Starcastle Investments Pty Ltd (Migration)
[2021] AATA 2791
•16 June 2021
Starcastle Investments Pty Ltd (Migration) [2021] AATA 2791 (16 June 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT: Starcastle Investments Pty Ltd
CASE NUMBER: 1825344
HOME AFFAIRS REFERENCE(S): BCC2017/4422129
MEMBER:Glenn O’Brien
DATE:16 June 2021
PLACE OF DECISION: Brisbane
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.
Statement made on 16 June 2021 at 6:12pm
CATCHWORDS
MIGRATION – Employer Nomination – approval of nominated position – Direct Entry nomination stream – Grape Grower – term of employment – financial capacity – evidence of wine sales – decision under review set asideLEGISLATION
Migration Regulations 1994 (Cth), r 5.19CASES
Bharaj Construction Pty Ltd v MIBP (No 3) [2019] FCCA 31STATEMENT 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 14 August 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 (the Regulations).
The applicant applied for approval on 23 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).
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)(d)(i) of the Regulations because the delegate was not satisfied the applicant had demonstrated the financial capacity to employ the nominee in the nominated position full-time for at least two years.
On 9 April 2021, the Tribunal wrote to the applicant pursuant to s 359(2) of the Migration Act 1958 (the Act) inviting them to provide current information addressing the relevant criteria under reg 5.19 of the Regulations. In response, the Tribunal received material including, but not limited to, written submissions, financial records, ASIC information, an employment contract, an organisational chart, and various training documents and invoices. All material received prior to the review hearing has been duly considered by the Tribunal.
Mr Luke Watts and Ms Rebecca Grummet appeared before the Tribunal on 4 June 2021 to give evidence and present arguments.
The applicant was represented in relation to the review by its registered migration agent.
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.
On the basis of the evidence before the Tribunal, the Tribunal is satisfied the nomination application was made using the relevant online form. As the position is in regional Australia no prescribed fee is payable. In completing the application, the required certification in relation to s 245AR(1) of the Act and the required identification of a need to employ a paid employee to work in the nominated position under the nominator’s direct control were provided in the application form.
While this sub-regulation relates to compliance of the application with the Regulations and a number of matters that must be set out in the application, a decision maker must still be satisfied the requirements of the sub-regulation have been met. This requires an assessment of the applicant’s stated reasons to determine whether or not an applicant has in fact established an identified need as opposed to a mere declaration by the applicant that such a need exists. To interpret otherwise would suggest that, provided reasons for a need are set out in an application by a nominator, irrespective of the veracity of them, the requirement would be satisfied. The Tribunal does not accept that proposition.
The Tribunal has carefully considered the genuine need statement of Ms Angela Godsen and the oral evidence of Mr Watts and Ms Grummet, in particular Mr Watts’ evidence in relation to the geographically distinct regions in which the business employs its staff. Notably, the nominee works at the Bridgeland Vineyard.
On the basis of the evidence before the Tribunal, the Tribunal is satisfied the nomination application was made using the relevant online form. Consistent with reg 5.37(2)(a) of the Regulations, there is no fee payable in respect of a nomination where the position is located in regional Australia. In completing the application, the required certification in relation to s 245AR(1) of the Act and the required identification of a need to employ a paid employee to work in the nominated position under the nominator’s control was provided in the application form.
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 applicant company was registered on 13 May 2002. The shares of the company are ultimately owned by Starcastle Holding Company Inc. registered in the United States of America. Notably, a restructure of the business occurred on around 2018 in relation to the sale distribution of wines when domestic sales were transferred to Midlink Pty Ltd (ABN 52 156 006 361). This is relevant as it has an effect on the financial accounts of the applicant given domestic sales are recorded in the accounts of Midlink evidenced by the fact that in the financial accounts of the applicant for the year ending 30 June 2019 the value of closing inventories was zero.
Having carefully reviewed the evidence before the Tribunal, the Tribunal is satisfied 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 has considered the position description and an employment contract between the applicant and the nominee initially made on 19 August 2016. The contract provides for the nominee’s direct employment by the applicant in the role of vineyard supervisor. By way of letter dated 16 April 2021 the applicant offered the nominee a further two-year contract of employment.
Accordingly, the requirement in reg 5.19(4)(c) is met.
Term of employment of the visa holder: reg 5.19(4)(d)
Regulation 5.19(4)(d) requires the nominee to be employed in the nominated position for at least two years full time, and the terms and conditions of that employment do not expressly exclude the possibility of an extension.
The delegate was not satisfied that the applicant had demonstrated the financial capacity to employ the nominee in the nominated position for at least two years. The delegate did not have the benefit of the financial information before the Tribunal. The financial reports of the business evidence total sales of $1,550,462 and $1,205,082 for the financial year ending 30 June 2019 and 2020 respectively. Gross profit for the same periods was $1,161,434 and $1,035,461. For the year ending 30 June 2020 the net loss was $921,605.
The applicant told the Tribunal that there was a dip in export sales due to COVID-19, however the business has rebounded with the current financial year being the strongest year in terms of wine sales. The domestic market has offset the reduction in export sales. Notably, the business activity statements for the periods from June 2020 to March 2021 indicate increases in sale income over the previous corresponding periods in the previous financial year.
Notably, the applicant employs nine full-time staff and the nominee has been employed in the nominated position since 2016 and the applicant has met their obligations with respect to wages and other entitlements.
The Tribunal had regard to the evidence of Mr Watts and Ms Grummett which indicated the applicant will be employed for a minimum of two years after the date of the grant of his Subclass 186 visa. Further, the Tribunal had regard to the financial records provided to the Tribunal in its annual reports. Notably, the applicant has been employed in the position since August 2016. Prior to August 2016 the nominee was employed on a casual basis.
The Tribunal is satisfied that there is no information before the Tribunal that the applicant would not be in a financial position to employ the nominee for at least two years.
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 applicant’s current salary increased in 2021 to $55,088 effective 16 April 2021.
At the time of the application, the applicant provided to the Department a contract of an Australian citizen performing equivalent work in the same workplace at the same location which was consistent with the terms and conditions offered to the nominee.
Limited market research was provided by the applicant; however, the applicant undertakes annual salary and performance reviews. Notably, the nominee is renumerated above the applicable Western Australia Fruit Growing and Fruit Packing Industry Award. In considering the evidence before the Tribunal, the Tribunal is satisfied the nominee’s terms and conditions of employment are no less favourable that those that are, or would be offered 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 a 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 reg 1.13A and reg 1.13B.
There is no information before the Tribunal to indicate there is any adverse information known to the Department about the nominator or person associated with the nominator.
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 suggest that the applicant does not have a satisfactory record of compliance with workplace relations laws in Australia.
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 15/083);
·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 nominated position of Grape Grower (ANZSCO 121215) is located in Bridgeland WA. The term ‘regional Australia’ was defined in reg 5.19(7) of the Regulations to mean a part of Australia specified by the Minister in an instrument in writing for this definition. Although IMMI 17/059 was repealed by the current legislative instrument IMMI 18/037, the current legislative instrument only applies to nominations lodged on or after 18 March 2020.
In those circumstances, the Tribunal is satisfied that both the position and the business operated by the applicant are located in regional Australia and the requirements in reg 5.19(4)(h)(ii)(A) and reg 5.19(4)(h)(ii)(E) are met.
The Tribunal considered the genuineness of the position associated with the nominated position. In Cargo First Pty Ltd v MIBP [2016] FCA 30, the Court upheld (at [34]) the Tribunal’s approach of qualitatively assessing the position comparing this with the occupation nominated in order to determine it was genuine.
The duties of the nominated position of Grape Grower (ANZSCO 121215) correspond to those of an occupation specified by the Minister in the relevant instrument and set out in Unit Group 1212 as follows:
UNIT GROUP 1212 CROP FARMERS
CROP FARMERS plan, organise, control, coordinate and perform farming operations to grow crops.Indicative Skill Level:
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).
Tasks Include:·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
·selecting and planting seeds, seedlings and bulbs, and grafting new varieties to root stocks
·maintaining crop production by cultivating, de-budding and pruning, and maintaining optimal growing conditions
·organising and conducting farming operations, such as collecting, storing, grading and packaging produce, and organising the sale, purchase and despatch of produce
·directing and overseeing general farming activities such as fertilising and pest and weed control
·maintaining farm buildings, fences, equipment and water supply systems
·maintaining and evaluating records of farming activities, monitoring market activity, and planning crop preparation and production to meet contract requirements and market demand
·managing business capital including budgeting, taxation, debt and loan management
·may select, train and supervise staff and contractors
121215 GRAPE GROWER
Plans, organises, controls, coordinates and performs farming operations to grow table or wine grapes.Skill level: 1
Specialisation:
Viticulturist
The applicant’s nominated position of vineyard supervisor undertakes the following tasks (as set out in the position description) under four main functions being labour tasks, equipment operations, workplace health and safety, and supervision. Having carefully considered those tasks and ANZSCO 121215, the Tribunal is satisfied the tasks of the nominated position correspond to those tasks as set out in ANZSCO and that the position is a skill level 1 position.
The Tribunal is also satisfied that a regional certifying body (RCB) located in Queensland 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. Consistent with the Federal Circuit Court of Australia decision in Bharaj Construction Pty Ltd v MIBP (No 3) [2019] FCCA 31, certification is not sufficient or determinative of the matters set out in the subject regulations. Accordingly, the Tribunal, while having regard to the advice provided by the RCB, has reached its own conclusions about the matters the subject of the RCB advice for the reasons set out herein.
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.
Glenn O’Brien
MemberATTACHMENT - EXTRACTS FROM THE MIGRATION REGULATIONS 1994
5.19Approval of nominated positions (employer nomination)
…
(2)The application must:
(a)be made in accordance with approved form 1395…; and
(aa) include a written certification by the nominator stating whether or not the nominator has engaged in conduct, in relation to the nomination, that constitutes a contravention of subsection 245AR(1) of the Act; and
(b)be accompanied by the fee mentioned in regulation 5.37.
…
Direct Entry nomination
(4)The Minister must, in writing, approve a nomination if:
(a)the application for approval:
(i) is made in accordance with subregulation (2); and
(ii) identifies a need for the nominator to employ a paid employee to work in the position under the nominator’s direct control; and
(b)the nominator:
(i) is actively and lawfully operating a business in Australia; and
(ii) directly operates the business; and
(c)for a nominator whose business activities include activities relating to the hiring of labour to other unrelated businesses — the position is within the business activities of the nominator and not for hire to other unrelated businesses; and
(d)both of the following apply:
(i) the employee will be employed on a full-time basis in the position for at least 2 years;
(ii) the terms and conditions of the employee’s employment will not include an express exclusion of the possibility of extending the period of employment; and
(e)the terms and conditions of employment applicable to the position will be no less favourable than the terms and conditions that:
(i) are provided; or
(ii) would be provided;
to an Australian citizen or an Australian permanent resident for performing equivalent work in the same workplace at the same location; and
(f)either:
(i) there is no adverse information known to Immigration about the nominator or a person associated with the nominator; or
(ii) it is reasonable to disregard any adverse information known to Immigration about the nominator or a person associated with the nominator; and
(g)the nominator has a satisfactory record of compliance with the laws of the Commonwealth, and of each State or Territory in which the applicant operates a business and employs employees in the business, relating to workplace relations; and
(h)either:
(i) 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).
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
Legal Concepts
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Judicial Review
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Statutory Construction
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Procedural Fairness
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Jurisdiction
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