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

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).
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).
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)(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.
On behalf of the applicant, Mr Frankie Galati appeared before the Tribunal on 30 September 2022 to give evidence and present arguments.
The applicant was represented in relation to the review.
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 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.
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.
The issue in this case is whether the applicant meets the requirements for approval of the nomination under…

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.

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Details

Case: [2022] AATA 4493
Decision Date: 30 September 2022

CaseChat Overview and Summary

The Administrative Appeals Tribunal reviewed a decision concerning Vegie Bandits Pty Ltd, which trades as Spud Shed, a supermarket chain. The dispute centred on Spud Shed's application for approval of a nominated position under the Direct Entry stream of the Employer Nomination scheme. The delegate of the Department of Home Affairs had previously found that the nomination did not meet the requirements of regulation 5.19(4)(a)(ii) of the Migration Regulations 1994, specifically regarding the identification of a need for a paid employee.

The Tribunal was required to determine whether Spud Shed met all the requirements for approval of the nomination under regulation 5.19(4) of the Migration Regulations 1994. This involved assessing whether the application was compliant, if the nominator was actively and lawfully operating a business, if there was any adverse information known to Immigration, and if the nominator 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 relate to the genuine need for the position, the tasks involved, and whether the position could be filled by an Australian citizen or permanent resident.

The Tribunal reasoned that while regulation 5.19(4)(a)(ii) requires the identification of a need, a more qualitative assessment of this need was more appropriately considered under regulation 5.19(4)(h)(ii)(B). The Tribunal found that Spud Shed had indeed identified a need to employ Valentina Ballacci as a Customer Service Manager under its direct control, thus satisfying regulation 5.19(4)(a). Regarding adverse information, the Tribunal considered past issues with an associated entity, Galati Nominees Pty Ltd, and concluded that these matters, occurring more than three years prior and relating to payroll outsourcing and a fine under the Imported Food Act, did not constitute relevant adverse information as defined by the regulations. The Tribunal was satisfied that Spud Shed had a satisfactory record of compliance with workplace relations laws and that there was a genuine need for the nominated position, which could not be filled by a local Australian resident.

Consequently, the Tribunal set aside the original decision and substituted a decision approving the nomination.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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 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. 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. 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. 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. 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. 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). 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. 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)

Decision

Reasons for decision

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.P. MaishmanMemberATTACHMENT - Extracts from the Migration Regulations 19945.19Approval 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).

Ratio Decidendi

Legal Principle Established

Accordingly, the requirements of r.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 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. 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. 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. 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. The Tribunal is satisfied the is no relevant adverse information known to immigration. 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 does not have a satisfactory record of compliance with workplace relation laws. 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 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