Bossbulbs Pty Ltd (Migration)

Bossbulbs Pty Ltd (Migration) [2020] AATA 4513 (27 October 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Bossbulbs Pty Ltd
CASE NUMBER:  1802987
HOME AFFAIRS REFERENCE(S):          BCC2017/1254902
MEMBER:Peter Emmerton
DATE:27 October 2020
PLACE OF DECISION:  Adelaide
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Statement made on 27 October 2020 at 1:16pm
CATCHWORDS
MIGRATION – application for approval of nomination of position – financial capacity to provide full-time employment for two years – financial records for four years since delegate’s decision provided to tribunal – company being established at time of delegate’s decision – rapid growth and growing financial stability – nominee’s language skills and cultural knowledge – decision under review set aside
LEGISLATION
Migration Regulations 1994 (Cth), r 5.19(4)(d)(i)
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 18 January 2018 to reject the applicant’s application for approval of the nomination of a position in Australia under r.5.19 of the Migration Regulations 1994 (the Regulations).
The applicant applied for approval on 3 April 2017. The requirements for the approval of the nomination of a position in Australia are found in r.5.19 of the Regulations which contains two alternative streams: a Temporary Residence Transition nomination stream (r.5.19(3)) and a Direct Entry nomination stream (r.5.19(4)). If the application is made in accordance with r.5.19(2) and meets the requirements of either stream, then the application must be approved. If any of the requirements are not met, then the application must be refused: r.5.19(5).
In this case, the applicant has applied for approval of a nomination, seeking to satisfy the criteria in the Direct Entry nomination stream.
The 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 applicant appeared before the Tribunal on 27 October 2020, represented by Mr Wei Xian Lee, Director, in a combined hearing with MRT file ref.1805434, to give evidence and present arguments. The Tribunal also received oral evidence from Ms Lin Cheng, the visa applicant. The Tribunal found those presenting evidence credible and they appeared to answer questions in an open and honest manner without obfuscation.
The Tribunal exercised its discretion to hold the hearing by telephone. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, 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. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.
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 substantial environmentally sustainable lighting business in Perth, Western Australia. The business services some clients that require bi-lingual language skills in Mandarin and English languages, who can be serviced by the visa applicant. In addition, the visa applicant plays a key role in dealing with and negotiating with suppliers in China who are unable to effectively communicate in English. The visa applicant is the only person able to effectively both write and speak Mandarin and 80% of the supplies are located in China.
The Tribunal accepts the evidence tendered, prior to and at the hearing that the bulk of the revenues are earned through a range of lighting design and supply services.
The visa applicant’s substantial responsibilities, previous experience, formal qualifications and attributes, align with the duties associated with a Retail Manager (General) ANZSCO 142111.
The visa applicant possesses a Master of Professional Accounting achieved in Australia and a Degree in the field of Business Management gained in China.
The Tribunal is cognisant of the challenges associated with recruiting and retaining suitably experienced staff working in the retail industry, particularly if additional language and cultural competencies are required in order to meet the demands of the client base and the supplier base.
The Tribunal received and accepted evidence from the nominator, of the salary determination and recruitment processes. The Tribunal notes the associated proof of advertising in support of their recruitment for the position using an online solution, print media and professional and personal networks. It also notes the statement provided by the nominator attesting to their recruitment efforts and associated ongoing recruitment challenges for additional staff in similar roles since appointing the visa applicant. The Tribunal notes that the visa applicant was sourced by a referral within the nominator’s networks which occurred during the recruitment campaign.
The Tribunal additionally accepts that the employment contract does not include an express exclusion of the possibility of extending the period of employment beyond the initial 2-year minimum period with the provision for extension. The contract of employment dated 23 January 2017 stated the salary as $49,500 plus 9.5% Superannuation. The current salary is $50,000. The Tribunal accepts that the visa applicant has been working full-time with the nominator as demonstrated by the Taxation documentation provided.
The Tribunal perused popular employment web sites in order to ascertain the current state of the market in this field. The Tribunal observed an extremely large number of related vacancies, in a wide variety of locations and organisations currently under recruitment. The Tribunal is not without understanding of the specialist knowledge and personal attributes required in this unique area as the dominant supplier base is Chinese in ethnicity and the market from which the firm obtains 80% its’ products. The Tribunal is cognisant that many of the observed positions may appear to be equally or more attractive environments to some candidates than the nominated position in this relatively geographically isolated Perth, WA location.
The Tribunal notes a ‘Satisfied’, RCB Certificate issued by the relevant certifying body. The date of the certificate is 8 March 2017.
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 RSMS Direct Entry stream (r.5.19(4)(h)(ii)) and consequently no fee is payable. The Tribunal finds the applicant meets r.5.19(2).
The Tribunal notes that the business is operating on a moderate and growing staffing ratio. It also accepts that having a Manager with a diverse cultural understanding and multi-lingual verbal and written skills, as well as the competencies normally associated with a highly trained post-graduate accounting degree is potentially advantageous to the business. The Tribunal acknowledges that finding and subsequently retaining such an individual may be challenging.
The Tribunal is satisfied that the application has identified a need for a paid employee to work in the position of Retail Manager (General), ANZSCO 142111, 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 range of BAS Statements Profit and Loss Statements and ATO Taxation information, all of which correlated. The company’s taxation accountants provided a statement attesting to the viability of the business and its’ capacity to pay creditors and continue to remunerate the visa applicant.
ASIC Registration details were researched by the Tribunal for this business entity. The Tribunal checked the status of the listed ABN and perused the company web site. In addition, photographs were observed by the Tribunal which demonstrate the business and staff, its growth and subsequent relocation into more significant premises. 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 presented to it, than was given to the delegate at the time of their decision. The Tribunal notes that close to 4 years have passed following the submission of the original application. It also observes that the financial position for the group for FY 2020 which has been provided, is substantial.
Revenues total in excess of $1.3m for the Boss Group. A second company, (Boss Illumination Pty Ltd) has been opened up alongside of the ongoing Boss Bulbs Pty Ltd and it provides a substantial amount of the income for the group. However, the nominating entity continues to operate as the retailing outlet, its’ ABN is still operational and is returning a profit of 29% before tax. This includes the wages and on-costs of the visa applicant.
The Tribunal observes that the sister company in its FY 2020 Profit and Loss statement has produced a profit of more than $60,000 before tax. Its revenues have grown from $172,000 in FY 2018 to $1.2m in FY 2020.
The Tribunal acknowledges that at the time of the delegate’s decision the new company was being established and additional costs were evident on the balance sheet as a direct result of the investment being undertaken. It is also evident that the transition into profit has been relatively rapid.
The Tribunal accepts as fact that business group has not been negatively impacted as a direct result of Covid-19 and the nominator stated that revenues had grown substantially. Under questioning he estimated a revenue of approximately $700,000 to October 2020 and expects a total revenue for the group to approximate $2m for FY 2021.
The growing financial stability of the nominating entity in an ever increasingly competitive market, attests to its’ ability to employ the visa applicant. The niche market in which it operates also adds an additional potential level of resilience. Whilst both entities are profitable and there is synergy and resilience provided by having the 2 entities co-exist which in turn provides greater stability for Boss Bulbs Pty Ltd, the Tribunal believes that it is the nominating entity which must be primarily considered in this decision. It again notes that the visa applicant’s salary and on-costs are expensed against Boss Bulbs Pty Ltd. 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.
The Tribunal has had regard to the Employment Agreement and 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.
The Tribunal observes that one of the potential challenges facing the business is retaining the visa applicant and the nominator’s obvious reliance upon their services particularly as they deal with the Chinese suppliers and organise the sometimes complex, inter-country logistics. This is particularly evident when considering the acknowledged challenges associated with recruiting and retaining similar individuals.
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. It is also aware that the big retailing firms and major accounting firms frequently source candidates from the smaller firms post their initial development.
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 employment contract. The Tribunal accepts that the nominee’s current annual salary of $50,000 plus Superannuation at the rate of 9.5% as reflective of their qualifications and experience. The Tribunal acknowledges the nominator’s desire to pay a bonus to staff this financial year based upon the increased financial performance of the group.
The Tribunal researched the salaries offered for similar positions and had regard for the salary determination evidence provided by the applicant. The remuneration appears to fall within the mid-lower quartiles of similar positions on offer. 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, scope and design of the nominating entity’s business operation. It is self-evident that the nominator cannot operate this growing business entity without a substantial reliance upon the visa applicant. It is a “hands-on’ client focussed industry which ultimately requires customer facing employees regardless of skilful reliance upon technology to augment sales and outcomes. The nominator stated during the hearing that he intends to hire at least 1 additional staff member in the current year. The Tribunal has no reason to disbelieve him when it considers the increasing business being serviced.
The Tribunal accepts as fact that the warehousing team and the sales team report directly to the visa applicant. It also accepts that the visa applicant is the person responsible for determining product mix, sales and marketing campaigns, international manufacturing requests and international logistics.
The Tribunal is satisfied that there is a genuine need for the nominator to employ a paid employee to work in the position under the nominator’s direct control.
The Tribunal received and accepted evidence from the nominator, of the salary determination and recruitment processes. The Tribunal notes the associated proof of advertising in support of their recruitment for the position using an online solution, print media, professional and personal networks. It also notes the statement provided by the nominator attesting to their recruitment efforts and associated ongoing recruitment challenges for additional staff in similar roles since appointing the visa applicant.

The Tribunal accepts as fact that following the recruitment campaign, they received 3 Resumes’ and applications, 3 of whom were short-listed and interviewed. The visa applicant was considered the only appropriate applicant due to a combination of her experience, multi-lingual competencies, academic qualifications and cultural fit within the existing business coupled with an ability to deal with their Chinese suppliers both in writing and verbally.
The Tribunal acknowledges that there are a very large number and range of similar roles readily available in Perth and throughout Australia. The relatively isolated location in Perth, Western Australia may also provide a negative employment circumstance further limiting the potential candidate pool.
Once again, the Tribunal observes that substantially more comprehensive evidence was provided to it, than was presented to the delegate at the time of their decision. The Tribunal is also aware of the employment market distortions created by the mining industry cycles in Western Australia and 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 has reviewed both the relevant descriptors supplied in ANZSCO 221111 for Accountant (General) and the stated duties of the visa applicant. The Tribunal acknowledges that the ANZSCO descriptors are a guide, not a mandatory definitive reference.
The position of Retail Manager (General), ANZSCO 142111, nominated by the applicant is referred to in ANZSCO as a skill level 2 position and the Tribunal is satisfied that the visa applicant is operating at that level.
The Tribunal is satisfied that the applicant meets 5.19(4)(h)(ii).
The Tribunal has had regard to Form 1404 issued by an RCB (Skilled Migration WA), dated 8 March 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.
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).

[2020] AATA 4513

27 October 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Remedies

Standing