Nocton Vineyard Pty Ltd (Migration)

Nocton Vineyard Pty Ltd (Migration) [2022] AATA 2987 (12 July 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Nocton Vineyard Pty Ltd
REPRESENTATIVE:  Mr Ettienne de Villiers Hugo (MARN: 0004435)
CASE NUMBER:  1901512
HOME AFFAIRS REFERENCE(S):          BCC2018/937202
MEMBER:Justin Meyer
DATE:12 July 2022
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Statement made on 12 July 2022 at 2:18pm

CATCHWORDS
MIGRATION–nomination – Direct Entry nomination stream –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 – reasonable to disregard any adverse information known to Immigration – 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, 140GB, 245AR
Migration Regulations 1994, rr 2.72, 2.73
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 2 January 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 27 February 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 did not satisfy reg 5.19(4)(h)(ii)(B) of the Regulations because the application for approval has not identified a genuine need for the nominator to employ a paid employee to work in the position under the nominator’s direct control.
Mr Xiaofeng (Charlie) Sun on behalf of Nocton Vineyard Pty Ltd (the applicant) appeared before the Tribunal on 6 July 2022 to give evidence and present arguments. The Tribunal also spoke with the nominee. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
The applicant was represented in relation to the review. The representative attended the Tribunal hearing.
The applicant was invited to appear before the Tribunal during the Covid-19 pandemic and the Tribunal exercised its discretion to hold the hearing by video via Teams. The Tribunal determined it was reasonable to hold a hearing in this manner, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal's objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by video. The applicant agreed to appear before the Tribunal by video. There was no indication that the applicant had any difficulty in understanding and responding to the questions being put to him during the video hearing. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.
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 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.
Having regard to the documentation in the file of the Department, the Tribunal is satisfied that the application for approval was in the approved form. The application relates to a visa in the Direct Entry stream seeking to meet the requirements in the Regional Sponsored Migration Scheme (RSMS) and consequently no fee is payable (reg 5.19(2) and reg 5.37(4) of the Regulations). The area in Richmond, Tasmania of the business is indeed regional. The application included a written certification stating that the applicant had not engaged in conduct in relation to the nomination that contravenes s 245AR(1) of the Act.
A need is identified for the nominator to employ an identified person as a paid employee to work in the position under the nominator’s direct control.
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)
Regulation 5.19(4)(b) requires that the applicant is actively, lawfully and directly operating a business in Australia.
The nominator is actively and lawfully operating a business according to financial and other records provided to the Tribunal as follows:
·Company tax return for year 2020
·Financial statements to June 2020 showing small profit of AUD38,000.
·ASIC information (Company Statement and Office Holders, ASIC Company Extract, ASIC Current Extract)
·An ABN check reveals Nocton Vineyard Pty Ltd to be an actively operating company. The trading name is seen from an internet search to be a winery in Tasmania. It directly operates that business. Evidence was given from the applicant that this takes place.
Accordingly, the requirement in reg 5.19(4)(b) is 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.
There is no evidence before the Tribunal that the business activities of the applicant include labour hire.
Accordingly, the requirement in reg 5.19(4)(c) is met.
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 nominator provided copies of the following documents:
· Employment Agreement dated 18 January 2018. The contract indicated the position was for the occupation of Winemaker (ANZCO: 234213) and the work was to take place at both at Nocton Vineyard, in Richmond, Tasmania, and with all the vintage related works at Frogmore Creek winery in Cambridge Tasmania.
· Position description.
The nominator provided a written submission and gave oral evidence in which they advised the employment offer was full time, the nominee is to be employed in the above locations, and the position was ongoing. The applicant is yet to begin his position as he is a vigneron based in Margaret River WA at this time and intends to take up the role once the visa is approved by the department. This is in order to the Tribunal’s mind.
The terms and conditions of that employment do not expressly exclude the possibility of an extension. The position is full-time and the Tribunal does not accept that it would be work of 20 hours per week or similar (as the delegate believed) due the fact that its winery building - including grape pressing facility - is yet to be built. This function takes place at another nearby site, the Frogmore Creek winery, by commercial arrangement and this is a normal process in the industry. In any event, a new on-site winery facility is at advanced planning stage. Significant plans and proposals including drawings were provided and the Tribunal is assured that this on-site processing will eventuate in due course. I accept that the Covid19 pandemic delayed these plans but that they are still on foot.
From examining the organisation chart and questioning the witnesses the Tribunal has determined that the nominator does not have its own winemaker as yet, and relied on its partner Frogmore Creek for this function. An occasional quality issue with Frogmore Creek- made wine has firmed its resolve to make wine in-house and have its own winemaker, Mr Xuanthe (Victor) Wang. The witnesses and the written evidence were consistent on this point. There is a firm need for a winemaker on a full time basis based on the current challenges in the organisation, the significant revenue of the business (AUD2.8M per annum in the most recent available reporting year), and the organisation’s expansion plans.
Accordingly, the requirement in r.5.19(4)(d) is 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 applicant stated that the nominee is towards the centre of the organisation chain. I organisation chart confirming this was submitted. As there is only one winemaker position there is no Australian worker performing equivalent work to the nominee in the same workplace, at the same location.
The application declares terms and conditions will be equivalent to Australian employees. The applicant submitted a signed employment contract to the Tribunal that showed a salary of AUD60,000 plus superannuation for the nominated position.
Certification was satisfied by the Tasmanian relevant authority and confirmed that the terms and conditions of employment that are applicable to the nominated position will be no less favourable than the terms and conditions that are or would be provided to an Australian citizen or Australian permanent resident for performing equivalent work in the same workplace at the same location.
A seek.com.au [1] (employment survey) search conducted by the Tribunal shows an average salary of AUD80,000 to AUD95,000 per year for a winemaker at Australian locations. This is within the range of the nominee’s salary terms, taking into account potential overtime and the passage of wage inflation since 2018. Another salary survey lists winemaker’s salaries at total compensation at AUD53,440 - AUD159,380.[2]
[1] Accessed 11 July 2022
[2] Accessed 11 July 2022
Consequently, the terms and conditions of the nominee's employment are no less favourable than the terms and conditions that are and would be provided to an Australian citizen or permanent resident performing equivalent work in a location commensurate. The Tribunal notes the significant number of job applicants for the position which had this advertised salary.
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 evidence before the Tribunal of adverse information about this business.
A search conducted showed no obvious adverse information results for the nominee, or the applicant.
There is no adverse information before the Tribunal.
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 evidence of non-compliance.
Accordingly the requirements of 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. 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 and 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.
Under Regulation 5.19(4)(h)(ii)(A), the position is located at Richmond, Tasmania. It is located in regional Australia for the purposes of the RSMS program.
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. Several job advertisements and enquiries were made. Evidence was forwarded of applicants being unsuitable or less qualified for the position when one takes into account the fact that the Chinese owners of the company strongly preferred Chinese speakers such as the nominee.
I have questioned the individuals. The fact that the nominee (Mr Sun) knows Mr Xuanthe (Victor) Wang and is his uncle was not the motivation of offering employment. Mr Wang is an experienced winemaker holding tertiary qualifications and has a decade’s experience in winemaking in Western Australia.
The Tribunal respectfully disagrees with the delegate’s remarks that the position was likely to be 20 hours per week and this is based on a misconstruction of answers given.
The Tribunal finds that the position is full-time for 40 hours per week, and that a winemaker is greatly needed. With expansion plans and on-site wine making the nominee will be fully occupied, I find.
There is a genuine need for the nominator to employ the person identified under reg 5.19(4)(a)(ii) as a identified employee to work in the position under the nominator’s direct control.
The position cannot be filled by an Australian citizen or permanent resident who is living in the same local area.
The tasks to be performed in the position correspond to the tasks of an occupation specified by instrument (Winemaker). The tasks fit squarely within these descriptions:
Wine Maker - ANZSCO 234213
·conducting experiments and tests to identify the chemical composition and reactive properties of natural substances and processed materials
·analysing and conducting research to develop theories, techniques and processes, and testing the reliability of outcomes under different conditions
·developing practical applications of experimental and research findings
·testing food products for flavour, colour, taste, texture and nutritional content
·advising on preserving, processing, packaging, storing and delivering foods
·developing quality control procedures and safety standards for the manufacture of food products
·examining grape samples to assess ripeness, sugar and acid content, and determining suitability for processing
·coordinating winemaking processes, directing workers in testing and crushing grapes, fermenting juices, and fortifying, clarifying, maturing and finishing wines
·blending wines according to formulae and knowledge of winemaking techniques
A Regional Certifying Body located in the same State or Territory as the position has advised the Minister about the matters in reg 5.19(4)(e) and reg 5.19(4)(h)(ii)(B) & (C).
Accordingly the requirements of reg 5.19(4)(h) are met.
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.
Justin Meyer
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 2987

12 July 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Statutory Construction

Procedural Fairness

Jurisdiction