Troppo Investments Pty Ltd (Migration) - [2022] AATA 3117

Troppo Investments Pty Ltd (Migration) [2022] AATA 3117 (21 July 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Troppo Investments Pty Ltd
REPRESENTATIVE:  Ms Natalia Arens (MARN: 0534230)
CASE NUMBER:  1905537
HOME AFFAIRS REFERENCE(S):          BCC2017/3897158
MEMBER:Terrence Baxter
DATE:21 July 2022
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Statement made on 21 July 2022 at 9:28am
CATCHWORDS
MIGRATION–nomination – Direct Entry stream – application is compliant – financial capacity to employ the nominee in the position of Hostel Manager – genuine need to employ a paid employee to work in the position under the nominator’s direct control – nominated position is based in regional Australia – no adverse information – position associated with the nominated occupation is genuine –no less favourable terms and condition of employment –applicant lawfully operating a business in Australia– decision under review set aside
LEGISLATION
Migration Act 1958, ss 65, 245AR
Migration Regulations 1994, rr 1.13, 5.19
CASES
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 21 February 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, Troppo Investments Pty Ltd, applied for approval on 23 October 2017. The applicant nominated Ms Samantha Ketchen (the nominee) in the position of Hostel Manager. The applicant operates two backpacker hostels situated in Innisfail, Queensland. The applicant provides accommodation for backpackers and arranges with local primary producers for the backpackers to provide labour on local rural properties. The applicant’s operations have been adversely affected by the COVID-19 pandemic, but business has improved since the removal of border restrictions early in 2022.
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 that the applicant’s nomination did not satisfy reg 5.19(4)(h)(ii)(D) of the Regulations because the delegate found that the tasks to be performed in the position do not correspond to the tasks of an occupation specified by the Minister in an instrument in writing.
The applicant lodged an application for review of the delegate’s decision with the Tribunal on 8 March 2019.
The sole director of the applicant, Mr John Friel, appeared before…

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 Troppo Investments Pty Ltd (Migration)

Details

AGLC: Troppo Investments Pty Ltd (Migration) [2022] AATA 3117
Case: [2022] AATA 3117
Decision Date: 21 July 2022

CaseChat Overview and Summary

This matter concerned an application by Troppo Investments Pty Ltd for approval of a nomination under the Direct Entry stream of the Regional Sponsored Migration Scheme (RSMS). The applicant sought to nominate an individual for the position of Hostel Manager. The Administrative Appeals Tribunal (AAT) was required to determine whether the applicant had met all the requirements for the nomination approval as set out in regulation 5.19(4) of the Migration Regulations 1994 (Cth).

The primary legal issues before the Tribunal were whether the nominated position was genuinely needed by the applicant, whether the nominee would be employed under the applicant's direct control, and whether the applicant had demonstrated financial capacity to employ the nominee. The Tribunal also considered whether the nominated position was genuine, located in regional Australia, and offered terms and conditions of employment no less favourable than those provided to Australian citizens or permanent residents. Furthermore, the Tribunal examined the applicant's compliance with workplace relations laws and the absence of adverse information concerning the nominator.

The Tribunal's reasoning focused on the evidence presented by the applicant, both before and after the hearing, which included financial reports, tax returns, payroll advice, job advertisements, and detailed submissions regarding the genuine need for the position. The Tribunal found that the applicant lawfully operated a business in Australia and had demonstrated a genuine need to employ a paid employee to work in the nominated position under its direct control, particularly given the business's location in regional Australia. The Tribunal was satisfied that the tasks associated with the position corresponded to an occupation specified in the relevant legislative instrument and that the nominee would be employed on terms and conditions no less favourable than those for local workers.

Ultimately, the Tribunal decided to set aside the original decision under review and substitute a decision approving the nomination. This outcome was based on the Tribunal's satisfaction that the applicant had met all the relevant regulatory requirements for the nomination approval.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The nominee stated that she had been permanently employed by the applicant since March 2016. She gave evidence of the tasks performed by her in the position of Hostel Manager.Evidence presented after the hearing After the hearing, the applicant produced to the Tribunal the following documents: a.An ASIC business name details summary of Walkabout Backpackers Resort. b.An ASIC business name details summary of Backpackers Retreat. c.Payroll advice of the nominee prepared by the applicant for the period from July 2019 to June 2021. d.Updated evidence of a recent job advertisement for the position, accompanied by an email from Mr Friel regarding responses to the advertisement. e.A further submission from Mr Friel regarding market salary rate accompanied by various attachments. f.Email correspondence from Mr Friel regarding the market salary research provided. 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) of the Migration Act 1958 (Cth) (the Act). 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 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 the nominee as 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 nominee 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 May 2022).[2] In Bharaj Construction Pty Ltd v MIBP [2016] FCCA 902 (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 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.Evidence presented prior to the hearing The applicant produced to the Department of Immigration and Border Protection (now the Department of Home Affairs) (the Department) the following documents: a.Market salary research accompanied by a submission.b.An ASIC certificate of registration of the applicant. c.A current ABN Lookup form of the applicant.d.A Diploma in Hospitality Management awarded to the nominee. e.A copy of the passport of the nominee. f.A summary of domestic recruitment efforts undertaken by the applicant.g.Various job advertisements for the position. h.An ASIC company summary of the applicant.i.A company tax return for the 2016 financial year.j.An employment contract of the nominee dated 3 October 2017. k.Activity statements for the period from July 2016 to June 2017. l.An extract from the Hospitality Industry (General) award. m.A financial report for the 2016 financial year. n.A position description. o.A copy of the nominee’s resume. p.Correspondence and a Form 1404 advice from the Regional Certifying Body (RCB) the Chamber of Commerce and Industry, Cairns dated 2 November 2017. The applicant produced to the Tribunal the following documents: a.A copy of the delegate’s decision. b.A copy of the ASIC certification of company registration provided to the Department.c.An ASIC current and historical company extract of the applicant. d.Financial reports for the 2020 and 2021 financial years. e.Company tax returns for the 2020 and 2021 financial years. f.Activity statements for the period from July 2019 to December 2021. g.An employment contract of the nominee dated 9 March 2022. h.A copy of the Form 1404 provided to the Department.i.A position description.j.An organisational chart.k.A submission from Mr Friel regarding genuine need dated 22 March 2022. l.An undated job advertisement for the position.m.A submission regarding annual market salary rate accompanied by various attachments. n.Photos of the business premises and events hosted by the applicant. o.Evidence of the tasks performed by the nominee in the position. p.A submission from the representative dated 19 March 2022. q.An Australian and New Zealand Standard Classification of Occupations (the ANZSCO) extract for the occupation of Accommodation and Hospitality Managers. r.Profit and loss statements for the 2018 to 2021 financial years, and the 2022 financial year to date. Evidence presented at the hearing regarding the applicant’s operations Mr Friel stated that he had been involved with the operation of hostels for many years. He said that initially he had been involved with traditional hostels and that the applicant had acquired an existing working hostel in Innisfail in 2014. He said that the business had expanded, and that the applicant presently operated two hostels in that town. He described how the business provided accommodation for backpackers and arranged with farmers for the backpackers to provide labour on the farms. He said that the business involved interviewing backpackers by telephone to ensure that they were suitable for rural employment, liaising with them regarding transport to Innisfail and then to the hostel, contacting farmers regarding their need for employees and arranging transport to and from farms for the backpackers on a daily basis.

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.Regulation 5.19(4)(h)(ii)(A) – the position is located in regional Australia The recent Employment Contract provides that the nominee is to be employed at Innisfail, QLD 4860, a location in regional Australia according to the relevant instrument. The locations of the business are established by the evidence before the Tribunal as 6 Stitt Street, Innisfail 4860 and 73 Rankin Street, Innisfail 4860. Based on the evidence presented, the Tribunal is satisfied that the position is located in regional Australia. Accordingly, the requirements of reg 5.19(4)(h)(ii)(A) are met.Regulation 5.19(4)(h)(ii)(B) – genuine need to employ the nominee to work in the position under the applicant’s direct control