Yoona Pty Ltd ATF The Mook Family Trust (Migration)

Yoona Pty Ltd ATF The Mook Family Trust (Migration) [2020] AATA 3960 (13 August 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Yoona Pty Ltd ATF The Mook Family Trust
CASE NUMBER:  1802374
HOME AFFAIRS REFERENCE(S):          BCC2016/2230264
MEMBER:Stavros Georgiadis
DATE:13 August 2020
PLACE OF DECISION:  Adelaide
DECISION:The Tribunal affirms the decision under review to refuse the nomination.

Statement made on 13 August 2020 at 5:30pm

CATCHWORDS
MIGRATION – Employer Nomination – approval of nominated position – Direct Entry Nomination – Retail Manager – tasks of nominated position – more closely aligned with Retail Supervisor position – position cannot be filled locally – nominee contractually employed before advertisement of position – recruitment activity not sufficiently undertaken – decision under review affirmed
LEGISLATION
Migration Regulations 1994 (Cth), r 5.19
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 11 January 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 30 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.
The delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19(4) of the Regulations as the delegate was of the view that the predominant tasks of the position are not those of an ANZSCO Skill Level 2 Retail Manager, but rather more closely aligned with those of ANZSCO Skill Level 4 Retail Supervisor position: r.5.19(4)(h)(ii)(D).
The applicant’s sole Director, Ms Ji A Lee appeared on behalf of the applicant before the Tribunal on 12 August 2020 to give evidence and present arguments. The Tribunal also received oral evidence from the nominee for the position in the related AAT casefile 1805501, Ms Minsook Kang and her spouse Mr Hunkyo Lee refusing Subclass 187 visas. The related matters were heard together in a combined hearing. The Tribunal hearing was conducted with the assistance of an interpreter in the Korean and English languages.
The Tribunal exercised its discretion to hold the hearing by video conference. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by video conference, having regard to the nature of this matter and the individual circumstances of the applicants. 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 video conference. The Tribunal is satisfied that the applicants were given a fair opportunity to give evidence and present arguments.
The applicant was represented in relation to the review by its registered migration agent.
For the following reasons, the Tribunal has decided to affirm the decision under review to refuse 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.
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 but can be briefly summarised as requiring either that:
·(h)(i) - 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 legislative 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
·(h)(ii) - 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 (RCB) has advised the Minister about certain matters relating to the position.
The applicant operates a franchise retail business trading as The Cheesecake Shop Myaree. The Tribunal notes the business name, The Cheesecake Shop Myaree, has been cancelled on the ASIC Government database since 24 January 2019. The applicant confirmed in her oral evidence that there is no current business name registration. The business is located in the metropolitan Perth suburb of Myaree, post code 6154. The oral evidence from the applicant’s Director is that the business operates 7 days per week and employs 3 full time staff (including the nominee) and a further 9 part time and casual staff. The Tribunal accepts the evidence that the nominated position is with the business that trades under Yoona Pty Ltd as Trustee for The Mook Family Trust, located in Western Australia and that Ms Minsook Kang is named as the nominee for the position of Retail Manager (ANZSCO 142111).
Ms Ji Lee’s oral evidence is that she has been the company sole Director since the business commenced operations in 2015. Ms Minsook Kang explained that the business commenced trading in September 2015 and that she had already been engaged in the business from approximately August 2015, initially on a part time basis, and then with increased hours. The nominee told the Tribunal that her work hours changed to full time, as Retail Manager in the business, from approximately early 2016. This is consistent with the employer’s Letter of Appointment dated 27 June 2016 which sets out as follows: “This letter is to confirm that Ms Kang has been employed by Yoona Pty Ltd ATF The Mook Family Trust (t/a The Cheesecake Shop Myaree) as full time Retail Manager, since 3 May 2016. Prior to this, Ms Kang was employed on a casual basis …” Accordingly, the Tribunal accepts the evidence provided and finds that the nominee was employed as full time Retail Manager from 3 May 2016 and subsequently formalised by written contract.
The Tribunal has had regard to the employment contract for the position of full time Retail Manager discussed at the hearing. This was presented to the nominee with a date of 20 May 2016 and returned to the employer signed and accepted by the nominee on 23 May 2016. The Tribunal accepts this formality followed the aforementioned arrangements that saw the nominee engaged as full time Retail Manager from 3 May 2016 consistent with the Letter of Appointment referred to above. The Tribunal notes from the employment contract that there was no probationary period to be applied and that the employment was for at least 2 years because the conditions of appointment do not contain any provisions expressly excluding the possibility of renewal. As a matter or fact, the nominee has remained in continued full time employment with the applicant as Retail Manager and her remuneration has increased to $55,000 (gross) per year presently from that initially set at $48,000 per year in the contract. These key particulars are also confirmed in the RCB certificate dated 12 July 2016 issued at the time.
In respect of actions taken purportedly to secure a Retail Manager for the position, the documentary evidence provided by the time of hearing shows advertisements placed for full time Retail Manager on the employment websites, CareerOne.com from 25 May 2016 for one month and on Seek.com from 25 June 2019 to 25 July 2019. The applicant was asked if these advertisements comprised the advertising for the nominated position to which she responded in the affirmative: “I think so” although she was unsure if she had advertised on Gumtree also. In light of these circumstances, the Tribunal raised at the hearing the issue of whether the applicant could demonstrate that the position cannot be filled by an Australian citizen or permanent resident who is living in the same local area, as the advertising undertaken appeared to post-date the contracted employment arrangements entered into by the employer with the nominee working full time from 3 May 2020.
In accordance with the procedure under s.359AA of the Act, the Tribunal put to the applicant at the hearing that it wished to discuss with her, information that subject to her comments, would be a reason or part of the reason, for affirming the decision under review to refuse the nomination. The Tribunal explained that she would be asked to respond to this information and would be entitled to seek additional time to comment on, or to respond to, the information which the Tribunal would consider.
The Tribunal put to the applicant that it had concerns the nominee was contractually employed and had already commenced in the role of Retail Manager before the advertising of the position had been undertaken or completed. The Tribunal referred the applicant specifically to the CareerOne.com advertisement (headed ‘Retail Store Manager Job in Myaree 6154, Western Australia Australia’) provided to the Department as part of the initial application documents. The date on that advertisement is recorded as commencing from 25 May 2016. Considering the employment contract presented to Ms Minsook Kang on 20 May 2016 which she accepted 3 days later and the Letter of Appointment recording full time employment in the nominated role from 3 May 2016, the Tribunal invited comment on whether the employer had already committed to the nominee before the advertising to find a local Australian citizen of permanent resident was completed. The Tribunal explained that this issue relates to the criteria to be satisfied in r.5.19(4)(h)(ii)(C) as one of the requirements for the nomination to be approved.
The applicant responded straight away saying that she was not satisfied with the nominee’s work and that she tried finding an Australian citizen locally but couldn’t find one. The Tribunal noted that the nominee remains engaged in the role of full time Retail Manager even after several years. Subsequently, the applicant changed her view saying at the hearing that she thought the nominee was a very good employee whom she valued in the role. When asked about the number of applications in response to the aforementioned advertising, the applicant told the Tribunal that there were 67 applications received. When asked how many of these were from Australian citizens or Australian permanent residents, the applicant responded “I didn’t look at how many were Australian citizens or permanent residents… “
The applicant sought the Tribunal to adjourn the matter to allow more time to consider and provide any other advertising undertaken for the role. She said other ‘in house’ staff had also applied. The Tribunal explained to the applicant that it had already received her oral evidence in respect of the question of the extent of advertising undertaken. Further, the Tribunal considered that the applicant was put on notice regarding this in the s.359(2) letter sent to the applicant prior to the hearing, inviting relevant material.
Notably, the s359(2) letter dated 3 July 2020 sets out (in part) relevantly, as follows at paragraph 8 (emphasis added):
… “a. the need to employ the nominee in the nominated position and why the position cannot be filled by an Australian citizen or permanent resident living in the same local area; and
… b. (iii) …
· Local job advertisements for the nominated position that were not successfully filled, and the Regional Certifying Body’s certificate issued to the applicant in respect of this position.”
The Tribunal considered the applicant had been invited to provide such material and has had ample opportunity to produce the job advertisements undertaken for the nominated position and any other recruitment material which was required to be supplied by 17 July 2020 prior to the hearing. Accordingly, for these reasons and also taking into account the applicant’s oral evidence, the Tribunal declined at the hearing to allow further time.
The Tribunal has had regard to the certification of “satisfied” by the Regional Certifying Body, Skilled Migration WA, on the Form 1404 dated 12 July 2016 but has independently assessed the relevant requirements of r.5.19(4)(h)(ii). The applicant’s representative submitted that the advertising for the position took place before the nomination application was lodged on 30 June 2016. The Tribunal considers the advertising on CareerOne.com from 25 May 2016 (for 30 days as recorded on the receipt issued on 23 May 2016) is advertising for the nominated position carried out substantially at the time of lodging the nomination application. The advertisement was placed by a person identified on the receipt docket as Jonathan Kim on behalf of the applicant and refers specifically to the position job type as ‘full time permanent’ Retail Manager.
Although the Tribunal had informed at the hearing that no additional time would be allowed to submit further material on this issue, the applicant nevertheless made further written submissions on the day following the hearing together with additional documents relating to advertising activity. I have also taken this additional material and the further written submissions into consideration. The applicant relevantly, submits:
… “I acknowledge that the Employment Agreement with our Retail Manager, Ms Minsook Kang was signed on 23 May 2016. Before Ms Kang signed the employment contract on 23 May 2016, we have actually put a job advertisement on Gumtree on 18 May 2016 (Below please find a copy of the advertisement which we were able to find last night). As initially mentioned during the hearing, we did advertise on Gumtree however as it has been a long time I could not recall the exact dates and the name of the website we have used to advertise. I had interviewed some of the applicants but found that they were not suitable for the nominated position. …”
The Tribunal acknowledges that the applicant had made reference at the hearing to possibly advertising on Gumtree but she was unsure and had not provided any documentary evidence of that by the time the hearing came on. Nevertheless, the Tribunal has considered the Gumtree advertisement now provided. This records that the job advertisement was placed on 18 May 2016. This date is consistent with the further written submissions and the statement from Ms Ji Lee dated 12 August 2020 submitted following the hearing. The Tribunal accepts that the Gumtree job advertisement was placed on 18 May 2020.
Apart from this additional advertising (Gumtree) as well as on CareerOne.com there is no other advertising presented to the Tribunal undertaken at around the time of lodging the nomination application that could explain the “satisfied” RCB certification issued on 12 July 2016 regarding recruitment activity / advertising for the nominated position. This was required to be provided in the certification advice to the Minister about the matters in r.5.19(4)(e) and r.5.19(4)(h)(ii)(B) & (C).
Having considered all the available material and submissions now before it discussed, the Tribunal is not persuaded that appropriate recruitment activity was undertaken to allow sufficient time by the applicant to select and secure a suitable candidate for the nominated position. A mere two days between first advertising on Gumtree on 18 May 2020 to presenting a written contract on 20 May 2020 (which was accepted on 23 May 2020) falls well short, in the Tribunal’s view, of allowing adequate time for potentially suitable candidates to make application and be assessed for the role. Given there were said to be 67 responses for the position, it would have taken some considerable time to properly assess and consider applications (such as shortlisting and perhaps interviews) before a concluded view could reasonably have been reached to reject the other applicants and present an employment contract to Ms Minsook Kang. In light of the further advertising commissioned on CareeOne.com on the same day as the nominee accepted the employment contract (23 May 2016) and all the circumstances, the Tribunal considers the applicant’s action of purportedly searching for a suitable local Australian citizen or permanent resident for the nominated position, lacks bona fides.
Accordingly, despite the large range of responses received from potentially local and other candidates, the Tribunal is not persuaded by the submission that there was no suitable Australian citizen or permanent resident amongst them. There is nothing to suggest that it was open to the applicant to offer the nominated position to another person (Australian citizen, permanent resident or otherwise) in circumstances where the applicant had already entered into a written contractual arrangement with the nominee.
The Tribunal is not persuaded in these circumstances, that the applicant has established that the position cannot be filled by an Australian citizen or permanent resident who is living in the same local area as that place - as required under r.5.19(4)(h)(ii)(C). The Tribunal finds that the nominated position had already been filled by Ms Minsook Kang, full time from 3 May 2020 and formalised a short time later, when the applicant was purportedly undertaking advertising to find a suitable local Australian citizen or permanent resident for the position of Retail Manager. The Tribunal, therefore, finds the requirements of r.5.19(4)(h)(ii) are not satisfied.
Accordingly, the requirements of r.5.19(4)(h) are not met.
For the above reasons the Tribunal is not satisfied that the applicant meets the requirements of r.5.19(4). The applicant has not sought to satisfy the criteria in the Temporary Residence Transition Nomination stream, and as such has not met the requirements in r.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.
Stavros Georgiadis
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 3960

13 August 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Statutory Construction

Jurisdiction