Yame Australia Pty Ltd (Migration) - [2023] AATA 1526

Yame Australia Pty Ltd (Migration) [2023] AATA 1526 (24 May 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Yame Australia Pty Ltd
REPRESENTATIVE:  Mr Derrick Peters (MARN: 1175659)
CASE NUMBER:  1926653
HOME AFFAIRS REFERENCE(S):          BCC2019/2512222
MEMBER:Karen McNamara
DATE:24 May 2023
PLACE OF DECISION:  Sydney
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Statement made on 24 May 2023 at 1:23pm
CATCHWORDS
MIGATION – application for approval of nomination of position – direct entry stream – retail manager – tasks of position – combined hearing of nomination and visa reviews – comprehensive and consistent evidence from owner/director and nominee – nominee’s autonomy and director’s competing managerial and personal responsibilities – comparison of tasks and ANZSCO description – decision under review set aside
LEGISLATION
Migration Regulations 1994 (Cth), r 5.19(10)(a), (12)(d)
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 2 September 2019 to reject the application by Yame Australia Pty Ltd (the applicant) for approval of the nomination of a position under reg 5.19 of the Migration Regulations 1994 (Cth) (the Regulations).
The applicant operates two Jamaica Blue Coffee Cafes under franchise agreement, located at Halls Head and Mandurah, Western Australia. The nominated position is located at the applicant’s Mandurah Cafe. The applicant purchased the Mandurah franchise in 2018. ASIC records show the nominating entity was registered on 9 May 2016.
On 13 May 2019, the applicant lodged an application for an employer nomination approval under the Regional Sponsored Migration Direct Entry stream for the occupation of Retail Manager (General) (ANZSCO 142111). The nominated guaranteed annual earnings are $55,000. The application identified Mrs Kinzang Chhoden.
The requirements for the approval of the nomination of a position in Australia are found in reg 5.19 of the Regulations, which contains general requirements for approval and additional requirements for approval set out in three alternative streams: a Temporary Residence Transition stream, a Direct Entry stream and a Labour Agreement stream. If the application meets the requirements for approval then the application must be approved: reg 5.19(3)(a). If any of the requirements are not met then the application must be refused: reg 5.19(3)(b).
In this case, the applicant has applied for approval of a nomination, seeking to satisfy the criteria in the Direct Entry stream.
On 2 September 2019, the delegate refused the application on the basis the applicant’s nomination did not satisfy regulation 5.19(10)(a) because the delegate was not satisfied that the tasks to be performed in the position correspond to the tasks of an occupation specified by the Minister in a legislative instrument.
The Tribunal notes that this application is made under the Regional Sponsored Migration Scheme, therefore the application is required to be assessed under r.5.19(12)(d).
The applicant lodged an application for review with the Tribunal on 22 September 2019. The review application was accompanied by a copy of the delegate’s decision.…

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.

Continue reading Yame Australia Pty Ltd (Migration)

Details

AGLC: Yame Australia Pty Ltd (Migration) [2023] AATA 1526
Case: [2023] AATA 1526
Decision Date: 24 May 2023

CaseChat Overview and Summary

The Administrative Appeals Tribunal reviewed a decision concerning Yame Australia Pty Ltd's application for approval of a nomination for a retail manager position under the direct entry stream. The core dispute revolved around whether the applicant met the general and stream-specific requirements for nomination approval as stipulated in regulation 5.19 of the Migration Regulations 1994.

The Tribunal was tasked with determining if Yame Australia Pty Ltd satisfied all the criteria outlined in regulation 5.19 for the approval of its nomination. This involved assessing whether the application was made in the correct form, whether the position and identified person were properly identified, and if the relevant subclass and stream were correctly stated. Furthermore, the Tribunal had to consider requirements relating to mandatory licensing, satisfactory compliance with employment laws, training contribution debts, and whether the nominator was actively and lawfully operating a business in Australia.

In its reasoning, the Tribunal found that Yame Australia Pty Ltd had met the procedural requirements of the application, including using the approved form, identifying the necessary details, and paying the applicable training contribution charge. It also determined that no mandatory licensing was required for a retail manager in Western Australia, and there was no evidence of non-compliance with employment laws or outstanding training contribution debts. Crucially, the Tribunal was satisfied, based on the provided financial statements and tax returns, that Yame Australia Pty Ltd was actively and lawfully operating its business.

Consequently, the Tribunal set aside the original decision and substituted it with a decision approving the nomination, finding that Yame Australia Pty Ltd had satisfied all the relevant requirements under regulation 5.19.

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 general requirements for approval of the nomination set out in reg 5.19(4) and the stream specific requirements set out in reg 5.19(9), which are extracted in the attachment to this decision. For the nomination to be approved, all the requirements must be met.Application requirements – reg 5.19(4)(a) Regulation 5.19(4)(a) requires that an application for approval be made in accordance with a number of requirements set out in reg 5.19(2). Regulation 5.19(2) requires that an application must:·be made in accordance with approved form 1395 (Internet);·identify the position;·identify a person in relation to the position;·identify an occupation in relation to the position,·identify the subclass and stream to which the nomination relates;·be accompanied by the fee mentioned in reg 5.37; and·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 s 245AR(1) of the Migration Act 1958 (Cth) (the Act). Applications made on or after 12 August 2018 must also be accompanied by any nomination training contribution charge the nominator is liable for, and identify the annual turnover for the nomination: regs 5.19(2)(fa), (fb). The liability is imposed by s 140ZM of the Act and the charge is imposed by the Migration (Skilling Australians Fund) Charges Act 2018 (Cth), with the amount specified in the Migration (Skilling Australians Fund) Charges Regulations 2018 (Cth) (Charges Regulations). ‘Annual turnover’ is defined in the Charges Regulations for liable persons operating a business in Australia as the total ordinary income (within the meaning of the Income Tax Assessment Act 1997 (Cth)) derived in the most recent income year (within the meaning of the Income Tax Assessment Act 1997 (Cth)) ending before the day on which the nomination application is made. In any other case, it is defined as the total income the person liable derived in the ordinary course of business in the most recent financial year ending before the day on which the nomination application is made. Further, if the subclass identified in the application is Subclass 187, the application must be made before 16 November 2019. Based on the material in the Department’s file, the Tribunal is satisfied that the application was made on the approved form. The position was identified, and a person was identified in relation to that position. An occupation in relation to the position was identified as was the subclass and stream to which the nomination relates. The nomination was accompanied by the applicable training contribution charge (as per reg 5.37). As the position is located in regional Australia, no fee is payable (r5.37(2)(a)). The application also included written certification relating to conduct that contravenes s.245AR(1) of the Act, declared and signed by the applicant.

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.Karen McNamaraMemberAttachment – extracts from the migration regulations 19945.19Approval of nominated positions—Subclass 186 (Employer Nomination Scheme) visa and Subclass 187 (Regional Sponsored Migration Scheme) visaApplication(1)A person (the nominator) (including a partnership or unincorporated association) may apply to the Minister for approval of the nomination of a position in Australia.(2)The application must:(a)be made in accordance with approved form 1395 (Internet); and(b)identify the position; and(c)identify a person (the identified person) in relation to the position; and(d)identify an occupation in relation to the position; and(e)identify the subclass and stream to which the nomination relates, which must be one of the following:(i)a Subclass 186 (Employer Nomination Scheme) visa in the Temporary Residence Transition stream;(ii)a Subclass 187 (Regional Sponsored Migration Scheme) visa in the Temporary Residence Transition stream;(iii)a Subclass 186 (Employer Nomination Scheme) visa in the Direct Entry stream;(iv)Subclass 187 (Regional Sponsored Migration Scheme) visa in the Direct Entry stream;(v)a Subclass 186 (Employer Nomination Scheme) visa in the Labour Agreement stream; and(f)be accompanied by the fee mentioned in regulation 5.37; and(fa)be accompanied by any nomination training contribution charge the nominator is liable to pay in relation to the nomination; and(fb)identify the annual turnover (within the meaning of the Migration (Skilling Australians Fund) Charges Regulations 2018) for the nomination; and(g)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.Approval of nomination(3)The Minister must, in writing:(a)approve the nomination if the Minister is satisfied that the requirements set out in subregulation (4) are met; or(b)otherwise—refuse to approve the nomination.Requirements for approval—general(4)The requirements to be met for the nomination to be approved are as follows:(a)the application is made in accordance with subregulation (2);(b)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;(c)if it is mandatory, in the State or Territory in which the position is located, for a person to:(i)hold a licence of a particular kind; or(ii)hold registration of a particular kind; or(iii)be a member (or a member of a particular kind) of a particular professional body;to perform tasks of the kind to be performed in the occupation, the identified person is, or is eligible to become, the holder of the licence, the holder of the registration, or a member of the body, at the time of application;(d)the nominator has a satisfactory record of compliance with the laws of the Commonwealth, and of each State or Territory in which the nominator operates a business and employs employees in the business, relating to employment;(da)any debt due by the nominator as mentioned in section 140ZO of the Act (recovery of nomination training contribution charge and late payment penalty) has been paid in full;(e)if the nomination relates to a visa in a Temporary Residence Transition stream—the requirements set out in subregulation (5) are met;(f)if the nomination relates to a visa in a Direct Entry stream—the requirements set out in subregulation (9) are met;(g)if the nomination relates to a visa in a Labour Agreement stream—the requirements set out in subregulation (14) are met.…Direct Entry stream—additional requirements for approval(9)If the nomination relates to a visa in a Direct Entry stream, the following requirements must also be met:(a)the nominator is actively and lawfully operating a business in Australia;(b)if the nominator’s business activities include activities related 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;(c)the application identifies a need for the identified person to be employed in the position, under the direct control of the nominator;(d)there is a genuine need for the identified person to be employed in the position, under the direct control of the nominator;(e)the identified person will be employed on a full‑time basis in the position for at least 2 years;(f)the terms and conditions of the identified person’s employment will not include an express exclusion of the possibility of extending the period of employment;(g)the nominator’s business has the capacity to employ the identified person for at least 2 years and to pay the person at least the annual market salary rate for the occupation each year;(h)the requirements set out in subregulation 2.72(15) are met, applying subregulations 2.72(15) and (16) as if:(i)paragraph 2.72(15)(a) did not apply; and(ii)references to the nominee were references to the identified person; and(iii)references to the person were references to the nominator;(i)either:(i)there is no information known to Immigration that indicates that the employment conditions (other than in relation to earnings) that will apply to the identified person are less favourable than those that apply, or would apply, to an Australian citizen or an Australian permanent resident performing equivalent work at the same location; or(ii)it is reasonable to disregard any such information;(j)the requirements set out in subregulation (10) or (12) are met.Occupations for the Subclass 186 (Employer Nomination Scheme) visa in the Direct Entry stream(10)The requirements of this subregulation are as follows:(a)the tasks to be performed in the position will be performed in Australia and correspond to the tasks of an occupation specified in a legislative instrument:(i)made under subregulation (11); and(ii)in force at the time the application is made;(b)the occupation applies to the identified person in accordance with that instrument.(11)The Minister may, by legislative instrument, specify occupations for the purposes of subregulation (10) and, for each occupation, specify any matters for the purposes of determining whether the occupation applies to an identified person, including matters relating to any of the following:(a)the nominator;(b)the identified person;(c)the occupation;(d)the position in which the identified person is to work;(e)the circumstances in which the occupation is undertaken;(f)the circumstances in which the person is to be employed in the position.Occupations for the Subclass 187 (Regional Sponsored Migration Scheme) visa in the Direct Entry stream(12)The requirements of this subregulation are as follows:(a)the position is located at a place in regional Australia;(b)the business operated by the nominator is located at that place;(c)the position cannot be filled by an Australian citizen or an Australian permanent resident who is living in, or would move to, the local area concerned;(d)the tasks to be performed in the position correspond to the tasks of an occupation specified in a legislative instrument:(i)made under subregulation (13); and(ii)as in force at the time the application is made;(e)the occupation applies to the identified person in accordance with that instrument;(f)the Minister has been advised by a body that meets the requirements set out in paragraph (g) of this subregulation about matters relating to the following:(i)whether the identified person would be paid at least the annual market salary rate for the occupation;(ii)whether there is a genuine need for the identified person to be employed in the position, under the direct control of the nominator;(iii)whether the position can be filled by an Australian citizen or an Australian permanent resident who is living in, or would move to, the local area concerned;(g)the body must:(i)be specified in a legislative instrument made by the Minister for the purposes of this paragraph; and(ii)be located in the State or Territory in which the position is located; and(iii)have responsibility for the local area in which the position is located.(13)The Minister may, by legislative instrument, specify occupations for the purposes of subregulation (12) and, for each occupation, specify any matters for the purposes of determining whether the occupation applies to an identified person, including matters relating to any of the following:(a)the nominator;(b)the identified person;(c)the occupation;(d)the position in which the identified person is to work;(e)the circumstances in which the occupation is undertaken;(f)the circumstances in which the person is to be employed in the position.…Meaning of regional Australia(16)In this regulation:regional Australia means a part of Australia specified in legislative instrument made by the Minister for the purposes of this definition.

Ratio Decidendi

Legal Principle Established

Given the above findings, the Tribunal is satisfied that r.5.19(4)(b) is metMandatory licencing, registration and memberships – reg 5.19(4)(c) Regulation 5.19(4)(c) provides that if it is mandatory in the State or Territory in which the position is located for a person to hold a licence or a registration of a particular kind, or be a member (or a member of a particular kind) of a particular professional body, to perform tasks of the kind to be performed in the occupation, the identified person is, or is eligible to become, the holder of the licence, the holder of the registration, or a member of the body, at the time of application. In this instance, the relevant State or Territory is Western Australia, the relevant occupation is Retail Manager (General) (ANZSCO 142111), and the date of application is 13 May 2019. The Tribunal is unaware of mandatory requirements for a Retail Manager to hold a licence or a registration of a particular kind or be a member (or a member of a particular kind) of a particular professional body. In this instance the mandatory license or registration provisions stated in 5.19(4)(c) are not relevant. Accordingly, the Tribunal is satisfied that r.5.19(4)(c) is met.Satisfactory compliance with employment laws - reg 5.19(4)(d) Regulation 5.19(4)(d) requires that the nominator has a satisfactory record of compliance with the laws of the Commonwealth, and of each State or Territory in which the nominator operates a business and employs employees in the business, relating to employment. There is no evidence before the Tribunal that indicates the nominator does not have a satisfactory record of compliance with the relevant Commonwealth and State workplace relations laws. Accordingly, the Tribunal is satisfied that r.5.19(4)(d) is met.Training contribution debts – reg 5.19(4)(da) Regulation 5.19(4)(da) applies to applications made on or after 12 August 2018. It requires that any debt due by the nominator as mentioned in s 140ZO of the Act, relating to recovery of nomination training contribution charges and penalties for underpayments, has been paid in full. There is no evidence before the Tribunal, that the applicant owes any debt of the kind mentioned in s.140ZO of the Act, which refers to a nomination training contribution charge debt or a penalty in relation to the underpayment of such a charge. Accordingly, the Tribunal is satisfied that r.5.19(4)(da) is met.Actively and lawfully operating business – reg 5.19(9)(a) Regulation 5.19(9)(a) requires that the nominator is actively and lawfully operating a business in Australia. The Tribunal accepts on the evidence before it that the applicant operates Jamacia Blue Café franchises at Mandurah and Halls Head, Western Australia. Based on the material provided to the Tribunal, including financial statements, BAS returns, Trust Tax returns and ASIC Company details, the Tribunal is satisfied the applicant is actively and lawfully operating a business in Australia. Accordingly, the Tribunal is satisfied that r.5.19(9)(a) is met. Labour hire businesses – reg 5.19(9)(b)