Guru Painting Services Pty Ltd (Migration)

[2022] AATA 2926

Guru Painting Services Pty Ltd (Migration) [2022] AATA 2926 (3 March 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Guru Painting Services Pty Ltd

REPRESENTATIVE:  Mr Rick Gunn

CASE NUMBER:  1901039

HOME AFFAIRS REFERENCE(S):          BCC2017/1798448

MEMBER:Susan Reece Jones

DATE:3 March 2022

PLACE OF DECISION:  Melbourne

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

Statement made on 3 March 2022 at 8.28am

CATCHWORDS
MIGRATION – Employer Nomination – approval of nominated position – Direct Entry Nomination – Painting Trades Worker – genuine need – tasks to be performed correspond with occupation – decision under review set aside

LEGISLATION
Migration Regulations 1994 (Cth), r 5.19

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 8 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).

2. The applicant applied for approval on 20 May 2017. The requirements for the approval of the nomination of a position of Painting Trades Worker (ANZSCO 332211) 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).

3. In this case, the applicant has applied for approval of a nomination, seeking to satisfy the criteria in the Direct Entry nomination stream.

4. The delegate refused the application on the basis the applicant’s nomination did not satisfy reg 5.19(4)(h)(ii) (B) of the Regulations because the applicant did not demonstrate that the applicant genuinely needed a painting trades worker, and in addition, the applicant did not provide a position description, therefore the applicant did not satisfy regulation 5.19(4)(h)(ii)(D).

5. The Tribunal received a review application on 16 January 2019. It was lodged on behalf of the applicant by Mr Harpreet Singh, sole director of the applicant business. It was accompanied by a copy of the delegate’s decision and an authority by which the applicant appointed a registered migration agent, to be the applicant’s representative and authorised recipient for correspondence.

6. On 6 September 2021, the Tribunal wrote to the applicant’s representative, Mr Rick Gunn of Carina Ford Immigration Lawyers pursuant to s359(2) of the Migration Act 1994 (the Act), inviting the applicant to provide the Tribunal with further information in support of this application.

7. On 17 September 2021, Mr Gunn of wrote to the Tribunal requesting an extension to provide information on the basis that “the business is still in the process of obtaining all relevant documentation and the pandemic has made it difficult to obtain all of the relevant financial documents in a timely manner. This extension will permit the Applicant to provide as detailed information as possible.”

8. On 20 September 2021, the Tribunal granted an extension of time until 18 October 2021.

9. On 18 October 2021, the applicant provided the following documents to the Tribunal:

   ·Submission from the representative 

   • ASIC Company Extract dated 9 September 2021
   • BAS September 2019 – June 2021
   • Trading Profit Loss Statement – 2020
   • Trading Profit Loss Statement – 2021
   • Guru Family Trust Tax Return 2020
   • Guru Family Trust Tax Return 2021
   • Guru Family Trust - ATO Statement 2021
   • Guru Painting Services - Organisation Chart
   • RSMS Regional Certifying Body Advice – Form 1404
   • Evidence of Job Advertisements
   • Labour Market Testing Report
   • PayScale Salary Rate Report – Painting Trades Worker
   • Job Outlook Salary Rate Report – Painting Trades Worker
   • Seek Advertisement – Painting Trades Worker (1)
   • Seek Advertisement – Painting Trades Worker (2)
   • Employment Agreement between the Nominee and Review Applicant
   • Pardeep Kaur - Payslip 13.09.21 - 26.09.21
   • Pardeep Kaur - Payslip 27.09.21 - 10.10.21
   • Pardeep Kaur - Bank Statement dated 14 October 2021
   • Position Description - Painting Trades Worker
   • Review Applicant’s letter outlining the genuine need for the position
   • Letter regarding Nominee’s previous work experience

10. On behalf of the applicant, its director, Mr Singh, appeared before the Tribunal on 28 January 2022 to give evidence and present arguments. The Tribunal also received oral evidence from the nominee.  

11. The Tribunal exercised its discretion to hold the hearing by telephone. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicants. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

12. The applicant was represented in relation to the review by its registered migration.               

• Following the hearing, on 14 February 2022, the applicant provided further evidence in support of its application; namely,  

  • Email dated 11 February 2022, Mr Shannon Wall, AHB Group (Sherridon Homes)
  • Nominee Work history: Tax Returns 2017, 2018, 2019, 2020
  • Nominee Statutory declaration sworn 9 Feb 2022.
  • Nominee Bank Account Information
  • Nominee Australian Super Account
  • Applicant evidence of Superannuation Payments to nominee
  • Applicant evidence of payments to nominee: Bank statements

1. 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

2. 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.

   The application is compliant: reg 5.19(4)(a)

3. 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.

4. From the material on the Department file, the Tribunal is satisfied that the nomination application complied with the above requirements.

5. 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)

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

7. The applicant operates ‘Guru Painting Services’, a business which provides commercial and residential painting services from Wallan, Victoria (which is designated as regional for the purposes of this application).

8. The applicant provided its recent ASIC Company Extract dated 9 September 2021, BAS for 2019 to 2021, Financial Statements 2020 and 2021, and the applicant ATO Tax returns for 2020 and 2021.

9. The Tribunal is satisfied based on the material before it, including the applicant’s recent submission, that the applicant is actively and lawfully operating a business in Australia.

10. Accordingly, the requirement in reg 5.19(4)(b) is met.

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

11. 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. 

12. The Tribunal is satisfied that there is no evidence to suggest that the nominator participates in labour hire activities.

13. Accordingly, the requirement in reg 5.19(4)(c) is met.

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

14. 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. 

15. The Tribunal’s analysis of the applicant’s BAS evidence shows as follows:

Period $	Sales	Salary
Jul to Sep 2019	22,037	17,870
Oct to Dec 2019	195,445	20,670
Total	217, 482	38, 540
Jan to Mar 2020	120,803	21,299
Apr to Jun 2020	153,856	50,569
Jul to Sep 2020	150,365	53,552
Oct to Dec 2020	116,443	69,252
Total	541, 467	194, 672
Jan to Mar 2021	72, 769	51, 390
Apr to Jun 2021	107, 440	50, 687
Jul to Sep 2021	75, 473	33, 833
Oct to Dec 2021	73, 293	41, 520
Total	328, 975	177, 430

1. The Tribunal’s analysis of the applicant’s financial evidence shows that the applicant’s total income in 2019 was $738,308, $628,310 in 2020 and in 2021, reflecting the impact of COVID-19 and lockdowns, dropped to $406,380.

2. The applicant’s Organisation chart shows 5 employees, including the applicant director.  The Tribunal notes that the applicant has continued to pay salaries and contractor wages in 2021 of $262,000. The applicant further submitted that despite the downturn, the applicant has continued to be profitable in the 2021 financial year.

3. Mr Singh submitted at hearing to the Tribunal, that the nominee’s ongoing employment with the applicant and the employment of other employees, demonstrates that the applicant requires the nominee on a full-time basis and has the financial capacity to support this full-time position based on its financial history and the prospects for growth as Victoria transitions out of lockdowns. The applicant director Mr Singh confirmed with the Tribunal at hearing that the applicant principally works for Simmonds Homes who provides the applicant with a strong pipeline of work.

4. According to Mr Singh, Simmonds Homes has benefited from people relocating from cities to regional areas due to the impact of COVID-19 and because of the government homeowner grants. During the COVID the applicant had a steady pipeline of minimum 1-2 houses a week.

5. Having discussed the applicant’s pipeline of work at hearing, the applicant provided the Tribunal with evidence in support of this following the hearing. The evidence included sample invoices for work orders received by the applicant between 12 July 2021 and 11 November 2021, reflecting the date on which the build of a house commenced, noting that houses normally take somewhere between 4 and 6 months to be completed. The applicant submitted that it ordinarily undertakes the work ordered approximately 4 months after the invoice date, and presently (due to material delays) slightly longer after the invoice date. The invoices included with the submission were indicated to be approximately 2-3 weeks’ worth of current work, after which the builder sends through more. According to the applicant’s submissions, the required work is assessed, and new work orders made each Wednesday by the builder. In addition to the evidence relating to the applicant’s work for Simmonds Homes, an email (dated 11 February 2022) was provided from Mr Shannon Wall, the Construction Manager of the AHB Group (owner of Sherridon Homes). It indicates that the value of current work to the applicant from AHB Group alone is valued at approximately $500,000 and that the applicant is considered to be a professional, long term supplier to Sherridon Homes.

6. On assessment of all the evidence provided, the Tribunal is satisfied that the applicant has the capacity to employ the nominee 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. 

7. Accordingly, the requirement in reg 5.19(4)(d) is met.

   No less favourable terms and conditions of employment: reg 5.19(4)(e)

8. 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.

9. The nominee’s Employment Agreement is dated 3 April 2017 and provides for a salary of $60,225 (including superannuation). The terms and conditions of employment listed for leave and other entitlements are consistent with those set out in Fair Work Australia’s National Employment Standards.

10. The applicant provided its Organisational Structure chart which indicates that there are no equivalent Australian citizen or permanent resident employees performing equivalent Painting Trades Worker roles in the same workplace at the same location. This is because the applicant’s other painters are contractors or casuals. The terms and conditions of the Employment Agreement are the same as those that would have been provided to an equivalent Australian employee performing equivalent work for the applicant.

11. The applicant submitted that the terms and conditions provided to the nominee are comparable to the market salary rate. The nominee was nominated to the position in early 2017 and had been working with another commercial painting business since the nomination refusal. The nominee commenced working with the applicant on 6 September 2021 and is currently working full time. The position had been filled by another employee in the time between the refusal of the nomination and the nominee’s commencement with the business in September 2021. The Tribunal was provided with the CBA Bank statements for the nominee which show salary payment from applicant. 

12. The Tribunal has had regard to salary surveys and other salary data, including from:

    • the Payscale website (accessed 27 January 2022) indicates that a Painter in Australia earns on average of $28.28 per hour or $55,881 per annum:
    • advertisements for various full time Painters in Regional Victoria listed on Seek.com.au (as at 27 January 2022) where a salary range is given is stated a being from $55,000 to $59,000 per annum:           >

      Accordingly, the Tribunal is satisfied that the terms and conditions of employment applicable to the nominated position will be no less favourable than those that would be provided to an Australian citizen or permanent resident performing equivalent work in the same workplace at the same location. It finds that 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 information before the Tribunal to indicate that there is adverse information known to the Department about the applicant or an 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 information before the Tribunal to suggest that the applicant does not have a satisfactory record of compliance with workplace relations laws.

    • 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 (see legislative instrument IMMI 16/045), the occupation is applicable to the proposed employee in accordance with any specifications made in that instrument, and specified training requirements are met; or

      ·the position and nominator’s business is located in regional Australia, there is a genuine need for the paid position under the nominator’s direct control which cannot be filled by a locally resident Australian citizen or permanent resident, the tasks of the position correspond to those of an occupation specified in the relevant legislative instrument, the occupation is applicable to the proposed employee in accordance with the specification of the occupation and that a regional certifying body has advised the Minister about certain matters relating to the position.

    • The business operated by the nominator is located in regional Victoria. The nominated position is located at the applicant’s offices in Wallan (Victoria, 3756). In accordance with the relevant Instrument IMMI 16/045, Wallan is designated to be within regional Australia and therefore, the second dot point above applies.

    • Mr Singh told the Tribunal at hearing that the applicant currently 5 employees in the applicant’s commercial painting business, all with specific expertise and roles. The applicant maintained that it requires “the services of skilled Painting Trades Workers to ensure that the business operates efficiently, and services are provided to their customers to a professional standard.”

    • The applicant submitted that the applicant business has a genuine need to employ a full-time employee in the nominated position and that the applicant has maintained a longstanding position within the business, previously filled by another employee who has since left. Further, the nominee has been employed by the applicant since September 2021. The position to which the nominee is nominated is not newly created, and it is within the existing and longstanding organisational structure of the business and is deemed vital to the current and future day-today operations of the applicant.

    • The applicant submitted a Form 1404, Regional Certifying Body ‘Department of Economic Development, Jobs, Transport, and Resources’, as approved on 9 May 2017. The applicant provided evidence (job advertisements for the position in the North Central and Whittlesea areas) to show its advertising activities in accordance with the RCB application, noting that it was unable to find a candidate who was an Australian citizen or permanent resident who met the applicant’s requirements for the position.

    • The tasks to be performed in the position correspond to the tasks of an occupation specified for a Painting Trades Worker. The tasks of the nominated position as outlined in the position description correspond with the tasks of the nominated occupation as defined in the occupation ‘’Painting Trades Worker’ (ANZSCO Code 332211). These duties include:

      ·Read blueprints/instructions and liaise with the project manager one each job where necessary to understand the expected outcome for each site

      ·Examine surfaces to determine the kind of preparation work necessary in terms of scraping, cleaning, repairing etc to achieve the expected outcome.

      ·Make on-site preparations such as building scaffolding, covering fixtures etc

      ·Prepare walls and other surfaces for painting by scraping, suing sandpaper etc

      ·Fill holes and cracks with appropriate material (e.g. plaster)

      ·Mix paint and other materials to prepare the required colour or texture

      ·Paint surfaces according to instructions utilising the necessary tools such as brushes rollers or sprays and where necessary utilising specialist techniques to achieve, for example, a textured look on the wall

      ·Apply varnish and other finishes

      ·Apply wallpapers

1. The applicant submitted that the tasks performed by the nominee are closely related to the ANZSCO definition and that based on this, the nominee is performing the duties expected of a Painting Trades Worker, and that the position itself is genuinely required within the business.

2. The Tribunal notes that the nominee is the holder of a White Card for construction induction safety, for which she must have undertaken a specific training program with WorkSafe Victoria.

3. Having noted to the applicant director Mr Singh at hearing that it is somewhat unusual for the nominee as a Painting Trades Worker to be female, the applicant provided evidence to show that while it is the case that Painting Trades Workers are more likely to be male than female the Job Outlook website states that there is a 4% female gender share in the occupation. The applicant further submitted that the female percentage of Painting Trades Workers is in fact higher than most trades. In contrast to Painting Trades Workers, Job Outlook places the female gender share in the occupations of (by way of example) Electrician, Carpenters & Joiners and Motor Mechanic as 2%, 1%, and 1% respectively.

4. The Tribunal was provided with substantial additional evidence of the nominee’s work history in the nominated occupation in addition to the evidence that she is currently working with the applicant as a Painting Trades Worker.  The applicant further submitted that the fact that the nominee has been employed by the applicant since August 2021, further demonstrates that applicant has a genuine need for the nominee to support the applicant’s ability to complete the substantial pipeline of work. 

5. The Tribunal was provided with evidence of the nominee’s work experience including invoices for work completed by the nominee under her own ABN prior to engagement by the applicant, and a statutory declaration provided by the nominee outlining her work history. Evidence of payments by the applicant to the nominee including ATO Tax returns and superannuation contributions was provided to the Tribunal.

6. The applicant stated to the Tribunal of the applicant’s commitment to employ full-time employees rather than subcontractors:

   To be able to capitalise on the growing demand and increase the volume of
   projects that we can complete, it is crucial that I resource Guru Painting
   Services with appropriately skilled and qualified painting trades workers. Our industry is known for its high usage of subcontractors, and while I have used (and continue to use) subcontractors to varying degrees, this medium of engagement does throw up numerous challenges by their nature, subcontractors tend to have low levels of commitment and I have found that they will not hesitate in leaving a project – even part way through completion – if they are offered better or higher paying work. I cannot run the business properly with this level of instability in the staffing base

7. In accordance with the requirements set out in Regulation 5.19(4)(h), and having assessed all the evidence provided, the Tribunal is satisfied that in accordance with: 

   - r 5.19(4)(h)(ii)(A), the position and nominator’s business is located in regional Australia;

   - r 5.19(4)(h)(ii)(B), that as noted in paragraphs 50- 69 above, the applicant has a genuine need for the nominee to be employed as a paid employee in the position under the nominator’s direct control;

   - r5.19(4)(h)(ii)(C), the position cannot be filled by a locally resident Australian citizen or permanent resident;

   - r5.19(4)(h)(ii)(D), the tasks of the position of Painting Trades Worker (ANZSCO 332211) correspond to those of an occupation specified in the relevant legislative instrument;

   - r5.19(4)(h)(ii)(E), the occupation is applicable to the proposed employee in accordance with the specification of the occupation as Painting Trades Worker; and

   - r5.19(4)(h)(ii)(F), that a regional certifying body (Chamber of Commerce) in Shepparton, Victoria, is located in the same State or Territory as the location of the position.

8. Accordingly, the requirements of reg 5.19(4)(h) are met.

9. 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

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

    Susan Reece Jones
    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).