G F AND S H KEMPEN (Migration)

[2021] AATA 2183

G F AND S H KEMPEN (Migration) [2021] AATA 2183 (21 May 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  G F AND S H KEMPEN

CASE NUMBER:  1823778

HOME AFFAIRS REFERENCE(S):          BCC2017/1651589

MEMBER:Karen McNamara

DATE:21 May 2021

PLACE OF DECISION:  Sydney

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

Statement made on 21 May 2021 at 5:38pm

CATCHWORDS

MIGRATION – approval of a nomination – Direct Entry nomination stream – occupation of Pig Farmer – occupation not specified by the Minister in an instrument – actively and lawfully operating a business in Australia – terms and conditions of employment – financial capacity to employ the nominee full-time – genuine need for the position – relevant regulatory instrument – decision under review set aside

LEGISLATION

Fair Work Act 2009
Migration Act 1958, s 245
Migration Regulations 1994, rr 1.13, 5.19, 5.37

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 Home Affairs on 26 July 2018 to reject the application by G F and S H Kempen 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 9 May 2017. 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).

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(4)(h)(ii)(D) of the Regulations because the delegate formed the view that the occupation of Pig Farmer, (ANZCO: 121318) was not an occupation specified by the Minister in an instrument in writing for sub-subparagraph 5.19(4)(h)(ii)(D).

5. The applicant applied to the Tribunal on 16 August 2018 for review of the delegate’s decision. The applicant submitted a copy of the primary decision record with the review application.

6. On 5 May 2021, the applicant represented by Ms Sharonlee Angove (referred to below as the applicant) appeared before the Tribunal via telephone, to give evidence and present arguments. The Tribunal also received oral evidence from Ms Monica Malabo (the nominee) in the related matter for the subclass 187 visa (AAT Case file 1825392). The related matters were heard concurrently in a combined hearing.

7. The applicant was represented in relation to the review by its registered migration agent. The representative attended the Tribunal hearing.

8. 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 and nominee. 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 and nominee were given a fair opportunity to give evidence and present arguments.

9. At the conclusion of the hearing, the Tribunal invited the applicant and nominee to provide further documentation including copies of the nominee’s PAYG’s and evidence to support the current financial position of the business. 

10. The applicant provided to the Tribunal the above-mentioned documentation on 20 May 2021.

11. 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

12. 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

13. The applicant is a family business which owns and operates the largest private piggery in Australia. The piggery farm has been operating since 1990 as a large farming business, which consists of 5,500 acres of farming land with 1400 Sows. The farm is located in Womboota, in the Riverina region of New South Wales.

14. On 9 May 2017, the applicant lodged an application for an employer nomination approval for the position of Pig Farmer (ANZSCO 121318) under the Regional Sponsored Migration Direct Entry stream. The nominated base rate and guaranteed earnings is $54,444 per annum.

15. 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)

16. 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.

17. 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 Migration Act 1958, declared and signed by the applicant. Accordingly, the requirements of r.5.19(4)(a)(i) are met.

18. 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 Ms Sharonlee Angove. In support of the need for the position, the applicant has provided evidence in the form of a written submission from the representative date 18 February 2021, explaining the importance and contribution of the position in the farrowing unit of the piggery.

19. At the hearing the applicant told the Tribunal that the need to employ a paid employee to work in the nominated position, is critical to the farrowing operations of the piggery. The position has existed for approximately 10 to 12 years with the role being carried out previously by family members and others. The position is one of numerous positions associated with the farrowing unit and requires qualified and experienced employees to ensure the health and wellbeing of the Sows and Piglets. The Tribunal is satisfied on the evidence that the applicant satisfies the requirement in r.5.19(4)(a)(ii).

20. 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)

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

22. The Tribunal accepts on the evidence before it that the applicant owns and operates a piggery farm located at Womboota, in the Riverina region of New South Wales. Based on the material provided to the Tribunal, including; financial statements, BAS returns and ASIC details, the Tribunal is satisfied the applicant is actively and lawfully operating a primary production business (piggery farm) in Australia and directly operates that business.

23. Accordingly, the requirement in r.5.19(4)(b) is met.

    Position is not labour-hire: r.5.19(4)(c)

24. 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. 

25. There is no evidence before the Tribunal to suggest that the applicant’s business is involved in labour hire.

26. Accordingly, the requirement in r.5.19(4)(c) does not apply.

    Term of employment of the visa holder: r.5.19(4)(d)

27. 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. 

28. In considering whether the business has the financial capacity to pay the nominated full-time salary of $54,444 per annum to the nominee for two years, the Tribunal has taken into consideration evidence before it including the business’s financial statements, tax returns, advice from the applicant’s accountant and BAS returns as submitted to the ATO. The Tribunal has afforded weight to information before it including the applicant’s financial statements, tax returns, BAS returns and nominee’s bank statements, which show the applicant has met payroll and operating costs.

29. The Tribunal notes that the business has reported substantial revenue with proportionally aligned profit. The applicant’s BAS returns, and financial statements indicate that the applicant’s revenue can sustain the ongoing employment of the nominee. At the hearing the Tribunal discussed with the applicant the impact of the COVID -19 pandemic on the business. The applicant told the Tribunal that due to closures in Melbourne, butchers and restaurants reduced orders and as a result the piggery was over stocked. Feed prices increased which added to business expenses.  

30. Whilst the lockdown restrictions at the time had an immediate impact upon the applicant’s revenue and profit, the business has recovered well and has seen the business record an increase of approximately 37% in turnover in the 2019/20 financial year.

31. The Tribunal has also taken into consideration the nominee has been employed by the applicant since May 2017. The nominee’s bank account statements and PAYG’s, support the nominee has received regular salary payments of the nominated salary of $54,444.

32. Based on the evidence before it, the Tribunal is satisfied the applicant has the financial capacity to maintain the nominee’s full-time employment as they have done since the nominee commenced in the position in May 2017.

33. Accordingly, the requirement in r.5.19(4)(d)(i) is met.

34. The Tribunal has had regard to the most recent contract of employment dated 10 February 2021. The contract, which sets out the terms and conditions of employment, indicate that the period of employment is for a period of two years. The contract stipulates minimum salary of $56,215 exclusive of superannuation with hours of work 44 hours per week (inclusive of guaranteed overtime of 6 hours per week). There is no term excluding an extension of the contract.

35. The Tribunal is satisfied based on the employment contract dated 10 February 2021 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.

36. 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 conditions of employment: r.5.19(4)(e)

37. 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.

38. The contract of employment dated 10 February 2021 sets out the terms and conditions of employment and indicates that the nominee’s salary will be $56,215 exclusive of superannuation with hours of work 44 hours per week (inclusive of guaranteed overtime of 6 hours per week). The nominee’s leave entitlements include annual, personal and long service leave. The terms and conditions of employment are in accordance with the Pastoral Award 2010 and Fair Work Act.

39. The Tribunal has received copies of the nominee’s PAYG’s and bank statements confirming that the nominee has been paid by the applicant the nominated salary amount of $54,444 per annum. Superannuation information 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.

40. 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. 

41. Accordingly, the requirements of r.5.19(4)(e) are met.

    No adverse information known to Immigration: r.5.19(4)(f)

42. 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. 

43. There is no evidence before the Tribunal to indicate that there is adverse information as per the meaning given in rr.1.13A and 1.13B, known to the Department about the applicant or an associated person.

44. Accordingly, the requirements of r.5.19(4)(f) are met.

    Satisfactory compliance with workplace relations laws: r.5.19(4)(g)

45. 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.

46. 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.

47. 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)

48. 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;

49. The evidence before the Tribunal indicates that the applicant’s business, which is operated by the applicant and the position are located in Womboota, in the Riverina region of New South Wales, postcode 2371 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.

50. The Tribunal next considered whether there is a genuine need for the applicant to employ a Pig Farmer (ANZSCO 121318) and for the tasks of that position. The evidence before the Tribunal indicates the applicant operates a piggery. The applicant gave evidence at the hearing that the position is key to the operational requirements of the business, in so far as the nominated position is consistent with the nature of the applicant’s business.

51. The applicant told the Tribunal that the genuine need to employ the nominee in the nominated position has arisen as a result of the difficulties the applicant has had in filling the position. The location of the piggery in the southern Riverina region and the nature of the work has presented issues in attracting suitably qualified and committed staff. The position is one of numerous positions associated with the farrowing unit and requires qualified and experienced employees to ensure the health and wellbeing of the Sows and Piglets. The Tribunal is satisfied on the evidence presented by the applicant that there is a genuine need for a paid employee to work in the position of Pig Farmer (ANZSCO 121318) under the nominator’s control. Accordingly, the requirement of r.5.19(4)(h)(ii) (B) is met.

52. 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.

53. 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.

54. The delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19(4)(h)(ii)(D) of the Regulations because the delegate formed the view that the occupation of Pig Farmer, (ANZCO: 121318) was not an occupation specified by the Minister in an instrument in writing for sub-subparagraph 5.19(4)(h)(ii)(D).

55. The Tribunal has formed a different view and accepts the evidence presented by the applicant’s representative attesting to the applicable relevant instrument.

56. Regulation 5.19(4)(h) has two sub-regulations attached to it, sub regulation 5.19(4)(h)(i) and sub regulation 5.19(4)(h)(ii). For regulation 5.19(4)(h) to be met, one of the two sub regulations must be satisfied. Sub regulation 5.19(4)(h)(i) is the relevant criteria for ENS nominations and sub regulation 5.19(4)(h)(ii) is the relevant criteria for RSMS nominations. Each of the two sub regulations has a relevant instrument in writing listing the relevant occupations that are specified by the Minister.

57. In the delegates decision of 26 July 2018, the delegate refers to instrument F2017L00450 (IMMI 17/040) which was authorised under sub-subparagraph 5.19(4)(h)(i)(A) and is not relevant to sub-subparagraph 5.19(4)(h)(ii)(D).

58. As the applicant lodged the nomination under RSMS, the nomination must be assessed under sub regulation 5.19 (4)(h)(ii). Under sub-subparagraph 5.19(4)(h)(ii)(D) the relevant instrument in this matter is IMMI 15/083, which for the purposes of sub-subparagraph 5.19(4)(h)(ii)(D) of the Regulations, species the occupation of Pig Farmer.

59. At the hearing the Tribunal discussed with the applicant and nominee, the precise tasks and responsibilities associated with the position and has considered evidence supporting the nominee’s suitability in so far as her experience and qualifications for the position.

1. Department records show that the nominee attained a Bachelor of Science degree majoring in Animal Science from the Philippines, was previously employed in the Philippines as a Swine Technician and has performed the tasks of Pig Framer with the applicant since May 2017. Having considered the evidence attesting to the nominee’s experience and qualifications the Tribunal is satisfied that she is suitably qualified for the position.

2. 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) (D) and (DA) are met.

3. The Tribunal notes the advice dated 6 November 2017 from the relevant RCB Regional Development Australia, Murray, indicating that they are satisfied regarding the matters specified in r.5.19(4)(e) and r.5.19(4)(h)(ii)(B) & (C). On this basis, the Tribunal is satisfied that r.5.19(4)(h)(ii)(F) is met.

4. 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.

5. 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

6. 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).