Mammone Steven Sebastian and Angela and Ross Sebastiano Partnership (Migration)

Mammone Steven Sebastian and Angela and Ross Sebastiano Partnership (Migration) [2022] AATA 3010 (4 August 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mammone Steven Sebastian and Angela and Ross Sebastiano Partnership
REPRESENTATIVE:  Ms Lena Hung
CASE NUMBER:  1913374
HOME AFFAIRS REFERENCE(S):          BCC2018/1065207
MEMBER:C. Packer
DATE:4 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 4 August 2022 at 6:43pm

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 –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
Migration Regulations 1994, r 5.19

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 Home Affairs on 9 May 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).
The applicant applied for approval on 6 March 2018. The requirements for the approval of the nomination of a position in Australia are found in reg 5.19 of the Regulations which contains two alternative streams: a Temporary Residence Transition nomination stream (reg 5.19(3)) and a Direct Entry nomination stream (reg 5.19(4)). If the application is made in accordance with reg 5.19(2) and meets the requirements of either stream, then the application must be approved. If any of the requirements are not met then the application must be refused: reg 5.19(5).
In this case, the applicant has applied for approval of a nomination, seeking to satisfy the criteria in the Direct Entry nomination stream.
The delegate refused the application on the basis the applicant’s nomination has failed to demonstrate there is a genuine need for the position, as required by sub-subparagraph 5.19(4)(h)(ii)(B).
The applicant was represented in relation to the review. Based on the large volume of documents and information provided in the review, the Tribunal proceeded to a decision without a hearing.
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 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)
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 Tribunal finds the application made on 6 March 2018 and Departmental documents show the application was in the approved form, accompanied by the prescribed fee, and included 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. The application nominated the position of Accountant (General)- 221111, located at Wood Wood Victoria 3596. The wage offered in the application was $62,500 plus super. The nominee named is Thi Minh Hai Nguyen. The nominee has been employed at the orchard business since 2018: A PAYG summary and ATO documents show the nominee was paid a wage of $62,556 in 2019, 2020 and 2021 fys;
The Tribunal has given limited weight to the Regional Certifying Body of Swan Hill and Mildura Region approval dated 13 March 2018, now over four years ago, that the nomination ‘satisfies’ (amongst other things) the requirement that:
- there is a need for a paid employee in the nominated position within the business activities of the nominating employer
The application had limited supporting documents. Subsequently the applicant provided a large volume of supporting information and documents to the Tribunal.
The documents and information includes:
1. ASIC Historical extract of Mammone Orchards Pty Ltd
2. Evidence concerning lawful and active operation:
2.a. Financial Statement FY2021 [for partnership] [loss= $529,873] [depreciation= $1,532,433]
2.b. Financial Statement FY2020
2.c. Business Tax Return FY2021
2.d. Business Tax Return FY2020
2.e. Most recent 24 months ATO-lodged BAS   [4/2020-3/2022]
2.f. Extracts of recent invoices and work orders showing active trading
Operations
3. Updated Organisation Structure for Business:
3.a. Organisational Chart
3.b. Labour Hire Contract
4. Employment Contract for nominee Thi Minh Hai Nguyen [$62,500 plus super][5 March 2018]
5. Evidence concerning genuine need for position:
5.a. Statement from Mammone Orchards dated 28 June 2022
5.b. Position Description for nominee Thi Minh Hai Nguyen
5.c. PAYG summary/ATO for nominee Thi Minh Hai Nguyen
[2019, 2020, 2021: $62,556] [2022 to 31/3/2022 $46,918]
5.d. Payslip extracts for nominee Thi Minh Hai Nguyen [30/4/2022 shows wage $62,556] [from 1/7/2021]
5.e. Extract of Annual Budget Reports FY2021 and FY2022 drafted and prepared by nominee
5.f. Extract sample of monthly Budget Reports drafted and prepared by nominee
5.g. Extract of Annual Budget Meeting Minutes dated 20 June 2021 prepared by nominee
5.h. Extracts of Monthly Budget Meeting Minutes prepared by the Nominee
5.h. Minutes of Management Review Meeting attended by nominee on 24 September 2021
5.i. Extract samples of weekly Labour Hire Staff Time Sheets and Contact Mirrors overseen by nominee
5.j. Extracts of relevant policies reviewed for compliance by nominee
5.k. Evidence of recent business expansion activities and capital
investments of the business warranting financial viability assessments from the nominee
5.l. Evidence of Internal and External audits which includes participation and engagement from the nominee
5.m. Confirmation of Xero accounting system subscription
5.n. Photograph extracts of nominee in office work space
6. Evidence of updated market rate evidence:
6.a. Updated Job advertisement extracts
6.b. Updated salary survey extracts
7. Form 1404 certified by the Regional Certifying Body of Swan Hill and Mildura Region dated 13 March 2018
8. Evidence of labour market testing conducted ahead of appointing nominee
In sum, the nominee works as an internal accountant in the business, for a current salary of $62,556.
The business claimed a loss of $529,873 in FY2021, however the Tribunal notes that the business also claimed a significant depreciation total of $1,532,433.
In light of the long employment of the nominee as an accountant in the business, supported by the financial and policy documents that show the nominee’s activities and tasks, together with the financial documents that show the business is ongoing and lodging BAS and tax returns- the Tribunal finds that the application has identified a need for the nominator to employ an identified person as a paid employee to work in the position under their direct control. Accordingly, 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)
Regulation 5.19(4)(b) requires that the applicant is actively, lawfully and directly operating a business in Australia.
ASIC Company Extracts show the company Mammone Orchards Pty Ltd is registered. A partnership financial statement 2021, Business Tax return 2021, BAS statements, extracts of recent invoices and work orders showing active trading- show the business is operating. In light of the foregoing discussion and financial and other documents, the Tribunal is satisfied the business has continued to operate throughout the pandemic and throughout 2021-2022. In sum, in light of the foregoing discussion and based on the material before it, the Tribunal is satisfied the applicant is actively and lawfully operating as an orchard business in Australia. Accordingly, the requirements in r.5.19(4)(b) are met.
Position is not labour-hire: reg 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. However, the information before the Tribunal does not show the business activities include those relating to labour hire to an unrelated business. Accordingly, the requirement in r.5.19(4)(c) does not apply.
Term of employment of the visa holder: reg 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 nomination was made on 6 March 2018 and refused 9 May 2019, and the review has been with the Tribunal for over three years. The nominee’s ATO documents and payslips show the nominee has been working in the position and paid for full-time work in the past several financial years. A signed Employment Contract on 5 March 2018 shows the nominee would be paid a wage of $62,500 plus super. The contract’s terms satisfy the requirements.
In sum, based on the material before it, the Tribunal is satisfied the nominee would be employed in the nominated position for at least two years full time, and the terms and conditions of that employment do not expressly exclude the possibility of an extension. Accordingly, the requirements in r.5.19(4)(d) are met.
No less favourable terms and conditions of employment: reg 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 Tribunal has given limited weight to the Regional Certifying Body of Swan Hill and Mildura Region approval dated 13 March 2018, now over four years ago, that the nomination ‘satisfies’ (amongst other things) this requirement.
Payscale[1] shows the average base pay in Melbourne for an accountant is AU$60,755. A signed Employment Contract on 5 March 2018 shows the nominee would be paid a wage of $62,500 plus super.
[1] 4 August 2022 [>
In sum, the Tribunal is satisfied, based on material before it, that the terms and conditions applicable to the position will be no less favourable than those that are/would be provided to an Australian citizen or permanent resident performing equivalent work in the same workplace at the same location. Accordingly, the requirements in r.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 applicant/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. Based on information before the Tribunal there is no adverse information known to the Department about the nominator or a person ‘associated with’ the nominator. Accordingly, the requirements in r.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. Based on information before the Tribunal there is no adverse information that suggests the applicant does not have 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. Accordingly, the requirements in r.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. In this case, the applicant seeks to satisfy r.5.19(4)(h)(ii) which requires 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 Regional Certifying Body of Swan Hill and Mildura Region approval dated 13 March 2018 advised it was satisfied about the matters (albeit using different wording) in r.5.19(4)(h)(ii)(B) and (C).
Based on the information before it, the Tribunal finds:
- (A) The position and business are located in Wood Wood 3596 that is ‘regional Australia’.
- (B) The Tribunal has given limited weight to the Regional Certifying Body of Swan Hill and Mildura Region approval dated 13 March 2018 that it is ‘satisfied’ about the matters in sub-subparagraph (B). Nonetheless, based on the large volume of material before the Tribunal provided after the application, and in light of the foregoing discussion, the Tribunal is satisfied there is a genuine need to employ a paid employee to work in the position under the nominator’s direct control.
- (C) The Tribunal has given limited weight to the Regional Certifying Body of Swan Hill and Mildura Region approval dated 13 March 2018 that it is ‘satisfied’ about the matters in sub-subparagraph (C). The nominator discussed the lack of suitable Australians to fill the position, and the need for the nominee who has subsequently worked in the business since 2018 as an accountant. Based on the material before the Tribunal, and in light of the foregoing discussion, the Tribunal is satisfied the position cannot be filled by an Australian citizen or permanent resident who is living in the same local area.
- (D) The tasks to be performed in the position as set out in the position description correspond to the tasks of an accountant- 221111 which is an occupation specified by the relevant instrument.
- (DA) Based on the material before the Tribunal, the Tribunal is satisfied there are no additional applicability requirements for that occupation.
- (E) Business documents and references show the business and the nominated occupation are located in Wood Wood 3596. Based on the material before the Tribunal, the Tribunal is satisfied the business operated by the nominator is located at that place.
- (F) The Regional Certifying Body of Swan Hill and Mildura Region approval dated 13 March 2018 states that it is ‘satisfied’ about the matters mentioned in paragraph (e) and sub-subparagraphs (B) and (C).
Accordingly, the requirements in r.5.19(4)(h) are met.
Conclusion
Based on the findings above, the Tribunal is satisfied that the applicant meets the requirements of reg 5.19 for approval of the nomination of the position in Australia.
DECISION
The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.
C. Packer
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).

[2022] AATA 3010

4 August 2022

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Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Appeal