Aussie Citrus Farms (Migration)

Aussie Citrus Farms (Migration) [2022] AATA 3013 (2 August 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Aussie Citrus Farms
REPRESENTATIVE:  Mr Ashutosh Sharma (MARN: 1682588)
CASE NUMBER:  1916559
HOME AFFAIRS REFERENCE(S):          BCC2018/1172422
MEMBER:Alan McMurran
DATE:2 August 2022
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision under review to refuse the nomination.

Statement made on 02 August 2022 at 2:35pm

CATCHWORDS
MIGRATION – nomination – Direct Entry nomination stream – Secretary (General)– no genuine need for the nominated position within the business activity – lack of available information and the lack of responses from the applicant – nominator did not provide any updated or current information –decision under review affirmed
LEGISLATION
Migration Act 1958, ss 65, 245AR, 359, 360
Migration Regulations 1994, r 5.19
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application lodged 24 June 2019 for review of a decision made by a delegate of the Minister for Home Affairs on 6 June 2019 to reject the applicant’s application for approval of the nomination of a position in Australia under reg 5.19 of the Migration Regulations 1994 (Cth) (the Regulations).
The applicant, Aussie Citrus Farms, applied for approval on 12 March 2018. The requirements for the approval of the nomination of a position in Australia are found in reg 5.19 of the Regulations which contains two alternative streams: A Temporary Residence Transition nomination stream (reg 5.19(3)) and a Direct Entry nomination stream (reg 5.19(4)). If the application is made in accordance with reg 5.19(2) and meets the requirements of either stream, then the application must be approved. If any of the requirements are not met, then the application must be refused: reg 5.19(5).
In this case, the applicant has applied for approval of a nomination, seeking to satisfy the criteria in the Direct Entry nomination stream. The nominee, Muhammad Amsul Rafiq, a 32-year-old citizen of Pakistan, is nominated for the occupation of Secretary (General), ANZSCO 521211. The nominee has lodged a related application for review[1] of the refusal of a Subclass 187 visa under the Regional Employer Nomination Scheme.
[1] T case number 1923456
The delegate refused the application on the basis the applicant’s nomination did not satisfy reg 5.19(4) of the Regulations because the Department had received advice from a Regional Certifying Body, Regional Development Australia, Riverina, NSW (“RCB”) that the nomination did not satisfy its requirements for the nomination to be recommended. The delegate placed substantial weight on the RCB response and refused the application.
The applicant was represented in relation to the application to the Department and for this review by a migration agent, Mr Sharma Ashutosh.
For the following reasons, the Tribunal has decided to affirm the decision under review to refuse the nomination.
Tribunal process
On 5 July 2022 the Tribunal sent an invitation to the applicant to provide information. The invitation set out the matters which required a response from the applicant by a specified date (19 July 2022). On 18 July 2022, the representative informed the Tribunal by email that despite attempting to contact the applicant’s director, he was “unable to get any documents till date”. The applicant did not otherwise respond to the Tribunal’s request, and no information was submitted.
As at the time of decision, nothing further has been heard from the applicant or on its behalf.
Section 360 of the Act specifies that the Tribunal must invite the applicant for review to a hearing to give evidence and present arguments. If, however, the applicant does not respond and provide the information asked for by the due date, the Tribunal may proceed to make a decision without taking any further action to obtain the information[2]. Furthermore, the applicant is not entitled to appear to give evidence and present arguments and loses the right to a hearing where section 359C(1) applies[3].
[2] S. 359C(1)(b)
[3] S.360(3)
Accordingly, and given the representative’s reply, the Tribunal has found that the applicant has lost the right to a hearing and has proceeded to finalise the application on the available information and without a hearing.
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 reg 5.19(4), which is extracted in the attachment to this decision. For the nomination to be approved, all the requirements must be met. If any requirement is not met, then the application must be refused. The Tribunal has no discretion to disregard the requirements unless so specified in the Act, or Regulations.
The Tribunal has had regard to the Act and Regulations, the information provided with the application, and Department Policy where applicable to the issues raised, together with any publicly available information including ANZSCO.
In this instance, the Department information available to the Tribunal, included copies of the RCB advice (Form 1404 dated 5 June 2018), and a letter from RCB dated 5 June 2018, to the applicant, explaining why the nomination did not satisfy RCB requirements. The RCB information also included a copy of a letter from the applicant dated 31 May 2018, explaining the position for the RCB, and a copy of an organisation chart which the applicant had provided for consideration.
Other than the extracts from the Department file and the application itself, no other information is available for consideration.
Background
The applicant is a trading partnership in the names of ‘R Begum and M Hussain’, operating from a principal place of business at Cudgel in NSW and first registered on 11 April 2017.
On 31 May 2018 the applicant had provided a letter to the Department for consideration which states [unedited]:
“Our Farm is not a very big farm and we grow citrus fruits, the annual turnover is $500000. If we are going to appoint a Farm Manager, the salary we have to pay the employee will be between $80,000 to $90,000 Plus Super. That means somewhere $30,000 extra, which will be too much extra money to pay as wages and secondly the work is not that complicated that we need highly qualified employee such as Farm Manager.
Hence, I decided that I need someone who can look after the farm when I am not present and when I am here can help me out in the day to day working of our farm.
Previously I have trained the bag packers but by the time they learn the work, they have to leave the job and move on.
Secondly, they are not reliable because they know that they are not going to do this job permanently.
So, I wanted to appoint come one who can work permanently and should be reliable, that’s the reason I appointed Mr. Muhammad Amsul as my secretary.
Regards
Mr. Mujahid Hussain”
The applicant also provided an organisation chart which shows the two named partners, the nominee, and 5 unidentified casual Bagpackers. The nominee at that time was the only named employee. The advice from the RCB in its letter of 5 June 2018, some 3 months after the nomination application had been lodged, responded to the applicant’s representative as follows:
“Dear Sharma,
Attached please find signed RSMS Form 1404 which requires being included with the application for the Employer Nomination when submitting to the Department of Home Affairs (DHA).
I am to inform this Nomination does not satisfy the RCB requirements due to the following reasons:
1.Limited documented evidence provided to support the goods and services produced by Aussie Citrus Farms and how this occupation and its tasks/position contributes to their production and growth
2.There is not a genuine need for the nominated position within the business activity- The
occupation and tasks of this position as required within the business does not appear to fit within the activities, nature and scope of the business as outlined in the 'Organisational Chart' and the document 'Aussies citrus Secretary'.
Yours faithfully
Riverina Skilled Migration”
On 7 May 2019, in considering the application almost 12 months later, the Department had written to the applicant providing particulars of ‘adverse information’. The Department informed the applicant that it had conducted checks (with the RCB) and had received unfavourable information from the RCB certifier, Riverina NSW, that “they were not satisfied with the nomination”. The Department letter asserted that there was only “limited evidence provided to support the goods and services produced” and that “there is not a genuine need for the nominated position within the business activity”. The applicant did not respond to the Department letter.
The application is compliant: reg 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 an identified person as a paid employee to work in the position under their direct control.
The Tribunal has referred above to the very limited background information made available in support of the nomination, to the Department, the RCB and for the AAT.
Regulation 5.19(4)(a)(ii) prescribes that the application must identify a need for the nominator to employ an identified person as a paid employee to work in the position under their direct control.
Policy describes that the intent of this sub-regulation is to ensure that the nominee occupying the position is an employee in fact, and not an independent contractor or in some other relationship with the nominator, and that a direct employer/employee relationship exists and with a measure of direct control over the employment by the nominator. Evidence as to the salary paid or payable by the applicant, including all entitlements and benefits, compulsory superannuation, and PAYG deductions supports this provision. Other indicia for meeting the requirement include evidence of payment of workers’ compensation insurance, an employment contract which specifies the role and how the work is directly controlled, and evidence that the nominator has responsibility over the employee’s work environment.
There is no definition in the Act or Regulations as to what may otherwise constitute a ‘need’ to employ an identified person (the nominee). Additional evidence might include a description of the business, its financial situation, and the role to be performed, what, where and how that is to be done, and under who’s supervision. An outline or summary may usually suffice to demonstrate that the role is associated with the business and under its control.
In this instance, there is no evidence before the Tribunal of any contract of employment between the two partners and the nominee. There is no evidence submitted of the employee relationship, and the information that was produced is more than 4 years’ old. There is no information as to whether the nominee has commenced work, whether he has been paid, or what work is actually done or anticipated for the nominated role of “Secretary”.
The Tribunal understands from the applicant’s letter on 31 May 2018, that the partnership could not afford to pay a ‘manager’, but that the partner needed someone “ who can look after the farm when I am not present and when I am here can help me out in the day to day working of our farm”. No other explanation about the details of the relationship is available. No assistance is gained from the information in the application to determine, reasonably, whether the application for approval identifies a need. It refers to terms and conditions “that will apply”, with a base rate of pay of $55,000.00 per annum, payable by the partnership. No agreed and signed terms and conditions in a written contract of employment, however, are produced.
Given the lack of available information and the lack of responses from the applicant, the time since the applicant was made aware of the RCB concerns, and the requests also from the Tribunal to provide current information about the nomination proposed, the Tribunal finds it is not satisfied that the applicant has identified a need for the nominator to employ an identified person, the nominee, as a paid employee to work in the position nominated of Secretary (General) and under the applicant’s direct control.
Accordingly, the requirement in reg 5.19(4)(a) is not met.
Term of employment of the visa holder: reg 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 has already noted the limited available information in these reasons. The Tribunal has concerns as to whether the nominee will be employed and continue in the employment for at least 2 years full time. The applicant has provided no updated or current financial information as to their present circumstances and which might be available to support the requirement.
The Tribunal finds that there is no current employment agreement submitted for consideration, and no information available as to the length and nature of the employment, nor whether such an agreement might provide for an extension beyond 2 years.
Accordingly, the requirement in reg 5.19(4)(d) is not met.
Tasks of the position, genuine need for the position and training requirements reg 5.19(4)(h)
Regulation 5.19(4)(h) contains a number of alternative requirements. All the requirements must be met. These are set out in detail in the attachment to the decision but can be briefly summarised in this case as requiring that:
·the position and nominator’s business are located in regional Australia,
·there is a genuine need for the nominee to be employed as a paid employee in the position under the nominator’s direct control,
·the position cannot be filled by a locally resident Australian citizen or permanent resident,
·the tasks of the position correspond to those of an occupation specified in the relevant legislative instrument, the occupation is applicable to the proposed employee in accordance with the specification of the occupation, and that
·a regional certifying body has advised the Minister about certain matters relating to the position.
Regional Australia
The Tribunal finds on the available information that it is satisfied that the applicant’s business operates from an address at a regional location in NSW in the Riverina. Sub-regulation 5.19(4)(h)(ii)(A) is therefore met and all of the remaining provisions in cl.5.19(4)(h)(ii) apply.
Genuine need - 5.19(4)(h)(ii)(B)
In order to consider whether there is a ‘genuine’ need[4] for the nominator to employ the nominee, and as a paid employee to work in the position under the nominator’s direct control, the Tribunal considers information about the actual work to be performed by the nominee. This is to be distinguished from the related task of determining that a need has arisen for the position as might be demonstrated from a specified and articulated employment relationship: [5.19(4)(a)(ii)].
[4] Cl 5.19(4)(h)(ii)(B)
For the purposes of ‘genuine need’ and sub-regulation 5.19(4)(h)(ii)(B), Policy emphasizes that regard should be had to evidence of the breakdown of the organisational structure to show where the position fits into the enterprise, whether the position has existed previously (or still exists), and who is currently performing the occupation. Any increase in business activity might also be relevant, together with the circumstances of any other temporary visa holder and the conditions of their employment, and what work is performed by the business owner, and in this instance, the sole director. No such information is available.
Merely stating in the application that there is a position for such an employee and naming the occupation, does not lead automatically to a conclusion that there is a ‘genuine need’ for the position, and that it is the position which the nominee will actually perform. The Tribunal finds that cl 5.19(4)(h)(ii)(B) is not met because there is no evidence about the position and what the nominee will actually do, and how he will work in the position for the nominator in the role of ‘Secretary’. The letter from the partner referred to above does not assist as it describes someone in the position who is able to “look after the farm”, whatever tasks that may entail, and when the partners are not present.
Tasks to be performed corresponding to a specified occupation in a Legislative Instrument - 5.19(4)(h)(ii)(D)
ANZSCO[5] provides that the tasks for the nominated occupation, as specified in the relevant instrument[6] of Secretary(General) 521211, involve performing secretarial, clerical, and other administrative tasks in support of Managers and Professionals and include:
[5] version 1.3 (2013) – now updated replaced
[6] 17/058
a.liaising with other staff to arrange meetings, and to gain and provide information
b.preparing reports, briefing notes and correspondence, and proofreading work for typographical and grammatical errors
c.maintaining appointment diaries and making travel arrangements
d.processing incoming and outgoing mail, filing correspondence, and maintaining records
e.answering telephone calls, responding to inquiries, and redirecting callers
f.taking and transcribing dictation of letters and other documents
g.greeting visitors, ascertaining nature of business, and directing visitors to appropriate persons
h.may implement management decisions and maintain records of meetings
i.may handle bookkeeping and petty cash functions
The position described by the partner in the letter of 31 May 2018[7] refers to the nomination requiring someone “who can look after the farm when I am not present and when I am here can help me out in the day to day working of our farm”. This description does not align with the ANZSCO described role for a secretary.
[7] Par 16 above refers
No other information is provided about the tasks for the role described by the applicants. The Tribunal concludes that the nomination of the role was in order for the applicants to be able to afford the employee at the salary of a secretary, rather than pay for a more expensive employee who is in fact a farm manager, which the applicant estimates would be around $80,000-$90,000 per annum, as opposed to the $55,000 per annum payable for a ‘secretary’.
In light of the above, the Tribunal is not satisfied that the tasks as explained by the applicants correspond to the specified occupation.
Furthermore, for the reasons set out above in the letter from the RCB certifier[8], the RCB has not advised the Minister that the nomination satisfies RCB requirements for certification and no approved certificate is provided.
[8] Par 17 above refers
Accordingly, the requirements of reg 5.19(4)(h) are not met.
Conclusion
For the above reasons the Tribunal is not satisfied that the applicant meets the requirements of reg 5.19(4). The applicant has not sought to satisfy the criteria in Temporary Residence Transition Nomination stream, and as such has not met the requirements in reg 5.19(3). Accordingly, the nomination of the position cannot be approved. Therefore, the Tribunal must affirm the decision under review.
DECISION
The Tribunal affirms the decision under review to refuse the nomination.
Alan McMurran
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, an identified person, as a paid employee to work in the position under the nominator’s direct control; and
(b)the nominator:
(i)       is actively and lawfully operating a business in Australia; and
(ii)      directly operates the business; and
(c)for a nominator whose business activities include activities relating to the hiring of labour to other unrelated businesses — the position is within the business activities of the nominator and not for hire to other unrelated businesses; and
(d)both of the following apply:
(i)       the employee will be employed on a full-time basis in the position for at least 2 years;
(ii)      the terms and conditions of the employee’s employment will not include an express exclusion of the possibility of extending the period of employment; and
(e)the terms and conditions of employment applicable to the position will be no less favourable than the terms and conditions that:
(i)       are provided; or
(ii)      would be provided;
to an Australian citizen or an Australian permanent resident for performing equivalent work in the same workplace at the same location; and
(f)either:
(i)       there is no adverse information known to Immigration about the nominator or a person associated with the nominator; or
(ii)      it is reasonable to disregard any adverse information known to Immigration about the nominator or a person associated with the nominator; and
(g)the nominator has a satisfactory record of compliance with the laws of the Commonwealth, and of each State or Territory in which the applicant operates a business and employs employees in the business, relating to workplace relations; and
(h)either:
(i)       all of the following apply:
(A)the tasks to be performed in the position will be performed in Australia and correspond to the tasks of an occupation specified by the Minister in an instrument in writing for this sub-subparagraph;
(AA)there is a genuine need for the nominator to employ the person identified under subparagraph (a)(ii), as a paid employee, to work in the position under the nominator’s direct control;
(AAA)the occupation is applicable to the person identified under subparagraph (a)(ii) in accordance with the specification of the occupation;
(B)either:
(I)the nominator’s business has operated for at least 12 months, and the nominator meets the requirements for the training of Australian citizens and Australian permanent residents that are specified by the Minister in an instrument in writing for this sub-sub-subparagraph; or
(II)the nominator’s business has operated for less than 12 months, and the nominator has an auditable plan for meeting the requirements specified in the instrument mentioned in sub-sub-subparagraph (I); or
(ii)      all of the following apply:
(A)the position is located in regional Australia;
(B)there is a genuine need for the nominator to employ the person identified under subparagraph (a)(ii), as a paid employee, to work in the position under the nominator’s direct control;
(C)the position cannot be filled by an Australian citizen or an Australian permanent resident who is living in the same local area as that place;
(D)the tasks to be performed in the position correspond to the tasks of an occupation specified by the Minister in an instrument in writing for this sub-subparagraph;
(DA)the occupation is applicable to the person identified under subparagraph (a)(ii) in accordance with the specification of the occupation;
(E)the business operated by the nominator is located at that place;
(F)a body that is:
(I)specified by the Minister in an instrument in writing for this sub-subparagraph; and
(II)located in the same State or Territory as the location of the position;
has advised the Minister about the matters mentioned in paragraph (e) and sub-subparagraphs (B) and (C).

[2022] AATA 3013

2 August 2022

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