WESTLAKES CAR WASH PTY LTD ATF WESTLAKES CAR WASH UNIT TRUST (Migration)

WESTLAKES CAR WASH PTY LTD ATF WESTLAKES CAR WASH UNIT TRUST (Migration) [2022] AATA 3981 (11 November 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  WESTLAKES CAR WASH PTY LTD ATF WESTLAKES CAR WASH UNIT TRUST
REPRESENTATIVE:  Ms Vanessa De Pretis (MARN: 1388116)
CASE NUMBER:  1919252
HOME AFFAIRS REFERENCE(S):          BCC2017/4744793
MEMBER:George Hallwood
DATE:11 November 2022
PLACE OF DECISION:  Adelaide
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Statement made on 11 November 2022 at 2:32pm
CATCHWORDS
MIGRATION – application for approval of nomination of position – direct entry nomination stream – car wash manager – genuine need for position – combined hearing of nomination and visa reviews – oral and documentary evidence from applicant and nominee – position crucial to business – decision under review set aside
LEGISLATION
Migration Regulations 1994 (Cth), r 5.19(4)(h)(ii)
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 5 July 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 12 December 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) of the Regulations because they were not satisfied there was a genuine need for the nominator to employ the person identified under subparagraph 5.19(4)(a)(ii), as a paid employee, to work in the position under the nominator’s direct control.
Mr Amardeep Singh Seth appeared on behalf of the applicant before the Tribunal on 11 November 2022 to give evidence and present arguments. As this was a combined hearing with the associated nominee, the Tribunal also received oral evidence from Mr Bikramjit Singh Dhillon case number 1925364.
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 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.
I have had regard to the material provided and oral evidence and I am satisfied that the application was compliant with the process set out in r.5.19(3)(a) as the application:
·was made on the approved form and was accompanied by the fee prescribed in reg 5.37;
·includes a written certification stating whether the nominator has engaged in conduct in relation to the nomination that contravenes s 245AR(1); and
·identifies a need for the nominator to employ an identified person, Mr Dhillon, as a paid employee to work in the position of Car Wash Manager under the nominator’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)
Regulation 5.19(4)(b) requires that the applicant is actively, lawfully and directly operating a business in Australia.
The applicant has provided current ASIC documents; financial statements 2016, 2017, 2018, 2019, 2020, 2021; trust tax returns; BAS statements; organisation charts; and employment contracts; that demonstrate to the satisfaction of the Tribunal that the nominator is actively and lawfully operating a business in Australia, and that they directly operate that business.
Accordingly, the requirement in reg 5.19(4)(b) is met.
Position is not labour-hire: reg 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.
The applicant submitted that the nominator is not involved in labour hire activities and that the nominated position is within the nominator’s business and is not for hire to unrelated businesses. This is also supported by the organisation chart and financial statements.
Accordingly, the requirement in reg 5.19(4)(c) is met.
Term of employment of the visa holder: reg 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.
An employment contract dated 5 September 2017 relating to the nominee and the position that are the subject of this application sets out that the position is available full time for a minimum of two years commencing as soon as the visa is approved.
The financial reports of the business demonstrate that the applicant is financially capable of maintaining the nominee’s employment for at least two years.
For these reasons the Tribunal is satisfied that the nominee will be employed in the nominated position for at least two years full time, and the terms and conditions of that employment do not expressly exclude the possibility of an extension.
Accordingly, the requirement in reg 5.19(4)(d) is met.
No less favourable terms and conditions of employment: reg 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 Employment Contract dated 5 September 2017 provides a base salary of $60,000 per annum for a 38 hour week plus superannuation and a standard set of terms and conditions.
The applicant provided a PayScale salary survey for Service Manager Automotive which demonstrated a salary range of $48,668 to $91,141 and a median salary of $63,522 on 6 September 2017. The applicant also provided a selection of job advertisements with salaries ranging from $50,000 to $75,000.
An advice from the Regional Certifying Body (RCB), the Department of State Development SA dated 17 November 2017 certifies that they are 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.
For these reasons, the Tribunal is 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 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.
The applicant’s submission dated 9 August 2022 states that they were not aware of any adverse information about the business background or any relevant individual. At the hearing Mr Seth confirmed that he was not aware of any adverse information known to Immigration about the nominator or person associated with the nominator. The Tribunal is unaware of any adverse information known to Immigration.
For these reasons the Tribunal is satisfied that there is no adverse information known to Immigration 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.
The applicant’s submission dated 9 August 2022 states that they have a satisfactory record of compliance with the laws of the Commonwealth and of the State of South Australia. It goes on to state that the nominator has not breached any laws of the Commonwealth and of the State of South Australia.
The Tribunal has no information before it that suggests that the applicant has breached employment laws.
For these reasons the Tribunal is satisfied that the nominator has satisfactory compliance with employment 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 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 instrument IMMI 17/059 sets out the postcodes that are specified by the Minister as regional Australia. All postcodes in South Australia are certified as regional Australia and the position and business are located in South Australia. For these reasons the Tribunal is satisfied that the position and business are located in regional Australia.
The applicant has provided an organisation chart, evidence of the business turnover, statements from the directors demonstrating that they are removed from the day to day management of the business, franchise agreement, and duty statement all demonstrating that there is a genuine need for the nominator to employ the person identified under reg 5.19(4)(a)(ii) as a paid employee to work in the position under the nominator’s direct control. The applicant’s oral submission was that the position of Car Wash Manager was crucial to the business, which was regularly responsible for the care of vehicles worth as much as $350,000 and having a manager to maintain standards was the most important role to fill. The nominee described his duties including preparing budgets, supervision of employees, preparing and maintaining service and other business standards, and ensuring rosters were filled based on weather and other issues that impact profitability. For those reasons the Tribunal is satisfied there is a genuine need to employ the person nominated as a paid employee under the nominator’s direct control.
The applicant has provided evidence of their recruitment efforts and the difficulty in finding somebody that was both qualified and willing to work full time in the position. For these reasons the Tribunal is satisfied that the position cannot be filled by an Australian citizen or permanent resident who is living in the local area.
The instrument IMMI 17/058 contains the occupations certified by the Minister as suitable for subclass 187 visas. The applicant has nominated a position of Car Wash Manager with the related occupation of Hospitality Retail and Service Managers NEC ANZSCO code 149999. This occupation is listed in the instrument. The job description of the position provided by the applicant corresponds with the description contained in ANZSCO for the related occupation. For these reasons the Tribunal is satisfied that the tasks to be performed in the position correspond to the tasks of an occupation specified by instrument.
On 17 September 2017 the regional Certifying Body, Department of State Development South Australia, advised the Minister about the matters in reg 5.19(4)(e) and reg 5.19(4)(h)(ii)(B) & (C). This is the certifying body certified by the Minister in the relevant instrument, IMMI 17/059. For this reason, the Tribunal is satisfied that the certifying body requirements are met.
Accordingly, the requirements of reg 5.19(4)(h) are met.
CONCLUDING PARAGRAPH
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.
George Hallwood
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 an identified person, as 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)       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).

[2022] AATA 3981

11 November 2022

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