Premier People Pty Ltd (Migration)
[2021] AATA 595
•4 March 2021
Premier People Pty Ltd (Migration) [2021] AATA 595 (4 March 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT: Premier People Pty Ltd
CASE NUMBER: 1805357
HOME AFFAIRS REFERENCE(S): BCC2017/3814078
MEMBER:Joanne Bakas
DATE:4 March 2021
PLACE OF DECISION: Adelaide
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.
Statement made on 04 March 2021 at 2:49pm
CATCHWORDS
MIGRATION – application for approval of nomination of position – direct entry stream – genuine need for position – important need for role in high-risk environment – applicant unable to fill role with citizen or permanent resident – nominee’s experience and qualifications – decision under review set asideLEGISLATION
Migration Regulations 1994 (Cth), r 5.19STATEMENT 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 8 February 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 17 October 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) of the Regulations because the delegate was not satisfied that business has not demonstrated a genuine need to employ a paid employee to work in the position under the nominator’s direct control.
Ms Nicky Stevens, appeared on behalf of the applicant before the Tribunal on 2 February 2021 via audio and video conference on MS Teams to give evidence and present arguments. The Tribunal also received oral evidence from Mr Andrew Cornwall (the nominated employee) and Ms Claudia Abano (a nominated employee in another nomination by this applicant).
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.
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 an identified person as a paid employee to work in the position under their direct control.
The application identified Mr Andrew Cornwall as the person to work in the position of Safety Inspector (ANZSCO 312611) under their direct control.
The applicant’s evidence at the hearing included the following: The applicant’s business was established in December 2015. There are 10 full time employees and the business provides labour to over 25 clients in the mining industry. There are very stringent legal obligations particularly regarding safe work environments. This position is required to attend work sites of clients at least annually. This position also ensures all equipment in the office and the conveyer facility is in full working order and that all candidates have their PPE and safety equipment. There are also regular incidents that occur at the various work sites which this position is required to fully inspect and investigate and comply with Worksafe.
The Tribunal finds that the application for approval:
·was made on the approved online form and was accompanied by the fee prescribed in r.5.37; and
·includes a written certification stating whether the nominator has engaged in conduct in relation to the nomination that contravenes s. 245AR(1).
·identifies a need for the nominator to employ an identified person as a paid employee to work in the position under the nominator’s direct control.
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 documents before the Tribunal show the nominating business, Premier People Pty Ltd, was first registered on 14 December 2015 with the ACN 609 821 829 and is currently active.
Financial statements and tax returns for 2017, 2018 and 2019 financial years were submitted to the tribunal. BAS for July 2019 to June 2020 were also submitted.
Having considered all of the evidence before it, the Tribunal is satisfied that the nominator is actively and lawfully operating a business in Australia and directly operates that business.
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.
Premier People’s main business activity is labour hire, as is detailed in their company tax returns. However, the evidence of the applicant included that this position is one of the 10 full time positions that are part of the operating arm of the business.
The Tribunal accepts this is the case and accordingly, the requirement in r.5.19(4)(c) is met.
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 applicant provided an employment contract dated 24 August 2020 for at least a two year term from the dated of visa approval with a salary of $75,000 in addition to superannuation and standard leave entitlements for the position of Safety Inspector. The contract does not expressly preclude the possibility of an extension.
I accept the applicant’s and nominee’s evidence at hearing that the nominee was employed earlier in 2016 in conveyer belt maintenance and stepped into the safety role in 2017.
The applicant also provided the Tribunal with financial statements and company tax returns that show the turnover of the business has grown each financial year from $2,277,600 in 2017 to $8,893,728 in 2019. The BAS statements provided for the 2020 financial year also indicate a comparable turnover to the previous year. The financial statements also show a profit before income tax of $306,581 in 2017, $676,855 in 2018 and $920,777 in 2019.
The Tribunal notes that the nominee has been employed by the business on a full time basis for more than three years after the nomination was lodged. The business has paid the nominee in recent years and based on the financial evidence submitted, it is reasonable to assume it will do so into the future.
Based on all of the evidence before it, the Tribunal is satisfied that the applicant has the financial capacity to employ the nominee on a full time basis in the nominated position for two years full time and that the nominee will be employed in the nominated position for at least two years. The Tribunal has had regard to the employment agreement and is satisfied that the terms and conditions of the nominee’s employment does not include an express exclusion of the possibility of extending the period of employment.
Accordingly, the requirement in r.5.19(4)(d) is met.
No less favourable terms and conditions 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 applicant provided the Tribunal with documentation that demonstrated similar roles advertised in October 2017 had a salary range of $71,053 to $84,999. In addition, the applicant provided an excerpt of the Western Australian government career centre website which states that a safety inspector can expect to earn $78,000 to $104,000 per year.
The Tribunal researched the current salaries offered for similar positions and had regard to the salary determination evidence provided by the applicant. The remuneration appears to fall within the average salary range of similar positions. The Tribunal is satisfied that the proposed salary for the nominee of $75,000 in addition to superannuation is consistent with the average salary for the nominated position in that location.
On the evidence before it, the Tribunal is satisfied that the terms and conditions of employment relating to the nominated position will be no less favourable than those that 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: 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 suggests there is any adverse information known to the Department about the nominator or a person ‘associated with’ the nominator.
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.
There is no evidence before the Tribunal that indicates the applicant does not have a satisfactory record of compliance with the laws of the Commonwealth or of, relevantly, Western Australia, relating to workplace relations.
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 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 (see legislative instrument IMMI 17/080 the occupation is applicable to the proposed employee in accordance with any specifications made in that instrument, there is a genuine need for the nominee to be employed as a paid employee in the position, and certain specified training requirements are met; or
·the position and nominator’s business is located in regional Australia, there is a genuine need for the nominee to be employed as a paid employee in the position under the nominator’s direct control, the position 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 applicant applied for the nomination as a Regional Sponsored Migration Scheme position. They are therefore required to meet the second set of requirements stated above.
To meet the second set of requirements detailed in r.5.19(4)(h)(ii), all of the following must apply:
·the position is located in ‘regional Australia’ (r.5.19(4)(h)(ii)(A));
·there is a genuine need to employ a paid employee to work in the position under the nominator’s direct control (r.5.19(4)(h)(ii)(B));
·the position cannot be filled by an Australian citizen or permanent resident who is living in the same local area (r.5.19(4)(h)(ii)(C));
·the tasks to be performed in the position correspond to the tasks of an occupation specified by instrument (r.5.19(4)(h)(ii)(D));
·The occupation is applicable to the person identified under subparagraph (a)(ii) in accordance with the specification of the occupation (r.5.19(4)(h)(ii)(DA));
·the business operated by the nominator is located at that place ((r.5.19(4)(h)(ii)(E)); AND
·a Regional Certifying Body located in the same State or Territory as the position has advised the Minister about the matters in r.5.19(4)(e) and r.5.19(4)(h)(ii)(B) & (C) - (r.5.19(4)(h)(ii)(F)).
The Tribunal is satisfied from the evidence before it that the nominated position and business are located in Whelshpool, Western Australia, postcode 6106.
‘Regional Australia’ is defined in r.5.19(7) by reference to a written instrument by the Minister specifying which areas are considered to constitute ‘regional Australia’ for the purposes of r.5.19(4)(h)(ii)(F). At the time that the nomination was lodged, the relevant instrument was IMMI 16/045 which specified that all postcodes in Western Australia were in ‘regional Australia’.
However, since that time, two new legislative instruments have come into effect in succession. The first is IMMI 17/059 came into effect on 17 November 2017 and revoked IMMI 16/045 and excluded the Perth metropolitan area (including 6106) from the definition of ‘regional Australia’. Subsequently, IMMI 18/037 came into force on 18 March 2018. It is stated only to apply to nominations lodged on or after 18 March 2018. It also excludes the Perth metropolitan area (including 6106) from the definition of ‘regional Australia’.
The question for the Tribunal is which instrument should apply in the present circumstances. IMMI 17/059 did not include any saving or transitional provisions and was silent on how applications that had been made but were not yet fully determined as at that date, were to be treated. As noted above, IMMI 17/059 excluded metropolitan Perth (including postcode 6106) from being included in ‘regional Australia’ but was then itself repealed by IMMI 18/037 on 18 March 2018. IMMI 18/037 expressly only applies to nominations made on or after 18 March 2018. The absence of saving or transitional provisions in these instruments gives rise to a lack of clarity as to which instrument applies in the present case.
The current instrument (IMMI 18/037) was introduced on 18 March 2018 by the Migration Amendment (Temporary Skill Shortage Visa and Complementary Reforms) Regulations 2018 (the amending regulations). For nominations made before 18 March 2018, item 6705(1) of the amending regulations preserves the operation of any instruments made under r.5.19 that were in force immediately prior to that date. In light of this, it appears to the Tribunal that there are sound arguments for concluding that IMMI 16/045, the instrument that was in force at the time of the nomination application, should be taken to be the applicable instrument (despite the reference to the wording ‘as in force immediately before’ the commencement of 18/037, which would suggest IMMI 17/059). However, the more beneficial reading is that this preserves the instrument in force at the time of the nomination application.
Accordingly, the Tribunal considers that this is the appropriate course to take in relation to this case; that is, it finds that the nominated position is based in regional Australia, satisfying r.5.19(4)(h)(ii)(A).
The Tribunal now turns to consider whether the applicant satisfied the remainder of the criteria as set out in r.19.(4)(h)(ii)(B) to (F).
The Tribunal has had regard to evidence that has been provided in regard to the tasks already performed by the visa applicant and is satisfied that they correspond to the tasks of the occupation of Safety Inspector specified in the relevant instrument (IMMI 17/058). A detailed summary of the tasks to be performed in the position as detailed in the submissions of the applicant and the oral evidence at the hearing, are consistent with the tasks for the position in ANZSCO (312611), which include: Inspects machines, equipment, working conditions and public places to ensure compliance with government and industry standards and regulations, in relation to occupational health and safety. Registration or licensing may be required.
The position of Safety Inspector nominated by the applicant is referred to in ANZSCO as a Skill Level 2 position.
The Tribunal notes that the delegate was not satisfied there is a genuine need for a paid employee to work in the position under the direct control of the nominator. At the hearing the evidence of the applicant included that at the time of the application and currently, the safety aspect of labour hire in a high risk environment, such as the mining industry, creates the very important need for this role.
In regard to being unable to fill the role with an Australian citizen or permanent resident living in the same local area, the applicant’s evidence included that they advertised the role from about December 2016 on Indeed and in May 2017 on Seek. The applicants did not have the necessary background and hands on experience that was required by the applicant.
The nominee had previous hands on experience with various companies and in conveyer belt maintenance and gained qualifications in early 2017 in the areas of occupation health and safety as well as training and assessment.
Based on the evidence before it, including the applicant’s evidence at hearing, written submissions and letter, the Tribunal is satisfied that there is a genuine need to employ a paid employee to work in the position under the nominator’s direct control, that the position cannot be filled by an Australian citizen or permanent resident who is living in the same local area, that the business is located in regional Australia and that a regional certifying body, Skilled Migration WA, Department of Training and Workforce Development, located in the same State as the position, has advised the Minister (in Form 1404) about the matters in r.5.19(4)(e), 5.19(4)(h)(ii)(B),and 5.19(4)(h)(ii)(C) as is required by regulation 5.19(4)(h)(ii)(F). In addition the Tribunal is satisfied that the occupation is applicable to the nominee.
Accordingly the requirements of r.5.19(4)(h) are 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.
Joanne Bakas
MemberATTACHMENT - 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).
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
Legal Concepts
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Judicial Review
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Statutory Construction
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Procedural Fairness
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