Allworthy Pty Ltd t/as the P.E.G. Family Trust (Migration)

[2021] AATA 600

Allworthy Pty Ltd t/as the P.E.G. Family Trust (Migration) [2021] AATA 600 (21 January 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Allworthy Pty Ltd t/as the P.E.G. Family Trust

CASE NUMBER:  1813093

HOME AFFAIRS REFERENCE(S):          BCC2017/1745267

MEMBER:Peter Emmerton

DATE:21 January 2021

PLACE OF DECISION:  Adelaide

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

Statement made on 21 January 2021 at 11:36am

CATCHWORDS
MIGRATION – Employer Nomination – approval of nominated position – Direct Entry Nomination – Baker – financial capacity to maintain term of employment – substantially more evidence before the Tribunal – net profit growth – tasks of position correspond with specified occupation – decision under review set aside

LEGISLATION
Migration Regulations 1994 (Cth), r 5.19

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 2 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).

2. The applicant applied for approval on 16 May 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 delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19(4)(d)(i) nor 5.19(4)(h)(i)(A) of the Regulations because it was not demonstrated that the employee will be employed on a full time basis in the position for at least 2 years. Nor was it demonstrated that the nominee would be employed in a nominated position corresponding to an occupation specified in an instrument in writing for 5.19(4)(h)(i)(A).

5. The applicant was represented in relation to the review by its registered migration agent.

6. 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

7. 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.

8. In determining the applicant’s claims the Tribunal must first make findings of fact on material matters in dispute.  This may involve an assessment of credibility and in so doing, the Tribunal is aware of the need and importance of being sensitive to the circumstances and the difficulties applicants often face before the Tribunal in their individual circumstances.

9. The applicants rely on the evidence given before the Tribunal together with written submissions and supporting evidence provided to the Tribunal and previously to the department.

10. The nominating entity runs a substantial retail Bakery business in New South Wales, Australia.

11. The visa applicant’s substantial responsibilities, previous experience, formal qualifications and attributes, align with the duties associated with a Baker, ANZSCO 351111.

12. The visa applicant possesses a Certificate lll in Retail Baking (Bread) and a Certificate lV in Patisserie, both achieved in Australia.

13. The Tribunal is cognisant of the challenges associated with recruiting and retaining suitably experienced staff working in the rapidly expanding Bread and Baking industry.

    The application is compliant: r.5.19(4)(a)

14. 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.

15. The Tribunal finds that the application was lodged electronically using the elodgement facility and the prescribed fee was paid. The Tribunal finds the applicant meets r.5.19(2).

16. The Tribunal notes that the business is operating on a substantial and growing staffing ratio of 25 personnel. There are 6 baking staff as a result of the substantial size of the retail business. The 7 day per week nature of the daily fresh bread and bakery industry requires an operation of this size to employ a substantial number of bakers in order to cover the multiple shifts needed to produce fresh product in a timely manner. The Tribunal acknowledges that finding and subsequently retaining such individuals may be challenging. It is also aware that there have been reports of moderately high staff churn in this industry due to the production pressures and the counter cyclical shift work hours.

17. The Tribunal is satisfied that the application has identified a need for a paid employee to work in the position of Baker, ANZSCO 351111, under direct control of the nominator. The application has included the required written certification relating to conduct that contravenes s.245AR(1) 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)

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

19. The Tribunal has been provided with a range of Profit and Loss Statements and ATO Taxation information, (2019-2020), all of which correlated.

20. ASIC Registration details were researched by the Tribunal for this business entity. The Tribunal checked the status of the listed ABN and perused the company web site. The Tribunal is satisfied that 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)

21. Regulation 5.19(4)(c) applies to nominators whose business activities include those relating to labour hire to an unrelated business. In these cases, the nominated position must be within the business activities of the nominator. The Tribunal finds that r. 5.19(4)(c) is not relevant to the current nomination.

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

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 notes that that this one of the grounds upon which the delegate refused the application. The delegate had formed a view that the applicant’s nomination did not satisfy r.5.19(4)(d)(i) as they were not satisfied that the nominator had demonstrated that the nominee would be employed on a full-time basis for at least 2 years under the direct control of the nominator. The delegate formed this view because they believed that insufficient evidence was provided to demonstrate the financial capacity of the nominator to undertake the requirements of r.5.19(4)(d)(i).

24. The Tribunal has formed a different view having considered substantially more evidence presented to it, than was given to the delegate at the time of their decision. The Tribunal notes that more than 3.5 years have passed following the submission of the original application, during which time the nominee has been continuously employed in his role and the financial stability of the organisation is more able to be demonstrated. It also observes that the financial position for the group for FY 2020 which has been provided, is substantial with a growing profit.

25. The Tribunal accepts as fact that the business has not been negatively impacted as a direct result of Covid-19 and the financial documentation provided shows a net profit growth of 7% for FY 2020 on top of FY 2019. Revenue growth between FY 2019 and FY 2020 was 15%. The growing financial stability of the nominating entity in an ever increasingly competitive market, attests to its’ ability to employ the visa applicant. The niche market in which it operates also adds an additional potential level of resilience. 

26. The Tribunal has had regard to the Employment Agreement and position description. It is satisfied that the nominee will be appointed for a period of at least 2 years employment from grant of visa and the terms of employment do not include an express exclusion of the possibility of extending the period of employment.

27. The Tribunal observes that one of the potential challenges facing the business is retaining the visa applicant and the nominator’s obvious reliance upon their services. This is particularly evident when considering the acknowledged challenges associated with recruiting and retaining similar individuals in a highly mobile industry operating in a large conurbation.

28. The Tribunal is aware that the associated workforce is relatively mobile. The specialist skills associated with this type of operation are highly sought after and readily transferred between competing businesses. There is a strong network which operates within this industry which has the effect of making it easy to poach valuable staff.

29. The Tribunal is satisfied that the business will be able to sustainably, employ the nominee for the required 2-year minimum period therefore r.5.19(4)(d) is met.

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

30. 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.

31. The Tribunal has been provided with the visa applicant’s most recent updated employment contract dated 10 November 2020. The Tribunal accepts that the nominee’s current annual salary of $62,000 plus Superannuation at the rate of 9.5% as reflective of their qualifications and experience.

32. The Tribunal researched the salaries offered for similar positions and had regard for the salary determination evidence provided by the applicant. The remuneration appears to fall within the mid quartiles of similar positions on offer. It is satisfied that the terms and conditions of employment are equivalent to other employees with the same experience performing equivalent work in the same workplace or a similar workplace. Accordingly, the requirements of r.5.19(4)(e) are met.

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

33. Regulation 5.19(4)(f) requires that there is no adverse information known to Immigration about the nominator or person associated with the nominator; or it is reasonable to disregard any such information. For these purposes, ‘adverse information’ and ‘associated with’ have the meaning given in rr.1.13A and 1.13B. There is no evidence before the Tribunal that the applicant has anything but a satisfactory record of compliance with the immigration laws of Australia. Accordingly, the requirements of r.5.19(4)(f) are met.

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

34. Regulation 5.19(4)(g) requires that the applicant has a satisfactory record of compliance with the laws of the Commonwealth, and of each State or Territory in which the applicant operates a business and employs employees in the business, relating to workplace relations. The Tribunal notes that there is no evidence before the Tribunal that the applicant has anything but a satisfactory record of compliance with workplace relations law in Australia. Accordingly, the requirements of r.5.19(4)(g) are met.

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

35. Regulation 5.19(4)(h) contains alternative requirements. These are set out in detail in the attachment to the decision. As stated above the nomination was made under the Direct Entry stream and the Tribunal has proceeded to assess the application against the criteria in r.5.19(4)(h)(i) which require that:

    ·the tasks will be performed in Australia and correspond to the tasks of an occupation specified in the relevant instrument (see ‘Occ’ tab of the Register of Instruments - Business Visas), whether any additional applicability requirements for that occupation are met and whether the nominator either:

    ·meets the training requirements specified in the relevant instrument (if the business has operated for over 12 months) (see ‘Training’ tab in ‘Register of Instruments – Business visas); or

    ·has an auditable plan for meeting the training requirements, (if the business has operated for less than 12 months)

36. The Tribunal notes that r.5.19(4)(h)(i) was stated as one of the reasons the delegate was not satisfied that the nominator met the requirements of the visa. The Tribunal has formed a different view with the assistance of considerably more evidence being provided to it than was afforded the delegate at the time of their decision.

37. The Tribunal is satisfied that the tasks will be performed in Australia and that the business has operated in excess of 12 months.

38. The Tribunal has analysed the role description provided by the nominator both as a separate document and as contained in the nominee’s employment contract. This is in addition to perusing the current Organisation Chart which clearly specifies the role undertaken by the nominee. It has also taken into consideration the Resume’ of the nominee, his period of employment with the nominator and his professional qualifications. The Tribunal is satisfied that the tasks stated in the role description correspond to tasks of an occupation specified in the relevant instrument contained in the Register of Instruments, 16/059. It has perused relevant current payroll data and is satisfied that the nominee is undertaking the employment role as stipulated in the employment contract.

39. The most recent Standard Business Sponsorship, (SBS) approval was awarded to the nominating entity on 2 September 2020. As this SBS was approved after 18 March 2018 there are no training obligations nor commitments required to be made for the purpose of satisfying the sponsorship approval criteria. Therefore, the Tribunal finds that the requirement has been satisfied.

40. The Tribunal finds that r.5.19(4)(h)(i) is satisfied, therefore r.5.19(4)(h) is satisfied.

41. 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

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

    Peter Emmerton

    
    

    Member

    ATTACHMENT  -  EXTRACTS FROM THE MIGRATION REGULATIONS 1994

    5.19Approval of nominated positions (employer nomination)

    …

    (2)The application must:

    (a)be made in accordance with approved form 1395…; and

    (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 le ast 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).