Base Backpackers Pty Limited (Migration)

[2022] AATA 3233

Base Backpackers Pty Limited (Migration) [2022] AATA 3233 (27 July 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Base Backpackers Pty Limited

REPRESENTATIVE:  Ms Rebecca Matanle (MARN: 0301439)

CASE NUMBER:  1903150

HOME AFFAIRS REFERENCE(S):          BCC2019/117512

MEMBER:Peter Newton SC

DATE AND TIME OF

ORAL DECISION AND REASONS:         27 July 2022 at 1:27 pm (NSW time)

DATE OF WRITTEN RECORD:                11 August 2022

PLACE OF DECISION:  Sydney

DECISION:The Tribunal sets aside the decision not to approve the Nomination and substitutes the decision that the Nomination is approved

Statement made on 11 August 2022 at 4:42pm

CATCHWORDS

MIGRATION – approval of a nomination – short-term stream – position of hostel manager – employment terms and conditions no less favourable – nomination training contribution charge – no adverse information about the applicants – nominated occupation correspond to the position – genuine position – labour market testing – decision under review set aside     

LEGISLATION

Migration Act 1958, ss 140, 245
Migration Regulations 1994, rr 2.72, 2.73

CASES

Cargo First Pty Ltd v MIBP [2016] FCA 30

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 24 January 2019 (Department’s Decision) refusing to approve a nomination under s 140GB of the Migration Act 1958 (Act) and reg 2.72 of the Migration Regulations 1994 (Regulations). 

2. At the hearing on 27 July 2022 the Tribunal made an oral decision and gave an oral statement of decision and reasons. The following is the written record of those reasons.

   STATEMENT OF DECISION AND REASONS

3. The applicant applied for approval on 21 January 2019.  A nomination of an occupation for a Subclass 482 visa is made under section 140GB of the Act and reg 2.73 of the Regulations.  The occupation must be nominated for a Subclass 482 visa in one of three alternative streams: the shot-term stream; the medium-term stream; or the labour agreement stream.  Regulation 2.72 describes general and stream specific criteria that must be satisfied for the Minister to approve a nomination by a person.  In this case, the occupation is nominated for a Subclass 482 visa in the short-term stream.

4. The delegate in this case decided not to approve the Nomination on the basis that the delegate was not satisfied that the applicant met the requirements of sub regulation 2.72(15) on the basis that the evidence provided by the applicant indicated that an Australian employee would be paid approximately $36,515.29 and not $56,500 (being the amount the applicant determined as the monetary component of the annual market salary rate) stated in the application, and the evidence indicated that the salary being offered was not aligned to the typical work practices of the organisation and could not be substantiated.

5. The applicant by one of its directors and the group operations manager, Mr Cooney, appeared at the hearing by telephone on 27 July 2022.  The applicant was ably represented by its registered migration agent, Ms Matanle.  The application for review was heard concurrently with the related application by the nominated employee, Mr Zapata Nino, who applied for a review of the decision made by a delegate of the Minister for Home Affairs on 22 February 2019 refusing to approve his application for a Temporary Skill (Subclass 482) Shortage visa.  On that application, Mr Zapata Nino’s spouse or de facto partner, Ms Foulds, also appeared at the hearing.  Evidence on one application was evidence in the other.  At the hearing, Mr Cooney, Mr Zapata Nino and Ms Foulds gave evidence.  Ms Matanle provided written submissions made 26 April 2022 which were adopted by Mr Cooney.  During the hearing these submissions were supplemented with oral submissions. 

6. For the following reasons the Tribunal was decided to set aside the decision under review and substitute a decision approving denomination. 

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in the present case is whether the applicant meets the criteria for approval of the Nomination.  The Tribunal must approve the Nomination if the applicant is an approved work sponsor and meets the requirements of reg 2.72: section 140GB(2).  The applicant must also have paid any nomination training contribution charge in relation to the Nomination for which it is liable.  In addition, the labour market testing requirements in section 140GBA must be met. 

8. Regulation 2.72(3) requires that the applicant has made the Nomination in accordance with the process set out in reg 2.73.

9. These requirements and the relevant evidence and submissions in relation to each of these requirements are as follows:

   a.A person is nominating an occupation under section 140GB(1)(b) in relation to the holder of a Subclass 457 or a proposed applicant for a Subclass 482 visa: reg 2.73(1). The nominated person, Mr Zapata Nino, is not the holder of a Subclass 482 visa but is the proposed applicant for a Subclass 482 visa.  Accordingly, this requirement is met;

   b.The Nomination was made using the approved form and fee: regs 2.73(3)(4)(5). The Nomination for a Temporary Skill Shortage visa lodged by the applicant with the Department on 21 January 2019.  Is in the approved form. The Department’s file contains a record acknowledging the fee has been paid.  Accordingly, this requirement is met.

   c.The Nomination was accompanied by an applicable nomination training contribution charge: reg 2.73(5A). At the hearing Mr Cooney gave evidence and Ms Matanle made submissions that on 21 January 2019 the applicant paid the nomination training contribution in the amount of $3600 in respect of which the Department issued receipt number 20019408034.  Accordingly, this requirement is satisfied. 

   d.The Nomination is in the short-term stream if the occupation is a short term specified skilled occupation: reg 2.73(6). The Nomination is in the short-term stream.  Accordingly, this requirement is satisfied. 

   e.The applicant has identified the nominee in the Nomination: reg 2.73(8). The Nomination by the applicant nominates Mr Zapata as the nominee.  Accordingly, this requirement is met.

   f.The Nomination includes the name of the occupation and the corresponding 6-digit code, the location at which the occupation will be carried out, the proposed period of stay for a visa granted on the basis of the Nomination, the annual turnover for the Nomination and any other specified information: reg 2.73(9). The Nomination lodged by the applicant is before the Tribunal.  It comprises 16 pages and includes this information.  Accordingly, this requirement is met. 

   g.The Nomination includes written certification as to whether or not the person has engaged in conduct that contravenes section 245AR(1) of the Act: reg 2.73(12). Page 14 of the Nomination contains this certification.  Accordingly, this requirement is met. 

   h.The Nomination includes written certification that the employment contract with the nominee complies or will comply with the Commonwealth, State or Territory employment laws, unless the occupation is exempt: reg 2.73(13).  Page 14 of the Nomination contains the required certification.  Accordingly, this requirement is met.

   i.The Nomination includes written certification that the tasks of the position include a significant majority of the tasks specified for the occupation in ANZSCO code; the qualifications and experience of the nominee are commensurate with those specified for the occupation in ANZSCO code; and the position is in the person’s business if they are or would be an overseas business sponsor or any other case in the person’s or an associated entity’s business: reg 2.73(14).  The Nomination includes these certifications.  I am satisfied that these requirements have been met.

10. For these reasons the requirements of reg 2.72(3) are met.

11. Regulation 2.72(4) requires, so far as is relevant, that there is no adverse information known to Immigration about the applicant or a person associated with the applicant.

12. The evidence given by both Mr Cooney and Mr Zapata Nino at the hearing, together with documents provided on behalf of the applicant establish that: - the applicant was incorporated on 25 July 2002; its principal activity is providing short-term hostel accommodation including food and beverages at various sites throughout Australia; it has related companies that provide similar if not identical activities in both Australia and New Zealand.  The applicant has provided financial information for the company.  This was supplemented by evidence given by Mr Cooney at the hearing.  The applicant was subject to a Deed of Company arrangement from 20 August 2021 to 20 December 2021.  It has come out of deed administration and control has been handed back to its directors.  The evidence establishes that the company is solvent.  Mr Cooney gave evidence, which I accept, that its current bank balance account is approximately $2.4 million, it has unrecovered income of approximately $400,000, statutory liabilities of approximately $1.1 million, a net position of approximately $1.3 million (surplus) or approximately $1.7 million if unrecovered income is realised. 

13. Mr Cooney gave evidence, which I accept, that he is not aware of any adverse information known to Immigration about the applicant or a person associated with the applicant.  As regards Mr Zapata Nino, in the application for the Temporary Skill Shortage Visa he lodged with the Department on 21 January 2019, Mr Zapata Nino made character declarations certifying, amongst other things, that he’s never been convicted of any offence or subject to an arrest warrant or Interpol notice.  At the hearing, Mr Zapata Nino said he is not subject to any charges and effectively affirmed the certifications made in the Temporary Skill Shortage visa application.  Ms Foulds provided to the Tribunal a national police certificate certifying that there are no disclosable court outcomes reported against her.  She gave evidence that she has not been charged with any offences. 

14. I have reviewed the Department’s files.  No adverse information is recorded on the files in relation to the applicant or persons associated with the applicant.

15. Accordingly, I am satisfied that the requirements for 2.72(4) are met.

16. Regulation 2.72(5) requires that the person making a nomination is a standard business sponsor.  The applicant provided to the tribunal a letter from the Department of Home Affairs dated 2 December 2020 recording the applicant is approved as a standard business sponsor, or its approval was renewed, and the sponsorship is effective until 2 December 2025.  Accordingly, I am satisfied reg 2.72(5) is met.

17. Regulation 2.72(5A) requires that the person has paid in full any debt mentioned in section 140ZO of the Act (i.e. recovery of nomination training contribution charge and late payment penalty).

18. As stated, the applicant paid the training contribution charge at the time the Nomination was lodged with the Department and there is no late payment penalty.  Accordingly, the requirements of reg 2.72(5A) are met.

19. The criteria for approval of a nomination contain several requirements if a Subclass 457 or Subclass 482 visa holder is identified as the person to work in the nominated position.  The nominated person is Mr Zapata Nino. He does not hold a Subclass 482 visa but is proposed or nominated for a Subclass 482 visa.  Accordingly, as the nominee is not the holder of a Subclass 482 visa, the requirements of reg 2.72(6) and reg 2.72(14) do not apply.

20. Regulation 2.72(8) requires that the nominated occupation and its 6-digit code correspond to an occupation and 6-digit code specified in the instrument in force at the time the Nomination is made.

21. The ANZSCO code is 141999 for the position “Accommodation and Hospitality Manager”.  The relevant instrument is LIN19\048.  Having regard to the information contained in the Nomination, and the written submissions provided by Ms Matanle dated 26 April 2022, I am satisfied that the nominated occupation and its 6-digit code correspond to an occupation and 6-digit code specified in the relevant legislative instrument.  Accordingly, reg 2.72(8) is met.

22. Regulation 2.72(10)(a) requires that the position associated with the nominated occupation is genuine.  A similar requirement was considered in Cargo First Pty Ltd v MIBP [2016] FCA 30, where the court at [34] upheld the Tribunal’s approach to qualitatively assessing the position and comparing this with the occupation nominated in order to determine whether it was genuine. In addition, reg 2.72(10)(b) requires the position to be a full-time position, unless it is reasonable to disregard that requirement.

23. The evidence establishes that Mr Zapata Nino has been employed by the applicant in the position of hostel manager under a written contract of employment dated 19 January 2019.  He is employed full time.  His starting salary stated in the contract of employment was $56,500.  The evidence establishes that the salary was increased as of 10 February 2022 to $65,000. In or about May 2022 it was further increased to $70,000.  The applicant provided to the Tribunal organisation charts recording the positions of various employees within the company including the Mr Zapata Nino and Mr Cooney.  The employment contract specifies Mr Zapata’s responsibilities.  The Nomination lodged by the applicant also records the applicant’s responsibilities and main tasks.  In the written submissions by Ms Matanle dated 26 April 2022, which were adopted by Mr Cooney at the hearing, it is stated that: - “The nominee currently manages the Magnetic Island venue with 188 beds and a bar.”  Based on this evidence, overall, I am satisfied that the nominated position or occupation is genuine and full time.  Accordingly, the requirements of reg 2.72(10) are met.

24. Regulations 2.72(11) and (12) require that the nominee will be engaged only as an employee under a written contract of employment, and the applicant will give a copy of the contract, signed by the employer and nominee, to the Minister unless the nominated occupation is specified in the relevant legislative instrument. 

25. As stated, Mr Zapata Nino is employed under a written contract of employment dated 19 January 2019.  The contract of employment is signed by Mr Fantini, the general manager of the applicant, and Mr Zapata Nino.  Mr Fantini was available to give evidence but was not required.  The department file indicates that the contract of employment was provided to the department.  For these reasons the requirements of reg 2.72(11) and (12) are met. 

26. Regulation 2.72(15) contains several requirements which must be met if the nominee’s annual earnings in relation to the nominated occupation will not be at least the amount specified in the relevant legislative instrument. 

27. The Department’s Decision states:

    I have assessed the applicant’s application against the prescribed criteria in regulation 2.72 of the Migration Regulations and I am not satisfied that the applicant meets subregulation 2.72(15).

    The applicant is a standard business sponsor, and the nominee’s proposed annual earnings are less than $AUD250,000 (the amount specified in the legislative instrument for paragraph 2.72(15)(b).  Therefore, the applicant must satisfy the relevant requirements of subregulation 2.72(15) for the Nomination to be approved. 

    Temporary Skilled Migration Income Threshold (TSMIT) assessment

    One of the requirements for approval of a nomination as specified in paragraph 2.72(15)(d) is that the monetary component of the AMSR for the nominated occupation is not less than the temporary skilled migration income threshold (TSMIT), unless it is considered reasonable to disregard this requirement.

    The TSMIT is specified in the relevant legislative instrument, and is currently AUD53,900.

    The applicant has determined that the monetary component of the AMSR is $56,500. 

    Paragraph 2.72(16)(a) provides the requirements of paragraph 2.72(15)(b) may be disregarded if:

    ·the complete salary package (i.e. including non-monetary components) for the    equivalent worker is not less than the TSMIT, and;

    ·it is considered reasonable to do so.

    The applicant provided the Base and Palace Employees Employee Collective Agreement 2008-2013 indicating that a manager would be paid an annual salary of $36,515.29.

    As this amount is less than the TSMIT I have considered whether it is reasonable in the circumstances to disregard the requirements of paragraph 2.72(15)(d).

    Under policy, it is generally only considered reasonable to do so where:

    ·the AMSR determination is based on the guaranteed annual earnings of an equivalent Australian worker (i.e. an actual Australian worker is currently being paid under these salary arrangements; or

    ·there is no equivalent Australian worker, but the AMSR determined is based on the guaranteed annual earnings that an equivalent Australian worker would be entitled to under an Enterprise Agreement or Award provision, given the same circumstances exist (i.e. the industry has workplace agreements in place that guarantee that these salary arrangements would apply to an equivalent Australian work if employed).

    The evidence provided by the applicant indicates that an Australian would be paid approximately $36,515.29 and not $56,500 stated in the application the evidence indicate (sic)  the salary being offered is not aligned to the typical work practices of the organisation and cannot be substantiated.  As neither of the above scenarios apply in the applicant’s circumstances, I do not consider it reasonable to disregard the requirements of paragraph 2.72(15)(d), and consequently paragraph 2.72(15)(d) is not met. 

28. Since the Department’s Decision, the evidence before the Tribunal establishes that on 18 March 2022 the Fair Work Commission determined that the Base and Palace Employee Collective Agreement 2008 to 2013 terminated, and the termination came into effect on the day of the decision, namely 18 March 2022.  The employees are now covered by the Hospitality Industry (General) Award 2020.  The applicant provided a copy of the Award to the Tribunal.  In the Award, Mr Zapata Nino’s role is classified as Managerial Staff (Hotels) level and the minimum annual salary payable for this position is $51,130 (paragraph 18.2).  The helpful written submissions from Ms Matanle dated 26 April 2022, which were adopted at the hearing by Mr Cooney, record that the applicant pays its managerial staff in excess of the award amount.  It contains a table identifying the names of 6 managers employed in the position of hostel manager who each receive an annual salary of between $55,525 and $85,000.  The applicant provided to the Tribunal signed letters of offer for these employees together with pay records.  As stated, Mr Zapata Nino’s salary since May 2022 has been $70,000. 

29. Having regard to the above and the evidence before the Tribunal, I am satisfied that Mr Zapata Nino’s earnings and the terms of his employment are equivalent to those provided to an Australian citizen or permanent resident performing equivalent work, albeit in different locations.  I am satisfied that the requirements of reg 2.72(15)(c), 2.72(15)(d), 2.72(15)(e), 2.72(15)(f) and 2.72(15)(g) are met.

30. Regulation 2.72(18)(a) requires that there is no information known to Immigration that indicates that the employment conditions (other than in relation to earnings) that will apply to the nominee are less favourable than those that apply, or would apply, to an Australian citizen or permanent resident performing equivalent work at the same location, unless it is reasonable to disregard any such information.

31. Having regard to the above evidence including the employment contract for Mr Zapata Nino and the employment contracts for other hostel managers (at albeit different locations), I am satisfied that regulation 2.72(18)(a) is satisfied.

1. As the applicant is lawfully operating business in Australia, it must also not have engaged in discriminatory recruitment practices: reg 2.72(18)(b).  In this case, the applicant is lawfully operating a business in Australia and there is no evidence that it is engaged in discriminatory recruitment practices and I find that it has not done so.

2. Section 140GBA requires that a person who nominates an occupation in an associated position to fulfill the “labour market testing condition”.  For these purposes, labour market testing means testing of the Australian labour market to demonstrate whether a suitably qualified and experienced Australian citizen or permanent resident is readily available to fill the position.  To satisfy the labour market testing condition, the testing must be undertaken within a prescribed period as set out in LIN18/036.  At the time of application this legislative instrument required that advertisements needed to run for at least 28 days for nomination, and at the time the application was lodged only two advertisements were required.  The evidence before the Tribunal establishes that no international trade obligations were applicable and the application was not otherwise exempt from needing to provide evidence of labour market testing.  At the time of lodgement, only 2 advertisements needed to be posted, and these were advertised or posted on the Indeed and jobactive platforms.  The advertisement on jobactive was posted on 23 November 2018. It produced 150 applications. No positions were offered as the applications were found to be unsuitable and the applicants lacked suitable skills and experience for the nominated position.  The evidence establishes that the advertisement for Indeed was posted on 22 November 2018. It produced 10 applications.  No positions were offered as the applicants were found to lack suitable skills and experience. 

3. The evidence establishes that no Australian citizens or permanent residents in equivalent roles have been made redundant in four months prior to the lodgement of the initial application. 

4. Overall, I am satisfied that: - labour market testing has been undertaken in the specified period; and labour market testing was undertaken in the manner set out in the legislative instrument (LIN18/036); the Nomination was accompanied by evidence of labour market testing (see pages 9 and 10 of the Nomination; the Nomination states 3  (page 11) that the applicant has not retrenched any Australian citizens or Australian permanent residents in the nominated occupation, or made their positions redundant in the 4 months prior to lodgement of the Nomination; that there is no suitably qualified experienced Australian citizens, permanent residents or eligible temporary visa holders available to fill the nominated position, other than Mr Zapata Nino and no Australians or permanent residents were made redundant\retrenched. 

5. Having regard to the above evidence, the market testing requirements in section 140GBA have been met. 

6. Section 140ZM imposes a liability on a person to pay a nominated training contribution charge where the nomination is of a prescribed kind.  It is accepted that there is a nominated training contribution charge.  The evidence establishes that this was in the amount of $3,600 which was paid on the date the Nomination was lodged, namely 21 January 2019. Accordingly, the requirements of section 140GB(2)(aa) are met. 

7. For the above reasons, I am satisfied the applicant meets all the applicable criteria for the Nomination to be approved.

   DECISION

8. The Tribunal sets aside the decision not to approve the Nomination and substitutes the decision that the Nomination is approved. 

   Peter Newton SC
   Member