A.M.B.J. PTY LTD (Migration)

[2021] AATA 2467

A.M.B.J. PTY LTD (Migration) [2021] AATA 2467 (30 June 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  A.M.B.J. PTY LTD

CASE NUMBER:  1731140

HOME AFFAIRS REFERENCE(S):          BCC2017/2219654

MEMBER:Amanda Ducrou

DATE:30 June 2021

PLACE OF DECISION:  Melbourne

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

Statement made on 30 June 2021 at 5:12pm

CATCHWORDS

MIGRATION – approval of a nomination – position of Farm Products Inspector – tasks of the position correspond to nominated occupation – actively and lawfully operating a business in Australia – financial capacity to employ the nominee for at least two years – updated financial information – terms and conditions of employment no less favourable – genuine need for the employment – relevant qualifications – decision under review set aside           

LEGISLATION

Fair Work Act 2009
Migration Act 1958, ss 245, 359
Migration Regulations 1994, rr 1.13, 5.19, 5.37

CASES

Bharaj Construction Pty Ltd v MIBP [2016] FCCA 902

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 and Border Protection on 20 November 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).

2. The applicant applied for approval on 23 June 2017. 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 stream (r.5.19(3)) and a Direct Entry nomination stream (r.5.19(4)). 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 the Direct Entry nomination stream.

4. The position identified in the nomination application is Farm Products Inspector, being included in the occupation group Primary Products Inspectors nec (not elsewhere classified) (ANZSCO 311399). The application for approval identifies Mr Gurkirat Singh as the nominee.

5. The delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19(4)(h)(ii)(D) of the Regulations because the delegate was not satisfied that the tasks to be performed in the position correspond to the tasks of an occupation specified in the relevant instrument, being an ANZSCO skill level 2 Primary Products Inspector nec (ANZSCO 311399). The delegate found that the tasks to be performed in the position are more closely aligned with those of a farm labourer with a lower skill level.

6. On 7 February 2020 the Tribunal wrote to the applicant in accordance with s.359(2) of the Migration Act 1958 (the Act) inviting the applicant to provide information to the Tribunal. The letter invited the applicant to provide information that demonstrated that all the relevant criteria in r.5.19 of the Regulations were met currently including, but not limited to, the criteria that the delegate had found were not established. Extracts of relevant parts of r.5.19 accompanied the letter. The letter asked the applicant to provide the information by 28 February 2020 and noted that the applicant could request an extension of time, but any such request must be received before 28 February 2020. The letter explained that if the requested information was not received within the period allowed or as extended (if an extension were requested and granted), then the applicant would lose any entitlement it might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

7. The applicant responded to the Tribunal’s request for information on 28 February 2020 and provided documents and written submissions in support of the application.

8. Miss Anandjeet Kaur, the director of the applicant, appeared before the Tribunal on 18 November 2020 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Gurkirat Singh.  Miss Kaur and Mr Singh gave evidence separately at the hearing. The Tribunal exercised its discretion to hold the hearing by telephone via MS Teams audio. The applicant’s registered migration agent, Mr Srinivasa Reddy Gottam, represented the applicant in relation to the review. Mr Gottam participated in the hearing by telephone via MS Teams audio. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone via MS Teams audio, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

9. At the hearing the Tribunal invited the applicant to provide further documentation relevant to the application. The applicant was invited to provide the documents by 9 December 2020. The Tribunal received documents from the applicant on 9 December 2020.

10. 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

11. 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)

12. 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) of the Act. The application must also identify a need for the nominator to employ a paid employee to work in the position under their direct control.

13. Based on the information in the Department’s file, the Tribunal is satisfied that the application for approval of the nomination was made on the approved form and was lodged electronically using the e-lodgement facility. Consistently with r.5.37(2)(a) of the Regulations, no fee is payable in respect of an application for approval of the nomination of a position located in regional Australia. The Tribunal is satisfied that the relevant s.245AR(1) certification is provided in the application and that the application identifies the need for the applicant to employ a paid employee to work in the nominated position of Primary Products Inspectors nec (ANZSCO 311399) under the applicant’s direct control.

14. 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)

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

16. The documents before the Tribunal included: an Australian Securities and Investments Commission (ASIC) company statement for the applicant  issued  on 5 February 2020; an ABN (Australian Business Number) Lookup search for the applicant extracted from the Australian Business Register on 28 February 2020; a Company Summary for the applicant extracted from ASIC’s database on 28 February 2020; certificate of registration issued by Sustainable Certification Pty Ltd on 30 November 2020 certifying the applicant’s assessment and satisfaction of the requirements of the Hazard Analysis and Critical Control Point (HACCP) System issued by Sustainable Certification from 22 November 2020 to 21 November 2021; HACCP audit certificate issued to the applicant by the Riverina Wine Grapes Marketing Board for an audit on 19 November 2020 valid until June 2021; a chart detailing the applicant’s current organisational structure; payroll documents; and other documents and information regarding the applicant’s business activities including the applicant’s financial statements, company tax returns, Australian Taxation Office (ATO) portal activity statement printouts and ATO portal transaction statement printouts.

17. The financial statements and company tax returns include financial statements and company tax returns for the 2018, 2019 and 2020 financial years (the 2018 financial statements include 2017 financial year information) prepared by the applicant’s accountant and registered tax agent, Mr A Gunn of Gunn Accounting. The financial statements for the 2019 and 2020 financial year included director’s declarations signed by Miss Kaur and compilation reports prepared by and signed by Mr Gunn and accepted by Miss Kaur as the director of the applicant. The company tax returns for the 2019 and 2020 financial years are signed by Miss Kaur as the director of the applicant and included tax agent’s certifications made and signed by Mr Gunn.

18. The documentary evidence is consistent with the applicant actively and lawfully operating a business in Australia. Miss Kaur and Mr Singh described the nature of the applicant’s business and the business operations. Miss Kaur gave evidence that since the application for approval of the nomination was lodged, the applicant has consolidated and extended its landholdings to increase its capacity to produce, pack and distribute its produce. The applicant provided documentary confirmation of this. The oral evidence of Miss Kaur and Mr Singh is consistent with the information in the documents before the Tribunal. Based on the oral and documentary evidence, the Tribunal is satisfied that the applicant is actively, directly and lawfully operating a primary production agriculture business specialising in growing, harvesting and supplying organic produce including wine grapes, citrus and other fruit and vegetables, located at Stanbridge and Leeton, New South Wales, Australia.

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

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

20. 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.

21. There is no information before the Tribunal indicating that the applicant’s business activities include activities relating to the hiring of labour to unrelated businesses. The most recent contract of employment between the applicant and the nominee is dated 1 December 2020. It is signed by Miss Kaur as director of the applicant and Mr Singh, and provides for Mr Singh’s direct employment in the nominated position.

22. Accordingly, the requirement in r.5.19(4)(c) does not apply.

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

23. Regulation 5.19(4)(d) requires the nominee to be employed in the nominated position for at least two years full-time, and the terms and conditions of that employment do not expressly exclude the possibility of an extension.

24. The employment agreement that applied when the nomination application was lodged was made on 9 July 2017 between the applicant and the nominee. The Tribunal raised concerns at the hearing about the currency and applicability of that employment agreement to the ongoing employment of the nominee in the nominated position. After the hearing the Tribunal received an employment agreement made on 1 December 2020 between the applicant and the nominee. The provisions of the employment agreement are consistent with the oral and documentary evidence of the current and ongoing employment of the nominee, including the evidence of the current organisational structure of the applicant’s business.

25. The employment agreement dated 1 December 2020 provides for Mr Singh’s employment in the nominated position of on a full-time basis at a base gross salary of $50,000 per annum, plus superannuation at the applicable statutory rate. The employment agreement sets out the entitlements of the nominee in the position to annual and other leave, and stipulates that the nominee is to be remunerated for work done on weekends, public holidays and overtime according to the award rates and conditions applicable under the Fair Work Act 2009. The employment agreement provides for Mr Singh’s employment in the nominated position for an initial period of two years after the approval of his Subclass 187 visa application and makes provision for the extension of the term of employment.

26. The oral evidence and the documents provided to the Tribunal confirm that Mr Singh receives the remuneration, including employer superannuation contributions, due to him. Based on the oral and documentary evidence the Tribunal is satisfied that Mr Singh has been employed by the applicant on a full-time basis in the nominated position at the applicant’s business from September 2017, and that Mr Singh continues to be employed by the applicant in that position on a full-time basis. The Tribunal notes the emphasis that Miss Kaur placed on the importance of the continued employment of Mr Singh in the nominated position due to his experience in the position and his technical expertise in the context of the applicant’s business operations. Miss Kaur and Mr Singh confirmed at the hearing that they intend for Mr Singh to continue to be employed by the applicant in the nominated position on an ongoing basis. The Tribunal is satisfied that the terms and conditions of agreement dated 1 December 2020, under which the nominee will be employed in the nominated position, do not expressly exclude the possibility of an extension.

27. The Tribunal considered the evidence relating to the applicant’s financial capacity to employ the nominee for at least two years at the base annual salary of $50,000 per annum specified in the most recent employment agreement, plus superannuation at the statutory rate. The Tribunal accepts, based on the oral and documentary evidence, that the applicant has three full-time employees, being the nominee, a full-time Office Manager who is the subject of a separate nomination application and a full-time Repair Technician. The applicant engages external contractors for all of the farm labouring work on an as needed basis.

28. The Tribunal had regard to the source financial documents that the applicant provided. These included full, signed financial statements for the 2019 and 2020 financial years (the 2019 financial year statements included 2018 financial year information) and the applicant’s signed company tax returns for the 2019 and 2020 financial years. The Tribunal notes that the financial statements and tax returns were prepared and signed by Mr Gunn as the applicant’s accountant and tax agent. The Tribunal was also provided with payroll documents and with correspondence from Mr Gunn.

29. The financial statements showed an increase in sales and in trading profit from Financial Year 2018 to Financial Year 2019, and a decrease in Financial Year 2020. While total operating expenses increased from Financial Year 2018 to Financial Year 2019, the applicant recorded an increase in profit before taxation of more than 130% from Financial Year 2018 to Financial Year 2019. The applicant recorded a loss before taxation for Financial Year 2020 of $553,786. The 2020 financial year statements show that the applicant applied part of the balance of its equity from retained earnings and reserves to fund the difference between its operating expenses and trading revenue. The balance of equity available to the applicant as at 30 June 2020 is $489,493. Miss Kaur gave oral evidence that the reduction in sales revenue and the consequent loss for the 2020 financial year was partly due to the purchase of land and machinery by the applicant to expand and streamline its business, and otherwise due to the effect that the COVID-19 pandemic had on the business operations.

30. After the hearing the Tribunal received a written statement from Miss Kaur dated 3 December 2020 providing details of land and machinery purchases made by the applicant in the 2020 financial year. The statement explains that there were delays in payments due to the applicant from the sale of its produce due to the COVID-19 pandemic, with the payments now having resumed. The information in the statement is consistent with the oral evidence of Miss Kaur. A letter dated 30 November 2020 signed by Mr Gunn explains that the low profit margin for the 2020 financial year was due to the expansion of the applicant’s operations and the expenses associated with the expansion. Mr Gunn sets out the applicant’s ongoing labour requirements, noting that the applicant currently employs three permanent full-time staff and attests to the continuing financial viability of the business and to the financial capacity of the applicant to maintain the employment of its employees and to continue to engage the contract labour necessary for its business. In the letter Mr Gunn notes that the 2020 financial year statements demonstrate that the applicant is in the position to continue to meet its contractual and employment commitments from its business equity alone.

31. The information in the financial statements corresponds with that in the tax returns. The salaries expense for employees recorded in the 2020 financial year income statement and the total salary paid for employees shown in the 2020 financial year PAYG summary statements correspond. The Tribunal received a further letter dated 30 November 2020 from Mr Gunn together with additional financial documents clarifying that the divergence between the level of sales recorded in the financial statements and the sales recorded in the activity statements is due to timing differences from the use of different accounting methods for recognising revenue. The Tribunal considers that this satisfactorily explains the query that it raised about the divergence at the hearing.

32. The Tribunal took into account that the available evidence demonstrates that in general the business has traded profitably. While the business was not profitable in the 2020 financial year, it is notable that in that financial year the expansion of the business operations coincided with impacts of the COVID-19 pandemic. The Tribunal accepts that it is Miss Kaur’s intention for the business to grow and increase in profitability and that she holds the expectation that this is achievable in the foreseeable future. Based on the available oral and documentary evidence, the Tribunal is satisfied that the applicant’s business is financially viable with more than sufficient financial resources to meet its ongoing financial commitments including its financial commitment to provide full-time employment to the nominee in the nominated position at the base annual salary of $50,000 per annum plus  superannuation at the mandated statutory rate on an ongoing basis for at least two years.

33. The Tribunal is satisfied, based on the material before it, that the applicant has the financial capacity to employ the nominee as a full-time Primary Products Inspector and that the applicant has the financial capacity to maintain the nominee’s employment in that position for at least two years. The Tribunal is satisfied that the evidence establishes that the nominee will be employed on a full-time basis in the nominated position of Primary Products Inspector nec (ANZSCO 311399) for at least two years on terms and conditions of employment that do not include an express exclusion of the possibility of extending the period of employment.

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

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

35. 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.

1. The terms and conditions of the employment agreement dated 1 December 2020 include terms relating to the nominee’s working hours, his annual salary, superannuation and leave entitlements. The Tribunal is satisfied having regard to the employment agreement that the terms and conditions provided for under the employment agreement are in accordance with the National Employment Standards (the NES) and the Fair Work Act 2009. The employment agreement provides for the nominee to be paid a gross salary of $50,000 per annum, plus superannuation at the rate mandated by legislation. The nomination application form states that there is no Australian employee or employees in the nominee’s workplace doing the same work as the nominee. This is consistent with the oral evidence of Miss Kaur and Mr Singh and the organisational structure chart that the applicant provided to the Tribunal. As there is no Australian employee or employees in the nominee’s workplace doing the same work as the nominee, the Tribunal considers that it is appropriate to have regard to relevant market information.

2. The Tribunal received evidence and documents from the applicant in support of the applicant’s claims regarding the terms and conditions of employment applicable to the nominated position. The documents that the applicant provided after the hearing included a document headed ‘Market Salary Rate’, which includes information extracted from the PayScale website ( and a job advertisement published on the Seek website ( The information from PayScale is for Quality Control Inspector positions and the Seek advertisement is for a Quality Control Officer position. According to the applicant’s PayScale extract, the average hourly rate of pay for a Quality Control Inspector in Australia is $25.25 per hour. The PayScale website (as accessed by the Tribunal on 27 June 2021) lists the average hourly rate of pay for a Quality Assurance/Quality Control Inspector hourly rate of pay in Australia as $25.70 per hour (being $50,783 per annum based on a 38-hour working week) with an average hourly rate of pay range from $21 to $32 per hour ($41,496 to $63,232 per annum based on a 38-hour working week). The advertised Quality Control Officer position on the Seek website lists a salary range from $40,000 to $44,999 per annum.

3. The Tribunal notes that the PayScale website does not provide specific information for Primary Products Inspector positions. The Tribunal accessed the Seek website on 27 June 2021 but no results were returned for Primary Products Inspector positions. The Tribunal accessed the Job Outlook website on 27 June 2021.[1] The median gross weekly pay rate listed for Other Primary Products Inspectors, including jobs like dairy quality assurance officers and fruit and vegetable inspectors is listed as $1,644 per week ($85,488 per annum). The Tribunal notes that this is a median and not an average weekly pay rate, encompassing all skill levels and is based on an average working week of 42 hours per week. The Job Outlook website notes that the figures are a guide only and should not be used to determine a wage rate. After taking this into account and having regard to the similarity between the tasks listed on the PayScale Website for a Quality Assurance/Quality Control Inspector position and the tasks listed in ANZSCO for the nominated position, the Tribunal considers that it is appropriate to have regard to the PayScale information in this case.

   [1] >

   The annual base gross salary of $50,000 stipulated under the employment agreement for the nominated position is slightly lower than the average rate of pay listed on PayScale, but falls withing the average pay range listed on PayScale. The Tribunal, therefore, accepts that the stipulated rate of pay of $50,000 per annum plus superannuation that is applicable to the nominated position is commensurate with relevant market information.

4. The Tribunal is satisfied, based on the available evidence that the terms and conditions of employment applicable to the nominated position will be no less favourable than those that would be provided to an Australian citizen or permanent resident performing equivalent work in the same workplace at the nominator’s business premises.

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

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

6. 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 of the Regulations.

7. There is a client of interest note on the Department’s file of receipt of an allegation regarding an Employer/Sponsor breach. The matter in respect of which the allegation was received was not specified in the client of interest note. The Tribunal requested clarification from the Department. On 2 December 2020 the Tribunal received an email from a Departmental Officer confirming that the allegation is not relevant to this case and that the allegation was not provided on this basis. The Tribunal accepts, based on the information from the Department that the allegation is not relevant in the present case and is not adverse information as defined in the Regulations for the purposes of r.5.19(4)(f) of the Regulations. Therefore, the Tribunal considers that it is not necessary to invite the applicant to comment on or respond to the client of interest note pursuant to s.359A or s.359AA of the Act and the Tribunal placed no weight on the client of interest note in this review.

8. In her oral evidence, Miss Kaur referred to the applicant having been the subject of an audit by the ATO that was finalised. The Tribunal invited the applicant to provide information after the hearing about the audit. The documents that the Tribunal received after the hearing included an ATO notice of informal review of an objection decision and the ATO’s written statement of reasons for the decision. The ATO documents confirm that an audit had been undertaken of the applicant’s Business Activity Statements for the period 30 June 2011 to 31 December 2011. On review, the applicant’s objection to the decision that had been made as a result of the audit to ask the applicant to repay a shortfall in tax had been allowed in full and the applicant was not required to repay any tax as there was no shortfall. Further, as there was no shortfall in tax, the applicant was not subject to the administrative penalties which had been imposed on the shortfall. The Tribunal accepts, based on the ATO information, that the above information is not adverse information as defined in the Regulations for the purposes of r.5.19(4)(f) of the Regulations.

9. Based on the oral and documentary evidence the Tribunal is satisfied that there is no information before it indicating that there is adverse information known to the Department about the nominator or a person associated with the nominator.

10. Accordingly, the requirements of r.5.19(4)(f) are met.

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

11. 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.

12. There is no information before the Tribunal indicating that the applicant does not have a satisfactory record of compliance with workplace relations laws in the location in which the applicant operates its business and employs employees in the business.

13. 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)

14. Regulation 5.19(4)(h) contains a number of alternative requirements. The requirements relevant to this case are summarised as follows:

    ·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 specified in the relevant legislative instrument, the occupation is applicable to the proposed employee in accordance with the specification of the occupation and that a regional certifying body has advised the Minister about certain matters relating to the position.

    Location of the position and the business

15. The Tribunal must be satisfied that the position and the business operated by the nominator are located in regional Australia for the requirements in r.5.19(4)(h)(ii)(A) and r.5.19(4)(h)(ii)(E) to be met.

16. The nominated position of Primary Products Inspectors nec is located at the place of the applicant’s business at Stanbridge and Leeton, New South Wales, 2705.

17. At the time when the application for approval of the nomination was lodged, ‘regional Australia’ was defined in r.5.19(7) as meaning a part of Australia specified by the Minister in an instrument in writing for this definition. The current legislative instrument is IMMI 18/037. However, IMMI 18/037 only applies to applications lodged on or after 18 March 2018. IMMI 18/037 repealed the previous legislative instrument (IMMI/059).

18. As neither the current legislative instrument nor its immediate predecessor can be relied on by the Tribunal in making a finding as to whether the position and the business operated by the nominator are located in regional Australia, the Tribunal had regard to the legislative instrument that applied when the applicant lodged the application for approval of the nomination. That legislative instrument was IMMI 16/045. Consistently with Schedule B to IMMI 16/045, the New South Wales postcode of 2705 is located in regional Australia.

19. In the circumstances, the Tribunal is satisfied that the position and the business operated by the applicant are located in regional Australia. Accordingly, the requirements in r.5.19(4)(h)(ii)(A) and r.5.19(4)(h)(ii)(E) are met.

    Genuine need for the nominator to employ a paid employee in the position under the nominator’s direct control

20. The Tribunal must be 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 for the requirements in r.5.19(4)(h)(ii)(B) to be met.

21. The applicant’s ‘Statement on Genuine Position Requirement’, provided to the delegate, sets out submissions addressing the need for the nominated position within the applicant’s regular business activities. The submissions detail: background information in relation to the applicant’s business; the organisational structure of the business; the financial position of the business; Miss Kaur’s involvement with the business; and the need and benefits to the business of recruiting a full-time Primary Products Inspector. In summary, in relation to the fulfillment of the requirements of r.5.19(4)(h)(ii)(B), the applicant submits that the scope and the scale of its business is consistent with there being a genuine need for the applicant to employ a paid employee to work full-time in the position of Primary Products Inspector under the nominator’s direct control.

22. Miss Kaur told the Tribunal that she has a limited capacity to work in the business as she works full-time in the health care sector. The business requires a full-time Primary Products Inspector as neither she, nor anyone else, has the qualifications and capacity to undertake the role. The descriptions that Miss Kaur and Mr Singh gave of the business and the organisational structure are consistent with the organisational chart that the applicant provided.

23. Miss Kaur acknowledged that Mr Singh did not have previous employment experience as a Primary Products Inspector when he commenced working for the applicant. However, he had obtained relevant qualifications. In his interview Mr Singh demonstrated that he possessed the necessary skills for the position and an enthusiasm to gain knowledge. When Mr Singh started work with the applicant, the applicant already employed a Quality Manager who shared knowledge with Mr Singh. The Quality Manager left in 2018. The applicant has not needed to employ another Quality Manager due to Mr Singh’s expertise in his role. Mr Singh’s oral evidence was consistent with the documentary evidence of his background and qualifications. The Tribunal accepts based on the oral and documentary evidence that Mr Singh has obtained a Diploma of Production Horticulture from the Technical Institute of Victoria.

24. Consistently with the oral and documentary evidence the Tribunal accepts that the business has three full-time employees, including Mr Singh in the nominated position. The applicant relies entirely on contractors for the farm labouring work. The number of contractors who are engaged varies but can number from 20 to 25 at a time. Currently the applicant has 247 acres of land under cultivation with the intention of purchasing more land. The applicant sells its produce in bulk but it also packs its produce for market and has a grader. The applicant owns and maintains its own commercial packaging shed. Miss Kaur emphasised that it is essential for the applicant to employ a full-time Primary Products Inspector to manage the audit process and the other requirements that the applicant must meet for its HACCP certification and the requirements for certification under other quality assurance programmes required by its customers.

25. Having regard to the evidence of the nature, size and scope of the applicant’s business the Tribunal accepts that applicant requires the services of a full-time qualified Primary Products Inspector for its business. The Tribunal is satisfied that the evidence demonstrates that neither Miss Kaur nor any other employee has the requisite capacity to perform the duties of the nominated position. Consistently with the oral evidence of Miss Kaur and Mr Singh and the documentary evidence, the Tribunal accepts that Mr Singh reports to the Office Manager who is a full-time employee of the applicant and that Mr Singh is in frequent contact and communication with Miss Kaur about his work. Based on the oral and documentary evidence, the Tribunal is satisfied that there is a genuine need for the applicant to employ a paid employee to work in the nominated position of Primary Products Inspector under the applicant’s direct control.

26. Accordingly, the Tribunal is satisfied that the requirements in r.5.19(4)(h)(ii)(B) are met.

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

27. The Tribunal must be satisfied that the position cannot be filled by an Australian citizen or an Australian permanent resident who is living in the same local area as the place where the position is located in order for the requirements in r.5.19(4)(h)(ii)(C) to be met.

28. The Tribunal considered the available evidence regarding the applicant’s attempts to fill the nominated position of Primary Products Inspector nec. Having regard to the oral and documentary evidence the Tribunal does not accept that the limited advertising that the applicant undertook to fill the nominated position, being the placement of a newspaper advertisement for a one week period, is sufficient to establish that the nominated position cannot be filled by an Australian citizen or Australian permanent resident living in the same local area as the nominated position. While the Tribunal notes the opinion of the Regional Certifying Body (RCB) provided on 29 June 2017 advising the Minister that, among other matters, the nominated position cannot be filled by an Australian citizen or Australian permanent resident living in the same local area as the nominated position, four years have elapsed since the RCB provided the opinion.

29. However, the Tribunal had no reason to doubt the veracity of Miss Kaur’s oral evidence, noting that her evidence was clear and consistent and that she did not seek to embellish her account even regarding matters that may be potentially adverse to the applicant’s case. Miss Kaur gave detailed oral evidence of the difficulties that the applicant, as a regional farm employer, faces in attracting employees for all aspects of its business, including in the nominated position. The Tribunal accepts, having regard to Miss Kaur’s oral evidence that this is exacerbated by the impact of the COVID-19 pandemic labour shortage.

30. Based on the available evidence the Tribunal is satisfied that the nominated position of Primary Products Inspector nec (ANZSCO 311399) at the applicant’s business at Stanbridge and Leeton, New South Wales, cannot be filled by an Australian citizen or an Australian permanent resident who is living in the same local area.

31. Accordingly, the requirements in r.5.19(4)(h)(ii)(C) are met.

    Tasks to be performed in the position correspond to the tasks of an occupation specified by instrument

32. The Tribunal must be satisfied that the tasks of the nominated position correspond to those of an occupation specified in the relevant legislative instrument for the requirements in r.5.19(4)(h)(ii)(D) to be met. The applicable instrument specified for this purpose is IMMI 15/083. Section 9 of IMMI 15/083 provides that the occupations listed in Schedule A to IMMI 15/083 are specified for the purposes of r.5.19(4)(h)(ii)(D) of the Regulations. The occupation of Primary Products Inspectors nec, ANZSCO code 311399, skill level 2 is listed in Schedule A as an occupation specified for the purposes of r.5.19(4)(h)(ii)(D) of the Regulations.

33. ANZSCO provides that the tasks of Primary Products Inspectors (Unit Group 3113) include:

    ·     inspecting animals, plants and agricultural produce to identify product quality issues, and providing advice to producers

    ·     auditing and monitoring quality procedures and farms and food handling and processing facilities to ensure compliance with required standards

    ·     testing samples of produce for quality, size and purity

    ·     ensuring that required standards of hygiene are observed at storage, processing and packing facilities and in transport vehicles

    ·     advising primary producers on economic aspects of disease eradication and informing producers and the general public of the health implications of diseases and impurities

    ·     advising on the identification of pests and diseases and on regulations pertaining to grading, packing and loading of products

    ·     examining imported plants and animals, and products, such as timber, seeds and dried fruits and making quarantine arrangements

    ·     patrolling and investigating waterways for unlawful fishing activities and the removal of protected marine life

    ·     educating, advising and providing information on a wide range of topics relating to fish and their protection

    ·     may initiate or assist in legal action to enforce regulations.

34. The general description in ANZSCO for Primary Products Inspectors (Unit Group 3113) provides that Primary Products Inspectors inspect animals, plants and agricultural produce and facilities to ensure compliance with government and industry standards with respect to quality, health and licensing. ANZSCO provides that in Australia most occupations in the Unit Group 3113 Primary Products Inspectors have a level of skill commensurate with the qualifications and experience of an AQF Associate Degree, Advanced Diploma. It is noted that at least three years of relevant experience may substitute for the formal qualifications and that in some instances relevant experience and/or on-the-job training may be required in addition to the formal qualification.

35. The delegate was provided with a position description for the nominated position. The delegate considered that the tasks of the nominated position as described are more closely aligned with the duties of a farm labourer and lacked the skills expected of a Primary Products Inspector nec.

1. The job description was provided to the Tribunal. In addition, the applicant provided extensive documentation as examples of Mr Singh’s duties. Miss Kaur and Mr Singh provided detailed descriptions of the tasks performed by Mr Singh in his role. After the hearing the applicant provided the Tribunal with a comparative table listing the duties and responsibilities of the nominated position as identified in the job description against the tasks listed in ANZSCO for the position of a Primary Products Inspector nec ANZSCO 311399. The oral evidence of Miss Kaur and Mr Singh in relation to the tasks of the role of Primary Products Inspector nec was consistent. The Tribunal observes that the information before it is far more extensive than the information that was available to the delegate.

2. Based on the consistent oral evidence of Miss Kaur and Mr Singh regarding Mr Singh’s day-to-day duties, the Tribunal accepts that Mr Singh inspects and checks farm produce on a daily basis. He monitors, tests and adjusts the application of chemicals and PH levels and identifies problems and makes recommendations for improved production. Mr Singh also inspects and supervises the packing of produce to ensure that standards for sale are met. This includes testing and grading produce to meet customer specifications and quality standards. Miss Kaur emphasised the importance of meeting the needs and requirements of the HACCP audit and accreditation process. Mr Singh is responsible for this and this requires him to provide training to and to supervise farm labourers in implementing HACCP requirements and hygiene procedures including hygiene procedures for handling and packing produce. Miss Kaur noted that many of the applicant’s customers impose a higher standard of quality for produce supplied to them, than generally required in the industry. Mr Singh is responsible for inspecting, testing and monitoring the produce supplied to these customers to meet their standards.

3. While the Tribunal notes that Mr Singh does not perform some of the tasks listed in ANZSCO in his position the Tribunal notes that those tasks are not relevant to the applicant’s business operations. The Tribunal is satisfied that in all other respects the tasks that Mr Singh has been and is regularly undertaking in his position are the tasks of the nominated position. The Tribunal is satisfied that the position located in regional New South Wales is properly classified as the position of a Primary Products Inspector and that the tasks to be performed in the nominated position involve a level of technical skill and responsibility at a skill level that exceeds that of a farm labourer. The Tribunal concludes that the evidence establishes that the tasks to be performed in the nominated position correspond to the specified occupation of Primary Products Inspector nec ANZSCO 311399 (skill level 2).

4. Accordingly, the requirements in r.5.19(4)(h)(ii)(D) are met.

   Regional certification

5. The Tribunal must be satisfied that a RCB 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) and (C) for the requirements in r.5.19(4)(h)(ii)(F) to be met.

6. As already discussed, the current instrument IMMI 18/037 only applies in respect of nomination applications made on or after 18 March 2018. Therefore, the Tribunal has had regard to the legislative instrument that applied when the applicant lodged the application for approval of the nomination, which was IMMI 16/045. Regional Development Australia Riverina Inc is listed in Schedule A to IMMI 16/045 as an organisation or entity in New South Wales specified for the purposes of r.5.19(4)(h)(ii)(F).

7. The applicant provided a form 1404 issued on 29 June 2017 by Regional Development Australia – Riverina Inc, based in Wagga Wagga, New South Wales. The form 1404 states:

   ·     There is a need for a paid employee in the nominated position within the business activities of the nominating employer;

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

   ·     The terms and conditions of employment that are applicable to the nominated position will be no less favourable than the terms and conditions that are or would be provided to an Australian citizen or Australian permanent resident for performing the equivalent work in the same workplace at the same location.

8. Consistently with the decision of the Federal Circuit Court of Australia in Bharaj Construction Pty Ltd v MIBP [2016] FCCA 902, certification by a regional certifying body is not sufficient or determinative in relation to whether the nominator meets r.5.19(4)(e), r.5.19(4)(h)(ii)(B) and r.5.19(4)(h)(ii)(C) of the Regulations. Accordingly, the Tribunal notes that, whilst having regard to the advice provided by the RCB, it has reached its own conclusions about the matters that are the subject of the RCB’s advice for the reasons already discussed.

9. Having considered the form and the other evidence, the Tribunal is satisfied that the requirements in r.5.19(4)(h)(ii)(F) are met.

10. The Tribunal, therefore, concluded that the applicant meets all the requirements of r.5.19(4)(h).

11. 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

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

    Amanda Ducrou
    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

    (aa) include a written certification by the nominator stating whether or not the nominator has engaged in conduct, in relation to the nomination, that constitutes a contravention of subsection 245AR(1) of the Act; 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).