Broken Head Road Films Pty Ltd (Migration)
[2022] AATA 328
•3 February 2022
Broken Head Road Films Pty Ltd (Migration) [2022] AATA 328 (3 February 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT: Broken Head Road Films Pty Ltd
REPRESENTATIVE: Mr Surenthren Mathavan (MARN: 1382609)
CASE NUMBER: 1902899
HOME AFFAIRS REFERENCE(S): BCC2018/984919
MEMBER:De-Anne Kelly
DATE:3 February 2022
PLACE OF DECISION: Brisbane
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.
Statement made on 03 February 2022 at 12:35pm
CATCHWORDS
MIGRATION – approval of a nomination – Direct Entry nomination stream – position of Camera Operator – genuine need for the – terms and conditions of employment no less favourable – tasks of the position – contracts secured during pandemic period – relevant skills assessment – decision under review set aside
LEGISLATION
Migration Act 1958, s 245
Migration Regulations 1994, rr 1.13, 5.19STATEMENT 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 21 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 1 March 2018. The requirements for the approval of the nomination of a position in Australia are found in reg 5.19 of the Regulations which contains two alternative streams: a Temporary Residence Transition nomination stream (reg 5.19(3)) and a Direct Entry nomination stream (reg 5.19(4)). If the application is made in accordance with reg 5.19(2) and meets the requirements of either stream, then the application must be approved. If any of the requirements are not met then the application must be refused: reg 5.19(5).
In this case, the applicant has applied for approval of a nomination, seeking to satisfy the criteria in the Direct Entry nomination stream.
The delegate refused the application on the basis the applicant’s nomination did not satisfy reg 5.19(4)(h)(i)(AA) of the Regulations because the nominator had not identified a genuine need to employ a paid employee to work in the position under the nominator’s direct control.
The applicant appeared before the Tribunal on 11 January 2022 to give evidence and present arguments. This was a dual hearing of both the employer nomination refusal review and the visa application refusal review.
The applicant was represented in relation to the review by legal representative Mr Russell Tien.
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 reg 5.19(4), which is extracted in the attachment to this decision. For the nomination to be approved, all the requirements must be met.
On 1 March 2018 the applicant Broken Head Road Films Pty Ltd ABN: 56 621 809 989 lodged an Employer Nomination Scheme – visa subclass 186 in the direct entry stream for the position of Camera Operator to be employed at Suffolk Park, NSW 2481 on $60,000 per annum in favour of Mr Serzas LAZARIS. The business has since re-located to the Gold Coast, QLD.
Ms Ieva Adeikyte represented the applicant and gave an overview. It has always been her dream to own a film company and she hires camera crew and equipment for television, broadcasting and other diverse environments. They have been in the market five (5) years and worked on big projects such as I’m A Celebrity, Football championship, Commonwealth Games, Coffee Club, Optus etc.
She has four (4) projects confirmed i.e., four movies and an advertisement for Coffee Club. They have a letter confirming three (3) movies by the Production House and will start on 31 January 2022. Once they used to get three notice but everything is more volatile and now they get contracted one week before the start.
The application is compliant: reg 5.19(4)(a)
Regulation 5.19(4)(a) requires that the application for approval must be in the approved form, must be accompanied by the prescribed fee, and, where applicable, must include the required written certification relating to conduct that contravenes s 245AR(1). The application must also identify a need for the nominator to employ an identified person as a paid employee to work in the position under their direct control.
Applications must be in the approved form and must be accompanied by the prescribed fee to be valid and acknowledged by the Department of Home Affairs. An acknowledgement dated 1 March 2018 was sent by the Department to the nominator as evidence of a valid application. The Department accepted a declaration made on the online form that the nominator had responded yes in the online form to the following: ‘the applicant certifies that they have not engaged in conduct in relation to this nomination that constitutes a contravention of subsection 245AR (1) of the Migration Act 1958’.
The Tribunal is satisfied that the application was made on the approved form 1395 (Internet) for post 23 March 2013 applications, accompanied by the prescribed fee and the nominator has included a written certification stating the nominator has not engaged in conduct in relation to the nomination that contravenes s.245AR(1) of the Act.
Regulation 5.19(4)(a)(ii) requires the nominator to identify a need for the nominator to employ a paid employee to work in the position under the nominator’s control. The assessment of the need for a paid employee comprises two parts: establishing the need for an employee (i.e. there exists a vacancy for the nominated position) and ascertaining that the relationship between the nominator and nominee is that of employer and employee.
The nomination does not have to specify the nominee but needs to identify a nominee before, or at the time, the associated visa application is made. Mr Serzas LAZARIS was identified in the nomination application and has been working for close to three (3) years which indicates there is a genuine need for the position.
Accordingly, the requirement in r.5.19(4)(a) is met.
Nominator is actively and lawfully operating a business in Australia: reg 5.19(4)(b)
Regulation 5.19(4)(b) requires that the applicant is actively, lawfully and directly operating a business in Australia.
An ABN lookup, recent FY 2021 financial statements and recent BAS statements demonstrate that the applicant is actively and lawfully operating a business in Australia.
Accordingly, the requirement in reg 5.19(4)(b) is met.
Position is not labour-hire: reg 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.
There is no evidence that the business labour hires, and the company representative confirmed this in the hearing. Although the company hires out equipment and camera crew for productions the client is invoiced an overall amount for the hire and the nominator still pays the wages of the nominee and these contracts are short term perhaps three weeks so the Tribunal does not consider this would constitute labour hire.
Accordingly, the requirement in reg 5.19(4)(c) is met.
Term of employment of the visa holder: reg 5.19(4)(d)
Regulation 5.19(4)(d) requires the nominee to be employed in the nominated position for at least 2 years full time, and the terms and conditions of that employment do not expressly exclude the possibility of an extension.
The business turned over $174,602 in FY 2021 according to the financial statements with wages paid of $62,308 for a profit before tax of $41,662 which is an extraordinary result when many actors and artists could not travel to Australia due to the COVID-19 pandemic and film production would have been affected.
The business has made very sound profits for the last financial year despite COVID-19 and accepting that cash flows grant for camera and equipment were made as they were for many businesses around Australia.
There is an employment contract dated 20 November 2021 which did not expressly exclude the possibility of an extension and shows a salary of $60,000 per annum. At the Tribunals request an addendum was provided which made it clear that the minimum period of employment is two (2) years and that employment is ongoing.
Accordingly, the requirement in reg 5.19(4)(d) is met.
No less favourable terms and conditions of employment: reg 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.
Market salary analysis research from Payscale and indicates that the salary of $60,000 is above the market value of camera operator.
Accordingly, the requirements of reg 5.19(4)(e) are met.
No adverse information known to Immigration: reg 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 regs 1.13A and 1.13B.
The Tribunal has no information before it from the Department that would constitute adverse information and a search of the ASIC website finds no adverse information about the nominator or a person associated with the nominator. This was confirmed by the applicant at the hearing.
Accordingly, the requirements of r.5.19(4)(f) are met.
Satisfactory compliance with workplace relations laws: reg 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 can find no unsatisfactory record of compliance for the applicant with the laws of the Commonwealth relating to workplace relations. This was confirmed by the applicant at the hearing.
Accordingly, the requirements of r.5.19(4)(g) are met.
Tasks of the position, genuine need for the position and training requirements reg 5.19(4)(h)
Regulation 5.19(4)(h) contains a number of alternative requirements. 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 in a legislative instrument, the occupation is applicable to the proposed employee in accordance with any specifications made in that instrument, there is a genuine need for the nominee to be employed as a paid employee in the position, and certain specified training requirements are met; or
·the position and nominator’s business is located in regional Australia, there is a genuine need for the nominee to be employed as a paid employee in the position under the nominator’s direct control, the position cannot be filled by a locally resident Australian citizen or permanent resident, the tasks of the position correspond to those of an occupation specified in the relevant legislative instrument, the occupation is applicable to the proposed employee in accordance with the specification of the occupation, and that a regional certifying body has advised the Minister about certain matters relating to the position.
The applicant can choose to meet either r.5.19(4)(h)(i) or (ii) and has chosen to meet the former.
Tasks to be performed – reg. 5.19(4)(h)(i)(A).
The Tribunal has considered the job description and the evidence of the tasks undertaken by the nominated position as described by the director and finds that the tasks to be preformed in the position will be performed on the Gold Coast, Australia and correspond to the tasks as shown below of an occupation specified by the Minister in an instrument in writing being the ANZSCO 399512 - Camera Operator (Film, Television or Video)
PERFORMING ARTS TECHNICIANS provide technical and other assistance for the production, recording and broadcasting of artistic performances.
Tasks Include:
ooperating microwave equipment to transmit video information to transmitter sites and receiving video signals from remote locations
omaintaining and repairing radio and television transmitters and associated equipment
oselecting and attaching equipment to cameras, positioning cameras, and following the action of scenes being photographed while adjusting controls
opositioning equipment, such as spotlights, floodlights and cables, and operating lights during filming, broadcasting and stage performances
oapplying and retouching make up during shooting and performance, including special effects make up such as scars and wounds
odesigning and making musical instruments and instrument parts using specially selected materials and techniques similar to those used in cabinetmaking, metal pipe making, silversmithing and wood carving, and tuning and repairing musical instruments
osetting up and adjusting equipment such as microphones, and operating sound mixing consoles and associated equipment to regulate volume and sound quality selecting and setting up television recording, editing and mixing equipment, and adjusting and monitoring their operation.
Genuine need to employ – reg. 5.19(4)(h)(i)(AA).
The Tribunal has considered the evidence given by the applicant of the contracts already secured for 2022 and the profits made during the FY 2021 which was impacted by COVID-19 and also the fact that the nominee has been working full time for three (3) years in the business and considers that there is a genuine need for the nominator to employ the person identified under subparagraph (a)(ii) as a psid employee to work in the position of Camera Operator under the nominators direct control.
Accordingly, r. 5.19(4)(h)(i)(AA) is met.
The occupation is applicable to the nominee – reg. 5.19(4)(h)(i)(AAA).
The nominee has 21years as a Key Grip, Gaffer and experience with lighting, camera equipment, dollies and crane. The nominee has a skills assessment as a Camera Operator dated 2018. The employer states that these skills are rare in Queensland and the nominee is a top talent as he has worked with global productions and Australia is seeking to attract the global companies and the employer can count on her fingers how many of those calibre are in Queensland.
Accordingly, r.5.19(4)(h)(i)(AAA) is met.
Training requirements – reg. 5.19(4)(h)(i)(B)(I)
According to the latest FY 2021 financial statements the company spent $4,000 on professional training and payroll for that year is wages $ 62,308 plus superannuation $5,919 or $68,227 of which 1% is $682 so the expenditure certainly complies with the instrument and Benchmark B in IMMI 17/045.
Accordingly, reg.5.19(4)(h)(i)(B)(I) is met.
Based on the findings above, the Tribunal is satisfied that the applicant meets the requirements of reg 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.
De-Anne Kelly
MemberATTACHMENT - EXTRACTS FROM THE MIGRATION REGULATIONS 1994
5.19Approval of nominated positions (employer nomination)
…
(2)The application must:
(a)be made in accordance with approved form 1395…; and
(aa) include a written certification by the nominator stating whether or not the nominator has engaged in conduct, in relation to the nomination, that constitutes a contravention of subsection 245AR(1) of the Act; and
(b)be accompanied by the fee mentioned in regulation 5.37.
…
Direct Entry nomination
(4)The Minister must, in writing, approve a nomination if:
(a) the application for approval:
(i) is made in accordance with subregulation (2); and
(ii) identifies a need for the nominator to employ an identified person, as a paid employee, to work in the position under the nominator’s direct control
(b)the nominator:
(i) is actively and lawfully operating a business in Australia; and
(ii) directly operates the business; and
(c)for a nominator whose business activities include activities relating to the hiring of labour to other unrelated businesses — the position is within the business activities of the nominator and not for hire to other unrelated businesses; and
(d)both of the following apply:
(i) the employee will be employed on a full-time basis in the position for at least 2 years;
(ii) the terms and conditions of the employee’s employment will not include an express exclusion of the possibility of extending the period of employment; and
(e)the terms and conditions of employment applicable to the position will be no less favourable than the terms and conditions that:
(i) are provided; or
(ii) would be provided;
to an Australian citizen or an Australian permanent resident for performing equivalent work in the same workplace at the same location; and
(f)either:
(i) there is no adverse information known to Immigration about the nominator or a person associated with the nominator; or
(ii) it is reasonable to disregard any adverse information known to Immigration about the nominator or a person associated with the nominator; and
(g)the nominator has a satisfactory record of compliance with the laws of the Commonwealth, and of each State or Territory in which the applicant operates a business and employs employees in the business, relating to workplace relations; and
(h)either:
(i) all of the following apply:
(A)the tasks to be performed in the position will be performed in Australia and correspond to the tasks of an occupation specified by the Minister in an instrument in writing for this sub-subparagraph;
(AA)there is a genuine need for the nominator to employ the person identified under subparagraph (a)(ii), as a paid employee, to work in the position under the nominator’s direct control;
(AAA)the occupation is applicable to the person identified under subparagraph (a)(ii) in accordance with the specification of the occupation;
(B)either:
(I)the nominator’s business has operated for at least 12 months, and the nominator meets the requirements for the training of Australian citizens and Australian permanent residents that are specified by the Minister in an instrument in writing for this sub-sub-subparagraph; or
(II)the nominator’s business has operated for less than 12 months, and the nominator has an auditable plan for meeting the requirements specified in the instrument mentioned in sub-sub-subparagraph (I); or
(ii) all of the following apply:
(A)the position is located in regional Australia;
(B)there is a genuine need for the nominator to employ the person identified under subparagraph (a)(ii), as a paid employee, to work in the position under the nominator’s direct control;
(C)the position cannot be filled by an Australian citizen or an Australian permanent resident who is living in the same local area as that place;
(D)the tasks to be performed in the position correspond to the tasks of an occupation specified by the Minister in an instrument in writing for this sub-subparagraph;
(DA)the occupation is applicable to the person identified under subparagraph (a)(ii) in accordance with the specification of the occupation;
(E)the business operated by the nominator is located at that place;
(F)a body that is:
(I)specified by the Minister in an instrument in writing for this sub-subparagraph; and
(II)located in the same State or Territory as the location of the position;
has advised the Minister about the matters mentioned in paragraph (e) and sub-subparagraphs (B) and (C).
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
Legal Concepts
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Judicial Review
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Statutory Construction
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Procedural Fairness
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Jurisdiction
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