Alpine Falls Pty Ltd (Migration)

Alpine Falls Pty Ltd (Migration) [2020] AATA 4520 (26 October 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Alpine Falls Pty Ltd
CASE NUMBER:  1806121
HOME AFFAIRS REFERENCE(S):          BCC2016/3765451
MEMBER:Peter Emmerton
DATE:26 October 2020
PLACE OF DECISION:  Adelaide
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Statement made on 26 October 2020 at 12:28pm
CATCHWORDS
MIGRATION – application for approval of nomination of position – direct entry nomination stream – need for position – specialised tasks and certification – site and office tasks – attempts at recruitment – long-term employment – skill level – decision under review set aside
LEGISLATION
Migration Regulations 1994 (Cth), r 5.19(4)(a)(ii)
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 15 February 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 10 November 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 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 that the nominator had demonstrated a need for a paid employee to work full-time in the position under the direct control of the nominator.
The applicant, represented by Mr Stanley Kevin Burke, Director, appeared before the Tribunal on 26 October 2020 in a combined telephone hearing with MRT file ref.1808911 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Rohit Sharma, the visa applicant. The Tribunal found those presenting evidence credible, and they appeared to answer questions in an open and honest manner without obfuscation.
The Tribunal exercised its discretion to hold the hearing by telephone. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, 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.
The applicant was represented in relation to the review by its’ registered migration agent.
For the following reasons, the Tribunal has decided to set aside the decision under review and substitute a decision approving the nomination.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant meets the requirements for approval of the nomination under the Direct Entry nomination stream set out in r.5.19(4), which is extracted in the attachment to this decision. For the nomination to be approved all the requirements must be met.
In determining the applicant’s claims the Tribunal must first make findings of fact on material matters in dispute. This may involve an assessment of credibility and in so doing, the Tribunal is aware of the need and importance of being sensitive to the circumstances and the difficulties applicants often face before the Tribunal in their individual circumstances.
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.
The nominating entity runs a substantial, privately owned international building cleaning and rope access company based in Perth, Western Australia. The total number of staff employed is approximately 16 with the utilisation of 4 outsourced organisations to provide administrative functions. The nominator stated at the hearing that staff recruitment is their biggest challenge and they are current 2-3 employees short of their desired head count.
The visa applicant’s substantial responsibilities, previous experience, current years of management responsibilities, formal qualifications and unique attributes, clearly align with the duties associated with a Program or Project Administrator, ANZSCO 511112 as undertaken in this unique industry.
The visa applicant possesses an Advanced Diploma of Management obtained in Australia.
The Tribunal is cognisant of the challenges associated with recruiting and retaining suitably experienced management and staff working in relatively remotely located businesses with limited opportunities for advancement. It is also sympathetic to the need for this business to have additional expertise unique to its’ field of expertise. In particular an understanding of the challenges of employees working at considerable heights in potentially highly dangerous situations if projects being undertaken are not correctly managed. The Tribunal notes that the visa applicant accompanies the work teams on site, assisting and instructing them whilst operating at substantial heights above ground level. This makes up approximately 50% of his role, the other 50% is spent in the office administering contracts and liaising with clients, staff and suppliers.
The Tribunal received and accepted evidence from the nominator of the recruitment process. This included details of the recruitment advertising in multiple on-line recruitment sites. The nominator’s internal and external business network was utilised but similarly unfruitful. The visa applicant was determined to be the only suitable candidate out of a large field of applicants. It is observed that the visa applicant was located in Melbourne at the time of recruitment and the Director travelled there to interview him.
The details of why other applicants were unsuitable was outlined in the original application and accessed by the Tribunal prior to the hearing and verified at the hearing. Whilst some of the other applicants had good office and administration skills none were Australian citizens. The vast majority did not have any of the main competencies required. Critically none of the applicants other than the visa applicant possessed the required International Rope access Trade Association (IRATA) qualifications and experience in abseiling certification. The Tribunal fully appreciates why this is a critical competency in relation to administration associated with potentially dangerous operations if a clear understanding of the risk factors is not fully understood and acted upon. Again, it notes that the visa applicant undertakes the mission critical task of abseiling and platform scaling of tall buildings with the work crews.
The Tribunal has noted the long-term employment status of the visa applicant, (4 years).
The Tribunal accepts that the employment contract does not include an express exclusion of the possibility of extending the period of employment beyond the initial 2-year minimum period with the provision for extension. The original employment contract dated 15 November 2016 stated the salary as $54,000 plus 9.5% Superannuation. The current salary is $80,000 plus Superannuation at 9.5%, as demonstrated by relevant ATO Tax documentation and evidence presented at the hearing.
The Tribunal perused popular employment web sites in order to ascertain the current state of the market in this field. The Tribunal observed a large number of related office administration vacancies, in a wide variety of locations and organisations currently under recruitment. The Tribunal is not without understanding of the considerable challenges associated with recruiting and retaining individuals with specialist knowledge required in this relatively isolated geographic location.
The Tribunal has formed the view that the specialist requirements of International Rope access Trade Association (IRATA) qualifications and experience and certification in abseiling would have made recruitment very difficult and retention critical for the organisation. The IRATA qualifications provide the visa applicant with access to the international market for roles requiring this set of competencies. The Tribunal is cognisant that many of the observed positions may appear to be equally or more attractive environments to some candidates than the nominated position and appreciates the market distortions created by the oil and gas industry and the mining cycles in Western Australia.
The Tribunal notes a satisfied RCB Certificate issued by the relevant certifying body. The date of the certificate is 1 December 2016.
The application is compliant: r.5.19(4)(a)
Regulation 5.19(4)(a) requires that the application for approval must be in the approved form, must be accompanied by the prescribed fee, and, where applicable, must include the required written certification relating to conduct that contravenes s.245AR(1). The application must also identify a need for the nominator to employ a paid employee to work in the position under their direct control.
The Tribunal finds that the application was lodged electronically using the e lodgement facility. The nomination was made under the RSMS Direct Entry stream (r.5.19(4)(h)(ii)) and consequently no fee is payable. The Tribunal finds the applicant meets r.5.19(2).
The Tribunal notes that the business is operating on a substantial staffing ratio to service a very specialised niche market. The Tribunal was provided with a range of documentation demonstrating the visa applicant’s tasks and current role prior to the hearing. The Tribunal accepts these as factual evidence.
The Tribunal is satisfied that the application has identified a need for a paid employee to work in the position of Contract Administrator, under direct control of the applicant. 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)
Regulation 5.19(4)(b) requires that the applicant is actively, lawfully and directly operating a business in Australia.
The Tribunal has been provided with a range of Profit and Loss Statements, ATO Tax Returns for FY 2017, 2018, and 2019, all of which correlated. The Tribunal also researched ASIC Registration details. It 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 regional Australia. Accordingly, the requirement in r.5.19(4)(b) is met.
Position is not labour-hire: r.5.19(4)(c)
Regulation 5.19(4)(c) applies to nominators whose business activities include those relating to labour hire to an unrelated business. In these cases, the nominated position must be within the business activities of the nominator. The Tribunal finds that r. 5.19(4)(c) is not relevant to the current nomination.
Term of employment of the visa holder: r.5.19(4)(d)
Regulation 5.19(4)(d) requires the nominee to be employed in the nominated position for at least 2 years full time, and the terms and conditions of that employment do not expressly exclude the possibility of an extension.
The Tribunal notes that the business appears to have very substantial revenues and proportionally aligned stable profit. The Tribunal notes a profit increase in excess of 30% from FY 2018 to FY 2019. The relevant ATO Tax Returns for the business clearly show that the revenues can sustain the ongoing employment of the visa applicant. The nominator stated that revenues and profit were initially impacted substantially by the Covid-19 pandemic but they have now recovered and FY 2021 will be similar to the FY 2019.
The Tribunal has had regard to the Employment Agreement and position description and also notes the ongoing remuneration substantially exceeds the originally agreed contract. 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.
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 critical, as the nominator requires some very specialised skills unique to the industry.
The Tribunal is aware that the workforce is highly mobile. The specialist skills associated with this type of operation are sought-after and readily transferable between competing businesses, frequently via industry networking. It is also cognisant of competitors cannibalising competing businesses and targeting their key staff in order to obtain a market advantage. The ongoing mining operations and oil and gas industry in the State of Western Australia, would in the view of the Tribunal provide additional stressors in relation to retaining employees and limiting staff churn.
The growth of the nominating entity in a competitive and complex market, coupled with evidence of the organisation having multiple income streams and business units attests to its’ ability to employ the visa applicant. 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)
Regulation 5.19(4)(e) requires that the terms and conditions of employment applicable to the nominated position will be no less favourable than those that are, or would be, provided to an Australian citizen or permanent resident performing equivalent work in the same workplace at the same location.
The Tribunal has been provided with the visa applicant’s employment contract. The Tribunal accepts that the nominee’s original stated annual salary was $54,000 plus Superannuation at the rate of 9.5%. Once again, the Tribunal notes from the tendered ATO documentation that the actual remuneration has considerably exceeded the contracted amount with both FY 18 and FY 19 remuneration exceeding $80,000. The Tribunal sees this as reflective of both their qualifications and experience.
The Tribunal researched the salaries offered for similar positions and had regard for the salary determination evidence provided by the applicant. The contracted remuneration appears to fall within the mid-quartiles of similar positions on offer, the actual remuneration falls in the upper quartile as a result of the specialist competencies. 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)
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)
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)
Regulation 5.19(4)(h) contains alternative requirements. These are set out in detail in the attachment to the decision. As stated above the nomination was made under the RSMS Direct Entry stream and the Tribunal has proceeded to assess the application against the criteria in r.5.19(4)(h)(ii) which require that:
·the position and nominator’s business are located in regional Australia;
·there is a genuine need for the paid position under the nominator’s direct control which cannot be filled by an Australian citizen or permanent resident;
·the tasks of the position correspond to those of an occupation at the ANZCO skill level 1, 2 or 3; and
·a regional certifying body has advised the Minister about certain matters relating to the position.
The Tribunal again notes that the business has a substantial staff of approximately 16 staff including the visa applicant, plus 4 contracted business services firms and outstanding vacancies for 2-3 employees.
It was likewise clear that a substantial degree of autonomy is afforded to this critical team member. The Tribunal has had regard to the substantial size and scope of the nominating entity’s diverse and expanding business operation. It is self-evident that the nominator cannot operate this business entity without a substantial and relatively self-contained, significant contract management and project administration structure in place. The Tribunal observes that the incumbent has been in the role for 4 years.
The Tribunal again reflects on the fact that the specialist requirements of International Rope access Trade Association (IRATA) qualifications and experience in abseiling would have made recruitment very difficult and retention critical for the organisation. It is clear from the evidence which has been presented, that this is an important role within the organisation. Not only does it have important administrative functions but in addition contributes to the overall safety of the staff engaged in a potentially risky exercise when scaling large multi-level buildings.
The Tribunal is satisfied that there is a genuine need for the nominator to employ a paid employee to work in the position under the nominator’s direct control.
Evidence presented to the Tribunal regarding the recruitment process included personal and professional networks, on-line job sites and proof of advertising in electronic media. The subsequent challenges of finding a suitably qualified and experienced individual in a relatively isolated regional setting with a limited talent pool were detailed by the nominator at the hearing and prior to the hearing. The Tribunal has formed the view that the specialist requirements of International Rope access Trade Association (IRATA) qualifications and experience in abseiling would have made recruitment very difficult and the talent pool very limited. The Tribunal acknowledges that there are a large number and range of related roles readily available throughout Australia. The demands of the job and the location may not have proven overly attractive to some candidates, further limiting the potential candidates.
The Tribunal is satisfied there is a genuine need for the paid position under the nominator’s direct control which cannot be filled by an Australian citizen or permanent resident.

The Tribunal observes that a substantially more comprehensive and complete evidence base was provided to it, than was presented to the delegate at the time of their decision.
The Tribunal is satisfied that the nominator’s business is located in regional Australia.
Regulation r.5.19(4)(h)(ii)(D), requires that the tasks to be performed in the position correspond to those at ANZSCO skill level 1, 2 or 3. The Tribunal has reviewed both the relevant descriptors supplied in ANZSCO 511112 for Program or Project Administrator and the stated duties of the visa applicant.
The Tribunal acknowledges that the ANZSCO descriptors are a guide, not a mandatory definitive reference.
This role would by necessity most likely lead to a substantial degree of autonomy and flexibility, as is reasonably expected of a Program or Project Administrator in an ANZSCO level 2 designated role. Whilst the visa applicant, would most likely report performance in all KPI areas via established systems and seek input from the Director or the Operations Manager of the business, this coincides with the Tribunal’s expectations of a Contract Manager reporting directly to the senior executive of a business. This autonomy would be further amplified by the interface between the visa applicant and work teams whilst all parties were working from substantial heights.
The Tribunal has concluded that a Program or Project Administrator is required to oversee the myriad of contracts central to the business as well as administration and coordination of the many project teams and does operate largely in-line with the ANZSCO 511112 specifications.
The Tribunal notes business related documents, which acknowledge the visa applicant’s designation, which coincides with the complete Organisation Chart and the statements made in the hearing. It also observes the statements regarding the role he occupies provided by the Director.
The position of Program or Project Administrator, ANZSCO 511112, nominated by the applicant is designated by ANZSCO as a skill level 2 position and the Tribunal is satisfied that the visa applicant is operating at that level.
The Tribunal is satisfied that the applicant meets 5.19(4)(h)(ii).
The Tribunal has had regard to Form 1404 issued by an RCB (Skilled Migration WA Department of Training and Workforce Development), dated 1 December 2016 and is satisfied that the applicant has advised the Minister about matters relating to the terms and conditions of employment, the genuine need for the position and that the position cannot be filled locally.
Based on the findings above, the Tribunal is satisfied that the applicant meets the requirements of r.5.19 for approval of the nomination of the position in Australia.
DECISION
The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.
Peter Emmerton

Member
ATTACHMENT - EXTRACTS FROM THE MIGRATION REGULATIONS 1994
5.19Approval of nominated positions (employer nomination)
…
(2)The application must:
(a)be made in accordance with approved form 1395…; and
(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).

[2020] AATA 4520

26 October 2020

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Immigration

Administrative Law

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Judicial Review

Statutory Construction

Procedural Fairness

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