Starcastle Investments Pty Ltd (Migration) - [2021] AATA 2791

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 aside
LEGISLATION
Migration Regulations 1994 (Cth), r 5.19
CASES
Bharaj Construction Pty Ltd v MIBP (No 3) [2019] FCCA 31
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 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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2021] AATA 2791
Decision Date: 16 June 2021

CaseChat Overview and Summary

This matter concerned an application by Starcastle Investments Pty Ltd for approval of a nominated position under the Direct Entry stream of the Employer Nomination scheme. The applicant sought to nominate a Grape Grower position. The Administrative Appeals Tribunal was required to determine whether the applicant met all the requirements for approval of the nomination as set out in regulation 5.19(4) of the Migration Regulations 1994.

The Tribunal considered several legal issues, including whether the nomination application was compliant with the prescribed form and fee requirements, and whether there was a genuine need for the nominated employee to work under the nominator's direct control. Further issues included whether there was any adverse information known to Immigration concerning the nominator, whether the nominator had a satisfactory record of compliance with workplace relations laws, and whether the nominated position met the criteria relating to the tasks of the position, a genuine need, and training requirements, particularly given the position was located in regional Australia.

The Tribunal reasoned that the application was made in the approved form and, as the position was in regional Australia, no fee was payable. It was satisfied that the application identified a genuine need for a paid employee under the nominator's direct control, distinguishing this from a mere declaration of need. The Tribunal found no adverse information known to Immigration, nor any evidence suggesting a lack of satisfactory compliance with workplace relations laws. Crucially, it determined that the nominated position of Grape Grower, located in Bridgeland, Western Australia, satisfied the requirements for positions located in regional Australia, including a genuine need and the inability to be filled by a local Australian citizen or permanent resident.

Accordingly, the Tribunal set aside the original decision and substituted a decision approving the nomination.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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.

Decision

Reasons for decision

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’BrienMemberATTACHMENT - EXTRACTS FROM THE MIGRATION REGULATIONS 19945.19Approval 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).

Ratio Decidendi

Legal Principle Established

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.