C FUXING & W.L JIANG (Migration)

C FUXING & W.L JIANG (Migration) [2021] AATA 4871 (8 November 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  C FUXING & W.L JIANG
CASE NUMBER:  1829642
HOME AFFAIRS REFERENCE(S):          BCC2017/4922773
MEMBER:Joanne Bakas
DATE:8 November 2021
PLACE OF DECISION:  Adelaide
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Statement made on 08 November 2021 at 2:17pm
CATCHWORDS
MIGRATION–nomination – Cook – Direct Entry nomination stream – genuine need to employ a paid employee to work in the position under the nominator’s direct control – nominated position is based in regional Australia – position associated with the nominated occupation is genuine –decision under review set aside
LEGISLATION
Migration Act 1958, ss 65, 245AR
Migration Regulations 1994, rr 1.13, 5.19
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 21 September 2018 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 22 December 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).
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)(a)(ii) of the Regulations because the delegate was not satisfied that the applicant had demonstrated a genuine need to employ a paid employee to work in the position under the nominator’s direct control.
Mr Fuxing Chen appeared on behalf of the applicant before the Tribunal on 12 October 2021 via audio and video conference on MS Teams to give evidence and present arguments. The Tribunal also received oral evidence from Ms Dipmala Chiragkumar Patel, the nominee of the applicant.
The Tribunal hearing was conducted with the assistance of interpreters in the Hindi, Mandarin and English languages.
The applicant was represented in relation to the review. The representative attended the Tribunal hearing via MS Teams.
The Tribunal exercised its discretion to hold the hearing by audio and video conference on MS Teams. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by MS Teams, 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 MS Teams. 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 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)
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.
The Tribunal finds that the application for approval:
·was made on the approved online form and was accompanied by the fee prescribed in r.5.37;
·includes a written certification stating whether the nominator has engaged in conduct in relation to the nomination that contravenes s. 245AR(1); and
·identifies a need for the nominator to employ a paid employee to work in the position under the nominator’s direct control.
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.
The documents before the Tribunal show the nominating business, C Fuxing & W.L Jiang, is a family partnership. A letter from the Australian Taxation Office (ATO) shows the business was first registered for GST on 31 July 2015. Further an ABN Lookup document provide by the applicant dated 14 June 2019 details the ABN of the partnership is 53 987 959 968. The business was located in Renmark (postcode 5341) until its relocation to Paringa (postcode 5340) from 14 June 2019.
The applicant’s tax returns for the 2019 and 2020 financial years were submitted to the Tribunal as well as financial accounts for these years. A number of Business Activity Statements were also submitted to the Tribunal for the period January 2019 to March 2021.
Having considered all of the evidence before it, the Tribunal is satisfied that the nominator is actively and lawfully operating a business in Australia and directly operates that business.
Accordingly, the requirement in r.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.
It was put to the applicant at the hearing that the 2019 partnership tax return describes the main business as labour supply service. Further the representative’s submissions dated 30 July 2021 referred to the nominator’s activities including activities relating to the hiring of labour to another business.
The oral evidence of the applicant at the hearing included that all of his employees work for him. His work does relate to contract work in that he contracts agricultural work but he does not hire out any of his employees to other businesses.
Having considered all of the evidence before it, the Tribunal is satisfied that the applicant’s business activities does not include those relating to labour hire to an unrelated business.
Accordingly, the requirement in r.5.19(4)(c) does not apply.
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 least 2 years full time, and the terms and conditions of that employment do not expressly exclude the possibility of an extension.
The applicant stated in the application form dated 22 December 2017 that they will provide full time employment for the nominee for at least two years in the role of Nurseryperson and pay a base salary of $45,053 per annum in addition to superannuation and standard leave entitlements. This base salary equates to an hourly rate of $22.80 an hour for a 38 hour week.
The applicant has provided an employment agreement dated 16 November 2017 which states that the employment contract is for a full time position as a Nurseryperson and will continue for at least two years after the visa is approved.
The contract does not expressly preclude the possibility of an extension. Rather it refers to a further extension at the end of the two-year period after the visa grant.
The Tribunal notes that in the 2017/2018 financial year the business recorded total income of 1,073,717 whereas the 2018/2019 year only had income of $665,013 and in the 2019/2020 year total income was $580,607. The oral evidence of the applicant at the hearing included that he used to operate a second farm but now he only has one farm, which resulted in the reduction of income. In any event the Tribunal notes that the business did record a net profit of $38,908 in 2018/2019 year and a profit of $39,422 in the 2019/2020 year. In addition the applicant’s evidence included that he invested money to buy plant and equipment to make things easier for his employees. He has also repaid his tax liability that had been owing to the ATO.
The Tribunal notes that the nominee has been employed by the business on a full time basis for close to four years after the nomination was lodged and that in fact she commenced working with the business in July 2015.
Based on all of the evidence before it, the Tribunal is satisfied that the applicant has the financial capacity to employ the nominee on a full time basis in the nominated position for two years full time and that the nominee will be employed in the nominated position for at least two years. The Tribunal has had regard to the employment agreement and is satisfied that the terms and conditions of the nominee’s employment does not include an express exclusion of the possibility of extending the period of employment.
Accordingly, the requirement in r.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.
The applicant’s evidence included that the salary of a Nurseryperson Grade 3 according to the Nursery Award 2010 – [MA000033] published 28 June to 17 is $20.08 per hour or a weekly rate of $763.20. In addition payscale.com data provided at the same time shows the salary range for a nursery person as being $37,979 to $49,642 per annum, or $18 $33-$23 30 per hour.
The nominee is the only Nurseryperson employed by the business. The other staff are all Pickers that are paid at a lower rate. The applicant’s written submissions and oral evidence included that the nominee is paid at a rate that is at least the amount stipulated by the award. The nominee is currently paid $23.66 per hour plus superannuation which is equivalent to a yearly salary of $46,750.
In addition, following the hearing the applicant provided up to date payscale.com data which shows that on 13 October 2021 the hourly rate in Australia for a Nursery Worker is between $18.78 and $25.65 with the average being $22.44. The applicant also provided current advertisements for: a Nursery Hand in Yarra Valley Victoria with the salary of $48,900 in addition to superannuation being offered; a Nursery Worker in Glenorie NSA with an hourly rate from $22 per hour; a Nursery Hand and a Horticultural Team Leader in Yatala Queensland with an hourly rate of $21 per hour and $20 to $25 per hour respectively.
The applicant also provided the rates of pay as at 1 July 2021 in accordance with the Nursery Award 2010 – [MA000033] which shows the current rate of pay for a Grade 4 adult is $877.60 per week (or $23.09 per hour).
The Tribunal notes that the nominated position is located in rural South Australia, about a three hour drive from Adelaide and accepts that there would be limited data available specifically for that area.
The evidence of the applicant at the hearing included that the nominee is being paid above the award rate.
Further, the Tribunal notes that a Regional Certifying Body Advice dated 12 January 2018 sky, advises that 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.
On the evidence before it, the Tribunal is satisfied that the terms and conditions of employment relating to the nominated position will be no less favourable than those that are provided or would be provided to an Australian citizen or permanent resident performing equivalent work in the same workplace at the same location.
Accordingly, the requirements of r.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.
There is no evidence before the Tribunal that suggests there is any adverse information known to the Department about the nominator or a person ‘associated with’ the nominator.
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.
There is no evidence before the Tribunal that indicates the applicant does not have a satisfactory record of compliance with the laws of the Commonwealth or of, relevantly, Western Australia, relating to workplace relations.
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 (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.
The applicant applied for the nomination as a Regional Sponsored Migration Scheme position. They are therefore required to meet the second set of requirements stated above.
To meet the second set of requirements detailed in r.5.19(4)(h)(ii), all of the following must apply:
·the position is located in ‘regional Australia’ (r.5.19(4)(h)(ii)(A));
·there is a genuine need to employ a paid employee to work in the position under the nominator’s direct control (r.5.19(4)(h)(ii)(B));
·the position cannot be filled by an Australian citizen or permanent resident who is living in the same local area (r.5.19(4)(h)(ii)(C));
·the tasks to be performed in the position correspond to the tasks of an occupation specified by instrument (r.5.19(4)(h)(ii)(D));
·the business operated by the nominator is located at that place ((r.5.19(4)(h)(ii)(E)); AND
·a Regional Certifying Body located in the same State or Territory 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) - (r.5.19(4)(h)(ii)(F)).
The Tribunal is satisfied from the evidence before it that the nominated position and business is located in Paringa South Australia which has the postcode 5063.
‘Regional Australia’ is defined in r.5.19(7) by reference to a written instrument by the Minister specifying which areas are considered to constitute ‘regional Australia’ for the purposes of r.5.19(4)(h)(ii)(F). At the time that the nomination was lodged, the relevant instrument was IMMI 17/059 which specified that all postcodes in South Australia were in ‘regional Australia’. While there has been a new legislative instruments that has come into effect and revoked IMMI 17/059, it has continued to consider all of the postcodes in South Australia as being in ‘regional Australia’.
Accordingly, the Tribunal finds that the nominated position is based in regional Australia, satisfying r.5.19(4)(h)(ii)(A).
The Tribunal now turns to consider whether the applicant satisfied the remainder of the criteria as set out in r.19.(4)(h)(ii)(B) to (F).
In regard to there being a genuine need to employ a paid employee to work in the position of Nurseryperson under the nominator’s direct control, the Tribunal has had regard to the oral evidence of the applicant at the hearing as well as the written documentation before it, including the representative’s submissions dated 30 July 2021. In particular the Tribunal notes that the applicant’s position includes that this position is to effectively replace the need for him to undertake the work as he is getting older. Without the nominee undertaking all of her tasks, he would not be able to complete all of the work required and therefore would be unable to meet his contract requirements.
In regard to being unable to fill the role with an Australian citizen or permanent resident living in the same local area, the applicant’s evidence included that they advertised the position in July and August 2017 in the local paper.
However, no suitable candidates applied for the role. Some applicants were not qualified and others were seeking very high salaries. Of those that were qualified, they were overseas students and so they too were not Australian citizens or permanent residents.
The applicant also provided a letter dated 4 May 2021 from the Hon. Nicola Centofanti, M.L.C. which refers to the shortage of skilled and unskilled workers to services in the local horticultural industry. Further, the Riverland region, which is where this business operates, requires skilled and unskilled workers who are prepared to undertake ongoing employment.
The Tribunal has had regard to the evidence of the nominee and applicant at hearing and the written submissions provided in regard to the tasks already performed by the nominee and is satisfied that they correspond to the tasks of the occupation of Nurseryperson (specified in the relevant instrument (IMMI 17/058). A detailed summary of the tasks to be performed in the position as detailed in the submissions of the applicant, are consistent with the tasks for the position in ANZSCO (362411), which includes:
a.preparing potting media and containers before planting
b.selecting seeds, bulbs and cuttings, and planting them in beds, lawn areas and tubs
c.budding and grafting vegetative material onto root stock
d.watering plants manually and controlling automatic watering operations
e.applying pesticides to control pests, diseases, weeds and nutritional and environmental plant disorders
f.keeping records of soil mixtures, plantings, treatments, losses and yields
g.selecting plants and packaging them for presentation and delivery
h.advising customers on plant care and appropriate plants for local conditions
i.may plan sales area layouts and visual merchandise presentation

The position of Nurseryperson nominated by the applicant is recorded in ANZSCO as a Skill Level 3 position. The evidence before the Tribunal includes that the nominee obtained a Certificate III in Horticulture (Wholesale Nursery) from the Australian Adelaide International College issue 27 August 2012. The nominee was also issued with a Certificate IV in Horticulture from the Imperial College of Trades on 30 November 2015. In addition the nominee has a Statement of Attainment from Smith and George Training and Consulting issue 12 May 2016 assessed as competent in the units: Prepare and Apply Chemicals; and Transport, Handle and Store Chemicals. She also has a Statement of Attainment from Growsmart Training issued 24 July 2014, assessed as competent in the unit: Operate and Maintain Chainsaw.
Having considered all of the evidence before it, the Tribunal is satisfied that there is a genuine need for the applicant to employ a paid employee to work in this position under the applicant’s direct control and that there is a need for such a position.
Further, the Tribunal notes that a Regional Certifying Body Advice dated 12 January 2018, advises that the nominated position cannot be filled by an Australian citizen or Australian permanent resident who is living in the same local area as the nominated position. It also advises that it was satisfied that there is a need for a paid employee in the nominated position within the business activities of the nominating employer.
Based on the evidence before it, including the applicant’s and nominee’s oral evidence, written submissions and documentary evidence, 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, that the position cannot be filled by an Australian citizen or permanent resident who is living in the same local area, that the business is located in regional Australia and that a regional certifying body, located in the same State as the position, has advised the Minister (in Form 1404) about the matters in r.5.19(4)(e), 5.19(4)(h)(ii)(B),and 5.19(4)(h)(ii)(C) as is required by regulation 5.19(4)(h)(ii)(F). In addition, the Tribunal is satisfied that the occupation is applicable to the nominee.
Accordingly, the requirements of r.5.19(4)(h) are met.
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.
Joanne Bakas
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)       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).

[2021] AATA 4871

8 November 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Statutory Construction

Procedural Fairness