WA Car Removals Pty Ltd (Migration)

WA Car Removals Pty Ltd (Migration) [2020] AATA 5860 (27 November 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  WA Car Removals Pty Ltd
CASE NUMBER:  1810595
HOME AFFAIRS REFERENCE(S):          BCC2016/2131401
MEMBER:Nicola Findson
DATE:27 November 2020
PLACE OF DECISION:  Perth
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Statement made on 27 November 2020 at 1:13pm
CATCHWORDS
MIGRATION – Employer Nomination – approval of nominated position – Direct Entry Nomination – Personal Assistant – identification of need – increasing volume of work – better manage significant workload – maintain level of service – decision under review set aside
LEGISLATION
Migration Regulations 1994 (Cth), r 5.19
CASES
Bharaj Construction Pty Ltd v MIBP [2016] FCCA 902
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 29 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).
The applicant applied for approval on 22 June 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).
In this case, the applicant has applied for approval of a nomination, seeking to satisfy the criteria in the Direct Entry nomination stream. It has nominated the position of Personal Assistant (ANZSCO 521111), for approval.
The delegate refused the application on the basis that the applicant’s nomination did not satisfy r.5.19(4)(a)(ii) of the Regulations because the application for approval did not identify a need for the nominator to employ a paid employee to work in the position under the nominator’s direct control.
Mr Mohammad Amani, Director of the applicant, appeared before the Tribunal on 12 November 2020, to give evidence and present arguments. The Tribunal also received oral evidence from the nominated employee, Mr Jaskaran Singh. 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 applicant was represented in relation to the review by its registered migration agent.
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 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.
On 21 August 2020, the Tribunal wrote to the applicant, inviting it to provide further information to demonstrate all the relevant requirements of r.5.19(2) and (4). The applicant responded by the due date and provided to the Tribunal additional and updated evidence in support of the application, including but not limited to:
·ASIC records confirming the applicant’s company registration and the ABN record;
·Financial Statements for the years ended 30 June 2018 and 2019;
·Australian Taxation Office integrated account summary statement for the period August 2018 to August 2020;
·Business Activity Statements (BAS) for the period 1 July 2018 to 30 June 2020;
·Current organisational structure chart;
·Job description for the nominated position;
·Bundle of material evidencing the tasks performed by the nominated position;
·A letter of support dated 26 August 2020 from the applicant’s accountant who has formed the opinion based on historical and current financial information before him that the applicant is profitable and can sustain the nominated position on a full-time basis;
·Evidence of advertising the nominated position;
·Updated Contract of Employment dated 28 August 2020 between the applicant and the nominee recording that the base salary will be $52,000 and 9.5% superannuation;
·Payroll records in relation to the nominee (including PAYG information);
·Regional Certifying Body advice.
During the review process, the applicant also provided a written submission to the Tribunal. The submission provides background to the operation of the business as well as a focussed response to the concerns set out by the delegate in the decision record. It is claimed that it is necessary to have a full time Personal Assistant in the business and that it was difficult to find a suitable person from the local labour market who demonstrated the relevant skills and experience.
At the hearing, Mr Amani provided the Tribunal with additional evidence about the operations and growth of the applicant business. He told the Tribunal that the applicant was established in 2012, and initially, was a small family operation. He said today, however, the applicant is a leading car removals and parts business in Perth, operating out of two large warehouses on a large property in Forrestdale, Western Australia. He said the company comprised vehicle and parts dismantling, as well as a truck fleet. He explained that a second-hand auto parts business – ‘WA Auto Parts’ – was also set up by the applicant in late 2017. Mr Amani told the Tribunal that as the business grew, he became increasingly busy and it was necessary to recruit a Personal Assistant to help him manage the workload in order to maintain a good standard of service, and to allow him to focus on continuing to grow the business. Mr Amani indicated to the Tribunal that the decision would not have been made to pay an extra wage in respect of the nominated role, if the business was able to do without it.
Mr Amani gave evidence of the nominated employee’s role and duties as a Personal Assistant. He described how the nominated position is crucial to the applicant’s business operations. He indicated that the nominee assists in the ongoing day to day running of the applicant business by providing efficient and confidential support to him. He said the position’s responsibilities include screening telephone calls and emails and responding to any car removal inquiries; acting as the liaison between the Director(s), the workers (including the contractors) of the business, as well as customers; arranging bookings for vehicles to be collected from customers and/or dealerships; assigning jobs to the applicant’s truck drivers; arranging delivery and removal of scrap metal skip bins; processing correspondence and invoices; arranging and attending meetings; conducting Personal Property Securities Register searches in respect of vehicles; and preparing and maintaining documents (for example, lists of car bodies stored on the business premises). Mr Amani told the Tribunal that he would have tremendous difficulty finding a suitable replacement for the nominated employee, whom he trusts, if he were to leave the business. Mr Singh also outlined to the Tribunal his daily tasks and relevant experience.
Mr Amani gave evidence of how the nominee came to be in the applicant’s employ. He said the nominee had started working for the applicant as a labourer, on a part-time basis, about 12 months before the nominated position was taken to the local market. He said that the nominated position was advertised in May 2016, and applicants were shortlisted, interviewed and deemed unsuitable, before the nominee – who had relevant skills and expectations of the role – was offered the position. Mr Amani told the Tribunal that, in general, it is very difficult for the applicant to attract and retain staff given the location and unglamorous environment of the business. The nominee has now worked for the applicant for over four years.
The Tribunal observed that at the hearing, it found Mr Amani to be a reliable and persuasive witness. The Tribunal is confident to rely on the description of the business and the position provided to it by Mr Amani, and his intentions for the position as accurate.
Following the hearing, the applicant (via its representative) provided the Tribunal with additional documents in support of its review application, including: a lease agreement executed in January 2020 between the applicant and the owner of a property adjacent to the applicant’s business address, enabling business operations to expand; photographs of the (400) cars currently stored at the business address as well as the applicant’s truck fleet; a table drawing references between tasks associated with the Personal Assistant occupation described by ANZSCO and those of the nominated position; and PayScale information of the salary range paid to Personal Assistants in Australia. The Tribunal has had regard to this additional material.
The application is compliant: r.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 a paid employee to work in the position under their direct control.
The Tribunal has had regard to the information of the Department’s file as to the nomination, and is satisfied that these requirements are met. The application for approval was made on the approved form and was accompanied by the prescribed fee. The relevant s.245AR(1) certification was also provided to the Department.
The identified occupation in the application is Personal Assistant (ANZSCO 521111).
At hearing, Mr Amani outlined to the Tribunal that his business has been in successful operation since 2012, and that he is currently running a very profitable business. The Tribunal has financial material before it which supports these claims.
Mr Amani’s evidence to the Tribunal was that because of the increasing volume of work, he lacked time to give attention to other areas of his business, which he was concerned would compromise service standards. He explained that it became plain that he did not have enough time to do everything and that he needed somebody to help him with his workload to ensure the business was running effectively, and so that he could continue to expand the business.
The Tribunal has considered Mr Amani’s oral evidence and the documentary evidence before it. The Tribunal finds that the applicant’s reasons for wanting to employ a Personal Assistant are reasonable and logical and it is evident the business is at a point where one is identifiably and justifiably needed. It is also apparent that the business is in a financial position to afford to pay a salary for a Personal Assistant. The Tribunal considers the applicant’s desire to want to better manage a significant workload and to maintain its level of service as a legitimate concern and accepts that a Personal Assistant will assist in this regard.
Mr Amani spoke in-depth about the business and was able to articulate with detail the need to employ a paid employee in the role of Personal Assistant under the nominator’s direct control. The Tribunal is of the view that the applicant business is of a size and scope that would warrant a Personal Assistant.
The Tribunal is satisfied, based on Mr Amani’s oral evidence, along with the supporting information that there is an identified a need for the nominator to employ a paid employee to work in the position under their direct control.
Accordingly, the requirement in r.5.19(4)(a) is met.
Nominator is actively and lawfully operating a business in Australia: r.5.19(4)(b)
Regulation 5.19(4)(b) requires that the applicant is actively, lawfully and directly operating a business in Australia.
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.
Accordingly, the requirement in r.5.19(4)(b) is met.
Position is not labour-hire: r.5.19(4)(c)
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.
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.
Accordingly, the Tribunal finds that the position is not related to labour-hire and that the requirement in r.5.19(4)(c) is met.
Term of employment of the visa holder: r.5.19(4)(d)
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.
The applicant has provided information and updated financial reports to the Tribunal that indicate the company has the financial capacity to employ the nominee at the specified salary, and the Tribunal accepts this evidence.
The Tribunal has also had regard to the terms and conditions of employment as set out in the (updated) employment contract signed on 28 August 2020, and provided to the Tribunal during the review process. The contract confirms the nominee will be employed on a full-time basis for at least two years, and that the employment contract does not expressly exclude the possibility of extending the period of employment.
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.
The Tribunal is satisfied on the material before it that the nominee will be employed on a full-time basis for at least two years on terms that do not exclude the possibility of extending the period of employment.
Accordingly, the requirement in r.5.19(4)(d) is 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 has had regard to the terms and conditions of employment as set out in the (updated) contract of employment signed on 28 August 2020. The contract provides for the nominee’s entitlements and indicates that the base salary will be $52,000 plus superannuation, for a 38-hour week. The Tribunal has considered payscale.com.au information indicating that, currently, the annual salary for a Personal Assistant in Western Australia ranges from $44,000 to $79,000. The Tribunal is satisfied that the nominee is being, and will continue to be, paid in accordance with the terms of the employment contract, and that the employment contract reflects current employment laws.
On the basis of the information before it, the Tribunal is satisfied that the base salary of the nominee is within the appropriate range of that normally paid to an experienced Personal Assistant working in Western Australia. The Tribunal is accordingly 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.
Accordingly the requirements of r.5.19(4)(e) are met.
No adverse information known to Immigration: r.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 rr.1.13A and 1.13B.
There is no information before the Tribunal to indicate that there is adverse information known to the Department about the nominator or an associated person.
Accordingly, the requirements of r.5.19(4)(f) are met.
Satisfactory compliance with workplace relations laws: r.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 r.5.19(4)(g) are met.
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. 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
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.
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
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.

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 13/049.
In this case, the position is located in Forrestdale, Western Australia, 6112, and at the time of application, this location/postcode was considered regional Australia, as per Schedule B of IMMI 13/049. 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
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.
In considering this issue, the Tribunal has taken into account the information provided to the Tribunal regarding the nature and scope of the business and the explanation as to why there is a genuine need for a Personal Assistant in the business. In particular, it takes into account the business operations of the applicant, and the services it provides. The Tribunal accepts that the applicant genuinely requires assistance with a position performing tasks corresponding to those of a Personal Assistant.
The Tribunal has had regard to, and accepts, the additional evidence provided in support of the review application, including evidence that was not available to the delegate at the time of decision, regarding the applicant’s efforts to find a suitably qualified and experienced staff member to fill the nominated position, on a long-term basis. The evidence before the Tribunal is that the position was advertised in May 2016, and candidates were interviewed and deemed to be unsuitable, before the nominee was formally offered the role. 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.
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
The tasks of the nominated position must correspond to those of an occupation specified in the relevant legislative instrument: r.5.19(4)(h)(i)(A).
The Tribunal has had regard to evidence that has been provided detailing the tasks that will be performed and is satisfied that they correspond to the tasks of the occupation of Personal Assistant specified in the relevant instrument. The applicable instrument specified for this purpose is IMMI 15/083.
A detailed summary of the tasks to be performed in the position are consistent with the ANZSCO occupational description for a Personal Assistant, which include:
·liaising with other staff on matters relating to the organisation's operations
·researching and preparing reports, briefing notes, memoranda, correspondence and other routine documents
·maintaining confidential files and documents
·attending meetings and acting as secretary as required
·maintaining appointment diaries and making travel arrangements
·processing incoming and outgoing mail, filing correspondence and maintaining records
·screening telephone calls and answering inquiries
·taking and transcribing dictation of letters and other documents
·may supervise other secretarial and clerical staff
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 Personal Assistant, 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 Personal Assistant at ANZSCO Skill Level 3.
The Tribunal notes in passing that the nominee holds a Diploma in Mechanical Engineering as well as a Diploma of Management (from an Australian Education provider), and therefore satisfies the requisite level of relevant experience according to ANZSCO. The Tribunal also observes that the nominee now has over four years’ experience working as a Personal Assistant for the applicant.
Accordingly, the requirements of r.5.19(4)(h)(ii)(D) of the Regulations are met.
Regional Certification
The Tribunal has considered the Form 1404 Regional Sponsored Migration Scheme – Regional Certifying Body Advice, issued on 28 June 2016 by Skilled Migration WA, Western Australian Department of Training and Workforce Development.
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 13/049.
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.
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.
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.
It follows that the Tribunal finds the applicant meets all the requirements of r.5.19(4)(h) of the Regulations.
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
The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.
Nicola Findson

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).

[2020] AATA 5860

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Statutory Construction

Procedural Fairness

Jurisdiction