SKYBURY COFFEE PTY LTD (Migration)

[2020] AATA 5459

SKYBURY COFFEE PTY LTD (Migration) [2020] AATA 5459 (6 November 2020)

DECISION RECORD

DIVISION:  Migration & Refugee Division

APPLICANT:  SKYBURY COFFEE PTY LTD

CASE NUMBER:  1805117

HOME AFFAIRS REFERENCE(S):          BCC2016/2695268

MEMBER:  Phoebe Dunn

DATE:  6 November 2020

PLACE OF DECISION:  Melbourne

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

Statement made on 06 November 2020 at 9:57am

CATCHWORDS

MIGRATION – Employer Nomination – approval of nominated position – Direct Entry Nomination – Farm Coordination Manager (Mixed Crop Farmer) – coffee and red papaya farming business – tasks of nominated position to correspond with ANZSCO description – level of responsibility and decision-making power of nominated position – multiple layers of management above the nominee – updated position description provided – decision under review set aside

LEGISLATION

Migration Regulations 1994 (Cth), r 5.19

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 7 February 2018 to reject the applicant’s application for approval of the nomination of a position in Australia under r.5.19 of the Migration Regulations 1994 (the Regulations).

1. The applicant applied for approval on 15 August 2016. The requirements for the approval of the nomination of a position in Australia are found in r.5.19 of the Regulations, which contains two alternative streams: a Temporary Residence Transition nomination stream (r.5.19(3)) and a Direct Entry nomination stream (r.5.19(4)). If the application is made in accordance with r.5.19(2) and meets the requirements of either stream, then the application must be approved. If any of the requirements are not met then the application must be refused: r.5.19(5).

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

1. The delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19(4)(h)(ii)(D) of the Regulations because the delegate was not satisfied that the tasks being performed in the nominated position corresponded to the tasks of an occupation specified by the Minister in an instrument in writing, being the nominated occupation of Mixed Crop Farmer (ANZSCO 121216).

1. The applicant, represented by the owners and directors of the business, Mr Ian and Mrs Marion MacLaughlin, appeared before the Tribunal on 16 October 2020 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Paul Fagg, the Business Development Manager for the business. The hearing was heard as a combined hearing with Tribunal file 1910610, a nomination for approval in the Direct Entry nomination stream by the same nominating business

1. The hearing was held during the COVID-19 pandemic and as such, the Tribunal exercised its discretion to hold the hearing by video. The Tribunal determined it was reasonable to hold a hearing by video, having regard to the nature of this matter and the individual circumstances of the applicant. 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 to be conducted by telephone. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

1. The applicant was represented in relation to the review by its registered migration agent, Ms Natalia Arens.

1. 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

1. The issue in this case is whether the applicant meets the requirements for approval of the nomination under the Direct Entry nomination stream set out in r.5.19(4), which is extracted in the attachment to this decision. For the nomination to be approved, all the requirements must be met.

1. Skybury Coffee Pty Ltd is a coffee and red papaya farming business with a café and roastery, located in the Atherton Tablelands in Queensland. The coffee production of has been in operation for over 33 years, while the red papaya business commenced 20 years ago. In written submissions lodged prior to the hearing, the applicant has described the business as rapidly expanding and credits the nominee with significant input to that expansion since commencing with the business in July 2016. The applicant has also indicated the importance of the nominated position in ensuring a high-quality product and consistent supply, managing the risks of pests and diseases, adhering to environmental guidelines and ensuring compliance with the policies and directives of relevant state and federal agencies. The applicant notes that the rapid expansion has resulted in the owners of the business implementing a succession plan and introducing a new management structure, ensuring skilled staff are employed in management positions, such as the nominee in the nominated position of Farm Coordination Manager (Mixed Crop Farmer).

1. In oral evidence at the hearing, Mr MacLaughlin discussed the difficultly of securing and retaining skilled personnel at the management level, due to the nature of the business and its location. Mr MacLaughlin emphasised the importance of securing good people when they came along, including people who had potential to grow and develop into the roles. Mr MacLaughlin noted that while they received many applications for the nominated position, the applicants were largely unskilled or unqualified and not suitable for the management aspects of the nominated position. Mr MacLaughlin stated that he identified the nominee as a suitable candidate through the nominee’s father who had been a farmer in South Africa for many years before coming to Australia to retire on a nearby properly.  Mr MacLaughlin stated that the nominee had considerable farming experience working for his father and then in management roles in England where he was residing at the time of application.

1. Mr MacLaughlin stated that the nominee had proven himself to be an invaluable asset to the business and a very committed worker. Mr MacLaughlin stated that his commitment had facilitated sustained and exponential growth in the business and had enabled Mr and Mrs MacLaughlin to take a step back from the business as part of succession planning and enable them to focus on driving growth and securing new opportunities.

The application is compliant: r.5.19(4)(a)

1. 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.

1. The Tribunal has reviewed the documentation before it and is satisfied that the application was made on the approved form and was accompanied by the relevant s.245AR(1) certification and application fee. The application identifies the nominee, Mr Cornelius Jakobus Brits, in the nominated position of Mixed Crop Farmer (ANZSCO 121216).

1. The Tribunal has also considered written and oral evidence about the need to employ the nominee in the nominated position. The Tribunal has carefully considered the evidence before it and is satisfied there is a need for a paid employee in the nominated position of Mixed Crop Farmer under the applicant’s direct control.

1. Accordingly, the requirement in r.5.19(4)(a) is met.

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

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

1. The applicant has provided the Tribunal with extensive documentation demonstrating that the applicant is actively, lawfully and directly operating a business in Australia. This includes an ASIC current and historical extract, ABN extracts, recent financial statements for FY2018 to FY2020, lodged tax returns for FY2018 and FY2019, business activity statements (BAS) from July 2018 to 30 June 2020, title searches for the applicant’s properties and various business policies, plans and achievements. Having regard to this documentation, the Tribunal is satisfied that the applicant is actively, lawfully and directly operating a business in Australia.

1. Accordingly, the requirement in r.5.19(4)(b) is met.

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

1. 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.

1. The Tribunal has had regard to the nominee’s most recent Contract of Employment dated 1 July 2020 (signed and dated by the nominator and the nominee) and history of employment with the business since 25 July 2016 and is satisfied that the nominee has been and will be employed in the nominated position.

1. There is no evidence before the Tribunal to suggest the applicant is involved in labour-hire activities. There is no evidence before the Tribunal to suggest that the nominee will be

   on-hired to any unrelated business.

1. The Tribunal notes that the applicant was most recently approved as a standard business sponsor on 12 October 2016 for a period of five years to 12 October 2021. In addition, the applicant has recently approved Labour Agreement and Temporary Activity agreements for short term, seasonal worker programmes, such as the Pacific Labour Scheme.

1. Accordingly, the requirement in r.5.19(4)(c) does not apply.

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

1. Regulation 5.19(4)(d) requires the nominee to be employed in the nominated position for at least two years full time, and the terms and conditions of that employment do not expressly exclude the possibility of an extension.

1. In considering this requirement, the Tribunal has had regard to documentation before it relating to the employment of the nominee. This includes the most recent employment contract, which provides for employment for a minimum of two years with no express exclusion of the possibility of extension, market salary information, written and oral submissions from Mr and Mrs MacLaughlin and Mr Fagg and the most recent financial information provided by the applicant, including taxation returns and financial statements for FY2018 to FY2020.

1. The most recent employment contract and position description signed by the applicant and the nominee and dated 1 July 2020 provides for full-time employment as a Farm Coordination Manager (Mixed Crop Farmer) for a minimum of two years from the date of the

grant of the Subclass 187 visa, with no express exclusion of employment beyond that period. Based on material submitted to the Tribunal and oral evidence at the hearing, the Tribunal is satisfied that the nominee has been employed by the applicant in the nominated position since July 2016 and is still employed in the nominated position.

1. At the hearing, the Tribunal explored the profitability of the business noting a period of losses sustained by the business followed by a substantial profit last financial year. The Tribunal sought further information from the applicant about the financial structuring of the business and that the business could sustain a full-time employee for at least the next two years. In response, Mr MacLaughlin noted that in the first three months of FY2021 the business had already made $1.2 million in profit. In relation to the FY2018 and FY2019 losses, Mr MacLaughlin noted during this period the business was dealing with disease in the papaya crops and was investing in the the work of the research and development team which had led to the eradication of the disease and resulted in a substantial profit in FY2020 and in the first quarter of FY2021. Mr MacLaughlin stated that if he hadn’t made this investment, the pathway back to profit and growth would have been far longer. Mr MacLaughlin also noted that during this period he had invested heavily in expanding and diversifying the business, purchasing another two properties, as well as in scientific research, stating that he regarded this as business investment which is now paying dividends as opposed to a loss.

1. Mr MacLaughlin and Mr Fagg also noted they had entered into a joint venture with a marketing business in Brisbane that facilitated direct engagement with retail operations and that this had contributed to the significant uplift in profit. Mr MacLaughlin noted that their annual wages bill was over $4 million and that they had demonstrated their capacity to meet their employment obligations over the 33 years of business. Mr MacLaughlin stated that he had always retained the confidence of his bank manager, who understands the nature of the business, and referred to a letter from the applicant’s accountant attesting to the profitability of the business.

1. Mr MacLaughlin stated that while the first few weeks of March 2020 were ‘scary’, the business had not been adversely impacted by the COVID-19 pandemic. In fact, Mr MacLaughlin stated that coffee sales have tripled, papaya sales have remained strong and visitor numbers to the café and restaurant have doubled since they were allowed to re-open.

1. Based on the Contract of Employment, updated financial information for FY2018 to FY2020, the accountant’s letter and oral evidence at the hearing, the Tribunal is satisfied that the nominee will be employed in the position of Farm Coordination Manager (Mixed Crop Farmer) on a full-time basis for at least two years on terms that do not expressly exclude the possibility of an extension.

1. Accordingly, the requirement in r.5.19(4)(d) is met.

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

1. 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.

1. The most recent Contract of Employment for the nominee provides for a full-time salary of

   $73,112 plus superannuation at the legislated rate. The terms and conditions of employment are in accordance with the Fair Work Act 2009.

1. In written submissions received prior to the hearing, the applicant has advised that there is an Australian citizen employee who is employed in a similar role to the nominee. The

applicant has advised that the Australian citizen employee has 15 years’ experience with the business, compared to the nominee’s four years of experience, and has greater management responsibilities than the nominee. The applicant has provided copies of the contract of employment and pay of the equivalent employee noting an annual salary of

$83,980, compared to the nominee’s annual salary of $73,112. The Tribunal accepts the applicant’s submissions that the higher salary is based on years of service and additional management responsibilities.

1. The applicant has also provided evidence of market salary research undertaken by the applicant at the time of nomination, which shows that the nominee’s salary is within the expected market rate. A recent search of Payscale.com shows the average sale for a Farm Manager in Australia is $61,519, with a range of between $45,000 to $88,000. The nominee is paid above the award rate as specified in the Horticulture Award 2010.

1. Based on the evidence, the Tribunal finds that the remuneration and terms and conditions of employment are no less favourable than that which would be provided to an Australian citizen or permanent resident with the same or similar skills and experience as the nominee, performing equivalent work at the same workplace at the same location.

1. Accordingly, the requirements of r.5.19(4)(e) are met.

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

1. Regulation 5.19(4)(f) requires that there is no adverse information known to Immigration about the nominator or person associated with the nominator; or it is reasonable to disregard any such information. For these purposes, ‘adverse information’ and ‘associated with’ have the meaning given in rr.1.13A and 1.13B.

1. There is no evidence before the Tribunal to indicate that there is adverse information known to the Department about the nominator or a person ‘associated with the nominator’.

1. Accordingly, the requirements of r.5.19(4)(f) are met.

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

1. 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.

1. There is no evidence before the Tribunal to indicate that the applicant does not have a satisfactory record of compliance with workplace relations laws.

1. Accordingly, the requirements of r.5.19(4)(g) are met.

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

1. 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 in the relevant legislative instrument, the occupation is applicable to the proposed employee in accordance with any specifications made in that instrument, and specified training requirements are met; or

·the position and nominator’s business is located in regional Australia, 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, 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.

1. In this case, r.5.19(4)(h)(ii) is the relevant provision. The applicant’s business is located in rural Queensland, which is classified as regional Australia for the purposes of this provision in Schedule B of IMMI 16/045. Accordingly, the Tribunal finds that rr.5.19(4)(h)(ii)(A) and (E) are met.

1. The applicant has provided an updated submission addressing the requirement that there is a genuine need for the paid position under the nominator’s direct control. At the hearing, Mr and Mrs MacLaughlin gave evidence that the nominated position is critical to the success of the farming operations and underpins the entire business. Mr MacLaughlin described the importance of the nominated position to ensuring supply of quality products to meet demand and the requirements of premium retail partners such as the major supermarket operators. Mr MacLaughlin described the nominated position as being the ‘linchpin’ between the General Manager, the farming operations team and the research and development team. Mr MacLaughlin described papaya farming as very labour intensive, noting that papaya trees only have a productive lifespan of a few years and require constant regeneration and all fruit needing to be handpicked and hand packed. He stated that the nursery produces 400,000 plants per year to meet requirements and the nominated position was critical to managing these processes, among other things.

1. Based on the evidence before it, the Tribunal is satisfied that there is a genuine need for the paid position of Mixed Crop Farmer under the nominator’s direct control. Accordingly, the Tribunal finds that r.5.19(4)(h)(ii)(B) is met.

1. In oral evidence and written submissions, the applicant has sought to establish that the position could not be filled by an Australian citizen or permanent resident. The applicant has provided copies of advertisements placed on Career One in November 2015 and Gumtree on 15 August 2016, together with a summary of recruitment efforts dated 15 August 2016 for a Mixed Crop Farmer as evidence of recruitment efforts made by the applicant. In oral evidence at the hearing, Mr and Mrs MacLaughlin stated that while they received a number of applications, none had the relevant experience needed for the business.

1. Mr Fagg, who is responsible for human resources and recruitment for the applicant business, noted that he regularly does recruitment and labour market testing for skilled and unskilled roles at the business and is continually disappointed with the quality and commitment of the candidates, many of whom submit incomplete applications or don’t turn up to interviews. Mr Fagg stated that he recently re-advertised the nominated position on Seek.com on 18 March 2020, which elicited one application. The Tribunal accepts this evidence.

1. In post-hearing submissions, the applicant has provided evidence of recent advertising undertaken during October 2020 for the role of Farm Coordination Manager on CareerOne, Seek.com and the applicant’s own website. The applicant has advised that this advertising elicited one applicant, located in Queensland.  The applicant has advised that on the basis of discussions with this applicant, investigations and reference checks, it was ascertained that the applicant did not have the level of skills and experience required for the role of Farm Coordination Manager as his experience was at a lower supervisory level. The applicant

has advised that they are in discussion with this applicant regarding a lower level role, noting that he would be required to move to the area if he were to take up the position. The applicant has advised that the only other applications that have been received were from travelling backpackers and fruit pickers who have been hired for farm hand jobs. The Tribuanl accepts this evidence.

1. Based on the evidence before it, the Tribunal accepts that the applicant has made attempts to fill the nominated position with a locally resident Australian citizen or permanent resident, without success, and accordingly that the position cannot be filled by an Australian citizen or permanent resident who is living in the same local area. Accordingly, the Tribunal finds that r.5.19(4)(h)(ii)(C) is met.

1. The Tribunal notes that the Regional Certifying Body located in the same location as the applicant’s business has provided advice dated 5 September 2016 about the matters in r.5.19(4)(e) and rr.5.19(4)(h)(ii)(B) and (C), noting that there is a need for a paid employee in the nominated position within the business activities of the nominating employer, that the position cannot be filled by an Australian citizen or permanent resident living in the same area as the nominated position and that the terms and conditions of employment will be no less favourable than those that are or would be provided to an Australian citizen or permanent resident performing equivalent work at the same location. The Tribunal accepts the information in the advice. Accordingly, the Tribunal finds that r.5.19(4)(h)(ii)(F) is met.

1. The determinative issue on review is whether the applicant meets the requirements of r.5.19(4)(h)(ii)(D). In considering this requirement, the delegate was not satisfied that the nominee would have the level of responsibility and decision-making power for the nominated position, due to the business management structure in place at the time of application suggesting that there were multiple layers of management above the nominee. At first instance, the delegate found that the tasks of the nominated position did not correspond to the requirements of a Mixed Crop Famer as ‘the Managing Director, Farm Manager and Operations Manager will still provide significant input to the management decisions which are made, to the extent that they hold the responsibility for these decisions’.

1. On review, the applicant has provided an updated position description for the nominated position, together with a submission addressing the issues raised by the delegate:

Farm Coordination Manager (Mixed Crop Farmer ANZSCO 121216)

Required Qualifications: Bachelor degree or equivalent international qualification, or more than 3 years of relevant experience.

Organisational Structure

Skybury Coffee is a well-established, dynamic, innovative and prominent agri-business located on the Atherton Tablelands, in Tropical North Queensland. The business was established 30 years ago and is recognised as an industry leader in the production of coffee and red papaya.

The Skybury organisational structure covers five key areas of business activity:

·Strategic Direction, Corporate & Finance

·Branding, Tourism and Business Development

·Land Development, Maintenance & Workshop Operations

·Operations, Fruit Production, Processing & Dispatch

·Plant Health and Production, Research & Development

The attached organisational chart provides more detail regarding the business structure. Each business area is overseen by a manager and/or supervisor, who has line responsibility for all members of staff working within each area. Strategic Direction, Corporate and Finance is headed by the General Manager. The Farm Coordination Manager and Operations Manager have a key role in implementing and operationalising the strategic vision and direction of the business.

Each manager and the company Directors form the Skybury Management group. The Management group meets on a weekly basis to review progress on key activities, prioritise future activities, share intelligence across the organisation and gain a common understanding on the strategic direction of the business.

Reporting to the General Manager and ultimately to the company Directors, the Farm Coordination Manager has an overriding responsibility to manage farming operations and maintain and grow production levels to sustain the ongoing growth of the business.

Main Duties & Responsibilities

Your duties will include but are not limited by:

Papaya a Coffee Production

·     Planning, coordinating and participating in the production of Skybury Farms’ crops (coffee and papaya), from co-ordinating land preparation, planting, weed and pest control, and harvest activities, taking into account prevailing environmental and market factors

·     Working with the General Manager, developing and co-ordinating annual planting schedules to maintain and growth papaya and coffee production

·     Working with the Planting Breeding supervisor, ensuring an adequate supply of plant material to maintain planting schedules

·     Co-ordinate and implement Skybury’s nutrition and irrigation programs, taking into account the results from monthly leaf and soil tests undertaken by Skybury’s agronomists

·     Developing and co-ordinating the implementation of Skybury’s pest and weed control program

·     Selecting and planting seedlings and bulbs, and grafting new varieties to root stocks

·     Maintaining Skybury Farms’ crop production by co-ordinating the cultivation, de-leafing and pruning program to maintain production levels

·     Providing in field reporting on crop conditions and expected yields to Tropical Fruit Direct to inform marketing and distribution strategies

·     Maintaining and evaluating records of farming activities, monitoring market activity in cooperation with owners, and planning crop preparation and production to meet contract requirements and market demand

·     Training and supervision of staff and contractors

Equipment and Maintenance

·     Co-ordinate the ongoing maintenance of machinery & equipment and ensure that the Maintenance Supervisor implements a robust maintenance and repair schedule to ensure the availability of equipment

·     Organise the procurement and appointment of contractors for cropping health, such as lime application, etc

Facilities Management

·     Coordinating the maintenance of farm buildings, fences, equipment and water supply infrastructure systems

·     Maintain workshop cleanliness & care with tools

·     Coordinate the maintenance/repairs to pumps, roads, dams etc

·     Operate workshop machinery with instruction when necessary e.g. mig welder compressor, oxy

Workplace safety/Personal Development

·     Ensure the use and maintenance of correct safety equipment/procedures in mixing/using of chemicals/drenches, operation of machinery & all other farm equipment

·     As part of the management team, help to ensure the business is meeting its workplace health and safety commitments

·     Maintain interest & knowledge of current industry changes/developments as well as attending seminars/courses as required.

1. ANZSCO stipulates that a Mixed Crop Farmer (121216) is a Skill level 1 under Unit Group 1212 Crop Farmers and specifies the following:

CROP FARMERS plan, organise, control, coordinate and perform farming operations to grow crops.

Tasks Include:

a.planning and coordinating the production and marketing of crops, such as grain, cotton, sugar cane, fruit and nuts, vegetables, turf and flowers, from soil preparation to harvest taking into account environmental and market factors

b.selecting and planting seeds, seedlings and bulbs, and grafting new varieties to root stocks

c.maintaining crop production by cultivating, de-budding and pruning, and maintaining optimal growing conditions

d.organising and conducting farming operations, such as collecting, storing, grading and packaging produce, and organising the sale, purchase and despatch of produce

e.directing and overseeing general farming activities such as fertilising and pest and weed control

f.maintaining farm buildings, fences, equipment and water supply systems

g.maintaining and evaluating records of farming activities, monitoring market activity, and planning crop preparation and production to meet contract requirements and market demand

h.managing business capital including budgeting, taxation, debt and loan management

i.may select, train and supervise staff and contractors

121216 MIXED CROP FARMER

Plans, organises, controls, coordinates and performs farming operations to grow a variety of crops.

1. The Tribunal notes that the updated position description for the nominated position includes higher level management duties that were not included in the original position description. The updated position description includes oversight and coordination responsibility for a range of activities and expressly refers to the position forming part of the leadership team with ‘overriding responsibility to manage farming operations and maintain and grow production levels to sustain the ongoing growth of the business.’

1. In written submissions and oral evidence at the hearing, the applicant has sought to establish that the nominee is undertaking the tasks of the nominated position and that he has independent and overarching responsibility for higher level decision making associated with the role. In particular, Mr and Mrs MacLaughlin noted that the size and rapid expansion

of the business required a person with expertise and independence in the nominated position to ensure the health and productivity of the farming operations. They stated that while the nominated position reports to the General Manager and ultimately the Directors, the nominee acts independently in the nominated position, particularly since the restructuring of the business, which included Mr and Mrs MacLaughlin taking a backseat in the business as Directors and handing the General Manager role to their daughter who has responsibility for strategy, corporate and finance.

1. The applicant has provided evidence of the nominee undertaking the tasks of the nominated position, to demonstrate the nominee has been independently performing the management tasks associated with this role and Mr MacLaughlin described this in detail at the hearing. This included evidence of the nominee’s skills and experience in the role, including practical experience and previous employment in similar roles in South Africa and in management roles in England, as well as reference letters attesting to his capabilities and experience. Mr MacLaughlin noted that the nominee was identified for his prior experience as well as his growth potential which had proven to be critical to the business. Mr MacLaughlin described the nominee as being a key member of staff, noting that his team has doubled since commencing with the business with key oversight, management and coordination responsibilities for the farming operations.

1. ANZSCO states the following indicative skill level for a Mixed Crop Farmer in Australia and New Zealand:

Most occupations in this unit group have a level of skill commensurate with a bachelor degree or higher qualification. At least five years of relevant experience may substitute for the formal qualification. In some instances, relevant experience and/or on-the-job training may be required in addition to the formal qualification (ANZSCO Skill Level 1).

1. The applicant has provided evidence of the nominee’s prior skills and experience in similar roles in South Africa and England as evidence of meeting the skill level requirements, noting that the nominee does not have formal qualifications for the role. The Tribunal accepts that the nominee has relevant experience substituting for the formal qualifications.

1. The Tribunal has considered the totality of the evidence before it, including written and oral submissions and documentation and evidence relating to the nature of the business, and is satisfied that the majority of the nominee’s tasks are consistent with the higher-level tasks associated with the nominated position. Accordingly, the Tribunal finds that r.5.19(4)(h)(ii)(D) is met.

1. There are no additional specifications relating to the nominated position. Accordingly, the Tribunal finds that r.5.19(4)(h)(ii)(DA) is met.

1. Accordingly, the requirements of r.5.19(4)(h) are met.

1. Based on the findings above, the Tribunal is satisfied that the applicant meets the requirements of r.5.19 for approval of the nomination of the position in Australia.

DECISION

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

Phoebe Dunn Member

ATTACHMENT - EXTRACTS FROM THE MIGRATION REGULATIONS 1994

5.19 Approval 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).