Vegie Bandits Pty Ltd (Migration)

[2022] AATA 4493

Vegie Bandits Pty Ltd (Migration) [2022] AATA 4493 (30 September 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Vegie Bandits Pty Ltd

REPRESENTATIVE:  Ms Jenelle Barraclough (MARN: 1679387)

CASE NUMBER:  1906076

HOME AFFAIRS REFERENCE(S):          BCC2017/3071156

MEMBER:P. Maishman

DATE:30 September 2022

PLACE OF DECISION:  Perth

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

Statement made on 30 September 2022 at 1:36pm

CATCHWORDS
MIGRATION – Employer Nomination – approval of nominated position – Direct Entry Nomination – Customer Service Manager – identification of need – supermarket chain – crucial to business operations and growth – 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 26 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).

2. The applicant applied for approval on 25 August 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)(a)(ii) of the Regulations because the delegate was not satisfied the application identified a need for the applicant to employ a paid employee to work in the position under the applicant’s direct control.

5. On behalf of the applicant, Mr Frankie Galati appeared before the Tribunal on 30 September 2022 to give evidence and present arguments.  

6. The applicant was represented in relation to the review.

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 Tribunal had before it a copy of the Departments containing its documents including the application for approval. The applicant trades as Spud Shed, a retail trader. It commenced trading in July 1997. On its application it claimed to have 809 Australian citizen/permanent resident employees and 43 foreign employees.

9. The applicant gave the Tribunal a copy of the delegates decision record with its application for review. The Tribunal received updated documents relevant to the application on 1 April 2022 and 8 August 2022 which have been provided to the Department.

10. 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)

11. 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.

12. The Tribunal had regard to the documents on the Department’s file. The Tribunal is satisfied the applicant made an application online in accordance with the approved form 1395 (internet); the application included written certification confirming the applicant had not engaged in conduct in contravention of subsection 245AR(1) of the Act; and the nomination application was paid.

13. The Tribunal notes the delegate found the applicant’s nomination did not meet the requirements of reg 5.19(4)(a)(ii) because it did not identify a need for a paid employee to work in a position under the applicant’s direct control.

14. It is unclear whether the requirement of reg 5.19(4)(a)(ii) is directed simply at a statement identifying a need, or to a more qualitative assessment of need. Given the nature of reg 5.19(4)(a) overall, the Tribunal has considered the requirement in reg 5.19(4)(a)(ii) to be more directed towards a requirement for the application form. The Tribunal considers it more appropriate to assess the existence of a genuine need for the nominator to employ a paid employee to work in the position under the nominator’s control under reg 5.19(4)(h)(ii)(B).

15. The application identifies a need for the nominator to employ Valentina Ballacci as a paid employee to work in the position of Customer Service Manager (ANZSCO 149212) under the applicant’s direct control.

16. Accordingly, the requirement in reg 5.19(4)(a) is met.

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

17. Regulation 5.19(4)(b) requires that the applicant is actively, lawfully and directly operating a business in Australia.

18. Having considered the material before it, including the nominator's financial statements and business registration records, the Tribunal is satisfied that the nominator is actively and lawfully operating a business in Australia and directly operates that business.

19. Accordingly, the requirement in reg 5.19(4)(b) is met.

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

20. 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. 

21. There is no evidence before the Tribunal to indicate that the applicant is involved in labour hire activities. The Tribunal is satisfied that the employment contract and organisational chart confirm that the nominee will work in the applicant's direct employ.

22. Accordingly, the requirement in reg 5.19(4)(c) does not apply.

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

23. 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. 

24. It is now over two years since the delegate's decision, and documents provided by the applicant show that the nominee has continued to be employed in the nominated position. The Tribunal has also had regard to the terms and conditions of employment as set out in the employment contracts dated 24 July 2017 and 2 March 2022. The contract indicates that the nominee will be employed as a Customer Service Manager on a full-time basis for two years with a base salary of $53,900 plus superannuation. There is nothing in the contracts that expressly excludes the possibility of extending the employment period.

25. Having regard to the totality of the evidence before it, the Tribunal is satisfied that the applicant has the financial capacity to provide the nominee with employment in the nominated position for at least two years full time and that the terms and conditions of that employment do not exclude the possibility of an extension.

26. Accordingly, the requirement in reg 5.19(4)(d) is met.

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

27. 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.

28. The organisation chart provided by the applicant indicates there is no Australian citizen or permanent resident performing equivalent work as the nominated position.

29. The letter of appointment indicates the applicant will be employed 38 hours per week with renumeration is $53,900 per annum before tax for a period of not less than 2 years. The terms and conditions include superannuation at the statutory rate; 4 weeks annual leave and 10 days medical leave. The letter refers to all other conditions shall be in accordance with the Fair Work Act 2009.

30. Payscale shows the average salary for a Customer Service Manager is $55,000. The applicants’ nominal salary offered is within that range. The Tribunal notes the payroll summary for the 2021 financial years indicates the applicant was paid $60,601 plus superannuation.

31. The Tribunal has also had regard to the opinion of the regional certifying body to the effect that the terms and conditions of the 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.

32. On evidence before it, the Tribunal is satisfied that the terms and conditions applicable to the nominated position will be no less favourable than those that would be provided to an Australian citizen or permanent resident performing equivalent work in the same workplace at the same location.

33. Accordingly, the requirements of r.5.19(4)(e) are met.

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

34. 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.

35. The applicant provided a submission dated 17 July 2017 identifying an associated entity, Galati Nominees Pty Ltd, had been subject to monitoring on several occasions with satisfactory outcomes and was sanctioned between 11 September 2014 to 6 May 2015 in relation to underpayment of a staff member. The applicant submits the breach occurred because of payroll outsourcing which has been taken back in house.  

36. The applicant submits the Galati Group has also been fined $20,000 under the Imported Food Act for purchasing Chinese prawns. Galati also accepted he was in contempt of court by exceeding his potato production quota and failing to take measures to comply with his licence conditions.

37. The applicant told the Tribunal that as a large organisation they have occasional workplace disputes. While some matters have been taken to Fair Work, they have been resolved prior to any determination by Fair Work. There are no current or outstanding matters in relation to workplace relations.  

38. The monitoring and sanction described by the applicant relate to immigration matters. The occurred more than three years ago and is not adverse information as defined. The fine imposed under the Imported Food Act does not relate to any of the matters relevant to the definition of adverse information.

39. The Tribunal is satisfied the is no relevant adverse information known to immigration.

40. Accordingly, the requirements of reg 5.19(4)(f) are met.

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

41. 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.

42. There is no evidence before the Tribunal to suggest that the applicant does not have a satisfactory record of compliance with workplace relation laws.

43. 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)

44. Regulation 5.19(4)(h) contains a number of alternative requirements. These are set out in detail in the attachment to the decision and those relevant to this matter are as follows:

    ·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.

    Location of the position and the business

45. The first consideration under r.5.19(4)(h)(ii) is whether the position is located in regional Australia. Regulation 5.19(16) provides that ‘regional Australia’ is defined by the legislative instrument.

46. The Tribunal has considered the current legislative instrument (IMMI18/037), however, Schedule 3 of IMMI 18/037 states that it applies only to applications lodged on or after 8 March 2018[1].  The Tribunal notes that IMMI 18/037 repealed the previous legislative instrument (IMMI 17/059)[2].

    [1] Relevantly, IMMI 18/037, Schedule 3 – Application of this Instrument states:  “(1)  This instrument applies in relation to the following: (a) an application for approval of a nomination in relation to the Subclass 187 (Regional Sponsored Migration Scheme) visa made on or after 18 March 2018…”

    [2] See Schedule 4 of IMMI 18/037

47. When IMMI17/059 commenced on 17 November 2017, it did not include any saving or transitional provisions and was silent on how applications that had been made and not finally determined on the date it came into effect were to be treated.  The Tribunal notes that the Department made a public statement in its Skilled Visa E-News November 2017 newsletter indicating that IMMI 17/059 only applied to nomination applications made on or after 17 November 2017.

48. Given that neither the current instrument nor its immediate predecessor can be relied upon, in order for the Tribunal to reach a finding in respect of whether the position is located in regional Australia, the Tribunal has considered the legislative instrument that applied at the time the applicant lodged the nomination application.  That legislative instrument is IMMI 16/045.

49. In this case, the position is located in Furnissdale, Western Australia, 6209, and at the time of application, the entire State of Western Australia was considered regional Australia, as per Schedule B of IMMI 16/045.  Accordingly, the Tribunal finds that the requirements of sub-paragraph 5.19(4)(h)(ii)(A) and (E) are met.

    Genuine need for the paid position, which cannot be filled by an Australian citizen or an Australian permanent resident

50. Subparagraph 5.19(4)(ii)(h)(B) requires the Tribunal to be satisfied that there is a genuine need for the applicant, as the nominator, to employ a paid employee to work in the position under the nominator’s direct control. Subparagraph 5.19(4)(ii)(h)(C) requires that the position cannot be filled by an Australian citizen or permanent resident who is living in the same local area.

51. In considering this issue, the Tribunal has taken into account the information provided to the Tribunal regarding the nature of the business and the explanation as to why there is a genuine need for a paid Customer Service Manager in the business. 

52. The Tribunal received a typed statement outlining the Need for Nominee/Position and an organisational chart. The applicant operates as a part of a supermarket chain, Spud Shed. The overall operation has 852 employees. The applicant submits the nominated position is a higher-level management position responsible to the retail store manager. The position is responsible for the smooth running of customer service operations. The position oversees around 20 staff. The business continuously recruits for Customer Service Managers given the shortage of staff, foreign students, and travellers.  

53. The Tribunal is persuaded by the evidence of the applicant, supported by the material provided in support of the review, that customer service is crucial to business operations and growth within the organisation, and that the nominated position is responsible for developing ways in which to improve customer relations for the business.  

54. The Tribunal accepts the evidence regarding the applicant’s efforts to find a suitably qualified and experienced Customer Service Manager to fill the nominated position, on a long-term basis.

55. The Tribunal also takes into account the opinion of the regional certifying body, which it notes to be the Government of Western Australia, advising the Minister among other matters that the nominated position cannot be filled by an Australian citizen or permanent resident living in the same local area as the nominated position.

56. The Tribunal is satisfied that the applicant has demonstrated a genuine need for a paid position under its direct control and that it cannot be filled by a local resident. Accordingly, r.5.19(4)(ii)(h)(B) and (C) are met.

    Tasks of the position

57. The tasks of the nominated position must correspond to those of an occupation specified in the relevant legislative instrument.  The applicable instrument specified for this purpose is IMMI 17/058.  The application is for a Customer Service Manager, ANZSCO 149212. 

58. The ANZSCO outlines that the tasks of the occupation of Customer Service Manager include:

    ·developing and reviewing policies, programs and procedures concerning customer relations and goods and services provided

    ·ensuring operational efficiency within a call centre

    ·providing direction and feedback to team members and assisting with recruitment

    ·managing, motivating and developing staff providing customer services

    ·planning and implementing after-sales services to follow up customer satisfaction, ensure performance of goods purchased, and modify and improve services provided

    ·liaising with other organisational units, service agents and customers to identify and respond to customer expectations.

59. The applicant’s submission to the Tribunal contains a comparison table between the ANZSCO duties associated with a Customer Service Manager and particular duties from the applicant’s job description document.  It is submitted that the tasks to be performed by the nominated position sufficiently correspond to the tasks of the Customer Service Manager in the ANZSCO dictionary.

60. The information before the Tribunal is that the nominated role leads a customer service team in the applicant business, as well as develops, plans and improves customer service initiatives, policies, procedures and standards for its supermarket business.

61. In all the circumstances of this case, the Tribunal is satisfied that the tasks associated with the nominated position sufficiently correspond to those of the occupation of Customer Service Manager (ANZSCO 149212). 

62. The Tribunal observes that the nominee has been employed by the applicant for three years and meets the requisite level of qualification according to ANZSCO. 

63. On the basis of the evidence before it, the Tribunal is satisfied that tasks associated with the position correspond sufficiently to those of the occupation of Customer Service Manager, such that it is satisfied that the tasks expected to be performed by the nominee in the applicant’s business correspond to the tasks of a Customer Service Manager at ANZSCO Skill Level 2.

64. Accordingly, the requirements of r.5.19(4)(h)(ii)(D) of the Regulations are met.

    Regional Certification

65. The Tribunal has considered the Form 1404 Regional Sponsored Migration Scheme – Regional Certifying Body Advice, issued on 19 December 2017 by Skilled Migration WA, Western Australian Department of Training and Workforce Development.

1. The Tribunal notes its earlier comments in relation to the current instrument IMMI 18/037, which only applies in respect of nomination applications made on or after 18 March 2018, and that it has therefore applied the provisions in the instrument that applied at the time the applicant lodged the nomination application, which was IMMI 16/045.

2. On the basis of the advice set out in the Form 1404 Regional Sponsored Migration Scheme – Regional Certifying Body Advice provided, the Tribunal is satisfied that the regional certifying body has advised the Minister about the matters set out in r.5.19(4)(e ) and r.5.19(4)(h)(ii)(B) and (C) of the Regulations. The regional certifying body states that:

   • There is a need for a paid employee in the nominated position within the business activities of the nominating employer;
   • The nominated position cannot be filled by an Australian citizen or an Australian permanent resident who is living in the same local area as the nominated position; and
   • The terms and conditions of employment that are applicable to the nominated position will be no less favourable than the terms and conditions that are or would be provided to an Australian citizen or Australian permanent resident for performing the equivalent work in the same workplace at the same location.

3. Consistent with the decision of the Federal Circuit Court of Australia in Bharaj Construction Pty Ltd v MIBP [2016] FCCA 902, certification by a regional certifying body is not sufficient or determinative in relation to whether the nominator meets r.5.19(4)(e), r.5.19(4)(h)(ii)(B) and r.5.19(4)(h)(ii)(C) of the Regulations. Accordingly, the Tribunal notes that, whilst having regard to the advice provided by the regional certifying body, it has reached its own conclusions about the matters the subject of the regional certifying body’s advice.

4. Having considered the Form 1404 provided, the Tribunal is satisfied that the requirements of r.5.19(4)(h)(ii)(F) are met by provision of the requisite Form 1404.

5. Accordingly, the requirements of reg 5.19(4)(h) are met.

6. 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

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

   P. Maishman
   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 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).