Punjab Farms Australia Pty Ltd (Migration)

Punjab Farms Australia Pty Ltd (Migration) [2022] AATA 3016 (1 August 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Punjab Farms Australia Pty Ltd
CASE NUMBER:  1915108
HOME AFFAIRS REFERENCE(S):          BCC2017/3052725
MEMBER:Alan McMurran
DATE:1 August 2022
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision under review to refuse the nomination.

Statement made on 01 August 2022 at 6:26pm

CATCHWORDS
MIGRATION – nomination – Direct Entry nomination stream – Primary Products Inspector – applicant failed to provide the requested information within the prescribed period – applicant has failed to identify a need for the nominator to employ the nominee – no certificate from a Regional Certifying Body –decision under review affirmed
LEGISLATION
Migration Act 1958, ss 65, 359, 360
Migration Regulations 1994, r 5.19
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application lodged 12 June 2019 for review of a decision made by a delegate of the Minister for Home Affairs on 23 May 2019, 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, Punjab Farms Australia Pty Ltd, applied for approval on 24 August 2017. 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 nominee, Kawaljeet Singh Waraich, is a 26-year-old citizen of India. The nominee has been nominated for the occupation of Primary Products Inspector nec (ANZSCO 311399). The nominee has filed an application for review of the related refused visa application.[1]
[1] T case 1918166
The delegate refused the nomination application on the basis the applicant’s nomination did not satisfy reg 5.19(4) of the Regulations. This was because the delegate found that the application had not disclosed any of the expected tasks for the position nominated and sub- regulation 5.19(4)(h)(ii)(D) was not met. The delegate further found that the applicant had not paid the relevant fee for the application as required by sub-regulation 5.37(3) and that there was no certifying statement from a regional certifying body and therefore sub-regulation 5.19(4)(h)(ii)(F) was also not met.
The applicant was not represented in relation to the Tribunal’s review, or for the application to the Department. For the following reasons, the Tribunal has decided to affirm the decision under review to refuse the nomination.
Tribunal process
On 17 June 2022 the Tribunal sent an invitation to the applicant to provide updated information. The invitation set out the matters which required a response from the applicant by a specified date (1 July 2022). The applicant did not respond to the Tribunal’s request. As at the time of decision, nothing further has been heard from the applicant or on its behalf.
Section 360 of the Act specifies that the Tribunal must invite the applicant for review to a hearing to give evidence and present arguments. If, however, the applicant does not respond and provide the information asked for by the due date, the Tribunal may proceed to make a decision without taking any further action to obtain the information[2]. Furthermore, the applicant is not entitled to appear to give evidence and present arguments and loses the right to a hearing where section 359C(1) applies[3].
[2] S. 359C(1)(b)
[3] S.360(3)
Accordingly, the applicant has lost the right to a hearing and the Tribunal has proceeded to review the matter on the available information and without a hearing.
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. If any requirement is not met, then the application must be refused. The Tribunal has no discretion to disregard the requirements unless so specified in the Act, or Regulations.
The Tribunal has had regard to the Act and Regulations, the information provided with the application, and Department Policy where applicable to the issues raised, together with any publicly available information including ANZSCO.
In this instance, at the time of application to the Department, the applicant accompanied the form with copies of a job advertisement, business licence , salary survey, employment contract, and BAS for the period from July 2016 to March 2017.
Background
The available information shows that the applicant operates a hydroponic vegetable farm near Shepparton in Victoria. The applicant was first registered on 8 June 2016. As of 29 July 2022, an ASIC historical search informs the Tribunal that the applicant is still a registered corporation. Its activity status however is otherwise unknown.
The available ASIC information also reveals that sole director and shareholder of the applicant is named as Gagandeep Singh Warraich. There is no information available as to how the nominee came to be introduced to the applicant for sponsorship. There are no submissions from the director on behalf of the applicant. The only information available is that referred to above in these reasons.
No explanation has been provided for the dearth of information about the nominated position or failure to respond by the applicant or from any person on its behalf. The applicant has not approached the Tribunal for any extension of time to respond, or to adjourn its process.
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).
Regulation 5.19(4)(a)(ii) prescribes that 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. Policy describes that the intent of this sub-regulation is to ensure that the nominee occupying the position is an employee in fact, and not an independent contractor or in some other relationship with the nominator, and that a direct employer/employee relationship exists and with a measure of direct control over the employment by the nominator. Evidence as to the salary paid or payable by the applicant, including all entitlements and benefits, compulsory superannuation, and PAYG deductions supports this provision. Other indicia for meeting the requirement include evidence of payment of workers’ compensation insurance, an employment contract which specifies the role and how the work is directly controlled, and evidence that the nominator has responsibility over the employee’s work environment.
There is no definition in the Act or Regulations as to what may otherwise constitute a ‘need’ to employ an identified person(the nominee). Additional evidence might include a description of the business, its financial situation, and the role to be performed, what, where and how that is to be done, and under who’s supervision. An outline or summary may usually suffice to demonstrate that the role is associated with the business and under its control.
The application states that as of August 2017, there were 4 employees in the business. One is said to be an Australian, one is a temporary work or temporary activity visa holder, and two others are overseas students. Their roles or occupations are not otherwise specified. The nominee is not identified as working in any particular role or who will supervise or direct his work. The Tribunal notes that it is for the applicant to make the case identifying the need to employ the applicant for the position. The available information is five years’ old at the time of decision and has not been updated, notwithstanding the recent request to do so. The Tribunal cannot assume what is the current situation without some objective information which ‘identifies’ the need, and the context in which the position arises, such as any current employment, and how the nominee is to work, and including how the applicant is responsible for the nominee’s work environment. Such information is usually readily available from the business owner explaining the circumstances for oversight of the nominee, and how the business operates.
The presentation of an employment contract on its own does not provide a factual basis for concluding the applicant will control the nominee for the tasks performed, and which are not specified in this instance, and how that will be managed by a small business operating in the current circumstance as presented. The Tribunal has some concerns in this regard, including the absence of information and context, the time elapsed since lodgement, and the lack of recent response from the applicant. This is something the Tribunal would have explored at hearing, where the opportunity had arisen, and which in this instance was not possible.
In the absence of any other available information, the Tribunal finds it is not satisfied that the applicant has identified a need for the nominator to employ an identified person, the nominee, as a paid employee to work in the position nominated of Primary Products Inspector nec and under the applicant’s direct control.
Accordingly, the requirement in reg 5.19(4)(a)(ii) is not 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 in this case as requiring either that:
·the position and nominator’s business are 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.
Regional Australia
The Tribunal finds on the available information that it is satisfied that the applicant’s business operates from an address at a regional location in Victoria. Sub-regulation 5.19(4)(h)(ii)(A) is therefore met and all of the remaining provisions in cl.5.19(4)(h)(ii) apply.
Genuine need - 5.19(4)(h)(ii)(B)
In order to consider whether there is a ‘genuine’ need[4] for the nominator to employ the nominee, and as a paid employee to work in the position under the nominator’s direct control, the Tribunal considers information about the actual work to be performed by the nominee. This is to be distinguished from the related task of determining that a need has arisen for the position as might be demonstrated from a specified and articulated employment relationship: [5.19(4)(a)(ii)].
[4] Cl 5.19(4)(h)(ii)(B)
For the purposes of ‘genuine need’ and sub-regulation 5.19(4)(h)(ii)(B), Policy emphasizes that regard should be had to evidence of the breakdown of the organisational structure to show where the position fits into the enterprise, whether the position has existed previously (or still exists), and who is currently performing the occupation. Any increase in business activity might also be relevant, together with the circumstances of any other temporary visa holder and the conditions of their employment, and what work is performed by the business owner, and in this instance, the sole director. No such information is available.
Merely stating in the application that there is a position for such an employee and naming the occupation, does not lead automatically to a conclusion that there is a ‘genuine need’ for the position, and that it is the position which the nominee will actually perform. The Tribunal finds that cl 5.19(4)(h)(ii)(B) is not met because other than the employment agreement submitted, there is no evidence of what the nominee will actually do, and how he will work in the position for the nominator.
Tasks to be performed corresponding to a specified occupation in a Legislative Instrument - 5.19(4)(h)(ii)(D)
ANZSCO[5] provides that the tasks for the nominated occupation, as specified in the relevant instrument[6] of Primary Products Inspector include:
[5] version 1.3 (2013) – now updated replaced
[6] 17/058
oinspecting animals, plants, and agricultural produce to identify product quality issues, and providing advice to producers
oauditing and monitoring quality procedures at farms and food handling and processing facilities to ensure compliance with required standards
otesting samples of produce for quality, size, and purity
oensuring that required standards of hygiene are observed at storage, processing and packing facilities and in transport vehicles
oadvising primary producers on economic aspects of disease eradication and informing producers and the general public of the health implications of diseases and impurities
oadvising on the identification of pests and diseases and on regulations pertaining to grading, packing, and loading of products
oexamining imported plants and animals, and products, such as timber, seeds, and dried fruits, and making quarantine arrangements
opatrolling and investigating waterways for unlawful fishing activities and the removal of protected marine life
oeducating, advising, and providing information on a wide range of topics relating to fish and their protection
omay initiate or assist in legal action to enforce regulations
The employment agreement submitted contains no specified tasks, does not detail the role or duties, and refers to a “range of duties as set out in the attached job description ‘Schedule 1’”. The ‘Schedule’ was omitted from the document submitted, and the tasks proposed for the occupation are nowhere else to be found in the application. It is not possible for the Tribunal to consider whether the tasks proposed by ANZSCO for the role are those performed, or to be performed, by the nominee, or that the majority of tasks align with the nominated occupation as described by ANZSCO.
The Tribunal finds that the applicant has not described a position where the nominee will work in the position under the nominator’s direct control and performing tasks as described by ANZSCO, specifying the tasks for the position to be completed by the nominee, or that the tasks, whatever they may be, correspond to those of an occupation specified in the relevant legislative instrument[7].
Certifying body- 5.19(4)(h)(ii)(F)
[7] IMMI 17/058
Finally, the applicant has not included with the application a certificate from a Regional Certifying Body, specified by the Minister in the relevant instrument, and which the applicant conceded in the application was not subject to a certificate, by answering the relevant question “no”.
Accordingly, cl 5.19(4)(h)(ii)(F) is also not met.
Summary
The Tribunal finds from the available information that the applicant has not met the requirements in the regulations for a Direct Entry nomination, as the provisions of cl 5.19(4)(a)(ii), cl 5.19(4)(h)(ii)(B), cl 5.19(4)(h)(ii)(D) and cl 5.19(4)(h)(ii)(F) are not met. Accordingly, the Tribunal finds it is satisfied that the requirements of reg 5.19(4)(h) are not met.
Conclusion
For the above reasons the Tribunal is not satisfied that the applicant meets the requirements of reg 5.19(4).
The applicant has not sought to satisfy the criteria in the Temporary Residence Transition Nomination stream, and as such has not met the requirements in reg 5.19(3). Accordingly, the nomination of the position cannot be approved. Therefore, the Tribunal must affirm the decision under review.
DECISION
The Tribunal affirms the decision under review to refuse the nomination.
Alan McMurran
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 an identified person as 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).

[2022] AATA 3016

1 August 2022

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