Anwha Williams As Trustee For Williams Family Trust (Migration)

Anwha Williams As Trustee For Williams Family Trust (Migration) [2020] AATA 5817 (25 November 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Anwha Williams As Trustee For Williams Family Trust
CASE NUMBER:  1812256
HOME AFFAIRS REFERENCE(S):          BCC2017/786748
MEMBER:Nicola Findson
DATE:25 November 2020
PLACE OF DECISION:  Perth
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Statement made on 25 November 2020 at 10:39am
CATCHWORDS
MIGRATION – Employer Nomination – approval of nominated position – Direct Entry Nomination – Personal Assistant – position cannot be filled locally – verifiable evidence of recruitment attempts – opinion of the regional certifying body – decision under review set aside
LEGISLATION
Migration Regulations 1994 (Cth), r 5.19
CASES
Bharaj Construction Pty Ltd v MIBP [2016] FCCA 902
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 11 April 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 27 February 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).
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 trades as Armadale Steel and Industrial Supplies. It is located in Forrestdale, Western Australia, 6112. The applicant has nominated the position of Personal Assistant (ANZSCO 521111) for approval.
The delegate refused the application on the basis that the delegate was not satisfied that the applicant had made adequate attempts to recruit suitably qualified and experienced Australian citizens or Australian permanent residents to the position, who live in the same area as that place, as required by r.5.19(4)(h)(ii)(C) of the Regulations.
On 21 August 2020, the Tribunal wrote to the applicant, inviting it to provide further information to demonstrate all the relevant requirements of r.5.19(2) and (4). On 2 September 2020, the applicant responded and provided to the Tribunal additional and updated evidence in support of the application, including but not limited to:
·ASIC and ABN records for the applicant’s registration as an association in Western Australia;
·Australian Taxation Office Business Portal account statements, for the period 1 July 2018 to 25 August 2020;
·Financial Statements for the years ended 30 June 2018 and 2019;
·Company Tax returns for the years ended 30 June 2018 and 2019;
·Current organisational structure chart;
·Position Description of the nominated position;
·Contract of Employment dated 1 November 2017 between the applicant and the nominee;
·Evidence of the tasks carried out by the nominee, including email correspondence and reports;
·Evidence of advertising for the nominated position; and
·Certification approval from the relevant Regional Certifying Body dated 24 February 2017
A written submission was also provided to the Tribunal during the review process. This submission provided a focussed response to the concerns set out by the delegate in the decision record. The submission addresses the difficulties the organisation experienced in finding a suitable person(s) from the local labour market, with relevant qualifications and experience, to perform the nominated role.
The Tribunal has had regard to this additional evidence, and under s.360(2)(a) of the Act is satisfied it is able to decide the review in the applicant’s favour on the basis of the material before it.
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.
The Tribunal has had regard to the information of the Department’s file as to the nomination, and is satisfied that these requirements are met. The application for approval was made on the approved form and was accompanied by the prescribed fee. The relevant s.245AR(1) certification was also provided in the application form.
The Tribunal is further satisfied that the nomination application identified a need for the applicant to employ a paid employee (Ms Daljit Kaur) to work in the nominated position of Personal Assistant (ANZSCO 521111), under its direct control.
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.
Having considered the material before it, including the nominator’s financial statements and business registration records, the Tribunal is satisfied that the nominator is actively and lawfully operating a business in Australia and directly operates that business.
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.
There is no evidence before the Tribunal to indicate that the applicant is involved in labour hire activities. The Tribunal is satisfied that the employment contract and organisational chart confirm that the nominee will work in the applicant’s direct employ.
Accordingly, the Tribunal finds that the position is not related to labour-hire and that the requirement in r.5.19(4)(c) is met.
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 applicant has provided information and updated financial reports to the Tribunal that indicate the company has the financial capacity to employ the nominee at the specified salary, and the Tribunal accepts this evidence.
The Tribunal has also had regard to the terms and conditions of employment as set out in the (updated) employment contract provided during the review process. The contract indicates that the nominee will be employed as a Personal Assistant on a full-time basis for at least two years with a base salary of $45,000, plus superannuation. There is nothing in the contract that expressly excludes the possibility of extending the employment period.
Having regard to the totality of the evidence before it, the Tribunal is satisfied that the applicant has the financial capacity to provide the nominee with employment in the nominated position for at least two years full time and that the terms and conditions of that employment do not exclude the possibility of an extension.
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 Tribunal has had regard to the terms and conditions of employment as set out in the contract of employment. The contract provides for the nominee’s entitlements and indicates that the base salary will be $45,000 (with annual remuneration reviews) plus superannuation, for a 38-hour week. The Tribunal has considered payscale.com.au information indicating that, currently, the annual salary for a Personal Assistant in Western Australia ranges from $44,000 to $79,000. The Tribunal is satisfied that the nominee is being, and will continue to be, paid in accordance with the terms of the employment contract, and that the employment contract reflects current employment laws.
On the basis of the information before it, the Tribunal is satisfied that the base salary of the nominee is within the appropriate range of that normally paid to an experienced Personal Assistant working in Western Australia. The Tribunal is accordingly 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.
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 information before the Tribunal to indicate that there is adverse information known to the Department about the nominator or an associated person.
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 to suggest that the applicant does not have a satisfactory record of compliance with workplace relation 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 and those relevant to this matter are as follows:
·the position and nominator’s business is located in regional Australia, there is a genuine need for the paid position under the nominator’s direct control which cannot be filled by a locally resident Australian citizen or permanent resident, the tasks of the position correspond to those of an occupation specified in the relevant legislative instrument, the occupation is applicable to the proposed employee in accordance with the specification of the occupation and that a regional certifying body has advised the Minister about certain matters relating to the position.
Location of the position and the business
The first consideration under r.5.19(4)(h)(ii) is whether the position is located in regional Australia. Regulation 5.19(16) provides that ‘regional Australia’ is defined by the legislative instrument.
The Tribunal has considered the current legislative instrument (IMMI18/037), however, Schedule 3 of IMMI 18/037 states that it applies only to applications lodged on or after 8 March 2018[1]. The Tribunal notes that IMMI 18/037 repealed the previous legislative instrument (IMMI 17/059)[2].
[1] Relevantly, IMMI 18/037, Schedule 3 – Application of this Instrument states: “(1) This instrument applies in relation to the following: (a) an application for approval of a nomination in relation to the Subclass 187 (Regional Sponsored Migration Scheme) visa made on or after 18 March 2018…”
[2] See Schedule 4 of IMMI 18/037
When IMMI17/059 commenced on 17 November 2017, it did not include any saving or transitional provisions and was silent on how applications that had been made and not finally determined on the date it came into effect were to be treated. The Tribunal notes that the Department made a public statement in its Skilled Visa E-News November 2017 newsletter indicating that IMMI 17/059 only applied to nomination applications made on or after 17 November 2017.
Given that neither the current instrument nor its immediate predecessor can be relied upon, in order for the Tribunal to reach a finding in respect of whether the position is located in regional Australia, the Tribunal has considered the legislative instrument that applied at the time the applicant lodged the nomination application. That legislative instrument is IMMI 16/045.
In this case, the position is located in Forrestdale, Western Australia, 6112, and at the time of application, this location/postcode was considered regional Australia, as per Schedule B of IMMI 16/045. Accordingly, the Tribunal finds that the requirements of sub-paragraph 5.19(4)(h)(ii)(A) and (E) are met.
Genuine need for the paid position, which cannot be filled by an Australian citizen or an Australian permanent resident
Subparagraph 5.19(4)(ii)(h)(B) requires the Tribunal to be satisfied that there is a genuine need for the applicant, as the nominator, to employ a paid employee to work in the position under the nominator’s direct control.
In considering this issue, the Tribunal has taken into account the information provided to the Tribunal regarding the nature and scope of the business and the explanation as to why there is a genuine need for a Personal Assistant in the business. In particular, it takes into account the business operations of the applicant, as well as the growth of the business. The Tribunal accepts that the applicant genuinely requires assistance with a position performing tasks corresponding to those of a Personal Assistant.
The delegate’s decision records the delegate was concerned that no verifiable supporting information had been provided by the applicant to establish its attempts to recruit to the position, suitably qualified and experienced Australian citizens or permanent residents living in the same local area.
The Tribunal has had regard to the additional material provided in support of the review application, including evidence that was not available to the delegate at the time of decision, regarding the applicant’s efforts to find a suitably qualified and experienced staff member to fill the nominated position, on a long-term basis. The Tribunal accepts the evidence before it that significant advertising in respect of the role was undertaken in the West Australian, as well as online - on Jobfinder.com.au, Found Career, and Gumtree - in December 2016 and January 2017, and the nominee was identified as the only qualified candidate for the position before being formally offered a contract of employment on 20 January 2017. The Tribunal has also had regard to the organisational chart provided to it, which reveals that, aside from the nominated position, the applicant’s staff are comprised of Australian citizens or permanent residents.
In addition, the Tribunal takes into account the opinion of the regional certifying body, which it notes to be the Government of Western Australia, advising the Minister among other matters that the nominated position cannot be filled by an Australian citizen or permanent resident living in the same local area as the nominated position.
The Tribunal is satisfied that the applicant has demonstrated a genuine need for a paid position under its direct control and that it cannot be filled by a local resident. Accordingly, r.5.19(4)(ii)(h)(B) and (C) are met.
Tasks of the position
The tasks of the nominated position must correspond to those of an occupation specified in the relevant legislative instrument: r.5.19(4)(h)(i)(A).
The Tribunal has had regard to evidence that has been provided detailing the tasks that will be performed and is satisfied that they correspond to the tasks of the occupation of Personal Assistant specified in the relevant instrument. The applicable instrument specified for this purpose is IMMI 15/083.
A detailed summary of the tasks to be performed in the position are consistent with the ANZSCO occupational description for a Personal Assistant, which include:
·liaising with other staff on matters relating to the organisation's operations
·researching and preparing reports, briefing notes, memoranda, correspondence and other routine documents
·maintaining confidential files and documents
·attending meetings and acting as secretary as required
·maintaining appointment diaries and making travel arrangements
·processing incoming and outgoing mail, filing correspondence and maintaining records
·screening telephone calls and answering inquiries
·taking and transcribing dictation of letters and other documents
·may supervise other secretarial and clerical staff
On the basis of the evidence before it, the Tribunal is satisfied that tasks associated with the position correspond sufficiently to those of the occupation of Personal Assistant, such that it is satisfied that the tasks expected to be performed by the nominee in the applicant’s business correspond to the tasks of a Personal Assistant at ANZSCO Skill Level 3.
The Tribunal notes in passing that the nominee holds a Masters Degree in Business Administration, and therefore satisfies the requisite level of relevant experience according to ANZSCO. The Tribunal also observes that the nominee now has over three years’ experience working as a Personal Assistant for the applicant.
Accordingly, the requirements of r.5.19(4)(h)(ii)(D) of the Regulations are met.
Regional Certification
The Tribunal has considered the Form 1404 Regional Sponsored Migration Scheme – Regional Certifying Body Advice, issued on 24 February 2017 by Skilled Migration WA, Western Australian Department of Training and Workforce Development.
The Tribunal notes its earlier comments in relation to the current instrument IMMI 18/037, which only applies in respect of nomination applications made on or after 18 March 2018, and that it has therefore applied the provisions in the instrument that applied at the time the applicant lodged the nomination application, which was IMMI 16/045.
On the basis of the advice set out in the Form 1404 Regional Sponsored Migration Scheme – Regional Certifying Body Advice provided, the Tribunal is satisfied that the regional certifying body 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. The regional certifying body states that:
- There is a need for a paid employee in the nominated position within the business activities of the nominating employer;
- The nominated position cannot be filled by an Australian citizen or an Australian permanent resident who is living in the same local area as the nominated position; and
- The terms and conditions of employment that are applicable to the nominated position will be no less favourable than the terms and conditions that are or would be provided to an Australian citizen or Australian permanent resident for performing the equivalent work in the same workplace at the same location.

Consistent with the decision of the Federal Circuit Court of Australia in Bharaj Construction Pty Ltd v MIBP [2016] FCCA 902, certification by a regional certifying body is not sufficient or determinative in relation to whether the nominator meets r.5.19(4)(e) , r.5.19(4)(h)(ii)(B) and r.5.19(4)(h)(ii)(C) of the Regulations. Accordingly, the Tribunal notes that, whilst having regard to the advice provided by the regional certifying body, it has reached its own conclusions about the matters the subject of the regional certifying body’s advice.
Having considered the Form 1404 provided, the Tribunal is satisfied that the requirements of r.5.19(4)(h)(ii)(F) are met by provision of the requisite Form 1404.
It follows that the Tribunal finds the applicant meets all the requirements of r.5.19(4)(h) of the Regulations.
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.
Nicola Findson

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 5817

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Immigration

Administrative Law

Legal Concepts

Judicial Review

Jurisdiction

Statutory Construction

Procedural Fairness