1502076 (Migration)

[2015] AATA 3499

1502076 (Migration) [2015] AATA 3499 (22 October 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  The Trustee for The Virgara Winery Unit Trust

CASE NUMBER:  1502076

DIBP REFERENCE(S):  BCC2014/3209104

MEMBER:Carolyn Wilson

DATE:22 October 2015

PLACE OF DECISION:  Adelaide

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

Statement made on 22 October 2015 at 10:00am

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 9 February 2015 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 26 November 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)(a)(ii) of the Regulations because the delegate was not satisfied the employer had demonstrated a need for the nominated position.

5. Mr Tony Virgara, a director of the applicant business, appeared before the Tribunal on 14 October 2015 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Jason Wu Tang Han.

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

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. As such, r.5.19(4)(a)(i) is met.

11. The Tribunal also finds the applicant identified a need for the applicant company to employ a paid employee in the position of Marketing Specialist, a position which is under its direct control.   

12. Accordingly, the requirement in r.5.19(4)(a) is met.

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

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

14. The applicant runs a winery in Angle Vale, South Australia, with a focus on export sales. Financial and business documents provided to the Department, and oral evidence provided to the Tribunal, support a finding the applicant is actively, lawfully and directly operating a business in Australia.

15. Accordingly, the requirement in r.5.19(4)(b) is met.

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

16. Regulation 5.19(4)(c) applies to nominators’ whose business activities include those relating to labour hire to an unrelated business.  

17. 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)

18. 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. 

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

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

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

21. 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.

22. There is no employee performing equivalent work in the business. The applicant provided evidence of salaries provided to other employees, and the Tribunal finds the visa applicant’s salary is no less favourable than other salaries.

23. The Tribunal raised with the applicant that a base salary of $45,760 seemed low for a Marketing Specialist.  The applicant said the visa applicant was due for a pay review later in the year and he expected her pay would be increased.  The Tribunal notes the evidence form South Cross Personnel, an employment agency, advising that for the location (regional South Australia) and type of business the salary was typical.  The Tribunal notes the regional certifying body had no issues with approving the nomination with this level of salary.

24. The Tribunal also finds there is nothing in the conditions of employment, such as leave entitlements, which are less favourable than those provided to equivalent Australian citizen or resident employees in the applicant business.

25. Accordingly the requirements of r.5.19(4)(e) are met.

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

26. 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).

27. 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)

28. 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.

29. There is no evidence before the Tribunal 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 and genuine need for the position r.5.19(4)(h)

30. 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 ANZSCO skill level 1, 2 or 3; and that a regional certifying body has advised the Minister about certain matters relating to the position.

31. 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).

32. The Tribunal finds the position and business are located in regional Australia as they are located in South Australia.

33. The delegate concluded that a business employing 8 staff would not have a need for a full-time dedicated Marketing Specialist.  However, the Tribunal considers it is not the size of the business but rather the nature of the business that is relevant to the need for the position. 

34. The Tribunal notes from the financial documents and oral evidence that the business has significant sales figures and that these have increased since the employment of the visa applicant.  The applicant told the Tribunal that about 75% of their wine sales are exports, with China being their largest market.  They wish to increase this market and this is one of main projects of the Marketing Specialist.  Evidence was provided to demonstrate this, including marketing plans and promotional material. The Tribunal accepts on all the evidence before it that there is a genuine need to employ a paid employee in the position of Marketing Specialist under the nominator’s direct control.

35. 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 a written statement to the Department stating they had made genuine attempts to fill the position with an Australian citizen or permanent resident but had been unable to do so.  They provided evidence of attempts to attract a suitable employee through job advertisements and use of an employment agency.  The Tribunal acknowledges the position is in a regional area, and not city based where Marketing Specialists may usually prefer to work.  The Tribunal also acknowledges the certification by the Department of State Development SA that the position could not be filled locally. 

36. The Tribunal is satisfied the tasks to be performed in the position correspond to those at ANZSCO skill level 1, as the Tribunal is satisfied the tasks of the position sufficiently correspond to the ANZSCO description for a Marketing Specialist.  

37. The Tribunal finds the regional certifying body, the Department of State Development SA, certified on 22 December 2014 that there was 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. 

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

39. 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

40. 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 (employer 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).