A Singh & KS Singh (Migration)

[2023] AATA 659

A Singh & KS Singh (Migration) [2023] AATA 659 (22 March 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  A Singh & KS Singh

REPRESENTATIVE:  Ms Sharon Harris (MARN: 9501060)

CASE NUMBER:  1919009

HOME AFFAIRS REFERENCE(S):          BCC2017/3050519

MEMBER:Antonio Dronjic

DATE:22 March 2023

PLACE OF DECISION:  Melbourne

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

Statement made on 22 March 2023 at 11:29am

CATCHWORDS
MIGRATION – application for approval of nomination of position – direct entry nomination stream – primary products inspector – genuine need for position – detailed documentation and submissions provided – nominee working in position for more than five years already – certification by regional certifying body – decision made without hearing necessary – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 359(2), 360(2)(a)
Migration Regulations 1994 (Cth), r 5.19(4)(h)(ii)(B)

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 Home Affairs on 3 July 2019 to reject the applicant’s application for approval of the nomination of a position in Australia under reg 5.19 of the Migration Regulations 1994 (Cth) (the Regulations).

2. The applicant applied for approval on 24 August 2017. The requirements for the approval of the nomination of a position in Australia are found in reg 5.19 of the Regulations which contains two alternative streams: a Temporary Residence Transition nomination stream (reg 5.19(3)) and a Direct Entry nomination stream (reg 5.19(4)). If the application is made in accordance with reg 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: reg 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. The nominated occupation is Primary Products Inspector, Australian and New Zealand Standard Classification of Occupations (ANZSCO 311399). The nomination was lodged in favour of Ms Harjit Kaur.

4. The delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19(4)(h)(ii)(B) of the Regulations. The delegate was not satisfied on the evidence presented that the nominator demonstrated that there is a genuine need to employ the person to work in the position under the nominator’s direct control.

5. The applicant applied to the Tribunal on 15 July 2019. On 26 July 2022, the Tribunal wrote to the applicant pursuant to s 359(2) of the Migration Act 1958 (the Act). The letter invited the applicant to provide information in writing that will demonstrate the applicant meets all the requirements of reg 5.19(4).

6. On 12 September 2022, the applicant submitted documentary evidence and submissions. The list of documents submitted to the Tribunal is attached to this decision record as Attachment A.

7. On 9 February 2023, the Tribunal wrote to the applicant advising that it had considered the material before it and was unable to make a favourable decision on this material alone and invited the authorised person to appear before the Tribunal on behalf of the nominating business at a video hearing on 23 March 2023. With the hearing invitation letter, the Tribunal invited the applicant to provide specific documentary evidence.

8. On 16 March 2023, the applicant submitted documentary evidence and submissions. The list of documents submitted to the Tribunal is attached to this decision record as Attachment B.

9. Under s.360(2)(a) of the Act the Tribunal considered that it should decide the review in the applicant’s favour based on the material before it.

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. 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 reg 5.19(4), which is extracted in the attachment C to this decision. For the nomination to be approved, all the requirements must be met.

    The application is compliant: reg 5.19(4)(a)

11. 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 an identified person as a paid employee to work in the position under their direct control.

12. From the material on the Department’s and the Tribunal’s files, the Tribunal is satisfied that the nomination application was made on the approved form. The application relates to a visa in a Direct Entry stream seeking to meet the requirements in the Regional Sponsored Migration Scheme and consequently no fee is payable (r.5.37(3)(b)). The applicant provided the relevant s.245AR(1) certification.

13. The Tribunal is of the view that the reg. 5.19(4)(a) is directed towards requirements of the administrative process and that a simple statement or certification is sufficient to meet r 5.19(4)(a)(ii). Although the qualitative aspects of the nomination will be considered under reg. 5.19(4)(h)(ii)(B), the Tribunal observes that evidence has been presented to the Tribunal, regarding how the position was needed. The fact the nominee has been employed in the role since October 2017, is sufficient to demonstrate the need for the nominating business to employ a paid employee to work in the position under their direct control.

14. The Tribunal is therefore satisfied that the nomination application identified a need for the applicant to employ a paid employee to work in the nominated position of Primary Products Inspector in the business, under its direct control.

15. The requirements of r.5.19(2) and consequentially r.5.19(4)(a)(i) are therefore satisfied.

    Nominator is actively and lawfully operating a business in Australia: reg 5.19(4)(b)

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

17. The Tribunal is satisfied from the detailed documents provided to it, including the applicant’s recent financial statements, Business Activity Statements (BAS) and its current ASIC and ABN registration, that it is actively, lawfully and directly operating a business in Australia.

18. Accordingly, the Tribunal finds that the requirement in r.5.19(4)(b) is met.

    Position is not labour hire: reg 5.19(4)(c)

19. 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.

20. There is no evidence before the Tribunal to suggest that the applicant is involved in labour-hire activities.

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

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

22. 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.

23. The Tribunal has had regard to the employment contract between the parties dated 8 September 2022. The contract confirms the nominee will be employed on a full-time basis for at least two years and that the employment contract does not expressly exclude the possibility of extending the period of employment. The annual salary was set to be $56,212 excluding superannuation.

24. The Tribunal has had regard to the documents provided on review, including the business activity statements (BAS) for the period from July 2022 to December 2022. The Tribunal notes that the total sales exceeded $430,00 in the October to December 2022 quarter. The Tribunal is satisfied on the totality of the evidence that the applicant has the financial capacity to maintain the nominee’s salary as they have been doing since 2017.

25. The Tribunal is satisfied on the material before it that the nominee will be employed on a full‑time basis for at least two years on terms that do not exclude the possibility of extending the period of employment.

26. Accordingly, the requirement in reg 5.19(4)(d) is met.

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

27. 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.

28. The evidence before the Tribunal indicates that the nominee’s base salary is $56,212. Based on the evidence before it, the Tribunal is satisfied that there is no Australian performing equivalent work as Primary Products Inspector at the same location.

29. The applicant provided submissions regarding the nominee’s salary and how it is no less favourable than what would apply to an Australian citizen or an Australian permanent resident performing equivalent work at the same location. The submission contained reference to the salary surveys from PayScale and Talent.com indicating an average salary in Australia of $55,000

30. The Tribunal is satisfied that the terms and conditions 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 same location.

31. Accordingly, the requirements of reg 5.19(4)(e) are met.

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

32. 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 regs 1.13A and 1.13B.

33. There is no information before the Tribunal to indicate that there is adverse information known to the Department about the nominator or an associated person.

34. Accordingly, the requirements of reg 5.19(4)(f) are met

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

35. 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.

36. There is no evidence before the Tribunal that Fair Work or any other government agency has taken action against the applicant in relation to workplace relations laws. As such, the Tribunal is satisfied that the applicant has satisfactorily complied with workplace relations laws.

37. Accordingly, the requirements of reg 5.19(4)(g) are met.

    Tasks of the position, genuine need for the position and training requirements reg 5.19(4)(h)

38. 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 that:

    ·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 instrument, occupation is applicable to the proposed employee in accordance with any specifications made in that instrument, there is a genuine need for the nominee to be employed as a paid employee in the position, and certain specified training requirements are met; or

    ·the position and nominator’s business is located in regional Australia, there is a genuine need for the nominee to be employed as a paid employee in the position under the nominator’s direct control, the position 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.

39. The Tribunal is satisfied that the position and the nominator’s business are in regional Australia, as the postcode of 2450 in Bucca, NSW was specified as regional Australia in the relevant written instrument. The applicant must therefore meet the requirements of the second dot point above. As the position and the applicant are in regional Australia, the Tribunal is satisfied that reg 5.19(4)(h)(ii)(A) and (E) are met.

40. The Tribunal is further satisfied that the applicant has a genuine need for the paid position, and that it is under the nominator’s direct control. The Tribunal accepts that the nominee commenced her full-time employment in October 2017 and has been employed by the applicant as a Primary Products Inspector (fruit inspector) for more than five years. This fact of itself is a strong indicator of the need for the nominating business to employ a paid employee to work in the position under their direct control.

41. In his letter of 16 March 2023, Mr Aaron Singh stated that, at the time of nomination application, the business planted 17 acres with 12 greenhouses and were growing only blueberries. Since 2017, the business expanded, and it currently operates 36 greenhouses with blueberries and cucumbers plants.

42. The Tribunal accepts that Mr Singh’s parents are no longer able to work full-time on the farm due to their age. It was further submitted that fruit and vegetable production in Australia is strictly regulated and must comply with various food safety requirements (including the Fresh Care and Harps certifications). Failure to do so would result in major stores like Coles and Aldi refusing to take the business products.

43. In addition, the relevant Regional Certifying Body (RCB), being the Regional Development Australia – Mid-North coast, certified on 20 December 2017 that that there was a need for a paid employee in the nominated position within the business activities of the nominating employer.

44. Based on the evidence before it, including the applicant’s statement of 16 March 2023, and evidence of the nominee’s employment since October 2017, the Tribunal is satisfied that the applicant’s business has a genuine need for the nominated role, and is therefore satisfied that reg 5.19(4)(h)(ii)(B) is met.

45. The Tribunal finds that relevant RCB certified on in December 2017 that the position could not be filled by an Australian citizen or permanent resident living in the same local area, and that its terms and conditions of employment were no less favourable than those that are or would be provided to an Australian employee. It is therefore satisfied that reg 5.19(4)(h)(ii)(F) is met.

46. Based on the certification above and documentary evidence highlighting current and significant labour shortages in regional Australia and provided by the applicant, the Tribunal accepts that the position cannot be filled by a locally resident Australian citizen or permanent resident. It is therefore satisfied that reg 5.19(4)(h)(ii)(C) is met.

47. The occupation proposed by the applicant was Primary Products Inspector (fruit inspector) which has the six-digit ANZSCO code 311399, and which is specified in the relevant instrument. The applicant has submitted detailed description of the tasks and duties undertaken by the nominee, who holds the relevant qualifications for her occupation that are obtained in Australia.

48. Based on the evidence before it, including the detailed job description, the Tribunal is satisfied that the majority of the tasks of the nominated position correspond with those of the ANZSCO occupation of a Primary Products Inspector. The Tribunal is therefore satisfied that reg 5.19(4)(h)(ii)(D) is met.

49. Based on the findings above, the Tribunal is satisfied that the applicant meets the requirements of reg 5.19 for approval of the nomination of the position in Australia.

    DECISION

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

    Antonio Dronjic
    Member

    
    

    Attachment A Document List

    ·ABN Historical Details for A SINGH & KS SINGH.

    ·ABN Current Details for A SINGH & KS SINGH.

    ·ATO evidence of two named partners A SINGH & KS SINGH.

    ·Tax Returns for FY 2021 and FY 2020.

    ·Financial Statements for year ending 30 June 2021.

    ·Financial Statements for year ending 30 June 2020.

    ·Business activity statement July 2021 to June 2022.

    ·Partnership ledgers for 2021.

    ·Receipts from Manz Greenhouse supplies & services Pty Ltd dated 20 July 2022.

    ·Images of farm and nominee at work undated.

    ·Organisation Chart undated.

    ·Employee contract and position description dated 8 September 2022.

    ·Harjit Kaur letter of offer dated 28 June 2021.

    ·Harjit Kaur notice of assessment for FY 2021.

    ·Harjit Kaur tax returns for 2019 and 2020.

    ·Harjit Kaur Diploma and Certificate III in Horticulture dated 18 July 2016.

    ·Harjit Kaur work samples undated.

    ·Evidence of salary research undated.

    ·Comparative job advertisements undated.

    Attachment B: Document List

    ·Statement from Aaron Singh (nominator) dated 16 March 2023.

    ·Business activity statements from July to December 2022.

    ·ATO evidence of superannuation payment from A Singh and KS Singh to Harjit Kaur dated 19 October 2017 to 30 June 2018.

    ·Harjit Kaur CommBank superannuation statement dated 1 July to 30 December 2022.

    ·Payslips for Harjit Kaur dated 24 February to 3 March 2023.

    ·Harjit Kaur work samples undated.

    ·Home Affairs Minister report addressing skill shortage undated.

    ·News article relating to skills shortage dated February 2023.

    ·THE FARMER article regarding the skills shortage in agriculture dated November 2022.

    ·Department of Agriculture Fisheries and Forestry survey results dated 15 March 2023.

    ATTACHMENT  - C 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 an identified person, as  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)       all 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;

    (AA)there is a genuine need for the nominator to employ the person identified under subparagraph (a)(ii), as a paid employee, to work in the position under the nominator’s direct control;

    (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 the person identified under subparagraph (a)(ii), as 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).