Wellbeing Korea Qld Pty Ltd (Migration) - [2024] AATA 2520

Wellbeing Korea Qld Pty Ltd (Migration) [2024] AATA 2520 (21 March 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Wellbeing Korea Qld Pty Ltd
REPRESENTATIVE:  Mr Chang Min Park
CASE NUMBER:  2308501
HOME AFFAIRS REFERENCE(S):          BCC2017/956047
MEMBER:Bridget Cullen
DATE:21 March 2024
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Statement made on 21 March 2024 at 3.57pm
CATCHWORDS
MIGRATION – Employer Nomination – approval of nominated position – Federal Circuit and Family Court remittal – Direct Entry nomination stream – Retail Manager (General) – genuine need for the position – retail sale of Asian groceries and food products – tasks of the position – 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 17 December 2018 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 10 March 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, Wellbeing Korea Pty Ltd (ABN 20 151 420 807), has applied for approval of a nomination for the position of Retail Manager (General) (ANZSCO 142111), seeking to satisfy the criteria in the Direct Entry nomination stream.
The delegate refused the application on the basis the delegate found that the Applicant had provided insufficient evidence to support the nomination satisfying reg 5.19(4)(a)(ii). The Applicant reviewed the decision to not approve the nomination in the Tribunal (differently constituted) and the Tribunal affirmed the Department’s decision on 26 November 2021. On 29 May 2023, the matter was remitted to the Tribunal by the Federal Circuit and Family Court of Australia (Division 2).
The Applicant appeared before the Tribunal on 18 March 2024 via Director and Secretary, Mr Uncheol Kim, to give evidence and present arguments. The Tribunal also received oral evidence from the Nominee, Ms Yuri Na. The Tribunal hearing was conducted with the assistance of an interpreter in the Korean and English languages.
The Applicant was represented in relation to the review. Mr Chang Min Park attended the hearing and made submissions on the Applicant’s behalf. The hearing was conducted remotely, via Microsoft Teams videolink, as the Applicant and Nominee are located in Cairns.
For the following reasons, the…

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: [2024] AATA 2520
Decision Date: 21 March 2024

CaseChat Overview and Summary

This matter concerned an application by Wellbeing Korea QLD Pty Ltd for approval of a nominated position under the Direct Entry stream of the Employer Nomination scheme. The applicant sought to nominate a Retail Manager (General) position. The Federal Circuit and Family Court of Australia, through Senior Member Bridget Cullen, was required to determine whether the nominated position met the requirements for approval under regulation 5.19(4) of the *Migration Regulations 1994*.

The core legal issue before the Tribunal was whether Wellbeing Korea QLD Pty Ltd had demonstrated a genuine need for the nominated Retail Manager position, considering the nature of its business, its operational scale, and the availability of local labour. This involved assessing whether the position's tasks corresponded to an eligible occupation and whether the business's location in Cairns qualified it for the regional Australia provisions under regulation 5.19(4)(h)(ii).

The Tribunal found that Wellbeing Korea QLD Pty Ltd, a retailer of Asian groceries and food products in Cairns, operated on a substantial scale, evidenced by its significant retail space, extensive refrigeration facilities, high operational costs, substantial inventory value, and increasing revenue. The Tribunal concluded that these factors substantiated a genuine need for a Retail Manager to oversee the complex operations, including inventory management and supplier interactions. Furthermore, the Tribunal determined that Cairns was considered regional Australia at the time of the application, satisfying the location requirement under regulation 5.19(4)(h)(ii)(A). The Tribunal was satisfied that all other relevant requirements of regulation 5.19(4) were met, including compliance with workplace relations laws and the absence of adverse information.

Consequently, the Tribunal set aside the original decision and substituted a decision approving the nomination of the Retail Manager position.

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 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. Helpfully, the representative has provided the Tribunal with comprehensive written submissions outlining the Applicant’s business:THE APPLICANT’S BUSINESS PROFILE 4. The applicant, Wellbeing Korea QLD Pty Ltd (hereinafter referred to as "Wellbeing Korea"), commenced operations in 2011 as a pioneer in providing Asian grocery solutions in Cairns. Initially, the approach to business was routine, but with the increase in international tourism and corresponding rise in competition, there emerged a need for strategic market positioning and expansion. 5. Wellbeing Korea's primary focus is on the retail sale of Asian groceries and food products. Beyond this, the company has expanded services to include additional offerings such as organising group purchasing orders, international courier services, and the introduction and resale of tour guide packages. These services have established Wellbeing Korea as a central hub for the Asian community and local residents in Cairns. 6. With the advent of new competing entities, Wellbeing Korea has been ambitious in maintaining market leadership. Efforts include expanding the product range, competitive pricing, and considering establishing satellite offices in nearby cities. However, these ventures came with unforeseen complexities, especially highlighted by the resignation of a key retail manager and the arrival of new competitors such as Joa Mart Townsville, Seoul Mart Townsville, and others in around 2020, 2021 and 2022. 7. For the Asian minority demographic in a region of Australia with a relatively small community, Wellbeing Korea is more than a grocery store; it is a necessity. It provides essential goods that are otherwise unavailable at mainstream retailers, earning strong value and appreciation within both the Asian community and the broader Cairns citizens. This has cemented Wellbeing Korea as the premier destination for locals and tourists alike. 8. Wellbeing Korea has demonstrated through its sales over the past five years that it is far from being a modestly sized corner store. The company operates a significant retail space of 240 square metres, along with a parking facility covering 80 square metres, totalling 320 square metres in use. (The shop plan is enclosed) Its facilities are substantial, including refrigeration rooms, freezers, seven display refrigerators, and thirteen display freezers, underscoring the scale of its operational infrastructure. The monthly electricity costs alone for the refrigeration and freezing facilities range between $3500 and $4000, highlighting substantial operational expenses. Moreover, the value of its inventory is approximately $200,000, as covered under the facility's insurance policy, further evidencing the scale of the business's assets. 9. Financial performance over recent years solidifies Wellbeing Korea's positioning further away from a small-scale operation. The reported revenue figures present a clear trajectory of growth, particularly noting an increase from the 2020-2021 to the 2021-2022 financial year, moving from $854,757.84 to over a million dollars at $1,010,439.51. The applicant submits that despite high competition in the region, this performance is claimed to be highly notable. 10. Given the extensive facility use, high operational costs, substantial insurance-covered inventory value, and increasing revenue, it is evident that Wellbeing Korea operates on a scale that necessitates the position of a Retail Manager. The diversity in inventory management and significant interactions with suppliers and transportation channels further underscore the complexity and size of the operation, substantiating the proposition that the business is not small and indeed requires a Retail Manager for its efficient and effective management. 11. Over 10 years, Wellbeing Korea has undergone substantial changes to meet the dynamic shifts in the retail landscape. Adaptations include embracing online ordering systems, delivery services, customer group purchase initiatives, and building a robust social network presence. The onset of the COVID-19 pandemic, and its impact on international tourism, has accelerated the need for ingenuity and resilience in business operations. The application is compliant: reg 5.19(4)(a)

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.Bridget CullenSenior MemberATTACHMENT - 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 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).

Ratio Decidendi

Legal Principle Established

Accordingly, the requirements of reg 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. There is no evidence before the Tribunal of any adverse information known to the Department about the nominator or a person ‘associated with’ the nominator. 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 that indicates the Applicant does not have a satisfactory record of compliance with the relevant Commonwealth and State workplace relations 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 but can be briefly summarised as requiring either that:·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 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·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. The first consideration under r.5.19(4)(h)(ii) is whether the position is located in regional Australia. Regulation 5.19(6) provides that ‘regional Australia’ is defined by the legislative instrument. In this case the position is located in Cairns, QLD 4870. At the time of the application the location is considered regional Australia as per Schedule B of IMMI 16/045. Accordingly, the Tribunal finds that the requirements of sub-paragraph 5.19(5)(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.