(f)be accompanied by the fee mentioned in regulation 5.37; and
(g)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.
Approval of nomination
(3)The Minister must, in writing:
(a)approve the nomination if the Minister is satisfied that the requirements set out in subregulation (4) are met; or
(b)otherwise—refuse to approve the nomination.
Requirements for approval—general
(4)The requirements to be met for the nomination to be approved are as follows:
(a)the application is made in accordance with subregulation (2);
(b)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;
(c)if it is mandatory, in the State or Territory in which the position is located, for a person to:
(i)hold a licence of a particular kind; or
(ii)hold registration of a particular kind; or
(iii)be a member (or a member of a particular kind) of a particular professional body;
to perform tasks of the kind to be performed in the occupation, the identified person is, or is eligible to become, the holder of the licence, the holder of the registration, or a member of the body, at the time of application;
(d)the nominator has a satisfactory record of compliance with the laws of the Commonwealth, and of each State or Territory in which the nominator operates a business and employs employees in the business, relating to employment;
(e)if the nomination relates to a visa in a Temporary Residence Transition stream—the requirements set out in subregulation (5) are met;
(f)if the nomination relates to a visa in a Direct Entry stream—the requirements set out in subregulation (9) are met;
(g)if the nomination relates to a visa in a Labour Agreement stream—the requirements set out in subregulation (14) are met.
Temporary Residence Transition stream—additional requirements for approval
(5)If the nomination relates to a visa in a Temporary Residence Transition stream, the following requirements must also be met:
(a)at the time the application is made, the identified person holds:
(i)a Subclass 457 (Temporary Work (Skilled)) visa granted on the basis that the person satisfied the criterion in subclause 457.223(4) of Schedule 2 as in force before 18 March 2018; or
(ii)a Subclass 482 (Temporary Skill Shortage) visa in the Medium‑term stream; or
(iii)for a person specified in a legislative instrument made by the Minister for the purposes of this subparagraph—a Subclass 482 (Temporary Skill Shortage) visa in the Short‑term stream; or
(iv)if the last substantive visa held by the identified person was a visa mentioned in subparagraph (i), (ii) or (iii)—a bridging visa granted on the basis that the person is an applicant for a visa mentioned in subparagraph (i) or (ii); or
(v)if the last substantive visa held by the identified person was a visa mentioned in subparagraph (i), (ii) or (iii)—for a person specified in a legislative instrument made under subparagraph (iii), a bridging visa granted on the basis that the person is an applicant for a visa mentioned in subparagraph (iii); or
(vi)if the last substantive visa held by the identified person was a visa mentioned in subparagraph (i), (ii) or (iii)—a bridging visa granted on the basis that the person is an applicant for a Subclass 186 (Employer Nomination Scheme) visa or a Subclass 187 (Regional Sponsored Migration Scheme) visa;
(b)the occupation:
(i)is listed in ANZSCO; and
(ii)has the same 4‑digit ANZSCO occupation unit group code as the occupation in relation to which the identified person’s most recently held Subclass 457 (Temporary Work (Skilled)) visa or Subclass 482 (Temporary Skill Shortage) visa was granted;
(c)unless a legislative instrument made under subregulation (8) exempts the identified person from the operation of this paragraph—the occupation must:
(i)be an occupation specified in an instrument made under subregulation (8) and in force at the time the application is made; and
(ii)apply to the identified person in accordance with an instrument made under that subregulation;
(d)either:
(i)there is no information known to Immigration that indicates that the identified person is not genuinely performing the tasks of the occupation as specified in ANZSCO; or
(ii)it is reasonable to disregard any such information;
(e)during the period of 4 years immediately before the application is made, the identified person held one or more of the following for a total period of at least 3 years:
(i)a Subclass 457 (Temporary Work (Skilled)) visa granted on the basis that the person satisfied the criterion in subclause 457.223(4) of Schedule 2 as in force before 18 March 2018;
(ii)a Subclass 482 (Temporary Skill Shortage) visa in the Medium‑term stream;
(iii)for a person specified in a legislative instrument made under subparagraph (a)(iii)—a Subclass 482 (Temporary Skill Shortage) visa in the Short‑term stream;
(f)unless paragraph (g) applies—during the period of 4 years immediately before the application is made, the identified person was employed in the position in relation to which the visa, or visas, mentioned in paragraph (e) were granted:
(i)for a total period of at least 3 years (not including any periods of unpaid leave); and
(ii)on a full‑time basis, with the employment being undertaken in Australia;
(g)if the visa, or visas, mentioned in paragraph (e) were granted in relation to an occupation specified in an instrument made under subregulation 2.72(13)—during the period of 4 years immediately before the application is made, the identified person was employed in the occupation for a total period of at least 3 years (not including any periods of unpaid leave);
(h)the nominator:
(i)was the standard business sponsor who last identified the identified person in a nomination approved under section 140GB of the Act; and
(ii)is actively and lawfully operating a business in Australia;
(i)unless it is reasonable to disregard subparagraphs (i) and (ii)—the nominator:
(i)fulfilled any commitments the nominator made relating to meeting the nominator’s training requirements during the period of the nominator’s most recent approval as a standard business sponsor; and
(ii)complied with the applicable obligations under Division 2.19 relating to the nominator’s training requirements during the period of the nominator’s most recent approval as a standard business sponsor;
(j)the application identifies a need for the identified person to be employed in the position, under the direct control of the nominator;
(k)there is a genuine need for the identified person to be employed in the position, under the direct control of the nominator;
(l)the identified person will be employed on a full‑time basis in the position for at least 2 years;
(m)the terms and conditions of the identified person’s employment will not include an express exclusion of the possibility of extending the period of employment;
(n)the nominator’s business has the capacity to employ the identified person for at least 2 years and to pay the person at least the annual market salary rate for the occupation each year;
(o)the requirements set out in subregulation 2.72(15) are met, applying subregulations 2.72(15) and (16) as if:
(i)paragraph 2.72(15)(a) did not apply; and
(ii)references to the nominee were references to the identified person; and
(iii)references to the person were references to the nominator;
(p)either:
(i)there is no information known to Immigration that indicates that the employment conditions (other than in relation to earnings) that will apply to the identified person are less favourable than those that apply, or would apply, to an Australian citizen or an Australian permanent resident performing equivalent work at the same location; or
(ii)it is reasonable to disregard any such information;
(q)the nominator has provided the information required by the Minister for the purposes of paragraph (k) to (n).
Minister may vary certain Temporary Residence Transition stream requirements
(6)The Minister may, by legislative instrument, determine different periods of time for the purposes of paragraphs (5)(e), (f) and (g) for persons specified in the instrument.
(7)Paragraphs (5)(j), (k) and (l) do not apply in relation to occupations specified in an instrument made under subregulation 2.72(13).
(8)The Minister may, by legislative instrument, specify:
(a)occupations for the purposes of paragraph (5)(c); and
(b)persons who are exempt from the operation of that paragraph; and
(c)for each occupation, any matters for the purposes of determining whether the occupation applies to an identified person, including matters relating to any of the following:
(i)the nominator;
(ii)the identified person;
(iii)the occupation;
(iv)the position in which the identified person is to work;
(v)the circumstances in which the occupation is undertaken;
(vi)the circumstances in which the person is to be employed in the position.

[2021] AATA 2789

17 June 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Statutory Construction