Eastern Australia Agriculture Pty Ltd (Migration)

Eastern Australia Agriculture Pty Ltd (Migration) [2020] AATA 2696 (7 April 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Eastern Australia Agriculture Pty Ltd
CASE NUMBER:  1727052
DIBP REFERENCE(S):  BCC2016/2371703
MEMBER:Karen McNamara
DATE:7 April 2020
PLACE OF DECISION:  Sydney
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.
Statement made on 7 April 2020 at 9:33am

CATCHWORDS
MIGRATION – nomination of a position – Direct Entry Nomination stream – position of Contract Administrator – demonstrated need for the employment – financial capacity to employ the nominee – vacant existing position within the company – active law abiding business – terms and conditions of employment – evidence of the nominee’s relevant duties and responsibilities – decision under review set aside
LEGISLATION
Migration Act 1958, s 245
Migration Regulations 1994, 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 (the delegate) on 18 October 2017 to reject the application by Eastern Australia Agriculture Pty Ltd (the applicant) 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 15 July 2016. 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 rr.5.19(4)(a) and 5.19(4)(d) of the Regulations because the applicant did not provide supporting evidence to support their need for a full time paid employee to work in the position of Contract Administrator under the nominator’s direct control and that the applicant failed to demonstrate that it has the financial capacity to employ the nominee on a full-time basis for at least two years.
The applicant lodged an application for review with the Tribunal on 3 November 2017
The Tribunal received a copy of the delegate’s decision record with the application for review.
Mr Tristan Lindner appeared on behalf of the applicant before the Tribunal on 31 March 2020, to give evidence and present arguments. The Tribunal also received oral evidence from Mr Ross Keeley (Director/General Manager) and the nominee Ms Danielle Roscoe in the related matter for the Subclass 187 visa (AAT Case file 1732195). The related matters were heard concurrently in a combined hearing.
The Tribunal exercised its discretion to hold the hearing by telephone. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.
At the conclusion of the hearing, the Tribunal invited the applicant and nominee to provide further documentation including copies of the applicant’s Business Activity Statements (BAS) returns for the period July 2017 to December 2017 (inclusive), Workers Compensation Certificate of Currency, the nominee’s bank account statements March 2018 to March 2020 and 2019 PAYG and Notice of Assessment.
The applicant provided to the Tribunal the above-mentioned documentation on 1 April 2020.
The applicant was represented in relation to the review. The agent did not attend the hearing.
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.
BACKGROUND
ASIC records provided by the applicant to the Tribunal show that the company was registered on 5 July 2007. Eastern Australia Agriculture Pty. Ltd. (EAA) operates two of the largest irrigation cropping properties in Australia, producing cotton, wheat, sorghum, chickpeas and prime lambs. The applicant is situated in South West Queensland in the Balonne shire. The applicant is one of the top five cotton businesses in Australia as the owner and operator of 37,584 hectares of which 12,792 hectares is developed for irrigation. In 2018, EAA was purchased by Fiera Comox, a subsidiary of Fiera Capital, which is Canada’s second largest equity fund.
On 15 July 2016, the applicant lodged an application for an employer nomination approval for the position of Contract Administrator (ANZSCO 511111) under the Regional Sponsored Migration Direct Entry stream. The nominated salary is $54,000 per annum.
The Tribunal notes that numerous evidence and submissions were lodged by or on behalf of the applicant. While the Tribunal has considered all of same, only that which was considered material to its decision has been expressly referred to herein.
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.
Based on the material in the Department’s file, the Tribunal is satisfied that the application was made on the approved form. As the position is located in regional Australia, no fee is payable (r5.37(2)(a)). The application also included written certification relating to conduct that contravenes s.245AR(1) of the Act, declared and signed by the applicant. Accordingly, the requirements of r.5.19(4)(a)(i) are met.
In considering whether the application for approval identifies a need for the nominator to employ a paid employee to work in the position under the nominator’s direct control, the Tribunal has had regard to the evidence before it, including written submissions and the oral evidence received at the hearing by Mr Tristan Lindner, Mr Ross Keeley and Ms Danielle Roscoe. In support of the need for the position, the applicant has provided evidence in the form of a supporting statement dated 23 January 2020 as to the value the position adds to the operations of the business and the role of the position within the business structure and operations. At the hearing the Tribunal was told that the position was an existing position within the company, which became vacant following the resignation in 2015 of the former incumbent.
On the totality of evidence before it, the Tribunal is satisfied that the application has identified a need for the nominator to employ a paid employee to work in the position under the nominator’s direct control. Accordingly, the requirement in r.5.19(4)(a) (ii) are met.
As the criteria in both r.5.19(4)(a)(i) and (ii) are satisfied, accordingly the requirements in r.5.19(4)(a) are 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 accepts on the evidence before it that the applicant operates a large-scale agribusiness in St George, South West Queensland. Based on the material provided to the Tribunal, including; financial statements, BAS returns, ASIC Company details, payroll advice and client contractual correspondence, the Tribunal is satisfied the applicant is actively and lawfully operating an agribusiness in Australia and directly operates that business.
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’s business is involved in labour hire.
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 Tribunal examined the financial information submitted by the applicant. The business’s BAS returns for the 2017/18 financial year record sales of $83,691,885 (includes $79,000,000 sale of water rights) and salary and wages expense $1,531,332. The business’s 2018 Annual Report, reports income of $55,868,000. The business’s 2018/19 financial year BAS returns record sales of $2,393,465 and salary and wages expense $1,099,237. The business’s 2019 Annual Report, reports income $2,069,000 and net equity of $61,545,000. Information before the Tribunal shows that the applicant’s land and Machinery assets have recently been valued by a third party to exceed $110 million, post their $79 million water sale to the Commonwealth Government.
The Tribunal also notes advice from the applicant’s accountant dated 28 January 2020 that in December 2018 Eastern Australia Cropping Pty Ltd purchased all the shares of Eastern Australia Agriculture Pty Ltd. For accounting & taxation purposes the two entities have formed a consolidated group. The applicant confirmed that the nominating entity Eastern Australia Agriculture Pty Ltd remains in operation and is the employer of the nominee.
In considering whether the business has the financial capacity to pay a full time salary of $54,000 per annum to the nominee for two years, the Tribunal has taken into consideration evidence before it including the business’s financial statements and documents submitted to the ATO. The Tribunal has afforded weight to information before it including the applicant’s financial statements, Annual reports, BAS returns (dating back to July 2017) and payroll records, which show the applicant has met payroll and operating costs. The Tribunal has also considered advice from the applicant’s accountant dated 23 March 2020, attesting to the applicant’s financial capacity to continue to pay the nominee the nominated salary for at least two years.
The Tribunal has also taken into consideration the nominee has been employed by the applicant on a full time basis since 2015. The nominee’s bank account statements, PAYG’s, NOA’s and applicant’s payroll records, support the nominee has received remuneration in excess of the nominated salary of $54,000 per annum.
Based on the evidence before it, the Tribunal is satisfied the applicant has the financial capacity to pay the nominee a full-time salary and maintain the employment of the nominee on a full time basis for two years.
Accordingly, the requirement in r.5.19(4)(d)(i) is met.
The Tribunal has had regard to the contract of employment for the nominee signed and dated 1 January 2020. The contract sets out the terms and conditions of employment and indicate that the period of employment is two years upon the granting of a visa. At the hearing, the nominator advised the Tribunal that the business would employ the nominee indefinitely for as long as the nominee wished to stay in their employ. The contract stipulates the base salary is $59,000 per annum plus a motor vehicle, with hours of work 38 hours per week. There is no term excluding an extension of the contract.
The Tribunal is satisfied based on the employment contract dated 1 January 2020 and other material before it, that the nominee will be employed on a full-time basis for at least two years on terms that do not exclude the possibility of extending the period of employment. Accordingly, the requirement in r.5.19(4) (d) (ii) is met.
As the criteria in both r.5.19(4)(d)(i) and (ii) are satisfied, accordingly the requirements in r.5.19(4)(d) are 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 Contract of Employment (dated 1 January 2020) sets out the terms and conditions of employment and indicates that the nominee’s salary will be $59,000 per annum, use of a company car and hours of work 38 hours per week. The nominee’s leave entitlements include annual, long service, personal/carers, unpaid carers leave and compassionate leave in accordance with applicable legislation.
The Tribunal has received copies of the nominee’s PAYG’s, NOA’s, bank statements and payslips confirming that the nominee has been paid by the applicant, excess of the nominated salary amount of $54,000 per annum. Superannuation statements provided to the Tribunal support that the nominee is being paid superannuation. The Tribunal is therefore satisfied based on the evidence that the nominee will be paid in accordance with the terms of employment.
The Tribunal is satisfied on the totality of the evidence before it that the terms and conditions applicable to the position 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 evidence before the Tribunal to indicate that there is adverse information known to the Department about the applicant or an associated person.
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 that indicates the applicant does not have a satisfactory record of compliance with the relevant Commonwealth and State 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:
·the tasks to be performed in the position will be performed in Australia and correspond to those of an occupation specified by the Minister in the relevant instrument, 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 has advised the Minister about certain matters relating to the position.
In this case, the applicant claims to meet the requirements in r.5.19(4)(h)(ii). The Tribunal has considered each of these requirements as follows:
The evidence before the Tribunal indicates that the applicant’s business, which is operated by the applicant and the position are located in St George, Queensland, postcode 4487, which is a postcode specified in the relevant instrument as being in regional Australia, accordingly r.5.19(4)(h)(ii)(A) and ( e) are met.
The Tribunal next considered whether there is a genuine need for the applicant to employ a Contract Administrator (ANZSCO 511111) and for the tasks of that position. The evidence before the Tribunal indicates the applicant operates a large-scale agribusiness in St George, Queensland. The applicant gave evidence at the hearing that the business requires the position to administer the company’s contracts. The Tribunal was told that the position is an ongoing existing position which became vacant when the former incumbent resigned.
The nominee has been working with the applicant on a full time basis since 2014 having previously been employed as a casual. The Tribunal was told the applicant advertised the vacant position on Gumtree and received five applications with three being from the same person. The applicant was unable to recruit a suitably qualified and experienced person and offered the position to the nominee who had previously assisted and carried out part of the role.
The Tribunal has considered evidence supporting the nominee’s suitability in so far as her experience and qualifications for the position. Department records show that the nominee holds a Bachelor of English Literature degree from Lancaster University, over five years’ experience as a Contract Administrator with the nominator and was previously employed as a Customer Service Advisor with the Royal Bank of Scotland.
Having considered the evidence attesting to the nominee’s experience and qualifications the Tribunal is satisfied that she is suitably qualified for the position.
The Tribunal is satisfied that there is a genuine need for a paid employee to work in the position of Contract Administrator (ANZSCO 511111) under the nominator’s control. The Tribunal is also satisfied that the tasks of the position to be performed correspond to the tasks of an occupation specified by the Minister in a relevant instrument in writing for this sub-subparagraph. Furthermore, the Tribunal is satisfied the occupation is applicable to the person identified under subparagraph (a)(ii) in accordance with the specification of the occupation. Accordingly, the requirements of r.5.19(4)(h)(ii) (B) and (D) and (DA) are met.
The Tribunal is satisfied that the material and evidence provided by the applicant, supports the applicant’s claims that they have made efforts to fill the position locally by an Australian citizen or an Australian permanent resident. The applicant provided evidence that they have been unsuccessful in sourcing an experienced and qualified Australian citizen or an Australian permanent resident to the position. The applicant told the Tribunal that they have advertised the position online on Gumtree in attempts to find a suitable person for the position.

The Tribunal also gives weight to the RCB’s advice that the position cannot be filled locally. On the evidence, the Tribunal is satisfied that the position cannot be filled by an Australian citizen/permanent resident living in the same local area. Accordingly, the requirements of r.5.19(4)(h)(ii)(C) are met.
The Tribunal has cited the completed Form 1404 dated 28 June 2016 from the relevant RCB, Chamber of Commerce and Industry Queensland, indicating that they are satisfied regarding the matters specified in paragraph (e) and sub subparagraphs (B) and (C). On this basis, the Tribunal is satisfied that r.5.19(4)(h)(ii)(F) is met.
Given the above, the Tribunal finds that the requirements of r.5.19(4)(h)(ii) are met and accordingly r.5.19(4)(h) is met as a whole.
Based on the findings above, the Tribunal is satisfied that the applicant meets the requirements of r.5.19(4) 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.
Karen McNamara
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 2696

7 April 2020

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Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

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Natural Justice