GM CONSTRUCTION MANAGEMENT PTY LTD (MIGRATION) - [2024] ARTA 120

GM CONSTRUCTION MANAGEMENT PTY LTD (MIGRATION) [2024] ARTA 120 (14 NOVEMBER 2024)
DECISION AND
REASONS FOR DECISION
Applicant:GM Construction Management Pty Ltd
Respondent:  Minister for Home Affairs
Tribunal Number:  2213572

Tribunal:General Member P. Emmerton
Place:Adelaide
Date: 14 November 2024
Decision:The Tribunal sets aside the decision under review and remits the application for reconsideration, in accordance with the order that the nomination meets the following requirements:
·Reg 5.19(4)(f) of the Regulations
·Reg 5.19(9)(c) of the Regulations
·Reg 5.19(9)(d) of the Regulations

Statement made on 14 November 2024 at 12:02pm

CATCHWORDS
MIGRATION – nomination – position associated with the nominated occupation is genuine – a genuine need for the identified person to work in the nominated position – decision under review set aside
LEGISLATION
Migration Act 1958, ss 140, 245
Migration Regulations 1994, r 5.19
STATEMENT OF REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 2 September 2022 to reject the applicant’s application for approval of the nomination of a position under reg 5.19 of the Migration Regulations 1994 (Cth) (the Regulations).
The applicant applied for approval of the nomination on 24 August 2021. The delegate decided not to approve the nomination on the basis that they were not satisfied the nominator had demonstrated a genuine need for the identified person to work in the nominated position under their direct control.
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 remit the matter for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present case is whether the applicant meets the general requirements for approval of the nomination set out in reg 5.19(4) and the stream specific requirements set out in reg 5.19(9), which are extracted in the attachment to this decision. For the nomination to be approved, all the requirements must be met.
The Tribunal has read and carefully considered all the evidence provided to the delegate and the Department prior to their decision.
The Tribunal has read and carefully considered all the evidence presented to it for consideration prior to decision which included a comprehensive updated submission received on 13 August 2024.
Genuine need for employment – regs 5.19(9)(c) and (d) and reg 5.19(4)(f)
Regulation 5.19(9)(c) requires the nomination application to identify a need for the identified person to be employed in the position, under the direct control of the nominator, and reg 5.19(9)(d) requires this need to be genuine.
The delegate determined that as regulations 5.19(9)(d) was not met, regulation 5.19(4)(f) was not met.
It is noted that substantially more updated relevant evidence was provided to the Tribunal in support of the nominator’s application which was in addition to the comprehensive package of evidence provided to the Department and the delegate at the time of their decision.
The Tribunal has perused the ATO Taxation Returns and Financial Statements associated with the Profit and Loss, Balance Sheet and Assets as well as the most recent BAS returns for FY 2022 Q2 and Q3 and FY 2024 Q1, Q2, Q3. It is determined this is a profitable and growing business with a large contingent of relevant employees and a growing substantial number of apprentices. The staffing is almost entirely consisting of staff employed from the Australian population. The Tribunal is reassured by the commitment to training apprentices to ensure long term viability without undue reliance upon visa holders.
As it continues to expand it is logical that further staff at this level would be needed. It is noted by the Tribunal, as was noted by the delegate, that substantial growth has taken place. The delegate viewed this as evidence no additional personnel were needed as they achieved the growth with a static workforce. The Tribunal has formed a divergent view. It is very aware that a growth surge can be accommodated for a short period of time without additional individuals, simply by increasing the workload on existing team members. This is common in the short term whilst organisations assess the need to employ more head count and their ability to protect business viability based on their projected work bookings. It is however not a sustainable mid-term practice due to the detrimental effect on the existing staff with predictable negative attrition issues in the long term. An additional individual at this level appears to be a prudent measure to ensure a viable and vibrant business into the future. The Tribunal notes the statements made by the organisation that large projects have been declined due to workforce constraints.
The Tribunal has investigated the salary currently on offer, (AUD$125,000) and has assessed it falls within the current market mid-percentiles. It is illogical to believe an organisation of this magnitude would invest approximately $150,000 per annum including oncosts for a role that is not genuinely required to ensure business continuity. The Tribunal has interrogated a popular global and local employment website and notes in excess of 8,000 closely related positions are currently under active recruitment nationally.
This is a midsize organisation diversifying and growing. It has a substantial number of staff and to continue growth this will need to further increase. It is noted the construction industry is in a boom period and will be for many years to come according to a wide range of industry and economic experts. Major and minor construction projects of public infrastructure and housing projects have ensured demand is exceeding supply of workers at all levels in the construction industry.
The Tribunal has looked at the Organisation Chart and annotations. There are minimal staff with visas in the business. The Tribunal has mapped the duty statement documentation for the visa applicant with the ANZSCO specifications for a Construction Project Manager, (133111) and is satisfied there is an appropriate correlation. It is observed the position specified clearly fits in a logical manner within the organisations structure. All of these factors add further weight to the genuineness and need for the role within the organisation.
There is no evidence before the Tribunal that leads it to believe this is anything other than a genuine position with a genuine need within the organisation.
Given the above findings, the Tribunal is satisfied that regs 5.19(9)(c) and (d) are met. Accordingly, reg 5.19(4)(f) is met.
Decision
The Tribunal sets aside the decision under review not to approve the nomination and remits the matter for reconsideration in accordance with the order that the nomination must be taken to have met the following requirements for approval under reg 5.19(3) of the Regulations:
a. Reg 5.19(4)(f) of the Regulations
b. Reg 5.19(9)(c) and 5.19(9)(d) of the Regulations
Representative for the Applicant: Mr Sam Issa
ATTACHMENT – EXTRACTS FROM THE MIGRATION REGULATIONS 1994
5.19 Approval of nominated positions—Subclass 186 (Employer Nomination Scheme) visa and Subclass 187 (Regional Sponsored Migration Scheme) visa
Application
(1) A person (the nominator) (including a partnership or unincorporated association) may apply to the Minister for approval of the nomination of a position in Australia.
(2) The application must:
(aa) if the application identifies a Subclass 187 (Regional Sponsored Migration Scheme) visa–be made before 16 November 2019 (subject to subclause (2A)); and
(a) be made in accordance with approved form 1395 (Internet); and
(b) identify the position; and
(c) identify a person (the identified person) in relation to the position; and
(d) identify an occupation in relation to the position; and
(e) identify the subclass and stream to which the nomination relates, which must be one of the following:
(i) a Subclass 186 (Employer Nomination Scheme) visa in the Temporary Residence Transition stream;
(ii) a Subclass 187 (Regional Sponsored Migration Scheme) visa in the Temporary Residence Transition stream;
(iii) a Subclass 186 (Employer Nomination Scheme) visa in the Direct Entry stream;
(iv) Subclass 187 (Regional Sponsored Migration Scheme) visa in the Direct Entry stream;
(v) a Subclass 186 (Employer Nomination Scheme) visa in the Labour Agreement stream; and
(f) be accompanied by the fee mentioned in regulation 5.37; and
(fa) be accompanied by any nomination training contribution charge the nominator is liable to pay in relation to the nomination; and
(fb) identify the annual turnover (within the meaning of the Migration (Skilling Australians Fund) Charges Regulations 2018) for the nomination; and
(g) 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.
(2A) Paragraph (2)(aa) does not apply if:
(a) the application identifies a Subclass 187 (Regional Sponsored Migration Scheme) visa in the Temporary Residence Transition stream; and
(b) the identified person is a transitional 457 worker or transitional 482 worker at the time the application is made.
Approval of nomination
(3) The Minister must, in writing:
(a) approve the nomination if the Minister is satisfied that the requirements set out in subregulation (4) are met; or
(b) otherwise—refuse to approve the nomination.
Requirements for approval—general
(4) The requirements to be met for the nomination to be approved are as follows:
(a) the application is made in accordance with subregulation (2);
(b) 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;
(c) if it is mandatory, in the State or Territory in which the position is located, for a person to:
(i) hold a licence of a particular kind; or
(ii) hold registration of a particular kind; or
(iii) be a member (or a member of a particular kind) of a particular professional body;
to perform tasks of the kind to be performed in the occupation, the identified person is, or is eligible to become, the holder of the licence, the holder of the registration, or a member of the body, at the time of application;
(d) the nominator has a satisfactory record of compliance with the laws of the Commonwealth, and of each State or Territory in which the nominator operates a business and employs employees in the business, relating to employment;
(da) any debt due by the nominator as mentioned in section 140ZO of the Act (recovery of nomination training contribution charge and late payment penalty) has been paid in full;
(e) if the nomination relates to a visa in a Temporary Residence Transition stream—the requirements set out in subregulation (5) are met;
(f) if the nomination relates to a visa in a Direct Entry stream—the requirements set out in subregulation (9) are met;
(g) if the nomination relates to a visa in a Labour Agreement stream—the requirements set out in subregulation (14) are met.
…
Direct Entry stream—additional requirements for approval
(9) If the nomination relates to a visa in a Direct Entry stream, the following requirements must also be met:
(a) the nominator is actively and lawfully operating a business in Australia;
(b) if the nominator’s business activities include activities related 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;
(c) the application identifies a need for the identified person to be employed in the position, under the direct control of the nominator;
(d) there is a genuine need for the identified person to be employed in the position, under the direct control of the nominator;
(e) the identified person will be employed on a full-time basis in the position for at least 2 years;
(f) the terms and conditions of the identified person’s employment will not include an express exclusion of the possibility of extending the period of employment;
(g) the nominator’s business has the capacity to employ the identified person for at least 2 years and to pay the person at least the annual market salary rate for the occupation each year;
(h) the requirements set out in subregulation 2.72(15) are met, applying subregulations 2.72(15) and (16) as if:
(i) paragraph 2.72(15)(a) did not apply; and
(ii) references to the nominee were references to the identified person; and
(iii) references to the person were references to the nominator;
(i) either:
(i) there is no information known to Immigration that indicates that the employment conditions (other than in relation to earnings) that will apply to the identified person are less favourable than those that apply, or would apply, to an Australian citizen or an Australian permanent resident performing equivalent work at the same location; or
(ii) it is reasonable to disregard any such information;
(j) the requirements set out in subregulation (10) or (12) are met.
Occupations for the Subclass 186 (Employer Nomination Scheme) visa in the Direct Entry stream
(10) The requirements of this subregulation are as follows:
(a) the tasks to be performed in the position will be performed in Australia and correspond to the tasks of an occupation specified in a legislative instrument:
(i) made under subregulation (11); and
(ii) in force at the time the application is made;
(b) the occupation applies to the identified person in accordance with that instrument.
(11) The Minister may, by legislative instrument, specify occupations for the purposes of subregulation (10) and, for each occupation, specify any matters for the purposes of determining whether the occupation applies to an identified person, including matters relating to any of the following:
(a) the nominator;
(b) the identified person;
(c) the occupation;
(d) the position in which the identified person is to work;
(e) the circumstances in which the occupation is undertaken;
(f) the circumstances in which the person is to be employed in the position.
Occupations for the Subclass 187 (Regional Sponsored Migration Scheme) visa in the Direct Entry stream
(12) The requirements of this subregulation are as follows:
(a) the position is located at a place in regional Australia;
(b) the business operated by the nominator is located at that place;
(c) the position cannot be filled by an Australian citizen or an Australian permanent resident who is living in, or would move to, the local area concerned;
(d) the tasks to be performed in the position correspond to the tasks of an occupation specified in a legislative instrument:
(i) made under subregulation (13); and
(ii) as in force at the time the application is made;
(e) the occupation applies to the identified person in accordance with that instrument;
(f) the Minister has been advised by a body that meets the requirements set out in paragraph (g) of this subregulation about matters relating to the following:
(i) whether the identified person would be paid at least the annual market salary rate for the occupation;
(ii) whether there is a genuine need for the identified person to be employed in the position, under the direct control of the nominator;
(iii) whether the position can be filled by an Australian citizen or an Australian permanent resident who is living in, or would move to, the local area concerned;
(g) the body must:
(i) be specified in a legislative instrument made by the Minister for the purposes of this paragraph; and
(ii) be located in the State or Territory in which the position is located; and
(iii) have responsibility for the local area in which the position is located.
(13) The Minister may, by legislative instrument, specify occupations for the purposes of subregulation (12) and, for each occupation, specify any matters for the purposes of determining whether the occupation applies to an identified person, including matters relating to any of the following:
(a) the nominator;
(b) the identified person;
(c) the occupation;
(d) the position in which the identified person is to work;
(e) the circumstances in which the occupation is undertaken;
(f) the circumstances in which the person is to be employed in the position.
…
Meaning of regional Australia
(16) In this regulation:
regional Australia means a part of Australia specified in legislative instrument made by the Minister for the purposes of this definition.