Bamboo Productions Pty Ltd (Migration)

Bamboo Productions Pty Ltd (Migration) [2021] AATA 4899 (16 December 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Bamboo Productions Pty Ltd
CASE NUMBER:  1901265
HOME AFFAIRS REFERENCE(S):          BCC2017/1427922
MEMBER:Peter Emmerton
DATE:16 December 2021
PLACE OF DECISION:  Adelaide
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Statement made on 16 December 2021 at 10:29am
CATCHWORDS
MIGRATION–nomination – Music Director – Direct Entry nomination stream – Tribunal is satisfied that the visa applicant is operating at the required level– no adverse information – position associated with the nominated occupation is genuine – financial capacity to employ the nominee full-time for a minimum of 2 years –applicant lawfully operating a business in Australia – decision under review set aside
LEGISLATION
Migration Act 1958, ss 65, 140GB, 245AR
Migration Regulations 1994, r 5.19
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 10 January 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 applied for approval on 19 April 2017. 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 delegate refused the application on the basis the applicant’s nomination did not satisfy reg 5.19(4)(d)(i) of the Regulations because they were not satisfied that it had not been demonstrated that the nominator had the financial capacity to ensure that the employee would be employed on a full-time basis in the position for at least two years.
The applicant was represented in relation to the review by its registered migration agent, although not present at the hearing.
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 modest arts production company focussed upon Brazilian culturally related music and performance. The organisation is based in Margaret River, regional Western Australia.
The Tribunal accepts the evidence tendered, that the revenues are earned through arts and music performance activities.
The visa applicant’s substantial responsibilities, formal qualifications, attributes, and extensive experience align with the duties of Music Director, ANZSCO 211212, Skill level 1.
The visa applicant possesses a Bachelor of Music and substantial teaching and performance experience in both Brazil and Australia.
The Tribunal is cognisant of the significant challenges associated with recruiting and retaining suitably experienced staff and management working in specialist culturally focussed music and performance activities.
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 elodgement facility. The nomination was made under the ENS Direct Entry stream (r.5.19(4)(h)(ii)) and the relevant fee was paid. The Tribunal finds the applicant meets r.5.19(2).
The Tribunal notes that the business is operating on a moderate permanent and contractor based, staffing ratio of 32 positions. The Tribunal acknowledges that finding and subsequently retaining an individual with the visa applicant’s experience, qualifications and competencies may be very challenging. The Tribunal accepts as fact that there is a need to have somebody in this role with specific Brazilian music and cultural knowledge at a lived experiential level as the Brazilian arts and culture are at the heart of their business model.
The Tribunal is satisfied that the application has identified a need for a paid employee to work in the position of Music Director ANZSCO 211212, 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)
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 substantial range of Financial documentation including ATO Taxation Returns for FY 2020 and FY 2021, Profit and Loss and Balance Sheet documents for the corresponding period, all of which correlated in an appropriate manner.
ASIC Registration details for this business entity were researched by the Tribunal. The Tribunal checked the status of the listed ABN, 72 611196 993 and perused the company web site. It was first registered 3 October 2016, is currently registered and is due for review on 3 October 2024. 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 delegate refused the application on the basis 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 the view that insufficient evidence was provided to demonstrate the financial capacity of the nominator to undertake the requirements of r.5.19(4)(d)(i).
The Tribunal has formed a different view having considered substantially more evidence that was presented to it, than was given to the delegate at the time of their decision. The Tribunal notes that more than 4 years have passed following the submission of the original application and the scant original associated financial documentation. There has been substantial revenue growth in that subsequent time-period. The passage of time demonstrates that the original concerns regarding the financial viability of the organisation are no longer a relevant concern as they have employed the visa holder for more than double the period stipulated in the regulations.
The Tribunal observes that the financial position for the nominator for FY 2020 and FY 2021 is relatively strong with an improved revenue and profitability post the impact of Covid-19 in early 2020. The Tribunal notes revenue before Tax increased by more than 300% from a low base, between FY 2020 and FY 2021. There is a Net Profit exceeding 16% for FY 2021. There is a similar growth in equity with total equity in the company of $60,000 as of 30 June 2021. The Tribunal is well acquainted with small arts companies and acknowledges that they are rarely financially lucrative. The reality is that many survive on small Arts Industry and Government grants programs combined with modest performance earnings garnered from project to project.
The Tribunal observes that the financial documentation shows an increasingly profitable and stable small business. It also observes that the visa applicant has been employed during this time therefore the positive Balance Sheet and Profit and Loss documents incorporate his costs. The Tribunal is cognisant of the ephemeral nature of arts and performance businesses which by their very nature are relatively low profit with a substantial degree of challenge because of their immediate customer satisfaction requirements.
The Tribunal accepts as fact that the business, like many businesses, was impacted as a direct result of Covid-19, as substantiated by the Financial Statements, associated with the Covid-19 pandemic, which quickly rebounded to normal revenue levels post lockdown. The Tribunal has formed a view that an organisation’s viability should not be judged solely upon the immediate financial circumstances which resulted from the Covd-19 pandemic.
The growing financial stability of the nominating entity and its’ relative longevity in an ever increasingly complex and competitive arts and music environment, attests to its’ ability to employ the visa applicant. The niche market in which it operates, (Brazilian music and performance), combined with its’ multiple product service model potentially adds an additional level of resilience. The Tribunal is aware that the largest labour component of any arts or performance industry organisation is accounted for in the contractor section of a Balance Sheet. A few core staff are usually permanent traditionally employed. A majority of employees operate as independent contractors and flex in and out on a project-by-project basis. This industry standard has proven to be a problematic structure during the Cocid-19 Pandemic as it didn’t fit most Government sponsored financial support mechanisms for the organisations or the performers because individual projects and contracts are rarely beyond the life of a particular show or event.
The Tribunal has had regard to the visa applicant’s Employment Agreements, the most recent dated 14 October 2020 and the detailed 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. It is again reminded of the passage of more than 4 years since the original application. The passage of time has, within itself shown that the reason for the delegate’s concerns has demonstrably dissipated.
The Tribunal observes that one of the potential challenges facing the business is retaining the visa applicant with their unique competencies and experience 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 Australia. The essential competencies associated with Brazilian music, performance and culture which form the key component of this company’s offerings make it very difficult to recruit the individuals needed because the talent pool is very small.
Current media and business reports analysing consumer confidence and employment data, coupled with present time job vacancies and recruitment challenges demonstrate a deficit of suitably qualified potential employees in many sectors. This appears to be one such sector. The problem is exacerbated if an organisation is reliant upon temporary or permanent immigration as part of their labour source. Business, Media, and Government reports are being circulated which indicate this is starting to be a drag upon business development. The Tribunal has referenced the National Skills Commission Report which supports this conclusion, dated 21 July 2021.[1]
[1] National Skills Commission Vacancy Report, June 2021, Release date: 21 July 2021
The recent Australian Institute of Company Directors, (AICD), Sentiment Index Report, published 15 December 2021, also demonstrates a positive trajectory for the economy and employment.
‘More than two-thirds of directors are confident in Australia’s 12-month economic outlook. Nearly two thirds (64 per cent) believe business will be on sure footing in 12 months time, with positive indicators like investment, turnover and profits expected to grow.
While the overall outlook from directors is positive, key challenges are emerging for the post-COVID era.
Directors have identified workforce shortages as the top economic challenge facing Australian businesses, above COVID-19, climate change and Australia’s relationship with China.’
The Tribunal is aware that the 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 entice valuable staff to join a competitor’s organisation. This shortage appears to have been exacerbated by reports that some individuals are currently refusing Covid-19 vaccination.
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 current employment contract, stating a salary of $61,443 plus Superannuation at the current rate, (10%). The Tribunal accepts that the nominee’s current annual salary as stated by the nominating entity, as reflective of the business magnitude, the visa applicant’s qualifications, the role they undertake and their experience.
The Tribunal researched the salaries offered for similar positions and accepted the salary research date presented by the nominator. The remuneration appears to fall within the mid quartiles of similar positions on offer. It notes that qualified teachers in this category currently operating in schools are remunerated well above this figure. 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 a 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 has had regard to the size and scope of the nominating entity’s expanding business operations. This expansion, demonstrated by current contracts and financial documents, coupled with the diversity of projects leads the Tribunal to accept that the visa applicant’s role is essential to the successful undertaking of the projects and to ensure that customer expectations can be met.
The Tribunal accepts that a valuable part of the visa applicant’s role is to be a reassuring mentor to his team, many of whom are project specific performers or musicians. It appreciates that the nature of these activities demands extraordinary levels of compliance within specifications and must be 100% reliable as the future performances are critically reliant upon audience satisfaction and perceived satisfaction expressed by commissioning entities. A very accurate statement well known in the industry is that “you are only as good as your last performance or show!”
It is self-evident that the nominator cannot operate this growing business entity without a substantial and relatively self-contained supervisory and creative structure in place and the visa applicant is clearly 1 important member of that very small core team.
The Tribunal is satisfied that there is a genuine need for the nominator to employ a paid employee to work full-time in the position under the nominator’s direct control.
Evidence was presented to the Tribunal regarding the recruitment process and the subsequent lack of suitably qualified and experienced applicants other than the nominee. The Tribunal accepts that the nominator had previously tried to fill the role. It also accepts that the personal and professional networks were utilised as an earlier attempt to recruit for the visa applicant’s position.
It is recognised that much of this work is regional and rural, in harsh climatic conditions. This makes recruitment and long-term retention even more difficult. The culturally specific nature of the role, coupled with high end technical, music performance, Directorial and performance skills, makes this a very challenging role to fill within Australia. The Tribunal is satisfied that a fair and honest recruitment process was undertaken in a very limited talent pool.

The Tribunal has formed the view that the “Satisfied” RCB requirements and the issued Certificate provide some weight in favour of the applicant, however this is not within itself a definitive result which must be accepted by the Tribunal. It must make up its’ own mind as to the relevance of the advice proffered. In this instance it is accepted as sound advice that should be considered in support of the nominator’s claims.
The Tribunal observes that substantially more corroborative evidence was provided to it, than was presented to the delegate at the time of their decision. The Tribunal, as stated previously, acknowledges the current employment market distortions created by the Covid-19 pandemic coupled with the Talent pool drain to the Eastern States. It is satisfied that the position cannot be filled by an Australian citizen or permanent resident. 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 notes that the delegate did not reject the application upon the basis of this regulation. Nor did they raise it as a concern in their decision.
The Tribunal has reviewed both the relevant descriptors supplied in ANZSCO 211212 for Music Director and the detailed duty statement attached for the visa applicant. It appears clear that the Duty Statement and the ANZSCO descriptors substantially align.
Whilst the visa applicant, would likely report performance in all KPI areas via established systems and seek input from the Director of the business, this coincides with the Tribunal’s expectations of a Music Director reporting to the senior management or Director of this business.
The position of Music Director, ANZSCO 211212, nominated by the applicant is referred to in ANZSCO as a skill level 1 position and the Tribunal is satisfied that the visa applicant is operating at that level.
The Tribunal has had regard to the ‘satisfied’ Form 1404 issued by an RCB (WA Department of Training and Workforce Development), dated 22 November 2017 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.
The Tribunal is satisfied that the applicant meets 5.19(4)(h)(ii).
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).

[2021] AATA 4899

16 December 2021

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