Carisbrook Collision Repair Centre Pty Ltd (Migration)

Carisbrook Collision Repair Centre Pty Ltd (Migration) [2019] AATA 2744 (18 April 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Carisbrook Collision Repair Centre Pty Ltd
CASE NUMBER:  1801357
DIBP REFERENCE(S):  BCC2017/2055874
MEMBER:Peter Emmerton
DATE:18 April 2019
PLACE OF DECISION:  Adelaide
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Statement made on 18 April 2019 at 1:30pm

CATCHWORDS
MIGRATION – nomination – Direct Entry Nomination stream – application must identify a need for the nominator to employ – terms and conditions of employment are equivalent to other employees – applicant is actively, lawfully and directly operating a business – position cannot be filled locally – viable financial situation – satisfied the business will able to sustainably employ the nominee – satisfactory record of compliance – decision under review substituted

LEGISLATION
Migration Act 1958 (Cth), s 245AR(1)
Migration Regulations 1994 (Cth), rr 1.13A, 1.13B, 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 Immigration on 8 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 10 June 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 (r.5.19(3)) stream and a Direct Entry nomination (r.5.19(4)) stream. 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)(a)(ii) of the Regulations because they were not satisfied that the applicant had identified the need for a paid employee to work in the position under the direct control of the nominator.
The applicant was represented in relation to the review by its registered migration agent.
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.
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.
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 particular 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 very large automobile collision repair business in the northern suburbs of Adelaide, South Australia.
The visa applicant’s responsibilities, experience and attributes, clearly align with the duties associated with a Panelbeater, ANZSCO 324111.
The Tribunal is cognisant of the challenges associated with recruiting and retaining suitably experienced and staff working in this field. It is well known to the Tribunal that recruitment in this field is difficult and retention similarly challenging due to the competing demands for skilled individuals.
The Tribunal received from the nominator, evidence of the salary determination, recruitment processes and associated advertising in support of their wage determination. The Tribunal also notes the provision of a 2 year contract with the provision for extension. The nominated salary is $28-00 per hour plus overtime and 9.5% Superannuation, which appears to be in the middle of remuneration levels for similar roles.
The Tribunal perused popular employment web sites in order to ascertain the current state of the market in this field. The Tribunal observed a large number of related vacancies, in a wide variety of locations and organisations currently under recruitment. 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 region of Adelaide.
The Tribunal notes that an RCB Certificate has been issued by the relevant certifying body, following their acceptance of the compliance measures undertaken by the nominating entity. The date of the certificate is 4 October 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 from the current Organisation Chart that the business is operating on a substantial staffing ratio and asserts that it is one of the largest such operations in Adelaide. An associated declaration by the employer stating that their continued growth is hampered by finding sufficient employees and constant vacancies, adds further weight to their stated need to fill this role. The Tribunal also notes a letter of reference provided by the local Federal MP attesting to their contribution to the community as a substantial employer.
The Tribunal is satisfied that the application has identified a need for a paid employee to work in the position of Panelbeater ANZSCO 324111, under direct control of the applicant. 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 was provided with a range of Business Tax Returns, Profit and Loss Statements including those produced for FY 2017 and FY 2018 and BAS documentation, all of which correlated. ASIC Registration details were provided, the Tribunal checked the status of the listed ABN and perused the company web site. 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 business appears to be in a healthy and profitable state, has steadily growing revenues, FY 2018 being $8.1m, up from $7.3m in FY 2017. The long-term stability of the nominating entity further attests to its capacity to employ the visa applicant as does the letter from their accountants stating their viable financial situation. The Tribunal is satisfied that the business will be able to sustainably, employ the nominee for the required 2-year minimum period.
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. It is also observed by the Tribunal that one of the challenges facing the business is retaining the visa applicant and their obvious reliance upon his services and those of his colleagues.
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 pay rate of $28-00 per hour for a 38 hour week, plus paid overtime and Superannuation at the rate of 9.5%, as appropriate and is reflective of his experience relevant to the nominated position. The Tribunal researched the salaries offered for similar positions and had regard for the salary determination evidence provided by the applicant. 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 reflects upon the longevity of employment of the incumbent staff and 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 notes that 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 they were not satisfied that the applicant had identified the need for a paid employee to work in the position under the direct control of the nominator.
The Tribunal has had regard to the size and scope of the nominating entity’s business operations and the rapid growth in revenues exceeding 10% year on year up to FY 2018 with revenue exceeding $8,000,000.
The Tribunal also notes that due to the nature of the skills required and the ‘hands on’ approach to the profession, that in spite of evolving technology the core requirement needed if a business is to thrive and grow is skilled trade’s people, physically working on the vehicles being rehabilitated.
It is accepted by the Tribunal, that as explained by the applicant, inadequate employees at this level puts other roles within the organisation at risk. The Tribunal notes the reports presented to it, demonstrating substantial delays in work completion resulting from insufficient skilled employees. This situation could potentially jeopardise employment of related staff through reputational damage and an inability to satisfy major client contracts in a timely fashion.
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.
Evidence was presented regarding the ongoing challenging recruitment process and subsequent selection of a suitable candidate for the visa applicant’s role and the remaining vacancies at the time the nominee was recruited. It is also observed that the vast majority of this large workforce are either Australian Citizens or Permanent Residents.
The Tribunal notes that much of the evidence presented to it was not available to the delegate at the time of their decision.
The Tribunal 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 relative descriptors supplied in ANZSCO 324111 for Panelbeater and the stated duties and qualifications of the visa applicant.
The position of Panelbeater, ANZSCO 324111, nominated by the applicant is referred to in ANZSCO as a skill level 3 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)(i) and 5.19(4)(h)(ii).
The Tribunal has had regard to Form 1404 issued by an RCB (Department of State Development), dated 4 October 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).

[2019] AATA 2744

18 April 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Statutory Construction

Procedural Fairness

Remedies

Jurisdiction