Sparacino & Sons Pty Ltd (Migration)

Sparacino & Sons Pty Ltd (Migration) [2022] AATA 1600 (4 March 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Sparacino & Sons Pty Ltd
REPRESENTATIVE:  Mr Kumar Rahul (MARN: 1800328)
CASE NUMBER:  1831795
HOME AFFAIRS REFERENCE(S):          BCC2018/316904
MEMBER:Joanne Bakas
DATE:4 March 2022
PLACE OF DECISION:  Adelaide
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Statement made on 04 March 2022 at 5:58pm
CATCHWORDS
MIGRATION–nomination – Direct Entry nomination stream – Agricultural Technician – nominee has been employed by the business on a full time basis for more than four years after the nomination was lodged – applicant has the financial capacity to support the nominated position –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 – decision under review set aside
LEGISLATION
Migration Act 1958, ss 65, 140GB, 245AR
Migration Regulations 1994, r 5.19
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 17 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 19 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 r.5.19(4)(a)(ii) of the Regulations because the delegate was not satisfied that applicant had demonstrated the need to employ a paid employee to work in the position under the nominator’s direct control.
The applicant appeared before the Tribunal via telephone on 30 November 2021 to give evidence and present arguments.
The applicant was represented in relation to the review. The representative attended the Tribunal hearing via telephone.
The Tribunal exercised its discretion to hold the hearing by telephone. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, 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.
For the sake of completeness, the Tribunal notes that the departmental file included a section 376 certificate which the Tribunal is satisfied was valid. It was dated 17 November 2021 and signed. At the hearing the Tribunal informed the applicant about the section 376 certificate and that it generally relates to concerns that disclosing the material would or be likely to prejudice the effectiveness of the departmental methods detailed in the material. The applicant was also informed that the Tribunal had assessed the attached information and found it not to be relevant to this review. Nevertheless the applicant was provided an opportunity to comment or respond but declined to do so. In any event, the Tribunal is satisfied that the content of the information was not relevant in regard to the decision before it.
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.
Having regard to the documentation in the file of the Department, the Tribunal is satisfied that the application for approval was in the approved form. The application relates to a visa in the Direct Entry stream seeking to meet the requirements in the Regional Sponsored Migration Scheme and consequently no fee is payable (reg 5.19(2) and reg 5.37(4) of the Regulations). The application included a written certification stating that the applicant had not engaged in conduct in relation to the nomination that contravenes s 245AR(1) of the Act. The requirements of reg 5.19(2) and consequently of reg 5.19(4)(a)(i) are therefore met.
Regulation 5.19(4)(a)(ii) requires that the application 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. It is unclear whether this requirement is directed just at a statement to this effect or something of a more qualitative nature. The wording ‘identifies a need’ arguably suggests more is required to meet this criterion than simply a statement or declaration that there is such a need. ‘Identify’ is defined as ‘to recognise or establish as being a particular person or thing; verify the identity of.’[1] On that view, which is consistent with that reflected in Departmental policy[2] and is the basis for the delegate’s decision in this matter, a decision maker would need to be satisfied there is a genuine need on the part of the nominator to employ someone in the nominated position. However, it could alternatively be argued that reg 5.19(4)(a) as a whole is directed towards requirements for the application form/process of a more administrative nature, such that reg 5.19(4)(a)(ii) could be met by a simple statement or certification of need. Support for this view can also be found in the contrast between the wording of reg 5.19(4)(a)(ii) and, for example, reg 5.19(4)(h)(ii)(B) (for applications relating to positions in regional Australia), which requires that there be a genuine need for the nominator to employ a paid employee to work in the position under the nominator’s direct control – clearly requiring a qualitative assessment, and reg 5.19(4)(d)(i), which requires satisfaction that the employee will be employed on a full-time basis in the position for at least two years. Given the uncertain scope of reg 5.19(4)(a)(ii), and the requirement in relation to this application to satisfy reg 5.19(4)(h)(ii)(B), the Tribunal considers that this issue is more appropriately considered under reg 5.19(4)(h)(ii)(B) later in these Reasons.
[1] Macquarie Dictionary (online at 30 March 2021) ‘identify’.
[2] Policy – Migration Regulations – Divisions – Div 5.3 – General > Approval of nominated positions (employer nomination) > Part C - Criteria applicable to Direct Entry stream nominations > Need for a paid employee > Applicability and overview (reissued 12/05/17 – last reissue prior to 1 July 2017).
The Tribunal considers that reg 5.19(4)(a)(ii) is more directed to the administrative process, consistent with the requirements of reg 5.19(4) as a whole. The nomination application identifies that the position to be filled is that of Agricultural Technician. The Tribunal is therefore satisfied that the application for approval identifies a need for the nominator to employ the nominee (Mr Gurjinder Singh Pandher), a paid employee, to work in the position of Agricultural Technician under the applicant’s direct control such that reg 5.19(4)(a)(ii) is met. The Tribunal will consider later in these Reasons whether the applicant has established a genuine need for the applicant to employ a paid employee to work in the position under the nominator’s direct control for the purposes of reg 5.19(4)(h)(ii)(B).
Having found that reg 5.19(4)(a)(i) and (ii) are met, 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 documents before the Tribunal show the nominating business, Sparacino & Sons Pty Ltd was first registered on 25 October 2012 with the ACN 160 942 423 and ABN of 31 160 942 423 and is currently active.
The applicant’s tax returns for the 2019 and 2020 financial years were submitted to the Tribunal as well as financial accounts for these years. A number of Business Activity Statements were also submitted to the Tribunal for the period April 2019 to March 2021.
Having considered all of the evidence before it, the Tribunal is satisfied that the nominator 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 information before the Tribunal that indicates the applicant is involved in labour hire activities or in the hiring of labour to other unrelated businesses.
Accordingly, the requirement in r.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 applicant stated in the application form dated 19 January 2018 that they will provide full time employment for the nominee for at least two years in the role of Agricultural Technician and pay a salary of $54,000 per annum in addition to superannuation.
The applicant has provided a letter of engagement with a start date of 22 November 2017 which states that the employment contract is for a full time position as an Agricultural Technician (ANZSCO 311111). Superannuation is paid in addition to the wages.
The contract does not expressly preclude the possibility of an extension.
Following the hearing the applicant provided a letter dated 7 December 2021 from their accountant, LCI Partners. The letter details that in the 2020 financial year the applicant made an accounting profit before tax of $378,989. Further, even though the applicant had tax losses for the 2019 and 2020 years, these were as a result of tax law changes allowing for immediate write off of assets. The accountant confirms that the applicant is trading profitably and that it appears from the BAS information for the 2021 financial year, that the applicant continues to trade profitably.
An earlier letter from LCI Partners, dated 13 July 2021, states that they have acted as accountants and advisors for the applicant for more than five years. They are of the opinion that the records and projections show that the applicant is financially capable of employing the nominee as a full time employee for at least the next two years.
The Tribunal notes that the nominee has been employed by the business on a full time basis for more than four years after the nomination was lodged.
Based on all of the evidence before it, the Tribunal is satisfied that the applicant has the financial capacity to employ the nominee on a full time basis in the nominated position for two years full time and that the nominee will be employed in the nominated position for at least two years. The Tribunal has had regard to the employment agreement and is satisfied that the terms and conditions of the nominee’s employment does not include an express exclusion of the possibility of extending the period of employment.
Accordingly, 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’s submissions included that the nominee’s position is classed as Level 5 under the Horticultural Award [MA000028] which is currently paid $899.50 per week. However, they are paying the nominee a higher salary of $54,000 per annum in addition to superannuation.
The applicant also provided evidence from PayScale showing the average agricultural technician base salary as $54,648 in Australia. Data provided by the applicant from Jora shows the average salary for an agricultural technician in Australia is $50,000 to $70,000.
In addition an advertisement from Jobactive shows a salary offer of $40,000 to $60,000 in the Finley area.
The Tribunal notes that the current salary range for the nominated role in Australia is $40,000 to $70,000 with the typical salary being $55,000. The data was not available for New South Wales.
Further, the Tribunal notes that a Regional Certifying Body Advice dated 18 January 2018, advises that 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 equivalent work in the same workplace at the same location.
Having considered all of the documentation before it, the Tribunal is satisfied that the terms and conditions of employment relating to the nominated position will be no less favourable than those that are provided or 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 that suggests there is any adverse information known to the Department about the nominator or a person ‘associated with’ the nominator.
Accordingly, the requirements of r.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 that indicates the applicant does not have a satisfactory record of compliance with the laws of the Commonwealth or of, relevantly, New South Wales, relating to workplace relations.
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 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 18/005) 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.
The applicant applied for the nomination as a Regional Sponsored Migration Scheme position. They are therefore required to meet the second set of requirements stated above.
To meet the second set of requirements detailed in r.5.19(4)(h)(ii), all of the following must apply:
·the position is located in ‘regional Australia’ (r.5.19(4)(h)(ii)(A));
·there is a genuine need to employ a paid employee to work in the position under the nominator’s direct control (r.5.19(4)(h)(ii)(B));
·the position cannot be filled by an Australian citizen or permanent resident who is living in the same local area (r.5.19(4)(h)(ii)(C));
·the tasks to be performed in the position correspond to the tasks of an occupation specified by instrument (r.5.19(4)(h)(ii)(D));
·the occupation is applicable to the person identified under subparagraph (a)(ii) in accordance with the specification of the occupation (r.5.19(4)(h)(ii)(DA));
·the business operated by the nominator is located at that place ((r.5.19(4)(h)(ii)(E)); AND
·a Regional Certifying Body located in the same State or Territory as the position has advised the Minister about the matters in r.5.19(4)(e) and r.5.19(4)(h)(ii)(B) & (C) - (r.5.19(4)(h)(ii)(F)).
The Tribunal is satisfied from the evidence before it that the nominated position and business is located in Peats Ridge, New South Wales which has the postcode 2250.
‘Regional Australia’ is defined in r.5.19(7) by reference to a written instrument by the Minister specifying which areas are considered to constitute ‘regional Australia’ for the purposes of r.5.19(4)(h)(ii)(F). At the time that the nomination was lodged, the relevant instrument was IMMI 17/059 which specified that the postcode 2250 is in ‘regional Australia’. While there has been a new legislative instruments that has come into effect and revoked IMMI 17/059, it has continued to consider the postcode 2250 as being in ‘regional Australia’.
Accordingly, the Tribunal finds that the nominated position is based in regional Australia, satisfying r.5.19(4)(h)(ii)(A).
The Tribunal now turns to consider whether the applicant satisfied the remainder of the criteria as set out in r.19.(4)(h)(ii)(B) to (F).
In regard to there being a genuine need to employ a paid employee to work in the position of Agricultural Technician, the applicant’s submissions included that the nominee is the only person in the organisation employed as an agricultural technician. They used to employ a person previously but he had a hip operation and knee operation and could no longer perform the required duties. He was an Australian citizen and was being paid under the same award and level as the nominee.

The applicant has five farms (fruit orchard) and a wholesale busines in the Sydney Markets. The nominated position is particularly important as the business requires a qualified and experienced person for the orchard production. The nominated position is crucial for the effective operation of the applicant’s business.
In addition, the business is growing with an increase in turnover of $2,769,406 in the 2019 financial year to $3,211,769 in the 2020 financial year.
In regard to being unable to fill the role with an Australian citizen or permanent resident living in the same local area, the applicant’s submissions and documentation included that they advertised the position on Gumtree and in the local paper in May 2017 without success and again in the local paper on 7 and 14 December 2017. They have found it historically difficult to find anyone willing to work in farming. Apart from the nominee, five applicants applied as a result of the December 2017 advertisements but two did not show up for the interview and one was asking for too high a salary. The other two were not suitable candidates. The nominee was the only suitable candidate.
The submissions include a duty statement for the role of the nominee. Tribunal has had regard to the submissions provided in regard to the tasks already performed by the nominee and is satisfied that they correspond to the tasks of the occupation of Agricultural Technician (ANZSCO 311111), (specified in the relevant instrument (IMMI 17/058)).
The position of Agricultural Technician nominated by the applicant is recorded in ANZSCO as a Skill Level 2 position. The evidence before the Tribunal includes that the nominee obtained a Certificate III in Horticulture (Landscape) issued on 20 March 2010 from the College of Innovation and Industry Skills, a Diploma of Management issued on 24 March 2011 from Stanley College and a Diploma of Horticulture issued on 29 September 2017 from Brisbane College of Horticulture. The nominee also now has more than four years’ experience working as an Agricultural Technician.
The Tribunal notes that a Regional Certifying Body Advice dated 18 January 2018, advises that the nominated position cannot be filled by an Australian citizen or Australian permanent resident who is living in the same local area as the nominated position. It also advises that it was satisfied that there is a need for a paid employee in the nominated position within the business activities of the nominating employer.
Based on the evidence before it, including the applicant’s written and oral submissions and documentary evidence, the Tribunal is satisfied that there is a genuine need to employ a paid employee to work in the position under the nominator’s direct control, that the position cannot be filled by an Australian citizen or permanent resident who is living in the same local area, that the occupation is applicable to the nominee, that the business is located in regional Australia and that a regional certifying body, located in the same State as the position, has advised the Minister (in Form 1404) about the matters in r.5.19(4)(e), 5.19(4)(h)(ii)(B),and 5.19(4)(h)(ii)(C) as is required by regulation 5.19(4)(h)(ii)(F). In addition, the Tribunal is satisfied that the occupation is applicable to the nominee.
Accordingly, the requirements of r.5.19(4)(h) are met.
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
The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.
Joanne Bakas
Member
ATTACHMENT - EXTRACTS FROM THE MIGRATION REGULATIONS 1994
5.19Approval of nominated positions (employer nomination)
…
(2)The application must:
(a)be made in accordance with approved form 1395…; and
(aa) include a written certification by the nominator stating whether or not the nominator has engaged in conduct, in relation to the nomination, that constitutes a contravention of subsection 245AR(1) of the Act; and
(b)be accompanied by the fee mentioned in regulation 5.37.
…
Direct Entry nomination
(4)The Minister must, in writing, approve a nomination if:
(a)the application for approval:
(i)       is made in accordance with subregulation (2); and
(ii)      identifies a need for the nominator to employ an identified person as a paid employee to work in the position under the nominator’s direct control; and
(b)the nominator:
(i)       is actively and lawfully operating a business in Australia; and
(ii)      directly operates the business; and
(c)for a nominator whose business activities include activities relating to the hiring of labour to other unrelated businesses — the position is within the business activities of the nominator and not for hire to other unrelated businesses; and
(d)both of the following apply:
(i)       the employee will be employed on a full-time basis in the position for at least 2 years;
(ii)      the terms and conditions of the employee’s employment will not include an express exclusion of the possibility of extending the period of employment; and
(e)the terms and conditions of employment applicable to the position will be no less favourable than the terms and conditions that:
(i)       are provided; or
(ii)      would be provided;
to an Australian citizen or an Australian permanent resident for performing equivalent work in the same workplace at the same location; and
(f)either:
(i)       there is no adverse information known to Immigration about the nominator or a person associated with the nominator; or
(ii)      it is reasonable to disregard any adverse information known to Immigration about the nominator or a person associated with the nominator; and
(g)the nominator has a satisfactory record of compliance with the laws of the Commonwealth, and of each State or Territory in which the applicant operates a business and employs employees in the business, relating to workplace relations; and
(h)either:
(i)       all of the following apply:
(A)the tasks to be performed in the position will be performed in Australia and correspond to the tasks of an occupation specified by the Minister in an instrument in writing for this sub-subparagraph;
(AA)there is a genuine need for the nominator to employ the person identified under subparagraph (a)(ii), as a paid employee, to work in the position under the nominator’s direct control;
(AAA)the occupation is applicable to the person identified under subparagraph (a)(ii) in accordance with the specification of the occupation;
(B)either:
(I)the nominator’s business has operated for at least 12 months, and the nominator meets the requirements for the training of Australian citizens and Australian permanent residents that are specified by the Minister in an instrument in writing for this sub-sub-subparagraph; or
(II)the nominator’s business has operated for less than 12 months, and the nominator has an auditable plan for meeting the requirements specified in the instrument mentioned in sub-sub-subparagraph (I); or
(ii)      all of the following apply:
(A)the position is located in regional Australia;
(B)there is a genuine need for the nominator to employ the person identified under subparagraph (a)(ii), as a paid employee, to work in the position under the nominator’s direct control;
(C)the position cannot be filled by an Australian citizen or an Australian permanent resident who is living in the same local area as that place;
(D)the tasks to be performed in the position correspond to the tasks of an occupation specified by the Minister in an instrument in writing for this sub-subparagraph;
(DA)the occupation is applicable to the person identified under subparagraph (a)(ii) in accordance with the specification of the occupation;
(E)the business operated by the nominator is located at that place;
(F)a body that is:
(I)specified by the Minister in an instrument in writing for this sub-subparagraph; and
(II)located in the same State or Territory as the location of the position;
has advised the Minister about the matters mentioned in paragraph (e) and sub-subparagraphs (B) and (C).

[2022] AATA 1600

4 March 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Statutory Construction

Procedural Fairness

Jurisdiction