Dreamedia Events Pty Ltd (Migration)

[2020] AATA 2935

Dreamedia Events Pty Ltd (Migration) [2020] AATA 2935 (11 March 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Dreamedia Events Pty Ltd

CASE NUMBER:  1914128

DIBP REFERENCE(S):  BCC2018/3669216

MEMBER:Peter Emmerton

DATE:11 March 2020

PLACE OF DECISION:  Adelaide

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

Statement made on 11 March 2020 at 12:35pm

CATCHWORDS

MIGRATION – Employer Nomination – approval of nominated position – Direct Entry Nomination stream – Technical Director – tasks of the position – genuine need – Form 1404 – certification by Regional Certifying Body – NT Department of trade, Business and Innovation – decision under review set aside

LEGISLATION
Migration Regulations 1994 (Cth), r 5.19

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 1 June 2019 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).

2. The applicant applied for approval on 27 September 2018. 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).

3. In this case, the applicant has applied for approval of a nomination, seeking to satisfy the criteria in the Direct Entry Nomination stream.

4. The delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19(12)(f) and subsequently 5.19(4)(ii)(F) of the Regulations because the applicant had not provided an RCB advice Certificate.

5. The applicant was represented in relation to the review by its registered migration agent.

6. 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

7. 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.

8. 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.

9. 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.

10. The nominating entity runs a substantial electronic media and events company in Darwin Norther Territory. Revenues exceed $4.5m annually with substantial profits.

11. The Tribunal notes that the visa applicant works varied hours throughout the week and is required to travel extensively in order to provide technical/engineering solutions at the location of the clients.

12. The visa applicant’s substantial responsibilities, previous experience, current years of management, technical responsibilities, international experience, qualifications and attributes, clearly align with the duties associated with a Technical Director, ANZSCO 212317

13. The visa applicant possesses a Bachelor of Global Business Management gained in France and possesses a substantial Resume’.

14. The Tribunal is cognisant of the challenges associated with recruiting and retaining suitably experienced management and staff working in remote and regional areas such as the city of Darwin NT. This results from a combination of limited opportunities for advancement, geographic isolation of a small population, the transient nature of the residents and extreme weather conditions and associated events.

15. The Tribunal received and accepted evidence from the nominator, of the recruitment process. It notes the multi-media approach to advertising and popular recruitment websites. The Tribunal accepts the evidence presented supporting the assertion, that of the 7 applications received none were suitable for the position on offer. The Tribunal notes the associated Statutory Declaration dated 1 April 2019 regarding the need for the position and the challenges associated with the recruitment.

16. The Tribunal accepts that the employment contract does not include an express exclusion of the possibility of extending the period of employment beyond the initial 2-year minimum.  The signed contract of employment, dated 6 July 2018 stated the salary as $72,800 plus 9.5% Superannuation. Total package is therefore approximately $80,000.

17. The Tribunal perused popular employment web sites in order to ascertain the current state of the market in this field. The Tribunal observed a substantial number of related vacancies, in a wide variety of locations and organisations currently under recruitment. The Tribunal is not without understanding of the specialist knowledge required in this unique area. 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 relatively geographically isolated regional Northern Territory location.

18. The Tribunal notes that a ‘Satisfied’, RCB Certificate has been issued by the relevant certifying body. The date of the certificate is 24 June 2019. It also notes that this was the sole reason stated by the Department as to the reason the nomination was denied. The Tribunal also acknowledges that the delegate had at the request of the applicant, provided additional time in which to obtain the RCB advice, which was not forthcoming in a timely manner.

    The application is compliant: r.5.19(4)(a)

19. 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.

20. 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).

21. The Tribunal notes that the business is operating on a substantial staffing ratio with annual wage costs approximating $1.5m. Once again, the Tribunal notes the irregular and extended working hours due to the nature of the product offering. The Tribunal accepts the need for a Technical Director due to the complexity and variability of the jobs undertaken.

22. The Tribunal has researched the size and scope of this business. It observes that it is the largest, most technically diverse provider of event and entertainment technology in Northern Australia. Its’ website demonstrates major public events including international music events, outdoor concerts, sporting events, festivals and major bespoke corporate events. It operates throughout the whole of the Northern Territory.

23. It would appear logical that regardless of the skilful utilisation of technology, the Managing Director is unable to undertake the daily duties associated with a Technical Director. The highly specialised technical requirements associated with such a diverse product offering in this industry, across an enormous geographic region would be extremely demanding and require a substantial mix of sophisticated skills and talents.

24. The Tribunal is satisfied that the application has identified a need for a paid employee to work in the position of Technical Director, 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)

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

26. The Tribunal has been provided with a range of Financial Statements and P & L’s. ASIC Registration details were provided and subsequently researched by the Tribunal. 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)

27. 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)

28. 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.

29. The Tribunal notes that the business appears to have substantial revenues and proportionally aligned profit. The financial evidence presented to the Tribunal for the business, show that the revenues can easily sustain the employment of the visa applicant.

30. The stability of the nominating entity in an ever increasingly competitive market, coupled with evidence of the Managing Director having established a highly diversified product offering across a very large geographic region attests to its’ ability to employ the visa applicant. Additional resilience is provided through the business diversification across multiple product delivery streams. The Tribunal is satisfied that the business will be able to sustainably, employ the nominee for the required 2-year minimum period therefore r.5.19(4)(h)(i) is met.

31. 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.

32. The Tribunal observes that one of the potential challenges facing the business is retaining the visa applicant and the nominator’s obvious reliance upon their services. The Tribunal is aware that the workforce is highly mobile at a global level. The specialist skills associated with this type of operation are sought-after and readily transferable between competing businesses, frequently via industry networking. It is also cognisant of competitors cannibalising competing businesses and targeting their key staff in order to obtain a market advantage or fill hard to recruit vacancies. It further notes that finding a suitably qualified individual with an understanding of this specialised industry in a rural/regional location like Darwin, NT, is likely to be very challenging.

    No less favourable terms and condition of employment: r.5.19(4)(e)

33. 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.

34. The Tribunal has been provided with the visa applicant’s employment contract. The Tribunal accepts that the nominee’s stated annual salary of $72,800 plus Superannuation at the rate of 9.5% as reflective of their qualifications and experience.

35. The Tribunal researched the salaries offered for similar positions and had regard for the salary determination evidence provided by the applicant. The remuneration appears to fall within the mid-quartile of similar positions on offer. It also observed that remuneration levels ranged substantially based upon skill level, experience and location. 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)

36. 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)

37. 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 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)

38. 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.

39. The Tribunal has had regard to the very substantial size and scope of the nominating entity’s business operation and the extended staffing hours required due to the mandated diverse operating hours of the business across a vast geography. It again notes that the nominator is himself employed, full-time, as the Managing Director.

40. 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.

41. Evidence was presented to the Tribunal regarding the recruitment process and the subsequent challenges of finding a suitably qualified and experienced individual in a rural/regional setting. The Tribunal acknowledges that there are a large number and range of Technical Director roles readily available throughout Australia. The demands of the job and hours of this role may not have proven overly attractive to some candidates. The relatively isolated location in regional Darwin, NT, may also provide a negative employment circumstance further limiting the potential candidate pool. Both the relative isolation and the climatic conditions may not encourage some applicants to seek employment. The Tribunal has observed that the visa applicant’s Resume’ indicates a substantial work history and experience matrix that would be highly regarded in this sort of role.

42. The Tribunal observes that somewhat more comprehensive evidence was provided to it than was presented to the delegate at the time of their decision. The Tribunal is satisfied that the nominator’s business is located in regional Australia.

43. 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 relevant descriptors supplied in ANZSCO 212317 for Technical Director and the stated duties of the visa applicant.

44. Additionally the substantial diversity of the business offerings coupled with the number of technical and non-technical staff across a large region, clearly indicates the need for a Technical Director to operate and manage this aspect of the business. This would by necessity most likely lead to a substantial degree of autonomy and flexibility of tasks being associated with the role, as might reasonably be expected of a Technical Director in an ANZSCO level-1 designated role.

45. The position of Technical Director, ANZSCO 212317, nominated by the applicant is referred to in ANZSCO as a skill level-1 position and the Tribunal is satisfied that the visa applicant is operating at that level.

46. The Tribunal is satisfied that the applicant meets 5.19(4)(h)(i) and 5.19(4)(h)(ii).

47. The Tribunal has had regard to Form 1404 issued by an RCB (NT Department of trade, Business and Innovation), dated 24 June 2019 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. Again, the Tribunal notes that this was the sole reason stated by the Department as to why the nomination was denied. The Tribunal also acknowledges that the delegate did at the request of the applicant, provide additional time in which to obtain the RCB advice, which was not forthcoming in a timely manner at the time of the application.

48. 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

49. 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)       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).