Gold Cotton Pty Ltd (Migration)

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 the Minister in an instrument in writing.
The applicant lodged an application for review of the delegate’s decision with the Tribunal on 20 February 2019.
The HR Manager of the applicant, Mrs Elizabeth Quinlan, appeared before the Tribunal by video conference on 25 May 2022 to give evidence and present arguments. The hearing was a joint hearing with the application for review of a decision to refuse the visa application of the nominee. The Tribunal also received oral evidence from the nominee and Mr Petrus Groot, the General Manager of Poultry, D. A Hall & Co, by video conference.
The Tribunal exercised its discretion to hold the hearing by video conference. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by video conference, having regard to the nature of this matter and the individual circumstances of the applicant. 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 video conference.
The applicant was represented in relation to the review by its registered migration agent, Mr Matthew Gentle of AccessPoint Visa Services. The representative attended the Tribunal hearing by video conference.
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
Mrs Quinlan stated that the applicant is one of five employment companies providing labour to companies within the Group which comprises 36 distinct entities. She said that the Group operated a vertically integrated business ranging from cropping, to feed milling, to production and grading of eggs and subsequent transport for distribution. She said that the applicant did not provide labour to unrelated businesses.
Mr Groot stated that the Group operated on five separate properties, including the Ellerslie Free Range Farm on which the nominee is employed. He said that there were four separate operating systems on the Ellerslie farm. He gave evidence of the applicant’s need to employ the nominee and gave evidence regarding the tasks performed by the nominee.
The nominee gave evidence of his employment by the applicant since February 2018 and of the tasks performed by him.
During the hearing, the applicant produced to the Tribunal the following documents:
a.An IELTS report of the nominee.
b.A Bachelor of Science awarded to the nominee, accompanied by an academic transcript.
c.A Master of Science awarded to the nominee, accompanied by an academic transcript.
Evidence presented after the hearing
After the hearing, the applicant produced to the Tribunal the following documents:
a.An assessment statement and recommendation from the Regional Certifying Body (RCB), the Queensland Chamber of Commerce and Industry, Toowoomba, dated 7 June 2022.
b.A submission from the Chief Financial Officer of the Group dated 6 June 2022.
c.An ASIC current company extract of DHP Consolidated Pty Ltd.
d.An ASIC current company extract of Ellerslie Free Range Farms Pty Ltd.
e.An ASIC current company extract of Notribe Pty Ltd.
f.An ASIC current company extract of the applicant.
g.An undated letter from the Payroll Manager of AgriLabour Australia confirming the nominee’s employment history with that entity from April 2017 to February 2018.
h.Eight submissions from the applicant regarding the tasks performed by the nominee in the position dated 8 June 2022, accompanied by evidence of the same.
i.A submission from the applicant confirming the nominee’s employment dated 3 June 2022.
j.A copy of the nominee’s resume.
k.Pay history summaries of the nominee prepared by the applicant for the period from 1 January 2018 to 24 May 2022 and 1 July 2021 to 7 June 2022.
l.PAYG payment summaries of the nominee for the 2017 and 2018 financial years.
m.A submission from the applicant regarding the salary of equivalent Australian employees dated 8 June 2022, accompanied by an organisational chart, pay history summaries for the 2022 financial year of the equivalent Australian workers and evidence of their identity.
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 an identified person as a paid employee to work in the position under their direct control.
Having regard to the documentation in the file of the Department, the Tribunal is satisfied that the application for approval was in the approved form. The application relates to a visa in the Direct Entry nomination stream seeking to meet the requirements in the Regional Sponsored Migration Scheme (RSMS) and consequently no fee is payable (reg 5.19(2) and reg 5.37(4) of the Regulations). The application included a written certification stating that the applicant had not engaged in conduct in relation to the nomination that contravenes s 245AR(1) of the Act. The requirements of reg 5.19(2) and consequently of reg 5.19(4)(a)(i) are therefore met.
Regulation 5.19(4)(a)(ii) requires that the application 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. It is unclear whether this requirement is directed just at a statement to this effect or something of a more qualitative nature. The wording ‘identifies a need’ arguably suggests more is required to meet this criterion than simply a statement or declaration that there is such a need. ‘Identify’ is defined as ‘to recognise or establish as being a particular person or thing; verify the identity of’.[1] On that view, which is consistent with that reflected in Departmental policy, a decision maker would need to be satisfied that there is a genuine need on the part of the nominator to employ the nominee as a paid employee in the nominated position.[2] However, it could alternatively be argued that reg 5.19(4)(a) as a whole is directed towards requirements for the application form/process of a more administrative nature, such that reg 5.19(4)(a)(ii) could be met by a simple statement or certification of need. Support for this view can also be found in the contrast between the wording of reg 5.19(4)(a)(ii) and, for example, reg 5.19(4)(h)(ii)(B) (for applications relating to positions in regional Australia), which requires that there be a genuine need for the nominator to employ the nominee to work in the position under the nominator’s direct control – clearly requiring a qualitative assessment, and reg 5.19(4)(d)(i), which requires satisfaction that the employee will be employed on a full-time basis in the position for at least two years. Given the uncertain scope of reg 5.19(4)(a)(ii), and the requirement in relation to this application to satisfy reg 5.19(4)(h)(ii)(B), the Tribunal considers that this issue is more appropriately considered under reg 5.19(4)(h)(ii)(B) later in these Reasons.
[1] Dictionary.com (accessed May 2022).
[2] In Bharaj Construction Pty Ltd v MIBP [2016] FCCA 902 (Judge Barnes, 28 April 2016), the Court considered a similarly worded provision in respect of a pre-1 July 2012 RSMS nomination, i.e. ‘the employer nomination is made by an employer in respect of a need for a paid employee’. Whilst on the one hand reg 5.19(4)(a)(ii) does not appear to impose a different requirement beyond emphasising the requirement for an applicant to identify the need (unlike the pre-1 July 2012 version of regs 5.19(2)(a) and (4)(a)), the wording of the criteria does differ slightly and the Tribunal exercises caution in applying the reasoning of Bharaj to a post-1 July 2012 nomination as is currently being considered.
The Tribunal considers that reg 5.19(4)(a)(ii) is more directed to the administrative process, consistent with the requirements of reg 5.19(4) as a whole. The nomination application, on page 4 of that document, identifies that the position to be filled is that of Assistant Poultry Farm Manager – Free Range and on page 5 identifies the nominee as the nominated person. The Tribunal is therefore satisfied that the application for approval identifies a need to employ the nominee as a paid employee in the position of Assistant Poultry Farm Manager – Free Range under the applicant’s direct control such that reg 5.19(4)(a)(ii) is met. The Tribunal will consider later in these Reasons whether the applicant has established a genuine need for the applicant to employ the nominee to work in the position under the nominator’s direct control for the purposes of reg 5.19(4)(h)(ii)(B).
As regs 5.19(4)(a)(i) and (ii) are met, 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 applicant produced to the Tribunal ASIC evidence of the applicant’s registration together with financial statements to the 2021 financial year. The applicant produced evidence that the applicant does not lodge individual income tax returns or business activity statements as these documents are lodged collectively by the Group. The financial statements confirm that the applicant recorded total income of $4,614,168 and $5,743,673 in the 2020 and 2021 financial years respectively. Having regard to the evidence presented to the Tribunal, the Tribunal is satisfied that the applicant is actively, lawfully and directly operating a business in Australia, namely an employment company.
Accordingly, 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 business of the applicant is to provide staff to agribusiness companies operating within the Group. Mrs Quinlan gave evidence at the hearing that the applicant does not provide staff to unrelated businesses. The applicant provided evidence that the various companies to which labour is provided by the applicant are either wholly owned subsidiaries of DHP Consolidated Pty Ltd or wholly owned subsidiaries of wholly owned subsidiaries of that company.
Accordingly, the requirement in reg 5.19(4)(c) does not apply.
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 two years full-time, and the terms and conditions of that employment do not expressly exclude the possibility of an extension.
The employment contract dated 18 March 2022 produced to the Tribunal provides that the nominee’s employment is full-time and permanent. The position is Assistant Poultry Farm Manager/Supervisor and is for a minimum period of two years after the grant of the nominee’s Subclass 187 visa. The contract provides that the period of employment may be extended for a further term. Accordingly, the requirement in reg 5.19(4)(d)(ii) is met.
However, it is also open to the Tribunal to consider whether the applicant’s business has the financial resources to meet the wages costs for the nominee over the employment period (MIBP v Jayshree Enterprises Pty Ltd [2017] FCA 264). The financial statements disclose that the applicant recorded net profits before tax of $151,167 and $187,429 in the 2020 and 2021 financial years respectively. The source of the applicant’s income is management fees paid by the members of the Group to which labour is provided by the applicant. The amounts of those fees were $4,606,403 and $5,735,996 in the 2020 and 2021 financial years respectively. The applicant has provided evidence that the management fees received by the applicant represent the payroll expenses for labour provided to companies operating on the Ellerslie property together with a service charge of 1%. The Tribunal is satisfied that the Group has the financial capacity to continue to pay management fees to the applicant to meet these payroll expenses in the future.

The Tribunal is satisfied that the applicant has the financial capacity to employ the nominee in the position of Assistant Poultry Farm Manager – Free Range in accordance with the employment contract and that the nominee will be employed on a full-time basis in that position for at least two years. Accordingly, the requirement in reg 5.19(4)(d)(i) is met.
Accordingly, 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 applicant produced evidence that it has Australian citizens or permanent residents performing equivalent work at the nominee’s workplace. The salary which is to be paid to the applicant during his employment is $70,000 per annum plus superannuation in accordance with the Superannuation Guarantee (Administration) Act 1992 (Cth). Unless more generous provisions are provided in the contract, the terms and conditions of the nominee’s employment are in accordance with the Pastoral Award 2020 and the National Employment Standards in the Fair Work Act 2009 (Cth).
The applicant produced evidence of salaries paid to six equivalent workers. Five of those salaries ranged between $57,501.60 per annum and $65,000 per annum, and the salary of one employee was $76,960.46 per annum. The salary to be paid to the nominee exceeds the salary presently being paid to five of the equivalent employees.
The Tribunal also has had regard to the advice of the RCB, the Queensland Chamber of Commerce and Industry, Toowoomba, dated 7 June 2022, that the nomination satisfies the requirements set out in reg 5.19(4)(e) and reg 5.19(4)(h)(ii)(B) and (C).
Based on the evidence available, the Tribunal is satisfied that the terms of employment applicable to the nominee are no less favourable than the terms and conditions which would be provided to an Australian citizen or Australian permanent resident for performing such work in that workplace at that location.
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
As recorded in the preceding paragraph, the Tribunal finds that the position is located at 37 Hall Road, Millmerran, Queensland 4357, which is in regional Australia. Accordingly, the requirements of reg 5.19(4)(h)(ii)(A) are met.
Regulation 5.19(4)(h)(ii)(B) – genuine need to employ the nominee to work in the position under the applicant’s direct control
At the hearing, Mr Groot gave evidence regarding the applicant’s need to employ the nominee in the position of Assistant Poultry Farm Manager – Free Range. The organisational chart provided by the applicant reveals that on the Ellerslie Free Range Farm, there are four departments (Free Range, Open Range, Organic Rearing and Organic Laying) and that an Assistant Poultry Farm Manager/Supervisor is employed in each Department. The nominee holds that position in the Open Range department. Mr Groot said that differing numbers of birds were farmed in the varying departments and that the operations within those departments were diverse and distinct. All four departments are under the control of a Poultry Farm Manager.
Mr Groot gave evidence of the various tasks performed by the nominee. He stressed that the farm operated seven days per week and that a manager was required on site to make decisions at short notice regarding matters such as climatic variations, monitoring of water facilities and the welfare of the birds, particularly in relation to disease. He said that the current management structure had been in place for at least six to eight years.
The applicant made a comprehensive written submission regarding this requirement.
As recorded previously in these Reasons, the applicant is an employment company providing labour to related entities. The question arises whether the applicant, as an employment company, has a genuine need to employ an Assistant Poultry Farm Manager – Free Range. The Department’s policy in its Procedures Advice Manual in relation to the requirement under reg 5.19(4)(a)(ii) (identifying the need for the applicant to employ an identified person as a paid employee to work in the position) states that the applicant must directly operate the business in which the nominated position exists. The policy goes on to state that this means that the applicant cannot nominate a position that exists within the business activities of entities associated with the applicant and that the nominated position must be within the business activities of the applicant.
The Tribunal is not bound by the policy but the Tribunal notes the finding of Brennan J in Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179 that the Tribunal should adopt the following practice: “When the Tribunal is reviewing the exercise of a discretionary power reposed in a Minister, and the Minister has adopted a general policy to guide him in the exercise of the power, the Tribunal will ordinarily apply that policy in reviewing the decision, unless the policy is unlawful or unless its application tends to produce an unjust decision in the circumstances of the particular case”.
The Tribunal accepts that the applicant provides labour only to related entities. It is a common commercial arrangement that one company will act as an employer of workers who perform their day-to-day activities in the business of a related entity. As it is the obligation of the applicant to provide qualified staff to the related entities, the Tribunal finds that the applicant does have a genuine need to employ staff, including the nominee, in order to fulfil that obligation. The Tribunal does not consider this finding to be inconsistent with the policy of the Department. The business activities of the applicant are the provision of staff to related entities and the nominated position is within those activities.
The applicant employs the nominee under the employment contract dated 18 March 2022. The applicant has paid the nominee’s salary since his full-time employment in 2018. The Tribunal is satisfied that, having regard to these matters, the nominee is under the direct control of the applicant.
The Tribunal has also had regard to the advice of the RCB referred to in paragraph 38 above.
The Tribunal is satisfied that there is a genuine need for the applicant to employ the nominee as a paid employee to work in the position of Assistant Poultry Farm Manager – Free Range at the location under the nominator’s direct control. Accordingly, the requirements of reg 5.19(4)(h)(ii)(B) are met.
Regulation 5.19(4)(h)(ii)(C) – the position cannot be filled by an Australian citizen or an Australian permanent resident who is living in the same local area
The applicant produced to the Tribunal copies of job advertisements for the position placed with JobActive and the platforms Seek and Indeed in 2018, together with a comprehensive recruitment report in respect of each advertisement. The reports provide details of the number of applicants who responded to the advertisements and the reasons why they were not regarded as suitable to fill the position. The Tribunal has also had regard to the advice of the RCB referred to in paragraph 38 above.
Having had regard to all the evidence, the Tribunal is satisfied that the position cannot be filled by an Australian citizen or an Australian permanent resident living in the same local area as the proposed workplace. Therefore, reg 5.19(4)(h)(ii)(C) is satisfied.
Regulation 5.19(4)(h)(ii)(D) and (DA) – 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 subparagraph and the occupation is applicable to the proposed employee in accordance with the specification of the occupation
The occupation proposed by the applicant was Poultry Farmer which has the six‑digit ANZSCO code 121321 and which is specified in the relevant instrument, being IMMI 17/058. This occupation is included within the Unit Group 1213 Livestock Farmers. The classification provides that Livestock Farmers plan, organise, control, coordinate and perform farming operations to breed and raise livestock for the production of various products including eggs. The tasks of Livestock Farmers relevantly include:
·overseeing and undertaking breeding, feeding and nutrition programs.
·monitoring and maintaining the health, welfare and condition of livestock, including developing and overseeing strategies to manage biosecurity and other risks.
·organising farming operations and routines and collecting, grading and packaging produce.
·directing and overseeing general farming activities, including the provision and maintenance of infrastructure such as fences, sheds, pens, water supply systems and irrigation infrastructures.
The nominee’s duties according to his position description are as follows:
DUTIES OF JOB:
PRIMARY FUNCTION
This position is responsible and accountable for assisting and supervising the management, planning, organisation, controlling, coordination, and performance of free-range poultry farming operations, including the welfare and health of domestic poultry, through various production systems, to ensure the consistent and efficient production of high quality and hygienic eggs for market and sale.
1. PRIMARY DUTIES AND RESPONSIBILITIES
These will include, but will not be limited to the following tasks:
• Management and supervision of the poultry farm and facilities, including human resources, physical resources, safety requirements, consumables, production data and required documentation;
• Management and supervision of overall maintenance and compliance with Company Quality Assurance program for the poultry farm ensuring that all relevant production data and documentation is maintained;
• Management, supervision, and participation of daily inspection of poultry, ensuring bird health is maintained, assessing, identifying, treating, and recording all issues in accordance with the current Model Code of Practice;
• Management and supervision of daily inspection of poultry, including feed, water, environmental parameters. In this case, working with and supervising of less experienced poultry farm workers is required;
• Undertake specific tasks assigned by Farm Manager and/or General Manager – Poultry;
• Management and supervision to ensure that environmental, quality and safety goals are met;
• Implement and supervise preventable maintenance programs to reduce planned and unplanned down time;
• Understand and ensure the adherence to all quarantine and biosecurity standards;
• Management and achievement of poultry farm production goals;
• Management, supervision, and training of staff to ensure the poultry farm is clean and maintained to a high standard;
•Manage and supervise poultry farm worker staff, including training and development requirements and outcomes, to ensure high poultry welfare standards are consistently achieved and maintained at all times;
• Ensure that staff have the equipment required to perform their duties at all times;
• Assist with the monitoring of staff performance and appraisals; and
• Undertake and implement programs and actions to ensure control of pests and vermin on site.
Day-to-day tasks and duties:
• Manage, supervise, and participate in the vaccination of poultry – intermuscular, eye, wing stab and administration through the poultry water supply;
• Supervise and report any maintenance issues (e.g. fans, feeders, lights etc.) to the Farm Manager as soon as practicable;
• Handling, identifying, and inspecting poultry to assess and monitor health and condition;
• Routine management and monitoring of poultry water quality and supply;
• Routine management and supervision of flushing of poultry drinker lines;
• Routine management and supervision of poultry feed supplies, including inspecting feed storage and delivery systems;
• Manage, supervise, and maintain poultry flock health as directed;
• Identify any sick/unhealthy poultry and report to the Farm Manager;
• Inspect poultry for diseases and remove weak, ill and dead poultry and when required conduct post-mortem examinations of deceased poultry and report findings;
• Euthanise sick or injured poultry in a humane manner in accordance with the current Model Code of Practice for the Welfare of Animals: Domestic Poultry;
• Undertake management and supervision of data collection and recording, ensuring information is accurate to aid bird numbers and inventory control including;
• regular poultry weighing;
• shed environment recording and review; and
• egg collection.
• Comply with all poultry welfare and good stock practices for the movement and placement of poultry as required;
• Participate in training and work within the scope of that training; and
• Comply with all other directives of senior management.
2. Reporting
This position has the following reporting lines:
This position's reports to: Ellerslie Farm Manager
Number of staff reporting to this position:
2 – 10 Poultry Farm Workers
3. Quality Control
• Maintain a high level of quality control in accordance with the quality assurance standards adopted by the company with a focus on continuous improvement of the systems;
• Assist and manage the identification of any problems and non-conformities relating to the product, process, and quality system; and
• Comply with all site procedures related to egg industry policies, Codes of Practice for Shell Egg, Production, Grading, Packing and Distribution, SFPQ Food Safety Scheme for Eggs and Egg Products, Code of Practice for Biosecurity in the Egg Industry and Environmental Guidelines for the Australian Egg Industry.
4. Staff Meetings and Training
Participate in any staff meetings and company/industry training sessions and workshops as required in order to improve overall levels of skill and competency.
5. Workplace Health and Safety
• Ensure that the obligations under current legislation and industry standards are observed at all times and that all quality, training and work activities are conducted in a safe and responsible manner;
• Use PPE as instructed under the relevant SOP in all situations; and
• Ensure the adoption of safe work practices within the workforce in order to protect the health and welfare of all employees, visitors, and contractors.
6. Animal Welfare
Comply with and ensure implementation of the current Model Code of Practice for the Welfare of Animals: Domestic Poultry.
7. Buildings and Equipment
• Practice, manage and supervise safe and efficient work practices within the workplace in order to prevent accidental or willful damage and loss of the company's assets, such as buildings, machinery, plant equipment and tools;
and
• Supervise and maintain the plant equipment and associated equipment in a clean and tidy condition.
8. Site and Services
• Maintain and supervise the site in a clean, tidy, and safe condition, free of vermin and pests; and
• Maintain and supervise the integrity of key services such as water, power and effluent, and prevent their waste.
9. Supplies
Follow the methods, procedures and work practices that are laid down by the company and which are designed to avoid the waste of consumables.
10. Finance & Budget
• Familiarity with basic financial and budgetary factors and inputs relevant to poultry production including staffing and rosters;
• Assist and advise Farm Manager and/or General Manager — Poultry with financial and budgetary factors and inputs relevant to poultry production including staffing and rosters.
11. General
• Carry out corrective actions within an agreed timeframe based on the level of non-conformance (e.g. critical, major or minor);
• Observe all requirements to maintain confidentiality of company information and the privacy requirements of individuals as enacted by legislation;
• Observe all company biosecurity requirements;
• Ensure compliance with all relevant legislation, statutes, and government guidelines;
• Promote the good standing of the company in the local and wider community by the adoption of a professional, empathetic, and co-operative approach when dealing with others; and
• Undertake any other duties or specific tasks, within your capability and employability skill set that may be nominated by the Farm Manager from time to time.
Based on the information provided to the Department, the delegate was not satisfied that this requirement had been met. The delegate found that, although there was a supervisory nature to the tasks within the position description, the tasks do not align with the nominated occupation of Poultry Farmer, and the delegate considered that the tasks may correspond more closely with the role of a Livestock Farm Worker.

Mr Groot gave evidence at the hearing regarding the tasks performed by the nominee. He stated that the nominee is responsible for a range of what he described as “daily issues across the farm”. These tasks included consultations with the veterinary surgeon, meeting with the farm staff each morning to address current issues, recording the welfare of the birds on the farm, ensuring that the staff who were answerable to the nominee complied with their various requirements, reacting to problems which arose on a daily basis of a management nature, mentoring and training new employees, and reporting to the Poultry Farm Manager. He said that the nominee knew every system implemented on the farm and that he had worked on each of those systems. He also said that the nominee took over the role of Poultry Farm Manager when the permanent holder of that position was on days off or on leave.
The nominee, not having been present during the evidence of Mr Groot, was asked by the Tribunal regarding his relationship with the Poultry Farm Manager. The nominee stated that the Farm Manager was responsible for the four departments on the Ellerslie Free Range Farm, whereas his own role was within the Open Range department. He said that he had 160,000 birds under his control and described his various responsibilities in looking after the birds. He said that if problems arose, he reported them to the Farm Manager, and they consulted regarding those issues.
After the hearing, the applicant provided lengthy submissions regarding the tasks performed by the nominee, supported by documents including medication and vaccination records, poultry daily checklists and weekly production forms which the applicant described as critically important in the quality control and assurance processes for the Group’s egg production operations.
The Tribunal has carefully considered this requirement, particularly having regard to the evidence that the nominee is required to report to the Poultry Farm Manager. The occupation of Poultry Farmer is, according to the ANZSCO classification, a Skill Level 1 occupation. The occupation involves management tasks. Indeed, the classification describes the alternative title of Poultry Farm Manager for the occupation of Poultry Farmer. However, the Tribunal accepts that the Poultry Farm Manager for the Ellerslie Free Range Farm is responsible for the overall management of four separate departments on that farm and that the nominee is required to perform management tasks in the Open Range department in which he is employed. The Tribunal is satisfied that the tasks to be performed in the position correspond to the tasks of the occupation of Poultry Farmer specified by the Minister in the relevant instrument.
As noted previously in these Reasons, the occupation is a Skill Level 1 occupation which requires a level of skill commensurate with a bachelor degree or higher qualification. At least five years of relevant experience may substitute for the formal qualification. The applicant produced evidence that the nominee has been awarded a Bachelor of Science and a Master of Science from the National Changhua University of Education, Taiwan. However, those qualifications were achieved in the faculty of Mechatronics Engineering. The Tribunal doubts whether those qualifications are relevant to the occupation of Poultry Farmer. Mr Groot gave evidence that mechatronics and mechanisation in general were becoming increasingly relevant in the poultry industry. Mrs Quinlan stated that, if the nominee’s formal qualifications were not accepted, the applicant relied on his relevant experience of over five years. The Tribunal notes that the nominee has been employed in his present position since February 2018. Prior to that, he was employed as a Poultry Leading Hand/Supervisor on the Ellerslie farm, although employed by a labour hire company. Having regard to all the evidence, the Tribunal is satisfied that the occupation is applicable to the nominee in accordance with the specification of the occupation by virtue of his relevant experience. Accordingly, the requirements of reg 5.19(4)(h)(ii)(D) and reg 5.19(4)(h)(ii)(DA) are met.
Regulation 5.19(4)(h)(ii)(E) – the business operated by the applicant is located at the same place as the position
As set out in paragraph 49 above, the Tribunal is satisfied that the business operated by the applicant is located at 37 Hall Road, Millmerran, Queensland 4357, the same location as the address of the position to be filled. Accordingly, the requirements of reg 5.19(4)(h)(ii)(E) are met.
Regulation 5.19(4)(h)(ii)(F) – a body specified by the Minister in an instrument in writing for this sub-subparagraph and located in the same State as the location of the position has advised the Minister about the matters mentioned in regs 5.19(4)(h)(ii)(B) and (C)
The advice referred to in paragraph 38 above was submitted to the Tribunal. Accordingly, the Tribunal is satisfied that reg 5.19(4)(h)(ii)(F) is met.
Accordingly, the requirements of reg 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.
Terrence Baxter
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 3035

16 August 2022

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