Yagnesh Kumar Sheth and Nirali Sheth ATF Sheth Family Trust (Migration)

Yagnesh Kumar Sheth and Nirali Sheth ATF Sheth Family Trust (Migration) [2022] AATA 4328 (18 November 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Yagnesh Kumar Sheth and Nirali Sheth ATF Sheth Family Trust
REPRESENTATIVE:  Mr Mihir Patel (MARN: 1466553)
CASE NUMBER:  1914940
HOME AFFAIRS REFERENCE(S):          BCC2017/3280510
MEMBER:Vanessa Plain
DATE:18 November 2022
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision under review to refuse the nomination.

Statement made on 18 November 2022 at 11:03am
CATCHWORDS
MIGRATION – nomination – Direct Entry nomination stream – Retail Manager – not satisfied that the applicant has a genuine need to employ the nominee – applicant failed to provide the requested information within the prescribed period – no evidence provided –– decision under review affirmed
LEGISLATION
Migration Act 1958, ss 65, 140GBA, 245AR, 359, 360, 363
Migration Regulations 1994, r 5.19
CASES
Hasran v MIAC [2010] FCAFC 40
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 23 May 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 9 September 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)(h)(ii)(B) of the Regulations because the delegate was not satisfied on the information submitted by the nominating business that it has demonstrated a genuine need for the nominating business to employ a paid employee to work in the position under the nominator’s direct control.
By letter dated 17 June 2022, the Tribunal formally wrote to the review applicant pursuant to s.359(2) of the Act inviting the applicant to provide further information to the Tribunal. The letter stated, among others, as follows:
“In order for the nomination of a position to be approved, the Tribunal must be satisfied that all of the relevant criteria in r. 5.19 of the Regulations are met at the time of its decision. As the application for nomination was made under the Direct Entry nomination stream, the relevant criteria are in rr. 5.19(2) and (4) of the Regulations.
The Tribunal now requires current and updated information addressing these criteria. Accordingly, and without limiting the information that may be given, you or another person authorised by the applicant are invited to give information in writing.
The information, in writing, should be received by 1 July 2022. If the information is in a language other than English, it must be accompanied by an English translation from an accredited translator.
If you or another person authorised by the applicant cannot provide the information by 1 July 2022, you may ask us for an extension of time in which to provide the information. If an extension of time request is made, it must be received by us by 1 July 2022 and it must state the reason why the extension of time is required.
We will carefully consider any request for an extension of time and will advise whether or not the extension has been granted.
If we do not receive the information within the period allowed or as extended, we may make a decision on the review without taking any further action to obtain the information. You will also lose any entitlement you might otherwise have had under the Migration Act 1958 to appear before us to give evidence and present arguments.”
The Tribunal did not receive any response to the written invitation.
The Tribunal is satisfied that the review applicant was properly sent an invitation to provide further information under s.359(2) of the Act. The invitation was sent to the review applicant’s nominated address, being the address provided by the review applicant in connection with the application for review.
When an applicant is invited to provide further information under s.359(2) of the Act and fails to provide that information within the prescribed period, the Tribunal may make a decision on the review without taking any further action to obtain the information: section 359C(1) of the Act.
The Tribunal finds that the review applicant did not provide further information as requested. In these circumstances, the review applicant is not entitled to appear before the Tribunal: section 360(3) of the Act. Crucially, the effect of s.363A of the Act is that if an applicant has no entitlement to a hearing, the Tribunal has no power to permit him or her to appear: Hasran v MIAC [2010] FCAFC 40.
It is appropriate to highlight that a decision maker is not required to make the applicant’s case. It is for the applicant to satisfy the Tribunal that the requirements of the Act and Regulations have been met. Although the concept of onus of proof is not appropriate to administrative decision making, the relevant facts of the individual case have to be supplied by the applicant, in as much detail as is necessary to enable the examiner to establish the relevant facts.
In these circumstances, the Tribunal has proceeded to make a decision having regard to all the information before it, including the information previously provided by the applicant to the Department.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
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.
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, the occupation is applicable to the proposed employee in accordance with any specifications made in the relevant instrument, there is a genuine need for the nominee to be employed as a paid employee in the position, and certain specified training requirements are met; or
·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.
On 9 September 2017, the applicant lodged a Regional Employer Nomination (Permanent) (Class RN) 187 nomination under the Direct Entry Stream for the position of Retail Manager (General) (ANZSCO 142111). The identified nominee is Mr Hardikkumar Rameshbhai Patel.
The delegate’s decision record dated 23 May 2019 reveals that the applicant provided the following documentation to the Department in support of its application:
(a)Employment Contract
(b)Organisation chart
(c)Position description
(d)Letters from the business owner dated 17 August 2017 and 27 August 2017 respectively.
(e)RCB advice
The Tribunal notes that the applicant has not responded to the letter dated 22 June 2022 request that the applicant provide current information to the Tribunal. Therefore, the Tribunal has had regard to the material before the delegate and the decision record. The Tribunal notes that the decision record is more than 3.5 years old and the material lodged with the department is approximately 5 years old.
The delegate’s decision record provides in substantial part as follows:
“The employment contract extends an offer of employment to the nominee, Hardikkumar Rameshbhai PATEL, in the position of Retail Manager.
The organisational chart shows the structure of the organisation as Yagneshkumar Sheth as the Managing Director. The Retail Manager position reports to the Managing Director, and has two Shop Assistants reporting to the Retail Manager position. In total it appears that there are four positions within the business, of which three are currently filled. The nominated position of Retail Manager appears as vacant in the organisational chart. Further, the application form states there are two employees only in the business. If the Managing Director is not included in the employee ‘count’ entered on the application form, then it appears as the two Shop Assistants are currently the two employees in the business. To date, there is no claim and no evidence that the nominee is working in the nominated position whilst awaiting the outcome of the nomination and visa applications.
The position description lists the tasks of the position as:
● “To determine stock levels and service standards
● To formulate and implemente [sic] purchasing and marketing policies, and setting prices
● Promoting and advertising the establishment's goods and services
● Selling goods and services to customers and advising them on product use
● Maintaining records of stock levels and financial transactions
● Undertaking budgeting for the establishment
● Controlling selection, training and supervision of staff
● To ensure that the business complies with occupational health and safety regulations”
The above tasks appear to duplicate almost identically the tasks as they appear in the ANZSCO Dictionary for the Unit Group 1421 – in which the Retail Manager (General) occupation belongs. However, I find it implausible that a Director of a small business would relinquish control over such tasks as budgeting, recruiting staff and responsibility for major business decisions (such as setting prices and occupational health and safety compliance). I find that while the business may have a need for a person to perform some of the claimed tasks, that there is no demonstrated need for a manager, in addition to the Director, to perform many of the claimed tasks.
In addition to the above, there is no information or evidence that the nominated person, Hardikkumar Rameshbhai PATEL, has taken up the employment offered to him. I find that if such a genuine need did exist, the nominator would ensure that he fills the position in the meantime whilst awaiting the outcome on his visa application.
The letter from the business owner dated 17 August 2017 states the following
“I Yagneshkumar Sheth is the director of the company and overlooks the development of the business. The business has been running over a year now and has grown to a level where a manager is required. A full time manager is required who can ensure that each customer receives prompt, professional, friendly and courteous service. To check that the stock levels and customer service is always maintained. To ensure that all customers and staff are treated with respect and dignity they deserve and also manage rosters and staff on daily basis. By employing a manager, I will be assured that all the above tasks and objectives will be met and will in return create a fair profit for my business. I need this manager as he can professionally manage the shop in Greenbank as I am occupied in my other business. I am not able to focus on the managing, rostering, dealing with suppliers and customers as I am looking after the development of the other business I have. This business is growing; I have attached Business Activity Statements for last three quarters. This position will help me expand my business and take my business in the direction of growth. Thus, this position is of paramount importance for the smooth running of the business and is within the scope and scale of the business.”
The letter from the business owner dated 27 August 2017 states the following:
“I Yagneshkumar Sheth have different retail shop which is located at Shop 10-11, Kruger Road Shopping Village, 183-199 Kruger Pde., Redbank Plains, QLD- 4301, which I started under Sheth 2 Family Trust in July 2014. I am running this shop with the help of staff, and now I would like to look after this business on my own and want to appoint a manager at Bargain Mania Greenbank as it is already well established and doing well and focus on developing this other shop and increase the turnover. As my Greenbank business is doing well, I have also started looking to purchase a new or well established similar type of business in South East Queensland.
For all the above reasons, I need a Retail manager to manage my Greenbank shop
efficiently and I can move forward and expand my business.”
I have considered the above two letters. Whilst the Director has provided the address of a second business, he has not provided evidence of the existence of the second business – such as the name of the business, business registration document/s, evidence of the second business’s operations, or other evidence as relevant. The Director has also indicated he is looking to purchase another business; however, no evidence of this has been provided, such as business plans, evidence of searches for locations or other due diligence checks. There is little weight to the claim that the Director is not able to actively manage the business due to a lack of evidence to support the claim.
It should be noted that no evidence of other business/es has been submitted to the
Department for consideration. There is no elaboration of how the other business/es, if they exist, will impede on the Director’s ability to manage the nominating store. I find it more plausible that the nominee is needed for a customer service role, that is perhaps more senior to the other casual staff employed at the business, but that role is not that of a Retail Manager as this is purview of the Director.
While the nominated position may be responsible for some supervisory duties, I find that the Director would retain the majority, if not all, of the managerial responsibilities rather than delegate financial and on-hand control to another person. Based on the information before me, I find that there is not a demonstrated need to employ a Retail Manager at the nominated business. I find that in a business of this size and scope – with two employees – would not need both a Director as well as a full time Retail Manager in order to oversee the operations of the store. I find it implausible that the Director would delegate control of major decisions and budgeting to another person.”
I have considered the advice provided by the Regional Certifying Body (RCB), which is that they find there is a genuine need for the position. While I place some weight on this advice, I am not compelled by legislation to accept the RCB’s advice. Having considered the information provided with this application, I find there is information before me, that is in addition to the RCB’s advice, that causes me to find that sub-regulation 5.19(4)(h)(ii)(B) is not met by the applicant. Once information is before me as a delegate of the Minister, I am compelled by legislation to consider that information in coming to my decision.”
The Tribunal has considered the evidence that was before the delegate and the findings as set out in the decision record above. Taking into account all the evidence before the delegate, the Tribunal considers the findings of the delegate to be reasoned and appropriate in the circumstances.
On account of the fact that there is no new information before the Tribunal and taking into account the age of the information that was before the delegate, the Tribunal cannot be satisfied that the applicant has a genuine need to employ the nominee in the circumstances.
Based upon the above, the Tribunal finds that the requirements of r.5.19(4)(h)(ii)(B) and r. 5.19(4)(h)(ii) are not met.
For the above reasons the Tribunal is not satisfied that the applicant meets the requirements of reg 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 reg 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.
Vanessa Plain
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)       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 4328

18 November 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Statutory Construction