Parsram Foods Pty Ltd (Migration)

Parsram Foods Pty Ltd (Migration) [2021] AATA 446 (23 February 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Parsram Foods Pty Ltd
CASE NUMBER:  1816359
HOME AFFAIRS REFERENCE(S):          BCC2016/2942697
MEMBER:Peter Emmerton
DATE:23 February 2021
PLACE OF DECISION:  Adelaide
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Statement made on 23 February 2021 at 12:46pm
CATCHWORDS
MIGRATION – application for approval of nomination of position – direct entry stream – need for position – business model – diverse and expanding operation in specialist market – position a liaison between corporate headquarters and state office – visa applicant a long-term employee – decision under review set aside
LEGISLATION
Migration Regulations 1994 (Cth), r 5.19(4)(a)(ii)
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 16 May 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 5 September 2016. 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) 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 applicant, represented by Mr Bhumi Pal Punj, Director, appeared before the Tribunal on 23 February 2021 in a combined video hearing with MRT file ref. 1818674 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Abhilash Thampi, the visa applicant. The Tribunal found those presenting evidence credible, and they appeared to answer questions in an open and honest manner without obfuscation.
The Tribunal exercised its discretion to hold the hearing by video. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by video, 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 Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.
The applicant was represented in relation to the review by its’ registered migration agent.
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 a substantial, privately owned international importing and wholesale and retailing specialist food company based in Queensland, with operations in South Australia, New South Wales and Victoria. The total number of staff employed is approximately 40. The visa applicant is located in Adelaide, South Australia.
The visa applicant’s substantial responsibilities, current years of management responsibilities, formal qualifications and unique attributes, clearly align with the duties associated with an Office Manager, ANZSCO 512111 as undertaken in this specialised industry.
The visa applicant possesses a Master of Business Administration, (MBA) obtained in Australia.
The Tribunal is cognisant of the challenges associated with recruiting and retaining suitably experienced management and staff working in businesses with limited opportunities for advancement. It is also sympathetic to the need for this business to have additional expertise unique to its’ field.
The Tribunal received and accepted evidence from the nominator of the recruitment process. This included details of the recruitment advertising in multiple on-line recruitment sites and conventional print media. The nominator’s internal and external business network was utilised but similarly unfruitful. The visa applicant was determined to be the only suitable candidate out of a moderate field of applicants.
The Tribunal has noted the long-term employment status of the visa applicant.
The Tribunal accepts that the employment contract does not include an express exclusion of the possibility of extending the period of employment beyond the initial 2-year minimum period with the provision for extension. The original employment contract dated 1 September 2016 stated the salary as $50,000 plus 9.5% Superannuation.
The Tribunal notes a satisfied RCB Certificate issued by the relevant certifying body. The date of the certificate is 1 December 2016.
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)(ii)) and consequently no fee is payable. The Tribunal finds the applicant meets r.5.19(2).
The Tribunal notes that the business is operating on a substantial staffing ratio to service a very specialised niche market. The Tribunal was provided with a range of documentation demonstrating the visa applicant’s tasks and current role prior to the hearing. The Tribunal accepts these as factual evidence.
The Tribunal notes that 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 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 Tribunal has determined, upon perusal of the current Organisation Chart, that it is not surprising and indeed it is in its’ view common practice to appoint an Office Manager in a branch office in order to ensure that administrative tasks do not hamper the core sales and sales support activities which are being undertaken by a branch office.
The Office Manager acts as a liaison point or pivot between the corporate headquarters and the branch office, as well as local client liaison. It is noted by the Tribunal that this model, as was expressed by the nominator assists in accommodating cultural differences associated with the market in which they operate.
This was explored during the hearing and the stated philosophy and clear articulation of the pervading business model supported the Tribunal’s perception. This model ensures that administrative issues are explored and dealt with in concert with the main administration team in Head Office without involving the revenue generating personnel in South Australia. This minimises goal diffusion and diversion away from revenue generation. This appears to be the model undertaken in New South Wales and Victoria as well.
The Tribunal notes that the nominator in its earlier history is credited with developing the farming of pulses and legumes in Australia and received a Medal celebrating this achievement from the Australian Government.
The Tribunal is satisfied that the application has identified a need for a paid employee to work in the position of Contract Administrator, 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 until FY 2019 and ATO Tax Returns for FY 2018, and 2019, all of which correlated. The Tribunal also researched ASIC Registration details. It checked the status of the listed ABN 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 appears to have very substantial revenues and proportionally aligned stable substantial profit. The Tribunal notes a profit increase in excess of 29% from FY 2018 to FY 2019. The relevant ATO Tax Returns for the business clearly show that the revenues can sustain the ongoing employment of the visa applicant. The nominator stated that revenues and profit were not negatively impacted by the Covid-19 pandemic. A rapid sales increase occurred which has now returned to a normal sales pattern.
The Tribunal has had regard to the Employment Agreement and position description and also notes the ongoing remuneration exceeds the originally agreed contract by $5,000 per annum, as verified by current Pay Slips. It is satisfied that the nominee will be appointed for a period of at least 2 years employment from grant of visa and the terms of employment do not include an express exclusion of the possibility of extending the period of employment.
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 the industry.
The Tribunal is aware that the workforce is highly mobile. The specialist skills associated with this type of operation are sought-after and readily transferable between competing businesses, frequently via industry networking. It is also cognisant of competitors cannibalising competing businesses and targeting their key staff in order to obtain a market advantage.
The growth of the nominating entity in a competitive and complex market, coupled with evidence of the organisation having multiple income streams and business units 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 original stated annual salary was $50,000 plus Superannuation at the rate of 9.5%. Once again, the Tribunal notes from the tendered Pay Slips and ATO documentation, that the current actual remuneration has exceeded the contracted amount by $5,000 per annum. The Tribunal sees this as reflective of their qualifications, positive performance as explained by the nominator and experience.
The Tribunal acknowledges the expressed focus upon the positive culture of the nominator’s enterprise, which was stated by the nominee as one of the reasons for his participation in the organisation.
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-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)(ii) which require that:
·the position and nominator’s business are located in regional Australia;
·there is a genuine need for the paid position under the nominator’s direct control which cannot be filled by 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
·a regional certifying body has advised the Minister about certain matters relating to the position.
The Tribunal again notes that the business has a substantial staff of approximately 40 staff including the visa applicant. Half the staff are employed in Queensland in the corporate administration office and associated State office. The other half are spread across South Australia, New South Wales and Victoria with a clear sales focus.
It was likewise clear that a substantial degree of autonomy is afforded to this critical team member. The Tribunal has had regard to the substantial size and scope of the nominating entity’s diverse and expanding business operation. It is self-evident that the nominator cannot operate this business entity without a substantial and relatively self-contained, significant administration management structure in place within each State office which collaborates with the main corporate headquarters in Queensland. The Tribunal observes that the incumbent has been in the role for a substantial number of years. This alone suggests the need for the role.
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.
The Tribunal received and accepted evidence from the nominator of the recruitment process. This included details of the recruitment advertising in multiple on-line recruitment sites and conventional print media. The nominator’s internal and external business network was utilised but was unfruitful. The visa applicant was determined to be the only suitable candidate out of a moderate field of applicants. Written supporting documentation was provided to support the media advertising of the role. The Tribunal is satisfied that a fair and honest recruitment process was undertaken.
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.
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 Tribunal has reviewed both the relevant descriptors supplied in ANZSCO 512111 for Office Manager and the stated duties of the visa applicant and their academic qualifications.
The Tribunal acknowledges that the ANZSCO descriptors are a guide, not a mandatory definitive reference.
This role would by necessity most likely lead to a substantial degree of autonomy and flexibility, as is reasonably expected of an Office Manager in an ANZSCO level 2 designated role. Whilst the visa applicant, would most likely report performance in all KPI areas via established systems and seek input from the senior operational executives of the business, this coincides with the Tribunal’s expectations of an Office Manager reporting directly to the senior executives of a business.
The Tribunal has concluded that an Office Manager is required to oversee the myriad of office administration and management tasks central to the business and this role does operate largely in-line with the ANZSCO 512111 specification parameters.
The Tribunal notes business related documents, which acknowledge the visa applicant’s designation, which coincides with the complete current Organisation Chart and the statements made in the hearing. It also observes the statements regarding the role he occupies provided by the Director.

The position of Office Manager, ANZSCO 512111, nominated by the applicant is designated by ANZSCO as a skill level 2 position and the Tribunal is satisfied that the visa applicant is operating at that level.
The Tribunal has had regard to Form 1404 issued by an RCB (Department of State Development, SA), dated 7 November 2016 and is satisfied that the applicant has advised the Minister about matters relating to the terms and conditions of employment, the genuine need for the position and that the position cannot be filled locally.
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)       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).

[2021] AATA 446

23 February 2021

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Immigration

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Procedural Fairness

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