The Trustee for MCHOME Trust (Migration) - [2023] AATA 1412

The Trustee for MCHOME Trust (Migration) [2023] AATA 1412 (17 May 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  The Trustee for Mchome Trust
REPRESENTATIVE:  Mr Nigel James Dobbie (MARN: 9370721)
CASE NUMBER:  1924319
HOME AFFAIRS REFERENCE(S):          BCC2018/791731
MEMBER:Terrence Baxter
DATE:17 May 2023
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Statement made on 17 May 2023 at 11:38am
CATCHWORDS
MIGRATION – application for approval of nomination of position – direct entry stream – post office manager – genuine need for position and position cannot be filled by citizen or permanent resident – combined hearing with review of visa refusal – documentary and oral evidence by director of applicant and nominee – director’s other business affairs and care of young children – position re-advertised after nomination and visa refused, with only one applicant – certification by regional certifying body – decision under review set aside
LEGISLATION
Migration Regulations 1994 (Cth), r 5.19(4)(h)(ii)(B), (C)
CASES
Bharaj Construction Pty Ltd v MIBP [2016] FCCA 902
MIBP v Jayshree Enterprises Pty Ltd [2017] FCA 264
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 August 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, correctly described as Mchome Group Pty Ltd as the trustee for the Mchome Trust, applied for approval on 18 February 2018. The applicant nominated Ms Qiong Wang (the nominee) in the position of Post Office Manager. The applicant has operated a Licensed Post Office at Wilsonton, an urban locality in the Toowoomba, Queensland region since 2017. The applicant has employed the nominee on a casual basis since October 2017 and as a full-time Post Office Manager since July 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 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.
The delegate refused the application on the basis the applicant’s nomination did not satisfy:
a.reg 5.19(4)(h)(ii)(B) of the Regulations because the delegate found that the applicant had not demonstrated that there was a genuine need for the nominator to employ the nominee as a paid employee to work in the position under the nominator’s direct control; and
b.reg 5.19(4)(h)(ii)(C) of the Regulations because the delegate found that the applicant had not…

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 The Trustee for MCHOME Trust (Migration)

Details

AGLC: The Trustee for MCHOME Trust (Migration) [2023] AATA 1412
Case: [2023] AATA 1412
Decision Date: 17 May 2023

CaseChat Overview and Summary

The Trustee for MCHOME Trust (the applicant) sought review of a decision to refuse approval of its nomination of a position under the Direct Entry stream of the Regional Sponsored Migration Scheme. The dispute concerned whether the applicant met the requirements for approval of the nomination, specifically regarding the genuine need for the nominated position and whether it could be filled by a local citizen or permanent resident. The matter was heard by Terrence Baxter.

The primary legal issue before the Tribunal was to determine whether the applicant satisfied the requirements of regulation 5.19(4) of the Migration Regulations 1994 for the approval of a nomination under the Direct Entry stream. This involved assessing whether the application was in the approved form, whether there was a genuine need for the nominator to employ the identified person, whether there was no adverse information known to the Department, and whether the applicant had a satisfactory record of compliance with workplace relations laws. Crucially, the Tribunal also had to consider the requirements under regulation 5.19(4)(h), which, for positions in regional Australia, necessitates a genuine need for the nominee's employment, the inability to fill the position with a local, and correspondence between the position's tasks and a specified occupation.

The Tribunal reasoned that while regulation 5.19(4)(a)(ii) could be interpreted narrowly, the more substantive requirements regarding a genuine need for the position and the inability to fill it with a local resident were more appropriately assessed under regulation 5.19(4)(h)(ii)(B). After considering extensive documentary evidence, including financial statements, employment contracts, and correspondence from a Regional Certifying Body, the Tribunal was satisfied that the applicant had demonstrated a genuine need for the nominated post office manager position and that the position could not be filled by a citizen or permanent resident. The Tribunal also found that the applicant met the requirements concerning the form of the application, the absence of adverse information, and satisfactory compliance with workplace relations laws.

Consequently, the Tribunal set aside the delegate's decision and substituted a decision approving the nomination.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The Wilsonton Post Office is the only business operated by this applicant. Ms Qi and her husband operate other businesses through other entities.Evidence presented after the hearing After the hearing, the applicant produced to the Tribunal the following documents: a.A submission from the applicant’s representative dated 28 February 2023. b.A submission from the applicant regarding labour market testing dated 24 February 2023. c.A submission from the applicant regarding tasks performed by the nominee dated 24 February 2023. d.An employment contract between the applicant and nominee dated 27 February 2023. 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 an identified person as a paid employee to work in the position under their direct control. Having regard to the documentation in the file of the Department, the Tribunal is satisfied that the application for approval was in the approved form. The application relates to a visa in the Direct Entry nomination stream seeking to meet the requirements in the Regional Sponsored Migration Scheme (RSMS) and consequently no fee is payable (reg 5.19(2) and reg 5.37(4) of the Regulations). The application included a written certification stating that the applicant had not engaged in conduct in relation to the nomination that contravenes s 245AR(1) of the Act. The requirements of reg 5.19(2) and consequently of reg 5.19(4)(a)(i) are therefore met. Regulation 5.19(4)(a)(ii) requires that the application identifies a need for the nominator to employ an identified person as a paid employee to work in the position under the nominator’s direct control. It is unclear whether this requirement is directed just at a statement to this effect or something of a more qualitative nature. The wording ‘identifies a need’ arguably suggests more is required to meet this criterion than simply a statement or declaration that there is such a need. ‘Identify’ is defined as ‘to recognise or establish as being a particular person or thing; verify the identity of’.[1] On that view, which is consistent with that reflected in Departmental policy, a decision maker would need to be satisfied there is a genuine need on the part of the nominator to employ a paid employee in the nominated position.[2] However, it could alternatively be argued that reg 5.19(4)(a) as a whole is directed towards requirements for the application form/process of a more administrative nature, such that reg 5.19(4)(a)(ii) could be met by a simple statement or certification of need. Support for this view can also be found in the contrast between the wording of reg 5.19(4)(a)(ii) and, for example, reg 5.19(4)(h)(ii)(B) (for applications relating to positions in regional Australia), which requires that there be a genuine need for the nominator to employ the person identified in the application as a paid employee to work in the position under the nominator’s direct control, clearly requiring a qualitative assessment, and reg 5.19(4)(d)(i), which requires satisfaction that the employee will be employed on a full-time basis in the position for at least two years. Given the uncertain scope of reg 5.19(4)(a)(ii), and the requirement in relation to this application to satisfy reg 5.19(4)(h)(ii)(B), the Tribunal considers that this issue is more appropriately considered under reg 5.19(4)(h)(ii)(B) later in these Reasons.[1] Dictionary.com (accessed March 2023).[2] In Bharaj Construction Pty Ltd v MIBP [2016] FCCA 902 (Bharaj) (Judge Barnes, 28 April 2016), the Court considered a similarly worded provision in respect of a pre-1 July 2012 RSMS nomination, i.e. ‘the employer nomination is made by an employer in respect of a need for a paid employee’. Whilst on the one hand reg 5.19(4)(a)(ii) does not appear to impose a different requirement beyond emphasising the requirement for an applicant to identify the need (unlike the pre-1 July 2012 version of regs 5.19(2)(a) and (4)(a)), the wording of the criteria does differ slightly and the Tribunal exercises caution in applying the reasoning of Bharaj to a post-1 July 2012 nomination as is currently being considered.

Decision

Reasons for decision

For the following reasons, the Tribunal has decided to set aside the decision under review and substitute a decision approving the nomination.CONSIDERATION OF CLAIMS AND EVIDENCEEvidence presented prior to the hearing The applicant produced to the Department of Home Affairs (the Department) the following documents: a.Bank statements for the period from 29 September 2017 to 29 December 2017. b.Job advertisements for the position accompanied by invoices paid by the applicant. c.Market salary evidence. d.A lease agreement and assignment of lease of the applicant’s business premises. e.ASIC current and historical company extract of the applicant. f.Photographs of the business premises. g.A business sale contract between the applicant and RedPost Pty Ltd dated 15 June 2017. h.A service maintenance agreement dated 1 February 2017. i.Evidence of salary payments to the nominee. j.The discretionary trust deed of the Mchome Trust dated 25 May 2017. k.A current ABN Lookup form of the applicant. l.A Licensed Post Office agreement dated 3 October 2017. m.A submission from the applicant’s accountant dated 9 February 2023. n.A balance sheet report of the applicant dated 31 December 2017. o.A profit and loss statement of the applicant for the period from 3 October 2017 to 31 December 2017. p.Evidence of registration of the applicant’s ABN. q.Business activity statements of the applicant for the periods from October to December 2017 and from April 2018 to March 2019. r.A submission from the applicant dated 20 February 2018. s.An employment contract of the nominee dated 19 February 2018. t.Correspondence and a Form 1404 advice from the Regional Certifying Body (RCB) the Chamber of Commerce and Industry Queensland, dated 8 March 2018. u.PAYG payment summaries of the nominee for the 2018 and 2019 financial years. v.A tax return summary of the nominee for the 2018 financial year.w.Notice of taxation assessments of the nominee for the 2018 and 2019 financial years. x.Evidence of tasks performed by the nominee in the position. y.A letter from the nominee’s general practitioner dated 8 August 2019. z.Various payslips and bank statements of the nominee. The applicant produced to the Tribunal the following documents: a.A copy of the delegate’s decision. b.An updated ASIC current and historical company extract of the applicant extracted on 4 October 2022. c.Copies of various documents provided to the Department. d.Business activity summaries of the applicant for the period from July 2017 to June 2022. e.Financial statements of the applicant for the 2018, 2019, 2020 and 2021 financial years and a draft financial statement of the applicant for the 2022 financial year. f.Tax returns of the applicant for the 2018, 2019, 2020 and 2021 financial years. g.An employment contract between the applicant and the nominee dated 2 February 2022.h.Current market salary evidence. i.Submissions from the applicant dated 22 September 2022 and 7 January 2022. j.A job advertisement for the position created on 15 August 2020. k.An updated organisational chart dated 22 September 2022. l.Evidence of salary payments to the nominee. m.Evidence of the tasks performed by the nominee. n.An undated reference letter of the nominee. o.A VETASSESS skills assessment of the nominee dated 2 March 2021. p.Evidence of the nominee’s qualifications.q.A submission from the applicant’s representative dated 9 February 2023. Evidence presented at the hearing regarding the applicant’s operations

Ratio Decidendi

Legal Principle Established

Accordingly, the requirements of reg 5.19(4)(e) are 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. There is no evidence before the Tribunal that there is any adverse information of the type described in the relevant definitions known to the Department about the applicant or any associated person. 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. There is no evidence before the Tribunal to suggest that the applicant has an unsatisfactory record of compliance with workplace relations laws of the Commonwealth or any State or Territory in which the applicant operates a business. The Tribunal is satisfied that the applicant does have a satisfactory record of compliance. Accordingly, the requirements of reg 5.19(4)(g) are 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 in the relevant legislative instrument, the occupation is applicable to the proposed employee in accordance with any specifications made in that instrument, there is a genuine need for the nominee to be employed as a paid employee in the position, and certain specified training requirements are met; or·the position and nominator’s business is located in regional Australia, there is a genuine need for the nominee to be employed as a paid employee in the position under the nominator’s direct control, the position 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 (see legislative instrument IMMI 17/058), the occupation is applicable to the proposed employee in accordance with the specification of the occupation, and that an RCB has advised the Minister about certain matters relating to the position. The applicant indicated in the nomination application that it was applying under the RSMS in the Direct Entry nomination stream. The applicant indicated that the postcode where the position was to be filled was 4350 (Wilsonton, Queensland). Based on the evidence, the Tribunal is satisfied that the position and the applicant’s business are located at 407 Bridge Street, Wilsonton, Queensland 4350. As this postcode is specified in the relevant instrument as being in regional Australia, the requirements of reg 5.19(4)(h)(ii) must be met by the applicant.Regulation 5.19(4)(h)(ii)(A) – the position is located in regional Australia