C Clerc & T.C Clerc (Migration)

[2022] AATA 1628

C Clerc & T.C Clerc (Migration) [2022] AATA 1628 (24 May 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  C Clerc & T.C Clerc

CASE NUMBER:  1919058

HOME AFFAIRS REFERENCE(S):          BCC2017/3786076

MEMBER:Ian Berry

DATE:24 May 2022

PLACE OF DECISION:  Brisbane

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

Statement made on 24 May 2022 at 12:52pm

CATCHWORDS
MIGRATION – application for approval of nomination of position – direct entry nomination stream – accommodation and hospitality manager – tasks of position – expansion of facilities and business activities – difficulty in obtaining suitable staff in regional area – decision under review set aside

LEGISLATION
Migration Regulations 1994 (Cth), r 5.19(4)(h)(ii)(D)

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 28 June 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).

2. The applicant applied for approval on 16 October 2017. The requirements for the approval of the nomination of a position in Australia are found in reg 5.19 of the Regulations which contains two alternative streams: a Temporary Residence Transition nomination stream (reg 5.19(3)) and a Direct Entry nomination stream (reg 5.19(4)). If the application is made in accordance with reg 5.19(2) and meets the requirements of either stream, then the application must be approved. If any of the requirements are not met then the application must be refused: reg 5.19(5).

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 reg 5.19(4)(h)(ii)(D) of the Regulations because the majority of the ANZSCO tasks do not align with the job description tasks of the position.

5. The applicant appeared before the Tribunal on 27 August 2021 to give evidence and present arguments. The Tribunal also received oral evidence from Mrs Cindy Clerc.  

6. The applicant was represented in relation to the review

7. 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

8. 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.

   The application is compliant: reg 5.19(4)(a)

9. 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.

10. The application was made on the approved form.  The applicant made a written certification that they had not been engaged in conduct in relation to the nomination that contravenes s.245AR(1).  The applicant identified a need for them to employ an identified person as a paid employee to work in the position of Accommodation and Hospitality Manager ANZSCO 141999.  The position is titled ‘site accommodation manager” who is a full-time employee employed under the nominator’s direct control.

11. Accordingly, the requirement in reg 5.19(4)(a) is met.

    Nominator is actively and lawfully operating a business in Australia: reg 5.19(4)(b)

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

13. The applicant is a partnership of Mr and Mrs Clerc who purchased the freehold of a café in the regional area of Flaxton (near Maleny) in the hinterland of the Sunshine Coast, Queensland.  It was purchased in 2003.  Previously owned by a family which the applicant made substantial improvements by incorporating into the business model functions, restaurant, tourist attraction and bread and breakfast accommodation.

14. Accordingly, the requirement in reg 5.19(4)(b) is met.

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

15. 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. 

16. There is no evidence from the oral evidence given by the applicant Mrs Cindy Clerc nor from any documentary evidence that the applicant was involved in labour hire to an unrelated business.

17. Accordingly, the requirement in reg 5.19(4)(c) is met.

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

18. 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.

19. The applicant entered into an employment contract with the nominee.  It provides a job description consistent with an on-site accommodation manager and the tasks in the nominated occupation.  The employment agreement refers to the length of the employment of not less than 2 years and an extension beyond the two-year period has not been excluded.

20. Accordingly, the requirement in reg 5.19(4)(d) is met.

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

21. 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.

22. The employment of the applicant’s nominee is no less favourable than would be provided to an Australian citizen or Australian permanent resident performing equivalent work in the same workplace at the same location.  The applicant has relied on casual staff for the position within their business.  However, staff are unreliable and understandably so in a regional area not close to a source of employment.  In the past they have had casual employment, but it is unreliable.  They have not had an accommodation manager as they have taken on that responsibility.  The terms offered to the nominee are no less favourable than those which would be provided to an Australian citizen or Australian permanent resident doing the same work in the same workplace at the same location.

23. Accordingly, the requirements of reg 5.19(4)(e) are met.

    Tasks of the position, genuine need for the position and training requirements reg 5.19(4)(h)

24. 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 17/080), 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.

25. The tasks to be performed by the nominee, will be performed in Australia and correspond to the majority of tasks required of an accommodation and hospitality manager (ANZSCO 141999).  There are no conditions or caveats relevant to the nominated occupation.  There is a genuine need for the nominator to employ the identified nominee as a paid employee to work in the position of an accommodation manager (on-site accommodation manager) as a paid employee full-time, under the direct control of the applicant.

26. As the nomination is in respect of a regional occupation there is no provision for the applicant to comply with the training requirements.

27. The applicant’s business and the nominated occupation and position are located in regional Queensland.  In the expansion of the applicant’s business, they have changed and enlarge and their business activities to include functions, weddings, tourist attractions and bed-and-breakfast.  They have a facility of 7 bed-and-breakfast accommodation facilities which enhances their ability to be able to have functions coupled with overnight accommodation.

28. The business consists of 2 buildings. The one building is more related to the restaurant and catering (the applicant is referred to it as Building A).  Building B accommodates the nursery, tourist complex, the miniature village as well as the 7 bedroom bed-and-breakfast accommodation.  Despite numerous attempts to obtain suitable and qualified staff, largely because of the business’s location difficulty is experienced in attracting suitable candidates.

29. The applicant supplied the Department with the form 1404 dated 19 October 2017, from the Chamber of Commerce & Industry Queensland which is the Regional Certifying Body Advice.  The certification advises that there is a need for a paid employee in the nominated position and cannot be filled by an Australian citizen or Australian permanent resident and the terms and conditions of employment that are applicable to the nominated position will be no less favourable than the terms and conditions that are or would be provided to an Australian citizen or Australian permanent resident for performing equivalent work in the same workplace at the same location. 

30. Accordingly, the requirements of reg 5.19(4)(h) are met.

31. 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

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

    Ian Berry
    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 an identified person, as 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)       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).