House of Drapes Pty Ltd (Migration)

House of Drapes Pty Ltd (Migration) [2019] AATA 3297 (23 July 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  House of Drapes Pty Ltd
CASE NUMBER:  1732667
DIBP REFERENCE(S):  BCC2017/2596467
MEMBER:Andrew McLean Williams
DATE:23 July 2019
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Statement made on 23 July 2019 at 3:54pm
CATCHWORDS
MIGRATION – nomination – Direct Entry Nomination stream – position not genuine – demonstrated need for paid employee – decision under review set aside

LEGISLATION
Migration Regulations 1994 (Cth), r 5.19

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review by House of Drapes Pty Ltd (‘the applicant’)
The applicant seeks to review a decision made by a delegate of the Minister for Immigration on 12 December 2017 to reject the applicant’s application for approval of the nomination of a position in Australia under r.5.19 of the Migration Regulations 1994 (‘the Regulations’).
The applicant applied for approval on 21 July 2017. The requirements for the approval of the nomination of a position in Australia are found in r.5.19 of the Regulations which contains two alternative streams: a Temporary Residence Transition nomination stream (r.5.19(3)), and a Direct Entry nomination (r.5.19(4)) stream. If the application is made in accordance with r.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: r.5.19(5).
In this case, the applicant has applied for approval of a nomination by 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 r.5.19(4) of the Regulations, because the delegate was not satisfied that the applicant had identified a need to employ a paid employee to work in the nominated position under the applicant’s direct control.
The applicant appeared before the Tribunal on 16 July 2019 to give evidence and make submissions. The applicant was represented by its chief executive, Ms Leanne Carter. The Tribunal also received oral evidence from the nominee, Ms Mackarena Nataly Becerra Hermosilla, and from her spouse, Mr Donovan Alejandro Rodriguez Flores.
The applicant was represented in relation to the review by its registered migration agent, Ms Sonja Reusche. Ms Reusche also attended the Tribunal hearing and made brief submissions on the evidence given by Ms Carter, Ms Mackarena Nataly Becerra Hermosilla and by Mr Flores. Prior to the hearing, the applicant had also filed written submissions. These were received in the Tribunal registry on 9 July 2019 and were considered by the Tribunal, both before the hearing, and then again after the hearing, in particular light of the oral evidence provided at the hearing by the applicant and the other witnesses. Having now assessed that evidence, the Tribunal accepts the genuineness of all of it. Much of the evidence heard before the Tribunal was not previously available to the delegate of the Minister who made the decision that is now under review before the Tribunal.
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 primary evidence heard before the Tribunal came from Ms Carter. As well as being the chief executive officer of the applicant, Ms Carter was its founder. Ms Carter told the Tribunal that she had originally established the House of Drapes as a home-based business in about 1994 or 1995, and that for the first ten years it was involved only in the sewing of curtains and blinds. Over time, the business expanded and, in 2003, the House of Drapes commenced a focus on wholesale manufacturing and supply. Growth has since been continuous. Approximately 5 years ago, a substantial investment was made to establish a new manufacturing facility, at Kunda Park. The applicant now employs 35 employees. The establishment of the new factory coincided with the launch of the ‘Dream Collection’, which was described to the Tribunal as a curated line of soft furnishing fabrics and styles that could be mixed and matched, and then manufactured to order. Ms Carter informed the Tribunal that more than 50% of the business turnover of the applicant (which now exceeds five million dollars), is now associated with the Dream Collection. Ms Carter also explained that in recent years the applicant has established a particular name for itself as a national supplier of soft furnishings in the aged care industry. Much of the revenue of the applicant is now associated with large orders from the aged care industry, arising out of the construction or renovation of aged care facilities, and the like. Ms Carter explained that the commencement of the Dream Collection also gave rise to an identified need for a role for an ‘in-house’ interior decorator, as a person who could assist clientele with the appropriate selection of styles and fabrics from the Dream Collection. The expectation was that the interior decorator would also become responsible for the further curating and updating of the products within the Dream Collection; as well as for liaison with sales staff in the giving of aesthetic and style advice to customers, particularly to aged care industry clientele whom have become so important to the applicant’s business.
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 r.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: r.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 a paid employee to work in the position under their direct control.
In this case, the application for approval was lodged on 21 July 2017 by means of the Department of Immigration and Border Protection (now Department of Home Affairs) online portal. Having had access to and then regard for the documentation held within the electronic file of the Department, the Tribunal is satisfied that the application was made in the manner required, and on the approved form. The application relates to a visa in the Direct Entry stream seeking to meet the requirements in the Regional Sponsored Migration Scheme and consequently no fee is payable (r.5.19(2) and r.5.37(4)). The prescribed form includes the necessary written certification stating that the nominator has not engaged in conduct that contravenes s.245AR(1). The application also identifies a need for the applicant, as the nominator, to employ a paid employee to work in the position under the nominator’s direct control.
Accordingly, the requirement in r.5.19(4)(a) is met.
Nominator is actively and lawfully operating a business in Australia: r.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 is located at 56 Hoopers Road, at Kunda Park on the Sunshine Coast. It is an Australian registered company, as is confirmed by ASIC database information. The applicant is engaged in the manufacture and selling of curtains, blinds and soft furnishings. Since 2003, the applicant has moved into commercial wholesaling and it also has a particular focus on the supply of curtains, blinds and soft furnishings to the aged care industry. The evidence given under oath by Ms Carter, as well as the financial records of the applicant that were filed in the Tribunal prior to the hearing support the Tribunal finding that the nominator is actively and lawfully operating a business in Australia, and that the applicant directly operates the business.
Accordingly, the requirement in r.5.19(4)(b) is met.
Position is not labour-hire: r.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. Here, the applicant is not engaged in labour hire, and nor is there any suggestion on any of the evidence that the applicant is involved in labour hire activities.
Accordingly, the requirement in r.5.19(4)(c) does not apply.
Term of employment of the visa holder: r.5.19(4)(d)
Regulation 5.19(4)(d) requires the nominee to be employed in the nominated position for at least 2 years full time, and for the terms and conditions of that employment to not expressly exclude the possibility of an extension.
The Tribunal has had regard for the terms and conditions of the employment contract dated 18 July 2017 by means of which the applicant has engaged the employment services of Ms Mackarena Nataly Becerra Hermosilla. The contract expresses it to be for a minimum period of two years upon the granting of an RSMS Visa. There is no clause in the contract that expressly precludes the possibility of an extension of employment beyond the initial two year period. The Tribunal was careful to question Ms Carter around this issue. Ms Carter told the Tribunal under oath that Ms Mackarena Nataly Becerra Hermosilla’s employment was a continuing matter and that the applicant wished for her to stay in the applicant’s employment indefinitely.
Accordingly, the requirement in r.5.19(4)(d) is met.
No less favourable terms and condition of employment: r.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. Ms Mackarena Nataly Becerra Hermosilla obtained her Diploma of Interior Design and Decoration from the Nambour TAFE in November 2016. As the incumbent fulfilling the nominated position, Ms Mackarena Nataly Becerra Hermosilla is paid an annual salary of $54,000, plus 9.5% superannuation. Information produced from ‘Wagescale’ and submitted to the Tribunal by the applicant shows that an early career (ie: 1 – 4 years experience) interior decorator earns an average annual salary of $50,421. In light of this, the Tribunal is satisfied that the conditions of employment for the nominated position are no less favourable than are those that would be provided to an Australian citizen or Australian permanent resident performing equivalent work in the same workplace at the same location.
Accordingly the requirements of r.5.19(4)(e) are met.
No adverse information known to Immigration: r.5.19(4)(f)
Regulation 5.19(4)(f) requires that there be no adverse information known to Immigration about the nominator or a person associated with the nominator; or that it is reasonable to disregard any such information. For these purposes, ‘adverse information’ and ‘associated with’ have the meaning given in rr.1.13A and 1.13B.
No adverse information has been brought to the attention of the Tribunal about the applicant or any person associated with the applicant.
Accordingly the requirements of r.5.19(4)(f) are met.
Satisfactory compliance with workplace relations laws: r.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, or of any 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 breached any workplace relations laws of the Commonwealth, and of each State or Territory in which the applicant operates a business and employs employees in the business.
Accordingly the requirements of r.5.19(4)(g) are met.
Tasks of the position genuine need for the position and training requirements r.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 16/060), 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, 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.
In this case, the applicant’s business is located at Kunda Park on the Sunshine Coast, (postcode 4556). In accordance with legislative instrument IMMI 16/045, Kunda Park qualifies as a regional area, such that the application must comply with the requirements of r.5.19(4)(h)(ii), as summarised in the second bullet point, immediately above.
In relation to those requirements, the Tribunal is:
·Satisfied that the nominated position is located in regional Australia;
·Satisfied that the applicant has demonstrated a genuine need to employ Ms Mackarena Nataly Becerra Hermosilla as ‘the person’ nominated under r.5.19(4)(a)(ii) as a paid employee under the applicant’s direct control.
·Satisfied, in light of the applicant having advertised the position on-line for a period of one month and also by means of an advertisement placed in the Sunshine Coast Daily on two occasions yet the only suitable applicant to respond to those job advertisements having been Ms Mackarena Nataly Becerra Hermosilla, that the nominated position could not be filled by an Australian citizen or permanent resident who is living in the same local area.
·Satisfied that the tasks to be performed in the nominated position do correspond with those in ANZSCO category 399912. This is an occupation listed in the relevant legislative instrument for purposes of r.5.19(4)(h)(ii), which is IMMI 16/059.
·Satisfied that the applicant’s business is located at Kunda Park.
·Satisfied that, on 19 July 2017 the Queensland Chamber of Commerce and Industry, as a body specified by the Minister in an instrument in writing, advised the Minster about the matters mentioned in rr. 5.19(4)(e) and in 5.19(4)(h)(B) and (C).
Accordingly the requirements of r.5.19(4)(h) are met.
Based on the findings above, the Tribunal is satisfied that the applicant meets the requirements of r.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.
Andrew McLean Williams
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)       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).

[2019] AATA 3297

23 July 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Statutory Construction

Jurisdiction

Procedural Fairness