Sunshine Valley Group Pty Ltd (Migration)

[2018] AATA 3909

Sunshine Valley Group Pty Ltd (Migration) [2018] AATA 3909 (13 August 2018)

DECISION RECORD

DIVISION:  DIVISION:  Migration & Refugee Division

APPLICANT:  APPLICANT:  Sunshine Valley Group Pty Ltd

CASE NUMBER:  CASE NUMBER:  1730949

DIBP REFERENCE(S):  DIBPREFERENCE(S):  BCC2017/2238345

MEMBER:  MEMBER:  Peter Emmerton

DATE:  DATE:  13 August 2018

PLACE OF DECISION:  PLACE OF DECISION:  Adelaide

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

Statement made on 13 August 2018 at 12:39pm  

CATCHWORDS
MIGRATION – Employer Nomination – approval of nomination – direct entry nomination stream – capacity to pay full-time salary – employment contract – cognisant of workplace relations expectations – genuine need for the position – job description – decision under review set aside

LEGISLATION
Migration Regulations 1994 (Cth), rr 1.13A, 1.13B, 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 Immigration on 17 November 2017 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).

2. The applicant applied for approval on 24 June 2017. 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 (r.5.19(3)) stream and a Direct Entry nomination (r.5.19(4)) stream. 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).

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

4. The delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19.(4)(d)(i) of the Regulations because they were not satisfied that the nominator had demonstrated the capacity to pay the full-time salary for the nominated position for at least 2 years.

5.     The applicant, represented by Ms Haiyan Zhang, the General Manager appeared before the Tribunal on 13 August 2018 to give evidence and present arguments.

6.     The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

7.     The applicant was represented in relation to the review by its registered migration agent.

8.     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

9. 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 of the requirements must be met.

10.      In determining the applicant’s claims the Tribunal must first make findings of fact on material matters in dispute.  This may involve an assessment of credibility and in so doing, the Tribunal is aware of the need and importance of being sensitive to the circumstances and the difficulties applicants often face before the Tribunal in their particular circumstances.

11.      The applicants rely on the evidence given before the Tribunal together with written submissions and supporting evidence provided to the Tribunal and previously to the department.

12.      The nominating entity operates a modest export business specialising in sourcing and exporting premium Australian foods to China.

13.      It is located in the Barossa Valley and has Directors in common with a substantial winery also specialising in exports to China.

14.      The profit for FY 2017 was $36,217 before tax and for FY 2016 a loss of $436. The FY 2018 is expected to be a modest profit.

15.      The Organisation Chart shows the visa applicant reporting to the Director via the General Manager, who is a recent appointee to a newly created role.

16.      The nominee has a Bachelor of English, a Master of International Business Law (Sydney University) and a Master of Professional Accounting (University of Technology Sydney).

17.      The nominee has the following responsibilities:

·      determining, implementing and monitoring purchasing, storage and distribution of the company’s products;

·      preparing and implementing plans to maintain required stock levels at minimum cost;

·      negotiating contracts with suppliers to meet quality, cost and delivery requirements;

·      monitoring and reviewing storage and inventory systems to meet supply;

·      operating recording systems to track all movements of supplies and finished goods;

·      liaising with other staff members and customers concerning specific stock requirements and associated forwarding transportation;

·      overseeing the recording of purchase, storage and distribution transactions;

·      liaising with key stakeholders within the business to identify and respond to customer expectations;

·      supervision of staff that report directly to the position;

18.      The Tribunal questioned Ms Zhang in detail about the need for the nominee’s position and why it could not be filled by an Australian citizen. The challenges associated with hiring a suitably qualified Purchasing Manager, in the food export Industry with a linguistic and cultural understanding of the Chinese and Australian market places, were clearly articulated.  Evidence was provided to the Tribunal of the salary determination, detailed recruitment processes, and associated recruitment advertising in 2017, which were utilised when recruiting for this role.

19.      The Tribunal perused popular employment web sites prior to the hearing in order to ascertain the current state of the market in this field. The Tribunal observed a number of related vacancies, in a wide variety of industries, locations and establishments, currently under recruitment. The Tribunal is cognisant that some of the observed positions may appear to be equally or more attractive environments to some candidates than the nominated position.

20.      It was explained to the Tribunal that a total of 8 applications were received in response to the recruitment process undertaken by Southern Cross Personnel with only 3 applicants deemed potentially suitable and subsequently short-listed for interview. This included the current visa applicant. A written explanation was provided for each applicant in regards to their suitability for the role.

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

21.      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.

22. The Tribunal finds that the application was lodged electronically using the elodgement facility. The nomination was made under the RSMS Direct Entry stream (r.5.19(4)(h)(ii)) and consequently no fee is payable. The Tribunal finds the applicant meets r.5.19(2). The Tribunal is satisfied that the application has identified a need for a paid employee to work in the position of Purchasing Manager under direct control of the applicant. 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)

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

24. The Tribunal was provided with the Tax Returns for FY 2016 and FY 2017, ASIC Registration and recent BAS statements for FY 2018. The Tribunal in addition checked the status of the listed ABN. The Tribunal is satisfied that the applicant is actively, lawfully and directly operating a business in regional Australia. Accordingly, the requirement in r.5.19(4)(b) is met.

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

25.      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 finds that r. 5.19(4)(c) is not relevant to the current nomination.

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

26.      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.

27. The Tribunal notes that the delegate refused the application on the basis that the applicant’s nomination did not satisfy r.5.19.(4)(d)(i) of the Regulations because they were not satisfied that the nominator had demonstrated the capacity to pay the full-time salary for the nominated position for at least 2 years.

28.      The Tribunal has formed a view that this was in part due to the failure of the nominator to provide sufficient evidence to the delegate prior to them having to make their decision. The Tribunal was provided with substantially more detailed evidence which included the 2017 Business Tax Return and details regarding the recruitment process.

29.      The Tribunal notes that the business has operated since 2015 and appears to be in a stable state with positive revenue and profit growth results in their second year of operation. This perception was reinforced, by the provision, prior to the hearing, of the P and L and the Business Tax Returns for FY 2016 and 2017, plus the current BAS statements. The testimony provided at the hearing added further weight to the view that the organisation was financially able to support the visa applicant’s position. The Tribunal is aware that the nominating entity has the Directors in common with a substantial winery, “1847” and is in part working with common clients. The General Manager affirmed under questioning that the Directors would invest additional funds in the unlikely event that it be necessary to ensure financial stability.  The investment in a General Manager further demonstrates their financial commitment to the business’s growth. The Tribunal further notes the statement provided by the nominating entity’s accountant attesting to their sound financial state and ability to pay all debts when they fall due.

30.      The Tribunal has had regard to the signed Employment Agreement dated 23 June 2017 and is satisfied that the nominee will be appointed for a period of at least 2 years employment from grant of visa and the terms of employment do not include an express exclusion of the possibility of extending the period of employment.

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

31.      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.

32. The Tribunal has been provided with the visa applicant’s employment contract. The Tribunal accepts that the nominee’s annual salary at $72,000 exclusive of Superannuation, as appropriate and is reflective of her experience relevant to the nominated position. Additionally the Tribunal researched the salaries offered for similar positions and had regard for the salary determination evidence presented by the nominating entity prior to the hearing. The Tribunal is satisfied that the terms and conditions of employment are equivalent to other employees with the same experience performing equivalent work in the same workplace. Accordingly the requirements of r.5.19(4)(e) are met.

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

33. 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. There is no evidence before the Tribunal that the applicant has an unsatisfactory record of compliance with the immigration laws of Australia. Accordingly the requirements of r.5.19(4)(f) are met.

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

34. 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. When the Tribunal questioned the nominator regarding workplace conditions, it was evident that she was cognisant of workplace relations expectations. Furthermore, she demonstrated an understanding of appropriate employee conditions as a way of retaining employees and subsequently providing quality service. There is no evidence before the Tribunal that the applicant has anything but a satisfactory record of compliance with workplace relations law in Australia. 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)

35. Regulation 5.19(4)(h) contains alternative requirements. These are set out in detail in the attachment to the decision. As stated above the nomination was made under the RSMS Direct Entry stream and the Tribunal has proceeded to assess the application against the criteria in r.5.19(4)(h)(ii) which require that:

·the position and nominator’s business are 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 Australian citizen or permanent resident;

·the tasks of the position correspond to those of an occupation at the ANZCO skill level 1, 2 or 3; and

·a regional certifying body has advised the Minister about certain matters relating to the position.

36.      The Tribunal has had regard to the size and scope of the nominating entity’s business operations; the length of the visa applicant’s employment, their experience and qualifications and is satisfied that there is a genuine need for the nominator to employ a paid employee to work in the position under the nominator’s direct control.

37.      The Tribunal is satisfied the position cannot be filled by an Australian citizen or permanent resident. The Tribunal is satisfied that the nominator’s business is located in regional Australia.

38. Regulation r.5.19(4)(h)(ii)(D), requires that the tasks to be performed in the position correspond to those at ANZSCO skill level 1, 2 or 3. The position of Purchasing Manager, nominated by the applicant, is referred to in ANZSCO as a skill level 1 position. The delegate did not question that this requirement had been met. The Tribunal also notes that the title of Purchasing Manager and the alternate title of Procurement Manager, are both listed by ANZSCO in their descriptions.

39. The Tribunal considered the tasks found in ANZSCO for this position and compared them to the job description provided by the applicant. The Tribunal undertook detailed questioning of the nominating entity in order to arrive at a clear and comprehensive understanding of the information before it. The Tribunal is satisfied that the position located in South Australia, can properly be classified as a position for a Purchasing Manager ANZSCO Skill Level 1. The Tribunal therefore finds that the nomination satisfies r.5.19(4)(h)(ii)(D) of the Regulations.

40.      The Tribunal has had regard to Form 1404 issued by a RCB (Department of Manufacturing, Innovation, Trade Resources and Energy), dated 11 December 2017 and is satisfied that the applicant has advised the Minister about matters relating to the terms and conditions of employment, the genuine need for the position and that the position cannot be filled locally. The Tribunal notes that the RCB was not satisfied due to insufficient evidence of recruitment activity being provided to the RCB. This was rectified by the materials provided to the Tribunal prior to the hearing and the testimony provided at the hearing.

41. 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

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

Peter Emmerton
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 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).