The Trustee for Aarav and Shanaya Unit Trust (Migration)

[2021] AATA 3760

The Trustee for Aarav and Shanaya Unit Trust (Migration) [2021] AATA 3760 (14 September 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  The Trustee for Aarav and Shanaya Unit Trust

CASE NUMBER:  1837716

HOME AFFAIRS REFERENCE(S):          BCC2017/1981282

MEMBER:De-Anne Kelly

DATE:14 September 2021

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decision under review to refuse the nomination.

Statement made on 14 September 2021 at 12:48pm

CATCHWORDS
MIGRATION – nomination– Direct Entry nomination stream – job description does not correspond overall with the key tasks of a Retail Manager – not satisfied that the applicant is actively operating a business –  no current and up to date evidence available to the Tribunal– decision under review affirmed

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, r 5.19

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 13 December 2018 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 5 June 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 the tasks to be preformed in the nominated position did not correspond to the tasks of an occupation specified in the relevant instrument being Retail Manager ANZSCO 142111.

5. The applicant was represented in relation to the review however the agent’s registration lapsed and the Tribunal sent advice to this effect and invited the applicant to appoint a new representative. There was no response to this advice and the Tribunal is forwarding correspondence to both the lapsed agent and the applicant as a result.

6. For the following reasons, the Tribunal has decided to affirm the decision under review to refuse the nomination.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. 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.

8. On 5 June 2017, the applicant lodged a Regional Sponsored Migration Scheme employer nomination - Visa subclass 187 in the direct entry stream for the position of Retail Manager on $50,000 per annum to be employed at Toowoomba QLD 4350 in favour of Ms Vaneet KAUR.

   Nominator is actively and lawfully operating a business in Australia: reg 5.19(4)(b)

9. 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 an identified person as a paid employee to work in the position under their direct control.

10. In the invitation sent by the Tribunal it requested updated evidence of financial circumstances such as tax returns for the last two full financial years and BAS statements lodged with the ATO for the past 24 trading months to demonstrate that the business is actively and lawfully operating.

11. The applicant did not provide updated information in response to the invitation and the Tribunal can only examine the evidence it has to hand which is scant and being documents that relate to FY 2017. The Tribunal cannot be satisfied on the evidence to hand that the applicant is actively operating a business and as such reg.5.19(4)(b)(i) is not met.

12. Accordingly, the requirement in r.5.19(4)(b) is not met.

    Term of employment of the visa holder: reg 5.19(4)(d)

13. 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. 

14. In the invitation sent by the Tribunal it requested updated evidence of financial circumstances such as tax returns for the last two full financial years and BAS statements lodged with the ATO for the past 24 trading months to demonstrate that the business is financially viable such that it can employ the person (the nominee) on a full time basis for at least two years.

15. The applicant did not provide updated information in response to the invitation and the Tribunal can only examine the evidence it has to hand which is scant being documents that relate to FY 2017. The Tribunal cannot be satisfied on the evidence to hand that the nominator has the financial capacity such that the employee (the nominee) will be employed on a full-time basis in the position for at least 2 years and as such reg.5.19(4)(d)(i) is not met.

16. Accordingly, the requirement in reg 5.19(4)(d) is not met.

    Tasks of the position, genuine need for the position and training requirements reg 5.19(4)(h)

17. Regulation 5.19(4)(h) contains a number of alternative requirements. These are set out in detail in the attachment to the decision but can be briefly summarised as requiring either that:

    ·the tasks to be performed in the position will be performed in Australia and correspond to those of an occupation specified by the Minister in a legislative instrument, 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.

    Tasks of the nominated position – reg.5.19(4)(h)(ii)(D).

18. In the invitation the Tribunal asked the applicant to provide updated information on the organisational structure of the business that includes all the employees, their position/duties and their immigration status and also information about the roles and duties of the nominates position and how they correspond to the nominated occupations position description.

19. It also requested a job description, work samples, emails, correspondence and other examples of the daily tasks performed in the nominated position and also the nominated positions description in the ANZSCO.

20. It is noted that the business is a 7-Eleven franchise and the Tribunal considered the  information provided with the original application including an organisation chart showing two directors overseeing the other staff including the nominated position which indicates that the directors make decisions on the higher level managerial tasks of a Retail Manager. It is also noted that the job description does not correspond overall with the key tasks of a Retail Manager.

21. There was no response to the invitation and the Tribunal is left with no contemporary information such that it can be satisfied  that 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 namely Retail Manager.

22. The requirements of reg. 5.19(4)(h)(ii)(D) are not met.

23. Accordingly, the requirements of reg 5.19(4)(h) are not met.

24. Accordingly, the requirements of reg 5.19(4) are not met.

25. For the above reasons the Tribunal is not satisfied that the applicant meets the requirements of reg 5.19(4). The applicant has not sought to satisfy the criteria in Temporary Residence Transition Nomination stream, and as such has not met the requirements in reg 5.19(3). Accordingly, the nomination of the position cannot be approved. Therefore, the Tribunal must affirm the decision under review.

    DECISION

26. The Tribunal affirms the decision under review to refuse the nomination.

    De-Anne Kelly
    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).