Maya Jafari Pty Ltd (Migration)

[2022] AATA 3146

Maya Jafari Pty Ltd (Migration) [2022] AATA 3146 (23 August 2022)

DECISION RECORD

DIVISION:  Migration & Refugee Division

APPLICANT:  Maya Jafari Pty Ltd

CASE NUMBER:  1914087

HOME AFFAIRS REFERENCE(S):           BCC20172100261

MEMBER:  Peter Emmerton

DATE:  23 August 2022

PLACE OF DECISION:  Adelaide

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

Statement made on 23 August 2022 at 2:40pm

CATCHWORDS
MIGRATION–nomination – Direct Entry stream – Youth Worker – 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 –applicant lawfully operating a business in Australia – decision under review set aside

LEGISLATION

Migration Act 1958, ss 65, 245AR
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 16 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).

1. The applicant applied for approval on 14 June 2017. 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).

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

1. The delegate refused the application on the basis the applicant’s nomination did not satisfy reg 5.19(4)(d)(i) of the Regulations because they were not satisfied that it had not been demonstrated that the nominator had the financial capacity to ensure that the employee would be employed on a full-time basis in the position for at least two years.

1. The applicant represented by Ms Maya Jafari, Director, representing Maya Jafari Pty Ltd, appeared before the Tribunal, via video, on 16 August 2022 in a combined hearing with MRT file ref. 1916269 to give evidence and present arguments.

1. The applicant was not represented in relation to the review by a registered migration agent.

1. 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

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

1. In determining the applicant’s claims the Tribunal must first make findings of fact on material matters in dispute. This may involve an assessment of credibility and in so doing, the Tribunal is aware of the need and importance of being sensitive to the circumstances and the difficulties applicants often face before the Tribunal in their individual circumstances.

1. The applicants rely on the evidence given before the Tribunal together with written submissions and supporting evidence provided to the Tribunal and previously to the department.

1. The nominating entity runs a modest youth support agency including youth at risk and NDIS clients. The organisation is based in regional Queensland.

1. The visa applicant’s substantial responsibilities, formal qualifications, attributes, and extensive experience align with the duties of Youth Worker, ANZSCO 411716, Skill level 2.

1. The visa applicant possesses a Bachelor of Psychological Science, a Diploma of Business Management and Leadership, a Diploma in Counselling, a Diploma in Child, Youth and Family Intervention and a Certificate in Teaching English to Adults.

1. The Tribunal is cognisant of the significant challenges associated with recruiting and retaining suitably experienced staff and management working in such specialist activities, particularly in remote or regional locations.

The application is compliant: r.5.19(4)(a)

1. 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.

1. The Tribunal finds that the application was lodged electronically using the elodgement facility. The nomination was made under the ENS Direct Entry stream (r.5.19(4)(h)(ii)) and the relevant fee was paid. The Tribunal finds the applicant meets r.5.19(2).

1. The Tribunal notes that the business is operating on a modest basis with the intention to employ an additional staff member as well as continuing to operate in conjunction a contractor colleague. This was discussed during the hearing and the Tribunal is satisfied that the intention to hire is genuine, the business is expanding, and the necessary future employee was identified. The Tribunal explored the reason for the current Pty Ltd business structure which was stipulated by the engaging Queensland Government agency. This structure is familiar to the Tribunal.

1. The Tribunal acknowledges the Letter of Engagement between the nominating entity and Carelink Queensland to supply youth work support services. The Tribunal acknowledges that finding and subsequently retaining an individual with the visa applicant’s experience, qualifications and competencies may be very challenging. The Tribunal accepts as fact that there is a need to have somebody in this role with specific skills needed to service the Letter of Engagement terms and future contractual obligations.

1. The Tribunal is satisfied that the application has identified a need for a paid employee to work in the position of Youth Worker ANZSCO 411716, under direct control of the nominator. The application has included the required written certification relating to conduct that contravenes s.245AR(1). 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)

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

1. The Tribunal has been provided with a substantial range of Financial documentation including most recently the ATO Taxation Returns for FY 2020 and FY 2021, Profit and Loss and Balance Sheet documents for the corresponding period, all of which correlated in an appropriate manner.

1. ASIC Registration details for this business entity were researched by the Tribunal. The Tribunal checked the status of the listed ABN, 79 612 251 500 and perused the company web site and online presence. It was first registered 6 May 2016, is currently registered and is due for review on 6 May 2023. The Tribunal is satisfied that the applicant is actively,

lawfully and directly, operating a business in regional Australia. Accordingly, the requirement in r.5.19(4)(b) is met.

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

1. 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 Tribunal finds that r. 5.19(4)(c) is not relevant to the current nomination.

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

1. 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.

1. The Tribunal notes that the delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19(4)(d)(i) as they were not satisfied that the nominator had demonstrated that the nominee would be employed on a full-time basis for at least 2 years under the direct control of the nominator. The delegate formed the view that insufficient evidence was provided to demonstrate the financial capacity of the nominator to undertake the requirements of r.5.19(4)(d)(i). The Tribunal appreciates that the scant financial information made available left the delegate with little opportunity to form any other opinion. The nominating entity had not completed 1 year of trading therefore, no substantive financial information could be provided to the delegate upon which they could consider a positive outcome.

1. The Tribunal has formed a different view having considered substantially more evidence that was presented to it, than was given to the delegate at the time of their decision. The Tribunal notes that more than 5 years have passed following the submission of the original application and the scant original associated financial documentation. There has been substantial revenue growth in that subsequent time-period. The passage of time demonstrates that the original concerns regarding the financial viability of the organisation are no longer a relevant concern as they have employed the visa holder for more than double the period stipulated in the regulations. The business has entered a more mature phase with established business links.

1. The Tribunal observes that the financial position for the nominator for FY 2020 and FY 2021 is relatively strong with an improved revenue and profitability post the impact of Covid-19 in FY 2020. The Tribunal notes revenue before Tax increased by more than 28%, between FY 2020 and FY 2021. There is a Net Profit exceeding 10% for FY 2021. There is a similar growth in equity. The Tribunal is well acquainted with small companies and acknowledges that they are rarely financially lucrative. They do however often perform very critical and key service provisions in regional communities which would otherwise go unfulfilled. The Tribunal has carefully studied the financial accounting provided to it, noting that the ATO Tax Returns correlate in an appropriate manner with the Balance Sheets and Income Statements. In addition, it is observed that whilst it is a modest enterprise the asset base is growing, and the Nominator is accounting for the appropriate development and is creating a sound financial base for the enterprise and the sole Director.

1. The Tribunal accepts that the revenue being generated in FY 2022, whilst the visa applicant is in Germany attending to family matters has diminished substantially. Much like the circumstances that faced many enterprises during the height of the Covid-19 pandemic, this is an anomaly and should reverse quickly once she returns to full-time duties back in Australia. The Tribunal was satisfied that the evidence provided during the hearing and prior

to the hearing in relation to business activity demonstrates that the business continues to be viable, and the business relationships and contracts are still intact.

1. It notes favourably the statement made by the Director of the accounting firm assisting the nominating entity, William H Morgan Pty Ltd, dated 17 August 2022 in which they state their positive assessment of the revenue status of the organisation. The Tribunal believes that the viability of any business should not be judged solely upon 1 brief anomalous time-period. It also observes that to deny the isolated region in norther Queensland that the nominator services, of a valuable and scarce essential service, is counter productive and not in the best interests of Australia or the spirit of these regulations.

1. The Tribunal observes that the financial documentation shows an increasingly profitable and stable small business. It also observes that the visa applicant has been employed during this time therefore the positive Balance Sheet and Profit and Loss documents incorporate her costs. The Tribunal is cognisant of the fact that a senior and respected advising business consultant has been employed to assist with business planning for the future and observes that this is a sound practice which other small enterprises might consider emulating. It also adds to the evidence base that this is a seriously managed small business employing sound business practices to ensure its long-term success.

1. The Tribunal accepts as fact that the business, like many businesses, was impacted as a direct result of Covid-19, as substantiated by the Financial Statements, associated with the Covid-19 pandemic, which quickly rebounded to normal revenue levels post lockdown. The Tribunal has formed a view that an organisation’s viability should not be judged solely upon the immediate financial circumstances which resulted from the Covd-19 pandemic.

1. The growing financial stability of the nominating entity and its’ relative longevity in an ever increasingly complex and competitive environment, attests to its’ ability to employ the visa applicant. The niche market in which it operates combined with its’ multiple product service model potentially adds an additional level of resilience.

1. The Tribunal has had regard to the visa applicant’s Employment Agreement and the detailed position description. It is satisfied that the nominee will be appointed for a period of at least 2 years employment from grant of visa and the terms of employment do not include an express exclusion of the possibility of extending the period of employment. It is again reminded of the passage of more than 5 years since the original application. The passage of time has, within itself shown that the reason for the delegate’s concerns has demonstrably dissipated.

1. The Tribunal observes that one of the potential challenges facing the business is retaining the visa applicant and recruiting additional staff as needed with their unique competencies and experience and the nominator’s obvious reliance upon their services. This is particularly evident when considering the acknowledged challenges associated with recruiting and retaining similar individuals in Australia. The essential competencies associated with the key component of this company’s offerings make it very difficult to recruit the individuals needed because the talent pool is very small, particularly in regional Queensland.

1. Current media and business reports analysing consumer confidence and employment data, coupled with present time job vacancies and recruitment challenges demonstrate a deficit of suitably qualified potential employees in many sectors. This appears to be one such sector. The problem is exacerbated if an organisation is reliant upon temporary or permanent immigration as part of their labour source. Business, Media, and Government reports are being circulated which indicate this is starting to be a drag upon business development. The

Tribunal has referenced the National Skills Commission Report which supports this conclusion, dated 21 July 2021.1

1. The recent Australian Institute of Company Directors, (AICD), Sentiment Index Report, published 15 December 2021, also demonstrates a positive trajectory for the economy and employment.

1. ‘More than two-thirds of directors are confident in Australia’s 12-month economic outlook. Nearly two thirds (64 per cent) believe business will be on sure footing in 12 months time, with positive indicators like investment, turnover and profits expected to grow.

While the overall outlook from directors is positive, key challenges are emerging for the post- COVID era.

Directors have identified workforce shortages as the top economic challenge facing Australian businesses, above COVID-19, climate change and Australia’s relationship with China.’

1. The Tribunal acknowledges that the current national unemployment rate has reached its lowest point in 48 years, at 3.4% according to the ABS figures for July 2022, released on 18 August 2022.

1. The Tribunal is aware that the workforce is relatively mobile. The specialist skills associated with this type of operation are highly sought after and readily transferred between competing businesses. There is a strong network which operates within this industry which has the effect of making it easy to entice valuable staff to join a competitor’s organisation.

1. The Tribunal is satisfied that the business will be able to sustainably, employ the nominee for the required 2-year minimum period therefore r.5.19(4)(d) is met.

No less favourable terms and condition of employment: r.5.19(4)(e)

1. 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.

1. The Tribunal has been provided with the visa applicant’s current remuneration, stating a salary of $62,000 plus Superannuation at the current rate, (10.5%). The Tribunal accepts that the nominee’s current annual salary as stated by the nominating entity, as reflective of the business magnitude, the visa applicant’s qualifications, the role they undertake and their experience.

1. The Tribunal researched similar roles on a major employment website. Approximately 10,000 related roles are currently being recruited and 20% of those roles are currently available in Queensland.

1. The Tribunal researched the salaries offered for similar positions and accepted the salary research date presented by the nominator. The remuneration appears to fall within the mid quartiles of similar positions on offer. It is satisfied that the terms and conditions of employment are equivalent to other employees with the same experience performing equivalent work in the same workplace or a similar workplace. Accordingly, the requirements of r.5.19(4)(e) are met.

1 National Skills Commission Vacancy Report, June 2021, Release date: 21 July 2021

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

1. 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. There is no evidence before the Tribunal that the applicant has anything but a satisfactory record of compliance with the immigration laws of Australia. Accordingly, the requirements of r.5.19(4)(f) are met.

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

1. 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. The Tribunal notes that there is no evidence before the Tribunal that the applicant has anything but a satisfactory record of compliance with workplace relations law in Australia. 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)

1. Regulation 5.19(4)(h) contains alternative requirements. These are set out in detail in the attachment to the decision. As stated above the nomination was made under the RSMS Direct Entry stream and the Tribunal has proceeded to assess the application against the criteria in r.5.19(4)(h)(ii) which require that:

·the position and nominator’s business are 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 Australian citizen or permanent resident;

·the tasks of the position correspond to those of an occupation at the ANZCO skill level 1, 2 or 3; and

·a regional certifying body has advised the Minister about certain matters relating to the position.

1. The Tribunal has had regard to the size and scope of the nominating entity’s expanding business operations. This expansion, demonstrated by current contracts and financial documents, coupled with the diversity of projects leads the Tribunal to accept that the visa applicant’s role as well plus an additional staff member discussed during the hearing and identified on the current Organisation Chart, will be essential to the successful undertaking of the projects and to ensure that customer expectations can be met.

1. The Tribunal is satisfied that there is a genuine need for the nominator to employ a paid employee to work full-time in the position under the nominator’s direct control.

1. Evidence was presented to the Tribunal regarding the recruitment process and the subsequent lack of suitably qualified and experienced applicants other than the nominee. The Tribunal accepts that the nominator had previously tried to fill the role. It also accepts that the personal and professional networks were utilised as an earlier attempt to recruit for the visa applicant’s position.

1. It is recognised that much of this work is regional and rural, in relatively harsh climatic conditions. This makes recruitment and long-term retention even more difficult. The Tribunal

is satisfied that a fair and honest recruitment process was undertaken in a very limited talent pool.

1. The Tribunal has formed the view that the “Satisfied” RCB requirements and the issued Certificate provide some weight in favour of the applicant, however this is not within itself a definitive result which must be accepted by the Tribunal. It must make up its’ own mind as to the relevance of the advice proffered. In this instance it is accepted as sound advice that should be considered in support of the nominator’s claims.

1. The Tribunal observes that substantially more corroborative evidence was provided to it, than was presented to the delegate at the time of their decision. The Tribunal, as stated previously, acknowledges the current employment market distortions created by the Covid- 19 pandemic coupled with the lowest unemployment rate in several decades. It is satisfied that the position cannot be filled by an Australian citizen or permanent resident. The Tribunal is satisfied that the nominator’s business is located in regional Australia.

1. Regulation r.5.19(4)(h)(ii)(D), requires that the tasks to be performed in the position correspond to those at ANZSCO skill level 1, 2 or 3. The Tribunal notes that the delegate did not reject the application upon the basis of this regulation. Nor did they raise it as a concern in their decision.

1. The Tribunal has reviewed both the relevant descriptors supplied in ANZSCO 411716 for Youth Worker and the detailed duty statement attached for the visa applicant. It appears clear that the Duty Statement and the ANZSCO descriptors substantially align.

1. The position of Youth Worker, ANZSCO 411716, nominated by the applicant is referred to in ANZSCO as a skill level 2 position and the Tribunal is satisfied that the visa applicant is operating at that level.

1. The Tribunal has had regard to the ‘satisfied’ Form 1404 issued by an RCB, dated 31 May 2017 and is satisfied that the applicant has advised the Minister about matters relating to the terms and conditions of employment, the genuine need for the position and that the position cannot be filled locally.

1. The Tribunal is satisfied that the applicant meets 5.19(4)(h)(ii).

1. 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

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

Peter Emmerton Member

ATTACHMENT - EXTRACTS FROM THE MIGRATION REGULATIONS 1994

5.19  Approval 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).