1847 Winery (SA) Pty Ltd (Migration)

1847 Winery (SA) Pty Ltd (Migration) [2018] AATA 2428 (5 June 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  1847 Winery (SA) Pty Ltd
CASE NUMBER:  1701771
DIBP REFERENCE(S):  BCC2015/3759572
MEMBER:Peter Emmerton
DATE:5 June 2018
PLACE OF DECISION:  Adelaide
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Statement made on 05 June 2018 at 1:48pm

CATCHWORDS
Migration – Nomination refusal – Direct Entry Nomination stream – Marketing Specialist (ANZSCO 225113) – 2 years full-time employment –Genuine need for paid employee – All the requirements of r.5.19 are met – Decision under review set aside
LEGISLATION
Migration Act 1958, s 245AR, 357A
Migration Regulations 1994, rr 1.13, 5.19, Schedule 2, cls 187.232, 187.234
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 30 January 2017 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 of a Marketing Specialist, ANZSCO 225113 on 8 December 2015. Ms Shaojing Wang was sponsored by the applicant to work in the nominated position.
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 the Direct Entry Nomination stream.
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 nominee will be employed on a full-time basis in the nominated position for at least 2 years.
The applicant appeared before the Tribunal on 5 June 2018, represented by Mr Grundel the General Manager to give evidence and present arguments. The Tribunal also received oral evidence from Ms Hao Wang, the General Manager Marketing for China.
The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
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.
In determining the applicant’s claims the Tribunal must first make findings of fact on material matters in dispute. This may involve an assessment of credibility and in so doing, the Tribunal is aware of the need and importance of being sensitive to the circumstances and the difficulties applicants often face before the Tribunal in their particular circumstances.
The applicant relies on the evidence given before the Tribunal together with written submissions and supporting evidence provided to the Tribunal and previously to the department.
The nominating entity operates a large, well-known, wine production facility based near Lyndoch in the Barossa Valley, South Australia, with a history dating back to 1947.
The Organisation Chart shows the nominee reporting directly to the General Manager, Marketing (China), who in turn reports to the General Manager.
The nominee is currently working in the business in the role of Marketing Specialist (China).
The Offer of Employment was signed by the General Manager and Ms S Wang on 20 February 2017.
The nominee has provided evidence of a Bachelor Degree in Marketing, obtained in China. The Tribunal notes the concern regarding proof of authenticity of the documentation associated with this qualification, as discussed in an earlier Tribunal Decision by Member K Millar dated 31 October 2017. The Tribunal also notes that whilst the Tribunal had some concerns regarding proof of qualifications, it found that the verified relevant experience, in excess of 5 years, qualified the visa applicant for the relevant ANZSCO classification. The tribunal found therefore that the visa applicant satisfied cl.187.234 of Schedule 2 of the Regulations.
This Tribunal also notes that Member K Millar, in the fore mentioned Decision, was satisfied that cl.187.232 of Schedule 2 of the Regulations, in regards to English language proficiency was met.
The nominees duties include:
·Identification of market opportunities;
·Undertaking market research to identify market opportunities for new and existing products;
·Providing advice on the development, coordination and implementation of sales plans and strategies for Chinese customers;
·Analysing data on customer preferences and consumption patterns;
·Researching potential future demand for the company’s existing products and products in development;
·Predicting future customer trends;
·Providing advice and assist in the development of pricing plans for Chinese customers.
The Tribunal questioned Mr Grundel and Ms H Wang in considerable detail as to the requirements of the Marketing Specialist role and the need for the role within the organisation. They both explained in a convincing manner the importance of the role with particular reference to the fact that the bulk of their substantial export market exists in China. It was well explained by the applicant that the future growth of the business will rely pivotally upon the Chinese market. The Tribunal notes that evidence was provided prior to the hearing that approximately 90% of their total sales is generated in association with the Chinese market. The Tribunal also notes that the department stated in a post interview report prepared in 2016, that ‘….I am satisfied that it is likely for the sponsor to genuinely require the position nominated; the company exports up to 90% of the products to China and employs a number of sales and marketing specialists for the Chinese market.’
The Tribunal was presented with a very substantial number of emails demonstrating the widely varied tasks undertaken by the nominee in the nominated role. Many of these indicated internal and external interactions and research associated with the Chinese market. Some of the emails were provided in the Mandarin language with subsequent English language translations. The Tribunal is satisfied that there is a genuine need for this role within the organisation.
Upon inspection of the job vacancy advertisements and a detailed recruitment report prepared by Southern Cross Personnel Pty Ltd, regarding the applications received and the applicants interviewed, the Tribunal was satisfied that a genuine attempt had been made to employ an Australian citizen, prior to offering the role to Ms S Wang. The recruitment process was clearly articulated by Ms H Wang, to the satisfaction of the Tribunal. A total number of 7 applications were received during the 1 month long advertised recruitment process, 2 were interviewed and Ms S Wang was the only applicant with both the requisite experience and skills who wanted the position.
The tribunal observes that it would appear to be a very difficult task to find a native Mandarin speaking person with a sophisticated understanding of the social and business mores associated with China, living in South Australia, who was not initially a Chinese citizen.
The Tribunal perused popular employment web sites prior to the hearing in order to ascertain the current state of the market in this field. It observed a substantial number of vacancies, in a wide variety of establishments currently under recruitment.
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.
The Tribunal finds that the application was lodged electronically using the elodgement 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 Marketing Specialist 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)
Regulation 5.19(4)(b) requires that the applicant is actively, lawfully and directly operating a business in Australia.
The Tribunal was provided with some of the applicant’s Business Activity Statements including recent documents and Tax Returns for 2016 and 2017, by the nominating entity. The Tribunal has also had regard to financial records provided by the entity’s accountants. The Tribunal viewed the ASIC Current Company Abstract and in addition checked the status of the listed ABN. The Tribunal is satisfied that the applicant is actively, lawfully and directly operating a business in regional Australia. 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. The 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)
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 notes that 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 nominee will be employed on a full-time basis in the nominated position for at least 2 years.
The Tribunal was supplied with substantially more detailed evidence than was provided to the delegate, when they were required to reach a decision. This additional information included the nominating entity’s Tax Return for FY 2017, Financial Statements for FY 2017 and BAS Statements for the first half of FY 2018.
The Tribunal, having perused Profit and Loss information for 2015, 2016 and 2017 and the associated Tax Returns, notes that the Taxable Profit for FY 2017 was $357,000. This is in marked contrast to earlier losses in 2015 and 2016, which the delegate stated were cause for concern and lead them to be not satisfied that the business would be able to employ the nominee for the requisite minimum 2 year period. The Tribunal notes that 1847 Winery Pty Ltd stated that substantial expansion was being undertaken by the organisation during this period, which they claimed was part of the reason for the losses. According to evidence presented at the Hearing by the General Manager, this expansion is likely to continue for some substantial time and this could reasonably be expected to impact on short-term profits.
The Tribunal is satisfied that the business requires someone in the role of Marketing Specialist (China) if the business is to flourish and continue to expand as explained to the Tribunal. The Tribunal is satisfied that the business will be able to sustainably employ the nominee for the required 2 year period.
The Tribunal has had regard to the signed Letter of Engagement dated 8 February 2017 and is satisfied that the nominee will be appointed for a period of at least 2 years 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 requirements of r.5.19(4)(d) are 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 Tribunal has been provided with the visa applicant’s employment contract and research undertaken by the nominating entity in support of the wage calculation. The Tribunal accepts that the nominee’s annual salary at $55,000 is reflective of her experience relevant to the nominated position. The Tribunal is satisfied that the terms and conditions of employment are equivalent to other employees with the same experience performing equivalent work in the same workplace. 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 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.
The Tribunal informed the nominator that a 357A Certificate was on the file, and that the Tribunal did not believe that it was relevant, therefore it would not be considered in the context of the current decision. The Tribunal provided an opportunity for the nominator to consider the statement regarding the existence of a 357A Certificate and provide comment and respond following a brief time to consult with their representative. They stated that they believed it had to do with questions regarding the previous employer of the nominee and the visa applicant’s challenges associated with proof of their Chinese Degree qualification, as the institution was no longer in existence. The Tribunal again notes the previous decision made by Member K Millar and the provision of evidence demonstrating at least 5 years relevant experience negating the need to substantiate the Degree’s authenticity.
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. The Tribunal questioned Ms R Wang and Mr Grundel regarding workplace conditions. It was evident that they are both cognisant of workplace relation expectations. They also demonstrated an understanding of appropriate employee conditions as a way of retaining employees and in so doing ensure quality service. There is no evidence before the Tribunal that the applicant has anything but a satisfactory record of compliance with workplace relations law in Australia. Accordingly the requirements of r.5.19(4)(g) are met.
Tasks of the position, genuine need for the position and training requirements r.5.19(4)(h)
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 ANZCO skill level 1, 2 or 3; and
·a regional certifying body has advised the Minister about certain matters relating to the position.
The Tribunal has had regard to the size and scope of the applicant’s business operations, the length of the visa applicant’s employment, and her 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 the position cannot be filled by a Australian citizen or permanent resident. The Tribunal is satisfied that the nominator’s business is located in regional Australia.
Turning to the requirement prescribed in r.5.19(4)(h)((ii)(D), this requires that the tasks to be performed in the position correspond to those at ANZSCO skill level 1, 2 or 3. The position of Marketing Specialist nominated by the applicant is referred to in ANZSCO as a skill level 1 position. The Tribunal considered the tasks found in ANZSCO for this position and compared them to the job description provided by the applicant. The Tribunal is satisfied that the position located in, South Australia, can properly be classified as a position for a Marketing Specialist, ANZSCO Skill Level 1. The Tribunal therefore finds that the nomination does satisfy r.5.19(4)(h)(ii)(D) of the Regulations.
The Tribunal has had regard to Form 1404 issued by an RCB (Department of Manufacturing, Innovation, Trade Resources and Energy). The RCB certificate is dated 28 April 2016, The Tribunal 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.
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.
Peter Emmerton
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;
(AAA)the occupation is applicable to the person identified under subparagraph (a)(ii) in accordance with the specification of the occupation;
(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 specified by the Minister in an instrument in writing for this sub-subparagraph;
(DA)the occupation is applicable to the person identified under subparagraph (a)(ii) in accordance with the specification of the occupation;
(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).

[2018] AATA 2428

5 June 2018

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Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Statutory Construction

Procedural Fairness

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Jurisdiction