1514013 (Migration)

1514013 (Migration) [2016] AATA 4289 (31 August 2016)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  SATURNO'S ADMIN PTY LTD ATF SATURNO'S EMPLOYMENT TRUST
CASE NUMBER:  1514013
DIBP REFERENCE(S):  BCC2015/1389546
MEMBER:Carolyn Wilson
DATE:31 August 2016
PLACE OF DECISION:  Adelaide
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Statement made on 31 August 2016 at 11:52am

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 Immigration on 24 September 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).
The applicant applied for approval on 14 May 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).
In this case, the applicant has applied for approval of a nomination, seeking to satisfy the criteria in Direct Entry Nomination stream.
The delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19(4)(a) and (b) of the Regulations because the delegate was not satisfied the nominator directly operated the business at which the position was located.
Ms Julie Holliday, Financial Controller for the Saturno Group, appeared before the Tribunal on 19 August 2016 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Tony Grooby, Operations Manager. Ms Holliday gave an undertaking that she was authorised by the Directors of the applicant trustee to appear and speak on their behalf.
The applicant was represented in relation to the review by its registered migration agent.
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
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)
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, where applicable, must include the required written certification relating to conduct that contravenes s.245AR(1). The application must also identify a need for the nominator to employ a paid employee to work in the position under their direct control.
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.
The nominator is a part of the Saturno Group of companies, which inter alia operates a number of hotels in South Australia. For taxation and other business reasons, the individual hotels do not employ staff directly. All hotel staff are employed by the applicant Saturno’s Admin Pty Ltd atf Saturno’s Employment Trust. The Payment Summary provided for the nominee confirms the nominee is employed by the applicant.
The nominated position is that of Café or Restaurant Manager for the Mile End Hotel. The delegate rightly noted that the business entity operating the Mile End Hotel was not the business entity nominating the position. They therefore concluded the position could not be said to be under the direct control of the nominator, and therefore r.5.19(4)(a)(ii) was not met.
The Tribunal finds the entity running the Mile End Hotel is a separate but related legal entity to the nominator. The nominator is in the business of providing hotel staff to the related Saturno’s Group hotels, including the Mile End Hotel. The Tribunal accepts such a business has need for managerial level staff to place in the hotels and accepts they have identified a need for a Café or Restaurant Manager to be placed in the Mile End Hotel. In relation to whether the position is under the direct control of the nominator, the Tribunal considers the ability of the nominator to hire, fire, pay, and place staff, including the nominee, in related businesses is sufficient to meet the requirement that the position be under its direct control.
Accordingly, the requirements in r.5.19(4)(a) are met.
Nominator is actively and lawfully operating a business in Australia: r.5.19(4)(b)
Regulation 5.19(4)(b) requires that applicant is actively, lawfully and directly operating a business in Australia.
The delegate considered the relevant business in this application was the business of operating a hotel. As a different legal entity operated the hotel to the one providing the staff, the delegate considered the nominator was not actively operating the business in question.
Ms Holliday described the business activity of the applicant as providing administrative services to the Saturno Group, including its related businesses operating the individual hotels. The services provided include human resources, financial, and information technology services. The nominator is said to be actively and lawfully operating as it has a registered ABN and lodges Business Activity Statements, which have been provided to the Tribunal. The income stream for the applicant is the service fees paid by the hotels and other businesses it provides services to.
The Tribunal accepts the applicant is actively, lawfully and directly operating a business. Its business is not that of running a hotel. Its business is providing administrative services, including staff, to hotels.
Accordingly, the requirement in r.5.19(4)(b) is met.
Position is not labour-hire: r.5.19(4)(c)
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.
It may be arguable that the business is labour hire, as the hotel staff do no work in the business of the nominator but work in the relevant hotels. However, if it is labour hire, the Tribunal finds it is labour hire to a related business and therefore r.5.19(4)(c) does not apply.
Term of employment of the visa holder: r.5.19(4)(d)
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 the possibility of an extension.
The Tribunal accepts the employment contract as evidence the position is available to the visa applicant full-time and on a permanent basis. There is no express exclusion of an extension in the employment contract.
Accordingly, the requirement in r.5.19(4)(d) is met.
No less favourable terms and condition of employment: r.5.19(4)(e)
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 applicant asserts the employment terms and conditions for the position are consistent with those provided for under the relevant Award, the Hospitality Industry (General) Award 2010. Having regard to this Award and the conditions contained with the employment contract, the Tribunal is satisfied the nominee would be employed on terms no less favourable than those provided to an Australian citizen or permanent resident performing equivalent work.
Accordingly the requirements of r.5.19(4)(e) are met.
No adverse information known to Immigration: r.5.19(4)(f)
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 such information. For these purposes, ‘adverse information’ and ‘associated with’ have the meaning given in rr.1.13A and 1.13B.
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.
Accordingly the requirements of r.5.19(4)(f) are met.
Satisfactory compliance with workplace relations laws: r.5.19(4)(g)
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.
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 genuine need for the position and training benchmarks 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:
·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.
The applicant nominated the position as a regional sponsored position and the Tribunal has therefore considered whether the applicant can meet all the requirements of the second alternative in r.5.19(4)(h).
The Tribunal finds the position and business are located in regional Australia as they are located in South Australia.
The Tribunal accepts there is a genuine need for the position as the Tribunal accepts a business staffing a large inner city hotel has need for Café and Restaurant Manager. The Tribunal also finds the tasks of the position are sufficiently consistent with the ANZSCO description of tasks for a Café or Restaurant Manager to find the tasks of the position correspond to ANZSCO skill level 2.
The Tribunal has considered whether the position could be filled by an Australian citizen or permanent resident who is living in the same local area. The applicant provided evidence to the Department of attempts to fill the position through job advertisements. Ms Holliday gave oral evidence on the ongoing difficulty the applicant has in attracting and retaining suitable staff to work full-time in this industry, particularly in senior roles such as Café or Restaurant Manager. The Tribunal relies on the certification by the Regional Certifying Body who satisfied itself the position could not be filled locally. The Tribunal finds the position could not be filled by an Australian citizen or permanent resident who is living in the same local area.
The Tribunal finds the regional certifying body, the SA Department of State Development, certified on 4 September 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.
Accordingly the requirements of r.5.19(4)(h) are met.
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
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).

[2016] AATA 4289

31 August 2016

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction