Nullagine Hotel Pty Ltd (Migration)

Nullagine Hotel Pty Ltd (Migration) [2017] AATA 2243 (31 October 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Nullagine Hotel Pty Ltd
CASE NUMBER:  1612386
DIBP REFERENCE(S):  BCC2015/3199829
MEMBER:Antonio Dronjic
DATE:31 October 2017
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.
Statement made on 31 October 2017 at 4:16pm

CATCHWORDS
Migration – Nomination – Regional Sponsored Migration Scheme – Direct Entry Nomination stream – Regional Certifying Body – Cook – Genuine need for paid employee – Position cannot be filled by an Australian citizen/permanent resident living in the same local area – Evidence provided

LEGISLATION
Migration Act 1958, ss 140GB, 359, 360, 245AR

Migration Regulations 1994, rr 1.13, 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 Immigration on 21 July 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 1 November 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 delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19 (4)(a)(ii) of the Regulations because the delegate was not satisfied that the business has need to employ another cook on a fulltime basis.
The applicant applied to the Tribunal on 9 August 2016 and with its application submitted a copy of the primary decision record.
On 16 October 2017, the Tribunal wrote to the applicant inviting it to provide information in writing under section 359(2). The Tribunal sought information whether the applicant meets the requirements of Regulation 5.19(4). A copy of the relevant regulation was attached to the letter.
On 27 October 2017, the applicant’s representative submitted the following documents to the Tribunal:
·Copy employment agreement with the nominee;
·Applicant’s financial statement for the year ending 30 June 2017;
·Job Description;
·Applicant’s BAS Statements from October 2016 to June 2017;
·Evidence of market salary rate for the nominated position of a Cook including Pay Scale extract and various advertisements for the position of a Cook;
·PAYG payment summaries for the nominee for the past three financial years;
·Tax Assessment notices for the nominee from 2014 to 2017;
·Nominee’s recent payslips;
·Completed and signed form 1404 – Regional Certifying Body Advice;
·Legal submissions dated 21 October 2017,addressing the criteria for approval of nomination;
·Letter from Mr Barrett, the accountant engaged by the applicant, dated 26 October 2017;
·Certificate of business registration; and
·Company extract form;
Under subsection 360(2)(a) of the Act the tribunal considered that it should decide the review in the applicant favour on the basis of the material before it.
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 the nomination to be approved, all the requirements must be met.
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 is satisfied, from the material on the Department’s file, that the application was made on the approved form, no prescribed fee is payable as the nomination relates to a position located in regional Australia, and (as this application was made prior to 14 December 2015) no written certification relating to s.245AR(1) is required.
The Tribunal further notes that the nomination application form identifies a nominee, Ms Monika Dhimal, for the nominated occupation of a Cook, a paid position. The Tribunal is satisfied from the position description and information in the application form that the nominated position is under the direct control of the applicant.
Given the above, the Tribunal finds that 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 is satisfied from the detailed documents provided to it, including the applicant's recent financial statements and its current ASIC and ABN registration, that it is actively, lawfully and directly operating a business in Australia.
Accordingly, the Tribunal finds that 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 material before the Tribunal indicates that the applicant operates a hotel and pub in a regional area of Western Australia and there is no suggestion that its business activities include those relating to labor hire to an unrelated business.
Accordingly, the Tribunal finds that 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 Tribunal is satisfied from the contract of employment between the nominee and the applicant dated 12 March 2014 provided to the Tribunal that it meets the above requirements.
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 nominee’s terms and conditions of employment are set out in her contract of employment. There is no other Australian citizen or permanent resident performing the same work in the same location.
In determining the salary and appropriate terms and conditions, the business has provided documentary evidence in the form of job advertisements and PayScale salary survey indicating that the salary range for a Cooks in Australia generally falls between $35,000 and $56,000.
The tribunal acknowledges that the applicant operates its business in Nullagine, one of the most remote areas of Western Australia with population of less than 400. The above salary survey indicates that the nominee's salary will be no less favourable than the equivalent rates for Australian workers. Based on this evidence, the Tribunal is satisfied that 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.
Accordingly, the Tribunal finds that 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 has reviewed the Department’s records, including its electronic records as contained in its Integrated Client Services Environment (ICSE), and is satisfied that they do not disclose any adverse information known to Immigration about the nominator or person associated with the nominator.
Accordingly, the Tribunal is satisfied that 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.
There is no evidence before the Tribunal of any breaches of the workplace relations laws of the Commonwealth or by Victoria by the applicant.
Accordingly, the Tribunal finds that 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 in the relevant written instrument, and certain specified training benchmarks will be met (r.5.19(4)(h)(i)); or
·the position and nominator’s business is located in regional Australia, there is a genuine need for the paid position under the nominator’s direct control which cannot be filled by a locally resident Australian citizen or permanent resident, the tasks of the position correspond to those of an occupation specified in the relevant legislative instrument, the occupation is applicable to the proposed employee in accordance with the specification of the occupation and that a regional certifying body has advised the Minister about certain matters relating to the position.
·the Minister about certain matters relating to the position (r.5.19(4)(h)(ii)).
The Tribunal is satisfied that the position and the nominator’s business is located in regional Australia, as the postcode of Nullagine in Western Australia (6759) is specified as regional Australia in the relevant written instrument, IMMI 16/045. The applicant must therefore meet the requirements of the second dot point above. As the position and the applicant are located in regional Australia, the Tribunal is satisfied that rr.5.19(4)(h)(ii)(A) and (E) are met.
The Tribunal is further satisfied that the applicant has a genuine need for the paid position, and that it is under the nominator’s direct control. The Tribunal accepts that Ms Dhimal, the nominee, was recruited in 2014 and has been employed by the applicant as a Cook for more than three years.
Overall, having regard to the available evidence, the Tribunal is satisfied that the applicant business has a genuine need for the nominated role, and is therefore satisfied that r.5.19(4)(h)(ii)(B) is met.
The Tribunal finds that the Skilled Migration WA, Department of Training and Workplace Development, (an approved Regional Certifying Body specified in the relevant instrument) certified on 2 June 2016 that there was a need for a paid employee in the nominated position within the business activities of the nominating employer, that it could not be filled by an Australian living in the same local area, and that its terms and conditions of employment were no less favourable than those that are or would be provided to an Australian employee. It is therefore satisfied that r.5.19(4)(h)(ii)(F) is met.
Based on the certification above, and the documentary evidence provided by the applicant in relation to its recruitment exercise that led to the hiring of the nominee, the Tribunal accepts that the position cannot be filled by a locally resident Australian citizen or permanent resident. It is therefore satisfied that r.5.19(4)(h)(ii)(C) is met.
The remaining criterion is r.5.19(4)(h)(ii)(D), which requires that the majority of the tasks of the nominated position correspond with the tasks of an occupation at ANZSCO skill level 1 to 3.
The nominated occupation in the nomination application lodged with the Department is Cook. The ANZSCO occupational description for a Cook lists it as a Skill Level 3 occupation.
Based on the evidence before it, the Tribunal is satisfied that the majority of the tasks of the nominated position correspond with those of the ANZSCO occupation of a Cook, which is skill level 3.
The Tribunal is therefore satisfied that r.5.19(h)(ii)(D) is 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.
Antonio Dronjic
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).

[2017] AATA 2243

31 October 2017

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction