Central Coast Winery Pty Ltd (Migration)

Central Coast Winery Pty Ltd (Migration) [2020] AATA 533 (21 February 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Central Coast Winery Pty Ltd
CASE NUMBER:  1919341
DIBP REFERENCE(S):  BCC2017/1758635
MEMBER:Susan Trotter
DATE:21 February 2020
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Statement made on 21 February 2020 at 4:45pm
CATCHWORDS
MIGRATION – Employer Nomination – approval of nominated position – Direct Entry Nomination stream – Personal Assistant – identification of need – certification by a Regional Certifying Body – financial capacity to maintain term of employment – substantial loss in 2017/18 financial year – write-off of assets – substantially higher depreciation expense – book entry – long-standing history of company – genuine need – local recruitment process – duties undertaken by nominee since commencing employment – unique skills required – decision under review set aside
LEGISLATION
Migration Regulations 1994 (Cth), r 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 10 July 2019 to reject the applicant’s Employer Nomination application for approval of the nomination of a position in Australia under r.5.19 of the Migration Regulations 1994 (the Regulations).
The requirements for the approval of the nomination of a position in Australia are found in r.5.19 of the Regulations[1], which contains alternative streams including 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, the application must be approved. If any of the requirements are not met then the application must be refused: r.5.19(5).
[1] References in these Reasons are references to the applicable regulations as at the date of the applicant’s nomination application on 17 May 2017.
The applicant applied for approval on 17 May 2017 seeking to satisfy the criteria in the Direct Entry nomination stream, nominating the position of Personal Assistant (ANZSCO[2] code 521111) to be undertaken by Ms Yan-Wen Chang (the nominee) for its business, Mount Nathan Winery which operates at Mount Nathan, Queensland (postcode 4211).
[2] Australian and New Zealand Classification of Occupations
The delegate refused the application on the basis that 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 identified a need for a paid employee to work in the position under the direct control of the nominator. The delegate noted that whilst it was accepted that the applicant may require an employee to work in the business, it was not accepted that there was a demonstrated need to employee the nominee in the nominated position. Further, the delegate was not satisfied that substantive evidence had been provided regarding local recruitment and how the nominee was selected for the position.
The applicant lodged an application for review of the delegate’s decision with the Tribunal on 17 July 2019.
Mr Peter Gibson, Managing Director of the applicant, (referred to in these Reasons as Mr Gibson), appeared before the Tribunal on 31 January 2020 to give evidence and present arguments. The Tribunal also received oral evidence from Ms Ya-Wen Chang.
The applicant was represented in relation to the review.
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
Mr Gibson’s evidence (oral and written) before the Tribunal, supported by various documentation, included as follows:
(a) The family business, Mount Nathan Winery, was founded by his father in the 1970s.
(b) He (Mr Gibson) is now the Financial Manager of the applicant and was previously the General Manager.
(c)   His son (Mr Paul Gibson) is now General Manager of the applicant.
(d) His daughter, Rebecca Morov, is the Human Resources Manager.
(e) The family run business is now based at Mount Nathan in the Hinterlands of the Gold Coast in Queensland.
(f)    The business dates back to Mr Gibson’s father picking grapes in New South Wales in the 1930s through to establishing a winery on the Central Coast of New South Wales in the 1970s, with a move to the Gold Coast Hinterland in the early 2000s after developing a range of unique honey-based products. Their products now include white wine, red wine, winter wine, barrel wine and special handmade wines and honey, including recently creamed honey. Services include cellar door and functions, wine brew tours, hospitality for tour groups and wine tasting events, and, since 2010, wine export.
(g) Notably, during the early years in its current location, the business reinvented the family style of honey wine making culminating in the creation of a honey fortified wine in 2005/2006 (and the additional importance of honey to the business), with the business now providing premium wines to the domestic and international markets and offering unique cellar door winery tours, wine tasting and honey tasting. In particular the tours cater to the many international tour groups (with Taiwanese tourists being the largest tour group market and with Chinese tourists also a significant part of the tour group market). In addition to the tour groups organised through travel agents, they also have a market with the local Chinese population who bring friends to the winery when they are visiting.
(h) 80-85% of their business is currently the tour market, equivalent to about $1.6 to $1.7 million per year and growing. Approximately 100 tour groups (approximately 3,000 people) per month on average are coming through the winery on tours at present.
(i)    As they are a ‘through’ destination for the tour groups (usually enroute to the natural glow worm attraction in the area), rather than an ‘end’ destination, providing food is not a major part of the tours. However, they have previously facilitated food service as part of the tours and the business has just acquired further facilities to cook food.
(j)    With growing revenue, and health issues for Mr Gibson (who was diagnosed with Prostate Cancer in 2016), who had previously been the General Manager, it was identified in 2017 that a full-time personal assistant was required to provide high level secretarial and administrative assistance to Mr Gibson’s son, Paul, who took over the General Manager role from Mr Gibson in early 2017. It was determined that a Personal Assistant was required so that the General Manager could focus on the daily management and strategic decision making of the business. As the business’ interest in the Chinese market had gown, they required the personal assistant to have language proficiency in both English and Chinese. Recruitment efforts locally were not successful for the position. Job advertisements were placed on for 30 days from 10 March 2017. Three applications were received but none of them met all the requirements they were seeking. One candidate who had secretarial work experience was applying from Hong Kong which made it impossible for them to start in a timely manner. The other two candidates did not have any work experience or relevant qualifications in the relevant areas, therefore making them unsuitable for the position. On 24 March 2017, the nominee brought a tour group to the winery as part of her then employment. Mr Gibson asked her if there was anyone she knew that would be suitable for the position of Personal Assistant that they were recruiting. The nominee had worked for the applicant for a few months in 2012 and 2013 and already knew the business and was known to them as a good worker. She also possessed the necessary skills, qualifications and experience for the position. She expressed interest in the position and was interviewed and it was decided to offer her the position. She had to finish working for her then employee and it was decided that she would commence with the applicant in August 2017. In the interim period, the duties of her role were distributed amongst other staff. She commenced working full-time in the position on 2 August 2017 and has continued working in the position since that time. The nominee has done an excellent job in her role, making notable contributions to the business and in order to ensure continuous development, there is a genuine need for her to continue in the role.
(k)   The business does have a reasonably high staff turnover. This is in part contributed to by its location and lack of public transportation to the location. Staff have moved on for various reasons, including relocating for family and schooling reasons.
(l)    Taiwan is their biggest market in terms of local tour groups (they currently have 60% of the Taiwanese tour groups coming to the Gold Coast). China is the biggest in terms of buying power. The 2016-2020 five year plan for the business is to expand more in China by means of social media.
(m) Revenue of the business continues to grow with gross profit increasing from $1,230,018 in 2016 to $1,386,918 in 2017 and to $1,396,728 in 2018. There was a loss in 2018 due to high depreciation and international marketing expenses.
(n) As regards the depreciation, their accountant’s letter (they have been using the same accountants since 1975) explains the paper loss incurred in the 2017/2018 financial year being due to the non-cash expense of depreciation and larger than usual marketing expenses. This came about because a new taxation rule was brought in it that financial year allowing write-off of assets under $20,000. As they have been running the business for so long, a lot of assets fell into this category and therefore there was an inflated depreciation expense in that year. It was a once-off large non-cash expense.
(o) As regards the marketing expenses in 2018, it is expected that this will lead to higher market share occupation.
(p) Since 2004, the sales of the business have doubled every five years. Essentially the business has been growing at 15% per year. This is a long-standing family business.
(q) There is no difficulty at all financially in the business continuing to employ the nominee.
Ms Chang told the Tribunal that she first worked for the applicant about seven years ago. She told the Tribunal of the many different types of jobs for which she has experience. She stated that when she was working for another employer in 2017, taking tour groups through the applicant’s winery, she became aware that they were looking for a Personal Assistant for the General Manager, Mr Paul Gibson. She has now worked in the job since August 2017. Her responsibilities include doing whatever is required to assist the General Manager, Mr Paul Gibson and includes managing his diary, dealing with emails and correspondence, making travel arrangements for him, attending meetings with him, providing assistance with her knowledge of the Taiwanese tourist market (including liaising with the Taiwanese travel agents who arrange tour groups to the winery), liaising with other staff and following-up matters for him.
ISSUES
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 an identified person as a paid employee to work in the position under their direct control.
Having regard to documentation in the file of the Department of Home Affairs (the Department), the Tribunal is satisfied that the application was made on the relevant form. The application relates to a visa in the Direct Entry stream seeking to meet the requirements in the Regional Sponsored Migration Scheme and consequently no fee is payable (r.5.37(3)(b)). The applicant provided the relevant s.245AR(1) certification as part of the application form. The requirements of r.5.19(2) and consequentially also r.5.19(4)(a)(i) are therefore satisfied.
The delegate was not satisfied that the application for approval identified a need to employ a nominated employee in the position of Personal Assistant under the applicant’s control for the purposes of r.5.19(4)(a)(ii).
It is unclear whether this requirement in the Regulations at the time of the applicant’s application was directed just at a statement to this effect or something of a more qualitative nature. The wording ‘identifies a need’ arguably suggests more is required to meet this criterion than simply a statement or declaration that there is such a need. ‘Identify’ is defined as ‘to recognise or establish as being a particular person or thing; attest or prove to be as claimed or asserted.’[3] On that view, which is consistent with that reflected in Departmental policy,[4] a decision maker would need to be satisfied there is a genuine need on the part of the nominator to employ someone in the nominated position.[5] However, it could alternatively be argued that r.5.19(4)(a) as a whole is directed towards requirements for the application form/ process of a more administrative nature, such that r.5.19(4)(a)(ii) could be met by a simple statement or certification of need. Support for this view can also be found in the contrast between the wording of r.5.19(4)(a)(ii) and, for example, r.5.19(4)(h)(ii)(B) (for applications relating to positions in regional Australia), which requires that there be a genuine need for the nominator to employ a paid employee to work in the position under the nominator’s control – clearly requiring a qualitative assessment, and r.5.19(4)(d)(i), which requires satisfaction that the employee will be employed on a full-time basis in the position for at least two years. Given the uncertain scope of r.5.19(4)(a)(ii), and the requirement in relation to this application to also consider r.5.19(4)(h)(ii)(B), the Tribunal considers this issue is more appropriately considered under r.5.19(4)(h)(ii)(B) later in these Reasons.
[3] Macquarie Dictionary online
[4] PAM3: Migration Regulations – Divisions – Div 5.3 – General > Approval of nominated positions (employer nomination) > Part C - Criteria applicable to Direct Entry stream nominations > Need for a paid employee > Applicability and overview (reissued 12/05/17 – last reissue prior to 1 July 2017).
[5] In Bharaj Construction Pty Ltd v MIBP [2016] FCCA 902 (Judge Barnes, 28 April 2016), the Court considered a similarly worded provision in respect of a pre-1 July 2012 RSMS nomination, i.e. “the employer nomination is made by an employer in respect of a need for a paid employee”. Whilst on the one hand r.5.19(4)(a)(ii) does not appear to impose a different requirement beyond emphasising the requirement for an applicant to identify the need (unlike the pre-1 July 2012 version of r.5.19(2)(a) and (4)(a)), the wording of the criteria does differ slightly and the Tribunal therefore exercise cautions in applying the reasoning of Bharaj to a post-1 July 2012 nomination as is currently being considered.
For the purposes of r.5.19(4)(a)(ii), the Tribunal considers that r.5.19(4)(a)(ii) is more directed to the administrative process, consistent with the requirements of r.5.19(4)(a) as a whole. The nomination application was accompanied by certification by a Regional Certifying Body certifying as to the need for a paid employee in the nominated position. The Tribunal is satisfied that the application for approval identifies a need to employ a nominated employee in the position of Personal Assistant under the applicant’s control. Regulation 5.19(4)(a)(ii) is therefore satisfied.
Given the above findings that subparagraphs (i) and (ii) are met, the requirements in r.5.19(4)(a) overall are therefore met.
Nominator is actively and lawfully operating a business in Australia: r.5.19(4)(b)
Regulation 5.19(4)(b) requires that applicant is actively, lawfully and directly operating a business in Australia.
The Tribunal has had regard to the business registration and ABN (Australian Business Number) records on the ASIC (Australia Securities and Investments Commission) and public databases. The Tribunal has also taken into account the financial statements, tax returns and business activity statements provided by the applicant, and is satisfied that the applicant is registered and operating the business of Mount Nathan Winery. The business is presently registered and ASIC records show that the applicant has been registered since 17 September 1970.
The Tribunal is therefore satisfied based on these records and documents that the applicant is actively and lawfully operating a business in 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.
There is no evidence before the Tribunal to suggest that the applicant is involved in labour hire activities.
Accordingly, the requirement in r.5.19(4)(c) does not apply.
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 applicant provided the Department with a copy of an Employment Contract between the applicant and the nominee which states, among other things, that the employment is offered for a minimum period of two years from the date of commencement, subject to visa approval.
The Tribunal also considered whether the applicant has the financial capacity to pay the full-time salary for the nominated position for at least two years. Financial statements for the applicant in evidence show the following:
2016/2017 2017/2018
Profit before income tax $4,767.07 ($96,805.94)
Additionally, however, as canvassed by Mr Gibson in evidence, a letter from the applicant’s accountant dated 25 November 2019 states that the applicant’s loss in the 2017/2018 financial year was in relation to the write-off of assets following a major review of the applicant’s vehicle fleet, resulting in a substantially higher depreciation expense than in previous years. Notably in that regard, the depreciation expense for the company in the 2016/2017 financial year was $52,127 compared to $166,578 in the 2017/2018 financial year and the adjusted or cash profit before income tax, excluding the book entry depreciation expense, is $7,446.99 for the 2016/2017 financial year and $6,184.99 for the 2017/2018 financial year as shown in the adjusted Profit & Loss statement provided by the accountant for those years. Notably, the nominee has been employed with the applicant, and her employment expenses included in these figures, since 2 August 2017.
The Tribunal has taken into account this evidence, and in the context of the depreciation being a book entry, and given the long-standing history of the company, is satisfied that the applicant has the capacity to provide employment for at least two years on a full-time basis.
Having regard to the totality of the evidence and the matters discussed above, the Tribunal is satisfied that the applicant possesses sufficient financial capacity to provide two years full-time employment to the nominee in accordance with the proposed terms and conditions of employment and that the nominee will be employed on a full-time basis in the position for at least two years. Regulation 5.19(4)(d)(i) is therefore satisfied.

The Tribunal is further satisfied, based on the employment contract referred to, that the terms and conditions of the nominee’s employment do not include an express exclusion of the possibility of extending the period of employment further. Regulation 5.19(4)(d)(ii) is therefore satisfied.
Given the above findings that subparagraphs (i) and (ii) are met, the requirements in r.5.19(4)(d) overall are therefore met.
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 evidence before the Tribunal s that there is no Australian citizen or permanent resident performing equivalent work in the same workplace at the same location.
The applicant’s nomination application stated that the proposed salary to be paid to the nominee was $55,000 per annum, as does the Employment Contract provided.
The applicant provided data from sources such as PayScale and submitted that that source shows that a personal assistant earns an average salary of $54,348 per year, and information from Open College showing an average salary of $54,500 and job advertisements generally show a median annual salary for the position of $55,000. The Tribunal is consequentially satisfied that the nominee’s current, and proposed continuing, salary of $55,000 per annum is within the indicative range for the nominated position of the nominee. The Tribunal is therefore satisfied and finds that the terms and conditions of employment applicable to the position are no less favourable than the terms and conditions that would be provided to an Australian citizen or an Australian permanent resident for performing equivalent work in the same workplace at the same location.
Accordingly, the requirement in r.5.19(4)(e) is 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 a 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.
‘Adverse information’ is defined by r.1.13A as any adverse information relevant to the person’s suitability as an approved sponsor or a nominator. Regulation 1.13A sets out a non-exhaustive list of examples of the kinds of information which meet this definition, including information that the person:
(a) has contravened a law of the Commonwealth, a State or a Territory, or
(b) is under investigation, subject to disciplinary action or subject to legal proceedings in relation to a contravention of such a law, or
(c) has been the subject of administrative action (including being issued with a warning) for a possible contravention of such a law by a Department or regulatory body that administers or enforces the law, or
(d) has become insolvent (within the meaning of s.95A of the Corporations Act 2001), or
(e) has given, or caused to be given, to the Minister, an officer, the Tribunal or an assessing authority a ‘bogus document’ (as defined in s.5(1) of the Act), or ‘information that is false or misleading in a material particular’ (as defined in r.1.13A(4)).
As discussed with Mr Gibson at hearing, information on the Department file indicates that queries have been raised in relation to illegal work/visa overstay and sponsor breach, including an anonymous allegation, apparently by a previous employee, that an employee of the applicant had been orchestrating a payment for visa scheme through the business, with a percentage paid to the business owner[6]. Mr Gibson adamantly denied any such allegations under oath and subsequently provided a declaration to the Tribunal. That declaration included that under no circumstances would he or members of the family be involved in such matters, jeopardising their long-standing success or their family, staff and their families. He further restated that the business hire staff based on their mandatory skill needs only.
[6] The Tribunal observes that it provided Mr Gibson with a copy of a s375A certificate relating to this information, invited submissions in relation to the validity of that certificate and having found the certificate to be valid, discussed the gist or particulars of the information subject to that certificate, without disclosing the information, with Mr Gibson pursuant to the procedures set out in s359AA of the Act.
Departmental policy regarding adverse information sets out a number of factors that may be taken into account by the decision maker (in this review the Tribunal) in deciding whether it is reasonable to disregard adverse information. The policy makes it clear the decision-maker should take a flexible approach and must always assess the circumstances of each case on its merit. The factors set out in the policy are:
(a) the nature of the adverse information;
(b) how the adverse information became known, including the credibility of the source of the adverse information;
(c) in the case of an alleged contravention of the law, whether the allegations have been substantiated or not;
(d) whether the adverse information relates to a current contravention or one that occurred a long time ago;
(e) whether the applicant has taken any steps to ensure the circumstances that led to the adverse information did not recur and;
(f) information about relevant findings made by a competent authority in relation to the adverse information, and the significance of the competent authority attached to the adverse information.
The information before the Tribunal does not meet one of adverse information categories suggested by r.1.13A. However, as r.1.13A is not exhaustive as to the meaning of adverse information, if there was substantiated, credible evidence before the Tribunal in relation to the types of matters raised, the Tribunal considers that would amount to adverse information. However, notably, there is no such substantiated evidence in relation to any of the matters raised. The Tribunal is therefore not satisfied that there is any known adverse information. Further still, if there was substantiated evidence, absent knowledge by the applicant or nominee or associated persons, the Tribunal considers it would be reasonable to disregard any such adverse information. The Tribunal accepts Mr Gibson’s evidence that even if such allegations were correct, it is without the knowledge of him or his family. The Tribunal accepts his evidence in this regard and in doing so acknowledges Mr Gibson’s reasons why in any event they would not jeopardise the long-standing family business in this regard.
Having had regard to all matters, the Tribunal is satisfied that r.5.19(4)(f) is 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.
There is no evidence before the Tribunal to suggest that the applicant has an unsatisfactory record of compliance with the relevant workplace relations laws.
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 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:
As the nominated position is located at Mount Nathan, Queensland, and the postcode of 4211 is specified as regional in the relevant written instrument in force at the time the nomination application was made, IMMI 16/045, r.5.19(4)(h)(ii) requires that:
(a) the position and nominator’s business is located in regional Australia (rr.5.19(4)(h)(ii)(A) and (E));
(b) there is a genuine need for the paid position under the nominator’s direct control (r.5.19(4)(h)(ii)(B));
(c) 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));
(d) the tasks of the position correspond to those of an occupation specified in the relevant legislative instrument (r.5.19(4)(h)(ii)(D)),
(e) a specified regional certifying body has advised the Minister about certain matters relating to the position (r.5.19(4)(h)(ii)(F)).
Position and business located in regional Australia: rr.5.19(4)(h)(ii)(A) and (E)
The Tribunal is satisfied that the position and the nominator’s business is located at Mount Nathan, which, as already canvassed, given a postcode of 4211, is in regional Australia as specified in the relevant instrument.
Accordingly, the requirements in rr.5.19(4)(h)(ii)(A) and (E) are met.
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 applicant has nominated the position of Personal Assistant (ANZSCO code 521111) for its business.
As canvassed at paragraph 3 of these Reasons, the delegate was not satisfied that the applicant identified a need to employ the nominee for the purposes of r.5.19(4)(a)(ii). However, for the reasons canvassed in paragraphs 15 and 16 of these Reasons, the Tribunal has concluded that whether there is a genuine need to employ a paid employee to work in the position under the nominator’s direct control is more properly considered under r.5.19(4)(h)(ii)(B).
As to the underlying issue of whether there is such a need, the delegate noted that three submissions had been received in relation to why there was a need for the position, including references to the growth of the business due to the export market to China. However, the delegate noted that no business contracts had been provided to evidence this or the business’ intention to expand its current operations or commence new projects. The delegate also raised concerns in relation to the applicant not providing a PAYG for the year ending 30 June 2018. Further, the delegate noted that the salary and wages figure contained in the profit and loss statement of the applicant for that year was not reflective of the number of staff the applicant had informed the Department that they employed. Additionally, the delegate raised a concern regarding lack of evidence of a local recruitment process.
The Tribunal has the benefit of further and more recent documents relating to the business and profitability of the applicant before it than was before the Department.
Additionally, the Tribunal has been provided with a copy of the advertisement placed via on 10 March 2017 and the curriculum vitaes/applications of the three persons who responded to the advertisement. The Tribunal has also been provided with extensive documentation evidencing the work carried out by the nominee since commencing employment on 2 August 2017. Additionally, a work statement provided by the nominee specifically details the duties she has undertaken since commencing employment.
Overall, having regard to the evidence, the Tribunal is satisfied that the applicant has a genuine need to employ a paid employee to work in the nominated position under the applicant’s direct control.
Accordingly, the requirements of r.5.19(4)(h)(ii)(B) are met.
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 Tribunal’s accepts on the evidence before it that the position was advertised with no Australian citizen or permanent resident identified with the particular skills required for the position, including because of the applicant’s unique business. Again, Mr Gibson gave evidence at length at hearing (as canvassed earlier in these Reasons) as to the background for the position and the unique skills required, the unsuitability of the three applicants who responded to the job advertisement and the circumstances in which the nominee came to be employed.
The Tribunal has also taken into account the certification provided by the Chamber of Commerce & Industry Queensland on 11 May 2017 that the position could not be filled by an Australian citizen or permanent resident living in the same local area.
Having had regard to the totality of the evidence before it, the Tribunal is satisfied that the position cannot be filled by an Australian citizen or permanent resident who is living in the same local area.
Accordingly, the requirement in r.5.19(4)(h)(ii)(C) is met.
The tasks of the position correspond to those of an occupation specified in the relevant legislative instrument (r.5.19(4)(h)(ii)(D))
The ANZSCO occupation description states that a Personal Assistant (ANZSCO code 521111) ‘Performs liaison coordination and organisational tasks in support of Managers and Professional’.
The tasks of the Unit Group 5211 Personal Assistants are shown within ANZSCO as including:
PERSONAL ASSISTANTS perform liaison, coordination and organisational tasks in support of Managers and Professionals.
…
Tasks Include:
·liaising with other staff on matters relating to the organisation’s operations
·research and preparing reports, briefing notes, memoranda, correspondence and other routine documents
·maintaining confidential files and documents
·attending meetings and acting as secretary as required
·maintaining appointment diaries and making travel arrangements
·processing incoming and outgoing mail, filing correspondence and maintaining records
·screening telephone calls and answering inquiries
·taking and transcribing dictation of letters and other documents
·may supervise other secretarial and clerical staff
The description of the role contained in the advertisement for the position provided to the Tribunal included as follows:
·General Manager’s Diary management
·Screening emails and phone calls and preparing correspondence
·Managing files and documents
·Planning, organising meetings and ensuring timelines are met
·Coordinating and arranging travel and accommodation
·Providing English and Chinese translation on documents and correspondence
·Interpreting between English and Chinese to General Manager during the meeting with Chinese clients
·Liaising and managing relationship with external clients and business partners, as well as internal stakeholders
Further particularity of the duties of the position were provided in the nominee’s work statement and in Mr Gibson’s and the nominee’s evidence to the Tribunal.
Taking this into account together with all the other evidence before it, the Tribunal is satisfied that the tasks of the nominated position correspond to those of the occupation of Personal Assistant (ANZSCO code 521111), an occupation specified by the Minister in an instrument in writing for this sub-subparagraph, in Schedule 1 of IMMI 15/083, which is as required an occupation listed in ANZSCO with a skill level of one, two or three, being a skill level of one for this occupation.
Accordingly, the requirements of r.5.19(4)(h)(ii)(D) are met.
A specified regional certifying body has advised the Minister about certain matters relating to the position (r.5.19(4)(h)(ii)(F))
The Tribunal finds that the Chamber of Commerce & Industry Queensland (an approved Regional Certifying Body specified in the relevant instrument at that time, IMMI 16/045), certified on 11 May 2017 that there was a need for a paid employee in the nominated position within the business activities of the nominating employer, that it could not be filled by an Australian citizen or permanent resident living in the same local area, and that the terms and conditions of employment were no less favourable than those that are or would be provided to an Australian employee.
Accordingly, the requirements of r.5.19(4)(h) are met.
Conclusion
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.
Susan Trotter
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 533

21 February 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Standing

Remedies

Natural Justice