Bernini Stone & Tiles Pty Ltd (Migration)

[2021] AATA 2080

Bernini Stone & Tiles Pty Ltd (Migration) [2021] AATA 2080 (20 May 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Bernini Stone & Tiles Pty Ltd

CASE NUMBER:  1821286

HOME AFFAIRS REFERENCE(S):          BCC2016/2051536

MEMBER:George Hallwood

DATE:20 May 2021

PLACE OF DECISION:  Adelaide

DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Statement made on 20 May 2021 at 3:51pm

CATCHWORDS

MIGRATION – approval of a nomination – Direct Entry nomination stream – occupation of Accountant (General) – genuine position – actively and lawfully operating a business in Australia – terms and conditions of employment – advertising of the position – decision under review set aside      

LEGISLATION

Migration Act 1958, s 245
Migration Regulations 1994, rr 1.13, 5.19, 5.37

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 6 July 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).

2. The applicant applied for approval on 15 June 2016. The requirements for the approval of the nomination of a position in Australia are found in r.5.19 of the Regulations which contains two alternative streams: a Temporary Residence Transition nomination stream (r.5.19(3)) and a Direct Entry nomination stream (r.5.19(4)). If the application is made in accordance with r.5.19(2) and meets the requirements of either stream, then the application must be approved. If any of the requirements are not met then the application must be refused: r.5.19(5).

3. In this case, the applicant has applied for approval of a nomination, seeking to satisfy the criteria in the Direct Entry nomination stream.

4. The delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19(4) of the Regulations because the delegate was not satisfied that the applicant had a genuine need to employ an Accountant (General).

5. Mr William Warren appeared before the Tribunal on behalf of the applicant on 20 May 2021 to give evidence and present arguments. The Tribunal also received oral evidence from Ms Mi-Sook Hunt, the related nominee’s manager. As this was a combined hearing with that of the nominated subclass 187 applicant – case number 1823156 – the nominee Mr Daekyu Hwang also provided oral evidence to the Tribunal.   

6. The Tribunal exercised its discretion to hold the hearing by video. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by video, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone. No concerns were raised by the applicant either to the hearing being combined or the hearing being held by video and the Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.   

7. The applicant was represented in relation to the review by its registered migration agent.

8. 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

9. 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)

10. 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.

11. I have had regard to the material provided and oral evidence and I am satisfied that the application was compliant with the process set out in r.5.19(4)(a) as the application:

    ·was made on the approved form and was accompanied by the fee prescribed in r.5.37;

    ·the completed form includes a written certification stating that the nominator has not engaged in conduct in relation to the nomination that contravenes s. 245AR(1); and

    ·the completed form identifies a need for the applicant to employ a paid employee to work in the position under the applicant’s direct control and the Tribunal is satisfied that this meets the requirement of r.5.19(4)(a)(ii).

12. 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)

13. Regulation 5.19(4)(b) requires that the applicant is actively, lawfully and directly operating a business in Australia.

14. The Tribunal had regard to written and oral submissions including:

    ·Financial statements, business activity statements, lease agreements and ASIC documents demonstrating the business is active and directly operating a business in Australia.

    ·An oral statement from Mr Warren confirming that the business is actively, lawfully and directly operating a business in Australia.

15. The Tribunal is satisfied that the applicant is actively, lawfully and directly operating a business in Australia.

16. Accordingly, the requirement in r.5.19(4)(b) is met.

    Position is not labour-hire: r.5.19(4)(c)

17. 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. 

18. Documentary evidence provided to the Tribunal including the business organisation chart, contract of employment, and the oral evidence of Mr Warren confirmed to the Tribunal’s satisfaction:

    ·the applicant is not involved in labour hire activities; and

    ·the nominated position is employed wholly within the nominator’s business and is not for hire to unrelated businesses.

19. Accordingly, the requirement in r.5.19(4)(c) is met.

    Term of employment of the visa holder: r.5.19(4)(d)

20. 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. 

21. An employment contract between Bernini Stone and Tiles Pty Ltd and Mr Daekyu Hwang dated 1 February 2021 provides for a contract of “at least two (2) years from the date of commencement, which is to take place immediately after the grant of the permanent residency (subclass 187) visa by the Department, not precluding the possibility of an extension”.

22. At the hearing Mr Warren stated that he definitely intended to extend Mr Hwang’s contract beyond two years.

23. The Tribunal is satisfied that the nominee is to be employed for at least two years and that the terms and conditions of that employment do not expressly exclude the possibility of an extension.

24. Accordingly, the requirement in r.5.19(4)(d) is met.

    No less favourable terms and conditions of employment: r.5.19(4)(e)

25. 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.

26. At the time of application, the nominee’s contract of employment provided for a salary of $56,000 plus superannuation and a standard set of terms and conditions of employment. The applicant provided information from the Payscale web site demonstrating that the median annual salary of an Accountant in Australia was $55,185 on 10 June 2016. The Seek web site of the same date showed $56,000 as the national average wage for accountants.

27. The nominee’s latest contract of employment dated 1 February 2021 provides a base salary of $65,500 per annum plus superannuation together with a standard set of terms and conditions. A number of job advertisements provided to the Tribunal for similar positions in Western Australia demonstrate similar and no less favourable terms and conditions of employment.

28. For these reasons the Tribunal is satisfied that the terms and condition applicable to the position will be no less favourable than those that are/would be provided to an Australian citizen or permanent resident performing equivalent work in the same workplace at the same location.

29. Accordingly, the requirements of r.5.19(4)(e) are met.

    No adverse information known to Immigration: r.5.19(4)(f)

30. 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. 

31. There is no information before the Tribunal which suggests that there is any adverse information known to the Department.

32. Accordingly, the requirements of r.5.19(4)(f) are met.

    Satisfactory compliance with workplace relations laws: r.5.19(4)(g)

33. 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.

34. Mr Warren stated that the applicant has complied with workplace relations laws over the 30 years they have operated as a business. The applicant indicated that a previous employee had been successful in a claim of unfair dismissal in February 2018 requiring a payment of $3,052.98 and no other penalties.

35. While the term ‘workplace relations laws’ is not defined in the legislation, fairness in dismissing an employee is certainly the type of obligation that would be captured by the term. The term ‘satisfactory record’ is also not defined in the legislation but the term does not suggest blemish-free. 

36. The Tribunal has considered the applicant’s explanation of the reasons for the employee lodging the claim, the quantum of the penalty, and the applicant’s assertion that this is the only occasion in 30 years of business that they have been penalised. On balance the Tribunal is satisfied that they have demonstrated a satisfactory if not perfect record of compliance with workplace relations laws in the locations in which it operates a business and employs staff.

37. 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)

38. Regulation 5.19(4)(h) contains a number of alternative requirements. These are set out in detail in the attachment to the decision but can be briefly summarised as requiring either that:

    ·the tasks to be performed in the position will be performed in Australia and correspond to those of an occupation specified by the Minister (see legislative instrument IMMI 17/058), the occupation is applicable to the proposed employee in accordance with any specifications made in that instrument, and specified training requirements are met; or

    ·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.

    39.Relevantly for this matter, as an application under the Regional Sponsored Migration Scheme visa under the Direct Entry nomination stream, the Tribunal has found:

    ·The instrument IMMI 13/049 was the instrument in force for nomination applications for determining ‘regional Australia” at the time this application was made.

    ·Both the position Accountant (General) and the business (Bernini Stone and Tiles Pty Ltd), being located in Western Australia, were located in ‘regional Australia’ as all postcodes in the state of Western Australia were included as regional Australia in IMMI 13/049.

    ·For these reasons the Tribunal is satisfied that the position is in regional Australia.

    ·The applicant provided oral and written evidence that the applicant is the principal company in the Bernini Group supplying and installing stone products, and also providing the management and operational support to the five other companies within the group. The applicant is a medium sized business with a turnover of approximately $16 million per annum.

    ·The applicant has entered into evidence ASIC Current and Historical excerpts for all six companies in the Bernini Group as well as a range of financial information. Mr Warren explained the difference between the in-house accounting function and the work performed by the applicant’s external accountants. This was confirmed within the written submissions of the applicant, their external accountant, and oral evidence of Ms Hunt.

    ·Written and oral submissions identify that the provision of accounting services across the Bernini Group is essential to the business of the applicant and the current four positions in the accounts department are essential positions that are very relevant to the company’s structure.

    ·For these reasons the Tribunal is satisfied that there is a genuine need to employ a paid employee to work in the position under the nominator’s direct control.

    ·Mr Warren stated that the applicant had advertised the position at the time of lodging the application and was unable to find any suitable Australian citizen or permanent resident to fill the role. The applicant has also provided evidence of ongoing advertising of the position and stated that a number of employment trials in the ensuing years had not resulted in a suitable Australian accountant. A statement outlining recruitment efforts was included in Mr Warren’s written submission of 1 February 2021.

    ·For these reasons the Tribunal is satisfied that the position cannot be filled by an Australian citizen or permanent resident who is living in the same local area.

    ·The Tribunal is satisfied that the tasks performed in the position as described in the position description provided - and confirmed orally by Mr Warren, Ms Hunt and Mr Hwang - closely correspond with the tasks of the occupation Accountant (General) – ANZSCO Code 221111 contained in the instrument IMMI 17/058 and there are no additional applicability requirements for this occupation. 

    ·File evidence demonstrates to the satisfaction of the Tribunal that Skilled Migration WA, Department of Training and Workforce Development, as the Regional Certifying Body described in the relevant instrument IMMI 13/049, located in the same State as the position has advised the Minister about the matters in r.5.19(4)(e) and r.5.19(4)(h)(ii)(B) & (C) on 26 June 2016.

39. Accordingly, the requirements of r.5.19(4)(h) are met.

    CONCLUDING PARAGRAPH

40. 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

41. The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

    George Hallwood
    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).