Adams and Jones Real Estate Pty Ltd ATF CDare Unit Trust (Migration)

Adams and Jones Real Estate Pty Ltd ATF CDare Unit Trust (Migration) [2021] AATA 1673 (14 April 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Adams and Jones Real Estate Pty Ltd ATF CDare Unit Trust
CASE NUMBER:  1815812
HOME AFFAIRS REFERENCE(S):          BCC2016/3020165
MEMBER:Glenn O’Brien
DATE:14 April 2021
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Statement made on 14 April 2021 at 11:55am
CATCHWORDS
MIGRATION – Employer Nomination – approval of nominated position – Direct Entry Nomination – Marketing Specialist – identification of need – assessment of the applicant’s stated reasons – position cannot be filled locally – Chinese language skills requirement – building long-term relationships with the Chinese market – decision under review set aside
LEGISLATION
Migration Regulations 1994 (Cth), r 5.19
CASES
Bharaj Construction Pty Ltd v MIBP (No 3) [2019] FCCA 31
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 Home Affairs on 22 May 2018 to reject the applicant’s application for approval of the nomination of a position in Australia under r.5.19 of the Migration Regulations 1994 (the Regulations).
The applicant applied for approval on 12 September 2016. 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).
In this case, the applicant has applied for approval of a nomination, seeking to satisfy the criteria in the Direct Entry nomination stream.
The applicant provided the Tribunal a copy of the delegate’s decision record with the application for review. The delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19(4)(a)(ii) of the Regulations because the delegate was not satisfied the nominator had identified a need to employ a paid employee to work in the position under the nominator’s direct control.
Mr Scott Gooderham, a director appeared before the Tribunal on 10 March 2021 to give evidence and present arguments. The Tribunal also received oral evidence from the nominee, Ms He Zhang.
The applicant was represented in relation to the review by its registered migration agent.
For the following reasons, the Tribunal has decided to set aside the decision under review and substitute a decision approving the nomination.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant meets the requirements for approval of the nomination under the Direct Entry nomination stream set out in r.5.19(4), which is extracted in the attachment to this decision. For the nomination to be approved, all the requirements must be met.
The application is compliant: r.5.19(4)(a)
Regulation 5.19(4)(a) requires that the application for approval must be in the approved form, must be accompanied by the prescribed fee, and, where applicable, must include the required written certification relating to conduct that contravenes s.245AR(1). The application must also identify a need for the nominator to employ a paid employee to work in the position under their direct control.
On the basis of the evidence before the Tribunal, the Tribunal is satisfied the nomination application was made using the relevant online form accompanied by the prescribed fee. As the nominated position is located in regional Australia no fee is payable. In completing the application, the required certification in relation to s.245AR(1) of the Migration Act 1958 (the Act) and the required identification of a need to employ a paid employee to work in the nominated position under the nominator’s control were provided in the application form.
The delegate refused the nomination application on the basis that the nominator did not demonstrate a need for the nominator to employ a paid employee to work in the position under the nominator’s direct control.
This sub-regulation relates to the compliance of the application with the Regulations and a number of matters that must be set out in the application. The delegate must still be satisfied the requirements of the sub-regulation have been met. That will require an assessment of the applicant’s stated reasons to determine whether or not an applicant has in fact established an identified need as opposed to a mere declaration by the applicant that such a need exists. To interpret otherwise would suggest that, provided reasons for a need are set out in an application by a nominator, irrespective of the veracity of them, the requirement would be satisfied. The Tribunal does not accept that proposition.
However, as the nominated position is in regional Australia, the Tribunal considers it more appropriate to consider the need for the position in the context of whether or not there is a genuine need for the nominator to employ a paid employee to work in the position under the nominator’s direct control pursuant to r.5.19(4)(h)(ii)(B).
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 applicant provided the Tribunal various documents including ASIC extracts, financial records and accounts and other commercial information. The applicant company was registered on 23 January 2004. The applicant made substantial losses in the financial years ending 30 June 2016 and 2017. Mr Gooderham told the Tribunal the business separated from a larger group in 2016 and inherited a number of losses. The more recent accounts indicate the applicant business has recorded profits since 2018 and Mr Gooderham told the Tribunal that notwithstanding the impacts of COVID-19 turnover in 2020 was approximately $1.92 million.
Notably, the applicant does not currently appear registered for GST notwithstanding the BAS Statements provided indicate GST is accounted for on an accrual basis.
On reviewing the financial information provided by the applicant, the Tribunal is satisfied the applicant is actively, lawfully and directly operating a business in 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 has considered the employment contract between the applicant and the nominee dated 9 December 2020. The applicant told the Tribunal the nominee has been employed since November 2016. The contract provides for the nominee’s direct employment by the applicant in the role of Marketing Specialist.
Accordingly, the requirement in r.5.19(4)(c) does not apply.
Term of employment of the visa holder: r.5.19(4)(d)
Regulation 5.19(4)(d) requires the nominee to be employed in the nominated position for at least two years full time, and the terms and conditions of that employment do not expressly exclude the possibility of an extension.
The Tribunal had regard to the evidence of the applicant indicating the nominee will be employed for a minimum of two years after the date of the grant of her Subclass 187 visa. Further, the Tribunal had regard to the financial records provided to the Tribunal and the revenue generated since 2016. Notably, the nominee has been in the employ of the nominator since 2016. The Tribunal is satisfied that there is no information before the Tribunal that the applicant would not be in a financial position to employ the nominee for at least two years.
Accordingly, the requirement in r.5.19(4)(d) is met.
No less favourable terms and conditions of employment: r.5.19(4)(e)
Regulation 5.19(4)(e) requires that the terms and conditions of employment applicable to the nominated position will be no less favourable than those that are, or would be, provided to an Australian citizen or permanent resident performing equivalent work in the same workplace at the same location.
The applicant’s current contract of employment indicates the nominee is paid $2,211.54 per fortnight equating to approximately $57,500 plus superannuation per annum.
Having regard to documentation provided, the Tribunal is satisfied that the terms and conditions of employment 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.
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 of adverse information contained in the Department file, or before the Tribunal, about the applicant or a person associated with the applicant.
Accordingly, the requirements of r.5.19(4)(f) are met.
Satisfactory compliance with workplace relations laws: r.5.19(4)(g)
Regulation 5.19(4)(g) requires that the applicant has a satisfactory record of compliance with the laws of the Commonwealth, and of each State or Territory in which the applicant operates a business and employs employees in the business, relating to workplace relations.
There is no evidence before the Tribunal suggestive of the applicant not having a satisfactory record of compliance with Commonwealth or State workplace relations laws.
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 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 (see legislative instrument IMMI 083/15), the occupation is applicable to the proposed employee in accordance with any specifications made in that instrument, and specified training requirements are met; or
·the position and nominator’s business is located in regional Australia, there is a genuine need for the paid position under the nominator’s direct control which cannot be filled by a locally resident Australian citizen or permanent resident, the tasks of the position correspond to those of an occupation 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.
The nominated position of Marketing Specialist is located in Minyama, Queensland. The term ‘regional Australia’ was defined in r.5.19(7) of the Regulations to mean a part of Australia specified by the Minister in an instrument in writing for this definition. Although IMMI 17/059 was repealed by the current legislative instrument IMMI 18/037, the current legislative instrument only applies to nominations lodged on or after 18 March 2020.
In those circumstances, the Tribunal is satisfied that both the position and the business operated by the applicant are located in regional Australia and the requirements in r.5.19(4)(h)(ii)(A) and r.5.19(4)(h)(ii)(E) are met.
The duties of the nominated position of Marketing Specialist (ANZSCO 225113) correspond to those of an occupation specified by the Minister in the relevant instrument and set out in Unit Group 2251 as follows:
UNIT GROUP 2251 ADVERTISING AND MARKETING PROFESSIONALS
ADVERTISING AND MARKETING PROFESSIONALS develop and coordinate advertising strategies and campaigns, determine the market for new goods and services, and identify and develop market opportunities for new and existing goods and services.
Indicative Skill Level:
In Australia and New Zealand:
Most occupations in this unit group have a level of skill commensurate with a bachelor degree or higher qualification. At least five years of relevant experience may substitute for the formal qualification. In some instances relevant experience and/or on-the-job training may be required in addition to the formal qualification (ANZSCO Skill Level 1).
Tasks Include:
oplanning, developing and organising advertising policies and campaigns to support sales objectives
oadvising executives and clients on advertising strategies and campaigns to reach target markets, creating consumer awareness and effectively promoting the attributes of goods and services
ocoordinating production of advertising campaigns involving specialised activities, such as artwork, copywriting, media scripting, television and film production and media placement, within time and budget constraints
oanalysing data regarding consumer patterns and preferences
ointerpreting and predicting current and future consumer trends
oresearching potential demand and market characteristics for new goods and services and collecting and analysing data and other statistical information
osupporting business growth and development through the preparation and execution of marketing objectives, policies and programs
ocommissioning and undertaking market research to identify market opportunities for new and existing goods and services
oadvising on all elements of marketing such as product mix, pricing, advertising and sales promotion, selling, and distribution channels
Occupations:
225111 Advertising Specialist
225112 Market Research Analyst
225113 Marketing Specialist
225113 MARKETING SPECIALIST
Alternative Titles:
Marketing Consultant
Marketing Coordinator
Marketing Officer
Identifies market opportunities and advises on the development, coordination and implementation of plans for pricing and promoting an organisation's goods and services.
Skill Level: 1
While there is a distinction in the Regulations for nominations made in regional Australia in terms of whether there is a genuine need for the position, the Tribunal must still be satisfied under r.5.19(4)(h)(i)(A) that the tasks to be performed in the position correspond to the tasks of an occupation specified by the Minister in the relevant instrument.
The position description provided by the applicant corresponds with the tasks as set out in ANZSCO. Based on the evidence provided and having regard to the tasks of a Marketing Specialist as set out in ANZSCO, the Tribunal is satisfied that the tasks of the nominated position with the company correspond to the specified occupation of Marketing Specialist (ANZSCO 225113) and that this is a specified Skill Level 1 position.
The Tribunal was however concerned in relation to whether or not the position cannot be filled by an Australian citizen or permanent resident who is living in the same local area as that place.
Mr Gooderham appeared frustrated in relation to the Tribunal’s questioning and expressed the view that the nominee had developed the role and was an integral part of his business. The Regulations set out the requirements for the approval of the nomination which brings with it certain rights to the nominee including permanent residency and the Tribunal (and delegate) is required to be satisfied of those criteria.
The position was advertised and one of the required skills was Chinese language skills which is likely to have limited the number of candidates qualified for the position. Mr Gooderham told the Tribunal that a substantial part of the business was in relation to Chinese investment, both in relation to residential purchase and property development. This however has changed due to various policy factors both in China and Australia and more recently COVID-19. Mr Gooderham conceded there had been “absolutely zero” Chinese investment in the last two years and that he had only travelled to China twice in the last four years.
Mr Gooderham however told the Tribunal that it is about building long-term relationships with the Chinese and that he would travel to China again once the restrictions relating to COVID-19 were lifted. Mr Gooderham and the nominee gave evidence of the tasks of the position which included the maintenance of different media channels, the development of marketing materials, flyers, brochures, and video production. The nominee also undertook research in relation to the Chinese market, and customer preferences.
Neither Mr Gooderham nor the nominee were able to provide an indication as to how much of the nominee’s work was dedicated to the Chinese market or the Australian domestic market.
In this case it is a fine balance. At the time of the nomination, the position was focussed on the Chinese market. However, over time, and with various changes to investment and COVID-19 the position is not as specific and is focussed domestically, which has less reliance upon the specific Chinese language skills and market knowledge of the nominee within the nominated position for which she was recruited. The Tribunal is required to consider these requirements at the time of its decision not at the time of nomination.
The Tribunal however accepts that COVID-19 has restricted the ability of the applicant to engage with the Chinese market and is satisfied that the applicant continues to pursue these opportunities which may be enlivened after the current travel restrictions are lifted. The nominee’s evidence was that she continued to utilise her specific skills in relation to research and the development and production of marketing material. The Tribunal is therefore satisfied that the position cannot be filled by an Australian citizen or permanent resident who is living in the same local area as that place.
The Tribunal is also satisfied that a regional certifying body (RCB) located in Queensland has advised the Minister about the matters set out in r.5.19(4)(e) and r.5.19(4)(h)(ii)(B) and (C) of the Regulations. Consistent with the Federal Circuit Court of Australia decision in Bharaj Construction Pty Ltd v MIBP (No 3) [2019] FCCA 31, certification is not sufficient or determinative of the matters set out in the subject regulations. Accordingly, the Tribunal, while having regard to the advice provided by the RCB, has reached its own conclusions about the matters the subject of the RCB advice for the reasons set out herein.
Accordingly, the requirements of r.5.19(4)(h) are met.
Based on the findings above, the Tribunal is satisfied that the applicant meets the requirements of r.5.19 for approval of the nomination of the position in Australia.
DECISION
The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.
Glenn O’Brien
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).

[2021] AATA 1673

14 April 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Statutory Construction

Procedural Fairness

Jurisdiction