RFMC Pty Ltd (Migration)

RFMC Pty Ltd (Migration) [2022] AATA 3004 (2 August 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  RFMC Pty Ltd
REPRESENTATIVE:  Mr Peter Watt (MARN: 0742076)
CASE NUMBER:  1833133
HOME AFFAIRS REFERENCE(S):          BCC2016/3809711
MEMBER:P. Maishman
DATE:2 August 2022
PLACE OF DECISION:  Perth
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Statement made on 02 August 2022 at 2:12pm
CATCHWORDS
MIGRATION–nomination – Direct Entry stream – Cook – application is compliant–genuine need to employ a paid employee to work in the position under the nominator’s direct control – nominated position is based in regional Australia – no adverse information – position associated with the nominated occupation is genuine – no less favourable terms and condition of employment –applicant lawfully operating a business in Australia– decision under review set aside
LEGISLATION
Migration Act 1958, ss 65, 140GB, 245AR
Migration Regulations 1994, r 5.19
CASES
Bharaj Construction Pty Ltd v MIBP [2016] FCCA 902

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 26 October 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 14 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)(C) of the Regulations because the applicant did not demonstrate the position could not be filled by an Australian citizen or permanent resident living in the same area.
Mr Ronald Emery, on behalf of the applicant, appeared before the Tribunal on 2 August 2022 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Craig Emery.
The applicant was represented in relation to the review.
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.
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 a paid employee to work in the position under their direct control.
Based on the material in the Department’s file, the Tribunal is satisfied that the application was made on the approved form and was accompanied by the prescribed fee. The applicant has provided the relevant certification as part of the application form that the applicant has not engaged in any conduct in relation to this nomination that constituted a contravention of s.245AR(1) of the Act. Accordingly, the requirements of r.5.19(4)(a)(i) are met.
In considering whether the application for approval identifies a need for the nominator to employ a paid employee to work in the position under the nominator’s direct control, the Tribunal has had regard to the evidence before it, including the further documents provided by the applicant after lodging its application for review.
The Tribunal accepts that the business needs to employ a paid employee to work in the position under the nominator’s direct control. The tasks that the business needs the position to undertake are discussed in more detail below.
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.
Having considered the material before it, including the applicant’s financial statements, advertisements and business registration records, the Tribunal is satisfied that the applicant 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: 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.
There is no evidence before the Tribunal to indicate that the applicant’s business is involved in labour hire. The Tribunal is satisfied that the employment contract and organisational chart confirm that the nominee will work in the applicant’s direct employ.
Accordingly, the requirement in r.5.19(4)(c) is met.
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 applicant lodged the nomination application on 14 September 2016 for a Cook (ANZSCO 351411), and nominated Mr Vivek Saini, the nominee, for the position.
In its application, the applicant stated the nominee will be employed on a full-time basis in the business for at least two years.
The Tribunal is in receipt of substantially more material than was available to the delegate. These documents include:
-Financial statements for 2018/19, 2019/20 and part 2020/21 financial years
-BAS statements for 2019 - 2021
-Company tax returns for 2019, 2020, and 2021
The applicant is an Australian based company which has a very healthy turnover and operates several different businesses.
The Tribunal has been provided with a copy of the nominee’s most recent employment contract dated 15 July 2021. The start date of the contract is ‘pending visa approval’. The terms of the contract include that there is no restriction on extending his full time employment after an initial period of three years.
The Tribunal is satisfied based on the updated financial information provided that the applicant has the financial capacity to support the nominee’s employment for at least two years.
The Tribunal is satisfied that 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.
The applicant provided the employment contracts of two other Australian citizen/permanent resident staff dated 1 May 2015 and 22 November 2015. The terms and conditions correlate with those offered to the nominee in the employment contracts dated 1 April 2016 and 3 August 2018. The applicant provided a letter dated 3 August 2018 explaining the hourly rate of one of its Australian citizen employees is higher, based on that employee having worked with the company since 2011 and having more experience and responsibility.
The Tribunal accepts that the terms and conditions applicable to the nominee’s position are 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: 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.
There is no evidence before the Tribunal of any adverse information known to the Department about the nominator or a person associated to the nominator. The applicant provided a written letter confirming it is unaware of any monitoring or adverse information.
Accordingly the requirements of reg 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.
There is no evidence before the Tribunal of the applicant having anything other than a satisfactory record of compliance with workplace relations laws in Western Australia where it operates its business and employs staff.
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.
Relevantly to this matter the requirements of reg 5.19(4)(h)(ii) but can be briefly summarised as requiring that 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.
Location of the position and the business
The Tribunal first considered reg 5.19(4)(h)(ii)(A) and (E) which provide that the position is located in regional Australia and the applicant’s business is located at that place. Regulation 5.19(16) provides that 'regional Australia' is defined by the legislative instrument, in this case IMMI 16/045.
In this case, the position is located at the business premises in Darch, Western Australia, 6055, and at the time of application, this location/postcode was considered regional Australia, as per Schedule B of IMMI 16/045.
The Tribunal is satisfied that the position and the nominator's business are located in regional Australia, as all of Western Australia was specified as regional Australia in the relevant written instrument.
As the position and the applicant are in regional Australia, the Tribunal is satisfied that reg 5.19(4)(h)(ii)(A) and (E) are met.
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
Subparagraph 5.19(4)(ii)(h)(B) requires the Tribunal to be satisfied that there is a genuine need for the applicant, as the nominator, to employ a paid employee to work in the position under the nominator’s direct control. Subparagraph 5.19(4)(ii)(h)(C) requires that the position cannot be filled by an Australian citizen or permanent resident who is living in the same local area.
The applicant owns and operates a number of business and in 2013 commenced a 25 year lease operating The Kingsway Bar and Bistro (The Kingsway). The operation includes food, drink, gambling and a bottle shop. It produces 400, and up to 700, meals each day. The nominee has been employed as a Cook since 2015.
The delegate formed the view the position was committed to the nominee 1 April 2016 - the date of an employment contract - prior to it being advertised on 19 August 2016.
Mr Emery told the Tribunal the offer of employment to the nominee in April 2016 was contingent on the approval of his visa. While the nominee was a candidate for the position advertised in August 2016, the position was not committed to him. The advertisement attracted 15 applicants. Nine Australian residents/citizens were interviewed and none of those possessed the relevant qualifications or experience required. Mr Emery explained that employing and retaining people to work as cooks was an ongoing challenge. The hospitality industry in Western Australia is in constant competition with the mining industry which also requires a significant number of cooks. The shortage of experienced cooks is worse now than it has been previously. The nominee demonstrated his ability and skills and was the best candidate for the position. He continues to be employed and has proved his value and a loyal and skilled worker. The nominee is one of five cooks required to operate the kitchen which prepares and serves food continuously from 11.00AM until the kitchen closes around 9.30 PM. To meet the extended hours the cooks are rostered to all be available during lunch and dinner peak times, and split rosters to cover outside peak times.
The Tribunal has had regard to the wording of the employment offer dated 1 April 2016 and subsequent offers on 3 August 2018 and 15 July 2021 and is satisfied employment was not committed to the nominee when the position was advertised in August 2016. The employment offers are not confirmed offers of employment and contracted employment does not commence until the nominee’s visa is approved.
The Tribunal finds, for the reasons above, that there is a genuine need for the nominator to employ a person, Vivek Saini, identified under r.5.19(4)(a)(ii) as a paid employee to work in the position of cook under the nominators, RFMC Pty Ltd, direct control.
Mr Emery told the Tribunal they have employed a number of Australian resident/citizen employees over the years. The cook’s work is hot, sweaty, and tedious with long unsocial hours. Mr emery has found there is less attraction for Australian citizen/resident employees to remain in the position because of the unfavourable conditions and a perceived lack of prestige against the lure of the mines.
The Tribunal has had regard to the Regional Certifying Body advice dated 10 November 2016 that assesses there is a need for a paid employee in the nominated position; the nominated position cannot be filled by an Australian citizen or permanent resident; and the terms and conditions of employment will be no less favourable than those offered to an Australian citizen or permanent resident.
The Tribunal is satisfied that there is a genuine need for the applicant, as the nominator, to employ a paid employee to work in the position of cook under the nominator’s direct control. The Tribunal is satisfied that the position cannot be filled by an Australian citizen or permanent resident who is living in the same local area.
Accordingly reg 5.19(4)(ii)(h)(B) and reg 5.19(4)(ii)(h)(C) are met.
Tasks of the position
The tasks of the nominated position must correspond to those of an occupation specified in the relevant legislative instrument. The applicable instrument specified for this purpose is IMMI17/058, which applies to nominations made before 1 July 2017 and not finally determined by that date. Cook (ANZSCO 351411) is listed in Schedule 1 as a specified occupation in that instrument.
The applicant provided the following job description for the position of permanent full-time cook.
·Regulating temperatures of ovens, grills and other cooking equipment;
·ensure ingredients and final products are fresh;
·bake, grill, steam meat and veggies;
·maintains a clean and safe working area;
·maintains sanitation standards;
·preparing and cooking food;
·seasoning food during cooking;
·portioning food, placing it on plates and adding gravies, sauces and garnishes;
·storing food in temperature controlled facilities;
·preparing food to meet special dietary requirements;
·plan menus and estimate food requirements;
·train other kitchen staff and apprentices.
ANZSCO stipulates that a Cook (351411) is a Skill level 3 and specifies the following:
Cooks prepare, season, and cook food in dining and catering establishments Tasks Include:
·examining foodstuffs to ensure quality
·regulating temperatures of ovens, grills, and other cooking equipment
·preparing and cooking food
·seasoning food during cooking
·portioning food, placing it on plates, and adding gravies, sauces, and garnishes
·storing food in temperature-controlled facilities
·preparing food to meet special dietary requirements
·may plan menus and estimate food requirements
·may train other kitchen staff and apprentices
The Tribunal has had regard to the signed employment contract for the nominee, the position description for the nominee and the oral evidence of the applicant and nominee and is satisfied that the duties to be performed by the nominee as a cook align with those specified in the instrument and by ANZSCO.
The Tribunal is satisfied r.5.19(4)(h)(ii)(D) is met.
Regional Certification
The Tribunal has considered the Form 1404 Regional Sponsored Migration Scheme – Regional Certifying Body Advice, issued on 10 November 2016 by Skilled Migration WA, Western Australian Department of Training and Workforce Development.
On the basis of the advice set out in the Form 1404 Regional Sponsored Migration Scheme – Regional Certifying Body Advice provided, the Tribunal is satisfied that the regional certifying body has advised the Minister about the matters set out in r.5.19(4)(e ) and r.5.19(4)(h)(ii)(B) and (C) of the Regulations. The regional certifying body states that:
·There is a need for a paid employee in the nominated position within the business activities of the nominating employer;
·The nominated position cannot be filled by an Australian citizen or an Australian permanent resident who is living in the same local area as the nominated position; and
·The terms and conditions of employment that are applicable to the nominated position will be no less favourable than the terms and conditions that are or would be provided to an Australian citizen or Australian permanent resident for performing the equivalent work in the same workplace at the same location.
Consistent with the decision of the Federal Circuit Court of Australia in Bharaj Construction Pty Ltd v MIBP [2016] FCCA 902, certification by a regional certifying body is not sufficient or determinative in relation to whether the nominator meets r.5.19(4)(e) , r.5.19(4)(h)(ii)(B) and r.5.19(4)(h)(ii)(C) of the Regulations. Accordingly, the Tribunal notes that, whilst having regard to the advice provided by the regional certifying body, it has reached its own conclusions about the matters the subject of the regional certifying body’s advice.
Having considered the Form 1404 provided, the Tribunal is satisfied that the requirements of r.5.19(4)(h)(ii)(F) are met by provision of the requisite Form 1404.

It follows that the Tribunal finds the applicant meets all the requirements of reg 5.19(4)(h).
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.
P. Maishman
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 3004

2 August 2022

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Immigration

Administrative Law

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Judicial Review

Procedural Fairness

Statutory Construction

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