VISHVAM PTY LTD AS TRUSTEE FOR THE VISHVAM UNIT TRUST (Migration) - [2021] AATA 4453

VISHVAM PTY LTD AS TRUSTEE FOR THE VISHVAM UNIT TRUST (Migration) [2021] AATA 4453 (17 November 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Vishvam Pty Ltd ATF The Vishvam Unit Trust
CASE NUMBER:  2103756
HOME AFFAIRS REFERENCE(S):          BCC2017/150201
MEMBER:K. Chapman
DATE:17 November 2021
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision under review to refuse the nomination.

Statement made on 17 November 2021 at 2:14pm
CATCHWORDS
MIGRATION – Federal Circuit Court remittal – application for approval of nomination of position – direct entry nomination stream – genuine need for position – tasks of position more consistent with supervisor than manager – terms and conditions of employment – no updated and current information provided – consent to decision without hearing – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 359(2)
Migration Regulations 1994 (Cth), r 5.19(e), (4)(h)(ii)(B), (C), (D)
CASE
Bharaj Construction Pty Ltd v MIBP (No 3) [2019] FCCA 31

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 17 January 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 (Cth) (‘the Regulations’).
The applicant, Vishvam Pty Ltd ATF The Vishvam Unit Trust (also ‘the nominator’), applied for approval on 12 January 2017. The applicant nominated Mr Neela Pamidimalla (‘the nominee’) in the occupation of Retail Manager (General) (ANZSCO Code 142111). The application for nomination was made in connection with the Regional Sponsored Migration Scheme (RSMS). The nominated position is located in a regional area of Queensland.
The requirements for the approval of the nomination of a position in Australia are found in r.5.19 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.
The delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19(4)(h)(ii)(D). In the view of the delegate, the tasks to be performed in the position do not correspond to the tasks of a Retail Manager (General) (ANZSCO Code 142111), which is an occupation specified by the Minister in instrument IMMI 15/083. Rather, in the view of the delegate, the tasks to be performed in the nominated position are more consistent with the occupation of Retail Supervisor (ANZSCO 621511). On 6 February 2018, the applicant applied to the Tribunal for review of the nomination decision.
On 20 May 2020, the Tribunal (differently constituted) affirmed the decision to refuse to approve the nomination: AAT reference 1803102. The applicant subsequently applied to the Federal Circuit Court of Australia for judicial review. On 10 March 2021, the Court made orders granting relief to the applicant and remitting the matter to the Tribunal for reconsideration.
On 23 September 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. Following a change in representative, and the grant of an extension of time to respond, the applicant submitted Business Activity Statements, ASIC records, PAYG information regarding the nominee, a Taxation return, job advertising material and a Balance Sheet dated 30 June 2021. All material received has been duly considered by the Tribunal.
The Tribunal initially scheduled a review hearing for 19 October 2021. However, at the request of the applicant, the Tribunal postponed this hearing. On 25 October 2021, the Tribunal invited the applicant to attend a review hearing on 17 November 2021. On 15 November 2021, the applicant requested another postponement of the hearing, on the basis that the director of the applicant 'won’t be able to attend the hearing due to his other commitments'. Following careful consideration, on 16 November 2021, the Tribunal declined to grant the most recent postponement request given the reason expressed for it and the chronology of the review.
On 16 November 2021, the applicant through its representative confirmed in writing that there would be no attendance at the review hearing scheduled for 17 November 2021 and requested the Tribunal to make a decision on the papers. The Tribunal has accepted this request of the applicant, having regard to all relevant matters. Accordingly, the Tribunal has proceeded to make its decision on the papers in this review.
For the following reasons, the Tribunal has decided to affirm the decision under review to refuse 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 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.
No less favourable terms and conditions of employment: r.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 Tribunal notes that it invited the applicant to provide updated and current information addressing the relevant criteria under r.5.19 of the Regulations in its invitation of 23 September 2021 (with an extended due date for response granted). Despite the opportunity afforded to the applicant to provide updated and current information addressing the relevant criteria in rr.5.19(2) and (4), there is a paucity of contemporary documentary evidence before the Tribunal pertaining to r.5.19(4)(e). Additionally, the Tribunal notes that the applicant was invited to attend a review hearing but declined that opportunity. Therefore, the Tribunal has not been able to discuss the aforementioned criterion with the applicant.
The Tribunal notes that the most recent submitted evidence, pertaining to the remuneration of the nominee, is a PAYG payment summary for the Financial Year ending 30 June 2020 indicating he received $69,626 in gross payments. However, despite evidence being submitted to the Department regarding employee remuneration, there is a lack of contemporary probative evidence before the Tribunal in relation to the individual payment arrangements for the applicant’s employees and the appropriateness of those arrangements in the market. For example, there is no persuasive material before the Tribunal in this regard pertaining to the most recently completed Financial Year (ending 30 June 2021), nor for the period from 1 July 2021 until the present time.
Accordingly, there is a lack of probative evidence to ascertain who, if anyone, in contemporary times performs equivalent work in the same workplace, at the same location as the nominated position, and what their terms and conditions of employment are or might be. Furthermore, there is a lack of contemporary evidence before the Tribunal with respect to the market salary of a Retail Manager (General) (ANZSCO Code 142111). These matters create doubt regarding the contemporary favourableness of the terms and conditions of employment applicable to the nominated position. The dearth of contemporary probative material before the Tribunal regarding the requirements of r.5.19(4)(e), for example by way of market salary information and comparative remuneration information for any other relevant employees, leads to a lack of satisfaction that such requirements are satisfied.
The Tribunal notes that it must assess the requirements of r.5.19(4)(e) as a time of decision criterion. On balance, there is insufficient contemporary evidence, of probative value, before the Tribunal for it to be satisfied 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.
Accordingly, the requirements in r.5.19(4)(e) are not met. The Tribunal so finds.
Tasks of the position, genuine need for the position and training requirements r.5.19(4)(h)
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 (RSMS), in the Direct Entry nomination stream. Accordingly, r.5.19(4)(h)(i) is not relevant to the review.
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.
The Tribunal is satisfied that both the nominated position, and the applicant’s business, are located in regional Queensland. 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).
Of particular relevance in the present review are the following requirements:
· there is a genuine need for the nominator to employ a paid employee to work in the position under the nominator’s direct control: r.5.19(4)(h)(ii)(B);
· 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: r.5.19(4)(h)(ii)(C); and
· 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: r.5.19(4)(h)(ii)(D) (the relevant instrument is IMMI 15/083).
The Tribunal notes that the applicant has submitted Form 1404 dated 23 December 2016, from the Chamber of Commerce and Industry Queensland, 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). The Tribunal has paid due regard to the information contained in the Form 1404. However, the Tribunal also notes the Federal Circuit Court of Australia, in the matter of Bharaj Construction Pty Ltd v MIBP (No. 3) [2019] FCCA 31 (considering an earlier version of r.5.19(4)), provided guidance suggesting that RCB certification will not be ‘sufficient or determinative’ in relation to whether the requirements outlined in r.5.19(4)(e), r.5.19(4)(h)(ii)(B) and r.5.19(4)(h)(ii)(C) are met. Rather, the Court’s guidance indicates that the Tribunal must perform its own assessment of these requirements. Accordingly, the Tribunal has done so in the present review.
As outlined above, the Tribunal invited the applicant to provide updated and current information addressing the relevant criteria under r.5.19 of the Regulations in its invitation of 23 September 2021 (with an extended due date for response granted). Despite the opportunity afforded to the applicant to provide updated and current information addressing the relevant criteria in rr.5.19(2) and (4), there is a dearth of contemporary documentary evidence before the Tribunal pertaining to r.5.19(4)(h)(ii)(B), r.5.19(4)(h)(ii)(C) and r.5.19(4)(h)(ii)(D). Furthermore, the Tribunal notes that the applicant was invited to attend a review hearing but declined that opportunity. Therefore, the Tribunal has not been able to discuss the aforementioned criteria with the applicant.
Given the deficiencies in the contemporary material as outlined above, the Tribunal cannot be satisfied that, at present, there is a genuine need for the nominator to employ a paid employee to work in the position under the nominator’s direct control pursuant to r.5.19(4)(h)(ii)(B). The Tribunal so finds. Additionally, given the lack of persuasive material before it, the Tribunal is not satisfied that 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 pursuant to r.5.19(4)(h)(ii)(C). The Tribunal so finds.
Regarding the requirements of r.5.19(4)(h)(ii)(D), again there is a lack of persuasive contemporary material before the Tribunal to establish what the tasks to be performed in the position currently are. 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 Retail Manager (General) (ANZSCO Code 142111), which is a skill level 2 occupation. The tasks of this occupation, and others pertinent to the retail sector, are located in the ANZSCO (Australian and New Zealand Standard Classification of Occupations). The Tribunal has accordingly paid due regard to the provisions of the ANZSCO in this review. On balance, given the lack of persuasive contemporary material concerning this topic, the Tribunal cannot be satisfied that the tasks to be performed in the position correspond to the tasks of an occupation specified by the Minister in the relevant instrument, at the time of this decision. The Tribunal so finds.
Therefore, for the reasons outlined above, the applicant does not meet the requirements of r.5.19(4)(h).
CONCLUSION
For the above reasons, the Tribunal is not satisfied that the applicant meets the requirements of r.5.19(4). The applicant has not sought to satisfy the criteria in Temporary Residence Transition Nomination stream, and as such has not met the requirements in r.5.19(3). Accordingly, the nomination of the position cannot be approved. Therefore, the Tribunal must affirm the decision under review.
DECISION
The Tribunal affirms the decision under review to refuse 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).