1505271 (Migration)

[2015] AATA 3497

1505271 (Migration) [2015] AATA 3497 (9 October 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Adelaide Northern Veterinary Group

CASE NUMBER:  1505271

DIBP REFERENCE(S):  BCC2014/2806451

MEMBER:Christopher Smolicz

DATE:9 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 09 October 2015 at 2:02pm

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 10 April 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. On 23 October 2014, the applicant applied for approval of the position of Accommodation and Hospitality Manager (ANZSCO 141999). The applicant nominated Milos Joseph Castelli as the nominee, visa applicant.

3. 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).

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

5. The delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19(4)(d)(i) of the Regulations because the delegate was not satisfied that the business has the financial capacity to be able to employ a full-time Accommodation and Hospitality Manager for at least two years.

6. Dr Alan Irving appeared before the Tribunal on 9 October 2015 to give evidence and present arguments on behalf of the applicant. The Tribunal also received oral evidence from Ms Annabelle Pfitzner and the visa applicant.

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. Al-Ru Farm Pty Ltd (Al-Ru Farm) is part of the Adelaide Northern Veterinary Group (ANVG) of companies. Al-Ru Farm is a B&B- wedding function centre located in One Tree Hill, South Australia. Al-Ru Farm comprises a homestead on a10 acres garden property. Dr Irving and his wife purchased the property in 1981 and are directors and owners of Al-Ru Farm (the business).  The primary focus of the business is wedding function events. Dr Irving is also a veterinary surgeon who has been operating a number of clinics in South Australia since 1969. Currently he employs about 10 to 12 vets within the ANVG  and is operating four clinics.

9. It was submitted that in the high wedding season, the business would hold 6 to 7 weddings per month at a cost of about $13,000 per wedding. The Tribunal was provided with a schedule of weddings booked for 2015 and 2016 calendar years. By way of example, there are currently 64 weddings booked for the 2016 calendar year and over 70 weddings were booked in the 2015.

10. The business employs two part-time gardeners to look after the large grounds. Mrs Pfitzner is an accountant who is employed as an in-house bookkeeper and manages all financial aspects of ANVG, which includes Al-Ru Farm.

11. It was submitted that the business has grown substantially over the past four years to the point that there is a need for a full-time Functions Manager.

12. The business employed an admin-personal assistant (Dana Williams) who left the business in February 2015.  Mrs Williams would assist Dr Irving and his wife manage the wedding functions. Dr Irving said that he is now 76 years old and the business has grown to such a level that he and his wife are no longer able to manage the business alone. It was submitted that the situation has been further compounded by the departure of Ms Williams and Ms Pfitzner has had to provide assitance in co-ordaining the weddings as well as performing her accounting work.

13. In February 2015, the business commenced searching for a full time Functions Manager. Ms Pfitzner told the Tribunal that she advertised on line and had only two applicants for the position. Ms Pfitzner explained that the business required a Functions Manager with marketing qualifications and someone who could work weekends. These requirements made it very difficult to find a local employee. The visa applicant had the appropriate qualifications, is able to live on the grounds and work weekends.

14. Mr Castelli is a citizen of Italy. He arrived in Australia on a working holiday visa April 2013. He has marketing qualifications from Italy and has subsequently obtained a student visa and is studying a Diploma of Business.  He commenced working in the business in July 2014 in the position of Functions Manager on a part-time basis while he is completing his studies.

15. Mr Castelli said that he is responsible for organising and co-ordinating the wedding functions held at Al-Ru Farm. For example, Mr Castelli is required to co-ordinate seating requirements, arrange the ceremony, the reception and explain pricing structures to clients. His duties require him meet with clients on a regular basis, take bookings, co-ordinate external furniture and decorations, storage and cleaning of items as well as facilitating the individual requirements of the guests. He provides tours of the gardens and facilities and arranges booking schedules over the telephone and on line. He keeps the internet web page and Facebook updated. He works with the gardeners to ensure grounds are adequately maintained and co-ordinates the external contractors such as catering.

16. The Tribunal referred Dr Irving to the 2010/2011 to 2013/2014 financial statements and noted that the business experienced a loss. For example in the 2013/2014 financial year, the gross profit was $334,215 and expenses of $357,387 resulting in a net loss of $22,523, and total wage expenditure of $129,427.

17. Ms Pfitzner said that she has been working as the accountant for Al-Ru Farm Pty Ltd since March 2000. She prepares the Annual Reports for the group of businesses including the wedding functions events that fall under the banner of Al-Ru Farm. It was submitted that although Al-Ru Farm made a “paper loss” for tax purposes of $22,523 in the 2013/2014 financial year, when the amount of depreciation of $52,709 is added back to this loss the business actually traded at a profit of $30,186. It was submitted that the definition of depreciation is the reduction in value of fixed assets due to use, obsolescence and this amount is deducted from gross profit to allow for such reduction in value.

18. It was submitted that in the past four years the directors had invested a considerable amount of capital into new facilities. For example, the business originally only catered for garden weddings and has since built an industrial kitchen which offers full catering services with the assitance of a contracted cook. It was submitted that the increase in expenditure needed to be made to match the increase demand for the wedding functions and hence the large amount of depreciation included in the profit and loss statement for the 2013/14 financial year.

19. It was submitted that no further expenditure is expected in this area and figures submitted to the Department are now historic. In support of this submission, the Tribunal was provided with the current 2014/2015 profit and loss statement, which discloses depreciation of $62,557 and a net profit of $12,148.

20. 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)

21. 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.

22. The Tribunal finds that the application was lodged electronically using the e-lodgement facility. The nomination was made under the RSMS Direct Entry stream (r.5.19(4)(h)(ii)) and consequently no fee is payable. The Tribunal finds the applicant meets r.5.19(2). The Tribunal is satisfied that the application has identified a need for a paid employee to work in the position of Accommodation and Hospitality Manager under direct control of the applicant. 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)

23. Regulation 5.19(4)(b) requires that applicant is actively, lawfully and directly operating a business in Australia. As discussed above the Tribunal has had regard to the current profit and loss statement for Al-Ru Farm and Ms Pfitzner’s evidence and is satisfied that the applicant is actively, lawfully, and directly operating a business in regional Australia.

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

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

25. As the applicant’s business activities do not include those relating to labour hire Tribunal finds that r. 5.19(4)(c) is not relevant to the current nomination. 

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

26. 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. 

27. The Tribunal has had regard to signed Contract of Employment dated 27 March 2015 and is satisfied that the nominee will be appointed for a period of a minimum of two years full time employment from grant of visa and the terms of employment do not include an express exclusion of the possibility of extending the period of employment. Accordingly, the requirement in r.5.19(4)(d) is met.

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

28. 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. The Tribunal has had regard to the employment contract which confirms the visa applicant is being offered a salary of $43,000 per annum plus 9.5 per cent employer superannuation contribution. The Tribunal has had regard to the records detailed above and is satisfied that the terms and conditions of employment are not less favourable than those that would be provided to an Australian citizen or permanent resident performing equivalent work in the same workplace at the same location. Accordingly the requirements of r.5.19(4)(e) are met.

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

29. 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). There is no evidence before the Tribunal that the applicant has anything but a satisfactory record of compliance with the immigration laws of Australia. Accordingly the requirements of r.5.19(4)(f) are met.

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

30. 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. The Tribunal is satisfied with the applicant’s 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 r.5.19(4)(h)

31. Regulation 5.19(4)(h) contains alternative requirements. These are set out in detail in the attachment to the decision. As stated above the nomination was made under the RSMS Direct Entry stream and the Tribunal has proceeded to access the application against the criteria in r.5.19(4)(h)(ii) which require:

    ·     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 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

    ·     A regional certifying body (RIB) has advised the Minister about certain matters relating to the position.

32. According to ANZSCO an Accommodation and Hospitality Manager, is classified as a Skill Level 2 occupation.

33. The Tribunal has had regard to the size and scope of the applicant’s business operations and the length of the visa applicant’s employment, his qualifications and is satisfied that there is a genuine need for the nominator to employ a paid employee to work in the position under the nominator’s direct control. The Tribunal is satisfied that the nominator’s business is located in regional Australia.

34. The Tribunal considered the tasks found in ANZSCO for this position and compared them to the job description and evidence provided by the applicant. The Tribunal is satisfied that the nominated position can properly be classified as an Accommodation and Hospitality Manger Skill Level 2. The Tribunal therefore finds that the nomination does satisfy r.5.19(4)(h)(ii)(D) of the Regulations.

35. The Tribunal has had regard to Form 1404 issued by a the RCB dated 31 March 2015 and is satisfied that the applicant has advised the Minister about matters relating to the terms and conditions of employment, the genuine need for the position and that the position cannot be filled locally. Accordingly the requirements of r.5.19(4)(h) are met.

36. 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

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

    Christopher Smolicz
    Senior 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).