Gold Cotton Pty Ltd (Migration) - [2022] AATA 3035

Gold Cotton Pty Ltd (Migration) [2022] AATA 3035 (16 August 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Gold Cotton Pty Ltd
REPRESENTATIVE:  Mr Matthew Gentle (MARN: 0701599)
CASE NUMBER:  1903869
HOME AFFAIRS REFERENCE(S):          BCC2018/713773
MEMBER:Terrence Baxter
DATE:16 August 2022
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Statement made on 16 August 2022 at 9:38am
CATCHWORDS
MIGRATION–nomination – Direct Entry stream – application is compliant – financial capacity to employ the nominee in the position of Assistant Poultry Farm Manager – genuine need to employ a paid employee to work in the position under the nominator’s direct control – nominated position is based in regional Australia – no adverse information – position associated with the nominated occupation is genuine –no less favourable terms and condition of employment –applicant lawfully operating a business in Australia – decision under review set aside
LEGISLATION
Migration Act 1958, ss 65, 245AR
Migration Regulations 1994, rr 1.13, 5.19
CASES
MIBP v Jayshree Enterprises Pty Ltd [2017] FCA 264
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179
Bharaj Construction Pty Ltd v MIBP [2016] FCCA 902
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 31 January 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, Gold Cotton Pty Ltd, applied for approval on 12 February 2018. The applicant nominated Mr Po Hao Hsu (the nominee) in the position of Assistant Poultry Farm Manager – Free Range. The applicant is part of the D. A Hall Group of companies which trades as D. A Hall & Co (the Group). The Group is a large organisation, operating an integrated poultry egg production agribusiness and is based at several locations in regional Queensland. The applicant is an employment company providing employees to a number of companies within the Group.
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 that the applicant’s nomination did not satisfy reg 5.19(4)(h)(ii)(D) of the Regulations because the delegate found that the tasks to be performed in the position do not correspond to the tasks of an occupation specified by…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Gold Cotton Pty Ltd (Migration)

Details

AGLC: Gold Cotton Pty Ltd (Migration) [2022] AATA 3035
Case: [2022] AATA 3035
Decision Date: 16 August 2022

CaseChat Overview and Summary

This matter concerned an appeal by Gold Cotton Pty Ltd against a decision that refused to approve its nomination for a position under the Direct Entry stream. The core of the dispute revolved around whether the applicant, Gold Cotton Pty Ltd, had met the various requirements stipulated in regulation 5.19(4) of the Migration Regulations 1994 for the approval of an employer nomination. The case was heard by Terrence Baxter.

The legal issues before the court were whether Gold Cotton Pty Ltd had demonstrated a genuine need to employ a paid worker in the nominated position of Assistant Poultry Farm Manager, whether the nominated position was genuinely based in regional Australia, and whether the applicant had complied with workplace relations laws. Additionally, the court had to consider whether there was any adverse information known to the Department of Home Affairs concerning the nominator or associated persons, and whether the nominated position's tasks corresponded to an occupation specified in the relevant legislative instrument.

The court reasoned that the applicant had provided substantial evidence, including updated company and ABN lookup forms, financial reports, organisational charts, an updated position description, the nominee's taxation and income statements, pay history summaries, details of the farm's location, job advertisements, market salary research, and a submission regarding the genuine need for the position. The court found that the evidence satisfied the requirements of regulation 5.19(4)(h)(ii), which pertains to positions located in regional Australia, including the genuine need for a paid employee under the nominator's direct control. Furthermore, the court was satisfied that there was no adverse information known to Immigration and that the applicant had a satisfactory record of compliance with workplace relations laws, thus meeting the requirements of regulations 5.19(4)(f) and 5.19(4)(g) respectively.

Consequently, the Tribunal decided to set aside the original decision and substitute it with a decision approving the nomination.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The applicant produced to the Tribunal the following documents: a.A copy of the delegate’s decision. b.A further copy of the nominee’s passport. c.An updated current ABN Lookup form of the applicant extracted 21 March 2022. d.An updated historical ABN Lookup form of the applicant extracted 21 March 2022.e.An updated ASIC company summary form of the applicant extracted 21 March 2022. f.An updated ASIC current and historical company extract of the applicant extracted 21 March 2022.g.Copies of the financial reports for the 2017 to 2018 financial years provided to the Department. h.An organisational chart dated March 2022. i.A financial report of DHP Holdings Pty Ltd & Subsidiaries for the 2019 financial year. j.An organisational chart dated June 2021. k.Australian and New Zealand Standard Classification of Occupations (ANZSCO) extracts for the occupation of Poultry Farmer. l.An updated position description. m.Notice of taxation assessments of the nominee for the 2017 to 2018 financial years, and a notice of amended assessment for the 2017 financial year. n.A notice of withholding tax of the nominee for the 2018 financial year. o.Income statements of the nominee for the 2019 to 2022 year to date financial years. p.A pay history summary of the nominee prepared by the applicant for the period from 1 February 2018 to 16 March 2022. q.A map of Ellerslie Poultry Farm accompanied by details of the farm.r.Further copies of documents 12(c) to 12(i) provided to the Tribunal outlined above. s.Further copies of documents 12(k) to 12(q) provided to the Tribunal outlined above.t.A pay history summary of the nominee prepared by the applicant for the period from 1 July 2021 to 28 April 2022. u.Financial reports of the applicant for the 2020 to 2021 financial years. v.An employment contract of the nominee dated 18 March 2022. w.Various job advertisements for the position accompanied by a summary of lists of candidates for the position and a recruitment summary of candidate suitability. x.Market salary research. y.A submission from the applicant regarding genuine need for the position dated 29 April 2022. z.A Certificate III in Poultry Production awarded to the nominee. aa.A copy of the Application for Employer Nomination for a Permanent Appointment form submitted to the Department.bb.An updated current ABN Lookup form of the applicant extracted 19 May 2022. cc.An updated historical ABN Lookup form of the applicant extracted 19 May 2022. dd.An updated ASIC company summary form of the applicant extracted 19 May 2022.ee.Further copies of documents 12(f) to 12(k) outlined above provided to the Tribunal.ff.Further copies of documents 12(l) to 12(q) outlined above provided to the Tribunal.gg.Further copies of documents 12(t) to 12(w) outlined above provided to the Tribunal.hh.A submission from the applicant regarding the alignment of the position with ANZSCO dated 29 April 2022. ii.Further copies of documents 12(z) and 12(aa) outlined above provided to the Tribunal. jj.Updated market salary research. kk.A submission from the applicant regarding genuine need for the position dated 19 May 2022. Evidence presented at the hearing regarding the applicant’s operations

Decision

Reasons for decision

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.Evidence presented prior to the hearing The applicant produced to the Department of Immigration and Border Protection (now the Department of Home Affairs) (the Department) the following documents: a.An employment contract of the nominee dated 7 February 2018. b.Financial reports of the applicant for the 2017 to 2018 financial years. c.A current ABN Lookup form of the applicant. d.A historical ABN Lookup form of the applicant. e.A copy of the nominee’s passport.f.An ASIC company summary form of the applicant. g.A position description. h.An ASIC current and historical company extract of the applicant. The applicant produced to the Tribunal the following documents: a.A copy of the delegate’s decision. b.A further copy of the nominee’s passport. c.An updated current ABN Lookup form of the applicant extracted 21 March 2022. d.An updated historical ABN Lookup form of the applicant extracted 21 March 2022.e.An updated ASIC company summary form of the applicant extracted 21 March 2022. f.An updated ASIC current and historical company extract of the applicant extracted 21 March 2022.g.Copies of the financial reports for the 2017 to 2018 financial years provided to the Department. h.An organisational chart dated March 2022. i.A financial report of DHP Holdings Pty Ltd & Subsidiaries for the 2019 financial year. j.An organisational chart dated June 2021. k.Australian and New Zealand Standard Classification of Occupations (ANZSCO) extracts for the occupation of Poultry Farmer. l.An updated position description. m.Notice of taxation assessments of the nominee for the 2017 to 2018 financial years, and a notice of amended assessment for the 2017 financial year. n.A notice of withholding tax of the nominee for the 2018 financial year. o.Income statements of the nominee for the 2019 to 2022 year to date financial years. p.A pay history summary of the nominee prepared by the applicant for the period from 1 February 2018 to 16 March 2022. q.A map of Ellerslie Poultry Farm accompanied by details of the farm.r.Further copies of documents 12(c) to 12(i) provided to the Tribunal outlined above. s.Further copies of documents 12(k) to 12(q) provided to the Tribunal outlined above.t.A pay history summary of the nominee prepared by the applicant for the period from 1 July 2021 to 28 April 2022. u.Financial reports of the applicant for the 2020 to 2021 financial years. v.An employment contract of the nominee dated 18 March 2022. w.Various job advertisements for the position accompanied by a summary of lists of candidates for the position and a recruitment summary of candidate suitability. x.Market salary research. y.A submission from the applicant regarding genuine need for the position dated 29 April 2022. z.A Certificate III in Poultry Production awarded to the nominee. aa.A copy of the Application for Employer Nomination for a Permanent Appointment form submitted to the Department.bb.An updated current ABN Lookup form of the applicant extracted 19 May 2022. cc.An updated historical ABN Lookup form of the applicant extracted 19 May 2022. dd.An updated ASIC company summary form of the applicant extracted 19 May 2022.ee.Further copies of documents 12(f) to 12(k) outlined above provided to the Tribunal.ff.Further copies of documents 12(l) to 12(q) outlined above provided to the Tribunal.gg.Further copies of documents 12(t) to 12(w) outlined above provided to the Tribunal.hh.A submission from the applicant regarding the alignment of the position with ANZSCO dated 29 April 2022. ii.Further copies of documents 12(z) and 12(aa) outlined above provided to the Tribunal. jj.Updated market salary research. kk.A submission from the applicant regarding genuine need for the position dated 19 May 2022. Evidence presented at the hearing regarding the applicant’s operations

Ratio Decidendi

Legal Principle Established

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 before the Tribunal that there is any adverse information of the type described in the relevant definitions known to the Department about the applicant or any associated person. 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 to suggest that the applicant has an unsatisfactory record of compliance with workplace relations laws of the Commonwealth or any State or Territory in which the applicant operates a business. The Tribunal is satisfied that the applicant does have a satisfactory record of compliance. Accordingly, the requirements of reg 5.19(4)(g) are met.Tasks of the position, genuine need for the position and training requirements: reg 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 legislative instrument, the occupation is applicable to the proposed employee in accordance with any specifications made in that instrument, there is a genuine need for the nominee to be employed as a paid employee in the position, and certain specified training requirements are met; or·the position and nominator’s business is located in regional Australia, there is a genuine need for the nominee to be employed as a paid employee in the position under the nominator’s direct control, the position 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 (see legislative instrument IMMI 17/058), the occupation is applicable to the proposed employee in accordance with the specification of the occupation, and a regional certifying body has advised the Minister about certain matters relating to the position. The applicant indicated in the nomination application that it was applying under the RSMS in the Direct Entry nomination stream. The applicant indicated that the postcode where the position was to be filled was 4357. Based on the evidence, the Tribunal is satisfied that the position and the applicant’s business are located at 37 Hall Road, Millmerran, Queensland 4357. As this postcode is specified in the relevant instrument as being in regional Australia, the requirements of reg 5.19(4)(h)(ii) must be met by the applicant.Regulation 5.19(4)(h)(ii)(A) – the position is located in regional Australia