1511798 (Migration)

[2016] AATA 4146

1511798 (Migration) [2016] AATA 4146 (21 July 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Martin Distillation Company Pty Ltd

CASE NUMBER:  1511798

DIBP REFERENCE(S):  BCC2015/113753

MEMBER:Steve Georgiadis

DATE:21 July 2016

PLACE OF DECISION:  Adelaide

DECISION:The Tribunal affirms the decision under review to refuse the nomination.

Statement made on 21 July 2016 at 1:03pm

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 12 August 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 12 January 2015. 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 that the applicant’s nomination did not satisfy r.5.19(4)(h)(ii)(C) of the Regulations as the relevant Regional Certifying Body (RCB) certified on 16 February 2015 that the recruitment activity criterion was not satisfied by the nominating employer, and because the other criteria for approval of the nomination were not met.

5. Director, Dr David Martin, on behalf of the applicant employer appeared before the Tribunal on 21 July 2016 to give evidence and present arguments. He is one of two Directors of the applicant, the other being his wife.

6. For the following reasons, the Tribunal has decided to affirm the decision under review to refuse the nomination.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. 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 benchmarks r.5.19(4)(h)

8. 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 in the relevant legislative instrument IMMI 15/091, and certain specified training benchmarks will be met - r.5.19(4)(h)(i); or

   ·the position in the 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 - r.5.19(4)(h)(ii).

9. There is no suggestion or submission that the tasks correspond to the tasks of an occupation specified in the relevant instrument under r.5.19(4)(h)(i). Therefore, the Tribunal has considered relevantly, whether all of the following apply under r.5.19(4)(h)(ii):

   ·the position and business is located in ‘regional Australia’;

   ·there is a genuine need to employ a paid employee to work in the position under the nominator’s direct control;

   ·the position cannot be filled by an Australian citizen or permanent resident who is living in the same local area;

   ·the tasks to be performed in the position correspond to those at ANZSCO skill level 1, 2 or 3;

   ·a Regional Certifying Body located in the same State or Territory as the position has advised the Minister about the matters in r.5.19(4)(e) and r.5.19(4)(h)(ii)(B) & (C).

10. The Tribunal accepts from the applicant’s oral evidence and description of the position that the tasks of the nominated position involve the processing and manufacture of alcohol consistent with Process Worker / Manufacturer ANZSCO 133411. The Tribunal accepts that the nominated position is located in Mount Compass in regional South Australia (defined in the relevant instrument as the whole of the State of SA). 

11. The applicant has provided a certificate from the Department of State Development (Immigration SA), dated 16 February 2015 in respect of the nominated position above with Martin Distillation Company Pty Ltd. The Tribunal accepts that Immigration SA is the relevant RCB for this position in Mount Compass.

12. The Tribunal finds that the RCB has certified and advised the Minister about the requisite matters in r.5.19(4)(e) and r.5.19(4)(h)(ii)(B) & (C) above. The Tribunal noted and raised with the applicant that the RCB certificate advises that the above requirements are “not satisfied”. At the hearing, the applicant explained, in response to this issue, that after discussing the filling of the position with a local recruitment company, Jobs Statewide, it was felt that the position would not be able to be filled using people from the local workforce. This is consistent with the letter of 16 February 2015 from Immigration SA which refers. The Tribunal is satisfied that this information was before the RCB at the time the certificate was issued and has been taken into account as it is specifically mentioned in Immigration SA’s letter of 16 February 2015.

13. One of the requisite criteria, r.5.19(4)(h)(ii)(C), is that the position cannot be filled by an Australian citizen or permanent resident who is living in the same local area. At the hearing, the applicant confirmed, when asked, that at no stage has there been any print or electronic media advertising for the nominated role. This includes since the application was made to the present time. In those circumstances, the Tribunal places substantial weight on the RCB certification that this criterion is not met as there is no other evidence of advertising to substantiate that the position cannot be filled. The applicant has nominated his brother, Mr Leslie Edward Martin for the nominated position above. The applicant explained at the hearing that he feels he is not able to trust others who are not family members with either his recipes for the production of the Vodka he distils or against pilfering the final product for which he has to pay $25 in excise plus GST for each bottle produced. However, that is not the test to be applied as the Tribunal’s consideration is not who may be the most suitable or preferred person for the role, but instead that the position cannot be filled by an Australian citizen or permanent resident who is living in the same local area as that place. In all the circumstances above, the Tribunal is satisfied that this criterion is not met and consequently, that the advice under r.5.19(4)(h)(ii)(F) to the Minister about the matters in r.5.19(4)(e) and r.5.19(4)(h)(ii)(B) & (C) in the certificate of the RCB are not all satisfied.

14. Accordingly the requirements of r.5.19(4)(h)(ii)(C) and (F) are not met.

15. 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 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

16. The Tribunal affirms the decision under review to refuse the nomination.

    Steve 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

    (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).