Seven Migration Pty Ltd (Migration)

[2022] AATA 3287

Seven Migration Pty Ltd (Migration) [2022] AATA 3287 (28 September 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Seven Migration Pty Ltd

REPRESENTATIVE:  Mr Claudio Garzini (MARN: 1803676)

CASE NUMBER:  1911149

HOME AFFAIRS REFERENCE(S):          BCC2017/4446828

MEMBER:P. Maishman

DATE:28 September 2022

PLACE OF DECISION:  Perth

DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Statement made on 28 September 2022 at 4:43pm

CATCHWORDS
MIGRATION – application for approval of nomination of position – direct entry nomination stream – personal assistant – genuine need for position – growth in operations – position cannot be filled by local resident – unsuitable responses to job advertisement – additional information provided to tribunal – decision made without hearing necessary – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), s 360(2)(a)
Migration Regulations 1994 (Cth), r 5.19(2), (4)(h)(ii)(B), (C)

CASE
Bharaj Construction Pty Ltd v MIBP [2016] FCCA 902

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 16 April 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).

2. The applicant applied for approval on 24 November 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).

3. In this case, the applicant has applied for approval of a nomination, seeking to satisfy the criteria in the Direct Entry nomination stream.

4. The delegate refused the application on the basis the applicant’s nomination did not satisfy reg 5.19(4)(h)(ii)(B) of the Regulations because the application for approval has not identified a genuine need for the nominator to employ a paid employee to work in the position under the nominator’s direct control.

5. In reaching its decision the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the visa applicant on the basis of the material before it, pursuant to s 360(2)(a) of the Act.

6. The applicant was represented in relation to the review.

7. 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

8. The Tribunal had before it a copy of the Department’s file.

9. The applicant gave the Tribunal a copy of the delegates decision record with the review application.

10. On 28 March 2022, the Tribunal wrote to the applicant and invited it to provide further information to demonstrate all the relevant requirements of reg 5.19(2) and (4) were met. The applicant responded 6 April 2022 and provided to the Tribunal additional and updated material and submissions in support of its application. The documents and submissions have been given to the Department.

11. 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)

12. 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.

13. The Tribunal had regard to the documents on the Department’s file. The Tribunal is satisfied the applicant made an application online in accordance with the approved form 1395 (internet); the application included written certification confirming the applicant had not engaged in conduct in contravention of subsection 245AR(1) of the Act; and any required nomination application fee was paid.

14. The application identifies a need for the nominator to employ Ms Debora Compri as a paid employee to work in the position of Personal Assistant (ANZSCO 521111) under the applicant’s direct control. 

15. Accordingly, the requirement in reg 5.19(4)(a) is met.

    Nominator is actively and lawfully operating a business in Australia: reg 5.19(4)(b)

16. Regulation 5.19(4)(b) requires that the applicant is actively, lawfully and directly operating a business in Australia.

17. ASIC records show the applicant is registered and trades as the Seven Migration Pty Ltd. The Tribunal received copies of the applicant’s Business Activity Statements (BAS) for the period from January 2020 to December 2021 and Income Tax Returns for the 2019 and 2020 financial years and a profit and loss and balance sheet for the 2021 financial year.

18. The Tribunal gives weight to the information contained in the BAS and income tax returns and is satisfied the applicant is actively, lawfully and directly operating its business, Seven Migration Pty Ltd, in Australia.

19. Accordingly, the requirement in reg 5.19(4)(b) is met.

    Position is not labour-hire: reg 5.19(4)(c)

20. 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. 

21. There is no evidence before the Tribunal to indicate that the applicant is involved in labour hire activities. The Tribunal is satisfied that the employment contract and organisational chart confirm that the nominee will work in the applicant's direct employ.

22. Accordingly, the requirement in reg 5.19(4)(c) does not apply.

    Term of employment of the visa holder: reg 5.19(4)(d)

23. 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. 

24. Employment contracts dated 22 November 2017 and 4 April 2022 provide the contract is for two years from the successful grant of the nominee’s visa. The terms and conditions contained in the contracts do not expressly exclude the possibility of an extension.

25. The applicant’s financial documents indicate a ten-fold growth in turnover since commencing business in the 2016 financial year. The applicant generally runs profitably aside form 2020 when it recorded a $23,286 loss. The applicant forecasts a return to profits in the 2021 financial year.

26. The Tribunal is satisfied the applicant has the financial capacity to meet the expense of employing the nominee for two years.

27. Accordingly, the requirement in reg 5.19(4)(d) is met.

    No less favourable terms and conditions of employment: reg 5.19(4)(e)

28. 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.

29. The Tribunal has had regard to the terms and conditions of employment as set out in the updated employment contract dated 4 April 2022. The contract provides for the nominee's entitlements and indicates that the base salary will be $53,980.40 plus superannuation, for a 38-hour week.

30. The Tribunal has considered payscale.com.au information indicating that the salary range for a Personal Assistant is from $46,000 to $73,000. The Tribunal is satisfied that the nominee is being, and will continue to be, paid in accordance with the terms of employment, and that the employment contract reflects current employment laws.

31. Based on the information before it, the Tribunal is satisfied that the base salary of the nominee is within the appropriate range of that normally paid to a Personal Assistant. The Tribunal is accordingly satisfied that the terms and conditions applicable 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.

32. Accordingly, the requirements of reg 5.19(4)(e) are met.

    No adverse information known to Immigration: reg 5.19(4)(f)

33. 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.

34. There is no evidence before the Tribunal, and the applicant submits it has not been subject to monitoring by the Department and or that it is subject to any investigation about possible contravention of laws. The Tribunal is not aware of any adverse information known to Immigration about the nominator or person associated with the nominator.

35. Accordingly, the requirements of reg 5.19(4)(f) are met.

    Satisfactory compliance with workplace relations laws: reg 5.19(4)(g)

36. 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.

37. There is no evidence before the Tribunal the applicant has not operated in compliance with the laws of the Commonwealth or the relevant workplace laws in Western Australia or South Australia, where the applicant operates its business and employs staff.

38. Accordingly, the requirements of reg 5.19(4)(g) are met.

    Tasks of the position, genuine need for the position and training requirements reg 5.19(4)(h)

39. Regulation 5.19(4)(h) contains alternative requirements. These are set out in detail in the attachment to the decision.

40. 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

41. 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 the relevant legislative instrument is IMMI 17/059.

42. In this case, the position is declared to be located at premises in Adelaide, South Australia, 5000, and at the time of application, all postcodes in South Australia were considered regional Australia, as per Schedule 2 of IMMI 17/059.

43. The applicant’s organisation chart and written submissions demonstrate it has offices and staff in Perth, Gold Coast, Adelaide and Sydney. The Tribunal is satisfied that the position and the nominator's business are located in regional Australia, as all of South Australia was specified as regional Australia in the relevant written instrument.

44. 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 to employ the nominee to work in the position under the nominator's direct control which cannot be filled by a locally resident Australian citizen or permanent resident

45. Subparagraph 5.19(4)(ii)(h)(B) requires the Tribunal to be satisfied that there is a genuine need for the nominator to employ the person identified under reg 5.19(4)(a)(ii) as 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.

46. The delegate noted the comments of the RCB which was concerned the applicant was based in Perth and was not satisfied there was a genuine need for the position in Adelaide.

47. The applicant provided evidence in the form of a job advertisement identifying it had a newly established office in Adelaide. The applicant submitted it received applications from 18 candidates for the position, 13 of whom did not have a second language as required, four were from overseas and one with no experience. The applicant submits the nominee has the professional skills and attributes, the appropriate qualifications and is proficient in Portuguese.     

48. In considering this issue, the Tribunal has considered the information provided to the Tribunal (which was significantly more information than was available to the delegate) regarding the nature of the business and the explanation as to why there is a genuine need for a Personal Assistant in the business.  The Tribunal considered  the business operations of the applicant including its growth in its South Australian operations as planned for when the position was nominated to demonstrate the applicant genuinely requires assistance with a position performing tasks corresponding to those of a Personal Assistant. 

49. As to whether the position cannot be filled by a locally resident Australian citizen or permanent resident, the Tribunal accepts the evidence given to the RCB regarding the applicant’s efforts to find a suitably qualified and experienced staff member to fill the nominated position, on a long-term basis. The Tribunal accepts the applicant’s business benefits from multi-lingual skills of the nominee. The evidence before the Tribunal indicates that the role was advertised, and other candidates were deemed unsuitable before the nominee was offered the position.

50. The Tribunal is satisfied that the applicant has demonstrated a genuine need for the nominator to employ Ms Debora Compri as a paid employee to work in the position of Personal Assistant under the applicant’s direct control and that the position cannot be filled by a local resident. 

51. Accordingly, reg 5.19(4)(ii)(h)(B) and (C) are met.

    Tasks of the position and suitability of nominee

52. The tasks of the nominated position must correspond to those of an occupation specified in the relevant legislative instrument. 

53. The Tribunal has had regard to evidence that has been provided detailing the tasks that will be performed and is satisfied that they correspond to the tasks of the occupation of Personal Assistant (ANZSCO 521111) specified in the relevant instrument.  The applicable instrument specified for this purpose is IMMI 17/058. 

54. The Tribunal has had regard to the evidence of tasks performed by the nominee compared with the tasks described by ANZSCO 521111. The Tribunal is satisfied that tasks associated with the position correspond sufficiently to those of the occupation of Personal Assistant, such that it is satisfied that the tasks expected to be performed by the nominee in the applicant’s business correspond to the tasks of a Personal Assistant (ANZSCO 521111) Skill Level 3.

55. The Tribunal notes that the nominee has a Bachelor of Business Administration and now has almost  years’ experience working as a Personal Assistant for the applicant.

56. Accordingly, the requirements of regs 5.19(4)(h)(ii)(D) and (DA) of the Regulations are met.

    Regional Certification

57. The Tribunal has considered the Form 1404 Regional Sponsored Migration Scheme – Regional Certifying Body Advice, issued on 19 December 2018 by the South Australian Department of State Development.

58. Based on 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 reg 5.19(4)(e) and reg 5.19(4)(h)(ii)(B) and (C) of the Regulations. The regional certifying body was not satisfied 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.

59. The RCB provided comments in support of its assessment. In summary the RCB noted the applicant’s head office and director were based in Perth. The nominee had not relocated to Adelaide because of lower than expected revenues generated in South Australia. The RCB acknowledged an increase in activity but the applicant did not provide evidence to distinguish South Australian revenue from revenue generated in Western Australia. 

60. 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.

61. Having considered the Form 1404 provided, the Tribunal is satisfied that the requirements of reg 5.19(4)(h)(ii)(F) are met by provision of the requisite Form 1404.

62. Accordingly the requirements of reg 5.19(4)(h) are met.

63. 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

64. 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 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).