Gawler River Tomatoes Pty Ltd (Migration)

Gawler River Tomatoes Pty Ltd (Migration) [2021] AATA 3721 (5 August 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Gawler River Tomatoes Pty Ltd
CASE NUMBER:  1822811
HOME AFFAIRS REFERENCE(S):          BCC2017/874860
MEMBER:Mark O'Loughlin
DATE:5 August 2021
PLACE OF DECISION:  Adelaide
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Statement made on 05 August 2021 at 4:39pm

CATCHWORDS
MIGRATION – Employer Nomination – approval of nominated position – Direct Entry Nomination – Nursery person – term of employment – genuine position – tomato growing – nominee’s labour hired to a related business – decision under review set aside
LEGISLATION
Migration Regulations 1994 (Cth), 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 Home Affairs on 25 July 2018 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 6 March 2017. 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) of the Regulations because it did not demonstrate that there is a genuine need for the nominator to employ the nominee in the position as required by5.19(4)(a)(i) (although it appears that the delegate had in mind the requirement at 5.19(4)(h)(ii)(B) ) nor was the delegate satisfied that the applicant is sufficiently financially viable to employ the nominee on a full-time basis in the position for at least 2 years as required by subregulation 5.19(4)(d)(i).
Mr Con Kapiris, the director and secretary of the applicant, appeared before the Tribunal on 16 June 2021 to give evidence and present arguments on the applicant’s behalf. The hearing was combined with the hearing of an application of the nominee review of the decision to refuse his subclass 187 Visa. The Tribunal received oral evidence from the nominee. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.
The applicant was represented in relation to the review and the applicant’s representative attended the Tribunal 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 reg 5.19(4), which is extracted in the attachment to this decision. For the nomination to be approved, all the requirements must be met.
Mr Kapiris told the Tribunal that he been involved in growing tomatoes since the early 80s.
He said that the tomato growing is conducted by a group of companies, one of which is the applicant, Gawler River Tomatoes Pty Ltd.
The Tribunal asked Mr Kapiris whether the company makes a profit. The Tribunal advised that one of the important issues was that the Tribunal be satisfied that the applicant could offer the nominee employment for at least 2 years.
Mr Kapiris explained that the tomato growing operation has been expanded and further it has been changed particularly recently and that although the actual sale and profit from the tomato growing operation may be allocated to different parts of the group in different years, overall the tomato growing is profitable and will be supported by the company.
Mr Kapiris explained that although in the past the company had grown cucumbers it only goes tomatoes now.
By reason of the movement of expenses and income from one company to the other, the applicant company, Gawler River Tomatoes Pty Ltd has in the past shown no income from the sale of tomatoes.
In the past the applicant’s main income has been a distribution from Kapiris Bros.
In fact it appears from Mr Kapiris evidence that in the past the applicant has been used to provide warehousing and greenhouses to related entities for their use.
By 2019 it appears that the applicant was generating substantial income through tomato sales. Mr Kapiris advised that in 2019 the company started using hydroponics and that the green housing has been taken over by Gawler River Farms, a related company.
The Tribunal observed that in 2020 did not appear to be any income from tomato sales. Mr Kapiris said that Gawler River Farms was to be the growing entity and that some packing equipment have been bought to pack tomatoes for related entities and for other growers.
Mr Kapiris was asked whether in fact the nominee is working for Gawler River Farms rather than Gawler River Tomatoes.
He said that the 3 companies are all interlinked and all under the same umbrella.
He said that they need the nominee to work in the greenhouses as he is no longer able to do so due to allergies.
He said that the human environment and the harsh chemicals mean he can no longer do that work.
He said that strictly speaking the applicant may be working for Gawler River Farms, the tomato growing arm of the business, but she is paid by Gawler River tomatoes who draw their profit from the tomato growing.
The thrust of his evidence was that the applicant is maintained by the tomatoes that the nominee grows even if it does not directly sell those tomatoes and so there is a genuine need for the applicant to employ the nominee in the position.
The evidence on this was broadly supported by evidence provided to the Tribunal after the hearing.
The Tribunal noted that it appeared that there was an element of labour hire in the income for the applicant.
Mr Kapiris was quite frank in conceding that he was not sure what that was about although he was confident that the nominees labour was not hard to any unrelated businesses.
He did concede that effectively the arrangements between the companies might suggest that the nominees labour is hired to Gawler River Farms Pty Ltd, but that is relevantly a related business.
The Tribunal has considered this evidence and information that was submitted after the hearing and is satisfied that the position is within the business activities of the nominator and not for hire to other unrelated businesses.
Mr Kapiris gave evidence that the nominee first came to work for him when she was a student. She was working for his cousin but they needed someone full-time in the nominee was not able to work full-time at that stage she was a student.
He said that by the time their business expanded to the point that they required full-time nursery person, she had been in the position for some months.
He said that although he was happy with her work he wanted to see if there is someone available with more qualifications. On that basis the applicant advertised.
Mr Kapiris said there were a few applicants but he believed that the nominee was the best candidate.
He said that he is confident that she will be offered employment for the next 2 years and indeed she is critical to plans they have to expand the business.
He also said that in their experience it has been very difficult to get workers which he said lends strength to his conviction that her position will not be terminated in the near future.
The nominee gave evidence that she had studied horticulture and that she was on a student visa when she started with the applicant in 2016.
She said that although her priority at that stage had been to complete her studies, the opportunity to make a life in Australia was appealing and she thought that it would represent a good opportunity for her family.
She said that her work involves managing the seedling trials monitoring growth of the seedlings and preparing chemicals. Shes said that her work is in the greenhouses.
The Tribunal observed that Mr Kapiris had given evidence that it had been difficult to locate workers, whereas she told the Tribunal that she had had to apply at many places before she was able to find a position.
She said that she believed that was because she was only available to work part-time and the part-time positions are not common. She said that there is greater demand for full-time employees because the work is better suited to full-time employment.
Although the financial documents suggest variable profit earned directly by the applicant, the Tribunal is satisfied that the group of companies enjoys high turnover and adequate profits.
The Tribunal is further satisfied that the applicant and its related companies are going through a process of investing in technology and trialling of seed type C in order to secure their future.
The Tribunal is content that the applicant is the only fit and qualified nursery person performing jobs in the position in particular researching seed types, raising seedlings, and replanting seedlings.
The Tribunal proceeds to consider whether the application satisfies the requirements for the relevant regulations.
The application is compliant: reg 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 has had regard to the application in this matter and satisfied that it is relevantly compliant.
Accordingly, the requirement in reg 5.19(4)(a) is met.
Nominator is actively and lawfully operating a business in Australia: reg 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 regard to the financial documents, to the evidence of the company accountant provided after the hearing, and to the testimony of the witnesses.
The Tribunal is satisfied that the requirement in reg 5.19(4)(b) is met.
Position is not labour-hire: reg 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 accepts the evidence of Mr Kapiris that the nominee’s labour is not hired to unrelated companies.
Accordingly, the requirement in reg 5.19(4)(c) is met.
Term of employment of the visa holder: reg 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 has regard to a copy of the employment agreement dated 24^th of January 2017 and 2 the evidence of Mr Kapiris and is satisfied that the requirement in reg 5.19(4)(d) is met.
No less favourable terms and conditions of employment: reg 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 is satisfied that the terms and conditions of the nominee’s employment comply with the relevant award of statutory requirements.
: Accordingly the requirements of reg 5.19(4)(e) are met.
No adverse information known to Immigration: reg 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 regs 1.13A and 1.13B.
There is no evidence of any relevant adverse information before the Tribunal.
Accordingly the requirements of reg 5.19(4)(f) are met.
Satisfactory compliance with workplace relations laws: reg 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 the applicant’s record is other than satisfactory in these particulars.
Accordingly the requirements of reg 5.19(4)(g) are met.
Tasks of the position, the genuine need for the position and training requirements reg 5.19(4)(h)
Regulation 5.19(4)(h) contains a number of requirements that are set out in subregulation (i) and (ii). These provide alternative sets of requirements and the applicant must satisfy at least one set for the application to be successful. The applicant in this matter has sought to satisfy subregulation (ii) which may be summarised as requiring as follows: –
·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.
The Tribunal has regard to the evidence before it into the testimony given and finds that the position and the applicant’s business are located in “regional Australia” for the purpose of the subregulation.
The reasons set out above, the Tribunal is satisfied that there is a genuine need to employ a paid employee to work in the position under the nominator’s direct control.
Tribunal accepts the evidence of Mr Kapiris advise that the position cannot be filled by an Australian citizen or permanent resident who is living in the same local area.
The Tribunal is satisfied that the tasks of the position correspond adequately to the tasks own occupation specified in the ANZSCO definition of nursery person 362411.
The Tribunal has been provided with a copy of the relevant regional certifying body certificate dated 24^th of February 2017.
Accordingly the requirements of regulation 5.19 (4) (h) are met.
Based on the findings above, the Tribunal is satisfied that the applicant meets the requirements of reg 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.
Mark O'Loughlin
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).

[2021] AATA 3721

5 August 2021

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