JULIET HOLDINGS PTY LTD AS THE TRUSTEE FOR THE BEAU DISCRETIONARY TRUST (Migration)

JULIET HOLDINGS PTY LTD AS THE TRUSTEE FOR THE BEAU DISCRETIONARY TRUST (Migration) [2018] AATA 2728 (21 June 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  JULIET HOLDINGS PTY LTD AS THE TRUSTEE FOR THE BEAU DISCRETIONARY TRUST
CASE NUMBER:  1613116
DIBP REFERENCE(S):  BCC2015/3679993
MEMBER:Alan McMurran
DATE:21 June 2018
PLACE OF DECISION:  Sydney
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Statement made on 21 June 2018 at 4:19pm
CATCHWORDS
Migration – Direct Entry nomination – Open Water Diving Instructor – Whether there is a genuine need for the nominator to employ the nominee – Where applicant has been working in the position for 3 years – Where a large portion of the nominator’s clients require instruction in native language - Genuine business need to employ bilingual employees - Decision set aside and substituted
LEGISLATION
Migration Act 1958 (Cth)
Migration Regulations 1994 (Cth), r 5.19(4)
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration on 2 August 2016 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 4 December 2015. 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 (r.5.19 (3)) stream 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, seeking to satisfy the criteria in the Direct Entry Nomination stream. The nominated position is for that of an Open Water Diving Instructor (ANZSCO 452311).
The delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19(4)(a) of the Regulations because the application for approval has not identified a need for the nominator to employ a paid employee to work in the position of diving instructor, under the nominator’s direct control.
The applicant appeared by its two directors, Amanda and Beau McCormack, before the Tribunal on 21 June 2018 who were authorised to give evidence and present submissions. The Tribunal also received oral evidence from the nominee, Mr Yau Siu Nam.
Its registered migration agent represented the applicant in relation to the review.
Background
The applicant is a corporation trading in Australia since registration on 9 December 1997. The applicant is a trustee company for a family discretionary Trust, details of which have been provided with the application, and in respect of which the Trust was established on 25 June 2002. The applicant carries on business under a trading name, Ambeau Sport & Recreation from an address at Brinsmead, Cairns in northern Queensland.
The applicant provides recreational activities including open water diving instruction from its base in Cairns. The business attracts primarily tourists and holidaymakers both locally and from overseas. Overseas tourists include visitors from China and Korea, many of whom have only limited English or no English-speaking ability at all. It is necessary therefore in order to engage with such tourists, that the nominator has the ability to communicate with these visitors in their native language. This requires bilingual skills from its employees, in addition to the skills necessary for providing training and instruction in recreational and commercial open water diving.
The occupation of Diving Instructor (open water) is on the list of nominated occupations specified in instrument IMMI 16/060. This Instrument applies to the specification of occupations nominated under Regulation 5.19 for applications made on or after 1 July 2015, but before 1 July 2016. The occupation remains on the list and is current as at the date of decision.
The Australian and New Zealand Standard Classification of Occupations[1] describes the occupation as follows:
[1] ANZSCO first edition, revision 1
UNIT GROUP 4523 SPORTS COACHES, INSTRUCTORS AND OFFICIALS

SPORTS COACHES, INSTRUCTORS AND OFFICIALS coach, train and instruct participants in sports, and officiate at sporting events.
Indicative Skill Level:
Most occupations in this unit group have a level of skill commensurate with the qualifications and experience outlined below.
In Australia:
AQF Certificate III including at least two years of on-the-job training, or AQF certificate IV (ANZSCO Skill Level 3)

In New Zealand:
NZ Register Level 4 qualification (ANZSCO Skill Level 3)

At least three years of relevant experience may substitute for the formal qualifications listed above. In some instances relevant experience and/or on-the-job training may be required in addition to the formal qualification.
Registration or licensing may be required.
452311 DIVING INSTRUCTOR (OPEN WATER)

Trains and instructs recreational or commercial open water divers in diving techniques, safety and the correct use of diving equipment. Registration or licensing is required.
Skill Level: 3
Specialisations:
Dive Master
Scuba Instructor
Snorkelling Instructor
Surface Supply Breathing Apparatus (SSBA) Instructor
At the hearing, the Tribunal discussed the ANZSCO specifications set out above with the applicant’s representative, and the applicant’s need for an employee in the occupation for a minimum period of two years.
If the applicant meets all the requirements in the Regulation and subregulation 5.19(4) for the direct entry stream nomination, then the appropriate course is to remit the application to the Department with the direction that the applicant meets the requirements. Alternatively, if the applicant does not meet any one of the requirements, then the Department’s decision must be affirmed.
The Tribunal had available to it the Department’s file[2], and the Tribunal’s file together with the most recent submissions received from the applicant by letter dated 23 February 2018 and the oral evidence received at the hearing.
[2] BCC2015/3679993
The nominee, Yau Siu Nam, is a 33-year-old Hong Kong citizen temporarily in Australia and currently on a Bridging visa, with work rights. The nominee holds a current PADI[3] license, and SS I certification [4] which requirements are mandatory for employment as open water diving instructors.
[3] Professional Association of Diving Instructors
[4] Scuba Schools International
The applicant has produced a current organisation chart showing it employs eight open water dive instructors who are English speaking, three bilingual English and Korean speaking instructors, and three bilingual English and Chinese instructors (including the nominee). The nominee has worked for the applicant as a dive instructor since 2015, working as at the hearing date 38 hours per week. The nominee stated that the engagement commenced in or about December 2014 following an interview for a casual employee.
In support of the application, the nominator has addressed in its most recent submissions the concerns raised by the Departmental officer. The concerns raised in particular the nature and size of the business and the ethnic origin of the tourist clientele. The applicant has provided information as to how these factors might affect the need for the applicant to employ a bilingual Chinese speaking dive instructor, on a full-time basis for a minimum period of two years.
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 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 approval of the nomination, all the requirements must be met.
The nomination requires that the application for approval identify a need for the applicant to employ a paid employee to work in the position of open water dive instructor under the nominator’s direct control.[5]
[5] 5.19(4)(h)(ii)(B)
The Tribunal is of the view that this requirement means more than supplying a mere statement to the effect that the specified employment is required. Arguably, something of a qualitative nature identifying a “need” (which is not defined) is required identifying facts, which establish that a person is both necessary and able to work under the nominator’s direct control. This involves an analysis of the relationship between the nominator and the employee concerning the “direct control” criterion and the facts showing why it is the employee is necessary for the role.
The analysis of the “need” and the “control” factors includes relevantly the nature and scale of the business operation (as was identified by the Departmental officer) and the ability to engage the employee for the minimum period of two years. These matters were discussed at hearing as set out below.
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.
The Tribunal finds on the information available to it that the application for approval:
·was made on the approved form 1395, or 1395 (Internet) for post 23 March 2013 applications, and was accompanied by the fee prescribed in r.5.37; and
·has identified a need for the nominator to employ a paid employee to work in the position under the nominator’s direct control, as set out below.
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 applicant is actively, lawfully and directly operating a business in Australia. The Tribunal finds on the available information that:
·the applicant is actively and lawfully operating a business in Australia as evidenced by the most recent ASIC extract, and has been doing so since at least 1997 in the Cairns regional area;
·the applicant directly operates that business utilising a discretionary trust of which the applicant is the trustee;
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.
The principal activity of the applicant is providing recreational dive services as a contractor for a tour operator, Reef Magic Cruises Pty Ltd. The applicant does not hire out its staff or make them available for a fee to other contractors. The applicant is not a labour hire entity and the nominated position is solely within the applicant’s nominated business.
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 the terms and conditions of that employment do not expressly exclude the possibility of an extension.
The applicant has produced a copy of the employment contract entered into with the nominee. The applicant is the subject of an Enterprise Bargaining Agreement, which provides for an Award and terms and conditions of employment. The written contract does not expressly exclude an extension of the employment agreement and sets out an annual salary of $48,155 per annum, exclusive of GST. The salary is within the threshold for award employees working as specialist open water diving instructors.
The agreement also specifies that the position “will be permanent, full-time and ongoing for not less than two years from the date of approval” of the nominee’s visa. The relevant provision in the agreement referring to probation at paragraph 2 is contradictory, but in any event, the directors at the hearing have confirmed the nominee has been in the position already for approximately 3 years and they wish to retain him for as long as possible. The Tribunal finds that there is no probationary period still relevant for the purposes of the engagement of the nominee by the applicant.
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.
The directors gave evidence that there are at least 4 Australians currently working for the applicant as diving instructors. Those employees are all paid based on the same Award, which differentiates rates of pay according to seniority. The nominee is paid according to his seniority and whether he is the senior dive instructor for particular charters or tours in which he participates for the applicant.
The Tribunal finds it is satisfied that the nominee is paid commensurately with other Australian employees doing the same work in the same location. The applicant has provided evidence including current payslips for the nominee’s current salary exclusive of superannuation.
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 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 rr.1.13A and 1.13B.
The Tribunal finds that on the information available there is no adverse information known against the applicant / nominator. The Tribunal notes the applicant’s submission that there is no adverse information known and from the Tribunal’s perspective, it has no reason to doubt that the information is correct.
The directors were asked whether they had ever been prosecuted either by the regulator (ASIC) or in respect of breaches of OH&S legislation or an account of any other regulation or requirement. The director stated that since commencement in 1997, the applicant had never been prosecuted. The directors were not aware of any adverse basis such as discrimination, migration fraud, criminality or financial peril (insolvency) in respect of which the applicant was liable.
The Tribunal finds that there is no reason to doubt the directors’ information or that there is any adverse information concerning the applicant which might affect the nomination, and known to Immigration.[6]
[6] now Department of Home Affairs
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, and of each State or Territory in which the applicant operates a business and employs employees in the business, relating to workplace relations.
On the information available, the Tribunal is satisfied that there is no evidence to demonstrate that the applicant has not been compliant with Australian workplace laws and regulations in the workplace where the nominee operates.
The directors gave evidence that the dive industry is subject to a code of practice in Queensland[7], supervised by the Queensland Workplace Health and Safety Department .The directors gave evidence of their awareness of the code and the importance of compliance in light of the particular risks and safety requirements for the dive industry. The requirements in the code include a provision for ensuring non-English speaking divers are communicated with in a language “easily understood by the diver”[8] .
[7] The Recreational Diving, Recreational Tactical Diving and Snorkeling Code of Practice (Qld)
[8] Code at para 3.4, p19 of 63;
The Tribunal finds the evidence demonstrates not only an awareness by the applicant of the requirements, but active steps taken by it to employ diving instructors who can converse in a language easily understood by participants. Accordingly, the Tribunal finds that the applicant has a satisfactory record of compliance.
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 (ANZSCO 452311) as set out above[9];
·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:
i)Located in regional Australia; and
ii)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;
ii)The tasks of the position correspond to those of an occupation specified in the relevant legislative instrument[10], 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.
[9] see legislative instrument IMMI 16/060 for the nominated occupation of diving instructor (open water).
[10] IMMI 16/060
The applicant made submissions about the need for the position prior to the hearing. In an email on 4 August 2016, the applicant in responding to the decision, asserted that the applicant’s business was “long-standing” and that the nominee had been performing the role for a continuous period from June 2015.
The application points to a gross payroll in 2015 of $476,342 and where the applicant now employs 4 Australian citizens or permanent residents (not including the directors themselves who are Australian citizens), 2 overseas students and 2 working holidaymakers (including the nominee). In the more recent submission on 23 February 2018, the applicant points to the growth of the applicant’s business, which in peak season from December to end February, now employs 14 open water dive instructors, 6 of whom are bilingual, 3 in the Korean and English languages and 3 in the Chinese and English languages.
The applicant points to the seasonal nature of the applicant’s business which conducts scuba diving activities and which requires implicitly significant safety considerations. The applicant said that it contracts directly with Reef Magic, which operates two vessels, one conducting daily tours to the Great Barrier Reef and the second engaged in charter. Both vessels are large catamarans (30 m) and which convey approximately 240 people at a time. On any one day, the applicant estimates that at least 10% of the tourists originate from China. The applicant’s contract requires that the applicant provide dive services for the tour operator, which includes all aspects of the diving activity from training, equipment and supervision in the water.

There is plainly a need for safety briefings to be conducted in a language understood by the clientele, and as required by the workplace code, such briefings being essential for tourists unfamiliar or inexperienced in recreational diving. The applicant points to the requirement under work place health and safety laws for clear and correct translations to non-English speaking customers. The applicant further points to the fact there is increasing growth in clientele from China and Hong Kong, due to a direct flight link between Cairns, Hong Kong and mainland China. The applicant says that growth has increased from 6.19% of total customers in 2015 to 10.13% in 2017. That reflects approximately 25 clients per day emanating from Hong Kong and China. The applicant said that during the peak season, there may be up to 50% of the tour being non-English speaking and predominantly from China. Of those tour clients, the applicant asserts the majority speak no English or insufficient English to understand the necessary safety briefings and instruction.
There are currently 3 instructors including the nominee who perform that role. The application proposes that the nominee will become a permanent employee of those 3 currently employed. The Tribunal asked questions as to why it was necessary to engage the employee full-time, when 3 casual employees have been able to cover the workload to date.
The directors responded along the following lines. They said it takes time (approximately six months) for each dive instructor to become familiar with the operation of the tour and the applicant’s management and engagement with Reef Magic for the daily tours. There are at least four on board activities managed by the applicant on the vessel, in which the tourist can participate. These are recreational scuba diving, sea bob, instructional diving and snorkelling. Some of the dive instructors can only supervise or manage one or other of the activities. The directors said the nominee is their only employee who can manage all activities at a professional level and who has acquired significant experience over the past three years in doing so. The nominee is trusted by the skipper of the vessels to manage the on-board diving activities and engages with them when required, reporting to the directors at all times. The director said the majority of the dive instructors are casual, and do not remain in employment for long periods, particularly as the activity is largely seasonal, and they may leave at the end of the peak periods. This has not happened with the nominee who has remained throughout for a consecutive period of three years and wishes to continue doing so. As such, he has become a valuable employee and very important to the directors as he does not require a great deal of supervision or management for the activities themselves, although he reports to them directly and is accountable for the company’s activities managed by himself when he is on the vessel.
The director said that they would have to replace the nominee if he is unsuccessful in his visa application, as they are unable to carry out all tasks themselves and it would not be efficient or economical for either or both directors to have to attend the daily tours or charters arranged with Reef Magic. The directors have other duties including administration, marketing and arranging services for other dive contractors as part of their business. The purpose of the nominee is to engage a “hands-on” instructor who can work relatively unsupervised and with responsibility and who does not need to be continually retrained as with other casual dive instructors who come and go on a seasonal basis. The directors pointed to the slow but steady growth of the business since commencement and the fact that they anticipate further growth of the tourist trade from China, which is the largest single source of growth in the industry.
The directors gave evidence that they regularly advertise on social media for dive instructors. They said they regularly receive applications (at least one a week) from visitors on short term tourist visas. They said this is helpful for the business in peak periods, but does not help for long-term engagement, as frequently the applicants are inexperienced and need training and close supervision, and then leave a few months after engagement. They said finding bilingual staff was particularly difficult and there are very few Australians who are either available or who respond to the advertisements.
The Nominee
The nominee also gave evidence at the hearing. He said that he had come to Australia on a working holiday visa in 2014, and had answered an online advertisement in about December 2014 and attended an interview for the position of casual dive instructor.
The nominee said that he had started working casually four or five days a week and was now working 38 hours per week on a seven-day roster. He said that he spends all his time on the Reef Magic vessels, supervising the diving activities on board. He said that he converses with the Chinese tourists in their native language, conducting the safety briefings and instruction for the diving activities. He said that in his experience, when he is on board, approximately 80% of the Chinese tourists participate in the diving activities. He also agreed that there were regularly 25 Chinese tourists on each vessel, and more during peak season. The nominee confirmed that he lives locally, and that he had signed an employment agreement with the nominator. He confirmed his qualifications and experience and ability to carry out a range of activities as required by the nominator.
Findings - Summary
Having considered this information, the Tribunal finds it is satisfied that the tasks required for the occupation and as set out in ANZSCO are those performed by the nominee, and as described by the directors for the nominator.
The Tribunal finds the tasks performed in regional Australia[11] in the Cairns region, and the regional certifying body[12] has supported the nomination. A copy of the certificate from the certifying authority is included with the application and states there is a genuine need for the nominator to employ a paid employee to work in the position of dive instructor under the nominator’s direct control. The certificate states an Australian citizen or permanent resident living in the same local area cannot fill the position, and that the terms and conditions of employment are no less favourable than those on offer to an Australian citizen or permanent resident performing work at the same location.
[11] IMMI 13/049
[12] Chamber of Commerce and industry Queensland
The Tribunal finds there is a genuine need to employ a paid employee to work in the position as diving instructor (open water). The Tribunal also finds on the information presented that the employee (nominee) will work in a position under the direct control of the owners of the business being the directors of the applicant. The Tribunal is satisfied an Australian citizen or permanent resident living in the same local area cannot fill the position. There is evidence by the advertising referred to in the information provided by the applicant and the responses it receives on a regular basis to such advertising. The certification from the regional body reinforces this finding.
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.
Alan McMurran
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
(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).

[2018] AATA 2728

21 June 2018

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