J & D Conti Pty Ltd ATF the J & D Conti Family Trust (Migration)

[2022] AATA 3033

J & D Conti Pty Ltd ATF the J & D Conti Family Trust (Migration) [2022] AATA 3033 (16 August 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  J & D Conti Pty Ltd ATF the J & D Conti Family Trust

REPRESENTATIVE:  Ms Karyn Anderson (MARN: 9685990)

CASE NUMBER:  1903906

HOME AFFAIRS REFERENCE(S):          BCC2017/2028319

MEMBER:Susan Reece Jones

DATE:16 August 2022

PLACE OF DECISION:  Melbourne

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

Statement made on 16 August 2022 at 8:09am

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

LEGISLATION

Migration Act 1958, ss 65, 245AR, 359, 360
Migration Regulations 1994, rr 1.13, 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 15 February 2019 to reject the applicant’s application for approval of the nomination of a position in Australia under reg 5.19 of the Migration Regulations 1994 (Cth) (the Regulations).

2. The applicant applied for approval on 8 June 2017. The requirements for the approval of the nomination of a position Primary Products Inspector (NEC) (ANZSCO 311399) in Australia are found in reg 5.19 of the Regulations which contains two alternative streams: a Temporary Residence Transition nomination stream (reg 5.19(3)) and a Direct Entry nomination stream (reg 5.19(4)). If the application is made in accordance with reg 5.19(2) and meets the requirements of either stream, then the application must be approved. If any of the requirements are not met then the application must be refused: reg 5.19(5).

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

4. The delegate refused the application on the basis the applicant’s nomination did not satisfy reg 5.19(4)(d) of the Regulations because the nominator has not demonstrated that they have the financial capacity to employ a person on a full-time basis in the nominated position for at least two years.

5.   On 17 February 2022, the Tribunal wrote to the applicant’s representative, Ms Karyn Anderson, of Clothier Anderson Immigration Lawyers, pursuant to s359(2) of the Migration Act 1994 (the Act), inviting the applicant to provide the Tribunal with further information in support of this application.

6.    On 3 March 2022, the representative submitted the following documents:

·Trust Deed

·ASIC Extract - Current Company Extract as at 17 January 2022

·ABN Lookup

·Representative’s submission

·External market data

·Organisation Chart

·Work samples

·Profit & Loss Statement for the year ended 30 June 2021

·Business Activity Statements (BAS) January to March 2021, April to June 2021, July to September 2021

·Financial Statements for the year ending 2020

• Form 1404 dated 9 October 2017 RCB Shepparton, Department of Economic Development, Jobs, Transport and Resources

·Current Employment Contract

·Advertisements

·Position Description

1. On 19 May 2022, the Tribunal requested further information from the applicant and on 26 May 2022, the representative submitted the following documents:

   ·Representative’s submission

   ·Nominee’s superannuation statements for 2019 – 2021

   ·Nominee’s CBA Bank Statements

   ·Invoices

   ·Financial Statement for year ending 2021

   ·Business Activity Statement October to December 2021, January to March 2022

   ·Support Letter

   ·Profit and Loss statement for the period 1/7/21 to 25/5/22

   ·Nominee’s Notice of Assessment for 2019, 2020 and 2021

   ·Nominee’s PAYG for 2019, 2020 and 2021.

2. In reaching a decision, the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the applicant on the basis of the material before it, pursuant to s.360(2)(a) of the Act.

3. 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

4. The issue in this case is whether the applicant meets the requirements for approval of the nomination under the Direct Entry nomination stream set out in reg 5.19(4), which is extracted in the attachment to this decision. For the nomination to be approved, all the requirements must be met.

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

5. 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.

6. Based on the information in the Department of Immigration's (the Department’s) file, the Tribunal is satisfied that the application was made on the relevant form. The relevant s.245AR(1) certification was also provided in the application form.

7. The Tribunal has been provided with additional evidence to substantiate that the applicant has demonstrated the continuing need for the position of a Primary Products Inspector (NEC) (ANZSCO 311399).

8. The Tribunal is in receipt of additional submission in support of the application upon review, including a statement outlining the genuine need to employ the nominee in the nominated position. In addition, the applicant has provided the Tribunal with a detailed overview of its business operations, its most recent Organisation chart, and submissions as to why the nomination is essential to the applicant’s business operations in the future.

9. Accordingly, the requirement in reg 5.19(4)(a) is met.

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

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

11. The Tribunal is in receipt of evidence (ASIC Current Company Extract) which confirms the applicant was registered on 2 February 1998 and remains registered and operational.

12. The applicant’s BAS and Financial Statements indicate that the applicant’s business is located in Cobram, Northern regional Victoria. Applicant director, Mr Adrian Conti, submitted to the Tribunal that the applicant “has a long-standing history in the [fruit] industry” and is a supplier of fresh produce to major supermarkets and local markets all across Victoria.

13. The applicant provided its Financial Statements and other evidence in regard to the operations of its business including the applicant’s Organisation chart as at February 2022. It shows that the applicant employs approx. 7 fulltime employees (excluding the applicant director Mr Conti). Of those employees, 4 are Australian citizens or Permanent Residents. The nominee’s position as Primary Products Inspector (NEC) (ANZSCO 311399) reports to the applicant director, Mr Adrian Conti. The applicant also engages between 6-20 workers on a casual basis to meet seasonal production demands.

14. On the basis of the evidence provided, the Tribunal finds that the applicant is actively, lawfully and directly operating a business in Australia.

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

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

16. 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. 

17. There is no evidence to demonstrate that the applicant undertakes labour hire activities.

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

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

19. 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. 

20. The Department found that the applicant failed to demonstrate that it met the requirements of Regulation 5.19(4)(d) as the applicant provided limited evidence of the current or future performance of the business. On 15 January 2019, the Department sent a Request for Further Information requesting additional Financial Statements. As the applicant provided no response in respect to the request, the Department was unable to determine the financial capacity and position of the applicant and whether the applicant had the capacity to employ the nominee for at least the next two years. Also, the Department found that there was a lack of evidence provided by the applicant to prove that the nominee was working for the applicant at that point in time. 

21. The Tribunal notes that the nominee’s Employment Agreement (dated 2016) provides a salary of $54,000 excluding superannuation.

22. The Tribunal was provided with the Form 1404 – Regional Sponsored Migration Scheme, dated 9 October 2017, RCB Shepparton, Department of Economic Development, Jobs, Transport and Resources.

23. The applicant also provided a copy of the nominee’s superannuation payments from the applicant since 2016 to 2022.   

24. The nominee’s most recent Employment Agreement states that the nominee will be employed on a full-time basis for at least two years, and that the employment contract does not expressly exclude the possibility of extending the period of employment.

25. The Tribunal has had regard to all the Financial Statements provided by the applicant, including the applicant’s BAS which indicates as follows:

Sales income $	Salaries $
Jan -March 2021	1, 549,241	37, 689
April - June 2021	1, 086, 708	29, 805
July– Sept 2021	504,068	40,271
Oct - December 2021	925,678	40,759
TOTAL	4, 065, 695	148, 524
Jan  – March 2022	1, 892, 467	43, 840
TOTAL	N/A	N/A

1. The applicant’s Financial Statements states as follows:

2020	2021	2022    (P & L to 25/5/22)
Total income	3,956,397	5,012,919	4,280,552
Wages	554,626	529,167	391,240
Superannuation	58,856	43,373	38,415
Total assets	1,718,981	1 911,019
Total liabilities	1,693,971	1,886,009

1. The financial information shows that the applicant has grown substantially despite the COVID-19 pandemic in 2021 in comparison to 2020. The Tribunal notes that the applicant has been more recently impacted by a severe shortage of casual workers (students etc), for fruit picking and processing. In relation to its current forecast to end May 2022, the applicant in the Tribunal’s assessment, is likely to achieve sales less than but close to its performance to financial year 2021. That said, on an annualised basis, the applicant’s sales in 2021, in comparison to 2022, look positive as indicated by the BAS for Jan-March quarters (which in 2022 show an increase of over $300,000 in sales). 

2. The Tribunal notes from the evidence provided upon review, that the applicant has employed and paid, the nominee since 2016, and continues to do so. The nominee provided her CBA Bank statements which show monthly salary payments to the nominee by the applicant. In addition, the Tribunal is in receipt of the nominee’s PAYG and Notice of Assessments (refer paragraph 42 below), which confirm the nominee’s employment status with applicant.  

3. On assessment of all the evidence provided, and the Tribunal is satisfied that the applicant has the capacity to employ the nominee in the nominated position for at least 2 years full time on the proposed salary, and the terms and conditions of that employment do not expressly exclude the possibility of an extension. 

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

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

5. 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.

6. The Tribunal has had regard to the nominee’s most recent Employment Agreement dated   which provides for a salary of $54,000. Upon the successful grant of this application, the nominee’s salary is subject to review each year according to the terms of the nominee’s Employment Agreement.

7. The applicant’s Organisation structure includes the following roles:

   1. Orchard Manager (currently being filled by Mr Conti, one of the applicant’s three directors);

   2. Fruit Grower;
   3. Fruit Inspector (nominee);
   4. Tractor Operator;
   5. Forklift Operator (x2);
   6. Orchard Hand;

   7. Casual pickers, pruners and harvesting and (6-20 depending on the time of year).

8. The Organisational Chart indicates that there are no equivalent Australian citizen or permanent resident employees performing the equivalent role of Primary Products Inspector in the same workplace at the same location as the nominee.

9. The nominated position of Primary Products Inspector directly reports to Mr. Conti.

10. The applicant provided the Tribunal with the nominee’s ATO Notices of Assessment, which show as follows:

$	2018	2019	2020	2021
PAYG	54,000	54,000	54,000	54,000
Notice of Assessment	52,748	52,647	52,806

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

   • the Payscale website (accessed 6 August 2022) indicates that a  Primary Products Inspector (also referred to as a Quality Control Inspector) in Australia earns between $45,000 - $71,000, or on average $25.02 per hour: /Salary. 
   • advertisements for various full time Primary Products Inspector (also referred to as a Quality Control Inspector) in a regional location listed on au.Indeed.com.au as at 6 August 2022 where a salary range is given is stated as being from $50,000 to $55,000 per annum): Refer: >

     The Tribunal is satisfied that the salary offered to the nominee is within the range stated in paragraph 43 above. Further, the Tribunal is satisfied that the terms and conditions contained in the nominee’s Employment Agreement will be no less favourable than those that would be provided to an Australian citizen or permanent resident performing equivalent work in the same workplace at the same location.

   • Accordingly, the requirements of reg 5.19(4)(e) are met.

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

   • Regulation 5.19(4)(f) requires that there is no adverse information known to Immigration about the nominator or person associated with the nominator; or it is reasonable to disregard any such information. For these purposes, ‘adverse information’ and ‘associated with’ have the meaning given in regs 1.13A and 1.13B.

   • There is no information before the Tribunal to indicate that there is adverse information known to the Department about the nominator or an associated person.

   • Accordingly, the requirements of reg 5.19(4)(f) are met.

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

   • Regulation 5.19(4)(g) requires that the applicant has a satisfactory record of compliance with the laws of the Commonwealth, and of each State or Territory in which the applicant operates a business and employs employees in the business, relating to workplace relations.

   • There is no information before the Tribunal to suggest that the applicant does not have a satisfactory record of compliance with workplace relations laws.

   • Accordingly, the requirements of reg 5.19(4)(g) are met.

     Tasks of the position, genuine need for the position and training requirements reg 5.19(4)(h)

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

     ·the tasks to be performed in the position will be performed in Australia and correspond to those of an occupation specified by the Minister (see legislative instrument IMMI 17/080, the occupation is applicable to the proposed employee in accordance with any specifications made in that instrument, and specified training requirements are met; or

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

   • The applicant must meet the requirements set out in the second dot point above as the nominated position and business is located in Cobram, Victoria, 3644, which constitutes regional Australia as set out in IMMI 16/045.  

   • The applicant submitted its Form 1404 dated 9 October 2017, RCB Shepparton, Department of Economic Development, Jobs, Transport and Resources.

   • The applicant’s business is a family business based in Cobram, Victoria and commenced in 1998.  The applicant operates two orchards – one Cobram and one in Griffith, NSW. The applicant’s properties and packing shed processes and packs in excess of 3,000 tonnes of fruit for sale each season. The applicant grows and processes the fruit and supplies the produce to supermarket chains such as Aldi, Coles, Woolworths and others.

   • The nominated position of Primary Product Inspector (ANZSCO 311399) is specified in the Short-term Skilled Occupation List and according to the specifications made in IMMI 17/080, the role is inapplicable if the position is not located in regional Australia. As noted at paragraphs 53-55 above, the role is based in regional Australia.

   • The applicant provided the nominee’s detailed Position description which is consistent with the duties and responsibilities outlined in the Australian and New Zealand Standard Classification of Occupation – ANZSCO - description of a Primary Product Inspector NEC (ANZSCO 311399). Further, the applicant provided the Tribunal with samples of work undertaken by the nominee to align with the ANZSCO tasks.

   • The nominee’s occupation group under ANZSCO covers Primary Products Inspectors not elsewhere classified. Specified as Skill Level:2, the occupations in this group includes Fruit and Vegetable Inspector. ANZSCO states that most occupations in this unit group have a level of skill commensurate with the qualifications and experience of AQF Associate Degree, Advanced Diploma or Diploma (ANZSCO Skill Level 2) or at least three years of relevant experience which may substitute for the formal qualifications listed above. The Tribunal notes that the nominee has been employed by the applicant since January 2016 – i.e. for over 6 years. 

   • The Tribunal also notes that this occupation belongs to Short-term Skilled Occupation List (STSOL). STSOL consists of the list of the occupations which are high in demand in Australia.

   • The applicant submitted that it engages the nominee as its sole employee in the role of Primary Product Inspector (Fruit Inspector), and that the nominee has been employed by the applicant in the role since January 2016. The nominee is based at the applicant’s Cobram site. Applicant director Mr Conti, submitted to the Tribunal that….”the demands of the business in respect of marketing and relationship management with both suppliers – of chemicals, fertilisers, packaging, and with purchasers of our fruit – the marketing groups and major buyers – is increasingly demanding”. Thus, Mr Conti stated, the role of the nominee is critical to the applicant’s ability to deliver its products effectively to market. The applicant’s customers have strict “cosmetic” requirements on the produce including minimum size, dimensions, shape, quality and labelling. If the applicant fails to comply with customer requirements, the applicant is subjected to financial penalties.

1. Director Mr Conti also submitted to the Tribunal that ……aside from growing, packing and selling our own fruit, I have employed a new growth strategy in the last couple of years to try to increase turnover. Specifically, I have taken on contract packing of fruit from external growers. This involves packing of other growers’ fruit from our region and involves a significant increase in the due diligence required – quality inspections, dispatch reports for Coles & Woolworths, etc. We pack to a certain specification after discarding the waste and processing the fruit.

   The nominee’s role is vital for this process as she has to ensure the additional fruit is
   complying with specifications of the purchaser/customer (Coles, market etc) and
   that our record keeping system is up to date and compliant with regulations as the
   purchaser of the fruit and the grower are keen to ensure we are compliant and
   keeping accurate records of same.

2. Further the applicant submitted, the role of Fruit Inspector is clearly needed for the applicant’s capacity to grow, and to meet the production and sale of fruit and the regulatory and compliance requirements. The applicant provided samples of the businesses invoices to evidence the implementation of the applicant’s strategy of external growers feeding work to the applicant in addition to its own orchards. The Tribunal was also provided with samples of the nominee’s work, including dispatch reports and reports with supermarkets which demonstrate that the nominee is inspecting the fruit in line with regulatory and compliance requirements.

3. The Tribunal has had the benefit of considerable additional information upon review. Having reviewed all the submissions provided, both as part of the original application and to the Tribunal on review, and having regard to all of the above, the Tribunal is satisfied that the duties of the nominated position do correspond with those listed within the relevant instrument for the designated occupation, and that there is a genuine need for the paid position under the applicant’s direct control which cannot be filled by a locally resident Australian citizen or permanent resident.

4. In accordance with the requirements set out in Regulation 5.19(4)(h), the Tribunal is satisfied that in accordance with: 

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

   ·r 5.19(4)(h)(ii)(B), that as noted in paragraphs 53-63 above, the applicant has a genuine need for the nominee to be employed as a paid employee in the position under the nominator’s direct control;

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

   ·r5.19(4)(h)(ii)(D), the tasks of the position of Primary Products Inspectors (ANZSCO: 311399) correspond to those of an occupation specified in the relevant legislative instrument, IMMI 17/080;

   ·r5.19(4)(h)(ii)(E), the occupation is applicable to the proposed employee in accordance with the specification of the occupation as Primary Products Inspectors (as IMMI 17/080 per the occupational caveats, the role is based in regional Australia); and

   ·r5.19(4)(h)(ii)(F), that a regional certifying body (Shepparton, Department of Economic Development, Jobs, Transport and Resources, Victoria), is located in the same State or Territory as the location of the position.

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

6. 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

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

   Susan Reece Jones
   Member

   
   
   

   ATTACHMENT - Extracts from the Migration Regulations 1994

   5.19Approval of nominated positions (employer nomination)

   …

   (2)The application must:

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

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

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

   …

   Direct Entry nomination

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

   (a)the application for approval:

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

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

   (b)the nominator:

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

   (ii)      directly operates the business; and

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

   (d)both of the following apply:

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

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

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

   (i)       are provided; or

   (ii)      would be provided;

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

   (f)either:

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

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

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

   (h)either:

   (i)       both of the following apply:

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

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

   (B)either:

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

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

   (ii)      all of the following apply:

   (A)the position is located in regional Australia;

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

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

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

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

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

   (F)a body that is:

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

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

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