HC Pastoral Pty Ltd (Migration)

HC Pastoral Pty Ltd (Migration) [2021] AATA 4617 (5 November 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  HC Pastoral Pty Ltd
CASE NUMBER:  1829609
HOME AFFAIRS REFERENCE(S):          BCC2017/4088558
MEMBER:Deputy President J.L Redfern PSM
DATE:5 November 2021
PLACE OF DECISION:  Sydney
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Statement made on 5 November 2021 at 3:25 PM
CATCHWORDS
MIGRATION – Employer Nomination Scheme – Direct Entry stream – Regional Sponsored Migration Scheme – beef cattle farmer – whether the nominator actively, lawfully and directly operates a business in Australia – consideration of directly operates – where nominator is an agent for a partnership – whether the nominee is employed by the nominator – does the nominee work in the nominator’s direct control – decision under review set aside
LEGISLATION
Migration Act 1958 (Cth), s 245AR(1)
Migration Regulations 1994 (Cth), r 5.19(4)(a)(ii), (b), (d), (h)(ii)(B)
SECONDARY MATERIALS
Department of Home Affairs, PAM3 – Div 5.3 General – Approval of nominated positions (employer nomination) – Regulation – 5.19
IMMI 17/058
STATEMENT OF DECISION AND REASONS

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 21 September 2018 to reject the applicant’s application for approval of an employer nomination of a position in Australia under reg 5.19 of the Migration Regulations 1994 (Cth) (the Regulations).
The applicant, HC Pastoral Pty Ltd (HC Pastoral), applied for approval of the nomination for the position of Beef Cattle Farmer on 3 November 2017. It is one of the companies in a group, including a partnership, which operates an agricultural business in North-West and Central Queensland. The business has been established for at least 30 years and, under the current corporate structure, since 2012. The group currently has combined annual turnover in excess of $5 million.
Employer nominations are intended to enable Australian employers to recruit, for permanent positions, skilled workers either from overseas or who are temporarily in Australia, where the employer has not been able to fulfil their needs from the Australian work force or through their own training efforts. The employer nomination scheme involves two stages, firstly, an employer seeking approval of a nominated position in which an individual is proposed to be employed in Australia and secondly, a person applying for a permanent position on the grounds the visa applicant proposes to be employed in that position.[1]
[1] Department of Home Affairs, PAM3 – Div 5.3 General – Approval of nominated positions (employer nomination) – Regulation – 5.19, 5.1.1.
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, HC Pastoral has applied for approval of a nomination, seeking to satisfy the criteria in the Direct Entry nomination stream. It has applied under the Regional Sponsored Migration Scheme, which operates where the nominated position is located in regional Australia. The objective of the program is to allow employers to sponsor foreign workers for permanent residence to fill genuine vacancies in their business. The employer must be a company which operates in regional Australia.
The delegate refused the application on the basis HC Pastoral’s nomination did not satisfy reg 5.19(4) of the Regulations because the delegate was not satisfied HC Pastoral was actively operating a business in Australia at the relevant time, which is a requirement for approval. The delegate requested further information from HC Pastoral in relation to this question. Business activity statements were said to have been uploaded onto the relevant Department of Home Affairs website but were apparently not received and a request for an extension of time to provide financial statements was refused. In the absence of evidence of the business activity of HC Pastoral the application was refused. The delegate did not make an assessment or findings in relation to the balance of the requirements for approval of the nomination.
Ms Tahlia Merritt was nominated for the position by HC Pastoral and because her application was dependent upon the nomination being approved, her application for the related visa was also refused.
HC Pastoral sought review of this decision to the Tribunal and in June 2021 the Tribunal requested further information, which was provided in July 2021. HC Pastoral also provided extensive submissions addressing each of the relevant requirements in the Regulations. Ms Merritt also applied for review (matter no. 1832458).
HC Pastoral appeared before the Tribunal on 22 September 2021. HC Pastoral was represented in relation to the review by its registered migration agent from Holding Redlich. Oral evidence was provided by one of its directors, Mr Clinton Hawkins, his wife, Mrs Shelly Hawkins, who was also the human resources and office manager at HC Pastoral, and the company accountant, Mr Tim Mouritz. The review of the related visa application by Ms Merritt was listed for hearing on the same day.
For the following reasons, the Tribunal has decided to set aside the decision under review and substitute a decision approving the nomination.
RELEVANT LAW AND INSTRUMENTS
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.
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) of the Migration Act 1958 (Cth) (the Act). 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.
Regulation 5.19(4)(b) requires that the applicant is actively, lawfully and directly operating a business in Australia.
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. HC Pastoral does not operate a labour hire business and, accordingly, the requirement in reg 5.19(4)(c) does not apply and is therefore met.
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.
Regulation 5.19(4)(e) provides 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.
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. The reference to ‘Immigration’ should now be taken to refer to the Department of Home Affairs, which includes the immigration portfolio.
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.
Regulation 5.19(4)(h) contains a number of alternative requirements. These are set out in detail in the attachment to the decision. HC Pastoral claims to meet the requirements in reg 5.19(4)(h)(ii) which relevantly require that:
(1)the position and nominator’s business is located in regional Australia (subcl (ii)(A));
(2)there is a genuine need for the nominator to employ the person identified as a paid employee to work in the position in the position under the nominator’s direct control (subcl (ii)(B));
(3)the position cannot be filled by an Australian citizen or permanent resident who is living in the same local area (subcl (ii)(C));
(4)the tasks of the position correspond to those of an occupation specified in the relevant legislative instrument (subcl (ii)(D));
(5)the occupation is applicable to the person nominated in accordance with the specification of the occupation (subcl (ii)(DA));
(6)the business operated by the nominator is located in that place (subcl (ii)(E)); and
(7)a Regional Certifying Body has advised the Minister about certain matters relating to the position (subcl (ii)(F)).
The relevant legislative instrument is Migration (IMMI 17/058: Occupations for subclass 187 visas; skill, age and English language requirements for subclass 186 and subclass 187 visas) Instrument 2017 (IMMI 17/058), which commenced on 1 July 2017 and applies to nominations made after this date. Schedule 1 to IMMI 17/058 sets out the occupations for subclass 187 visas for the purposes of subparagraph 5.19(4)(h)(ii)(D) to the Regulations and, relevantly, certain paragraphs in cl 187 of Schedule 2 to the Regulations.
Relevant to the facts of this case, Schedule 1 includes the occupation of a Beef Cattle Farmer, being ANZSCO code 121312. The ANZSCO code is the Australian and New Zealand Standard Classification of Occupations (2013) published by the Australian Bureau of Statistics. ANZSCO is a skill base classification used to classify all occupations and jobs in the Australian and New Zealand labour markets. ANZSCO is used by the Minister as a reference point for various work-related visas.
BACKGROUND AND OUTLINE OF EVIDENCE
On 3 November 2017 HC Pastoral made an application for approval of its nomination for the position of livestock manager in the occupation of a Beef Cattle Farmer, as identified in the ANZSCO code 121312. Ms Merritt was nominated for the role.
The application was made on the relevant approved form and was accompanied by the fee prescribed in reg 5.37. The form include a written certification stating that HC Pastoral had not engaged in conduct in relation to the nomination that contravenes s 245AR(1) of the Act, which prohibits the nominator asking for or receiving a benefit in return for sponsoring a visa applicant. The application identified a need for HC Pastoral to employ an identified person, in this case Ms Merritt, as a paid employee to work in the nominated position as a livestock manager in the position of Beef Cattle Farmer under HC Pastoral’s direct control. As such, there is no dispute that the requirement in reg 5.19(4)(a) is met. Notably, this is not an issue that was raised by the delegate.
In documents accompanying the application, the operations of HC Pastoral, and its role in a larger organisational structure, was described albeit not in the detail subsequently provided by its representatives and officers to the Tribunal. In addition to an organisational chart, the application included statements relating to the farming business, company searches for HC Pastoral, details of the market rates for the role and details about attempts to find applicants to fill the position.
In support of the application for the nomination, HC Pastoral, through its director Mr Clinton Hawkins, provided a letter setting out details about the need for the position nominated. According to the letter dated 23 October 2017, the HC Pastoral business runs 10,000 head of cattle over four properties within Queensland. The Herbertvale station is where the position of livestock manager is based. It is the breeding property and the foundation for the business. It was noted that the partnership was hoping to purchase a neighbouring property to expand the cattle operations. Mr Hawkins stated that there was a need for livestock manager to manage the existing and future cattle production operations. The responsibilities of the role were to organise and manage the operation of the cattle breeding operations.
Attached to the nomination application was a certification by the Chamber of Commerce and Industry Queensland (CCIQ) dated 31 October 2017 stating that the nomination satisfied the requirements that there was a need for a paid employee in the nominated position within the business activities of the nominated employer; that the position could not be filled by an Australian citizen or permanent resident who was living in the same local area is the nominated position and that the terms and conditions of employment applicable to the nominated position were no less favourable than the terms and conditions that would be provided to an Australian citizen or permanent resident for performing equivalent work.
Prior to the hearing, and in response to a request from the Tribunal to provide further information, HC Pastoral provided further evidence about its operations and the operations of the group, including updated information about its registration, financial statements for HC Pastoral, HC Grazing and a related company, QNT Resources Pty Ltd, and details of the role being undertaken by Ms Merritt, which she commenced in late 2017. At the hearing, Mr Clinton Hawkins provided evidence about the nature of the business operations, the role performed by Ms Merritt and the increasing importance of the role given greater government regulation. Mrs Shelly Hawkins gave evidence about the salary paid to Ms Merritt and efforts originally made by the company to recruit a suitable employee to fill the role. Further evidence was given by both Mr and Mrs Hawkins about the difficulties of filling the position not only in the past, but the current demands required for the role. Mr Mouritz gave evidence about the corporate structure and the role of HC Pastoral in relation to the agricultural business operated by the associated partnership.
Set out below is a summary of the key aspects of the evidence, all of which I accept.
HC Pastoral acts as agent for a family business partnership which has been established for at least 30 years. The family partnership in its current form is known as ‘HC Grazing’ and it comprises four family trusts, each with corporate trustees. The family business had its beginnings in the 1970s with Charles (Charlie) and Jacquelyn Hawkins, who owned a large farming be farming property known as ‘Herbertvale’, which is in North West Queensland located close to the Queensland and Northern Territory border about 300 miles west of Mount Isa. Charlie and Jacquelyn Hawkins have three sons and these sons, including Clinton Hawkins, have been involved in the family business for the past 30 to 40 years. The four family trusts comprise the C&S Hawkins Family Trust, the WMRJ Hawkins Family Trust, the DNH Family Trust and the D&HJ Childs Family Trust. The Childs family have been associated with the Hawkins family for many years and the association between the two families is recognised through the HC Grazing partnership. These family trusts each have corporate trustees and the corporate trustees own all of the ordinary shares in HC Pastoral in equal shares. Charles Hawkins, together with his sons Clinton, Daniel and William Hawkins, are directors of HC Pastoral. Daniel Childs is also a director and Jacquelyn Hawkins is the company secretary. Charles and Jacquelyn Hawkins hold two A Class shares in HC Pastoral. There are 48 ordinary shares that have been issued and each of the trustee companies holds 12 shares. All shares are fully paid.
HC Pastoral was established in 2012, it has been continuously registered since this date and is a proprietary company limited by shares. There is no adverse information recorded on the company search from the Australian Securities and Investments Commission (ASIC) and it was registered in 2013 with the Australian Taxation Office for the purposes of goods and services tax. The Tribunal was also provided with business activity statements in the name of HC Pastoral for the reporting period July 2020 March 2021. These activity statements reveal that the reporting entity made total sales of over $5.2 million in this nine-month period. In short, it is apparent that HC Grazing and its associated entities comprise a significant and long-standing agricultural business.
According to Mr Clinton Hawkins, HC Grazing operates a number of businesses. Mr and Mrs Hawkins operate the cattle breeding operation from Herbertvale. Herbertvale is 120 kilometres north of its closest town which is Camooweal. It is in a remote part of north-west Queensland and is 360,000 acres. In this part of the business, the partnership breeds cattle for sale. It requires expertise to manage the cattle, including the feeding, health and breeding of the cattle and to oversee the safe transportation of the cattle. Mr Clinton Hawkins has the oversight of the HC Grazing business at Herbertvale, and it is the livestock manager’s responsibility to manage the cattle operations. This not only involves ensuring the conditions for breeding are optimal but involves oversight of every aspect of the health of the cattle, including vaccines and recordkeeping for bio security purposes, the regulation of which has increased over the years. This is to ensure that the beef, when it is sold, meets government regulations. In addition to this, there is a head stockman who is a pilot, a bore manager and a muster team which can include up to seven members of the team during the muster season which is between February and October or November each year.
William and Rebecca Hawkins operate what Mr Clinton Hawkins refers to as the ‘backgrounding part’ of the business. They operate this from a property called Malakoff which is in central West Queensland about a thousand kilometres east of Herbertvale. Under this operation, William and Rebecca receive the cattle and develop the cattle to a level where they can be on sold to market. The other brother in the Hawkins family, Daniel, operates an earthmoving business which is still part of the partnership but not part of the cattle farming business. Darren and Helen Childs are also beef producers and their speciality is in breeding bulls. Charlie and Jacquelyn Hawkins moved to Toowoomba in recent years so that they could be closer to the city to deal with accountants, banks and other major suppliers.
Other companies associated with the group are QNT Resources Pty Ltd, which provides the human resources for the HC Pastoral, and QNT Contracting Pty Ltd. The director of QNT Resources Pty Ltd is Charlie Hawkins and Jacquelyn Hawkins is the company secretary. The shareholders are each of the corporate trustees for the HC Grazing partnership.
The financial statements for HC Grazing show that it had a net profit from its farming operations of over $2.6 million for the year ended 30 June 2020 and over $1.9 million for the year ended 30 June 2019. It is recorded as having total assets of in excess of $1.6 million for the year ended 30 June 2020 and $2.4 million for the year ended 30 June 2019. It has significant borrowings with the National Australia Bank, but this is not uncommon for large farming operations. There is no evidence in any of the accounts or the company searches there are financial difficulties. Relevantly, it is recorded in the financial statements for HC Grazing that there is a current debt owed to its agent HC Pastoral in the sum of $398,766 for the year ended 30 June 2020 and 563,564 the previous year.

According to the financial statements for HC Pastoral, it operates as agent for the HC Grazing partnership. The financial statements provided for the year ended 30 June 2020 reveal a current trade receivable from HC Grazing of $398,766 and 563,560 for the previous year. The financial statements also record a current trade debt to the National Australia Bank as a trade receivable, noting that the debt was incurred as agent of HC Grazing. The tax returns for HC Pastoral show that it earned no income. The financial statements for QNT Resources Pty Ltd for the year ended 30 June 2020 reveal that the company incurred expenses of $552,821 and received labour hire income of $634,760. There is a corresponding expense paid by HC Grazing in its accounts. Expenses for the previous year are recorded as $711,727, with labour hire income as $615,000. There is no record in the financial statements of HC Pastoral that it has paid any money for expenses to QNT Resources Pty Ltd.
HC Pastoral provided to the Tribunal a copy of a Management and Agency Agreement (the Agreement) dated 8 March 2013 between HC Pastoral and the four corporate trustees which comprise the HC Grazing partnership. Clause 2.1 of the Agreement, headed Appointment, provides as follows:
Subject to and in accordance with the provisions of the Partnership deed, the Manager is hereby appointed and engaged by the partners to manage, supervise and conduct the Business for and on behalf of the Partners and in accordance with the provisions of this Agreement and the Partnership Deed. The partners will not directly carry on any such business operation or incur any business expenditure, except to the Manager.
The Agreement also provides that any partnership property may be held from time to time by the manager but would be held for the benefit of the partners (cl 3.1). It is also noted that the manager has no beneficial title or interest in any of the partnership property (cl 3.2). The duties of the manager are described in cl 4.1 as follows:
The manager shall undertake, do and carry out on behalf of and at the cost of the partners (directly or through its agents, nominees or independent contractors as it may engage) all acts and things as are necessary or advisable for the Business as an efficient and workmanlike manner in accordance with budgets approved by the Management committee and in accordance with good business practices and to a standard of diligence and care usually exercised by qualified persons in performing comparable tasks including without limitation, the following activities…
Clause 4.1 goes on to list a number of activities which include negotiating with third parties and incurring certain expenditure in relation to the Business.
The “Business” is defined as “the business of a livestock grazier or pastoralists to be commenced and owned by the partnership and conducted for the partnership by the manager separately from the business conducted by the company in its own right”. The “Partnership” means the partnership created between the partners by the partnership deed, which is recorded as being created at the time same time as the Management and Agency Agreement.
Clause 4.3 of the Agreement provides:
All actions to be taken by the Manager on behalf of the Partners pursuant to this Agreement will be taken by the Manager as agent for the Partners is undisclosed Principal….
Clause 4.4 provides:
The Partners hereby severally covenant with the Manager and its directors to indemnify and keep indemnified the manager and its directors against all actions, claims, demands and costs which may be taken or made against or incurred by it arising out of anything done by the Manager in pursuance of this clause and in respect of anything done by it that is permitted by or is done in pursuance of this Agreement.
Clause 5.1 provides that the Manager shall conduct the business of the partnership on behalf of the partners in accordance with the Agreement and the partnership deed and in accordance with the directions given by the Management Committee.
Clause 11 provides for the reimbursement of any business expenditure and for the cost of conducting the business by the partners and also provides for a management fee that may be negotiated from time to time to be payable to HC Pastoral.
According to the company accountant, this arrangement has been in place for many years and is a structure designed to allow the HC Grazing partnership to operate through an agent: not only for the protection of the partnership but for third-party suppliers who may prefer to deal with a proprietary company rather than a partnership.
Mrs Shelly Hawkins gave evidence that when Ms Merritt was recruited, the HC Grazing partnership was looking to employ a livestock manager to assist in managing the cattle following the resignation of the previous manager. In her role as the office manager of HC Pastoral, Mrs Shelly Hawkins placed advertisements with Seek and Indeed to recruit for the role in October 2017. The job description for the role required the successful applicant to have experience in breeding and raising livestock, monitoring the health and condition of the livestock, monitoring pastures and fodder and organising transportation of livestock. The applicant was also required to have a relevant bachelor’s degree qualification. Mrs Hawkins said that it was difficult to find a suitable applicant for the role and provided copies of the applications that she considered at the time which revealed that the only applications received were for applicants that met some of the requirements but not all. For instance, there was an applicant who had a tertiary qualification as a veterinary surgeon but this applicant did not have any experience in working on a farm undertaking the types of duties that would be required to be a livestock manager and Beef Cattle Farmer. One of the applicants had a diverse history, which included working on a farm, but did not have the tertiary qualifications were considered necessary for the role.
On the question of whether HC Pastoral had considered alternative applicants who were Australian citizens or permanent residents who lived in the local area, both Mr and Mrs Hawkins said that at the time Ms Merritt was recruited there were no local candidates available with the required expertise to perform the role. It was important for the employee to not only have practical experience, but tertiary qualifications. Ms Merritt had both. Mr and Mrs Hawkins said that this was still the case and, even though HC Pastoral had not recently advertised for the role, they were satisfied that there was no alternative local worker available with suitable qualifications and experience, particularly having regard to the remoteness of the Herbertvale station and the specialised nature of the operations. According to Mrs Hawkins, the nearest town was 120 kilometres away with a population of about 200 people.
Ms Merritt gave evidence about how she obtained the position, her previous work experience and her current responsibilities. She had previously worked at Herbertvale for work experience before she returned to the United Kingdom where she obtained her degree and worked on farms with livestock for several years. She has a Bachelor of Science with Honours in Agriculture conferred from the Royal Agricultural University in May 2017. Ms Merritt worked in Australia on working holiday visas for a number of years from about 2012 to 2014, working in cafes, fruit-picking and as a farm hand. She returned to the United Kingdom in November 2014 and in March 2015 commenced working as a farm hand on a property in Gloucestershire in the United Kingdom called Old Farm. She worked full-time for approximately six months and then worked part-time until February 2016 while she completed her degree. According to a letter provided by Old Farm dated 21 September 2017, Ms Merritt worked as a general farm hand and she was involved in all aspects of farm life including daily livestock checks, feeding, lambing duties and organising farming operations. The farm operated beef cattle, sheep, pigs and horse livestock. From April 2016 until May 2017, Ms Merritt worked as a lambing assistant for JJ Livestock Solutions, which was a farming operation based in Hampshire in the United Kingdom. She was promoted after a few months and worked as a stock woman, taking responsibility for all daily management tasks of the stock and overseeing the farming operations. This was confirmed in a letter from a director of JJ Livestock Solutions dated 21 September 2017.
Ms Merritt travelled back to Australia in September 2017 on a visitor visa. In October 2017 she was invited to apply for the role of livestock manager with HC Pastoral. By letter dated 23 October 2017 from HC Pastoral to Ms Merritt. She was offered employment as a livestock manager, being under the classification of a farm and livestock hand level 8, the Pastoral Award 2010. The position was described as permanent full-time, located at Herbertvale station and as a position reporting directly to Clinton Hawkins. The base salary was recorded as $44,200 per annum together with food and accommodation, being a value of $650 per month, and superannuation. The terms and conditions of Ms Merritt’s employment were otherwise standard, with a 38-hour week. In a further letter provided to the Tribunal on behalf of HC Pastoral and confirmed by Mrs Hawkins during the hearing, it was recorded that Ms Merritt had been employed since 11 December 2017 and that she had been paid an annual salary of $52,000 per annum, from which food and accommodation expenses were deducted in accordance with the Award. It was also confirmed that she had been regularly paid her superannuation entitlements. This evidence was consistent with the payslips provided.
Following the hearing the migration agent for HC Pastoral provided submissions to the effect that HC Pastoral had been established to manage and control the business operated by the partnership, HC Grazing, and a daily basis. QNT Resources Pty Ltd was established to manage employee and payroll expenses and, while those expenses were paid by QNT Resources, they were incurred in behalf of HC Pastoral as the main trading entity and agent for the partnership. In support of this contention, the applicant provided invoices in the name of a HC Pastoral issued to third parties, which on their face related to the HC Grazing partnership business. These invoices covered the period from March to August 2021. The applicant also provided invoices addressed to HC Pastoral from third party suppliers for the period January and March 2021, which given their subject matter apparently related to the HC Grazing partnership business, together with copies of bank statements in the name of HC Pastoral detailing these payments and receipts, including details of payments made to QNT Resources Pty Ltd for employment expenses and payroll management.
SUBMISSIONS AND FINDINGS
The representatives for HC Pastoral submit that it meets the requirements of reg 5.19 (4)(a), which I accept, although I note that there is an issue about whether Ms Merritt, who has been identified in the nomination, works in the nominated position under HC Pastoral’s direct control.
It is submitted that the requirements of reg 5.19(4)(b) are satisfied because there is evidence that HC Pastoral is actively, lawfully and directly operating a business in Australia. It is part of an agricultural business owned and operated by the Hawkins and Childs families as the HC Grazing partnership. HC Pastoral is agent for the partnership and is actively operating as such. This is said to be evidenced by the company searches, the financial statements, business activity statements and tax returns for HC Pastoral and HC Grazing and the evidence of Mr Hawkins and Mr Mouritz, supported by the evidence of the Management and Agency Agreement between HC Pastoral and the HC Grazing partnership and the invoices directed to and issued by HC Pastoral, apparently relating to the partnership. While there is ample evidence HC Grazing is operating a business, it is not the nominator. The nominator is HC Pastoral. Furthermore, while there is a contract of employment between Ms Merritt and HC Pastoral, her wages are paid by QNT Resources Pty Ltd.
The question that arises is whether there HC Pastoral is actively, lawfully and directly operating a business in Australia and whether Ms Merritt, who is the person who was identified to work in the nominated position and has been working in this role for over three years, is working under the direct control of HC Pastoral. These matters are the determinative issues in this case and appear to be the basis for the refusal to approve the nomination.
The other requirements are less contentious and I set out my findings, and the evidence relied on in relation to those matters, as follows.
It is submitted that reg 5.19 (4)(d) is satisfied because Ms Merritt is employed on a full-time basis and will be employed in the position for at least two years. The terms of her employment, which are evidenced by the contract of employment dated 23 October 2017 with HC Pastoral, do not include an express exclusion of the possibility of extending her period of employment. The contract provides for employment in a permanent full-time position, although it includes a probationary period which has now passed, and includes standard provisions about leave entitlements, confidential information and termination. It is submitted that this criterion should be ‘deemed’ as satisfied as the application was submitted more than three and a half years ago and she has been employed with HC Pastoral since this time in a permanent and ongoing employment relationship. While there is considerable force to this contention, past employment for an extended period does not guarantee future employment. Relevantly, I must be satisfied about at the time of my decision that Ms Merritt will be employed on a full-time basis in this position for at least two years into the future.
Based on the evidence of Mr and Mrs Hawkins, I am satisfied there is an ongoing need for this position and that the business considers the continued employment of Ms Merritt in this role to be critical to its future success. Furthermore, I am satisfied that the business is long-standing and viable, and this is evidenced by the financial information provided by the applicant relating to HC Pastoral, the HC Grazing partnership and QNT Resources Pty Ltd. I am therefore satisfied that the requirements of reg 5.19(4)(d) are met, however, insofar as there is uncertainty created by the fact that Ms Merritt is paid by QNT Resources Pty Ltd rather than HC Pastoral, I do not consider this to be adverse to the essential elements of this criteria. My reasons for this are outlined in more detail below.
Regulation 5.19(4)(e) provides that the terms and conditions of employment applicable to the position must be no less favourable than those that are would be provided to an Australian for performing equivalent work. It is submitted that there is no evidence to indicate that the salary for the nominated position is inconsistent with Australian labour market conditions and it is further noted that Ms Merritt is paid in accordance with the relevant award, which is the Pastoral Award 2020 at the classification level for a farm and livestock hand at level 8. The annual salary based on the award is $50,258 per annum as at 1 July 2021. According to payslips provided for Ms Merritt, her current annual earnings are $52,000 per annum. Under her contract of employment Ms Merritt’s base salary is $44,200 per annum together with an allowance for accommodation of $150 per week making a total of $52,000 per annum. It is therefore submitted that Ms Merritt is paid a salary which is above the relevant award and as such this requirement is satisfied. Having regard to the documentary evidence provided and the evidence of Mrs Shelly Hawkins, I accept this submission and I am satisfied the requirements of reg 5.19(4)(e) are met.
It is further submitted that there is no evidence of adverse information known to Immigration before the Tribunal. Nor is there evidence that HC Pastoral does not have a satisfactory record of compliance with the laws of the State and 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. It is therefore submitted that HC Pastoral meets the requirements of regs 5.19(4)(f) and (g). I accept this submission based on my enquiries of the Department of Home Affairs database known as Integrated Client Services Environment (ICSE) and the evidence of Mr Hawkins to this effect. I am therefore satisfied that the requirements of regs 5.19(4)(f) and (g) are met.
In relation to the requirements in reg 5.19 (4)(h)(ii) it is submitted that HC Pastoral clearly meets the first and sixth criteria (namely (A) and (E)) because the business operated by HC Pastoral and the position nominated is located in regional Australia. This is uncontentious and I accept this submission.
It is submitted that the second criterion ((ii)(B)) is met based on the evidence provided by the company and the evidence of Mr Hawkins about the need for the position set out in the genuine position statement of 23 October 2017. It is also submitted that the position of livestock manager in the occupation of Beef Cattle Farmer is under the direct control of HC Pastoral, through Mr Clinton Hawkins, and the fact that Ms Merritt has been employed in this position for over 3 and a half years is evidence of the need for the position. I accept there is a need for the position the more contentious issue is whether Ms Merritt works in the position under the direct control of HC Pastoral. Given that this was the matter in dispute before the delegate and formed the basis for the refusal, this matter is considered in more detail later in my reasons.
It is further submitted that, based on the evidence of the previous difficulties in filling the position, it should be accepted that the third criterion in reg 5.19(4)(h)(ii), namely (C), is met. It was also submitted that given the remote location of the property and the particular skills and experienced needed for the role of livestock manager, it should be accepted that it is unlikely HC Pastoral would find a suitably qualified person in their local area to accept the position. I accept these submissions. I am satisfied that the applicants who applied for the role in 2017 were not suitable and I am further satisfied that the prospects of HC Pastoral finding a suitable Australian citizen and permanent resident to fill the role at this time are remote. In this regard I give considerable weight to the evidence of Mr and Mrs Hawkins, who have been working this business for a number of years and gave persuasive cogent evidence about these matters, and the positive certification provided by the CCIQ dated 31 October 2017.
It is also submitted the tasks to be performed in the position correspond to a specified occupation, being the occupation of Beef Cattle Farmer (ANZSCO 121312) which was included in the occupations list for the subclass 187 visa at the relevant time. The nominated role is livestock manager in the occupation of Beef Cattle Farmer and this is the role Ms Merritt was identified to undertake, as outlined in the nomination. It is therefore contended that the fourth and fifth criteria in reg 5.19(4)(h)(ii), being (D) and (DA), are met.
Regulation 5.19(4)(h)(ii)(D) requires that the tasks to be performed by the nominee 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.
As noted above, the relevant instrument is IMMI 17/058, which refers to the occupation of Beef Cattle Farmer, being ANZSCO code 121312. This falls within ANZSCO code 1220, being the occupation of Livestock Farmers, which is described as follows:
LIVESTOCK FARMERS plan, organise, control, coordinate and perform farming operations to breed and raise livestock.

The ‘indicative skill level’ in Australian New Zealand for the occupations within this unit group is recorded as follows:
Most occupations in this unit group have a level of skill commensurate with a bachelor degree of higher qualification. At least five years of relevant experience may substitute for the formal qualification. In some instances relevant experience and/or on-the-job training may be required in addition to the formal qualification (ANZSCO skill level I).
The tasks listed include breeding and raising livestock for production of honey, meat, milk, skins, eggs and wool, monitoring and maintaining the health and condition of livestock, providing pastures and fodder, moving livestock to optimise feeding opportunities, organising and conducting farming operations, directing and overseeing general farming activities such as maintaining pens, sheds and cages, maintaining fences, equipment and water supply systems, organising the sale, purchase and transportation of livestock, maintaining and evaluating records of farming activities, managing business capital including budgeting, taxation, debt and loan management.
In relation to the occupation of Beef Cattle Farmer 121312, the code provides the following description:
Plans, organises, controls, coordinates and performs farming operations to breed and raise beef cattle for meat and breeding stock.
The tasks of the nominated position are directing and overseeing the general day to day processing and movement of cattle, recording analysing and monitoring stock information and performance, utilising available pasture and nutrients to optimise production, monitoring associated market trends and activities, making recommendations in relation to livestock performance and business development opportunities and maintaining the wellbeing of cattle to ensure optimal conditions for breeding. Mr Clinton Hawkins said that Ms Merritt was responsible for managing livestock, which included, organising transport for cattle, planning mustering, handling, veterinary duties including administering vaccinations, the supplementation and feeding of cattle and that a major part of Ms Merritt’s role is record keeping for the purposes of government regulation. Ms Merritt said that she is in charge of breeding the heard, maintaining the health of calves, weaning calves, pasture analysis and mustering paddocks she also monitors cattle on a database, vaccines and the batch numbers. I am satisfied that there is ample evidence that the role Ms Merritt was recruited to perform in 2017 and has been undertaking over the past three and a half years is consistent with the occupation nominated and the tasks correspond to the tasks of the occupation specified in IMMI 17/058, being the occupation of Beef Cattle Farmer. Accordingly, I am satisfied that the requirements in reg 5.19(4)(h)(ii)(D) and (DA) are met.
Finally, it is submitted that there is evidence from a Regional Certifying Body in compliance with reg 5.19(4)(h)(ii)(F). Relevantly, there is a certification from CCIQ that Ms Merritt will be paid at least the annual market salary rate for the nominated position, HC Pastoral genuinely needs to employ her in that nominated position under its direct control and the position cannot be filled by an Australian who lives in a would move to the relevant local area. In this regard, I note that this certification is not conclusive proof of the matters referred to in the certification. Nor is it evidence of the matters referred to in the certification as at the time of the decision because the certification was made at a particular point in time, being at the time of the application which in this case was nearly three years ago. However, in order to comply with this criterion, it is simply necessary that the certification about these matters be provided. There is no dispute about this and therefore I am satisfied that this criterion is met.
For the reasons outlined above, I am satisfied that HC Pastoral meets the requirements of regs 5.19(4)(h)(ii)(A) and (C) to (F) and that part of (B) that requires there be a genuine need for the position.
ISSUES FOR DETERMINATION
HC Pastoral must meet all of the criteria in reg 5.19(4) for the nomination to be approved. I am satisfied that it meets the criteria in regs 5,19(4)(e), (f) and (g) and, with qualification regs 5.19(4)(a) and (d). The criterion in reg 5.19(4)(c) does not apply. I am also satisfied that HC Pastoral meets the criteria in reg 5.19(4)(h)(ii)(A) and (C) to (F) and (B) insofar that it requires there be a genuine need for the position nominated.
Having regard to the submissions, the relevant criteria for the approval and the undisputed evidence that I accept in relation to requirements of reg 5.19(4), the issues for consideration are as follows:
(1)Does the nomination comply with reg 5.19(4)(b) namely, is HC Pastoral actively, lawfully and directly operating a business in Australia?
(2)Is Tahlia Merritt employed by HC Pastoral and does she work under its direct control (refer regs 5.19(4)(a)(ii), (d) and (h)(ii)(B))?
CONSIDERATION
As noted, if I am satisfied that HC Pastoral meets all the requirements of reg 5.19(4), I must approve the nomination. For the reasons set out above, I am satisfied that HC Pastoral meets regs 5.19(4)(a),(e),(f) and (g) and regs 5.19(4)(h)(ii)(A) and (C) to (F) and part of (B) and I find accordingly. The contentious issues for consideration relate to the corporate structure and operations of the HC group and how these matters impact on Tahlia Merritt and her nomination.
Is HC Pastoral actively, lawfully and directly operating a business in Australia?
It is submitted that HC Pastoral is the main trading entity of the partnership and is the entity directly operating the business operations. In support, HC Pastoral provided bank statements showing income and expenses and invoices issued by and to HC Pastoral evidencing that it contracts on behalf of the partnership, even though it does not itself generate income or expenditure. The fact that HC Pastoral does not make a profit or earn a fee does not mean that it is not actively and lawfully operating a business in Australia. The business that it is being operated by HC Pastoral is the agriculture business of HC Grazing partnership and it does so as agent for the partnership. It operates the business, albeit as agent. The Management and Agency Agreement sets out the obligations of HC Pastoral, which are to act as agent for the partnership. It is relevant to note that the Agreement does not require that there be a fee paid. The corporate structure is consistent with the Management and Agency Agreement, namely that HC Pastoral is actively and operating a business, being the agricultural business, as agent for the partnership. There is no dispute that is operating lawfully.
The question is whether nomination by an agent on behalf of its principal, which is not uncommon in agricultural family partnerships, falls outside the requirements contemplated by reg 5.19(4) because the nominator as agent, cannot be construed as directly operating the business as required by reg 5.19(4)(b).
By way of observation, I note that reg 5.19(4)(b) is somewhat confusing in its drafting but should, nonetheless, be read together with the other requirements, relevantly, those in subparagraphs (a) and (d). Subparagraph (b) requires that the nominator be actively and lawfully operating a business in Australia but further requires that the nominator directly operate the business. There nothing within the Regulations that defines the business being operated, although to give purpose and effect to the Regulations, the business referred to in subparagraph (b) must be the business of the nominator identified in subparagraph (a). Subparagraph (d) requires that the employee be employed on a full-time basis in the position which must be a reference to the position referred to in subparagraph (a)(ii), which requires that the employee identified must work under the nominator’s direct control.
Overall, the drafting and interaction of these various provisions contains some gaps but it is tolerably clear that what is intended by the scheme is that a nominator, who operates a business in Australia, can identify the need for a non-citizen or temporary resident to be employed as a paid employee to work in a position under its direct control on a full-time basis for a period of at least two years provided certain conditions are met. Those conditions are that the visa applicant must be employed on terms and conditions that are no less favourable than the terms and conditions that are or would be provided to an Australian citizen or permanent resident and that the position identified must be in a particular occupation as specified by the Minister. The scheme also provides that employers in regional Australia may be able to recruit non-citizens and temporary residents where there is a genuine need for a position and the position cannot be filled by a local Australian citizen or permanent resident.
In this case, the nomination is consistent with what appears to be the intended operation of the scheme. The partnership of HC Grazing does not itself operate the business and has elected to use a business structure with a corporate agent, in which all members of the partnership have an interest and exercise control, as a means to more conveniently operate the business. In submissions provided, it is contended that the structure was set up in this way to protect the partnership assets. When an agent incurs debts on behalf the principal, the agent will have a right of indemnity against the principal and there is an argument that the interposition of an agent may not absolve the partnership of liability in any event. This is not relevant for my purposes and I must form a view about whether this arrangement is sufficient to meet the requirement in reg 5.19(4)(b) that HC Pastoral directly operates the business which is the subject of the nomination. HC Pastoral acts by reason of its lawful authority provided under the Management and Agency Agreement. While the Agreement provides for the Management Committee to direct HC Pastoral as its agent, it is clear from the terms of the Agreement HC Pastoral is given broad authority under the Management and Agency Agreement to operate the partnership business. If the word directly is a narrow and more technical construction, it could be argued that HC Pastoral does not directly operate the business because it acts through the Management Committee, which comprises representatives of the partnership. On the other hand, the partners are directors of HC Pastoral and in my view the arrangements that are in place are sufficiently broad to give HC Pastoral authority to directly operate the HC Grazing partnership business and the fact that it is operating as agent does not diminish the nature of its operations. The various invoices provided on behalf of HC Pastoral support this claim. In other words, the phrase directly operates should be given a broad construction as contemplated by the legislative scheme. There were amendments made to reg 5.19 on 18 March 2018 which removed the requirement for the nominee “directly” operate the business. This adds weight to my construction.
I therefore find that the operations of HC Pastoral, and the authority given by the HC Grazing partnership reinforced by the corporate structure, is sufficient to establish that HC Pastoral directly operates the business within the meaning of reg 5.19 (4)(b)(ii).
Accordingly, I find that the requirements of reg 5.19(4)(b) are met.
Is Tahlia Merritt employed by HC Pastoral and does she work under its direct control?
For the reasons previously outlined, this issue is relevant to the question of whether HC Pastoral meets the requirements in regs 5.19(4)(a)(ii), (d) and (h)(ii)(B) insofar that it requires that Tahlia Merritt, as the person nominated for the position by HC Pastoral, is a paid employee to work in the position under the HC Pastoral’s direct control.
It is submitted that HC Pastoral is the direct employer of Ms Merritt even though she is paid by QNT Resources Pty Ltd, which was established for employee and payroll management for the HC Grazing partnership.
HC Pastoral entered into a contract of employment with Ms Merritt which has been in place since 2017. She is directed by Mr Clinton Hawkins on a day-to-day basis. He is a director of HC Pastoral and manages all operations at the Herbertvale station. Mrs Shelley Hawkins, as the human resources and office manager for HC Pastoral, was responsible for Ms Merritt’s recruitment and undertakes all other tasks relating to Ms Merritt’s employment.
The HC Grazing partnership entities each have a shareholding in HC Pastoral and QNT Resources Pty Ltd. HC Pastoral provided bank statements for HC Pastoral and QNT Resources Pty Ltd demonstrating the transfer of funds from HC Pastoral to QNT Resources Pty Ltd for labour related expenses. The bank statements show monthly lump sum deductions which include salaries, wages, taxation and superannuation. A National Australia Bank Direct Credit Report shows the salary and wage expenses as lump sum deduction as $26,972.53 for 31 August 2021. As such, I am satisfied that the HC Pastoral reimburses QNT Resources Pty Ltd for Ms Merritt’s salary and is her employer under the terms of the contract of employment, not only inform but in substance. I am therefore satisfied that the requirements of reg 5.19(4)(a)(ii), (d) and (h)(ii)(B) are met
CONCLUSIONS
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.
J.L Redfern PSM
Deputy President

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)       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).

[2021] AATA 4617

5 November 2021

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