P'Petual Holdings Pty Ltd (Migration)

P'Petual Holdings Pty Ltd (Migration) [2021] AATA 3726 (2 August 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  P'Petual Holdings Pty Ltd
CASE NUMBER:  1827957
HOME AFFAIRS REFERENCE(S):          BCC2017/2675721
MEMBER:Peter Emmerton
DATE:2 August 2021
PLACE OF DECISION:  Adelaide
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Statement made on 02 August 2021 at 3:18pm
CATCHWORDS
MIGRATION – Employer Nomination – approval of nominated position – Direct Entry nomination stream – Vegetable Grower – hydroponic vegetable growing operations – genuine need – growing workforce – tasks of the position – decision under review set aside
LEGISLATION
Migration Regulations 1994 (Cth), 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 11 September 2018 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 27 July 2017. 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 stream (r.5.19(3)) and a Direct Entry nomination stream (r.5.19(4)). 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) nor r.5.19(4)(h()ii)(D) of the Regulations because they were not satisfied that the nominator had demonstrated a need to employ a paid employee to work in the position under the nominator’s direct control nor demonstrated that the tasks to be performed in the position correspond to the tasks of an occupation specified by the Minister in an instrument in writing.
The applicant was represented in relation to the review by its registered migration agent.
The applicant requested that the matter be decided upon the evidence already before the Tribunal without a hearing, the letter was dated 30 July 2021.
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 the nomination to be approved, all the requirements must be met.
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.
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.
The nominating entity runs one of the largest hydroponic vegetable growing operations in South Australia / Australia.
It has, post the original application, been the recipient of both State of South Australia and Commonwealth Government of Australia awarded grants totally in excess of $1m. One such grant stipulates the need to grow staffing numbers to meet the ongoing development grant requirements.
The visa applicant’s responsibilities, current years of experience, formal qualifications and unique attributes, clearly align with the role of Vegetable Grower, ANZSCO, 121221, Skill Level 1, as undertaken in this specialised industry. The Tribunal notes that this particular role requires the visa applicant to be skilled in tomato and cucumber cultivation and his previous role was in 1 of the largest solar powered tomato growing operations, located in the mid-north of South Australia.
The visa applicant possesses a Diploma of Horticulture gained in Australia.
The Tribunal is cognisant of the challenges associated with recruiting and retaining suitably qualified and experienced Vegetable Growers with relevant expertise working in businesses with limited opportunities for advancement. The Tribunal notes that the visa applicant has been promoted and given greater responsibility post the original application as a result of his expertise and performance. It is also sympathetic to the need for this business to have additional specific expertise unique to its’ market segment. The Tribunal is acquainted with the somewhat transient nature of staff within this industry. This in part results from the project nature influencing the employment needs due to competitive tendering requirements associated with a multitude of major supermarket chains.
The Tribunal has noted the long-term employment status of the visa applicant. The initial application was submitted in excess of 4 years ago.
The Tribunal accepts that the current employment contract signed 14 September 2020 does not include an express exclusion of the possibility of extending the period of employment beyond the initial 2-year minimum period. The contract stated the remuneration at $28-50 per hour, ($56,316 per 38-hour week), plus 9.5% Superannuation.
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 that the application was lodged electronically using the e lodgement facility. The nomination was made under the RSMS Direct Entry stream (r.5.19(4)(h)) and consequently the correct fee was paid. The Tribunal finds the applicant meets r.5.19(2).
The Tribunal notes that the business is operating on a substantial staffing ratio currently stated as 155 employees. In total 106 head count are either Vegetable Growers, (3) or team members directly reporting to these roles and working directly in crop production capacities, (103).
The Tribunal acknowledges that the delegate in part 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 nominator had demonstrated a need for a paid employee to work full-time in the position under the direct control of the nominator.
The Tribunal has formed a different view with the assistance of substantially more information provided to it than was made available to the delegate at the time of their decision. The considerable passage of time since the original application has further assisted the Tribunal inform its’ decision. This is in part because of the growth of the business revenues at a rate exceeding 40% in the most recent 3 Financial Years. This is only possible with smart technology coupled with a large physical expansion of operations supporting increasing levels of staffing.
The Tribunal has determined, upon perusal of the current detailed Organisation Chart, that it is not surprising that an additional Vegetable Grower with leadership capability was required to support its’ growing enterprise. The Tribunal has been furnished with copies of Grant documents associated with both Australian Government and South Australian Governments providing financial assistance aimed at supporting the physical and economic expansion of this large agricultural enterprise. This is further proof of the ongoing need to fill this role. The Tribunal accepts as fact the statement that the additional 4-hectare expansion of the green houses required 2 additional Vegetable Growers and sundry other staff.
Evidence was provided to the Tribunal stating a growing workforce, (currently155). This growth was demonstrated by the wages and salaries being paid as per the Profit and Loss Statements and ATO Taxation documents completed by a well-known and respected Accounting firm in Adelaide.
The growing and very substantial magnitude of the business has been demonstrated with a range of financial documentation including current BAS statements, current Taxation Returns and Profit and Loss Statements and Asset Statements.
The Tribunal has checked the most recent PAYG Summary of the visa applicant and verified that in FY 2020 he was paid $60,000. A figure well above the originally contracted rate. This suggests that a substantial amount of over-time remuneration beyond a 38-hour work week has been paid. The Tribunal also observes that he is now employed in a more senior capacity and supervises staff. These facts are further evidence of the need for the position which is the subject of this review.
The Tribunal is satisfied that the application has identified a need for a paid employee to work in the position of Vegetable Grower, under direct control of the applicant. 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)
Regulation 5.19(4)(b) requires that the applicant is actively, lawfully and directly operating a business in Australia.
The Tribunal has been provided with a range of Profit and Loss Statements for FY 2017, FY 2018, FY 2019 and FY 2020, ATO Tax Return for FY 2018, FY 2019, FY 2020 and the most recent current BAS Statements, all of which correlated. The Tribunal also researched ASIC Registration details. It checked the status of the listed ABN, 49 080 871 638 and perused the company web site. 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)
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)
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 notes that the business has substantial and growing revenues and proportionally aligned profit and assets. The financial evidence provided to the Tribunal clearly shows that the revenues can sustain the ongoing employment of the visa applicant. The nominator’s FY 2020 Tax Return demonstrated that revenues and profit were not negatively impacted by the Covid-19 pandemic overall and had in fact continued to grow in spite of the pandemic.
The Tribunal has had regard to the Employment Agreement and position description. It notes the ongoing remuneration of $28-50 per hour, ($56,316 per 38-hour week) plus 9.5% Superannuation Guarantee. The Tribunal again notes the PAYG evidence for the visa applicant for the last year which substantially exceed the contracted remuneration, (paragraph 26 of this Decision).
The Tribunal 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. The Tribunal again notes that the visa applicant was originally employed in this role approximately 4 years ago, from which time his salary has been paid.
The Tribunal observes that one of the potential challenges facing the business is retaining the visa applicant and the nominator’s obvious reliance upon their services. This is particularly critical, as the nominator requires some specialised skills unique to this high-pressure, competitive industry. The emphasis upon customer service and time sensitive contractual reliability when fulfilling contracts or sub-contracts for perishable produce with major supermarket chains leaves little room for error, time slippage or failure.
The Tribunal is aware that the workforce is mobile. The specialist skills associated with this type of operation are sought-after and readily transferable between competing businesses, frequently via industry networking and community links. It is also cognisant of competitors cannibalising competing businesses and targeting their key staff to obtain a market advantage or fill ongoing vacancies to meet contractual obligations. The Tribunal notes that the visa applicant had been an employee of a major competitor before relocating to his current role and approached the nominator to discuss potential employment.
Current media and business reports associated with the analysis of 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 industry appears to be one such sector. The problem is exacerbated in regional areas, particularly 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] National Skills Commission Vacancy Report, June 2021, Release date: 21 July 2021
Current business confidence is reported by analysts to be at its’ highest point in South Australia in recent years.
The growth of the nominating entity in a highly competitive and complex market, coupled with evidence of the organisation having multiple income streams, attests to its’ ability to employ the visa applicant. 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)
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 been provided with the visa applicant’s employment contract. The Tribunal accepts that the nominee’s contracted annual salary is $28-50 per hour, ($56,313 per 38-hour week), plus over-time, plus 9.5% Superannuation Guarantee. It again notes that PAYG Statement demonstrates remuneration in the last FY of $60,000.
The Tribunal researched the salaries offered for similar positions and had regard for the salary determination evidence provided by the applicant. The contracted remuneration appears to fall within the mid to upper quartiles of similar positions currently 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.
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. 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)
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)
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)(i) which require that:
·the position and nominator’s business are located in Australia;
·there is a genuine need for the paid position under the nominator’s direct control which cannot be filled by an 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 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)
The Tribunal again notes that the business has a large current staff contingent including the visa applicant, currently 155.
The Tribunal observes that it is highly unlikely that any business would employ an additional member of staff for any substantial period of time, unless they were genuinely needed. This is a substantially leveraged business that operates on relatively modest overall profit margins as evidenced by the Financial documents provided. Supply slippage as a result of labour shortages can have substantial impact on profitability and future successful tendering capability and subsequently the ongoing viability of the enterprise.
The Tribunal is satisfied that there is a genuine need for the nominator to employ a paid employee to work in the position under the nominator’s direct control, (paragraphs 21-27 of this Decision).
The Tribunal received and accepted evidence from the nominator of the recruitment processes undertaken in in 2017. This included details of the recruitment advertising on a national and internationally operating electronic job site for 19 days. The nominator’s internal and external business networks were also used but proved ineffective. Analysis was provided regarding the suitability of the candidate pool. Of the 24 applicants, 12 candidates had no relevant qualifications in horticulture, 8 had either insufficient relevant qualifications and or experience and 4 had no rights to work in Australia.
The reasons for selecting the incumbent and the ongoing need for additional Vegetable Producers resulting from the expansion of the operations were clearly articulated in a written submission, in a logical manner acceptable to the Tribunal.

The Tribunal is satisfied that a comprehensive attempt was made to fill the role on offer whilst undertaking a fair and genuine recruitment process.
The Tribunal is satisfied there is a genuine need for the paid position under the nominator’s direct control which cannot be filled by an Australian citizen or permanent resident.
The Tribunal again observes that a substantially more comprehensive and complete evidence base was provided to it, than was presented to the delegate at the time of their decision. This is in part due to the passage of approximately 4 years post the original applications being submitted and the related transformational growth and maturation of the nominator’s business operation.
The Tribunal is satisfied that the nominator’s business is located in regional Australia.
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 delegate in part refused the application on the basis the applicant’s nomination did not satisfy r.5.19(4)(h)(ii)(D) as they were not satisfied that the tasks to be performed in the position correspond to the tasks of an occupation specified in the relevant instrument.
The Tribunal acknowledges that whilst the ANZSCO descriptors are a substantial guide, they are not a mandatory definitive reference.
The Tribunal has formed a different view to the delegate. The Tribunal has reviewed both the relevant descriptors supplied in ANZSCO 121221 for Vegetable Grower and the stated duties of the visa applicant.
Additionally, the 7 day per week 365 day per year operating hours of the business coupled with the perishable time sensitive produce, clearly indicates the need for a substantial number of Vegetable Growers and associated direct reports, as shown by the current Organisation Chart. This would by necessity most likely lead to a considerable degree of autonomy being associated with the role, as is reasonably expected of a specialist in an ANZSCO level 1 designated position.
Whilst the visa applicant, would most likely report performance in all KPI areas via established systems and seek input from the Director of the business and their Senior Management this coincides with the Tribunal’s expectations of a Vegetable Grower directly reporting to the Director of a business. The Tribunal is cognisant that hydroponic operations of this size and type are still in the early stages of development. They are complex, requiring considerable technical expertise and come with some degree of financial exposure and risk.
The Tribunal acknowledges that this is a very large and expanding horticultural operation in a region considered to be the market gardening or fresh produce hub of South Australia. It is in no doubt the visa applicant requires a degree of flexibility and subsequent autonomy performing the many and varied work duties, as you might expect in such an operation. The Tribunal has concluded that a Vegetable Grower, as 1 of many such individuals in the organisation is required to oversee a part of the business and does operate largely in-line with the ANZSCO 121221 specifications.
The position of Vegetable Grower, ANZSCO 121221, nominated by the applicant is referred to in ANZSCO as a skill level 1 position and the Tribunal is satisfied that the visa applicant is operating at that level.
The Tribunal is satisfied that the applicant meets 5.19(4)(h)(ii)
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.
Peter Emmerton

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 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).

[2021] AATA 3726

2 August 2021

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