D M Shapes Pty Ltd (Migration)
[2021] AATA 1677
•6 April 2021
D M Shapes Pty Ltd (Migration) [2021] AATA 1677 (6 April 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT: D M Shapes Pty Ltd
CASE NUMBER: 1819254
HOME AFFAIRS REFERENCE(S): BCC2017/2241763
MEMBER:Glenn O’Brien
DATE:6 April 2021
PLACE OF DECISION: Brisbane
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.
Statement made on 06 April 2021 at 1:33pm
CATCHWORDS
MIGRATION – Employer Nomination – approval of nominated position – Direct Entry Nomination – Technician and Trade Worker – financial capacity to maintain term of employment – financial records provided – decision under review set asideLEGISLATION
Migration Regulations 1994 (Cth), r 5.19CASES
Bharaj Construction Pty Ltd v MIBP (No 3) [2019] FCCA 31STATEMENT 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 20 June 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 25 June 2017. It is unclear why the applicant utilised a previous name, but ASIC records indicate the applicant changed its name to D M Shapes Pty Ltd on 17 November 2015. Since this time the applicant has changed its registered name to D M Shapes Pty Ltd. 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 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, 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 applicant provided the Tribunal a copy of the delegate’s decision record with the application for review. The delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19(4)(d)(i) of the Regulations because the delegate was not satisfied the applicant had demonstrated the nominee would be employed on a full-time basis in the position for at least two years.
Mr Daniel MacDonald, a Director appeared for the applicant before the Tribunal on 15 January 2021 to give evidence and present arguments.
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.
On the basis of the evidence before the Tribunal, the Tribunal is satisfied the nomination application was made using the relevant online form. Consistent with r.5.37(2)(a) of the Regulations, there is no fee payable in respect of a nomination where the position is located in regional Australia. In completing the application, the required certification in relation to s.245AR(1) of the Act and the required identification of a need to employ a paid employee to work in the nominated position under the nominator’s control was provided in the application form.
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.
Financial records provided by the Tribunal indicate the applicant had a turnover of $381,549.82 for the year ending 30 June 2018. The taxation return for the year ending 30 June 2019 shows a turnover of $575,781. The more recent financial information provided by the applicant to the Tribunal was scant. In post hearing submissions the applicant provided the Tribunal with BAS statements to 25 August 2020. This indicates the applicant continues to operate.
On reviewing the financial information provided by the applicant, the Tribunal is satisfied 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.
The Tribunal has considered the employment contract between the applicant and the nominee dated 25 November 2020. The contract provides for the nominee’s direct employment by the applicant in the role of Technician and Trade Worker.
Accordingly, the requirement in r.5.19(4)(c) does not apply.
Terms 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 two years full time, and the terms and conditions of that employment do not expressly exclude the possibility of an extension.
The Tribunal had regard to the evidence of the applicant indicating the nominee will be employed for a minimum of two years after the date of the grant of his Subclass 187 visa. Further, the Tribunal had regard to the financial records provided to the Tribunal and the revenue generated since 2017. The Tribunal is satisfied that there is no information before the Tribunal that the applicant would not be in a financial position to employee the nominee for at least two years noting the nominee has been in the employ of the applicant since 2015.
Accordingly, the requirement in r.5.19(4)(d) is met.
No less favourable terms and conditions 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 applicant is currently being paid a salary of $47,000 plus superannuation. Given the uniqueness of the position, the available market information for similar positions is limited. Advertised positions on the Gold Coast for production workers have been provided to the Tribunal and Mr MacDonald gave evidence that the salary provided to his knowledge is commensurate with others in the industry.
Having regard to documentation provided, the Tribunal is satisfied that the terms and conditions of employment will be no less favourable than those that 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: 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 information before the Tribunal to indicate there is any adverse information known to the Department about the nominator or person associated with the nominator.
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.
There is no evidence before the Tribunal to suggest that the applicant does not have a satisfactory record of compliance with workplace relations laws 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 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, the occupation is applicable to the proposed employee in accordance with any specifications made in that instrument, and specified training requirements are met; or
·the position and nominator’s business is 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 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 (RCB) has advised the Minister about certain matters relating to the position.
It is apparent that the application submitted to the Department was ill prepared and the applicant was not properly advised. The applicant’s previous migration agent, is no longer registered, and on the basis of the information before the Department the nomination application was properly refused.
Before the Tribunal essential information was still not provided, such as the RCB advice. The Tribunal provided the applicant a further period of time after the hearing to obtain further information in support of the application.
The nominated position of Technician and Trade Worker is located in Tweed Heads, NSW. The term ‘regional Australia’ was defined in r.5.19(7) of the Regulations to mean a part of Australia specified by the Minister in an instrument in writing for this definition. Although IMMI 17/059 was repealed by the current legislative instrument IMMI 18/037, the current legislative instrument only applies to nominations lodged on or after 18 March 2020.
In those circumstances, the Tribunal is satisfied that both the position and the business operated by the applicant are located in regional Australia and the requirements in r.5.19(4)(h)(ii)(A) and r.5.19(4)(h)(ii)(E) are met.
The nominated position of Technician and Trade Worker (ANZSCO 399999) is in the Unit Group 3999 OTHER MISCELLANEOUS TECHNICIANS AND TRADES WORKERS. The ANZSCO sets out indicative skill level and tasks for the position as follows:
This unit group covers Technicians and Trades Workers not elsewhere classified.
It includes Divers, Interior Decorators, Optical Dispensers (Aus) / Dispensing Opticians (NZ), Optical Mechanics, Photographer’s Assistants, Plastics Technicians, Wool Classers and Fire Protection Equipment Technicians.
Indicative Skill Level:
Most occupations in this unit group have a level of skill commensurate with the qualifications and experience outlined below.
In Australia:AQF Certificate III including at least two years of on-the-job training, or AQF Certificate IV (ANZSCO Skill Level 3).
Mr MacDonald gave evidence of the unique skills and patents held in relation to the manufacturing process. He told the Tribunal that the nominee is the only person in Australia that has the necessary skills to carry out the tasks of the position, although he conceded that those skills were obtained by the nominee through his employment with the applicant.
Having considered the evidence of Mr MacDonald and the unique manufacturing processes undertaken by the nominee, the Tribunal is satisfied the tasks of the nominee correspond with those set out in the nominated position within ANZSCO.
The applicant did not provide an RCB advice to the Department or the Tribunal prior to hearing. The applicant’s previous migration agent asserted in written submissions that such a requirement was unnecessary. The Tribunal rejects that proposition. Regulation 5.19(4)(h)(ii)(F) requires:
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).
While such advice is not binding on the delegate, it is a requirement that such advice be provided. The failure to obtain that advice is a failure to comply with the requirements as set out in the subject regulation.
On 29 January 2021 the applicant provided to the Tribunal an RCB certificate from Regional Development Australia, Northern Rivers, NSW. The Tribunal is satisfied that the applicant has now complied with r.5.19(4)(h)(ii)(F) albeit some three and a half years after the application was made.
Consistent with the decision of the Federal Circuit Court of Australia in Bharaj Construction Pty Ltd v MIBP (No 3) [2019] FCCA 31 certification by an RCB is not sufficient or determinative in relation to whether the nominator meets r.5.19(4)ii)(B) and r.5.19(4)(ii)(C) of the Regulations. Accordingly, the Tribunal notes that, while having regard to the advice provided by the RCB, it has reached its own conclusions about the matters which are the subject of the RCB advice for the reasons set out herein.
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.
Glenn O’Brien
MemberATTACHMENT – EXTRACTS FROM THE MIGRATION REGULATIONS 1994
5.19Approval of nominated positions (employer nomination)
…
(2)The application must:
(a)be made in accordance with approved form 1395…; and
(aa) include a written certification by the nominator stating whether or not the nominator has engaged in conduct, in relation to the nomination, that constitutes a contravention of subsection 245AR(1) of the Act; and
(b)be accompanied by the fee mentioned in regulation 5.37.
…
Direct Entry nomination
(4)The Minister must, in writing, approve a nomination if:
(a)the application for approval:
(i) is made in accordance with subregulation (2); and
(ii) identifies a need for the nominator to employ 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).
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
Legal Concepts
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Judicial Review
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Statutory Construction
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Procedural Fairness
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Jurisdiction
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