Time Transport Pty Ltd (Migration)

Time Transport Pty Ltd (Migration) [2022] AATA 4329 (24 October 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Time Transport Pty Ltd
REPRESENTATIVE:  Ms Sylvia Arroyo (MARN: 0640213)
CASE NUMBER:  1912380
HOME AFFAIRS REFERENCE(S):          BCC2017/4327580
MEMBER:De-Anne Kelly
DATE:24 October 2022
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Statement made on 24 October 2022 at 10:36am
CATCHWORDS
MIGRATION – nomination – Direct Entry nomination stream – Customer Service Manager –– position associated with the nominated occupation is genuine – genuine need for the nominator to employ a paid employee – position located in regional Australia – actively and lawfully operating a business in Australia– financial capacity of the business to employ the nominee for at least 2 years full time – no less favourable terms and conditions of employment – lawfully operating business – decision under review set aside
LEGISLATION
Migration Act 1958, ss 140, 245
Migration Regulations 1994, 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 9 May 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 applied for approval on 17 November 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).
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 reg 5.19(4)(d) of the Regulations because the applicant did not demonstrate the financial capacity to meet its obligations and to employ the full – time employee, the nominee, for at least two years.
The applicant appeared before the Tribunal on 18 October 2022 to give evidence and present arguments.
The applicant was represented in relation to the review initially by Mr Marc Ribber MARN: 1067892 and later very professionally by Ms Sylvia Arroyo MARN: 0640213.
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 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.
On 17 November 2017, the applicant lodged an Employer Nomination Scheme – visa subclass 186 in the direct entry stream for the position of Customer Service Manager to be employed in Coorparoo QLD 4151 on $54,439 now $65,000 in favour of Mr Bernardo Bafile Pacifici.
Mr Marcelo Gulman, director of the company addressed the Tribunal and advised that they operate a fleet of some 35 trucks under contract to Linfox which delivers Woolworths’s grocery items. They provide the deliveries for the online orders. They provide a service to Woolworths and deliver groceries. They have overall 90 employees although for reasons of payroll optimisation Time Transport has 7 employees. Most of the trucks are leased but there are 8 trucks that they own themselves. Mr Gulman was forthright and transparent with the Tribunal.
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.
Applications must be in the approved form and must be accompanied by the prescribed fee to be valid and acknowledged by the Department of Home Affairs. An acknowledgement dated 17 November 2017 was sent by the Department to the nominator as evidence of a valid application. The Department accepted a declaration made on the online form that the nominator had responded yes in the online form to the following: ‘the applicant certifies that they have not engaged in conduct in relation to this nomination that constitutes a contravention of subsection 245AR (1) of the Migration Act 1958’.
The Tribunal is satisfied that the application was made on the approved form 1395 (Internet) for post 23 March 2013 applications, accompanied by the prescribed fee and the nominator has included a written certification stating the nominator has not engaged in conduct in relation to the nomination that contravenes s.245AR(1) of the Act.
Regulation 5.19(4)(a)(ii) requires the nominator to identify a need for the nominator to employ a paid employee to work in the position under the nominator’s control. The assessment of the need for a paid employee comprises two parts: establishing the need for an employee (i.e. there exists a vacancy for the nominated position) and ascertaining that the relationship between the nominator and nominee is that of employer and employee.
The nomination does not have to specify the nominee but needs to identify a nominee before, or at the time, the associated visa application is made. Mr Bernardo Bafile Pacifici was identified in the nomination application.
Accordingly, the requirement in r.5.19(4)(a) is met.
Nominator is actively and lawfully operating a business in Australia: reg 5.19(4)(b)
Regulation 5.19(4)(b) requires that the applicant is actively, lawfully and directly operating a business in Australia.
The applicant submitted financial statements for FY2022, FY 2021, FY 2020 and FY 2019 together with ASIC registration and it is evident that the business is actively, lawfully and directly operating in Australia.
Accordingly, the requirement in reg 5.19(4)(b) is met.
Position is not labour-hire: reg 5.19(4)(c)
Regulation 5.19(4)(c) applies to nominators whose business activities include those relating to labour hire to an unrelated business. In these cases, the nominated position must be within the business activities of the nominator.
There is no evidence that the business labour hires, and the director confirmed this in the hearing.
Accordingly, the requirement in reg 5.19(4)(c) is met.
Term of employment of the visa holder: reg 5.19(4)(d)
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.

Year 2021 2020 2019

Sales     7,369,864     3,010,252 2,380,115

Wages       87,666

Expenses     7,143,628     2,904,631 2,311,708

Profit      226,415       105,631      70,061

The financial figures for the years shown above demonstrate that the company has a high turnover and strong profit with very strong growth in recent years. For FY 2022 the applicant made a profit of $149,457. The 2018 employment agreement is full-time and ongoing for at least two years.

Accordingly, the requirement in reg 5.19(4)(d) is met.
No less favourable terms and conditions of employment: reg 5.19(4)(e)
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.
The current salary is $65,000 per annum plus a motor vehicle, fuel and internet. The Market salary range is $53,000 to $95,000 on Payscale. The applicant also looked at similar advertised positions.
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.
The Tribunal has no information before it from the Department that would constitute adverse information and a search of the ASIC website finds no adverse information about the nominator or a person associated with the nominator. The director confirmed this in the hearing.
Accordingly, the requirements of r.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.
The Tribunal can find no unsatisfactory record of compliance for the applicant with the laws of the Commonwealth relating to workplace relations. The director confirmed this in the hearing.
Accordingly, the requirements of r.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 a 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, 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 position – reg 5.19(4)(h)(i)(A)
Whether the tasks will be performed in Australia and correspond to the tasks of an occupation specified in the relevant instrument, whether any additional applicability requirements for that occupation are met.
Position description is given on page 262 of the agent’s submission. The nominee deals with 8,000 customers a week who receive groceries delivered by the company as a result of online orders from Woolworths. The nominee has a Skills Assessment as a Customer Service Manager from Vetassess dated 23 March 2022 and based on his work at Time Transport. The nominee assists in hiring and training the delivery drivers to provide best customer service and deal with complaints. He has created the systems to deal with complaints the most severe of which are non-delivery of goods or misbehaviour on the part of the drivers. He has to ensure they achieve the KPI’s set by the client. The nominee receives the complaints and is the interface between customer and client. He has 4 Customer service supervisors that report to him.
The job description was given and the tasks as described by the director and the nominee in the hearing certainly correspond with the position Customer Service Manager ANZSCO 149212.
Accordingly, reg 5.19(4)(h)(i)(A) is met.
Genuine need for the position – reg 5.19(4)(h)(i)(AA)
There is a genuine need for the nominator to employ the person identified under reg 5.19(4)(a)(ii) as a paid employee, to work in the position under the nominator’s direct control.
The director explained that the nominee has been working there since 2017 and because their company is the face of Woolworths for the online shopping community it is vital that customer service is managed professionally and meets the standards that their client has set. The nominee has been instrumental in their strong growth because of the relationship they have with customers. They are the small trucks that are seen on the street delivering groceries. 80% of their customers are retail and 30% are educational institutions and small shops. It is evident from the long period of time that the nominee has been filling the position on a full-time basis and the strong contribution that he makes to the business of the employer that this position is genuinely needed.
Accordingly, reg 5.19(4)(h)(i)(AA) is met.
Occupation is applicable to the person – reg 5.9(4)(h)(i)(AAA).
The nominee is highly skilled having the equivalent of a Bachelor of Laws from overseas which is not directly relevant to this particular occupation however the nominee also has a Skills Assessment as a Customer Service Manager from Vetassess dated 23 March 2022 and based on his work at Time Transport. He has been working in similar roles since 2016 and worked for the applicant in the role from 2017 onwards.
Accordingly, reg 5.19(4)(h)(i)(AAA) is met.
Training requirements – reg 5.19(4)(h)(i)(B)(I) and (II)
Whether the nominator either: meets the training requirements specified in the relevant instrument (if the business has operated for over 12 months) or has an auditable plan for meeting the training requirements (if the business has operated for less than 12 months);
Only the first requirement is relevant to the applicant and in the FY 2022 the payroll was made up of wages of $135,720 and super was $13,737 giving a payroll of $149,457. 2% of this amount is $2,989 as required by the training instrument IMMI17/045. The agent advised that the director has contributed $3,000 to a TAFE scholarship fund in June 2022. It was further explained that the contractors shown in the financial statements were unrelated to the nature of the business being architects and other trades and professionals related to an expansion of the business rather than the core business being transport. The Tribunal accepts this explanation from the agent.
Accordingly, reg 5.19(4)(h)(i)(B)(I) and reg 5.19(4)(h) are met.
Based on the findings above, the Tribunal is satisfied that the applicant meets the requirements of reg 5.19 for approval of the nomination of the position in Australia.
DECISION
The Tribunal sets aside the decision under review and substitutes a decision approving 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 an identified person, as 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)       all 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;
(AA)there is a genuine need for the nominator to employ the person identified under subparagraph (a)(ii), as a paid employee, to work in the position under the nominator’s direct control;
(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 the person identified under subparagraph (a)(ii), as 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).

[2022] AATA 4329

24 October 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Statutory Construction

Procedural Fairness

Remedies

Year	2021	2020	2019
Sales	7,369,864	3,010,252	2,380,115
Wages	87,666
Expenses	7,143,628	2,904,631	2,311,708
Profit	226,415	105,631	70,061