Silkwood Wines Pty Ltd ATF Silkwood Trust (Migration)

Silkwood Wines Pty Ltd ATF Silkwood Trust (Migration) [2023] AATA 1190 (2 May 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Silkwood Wines Pty Ltd ATF Silkwood Trust
CASE NUMBER:  1924940
HOME AFFAIRS REFERENCE(S):          BCC2018/357568
MEMBER:Amanda Mendes Da Costa
DATE:2 May 2023
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Statement made on 2 May 2023 at 2.11pm

CATCHWORDS
MIGRATION – application for approval of nomination of position – direct entry nomination stream – sales and marketing manager – position located in regional Australia – documentary and oral evidence – tasks of position – based in regional Australia and requiring interstate and overseas travel – nominee previously worked in position and is in now in home country – decision under review set aside
LEGISLATION
Migration Regulations 1994 (Cth), r 5.19(4)(h)(i)(A), (ii)(A)
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 August 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 applied for approval on 22 January 2018. 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)(i)(A) and reg 5.19(4)(h)(ii)(A) of the Regulations because the applicant had not demonstrated that the majority of tasks to be performed in the nominated position will not be performed in Australia and that the nominated position nominated position is located in regional Australia.
Via an internet-enabled audio-visual platform, Mr Peter Bowman (a director of the company) appeared on behalf of the company before the Tribunal on 19 April 2023 to give evidence and present arguments. The Tribunal also heard evidence from Mr Brett Purkiss (Company Secretary) and Mr Michael Ng (Chief Winemaker).
The Tribunal determined it was reasonable to hold the hearing by video, having regard to the nature of this matter and the individual circumstances of the applicant/s. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not be conducted by video. The Tribunal was satisfied that the applicant, representative and the Tribunal could satisfactorily see, hear and understand each other throughout the hearing. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments to the Tribunal.
At the commencement of the Tribunal hearing, the Tribunal explained to the applicant the determinative issues before the Tribunal, the Tribunal’s role and how the hearing would proceed including that the Tribunal is independent of the Department and is not bound by the delegate’s primary decision. The Tribunal also explained the role of the applicant’s representative during the hearing. The Tribunal informed the applicant that it would seek submissions from both of the applicant and the representative toward the end of the Tribunal hearing on any matter they considered relevant to the applicant’s review.
The applicant was represented in relation to the review.
The documents provided to the Tribunal for the purpose of the review includes the following:
·ASIC company extract for the applicant.
·Business activity statements for the periods 1 April 2020 to 30 June 2020; 1 July 2020 to 30 September 2020; 1 October 2020 to 31 December 2020; 1 January 2021 to 31 March 2021; 1 April 2021 to 30 June 2021; 1 July 2021 to 30 September 2021; and 1 January 2022 to 31 March 2022.
·Financial statements for the financial years ended 30 June 2020 and 30 June 2021.
·Taxation returns for the financial years ended 30 June 2020 and 30 June 2021.
·Updated offer of employment provided 21 April 2023.
·Organisational chart.
·Photographs of the nominee performing tasks for the applicant.
·Submissions regarding genuine need, dated 18 October 2022.
·Written submissions dated 18 October 2022.
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 an identified person as 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 accompanied by the prescribed fee. The relevant s.245AR (1) certification was provided in the application form and the applicant identified a need for the nominator to employ the nominee (Mrs Yanping Song) as a paid employee to work in the position under the applicant’s direct control.
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)
Regulation 5.19(4)(b) requires that the applicant is actively, lawfully and directly operating a business in Australia.
The Tribunal is satisfied from the documentation provided (including financial statements, business activity statements, ASIC records, ABN details and business name registration details) that the applicant is actively and lawfully operating a business in Australia.
Accordingly, the requirement in reg 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.
The Tribunal notes that the applicant operates a wine business, manufacturing and selling wine. Based on the documentary and oral evidence before it, the Tribunal is satisfied that the applicant is not involved in labour-hire activities.
Accordingly, the requirement in reg 5.19(4)(c) does not apply.
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 Tribunal is satisfied from the updated offer of employment to the applicant (provided 21 April 2023) and the oral evidence of Mr Bowman that the nominee has been offered full-time employment for a period of at least two years in the position of Sales and Marketing Manager (ANZSCO Code 131112). The terms of the contract of employment do not expressly exclude an extension beyond two years.
The Tribunal has considered the financial documentation provided to it, including financial statements for the years ended 30 June 2020 and 2021 together with the business activity statements for the period 1 April 2020 to 31 March 2022. The Tribunal is satisfied that this material indicates that the applicant’s business is in a position to afford to employ the nominee in the nominated position for at least 2 years full-time.
Accordingly, the requirement in reg 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 updated offer of employment to the nominee (provided 21 April 2023), which shows that the nominee’s proposed annual salary is $80,000 per annum and that the applicant will also make superannuation payments in accordance with the Superannuation Guarantee (Administration) Act 1992. The Contract of Employment and updated Contract of Employment each contain a standard set of terms and conditions of employment which are consistent with the National Employment Standards.
The Tribunal notes that the applicant does not currently employ an Australian citizen or permanent resident in the nominated position.
The Tribunal is further satisfied that information from Payscale.com[1] indicates that the salary range for a Business Development Manager in Australia is from $58,000 to $123,000 per annum with a median figure of $81,000. Given the proposed salary for the nominee is $80,000 per annum (plus superannuation), the Tribunal is satisfied it is within the PayScale range.
[1] >
Based on the above matters, the Tribunal is 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.
Accordingly, the requirements of reg 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 to indicate any adverse information known to the Department about the applicant or a person ‘associated’ with the applicant. Mr Wilson also gave evidence at the hearing confirming that there was no adverse information known to the Department regarding its activities as an employer.
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 to indicate that the applicant has an unsatisfactory record of compliance with workplace relations laws in the location in which he operates a business and employs staff.
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)
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 17/058, 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.
Mr Bowman told the Tribunal that the applicant company purchased the property and established the winery in 2008. Apart from the vineyard, the applicant established a wine making facility, storage facility, cellar door sales centre and restaurant. The applicant also has four chalets on site which provide accommodation to visitors to the vineyard and local area. Apart from bottling equipment (which it hires), the applicant owns all the equipment necessary to process grapes, make the wine and store it.
Th applicant employs Mr Ng (who is a skilled and experienced winemaker) to make approximately 12 varietals of wine, including Shiraz, Pinot Noir, merlot, Riesling and Chardonnay. These wines are made primarily from the applicant’s own grapes with a small proportion purchased from other wine growers. In its latest harvest, the applicant has harvested approximately 115 tons of grapes which has resulted in the production of 100,000 bottles of wine.
Mr Bowman explained that the business was affected by the closure of the Western Australian border during the Covid-pandemic in 2020 and 2021 This resulted in a significant decrease in tourism in regional Western Australia and led the applicant to close its cellar door centre and restaurant. The applicant has now reopened these facilities and is planning to expand its wine sales which are currently made within Western Australia and interstate. Mr Bowman further explained that prior to the pandemic the business had developed plans to expand its wine sales to overseas markets and particular to customers in China.
For that purpose, the applicant employed the nominee from 2018 to early 2020 in the position of Business Development Manager. Mr Bowman explained that he was introduced to the nominee in Pemberton, by other vineyard owners and wine makers who had engaged the nominee to assist them with wine sales to China.
Messrs. Bowman, Purkiss and Ng further explained that during the period of her previous employment, the nominee was instrumental in identifying and developing business opportunities, particularly in China, introducing the business to potential customers in Australia and China, and developing business strategies for the applicant to achieve performance targets and marketing goals.
The nominee was also responsible for a wide variety of activities involving marketing, attendance at trade shows and events, and improving the brand profile of the business, both domestically and internationally.
Ng explained that the nominee had previously been instrumental in providing him and the applicant’s wine-making team with advice and guidance about wines styles suitable to Chinese palates and which are currently popular in China. This had resulted in the business producing wine styles which sold well in China.
Mr Bowman described the applicant as having a detailed knowledge of wine making together with the Chinese wine market, which was essential to the business’s plans to expand its sales markets into China.
Mr Bowman state that although the nominee would be required to visit wine shows and visit potential customers interstate and in China if re-employed by the applicant, she would be based in Pemberton, Western Australia and accommodation would be provided for her (and her family) to live on-site. The Tribunal notes that the nominee lived on-site at the winery when previously employed by the applicant.
Based on the oral and documentary evidence before it, the Tribunal finds:
·The position and business are located in regional Victoria which is specified in the relevant legislative instrument IMMI 17/059 as ‘regional Australia’.
·While the nominee is not currently employed by the applicant, it notes that she was previously employed in the nominated position for approximately two years and returned to China to be with her husband and children. The Tribunal is satisfied that the applicant wishes to grow its business and expand its markets for wine sales overseas and particularly in China and that it requires a Business Development Manager for this purpose and in particular requires a person with a detailed understanding of the wine industry and the Chinese wine market. This leads the Tribunal to find that the applicant has a genuine need to employ a Business Development Manager Pemberton winery.
·The applicant has provided recruitment records and oral evidence from Mr Bowman which describe the difficulty in filing and retaining staff in regional Western Australia. 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.
·The position of Business Development Manager ANZSCO 131112 to be filled by the nominee will be the only position of that type employed in the applicant’s Winery, in Pemberton, Western Australia. The Tribunal is satisfied that the applicant requires a Business Development Manager, to perform the tasks set out in the job description provided. The Tribunal is further satisfied from the job description and oral evidence of Mr Bowman, Mr Purkiss and Mr Ng that these tasks substantially correspond to those set out for the nominated occupation in ANZSCO 131112, which is specified in IMMI 17/058 as an occupation for subclass 187 visas.
·A Regional Certifying Body, Department of Training and Workforce Development, Government of Western Australia, is listed in the relevant instrument IMMI 17/059, and located in the same State or Territory as the position, has advised the Minister (on 24 January 2018) about the matters in reg 5.19(4)(e) and reg 5.19(4)(h)(ii)(B) and (C). The Tribunal accepts the information contained in that advice.
·Although the nominated position will involve some travel to wine shows and other events interstate and overseas, it is primarily based at the applicant’s winery in Pemberton Western Australia and is therefore in regional Australia.
Accordingly, the requirements of reg 5.19(4)(h) are met.
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.
Amanda Mendes Da Costa
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).

[2023] AATA 1190

2 May 2023

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