FG & A Investments Pty Ltd (Migration)

FG & A Investments Pty Ltd (Migration) [2022] AATA 3984 (10 November 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  FG & A Investments Pty Ltd
REPRESENTATIVE:  Mr Gaganjot Singh Bhatia (MARN: 0963188)
CASE NUMBER:  1916302
HOME AFFAIRS REFERENCE(S):          BCC2018/837988
MEMBER:Peter Emmerton
DATE:10 November 2022
PLACE OF DECISION:  Adelaide
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Statement made on 10 November 2022 at 11:05am
CATCHWORDS
MIGRATION – application for approval of nomination of position – direct entry nomination stream – cook – full-time employment in position for 2 years – nominee employed during COVID restrictions period – improved revenue and profit after restrictions lifted – challenges in recruiting and retaining staff – decision under review set aside
LEGISLATION
Migration Regulations 1994 (Cth), r 5.19(4)(d)(i)
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 Home Affairs on 5 June 2019 to reject the applicant’s application for approval of the nomination of a position in Australia under reg 5.19 of the Migration Regulations 1994 (Cth) (the Regulations).
The applicant applied for approval on 21 February 2018. The requirements for the approval of the nomination of a position in Australia are found in reg 5.19 of the Regulations which contains two alternative streams: a Temporary Residence Transition nomination stream (reg 5.19(3)) and a Direct Entry nomination stream (reg 5.19(4)). If the application is made in accordance with reg 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: reg 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 reg 5.19(4)(d)(i) of the Regulations because they were not satisfied that the visa applicant would be employed for the minimum of 2 years post grant of the nomination.
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
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.
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 the importance of being sensitive to the circumstances and the difficulties applicants often face before the Tribunal in their individual circumstances.
The applicants rely on the evidence given before the Tribunal together with written submissions and supporting evidence provided to the Tribunal and previously to the department.
The nominating entity runs a moderately sized restaurant in coastal suburban Adelaide South Australia in a very popular tourist location.
The visa applicant’s substantial responsibilities, formal qualifications, attributes, and extensive experience align with the duties of Cook, ANZSCO 351411, Skill level 3.
The visa applicant possesses a Certificate lll and Certificate lV in Commercial Cookery, both attained in Australia.
The Tribunal is cognisant of the significant challenges associated with recruiting and retaining suitably experienced staff and management working in such specialist activities, in modestly paid roles, particularly in remote or regional locations. It notes the constant bleed of similarly experienced employees to the eastern seaboard to more highly paid positions.
The Tribunal received from the nominator substantial evidence of the salary determination, recruitment processes and associated advertising in support of their recruitment for the position and their subsequent wage determination. The Tribunal also notes the employment contract with the provision for extension beyond 2 years. The nominated salary package was $50,000 plus the Superannuation Guarantee which is currently 10.5%. This provides a total remuneration package of $57,500. This appears to align with the mid to lower quartiles of remuneration for similar roles at this level of experience in similar establishments.
The Tribunal perused popular employment web sites to ascertain the current state of the market in this field. The Tribunal observed a substantial number of related vacancies, (23,000) in a wide variety of locations and organisations currently under recruitment. Approximately 5% of which are currently being advertised in South Australia. 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 regional South Australia.
The Tribunal further notes that this is a high demand specialised field with a substantially limited range of potential candidates from whom to choose during a recruitment process.
The Tribunal acknowledges that a ‘Satisfied’ RCB Certificate has been issued by the relevant certifying body. The date of the certificate is 24 July 2019.
The application is compliant: r.5.19(4)(a)
Regulation 5.19(4)(a) requires that the application for approval must be in the approved form, must be accompanied by the prescribed fee, and, where applicable, must include the required written certification relating to conduct that contravenes s.245AR(1). The application must also identify a need for the nominator to employ a paid employee to work in the position under their direct control.
The Tribunal finds that the application was lodged electronically using the elodgement facility. The nomination was made under the ENS Direct Entry stream (r.5.19(4)(h)(ii)) and the relevant fee was paid. The Tribunal finds the applicant meets r.5.19(2).
The Tribunal notes that the business is moderately sized. It is clearly not possible for the Director/owner to oversee this function as he is engaged in other businesses and does not work on a daily basis in this business. He is not a qualified Chef nor Cook.
The Tribunal is satisfied that the application has identified a need for a paid employee to work in the position of Cook ANZSCO 351411, under direct control of the nominator. The application has included the required written certification relating to conduct that contravenes s.245AR(1). Accordingly, the requirement in r.5.19(4)(a) is met.
Nominator is actively and lawfully operating a business in Australia: r.5.19(4)(b)
Regulation 5.19(4)(b) requires that the applicant is actively, lawfully and directly operating a business in Australia.
The Tribunal has been provided with a substantial range of financial documentation including most recently the ATO Taxation Returns for FY 2020 and FY 2021, current BAS documentation and the Profit and Loss Statements for FY 2020 and FY 2021, all of which correlated in an appropriate manner. They clearly indicate escalating revenue and profit results post the Covid-19 pandemic period which severely impacted FY 2021 results as the Tribunal would expect. This was particularly difficult for tourism-oriented operations as the trade completely evaporated due to border restrictions imposed at a State, National and International level.
ASIC Registration details for this business entity were researched by the Tribunal. The Tribunal checked the status of the listed ABN, 99 622 921 859 and perused the company web site and online presence and associated review sites. It was first registered 17 November 2017, is currently registered and is due for review on 17 November 2022. The Tribunal is satisfied that the applicant is actively, lawfully and directly, operating a business in regional Australia. Accordingly, the requirement in r.5.19(4)(b) is met.
Position is not labour - hire: r.5.19(4)(c)
Regulation 5.19(4)(c) applies to nominators whose business activities include those relating to labour hire to an unrelated business. In these cases, the nominated position must be within the business activities of the nominator. The Tribunal finds that r. 5.19(4)(c) is not relevant to the current nomination.
Term of employment of the visa holder: r.5.19(4)(d)
Regulation 5.19(4)(d) requires the nominee to be employed in the nominated position for at least 2 years full time, and the terms and conditions of that employment do not expressly exclude the possibility of an extension.
The Tribunal notes that this was the basis upon which the delegate relied when refusing the nomination. The Tribunal notes that 4.5 years have passed following the submission of the original application and the original associated documentation. The Tribunal observes that the financial position for the nominator for FY 2020 and FY 2021 is relatively good with an improved revenue and profitability post the impact of Covid-19 as demonstrated by the current BAS documentation. The Tribunal has formed a view that the financial results during the Covid-19 pandemic should not be considered indicative of normal operational profitability nor considered in isolation.
The Tribunal is well acquainted with small companies and acknowledges that they are rarely financially lucrative. They do however often perform very critical and key service provisions in communities which would otherwise go unfulfilled. The Tribunal has carefully studied the financial accounting provided to it, noting that the ATO Tax Returns correlate in an appropriate manner with the other financial data provided. In addition, it is observed that whilst it is a relatively modest enterprise, the customer base is growing. The enterprise does not appear to have suffered a lasting negative impact from the Covid-19 pandemic. It also observes that the visa applicant has been employed during this time therefore the financial documents incorporate their ongoing costs.
The ongoing financial stability of the nominating entity and its’ relative longevity in an ever increasingly complex and competitive environment, attests to its’ ability to employ the visa applicant. The niche market in which it operates combined with its’ multiple mode product service model potentially adds an additional level of resilience.
The Tribunal has had regard to the visa applicant’s Employment Agreement and the detailed position description. It is satisfied that the nominee will be appointed for a period of at least 2 years employment from grant of visa and the terms of employment do not include an express exclusion of the possibility of extending the period of employment. It is again reminded of the passage of more than 4.5 years since the original application and the current retention challenges associated with a low unemployment candidate dominated market. The ‘War for Talent’ has escalated substantially in the last 6 months.
The Tribunal observes that one of the potential challenges facing the business is retaining the visa applicant and recruiting additional staff as needed with their unique competencies and experience and the nominator’s obvious reliance upon their services. This is particularly evident when considering the acknowledged challenges associated with recruiting and retaining similar individuals in Australia. The essential competencies associated with the key component of this company’s offerings make it very difficult to recruit the individuals needed because the talent pool is relatively small compared with demand, particularly in regional Australia.
Current media and business reports analysing consumer confidence and employment data, coupled with present time job vacancies and recruitment challenges demonstrate a deficit of suitably qualified potential employees in many sectors. This is one such sector. The problem is exacerbated if an organisation is reliant upon temporary or permanent immigration as part of their labour source. Business, Media, and Government reports are being circulated which indicate this is starting to be a drag upon business development. The Tribunal has referenced the National Skills Commission Report which supports this conclusion, dated 21 July 2021.[1]
[1] National Skills Commission Vacancy Report, June 2021, Release date: 21 July 2021
The recent Australian Institute of Company Directors, (AICD), Sentiment Index Report, published 15 December 2021, also demonstrates a positive trajectory for the economy and employment.
‘More than two-thirds of directors are confident in Australia’s 12-month economic outlook. Nearly two thirds (64 per cent) believe business will be on sure footing in 12 months time, with positive indicators like investment, turnover and profits expected to grow.
While the overall outlook from directors is positive, key challenges are emerging for the post-COVID era.
Directors have identified workforce shortages as the top economic challenge facing Australian businesses, above COVID-19, climate change and Australia’s relationship with China.’
The Tribunal acknowledges that the current national unemployment rate has reached its lowest point in 48 years, at 3.4% according to the ABS figures for July 2022, released on 18 August 2022.
The Tribunal in addition notes the most recent modelling associated with unemployment in Australia released in the current Governments Budget on 25 October 2022. It further reinforces that low unemployment is expected to continue for some years into the forward estimates period of 4 years.
The Tribunal is aware that the workforce is relatively mobile. The specialist skills associated with this type of operation are highly sought after and readily transferred between competing businesses. There is a strong network which operates within this industry which has the effect of making it easy to entice valuable staff to join a competitor’s organisation.
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)(d) is 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 Tribunal has been provided with the visa applicant’s current remuneration, stating a salary of $50,000 plus Superannuation at the current rate, (10.5%). Total annual remuneration package is $57,500. The Tribunal accepts that the nominee’s current annual salary as stated by the nominating entity, as reflective of the business magnitude, the visa applicant’s qualifications, the role they undertake, their importance to the business and their experience. The Tribunal has reviewed the employment contract associated with the visa applicant. It notes that in addition to the remuneration being appropriate, the other conditions align with the relevant Award and general workplace requirements and conditions
As stated, the Tribunal perused a popular employment web site to ascertain the current state of the market in this field. The Tribunal observed 23,000 related vacancies, in a wide variety of locations and organisations currently under recruitment. Approximately 5% of observed vacancies are currently located in South Australia. 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 a beachside Adelaide suburban location. The eastern States tend to attract many individuals who could fill these roles due to the perceived larger market which remunerates at a higher rate.
The Tribunal researched the salaries offered for similar positions and accepted the salary research date presented by the nominator. The remuneration appears to fall within the mid-lower quartiles of similar positions on offer. It is satisfied that the terms and conditions of employment are equivalent to other employees with the same experience performing equivalent work in the same workplace or a similar workplace. Accordingly, the requirements of r.5.19(4)(e) are met.
No adverse information known to Immigration: r.5.19(4)(f)
Regulation 5.19(4)(f) requires that there is no adverse information known to Immigration about the nominator or person associated with the nominator; or it is reasonable to disregard any such information. For these purposes, ‘adverse information’ and ‘associated with’ have the meaning given in rr.1.13A and 1.13B. There is no evidence before the Tribunal that the applicant has anything but a satisfactory record of compliance with the immigration laws of Australia. Accordingly, the requirements of r.5.19(4)(f) are met.
Satisfactory compliance with workplace relations laws: r.5.19(4)(g)
Regulation 5.19(4)(g) requires that the applicant has a satisfactory record of compliance with the laws of the Commonwealth, and of each State or Territory in which the applicant operates a business and employs employees in the business, relating to workplace relations. The Tribunal notes that there is no evidence before the Tribunal that the applicant has anything but a satisfactory record of compliance with workplace relations law in Australia. Accordingly, the requirements of r.5.19(4)(g) are met.
Tasks of the position, genuine need for the position and training requirements r.5.19(4)(h)
Regulation 5.19(4)(h) contains alternative requirements. These are set out in detail in the attachment to the decision. As stated above the nomination was made under the RSMS Direct Entry stream and the Tribunal has proceeded to assess the application against the criteria in r.5.19(4)(h)(ii) which require that:
·the position and nominator’s business are located in regional Australia;
·there is a genuine need for the paid position under the nominator’s direct control which cannot be filled by a Australian citizen or permanent resident;
·the tasks of the position correspond to those of an occupation at the ANZCO skill level 1, 2 or 3; and
·a regional certifying body has advised the Minister about certain matters relating to the position.
The Tribunal is satisfied that the position and nominator’s business are located in regional Australia. 5.19(4)(ii)(A) is satisfied.
The Tribunal has had regard to the size and scope of the nominating entity’s business operations. The Tribunal is satisfied that there is a genuine need for the nominator to employ a paid employee to work full-time in the position under the nominator’s direct control. 5.19(4)(ii)(B) is satisfied.
Evidence was presented to the Tribunal regarding the recruitment process and the subsequent lack of suitably qualified and experienced applicants other than the nominee. The Tribunal accepts that the nominator had sincerely tried to fill the role. It notes the multiple electronic job sites utilised in conjunction with multiple advertisements in print media. It also accepts that personal and professional networks were utilised in the attempt to recruit for the visa applicant’s position. The Tribunal is satisfied that a fair and honest recruitment process was undertaken in a very limited talent pool.
The Tribunal has formed the view that the “Satisfied” RCB requirements and the issued Certificate provide some weight in favour of the applicant, however this is not within itself a definitive result which must be accepted by the Tribunal. It must make up its’ own mind as to the relevance of the advice proffered. In this instance it is accepted as sound advice that should be considered in support of the nominator’s claims.

The Tribunal observes that substantially more corroborative and relevant evidence was provided to it, than was presented to the delegate at the time of their decision. The Tribunal, as stated previously, acknowledges the current employment market distortions created by the Covid-19 pandemic followed by and coupled with the lowest unemployment rate in several decades. It is satisfied that the position cannot be filled by an Australian citizen or permanent resident in-spite of the best efforts of the nominator. The Tribunal is satisfied that the nominator’s business is located in regional Australia. 5.19(4)(ii)(C) is satisfied.
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 351411 for Cook and the detailed duty statement attached for the visa applicant. It appears clear that the Duty Statement and the ANZSCO descriptors substantially align. The position of Cook, ANZSCO 351411, nominated by the applicant is referred to in ANZSCO as a skill level 3 position and the Tribunal is satisfied that the visa applicant is operating at that level. 5.19(4)(ii)(D) is satisfied.
The Tribunal is satisfied that the occupation is applicable to the person identified under subparagraph (a)(ii) in accordance with the specification of the occupation and the business operated by the nominator is located at that place. 5.19(4)(ii)(DA) and 5.19(4)(ii)(E) are satisfied.
The Tribunal has had reviewed the ‘satisfied’ Form 1404 issued by an RCB, dated 24 July 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. 5.19(4)(ii)(F) is satisfied.
The Tribunal is satisfied that the applicant meets 5.19(4)(h)(ii).
Based on the findings above, the Tribunal is satisfied that the applicant meets the requirements of r.5.19 for approval of the nomination of the position in Australia.
DECISION
The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.
Peter Emmerton

Member
ATTACHMENT - Extracts from the Migration Regulations 1994
5.19Approval of nominated positions (employer nomination)
…
(2)The application must:
(a)be made in accordance with approved form 1395…; and
(aa) include a written certification by the nominator stating whether or not the nominator has engaged in conduct, in relation to the nomination, that constitutes a contravention of subsection 245AR(1) of the Act; and
(b)be accompanied by the fee mentioned in regulation 5.37.
…
Direct Entry nomination
(4)The Minister must, in writing, approve a nomination if:
(a)the application for approval:
(i)       is made in accordance with subregulation (2); and
(ii)      identifies a need for the nominator to employ an identified person as 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).

[2022] AATA 3984

10 November 2022

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