VJN GROUP PTY LTD (Migration)

[2020] AATA 4176

VJN GROUP PTY LTD (Migration) [2020] AATA 4176 (13 July 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  VJN GROUP PTY LTD

CASE NUMBER:  1808722

HOME AFFAIRS REFERENCE(S):          BCC2016/3780114

MEMBER:Stavros Georgiadis

DATE:13 July 2020

PLACE OF DECISION:  Adelaide

DECISION:The Tribunal affirms the decision under review to refuse the nomination.

Statement made on 13 July 2020 at 6:28pm

CATCHWORDS

MIGRATION – application for approval of nomination of position – direct entry nomination stream – nominated employee left position and applicant now seeks to rehire her – applicant’s attempts to recruit citizen or permanent resident – decision under review affirmed

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 14 March 2018 to reject 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 applied for approval on 11 November 2016. 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).

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 r.5.19(4)(h)(ii)(D) of the Regulations because the delegate concluded the tasks to be performed in the position did not correspond to the tasks of an occupation specified in the relevant instrument.

5. The applicant’s sole Director, Mr Bharatkumar V Patel, appeared before the Tribunal on 13 July 2020 to give evidence and present arguments. The Tribunal also received oral evidence from Ms Jasmeet Kaur, the nominee for the position in the related AAT casefile 1812709 reviewing the refusal of the Subclass 187 visa applications in that matter. The related matters were heard together in a combined hearing.  

6. The Tribunal exercised its discretion to hold the hearing by telephone. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

7. The applicant was represented in relation to the review by its registered migration agent.

8. For the following reasons, the Tribunal has decided to affirm the decision under review to refuse the nomination.

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. 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.

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

10. 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:

    ·     (h)(i) - 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, and specified training requirements are met; or

    ·     (h)(ii) - 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 (RCB) has advised the Minister about certain matters relating to the position.

11. The applicant operates a fuel service station outlet trading as Westside Petroleum, in Braidwood, regional New South Wales.  The Regional Certifying Body (RCB) certificate dated 13 December 2016 and the nomination application name Ms Jaspreet Kaur as the nominee for the position of Retail Manager (ANZSCO 142111) for that role.

12. The applicant’s oral evidence is that he hired Ms Kaur to fill the full time role of Restaurant Manager in the business. He told the Tribunal that he had placed an on-line advertisement for the role on in September 2016 to find a suitable candidate.  The applicant said he received 3 or 4 responses but only one of the persons responding was an Australian citizen or Australian permanent resident.  The applicant explained, somewhat vaguely, that this applicant “did not treat that position.”  When asked to elaborate, Mr Patel told the Tribunal that the person was not suitable for the role as they were not experienced in operating a console, handling cash, and also because he was not confident that the person would be trustworthy.  Accordingly, the sole Australian citizen or permanent resident was not offered the position. 

13. When the Tribunal asked the applicant if he had undertaken any further advertising for the position beyond September 2016, he responded in the negative, confirming no further advertising was carried out.  The applicant added that he had secured the services of a recruiter, MBC Employment Services and had ‘told them to advertise - but they did not’.  The Tribunal accepts the applicant’s oral evidence that there was no further advertising carried out. The Tribunal notes the applicant’s submission that these events were almost 4 years ago now, but considers the applicant clearly understood the questions relating to recruitment and advertising and answered directly in response to these straight-forward questions.

14. The Tribunal asked Ms Kaur how she had learned about the nominated position. Ms Kaur told the Tribunal that she found the job through the ‘adzuna’ on-line advertisement which she saw in September 2016.  She applied online and was interviewed for the role in October 2016.  At this time, she was living in Sydney. She told the Tribunal that the applicant advised her in November 2016 that she had won the position and signed an employment contract for the role with the applicant in November 2016.  Ms Kaur explained however, that due to falling pregnant in late November 2016, then suffering a miscarriage and falling pregnant again, she gave birth to her daughter (prematurely) in August 2017.  However, as the infant child had particular medical needs, Ms Kaur did not commence the role until some 16 months later on 1^st March 2018. 

15. The applicant’s oral evidence is that Ms Kaur moved to Braidwood from Sydney and worked as the Retail Manager in the business from March 2018 to June 2019.  The Tribunal accepts this evidence as Ms Kaur also confirmed that she worked in the business for that period.  Ms Kaur then explained ‘I left my employment’ in  June 2019 and returned to Sydney.  The Tribunal carefully questioned the applicant and Ms Kaur surrounding this development and accepts from both the applicant’s and Ms Kaur’s oral evidence that no leave of any kind (whether maternity leave, annual leave or other leave) was granted for her absence from work.  The Tribunal accepts that Ms Kaur left her employment in June 2019.  Mr Patel told the Tribunal than he now seeks to ‘rehire’ Ms Kaur in the same role as Retail Manager.  From this accepted evidence, the Tribunal considers that Ms Kaur abandoned her employment with the applicant when she left in June 2019 without any leave approval and has not returned since.  From the applicant’s own term used - seeking to ‘rehire’ Ms Kaur - the Tribunal accepts that the mutuality of the employment relationship with the applicant had ceased from June 2019.

16. Mr Patel’s oral evidence is that since Ms Kaur left the job, he has been working 40 to 50 hours per week to undertake the duties of Retail Manager in the business in addition to the support provided by the casual console operators. His evidence is that the business operates 7 days per week from 5:00am to 10:00pm each day.  Mr Patel told the Tribunal that he does not wish to continue undertaking these duties as he is interested in pursuing other business interests and it is for this reason, he is now seeking to rehire Ms Kaur.  The Tribunal notes that Mr Patel has been able to manage the business (together with the console operators) without Ms Kaur for more than the past year.

17. As outlined, the Tribunal accepts the applicant’s oral evidence that there was no further advertising undertaken for the nominated position since September 2016. The Tribunal raised with the applicant the issue that, without any further advertising, how the applicant could meet the requirement in r.5.19(4)(h)(ii)(C) of demonstrating that the position cannot be filled by an Australian citizen or Australian permanent resident who is living in the same local area. Mr Patel explained that after Ms Kaur left in June 2019 he asked around at local businesses if there was anyone interested in a full time role but no-one was available.

18. The Tribunal acknowledges the applicant’s submission that the job recruitment was undertaken almost 4 years ago.  The Tribunal considers that the circumstances regarding the local labour market, pay levels and other relevant criteria would likely have changed over that time period.  Further, the Tribunal considers that the solitary response from an Australian citizen or permanent resident received in September 2016 (with only 3 or 4 responses overall) ought to have instigated the applicant to undertake further recruitment activity to try to secure a larger range of potentially suitable candidates for the role to select from, noting also that Ms Kaur was not a local resident. The single advertisement through in September 2016, the inaction by MBC Employment Services, and the subsequent attempt of just asking local businesses by word of mouth is not sufficient recruitment activity, in the Tribunal’s view, to satisfy this criterion for the purposes of meeting r.5.19(4)(h)(ii)(C). In circumstances where the applicant seeks to rehire the nominee after leaving that role, and the considerable break of more than one year, the Tribunal also considers a fresh round of advertising or recruitment activity is warranted but has not been undertaken at the time of making this decision.

19. Although given the above, the Tribunal does not specifically rely on the following, it notes from the final paragraph of the applicant’s written submissions dated 4 June 2020 that selection of a suitable candidate considered the criterion of persons ‘Less than 50 years of age - Ms Jasmeet Kaur is 32 years old.’ This is a discriminatory practice (ageism) undertaken in relation to employment and would be unlawful under the Age Discrimination Act 2004 (Commonwealth) and the NSW Anti-Discrimination Act 1977. Relevantly, this practice serves to restrict the pool of potentially suitable candidates that otherwise could be considered for the role (even if not mentioned in an advertisement) and falls short of the lawful actions expected to be undertaken for satisfying the criteria in r.5.19(4)(h)(ii).

20. Having regard to the evidence before it discussed, the Tribunal is not satisfied overall that the applicant has demonstrated that the nominated position cannot be filled by an Australian citizen or an Australian permanent resident who is living in the same local area as that place to meet r.5.19(4)(h)(ii)(C).

21. 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

22. The Tribunal affirms the decision under review to refuse the nomination.

    Stavros Georgiadis
    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).