HV Trading Group Pty Ltd (Migration)

[2023] AATA 1147

HV Trading Group Pty Ltd (Migration) [2023] AATA 1147 (20 April 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  HV Trading Group Pty Ltd

REPRESENTATIVE:  Mr Minghao Wang (MARN: 1382452)

CASE NUMBER:  1921751

HOME AFFAIRS REFERENCE(S):          BCC2017/2530648

MEMBER:Angela Julian-Armitage

DATE:20 April 2023

PLACE OF DECISION:  Brisbane

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

Statement made on 20 April 2023 at 2:33pm

CATCHWORDS
MIGRATION–nomination – Direct Entry stream– application is compliant –– genuine need to employ a paid employee to work in the position under the nominator’s direct control – nominated position is based in regional Australia – no adverse information – position associated with the nominated occupation is genuine –no less favourable terms and condition of employment –applicant lawfully operating a business in Australia– decision under review set aside

LEGISLATION
Migration Act 1958, ss 65, 140GB, 245AR
Migration Regulations 1994, 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 1 August 2019 to refuse the nomination of a position in Australia pursuant to reg 5.19 of the Migration Regulations 1994 (Cth) (the Regulations).

2. The applicant applied for approval on 17 July 2017 with the requirements for the approval of the nomination of the position in Australia contained in reg 5.19 of the Regulations. The Regulations contain two alternative streams: a Temporary Residence Transition nomination stream (reg 5.19(3)) and a Direct Entry nomination stream (reg 5.19(4)). The application must be approved If the application is made in accordance with reg 5.19(2) and meets the requirements of either stream. If any of the requirements are not met, the application must be refused: reg 5.19(5).

3. In the 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)(d)(i) of the Regulations due to the failure by the applicant/nominator to demonstrate that it was in the position to employ the nominee on a full-time basis for a minimum of 2 years.

5. The applicant appeared before the Tribunal on 14 December 2022 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages with the added assistance of its representative.

   For the following reasons, the Tribunal has decided to set aside the decision under review and substitute it with the decision to approve the nomination.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. At play in this case is whether the applicant meets the requirements for approval of the nomination as is required for the Direct Entry nomination stream set out in reg 5.19(4) which is extracted in the attachment to this decision.

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

7. Regulation 5.19(4)(a) requires that the application must be in the approved form and accompanied by the prescribed fee and where applicable, must include the required written certification relating to conduct that contravenes s 245AR(1). The application must also identify a need for the nominator to employ an identified person as a paid employee to work in the position under their direct control.

8. The Tribunal is satisfied that the application was made electronically in the required form and was accompanied by the prescribed fee in accordance with reg 5.37. Furthermore, the electronic application contained the s245AR(1) certification and identified the person who was to be the paid employee working in the nominated position under the nominator’s direct control.

9. Therefore, the requirements in reg 5.19(4)(a) are met.

   Nominator is actively and lawfully operating a business in Australia: reg 5.19(4)(b)

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

11. The Tribunal is further satisfied that the nominator is directly and actively and lawfully operating a business in Australia.

12. Accordingly, the requirements in reg 5.19(4)(b) are met.

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

13. 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.  There is nothing contained in either the oral or written evidence in this matter to indicate that the nominator operates a labour hire business.

14. Hence, the requirement in reg 5.19(4)(c) is met.

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

15. 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.

16. The Tribunal is satisfied that the nominee has been employed in the nominator’s business for well in excess of the 2-year requirement and has cited the contract of employed which explicitly makes provision for the term with an added clause envisaging extension of the 2-year period which obviously must have occurred as the nominee is still in the nominator’s employ.

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

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

18. 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.

19. The contract of employment makes reference to the terms and condition of the Fair Work Act 2009 and delignated expressly what those terms and condition are mirroring that Act. The employment is, therefore, no less favourable, in its terms and condition to those that would be provided to an Australian citizen or permanent resident in the same workplace at the same location.

20. Hence, the requirements of reg 5.19(4)(e) are met.

    No adverse information known to Immigration: reg 5.19(4)(f)

21. 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.

22. There is no evidence before this Tribunal to indicate that there is any adverse information about the nominator, or a person associated with the nominator.

23. Therefore, the requirements of reg 5.19(4)(f) are met.

    Satisfactory compliance with workplace relations laws: reg 5.19(4)(g)

24. 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.

25. There is nothing before this Tribunal that indicates that the nominator has any other than a satisfactory record of compliance with workplace relations laws in the locations in which it operates and employs staff.

26. 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)

27. Regulation 5.19(4)(h) contains a number of alternative requirements. These are set out in detail in the attachment to the decision but can be briefly summarised as requiring either that:

    ·the tasks to be performed in the position will be performed in Australia and correspond to those of an occupation specified by the Minister in the relevant legislative instrument, the occupation is applicable to the proposed employee in accordance with any specifications made in that instrument, there is a genuine need for the nominee to be employed as a paid employee in the position, and certain specified training requirements are met; or

    ·the position and nominator’s business is located in regional Australia, there is a genuine need for the nominee to be employed as a paid employee in the position under the nominator’s direct control, the position cannot be filled by a locally resident Australian citizen or permanent resident, the tasks of the position correspond to those of an occupation specified in the relevant legislative instrument, 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.

28. The subject position and the business are located in Toowoomba which is in regional Australia. The applicant has provided evidence, both in writing and orally, to the satisfaction of the Tribunal that there is a genuine need for the nominator to employ the identified nominee pursuant to reg 5.19(4)(a)(ii) as a paid employee to work under the nominator’s direct control.

29. In addition, the nominator has made attempts to fill its vacancy by way of Seek advertisements (2 rounds) which has proven futile which led the nominator to the conclusion that the nominated person was the most experience and skilled to fill the vacancy as not adequately skilled or experience Australian citizen or resident living in the local area had responded to the advertised vacancy.

30. The Tribunal notes that the Department records that the Regional Certifying Body has advised the Minister about the matters in reg 5.19(4)(e) and reg 5.19(4)(h)(ii)(B) & (C).

31. Therefore, the requirements of reg 5.19(4)(h) are met.

32. Based on the considerations and 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

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

    Angela Julian-Armitage
    Member

    
    

    ATTACHMENT  -  EXTRACTS FROM THE MIGRATION REGULATIONS 1994

    5.19Approval of nominated positions (employer nomination)

    …

    (2)The application must:

    (a)be made in accordance with approved form 1395…; and

    (aa) include a written certification by the nominator stating whether or not the nominator has engaged in conduct, in relation to the nomination, that constitutes a contravention of subsection 245AR(1) of the Act; and

    (b)be accompanied by the fee mentioned in regulation 5.37.

    …

    Direct Entry nomination

    (4)The Minister must, in writing, approve a nomination if:

    (a)the application for approval:

    (i)       is made in accordance with subregulation (2); and

    (ii)      identifies a need for the nominator to employ an identified person, as  a paid employee, to work in the position under the nominator’s direct control; and

    (b)the nominator:

    (i)       is actively and lawfully operating a business in Australia; and

    (ii)      directly operates the business; and

    (c)for a nominator whose business activities include activities relating to the hiring of labour to other unrelated businesses — the position is within the business activities of the nominator and not for hire to other unrelated businesses; and

    (d)both of the following apply:

    (i)       the employee will be employed on a full-time basis in the position for at least 2 years.

    (ii)      the terms and conditions of the employee’s employment will not include an express exclusion of the possibility of extending the period of employment; and

    (e)the terms and conditions of employment applicable to the position will be no less favourable than the terms and conditions that:

    (i)       are provided; or

    (ii)      would be provided;

    to an Australian citizen or an Australian permanent resident for performing equivalent work in the same workplace at the same location; and

    (f)either:

    (i)       there is no adverse information known to Immigration about the nominator or a person associated with the nominator; or

    (ii)      it is reasonable to disregard any adverse information known to Immigration about the nominator or a person associated with the nominator; and

    (g)the nominator has a satisfactory record of compliance with the laws of the Commonwealth, and of each State or Territory in which the applicant operates a business and employs employees in the business, relating to workplace relations; and

    (h)either:

    (i)       all of the following apply:

    (A)the tasks to be performed in the position will be performed in Australia and correspond to the tasks of an occupation specified by the Minister in an instrument in writing for this sub-subparagraph;

    (AA)there is a genuine need for the nominator to employ the person identified under subparagraph (a)(ii), as a paid employee, to work in the position under the nominator’s direct control;

    (AAA)the occupation is applicable to the person identified under subparagraph (a)(ii) in accordance with the specification of the occupation;

    (B)either:

    (I)the nominator’s business has operated for at least 12 months, and the nominator meets the requirements for the training of Australian citizens and Australian permanent residents that are specified by the Minister in an instrument in writing for this sub-sub-subparagraph; or

    (II)the nominator’s business has operated for less than 12 months, and the nominator has an auditable plan for meeting the requirements specified in the instrument mentioned in sub-sub-subparagraph (I); or

    (ii)      all of the following apply:

    (A)the position is located in regional Australia;

    (B)there is a genuine need for the nominator to employ the person identified under subparagraph (a)(ii), as a paid employee, to work in the position under the nominator’s direct control;

    (C)the position cannot be filled by an Australian citizen or an Australian permanent resident who is living in the same local area as that place;

    (D)the tasks to be performed in the position correspond to the tasks of an occupation specified by the Minister in an instrument in writing for this sub-subparagraph;

    (DA)the occupation is applicable to the person identified under subparagraph (a)(ii) in accordance with the specification of the occupation;

    (E)the business operated by the nominator is located at that place;

    (F)a body that is:

    (I)specified by the Minister in an instrument in writing for this sub-subparagraph; and

    (II)located in the same State or Territory as the location of the position;

    has advised the Minister about the matters mentioned in paragraph (e) and sub-subparagraphs (B) and (C).