P & T Marciano Magic Pty Ltd (Migration)

P & T Marciano Magic Pty Ltd (Migration) [2022] AATA 2070 (9 May 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  P & T Marciano Magic Pty Ltd
REPRESENTATIVE:  Mr Joseph Italiano (MARN: 9902423)
CASE NUMBER:  1826525
HOME AFFAIRS REFERENCE(S):          BCC2016/4009038
MEMBER:Vanessa Plain
DATE:9 May 2022
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Statement made on 09 May 2022 at 5:04pm
CATCHWORDS
MIGRATION–nomination – Direct Entry stream – Nominator is actively and lawfully operating a business in Australia –genuine need to employ a paid employee to work in the position – nominated position is based in regional Australia – no adverse information – no less favourable terms and condition of employment – decision under review set aside
LEGISLATION
Migration Act 1958, ss 65, 140GB, 245AR
Migration Regulations 1994, rr 1.13, 2.57, 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 22 August 2018 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 28 November 2016. 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), reg 5.19(4)(h)(ii)(C) and reg 5.19(4)(h)(ii)(D) of the Regulations.
The applicant applied to the Tribunal for review of the delegate’s decision. The applicant submitted a copy of the primary decision record with their review application.
On 15 June 2021, the applicant, represented by its general manager, Ms Lynne Maree Ball and its director Mr Phillip Marciano appeared before the Tribunal via video link, to give evidence and present arguments. The Tribunal also received oral evidence from Ms Po Chi Gigi Lau (the nominee) in the related matter for a subclass 187 visa (AAT Case file 1828228). The related matters were heard concurrently in a combined hearing.
The applicant was represented in relation to their review by their registered migration agent.
The Tribunal exercised its discretion to hold the hearing by video link. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by video link, having regard to the nature of this matter and the individual circumstances of the applicant and nominee. 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 link. The Tribunal is satisfied that the applicant and nominee were 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.
Background
The applicant operates a horticultural business in Irymple, Mildura in Victoria. The nominated position is located in Irymple, Mildura. Information before the Tribunal demonstrates that the business has been in operation since 2008 and operates under the trading name of Marciano Table Grapes. Ms Ball is the General Manager of the business and has occupied that role for the last 12 years. The business’ ABN is 62 133 961 958. The business is a large enterprise and the biggest supplier of table grapes to Coles Supermarkets. The business operates farms in Victoria, Queensland and the Northern Territory.
On 28 November 2016, the applicant lodged an application for an employer nomination for the position of Production Office Manager (ANZSCO 512111) under a direct entry Regional Employer Nomination stream. The nominee’s nominated base salary and guaranteed earnings were $60,000 per annum plus superannuation.
On 17 March 2021 the Tribunal wrote to the applicant and explained that the Tribunal requires current and updated information addressing the criteria in r 5.19 of the Migration Regulations 1994 which must be met at the time of the Tribunal’s decision.
The Tribunal notes that the applicant and the nominee submitted a voluminous amount of documentary evidence in support of their cases and addressing the criteria in r 5.19 of the Migration Regulations 1994. The Tribunal also has access to and has considered the Department’s file for each of the applicant and nominee. While the Tribunal has considered all of the documentary evidence submitted by the applicant and nominee, only that which was considered material to the Tribunal’s decision has been expressly referred to herein.
Further, the Tribunal has access to the Department Policy considerations, the Act and the Regulations. The Tribunal has also placed reliance upon generic information concerning publicly-available references such as ANZSCO produced by the ABS, and Internet-available information from websites such as PayScale and the Australian Government Department of Education Skills and Employment, on occupational skill shortages and related-information
Viva voce evidence of the Applicant
Ms Ball and Mr Marciano were impressive witnesses. It is plain from their evidence that they have both been integral to the operations of the applicant for many years.
Mr Marciano informed the Tribunal that the company employs approximately 2-25 people and engages another 200 contractors via labour hire companies when required. The business operates five main departments across 7000 square metres. It is a major fruit supplier to local supermarkets and operates 7 days a week. The business turns over approximately $40 million in sales each financial year. He stated further that the nominee is a trusted employee and reports to Ms Ball and to Mr Marciano regularly.
Ms Ball stated that the nominee works in the products area. The organisation chart originally provided does not accurately reflect the size and scale of the business. It is significant with major farming operations across NSW, QLD and the NT. It is important because in the location where the nominee works there are only a small number of employees. The business is divided in sales/marketing department, production office, logistics, administration and quality control.
Ms Ball stated further that the nominee in her day to day role and always been and remains responsible for collating high volume orders and prioritising orders to ensure they are ready for transport when required. The nominee allocates orders and directs floor workers to prepare orders for packaging. She works with contract labour who report directly to her. She manages in the in hour computer system insofar as ensuring that orders are appropriately allocated for costing and sales purposes. The computer system is fully integrated and on that basis, she is at a loss as to how the delegate made the findings that they did in the decision record. She stated further that the nominee deals with all aspects of logistics in relation to the administration of orders and managing payments. She deals with packaging and equipment issues and performs stock take. She does not hire or promote staff, but she is involved in performance management.
Ms Ball stated that the position could have been filled by an Australian citizen theoretically, but they had difficulty finding a suitable applicant for the role. The main issue was that the applicant is one of very few table grape packaging businesses and in the past, they’ve trained applicants who have performed the nominee’s role who have subsequently left the employ of the business. Given the nominee’s 9 years in the industry, her skill set is unmatched, she’s focused and reliable. The main difficulty the business has faced when seeking to hire for the role was finding an applicant with the skill set to match the nominee’s skill set in the context of the applicant’s particular business.
Ms Ball stated further the business has re-assessed whether the nominee’s position fits the wording description of office production manager in the application. The role performed by the applicant has always been the same, insofar as her duties have remained consistently the same over the years over her employment with the business and it is more appropriate to describe her position as a facility supervisor (ANZSCO 070499), but the applicant was advised at the time of application that this particular description did not exist at the time of application and the most appropriate description was an office production manager.
The applicant’s solicitor informed the Tribunal in oral submission that the descriptions of office manager and facility supervisor ought to be considered in a practical manner given its context in a horticultural business.
Viva voce evidence of the Nominee (Ms Po Chi Gigi Lau)
Ms Lau informed the Tribunal that she heard the evidence of Ms Ball and Mr Marciano and she agreed with their evidence. She informed the Tribunal that she agreed with Ms Ball’s characterization of her role in the business. She has been working for the business for several years, has always been paid her salary and has a signed employment contract. She stated further that the company is akin to her second family and she wishes to continue her employment there.
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.
On the available information the Tribunal finds that the application was made on the approved form 1395 (Internet) for post 23 March 2013 applications. The prescribed fee has been paid.
The Department file includes the application containing a written certification stating the nominator has not engaged in conduct in relation to the nomination that contravenes s. 245AR(1) and which relates to obtaining a benefit for a migration outcome.
The documentary evidence submitted by the applicant, including a detailed job description, organisational structure and PAYG information plainly establishes that the applicant business has identified a genuine need for the nominator to employ a paid employee to work in the position as facility supervisor under the nominator’s direct control. In one sense, the “need” is established by the simple act of lodging an application, but more importantly, the “need” is substantiated with the information and documents produced in support of the application and in view of the fact that the Tribunal accepts Ms Ball’s evidence on the subject.
Accordingly, the requirement in r.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 applicant has produced to the Tribunal a current ASIC record, ABN search, Australian Business Register extract, certificate of registration, a complete set of signed financial statements and tax returns for the 2019 and 2020 financial years and BAS statements for the July 2020 to June 2021.
The Tribunal finds it is satisfied on the available information, that the business is actively and lawfully operating a horticultural business in regional Victoria and that the business continues to operate today.
Accordingly, the requirement in r.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.
The Tribunal finds on the available information there is no evidence that the applicant is involved in labour hire activities.
Accordingly, the requirement in r.5.19(4)(c) does not apply.
Term of employment of the visa holder: reg 5.19(4)(d)
Regulation 5.19(4)(d) requires the nominee to be employed in the nominated position for at least 2 years full time, and the terms and conditions of that employment do not expressly exclude the possibility of an extension.
The Tribunal has had regard to a written employment agreement dated 9 November 2020 and signed by the applicant and the nominee.
The Tribunal is satisfied on that evidence as to the length and nature of the employment and the engagement of the nominee in the position of facility supervisor. The contract purports to engage the nominee from the grant of her visa and does not expressly exclude the possibility of renewal in the role after the minimum period of two years. The contract itself is open ended. The Tribunal notes the evidence of Mr Marciano, that the nominee is the only facility supervisor, she has been working in the business for approximately 9 years and it is his intention for her in the employ of the business. The Tribunal accepts the evidence of Mr Marciano.
The Tribunal is further satisfied based upon the financial statements produced (2019, 2020 profit and loss, balance sheet, taxation returns, PAYG records and BAS lodgements), that the business is operating a successful and financially viable venture and has the capacity to continue to employ the nominee for the minimum period.
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.
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.
On the available evidence, there is no other Australian citizen or permanent resident working in the same occupation or position in the business.
The Tribunal has had regard to the salary offered in the sum of $60,000 plus superannuation and other entitlements, such as overtime, available under the relevant industry Award. According to an industry website, Payscale Australia, the median salary for a facility supervisor is between $59,000 and $108,000 per annum.
The Tribunal notes the position is located in Mildura, Victoria. The salary on offer in this instance is above the Award for the salary for the position and the Tribunal finds it to be no less favourable for a facility supervisor working in an equivalent position elsewhere in a metropolitan setting.
The Tribunal further finds that the terms and conditions of employment in the written agreement are standard terms allowing for both industry and legislated workplace requirements, such as annual leave and sick leave.
The Tribunal is satisfied that there is no evidence before it that the terms and conditions applicable to the nominated position are any 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 requirements of r.5.19(4)(e) are met.
No adverse information known to Immigration: reg 5.19(4)(f)
Regulation 5.19(4)(f) requires that there is no adverse information known to Immigration about the 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.
The Tribunal is satisfied on the available information that there is no adverse information known to the Department about the nominator, or a person ‘associated with’ the nominator, within the meaning provided in the Regulations.
Accordingly, the requirements of r.5.19(4)(f) are met.
Satisfactory compliance with workplace relations laws: reg 5.19(4)(g)
Regulation 5.19(4)(g) requires that the applicant has a satisfactory record of compliance with the laws of the Commonwealth, and of each State or Territory in which the applicant operates a business and employs employees in the business, relating to workplace relations.
The Tribunal has had regard to the evidence including the documents and information provided and made available from the Department and Tribunal files, and finds it is satisfied that there is nothing before it to demonstrate the business does not have a satisfactory record of compliance with workplace relations laws in the location of Mildura, Victoria in which it operates the horticultural business.
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 (as specified in legislative instrument IMMI 19/047), 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.
Location of Business
The automotive repair business is located in Mildura, Victoria which is classified as a regional area (as specified in legislative instrument IMMI 17/059). The postcode is 3500.
Is there a genuine need?
The Tribunal has had regard to the employment agreement and to the tasks that are performed by a facility supervisor as set out in ANZSCO 070499. The nominee’s duties are consistent with those as described by Ms Ball in her evidence as set out above. Mr Marciano has given evidence that the nominee is the only facility supervisor in the business and the nominee has given evidence that she is attending work and being paid her salary.

The Tribunal is satisfied that the applicant intends to continue to employ the nominee in the position nominated and that there is a genuine need to employ the nominee as a facility supervisor under the nominator’s direct control as it would be to state the obvious that a horticultural grape growing business genuinely needs a facility supervisor to manage all aspects of logistics to ensure that the business operates profitably.
Who is available to fill the position?
The Tribunal has reviewed the advertisements placed by the business in local newspapers. The Tribunal has sighted payment receipts for advertising in local newspapers.
The Tribunal accepts that the business advertised in accordance with the documentation produced and continues to do so unsuccessfully. The documentary evidence establishes, by way of example, that the business has been unable to find locally qualified staff due to a skill shortage in the regional area. This is consistent with the evidence of Ms Ball and Mr Marciano as set out above, to the effect that it is the nominee’s particular skill level in the grape growing business which makes her a valued employee, because the business has trained staff in the past for the facility supervisor role, but has been unable to retain those skilled staff in a regional setting.
In this instance, the Tribunal finds it is satisfied on the evidence presented that genuine and persistent attempts made at recruitment of Australian citizens or permanent residents through local advertising have been unsuccessful.
Do the tasks in this instance correspond to those specified in the instrument for the nominated occupation?
The ANZSCO reference specifies what is required for the occupation of facility supervisor. The Tribunal notes that the applicant originally applied to nominate in the position of office production manager which is ANSCO 512111. It now seeks to rely on the description of facility supervisor for the reasons set out by Ms Ball in her evidence above.
The Tribunal is satisfied, at the time of this decision, that the applicant may rely on the nomination of facility supervisor, because at the time of application, the description of facility supervisor was not available but critically, the applicant’s day to day duties have not changed since the time of application. It is therefore appropriate to permit the applicant, at the time of this decision, to nominate for the position of facility supervisor.
Based upon the documents submitted by the applicant and Ms Ball and Mr Marciano’s evidence at the hearing as set out above, the Tribunal finds that the tasks to be performed in the position correspond to the tasks of an occupation specified by the relevant instrument and finds that the nomination meets the requirement in this regard.
Regional Certifying Body
The applicant business has submitted a certified Regional Sponsored Migration Scheme – Regional Certifying Body advice which provides that the applicant’s application for regional sponsored migration certification has been approved. The Minister has been advised of 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.
Vanessa Plain
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)       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).

[2022] AATA 2070

9 May 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Jurisdiction

Statutory Construction

Procedural Fairness