1416971 (Migration)

[2015] AATA 3108

1416971 (Migration) [2015] AATA 3108 (7 July 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ocean Motors Pty Ltd ATF The Fremantle Unit Trust

CASE NUMBER:  1416971

DIBP REFERENCE(S):  BCC2014/1608825

MEMBER:Carolyn Wilson

DATE:7 July 2015

PLACE OF DECISION:  Adelaide

DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Statement made on 07 July 2015 at 10:35am

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 24 September 2014 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).

2. The applicant applied for approval on 30 June 2014. 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 (r.5.19(3)) stream and a Direct Entry nomination (r.5.19(4)) stream. 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).

3. In this case, the applicant has applied for approval of a nomination, seeking to satisfy the criteria in Direct Entry Nomination stream.

4. The delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19(4)(h)(ii)(D) of the Regulations because the delegate considered the tasks of the nominated position did not correspond to ANZSCO skill level 1, 2 or 3.

5. The applicant appeared before the Tribunal on 15 June 2015 to give evidence and present arguments. Mr Philip Plowman, director of the applicant company, appeared for the applicant.   

6. The applicant was represented in relation to the review by its registered migration agent. The representative attended the Tribunal hearing.

7. 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

8. 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.

   The application is compliant: r.5.19(4)(a)

9. 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 must identify a  need for the nominator to employ a paid employee to work in the position under their direct control.

10. In this case, the application was made on the correct form and accompanied by the prescribed fee. The application identified a need for the nominator to employ a paid employee to work in the position. As such, r.5.19(4)(a)(i) is met.

    Nominator is actively and lawfully operating a business in Australia: r.5.19(4)(b)

11. Regulation 5.19(4)(b) requires that applicant is actively, lawfully and directly operating a business in Australia.

12. The applicant runs a business selling ice cream, and has done so for about 25 years.  At one time the business had three shops, but more recently has changed direction to consist of one shop plus three food vans.  The remaining shop is the Freo Ice Cream and Waffles.  The applicant provided financial information to the Department and updated information to the Tribunal, including the profit and loss for financial year 2013/2014 and more recent Business Activity Statements (BAS).

13. The Tribunal is satisfied on the evidence before it that the applicant is actively and lawfully operating a business in Australia. Accordingly, the requirement in r.5.19(4)(b) is met.

    Position is not labour-hire: r.5.19(4)(c)

14. 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. 

15. The position is not labour hire. Accordingly, the requirement in r.5.19(4)(c) does not apply.

    Term of employment of the visa holder: r.5.19(4)(d)

16. 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 extension of the employment.

17. The Tribunal accepts the oral evidence of the applicant that the position is ongoing and available to the nominee full-time on a permanent basis.  There is no express exclusion of an extension in the employment contract. 

18. Accordingly, the requirement in r.5.19(4)(d) is met.

    No less favourable terms and condition of employment: r.5.19(4)(e)

19. 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.

20. The terms and conditions of employment applicable to the nominated position are contained in the employment agreement.   There is no other worker in the business performing equivalent work.  There is nothing before the Tribunal to indicate the nominee would not be employed on the same basis as other employees of the business or that his terms and conditions are less favourable.  The applicant states the salary has been set as per market rate.  The stated base salary of $54,000 exceeds the minimum salary of the relevant award.[1]

    [1] Fast Food Industry Award 2010, including amendments up to 10 December 2014.

21. The Tribunal is satisfied the requirements of r.5.19(4)(e) are met.

    No adverse information known to Immigration: r.5.19(4)(f)

22. 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 adverse information known to Immigration about the nominator or a person ‘associated with’ the nominator. For these purposes, ‘adverse information’ and ‘associated with’ have the meaning given in r.2.57 (2) and (3): r.5.19(7).

23. There is nothing on the Department’s file or any information before the Tribunal to suggest any adverse information is known to Immigration about the nominator or persons associated with the nominator. The Tribunal therefore finds there is no adverse information and the requirements of r.5.19(4)(f) are met.

    Satisfactory compliance with workplace relations laws: r.5.19(4)(g)

24. 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.

25. There is no evidence before the Tribunal, and nothing on the Department file, to indicate that the applicant does not have a satisfactory record of compliance with workplace relations laws in Australia. Accordingly the requirements of r.5.19(4)(g) are met.

    Tasks of the position genuine need for the position and training benchmarks r.5.19(4)(h)

26. 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:

    ·     the tasks to be performed in the position will be performed in Australia and correspond to those of an occupation specified by the Minister and certain specified training benchmarks will be 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 at the ANZCO skill level 1, 2 or 3; and that a regional certifying body has advised the Minister about certain matters relating to the position.

27. The applicant nominated the position as a regional sponsored position and the Tribunal has considered whether the applicant can meet all the requirements of the second alternative in r.5.19(4)(h).

28. The Tribunal finds the position and business are located in regional Australia as they are located in Western Australia.

29. The applicant concedes the nominee is not currently fulfilling the position of Retail Manager.  Mr Plowman is still actively involved in the business and fulfills this position at present.  However, the Tribunal accepts Mr Plowman’s oral evidence that he has made the nomination as he is ready to retire from active management of the business, and having employed the visa applicant on a casual basis for about 6 years he is confident the nominee has the experience and qualifications to be the Retail Manager.  Once the nomination is approved and the visa granted, the nominee can work full-time in the position.  At present, the nominee holds a student visa and cannot work full-time.  The Tribunal notes Mr Plowman is nearly 70 years old, and accepts his submission that having re-worked the business into one shop and three successful food vans, he is looking to retire and leave the management of the business to the nominee.   The Tribunal also noted throughout the hearing that when the applicant was asked questions about the business such as number of employees and turnover, he deferred to the nominee. This supported the claim that the nominee is currently involved in assisting the applicant to manage the business and is being groomed to take over the role of Retail Manager.

30. The delegate concluded the position was more akin to a Retail Supervisor as the owner was still active in managing the business.  The Tribunal has accepted however that the intention for the position is that the owner will retire from management.  The Tribunal accepts the nominee will be fulfilling a position which includes tasks sufficiently proximate to the tasks described in the ANZSCO description for a Retail Manager.  The Tribunal finds there is a genuine need to employ a paid employee in the position of Retail Manager under the nominator’s direct control.  The Tribunal is satisfied the tasks to be performed in the position correspond to those at ANZSCO skill level 2, as the Tribunal is satisfied the tasks of the position correspond to the ANZSCO description for a Retail Manager.  

31. The Tribunal is satisfied that the position cannot be filled by an Australian citizen or permanent resident who is living in the same local area.  The applicant provided evidence of genuine attempts to fill the position with an Australian citizen or permanent resident .  The Tribunal also relies on the regional certifying body’s certification that the position could not be filled locally.

32. The Tribunal finds the regional certifying body, Skilled Migration WA, certified on 23 March 2015 that there is a need for a paid employee in the position, that the position cannot be filled locally, and that the terms and conditions of employment are no less favourable. 

33. Accordingly the requirements of r.5.19(4)(h) are met.

34. Based on the findings above, the Tribunal is satisfied that the applicant meets the requirements of r.5.19 for approval of the nomination of the position in Australia.

    DECISION

35. The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

    Carolyn Wilson
    Member

    
    

    ATTACHMENT  -  EXTRACTS FROM THE MIGRATION REGULATIONS 1994

    5.19Approval of nominated positions (employee nomination)

    …

    (2)The application must:

    (a)be made in accordance with approved form 1395…; 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;

    (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 at a skill level of ANZSCO skill level 1, 2 or 3;

    (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).