Trustee for Ambalal Patel Family Trust (Migration)

[2021] AATA 2792

Trustee for Ambalal Patel Family Trust (Migration) [2021] AATA 2792 (17 June 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Trustee for Ambalal Patel Family Trust

CASE NUMBER:  1821418

HOME AFFAIRS REFERENCE(S):          BCC2017/13498

MEMBER:K. Chapman

DATE:17 June 2021

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Statement made on 17 June 2021 at 1:11pm 

CATCHWORDS
MIGRATION – Employer Nomination – approval of nominated position – Direct Entry nomination stream – Marketing Specialist – identification of need – genuine need – Fraser Coast region – difficulty in finding local talent suitably qualified in marketing – decision under review set aside

LEGISLATION
Migration Regulations 1994 (Cth), 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 5 July 2018 to refuse the applicant’s application for approval of the nomination of a position in Australia under r.5.19 of the Migration Regulations 1994 (‘the Regulations’).

2. The applicant, Trustee for Ambalal Patel Family Trust (also ‘the nominator’), applied for approval on 3 January 2017. The applicant nominated Mr Praveenkumar Chandubhai Kalal (‘the nominee’) in the occupation of Marketing Specialist (ANZSCO Code 225113). The application for nomination was made in connection with the Regional Sponsored Migration Scheme. The nominated position is located in the Fraser Coast region of Queensland.

3. The requirements for the approval of the nomination of a position in Australia are found in r.5.19 of the Regulations which contains two alternative streams: a Temporary Residence Transition nomination stream (r.5.19(3)) and a Direct Entry nomination stream (r.5.19(4)). If the application is made in accordance with r.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: r.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.

4. The delegate refused the application on the basis that the applicant’s nomination did not satisfy r.5.19(4)(a)(ii). In the view of the delegate, the applicant did not identify a need for them to employ the nominee, as a paid employee, to work in the position under their direct control. On 24 July 2018, the applicant applied to the Tribunal for review of the nomination decision. The applicant submitted a copy of the delegate’s decision with their application for review.

5. On 21 January 2021, the Tribunal Registry wrote to the applicant pursuant to subsection 359(2) of the Act inviting them to provide current information addressing the relevant criteria under r.5.19(2) and (4) of the Regulations. In response, the Tribunal received material including, but not limited to, written submissions, marketing material, Form 1404 Regional Certifying Body advice, organisational chart, newspaper articles, financial records, an employment contract, payslips, taxation documents pertaining to the nominee, ASIC information, recruitment summary, position description and the VETASSESS Skilled Migration Assessment of the nominee. The Tribunal notes that it had far greater relevant documentary evidence before it than was available to the delegate. All material received has been duly considered by the Tribunal.

6. The applicant, through the Director of the Trustee company Mr Amit Patel, appeared by telephone before the Tribunal on 20 May 2021 to give evidence and present arguments. Mr Patel, on behalf of the applicant, confirmed that he was comfortable participating in the hearing by telephone. The Tribunal notes that it found Mr Patel to be an articulate witness, who provided his evidence in a direct and comprehensive fashion. The Tribunal has no hesitation in accepting that Mr Patel provided truthful evidence and it places high weight upon it.

7. 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

8. 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 r.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: r.5.19(4)(a)

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. Having regard to the evidence submitted to the Department, the Tribunal is satisfied that the nomination application was made using the approved form. Pursuant to r.5.37(4) of the Regulations, there is no fee payable in respect of a nomination where the position is located in regional Australia. The Tribunal is further satisfied that the application for nomination was accompanied by the appropriate written certification indicating the applicant had not engaged in any conduct that constituted a contravention of s.245AR(1) of the Act. Additionally, the Tribunal is satisfied that the application for nomination identified a need for the applicant/nominator to employ the nominee as a paid employee to work in the position under their direct control.

11. Therefore, the requirements in r.5.19(4)(a) are met.

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

12. Regulation 5.19(4)(b) requires that the applicant is actively, lawfully and directly operating a business in Australia. Having regard to the submitted ASIC information, financial documentation (including BAS and taxation return information) and the evidence provided at the review hearing, the Tribunal is satisfied that the applicant is actively, lawfully and directly operating a business in Australia. That business is concerned with the operation of retail variety stores in the Fraser Coast region of Queensland.

13. Accordingly, the requirement in r.5.19(4)(b) is satisfied.

    Position is not labour-hire: r.5.19(4)(c)

14. 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.

15. The evidence before the Tribunal demonstrates that the applicant is not involved in labour hire activities.

16. Therefore, the requirement in r.5.19(4)(c) does not apply in the circumstances of this review.

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

17. Regulation 5.19(4)(d) requires the nominee to be employed in the nominated position for at least two years full time, and the terms and conditions of that employment do not expressly exclude the possibility of an extension.

18. Mr Patel, on behalf of the applicant, informed the Tribunal that the nominee will be employed in the nominated position for at least two years full time. The Tribunal accepts this evidence. Further, the terms and conditions of the nominee, as reflected in the submitted copy of his latest employment contract executed on 27 January 2021, do not expressly exclude the possibility of an extension. Additionally, having regard to the submitted financial information, the Tribunal is satisfied that the applicant has the financial capacity to employ the nominee on a full time basis for at least two years. Of note, the applicant’s turnover in Financial Year 2019/20 exceeded $3 million according to the submitted financial documentation and Mr Patel projects it will be greater again in the current Financial Year.

19. Therefore, the requirement in r.5.19(4)(d) is met.

    No less favourable terms and conditions of employment: r.5.19(4)(e)

20. 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.

21. Mr Patel, on behalf of the applicant, confirmed that there is no Australian citizen or permanent resident performing equivalent work in the same workplace at the same location as the nominee. The employment contract of the nominee, executed on 27 January 2021, provides him with an annual salary of $65,090, in addition to superannuation. The submitted market salary information indicates that the salary offered is commensurate with the market rate for a Marketing Specialist in a regional area. Having regard to the location of the nominated position, in the Fraser Coast region, the Tribunal is satisfied that the remuneration of the nominee is appropriate.

22. Following careful consideration of the evidence, the Tribunal finds 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.

23. Therefore, the requirements of r.5.19(4)(e) are satisfied.

    No adverse information known to Immigration: r.5.19(4)(f)

24. 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 rr.1.13A and 1.13B.

25. There is no evidence of adverse information contained in the Department file, or before the Tribunal, about the applicant or a person associated with the applicant.

26. Accordingly, the requirements of r.5.19(4)(f) are met.

    Satisfactory compliance with workplace relations laws: r.5.19(4)(g)

27. 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.

28. There is no evidence before the Tribunal to suggest that the applicant does not have a satisfactory record of compliance with relevant workplace relations laws in Australia.

29. Accordingly, the requirements of r.5.19(4)(g) of the Regulations are met.

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

30. Regulation 5.19(4)(h) contains a number of alternative requirements. The present review concerns an application for nomination in connection with the Regional Sponsored Migration Scheme, in the Direct Entry nomination stream. Accordingly, r.5.19(4)(h)(i) is not relevant to this review.

31. Regulation 5.19(4)(h)(ii), as is relevant to this review, requires that:

    ·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.

32. The Tribunal is satisfied that both the nominated position, and the applicant’s business, are located in the Fraser Coast region of Queensland at postcode 4655. Pursuant to instrument IMMI 16/045, as it pertains to the present review, both the nominated position, and the business operated by the applicant, are located in regional Australia. Therefore, the applicant satisfies the requirements contained in r.5.19(4)(h)(ii)(A) and r.5.19(4)(h)(ii)(E).

33. During the review hearing, the Tribunal canvassed with Mr Patel, on behalf of the applicant, whether there is a genuine need for the applicant to employ the nominee as a paid employee, to work in the position under their direct control. Mr Patel advised that the applicant operates multiple variety retail stores in the Fraser Coast region of Queensland. He outlined that the nominee is well qualified in the field of marketing, for example holding a Master of Business Administration (MBA), and also explained the difficulty in finding local talent suitably qualified in marketing. Mr Patel advised that the nominee has dramatically increased sales for the applicant through his application of marketing principles. Further, the nominee now has over five years’ experience in the Marketing Specialist role with the applicant. Additionally, Mr Patel informed the Tribunal of the strong financial position of the applicant, with submitted financial documentation corroborating this evidence. On balance, the Tribunal accepts that there is a genuine need for the applicant to employ the nominee as a paid employee, to work in the position under their direct control. Therefore, the applicant meets the requirements of r.5.19(4)(h)(ii)(B).

34. As previously outlined, Mr Patel informed the Tribunal of the difficulty in locating suitably qualified domestic applicants to fulfill the Marketing Specialist position in the Fraser Coast region. He referred to the unsuccessful attempts of the applicant to fill the position locally. Having regard to this evidence, in combination with the submitted documentary material (including recruitment documentation), the Tribunal is satisfied that the nominated position cannot be filled by a locally resident Australian citizen or permanent resident. Therefore, the applicant meets the requirements of r.5.19(4)(h)(ii)(C).

35. Mr Patel outlined the duties of the nominee as a Marketing Specialist in a fashion consistent with the ANZSCO Code 225113 descriptors. Furthermore, the submitted documentary material, including marketing samples and the position description, is consistent with the nominated position being that of a Marketing Specialist. The Tribunal notes that the relevant instrument with respect to r.5.19(4)(h)(ii)(D) is IMMI 15/083. This instrument contains the occupation of Marketing Specialist (ANZSCO Code 225113), which is a skill level 1 occupation. Following careful consideration of the evidence, the Tribunal is satisfied that the nominated position is that of a Marketing Specialist.

36. The Tribunal accepts Mr Patel’s evidence that the nominee is performing the occupation of Marketing Specialist to a high standard and he is appropriately qualified to perform that role. The Tribunal notes that the nominee holds a Master of Business Administration (MBA), he has worked for the applicant in the nominated occupation since late 2015 and he received a positive Skilled Migration Assessment from VETASSESS in that occupation on 23 July 2019. The Tribunal also notes that the nominee is identified in the application for nomination to perform the occupation of Marketing Specialist (ANZSCO Code 225113). Accordingly, the Tribunal is satisfied that the occupation of Marketing Specialist is applicable to the nominee who is identified in the nomination.

37. On balance, given the particular circumstances of the nominated position located in the Fraser Coast region of Queensland, the Tribunal is satisfied that the applicant meets the requirements of r.5.19(4)(h)(ii)(D) and r.5.19(4)(h)(ii)(DA).

38. The applicant submitted Form 1404 dated 12 December 2016, from the Chamber of Commerce and Industry Queensland (CCIQ), which is a Regional Certifying Body (RCB) pursuant to instrument IMMI 16/045. The Tribunal is satisfied that a RCB located in Queensland has advised the Minister about the matters set out in r.5.19(4)(e), r.5.19(4)(h)(ii)(B) and r.5.19(4)(h)(ii)(C). Accordingly, the applicant satisfies the requirement in r.5.19(4)(h)(ii)(F). For the sake of completeness, the Tribunal notes that the Court authority of Bharaj Construction Pty Ltd v MIBP (No. 3) [2019] FCCA 31 indicates RCB certification is not sufficient or determinative of the requirements outlined in r.5.19(4)(e), r.5.19(4)(h)(ii)(B) and r.5.19(4)(h)(ii)(C). Rather, the Tribunal must perform its own assessment of these requirements. The Tribunal records that it has done so, as reflected in its relevant reasons above.

39. Therefore, the requirements of r.5.19(4)(h) are satisfied by the applicant.

40. Based on the findings above, the Tribunal is satisfied that the applicant meets the requirements of r.5.19 for approval of the nomination of the position in Australia.

    DECISION

41. The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

    K. Chapman
    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).