Tapaua Pty Ltd ATF Mills Family Trust (Migration)

Tapaua Pty Ltd ATF Mills Family Trust (Migration) [2021] AATA 945 (1 March 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Tapaua Pty Ltd ATF Mills Family Trust
CASE NUMBER:  1821282
HOME AFFAIRS REFERENCE(S):          BCC2016/2655772
MEMBER:Mary Sheargold
DATE:1 March 2021
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Statement made on 01 March 2021 at 4:16pm
CATCHWORDS
MIGRATION – application for approval of nomination of position – direct entry stream – genuine need for position – organisational chart and statement from director – turnover, profit and widely separated business locations – decision under review set aside
LEGISLATION
Migration Act 1958 (Cth), ss 359(2), 360(2)(a)
Migration Regulations 1994 (Cth), r 5.19(4)(h)(ii)(B)
CASE
Bharaj Construction Pty Ltd v MIBP [2016] FCCA 902

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 11 July 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).
The applicant applied for approval on 11 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).
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 r.5.19(4)(h)(ii)(B) of the Regulations because the applicant did not demonstrate that it had a genuine need to employ a paid employee to work in the role of Office Manager (ANZSCO 512111).
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 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.
On 21 January 2021, the Tribunal wrote to the applicant pursuant to s.359(2) of the Act inviting the applicant to provide information that demonstrated that the business meets all of the requirements of the criteria in r.5.19(4) of the Regulations at the time of the Tribunal’s decision. A copy of r.5.19(4) was annexed to the letter. A response to the request for information was due by 4 February 2021.
At 11:05pm on 4 February 2021, the applicant’s representative provided information as requested in the Tribunal’s letter dated 21 January 2021. The applicant’s representative provided the following documents:
·a copy of the trust deed for the Mills Family Trust dated 2 April 1992;
·a copy of the current and historical extract from the Australian Securities and Investments Commission (ASIC) for Tapaua Pty Ltd dated 29 January 2021;
·a copy of the current and historical business name extract from ASIC for the Emerald Hotel dated 29 January 2021;
·copies of income tax returns for the Mills Family Trust for the financial years ending on 30 June 2019 and 30 June 2020;
·a detailed financial statement for the applicant for the financial year ending on 30 June 2020;
·copies of business activity statements (BAS) for each quarter from July 2018 to September 2020, as well as for each of October and November 2020;
·an employment contract for the nominee dated 1 February 2021;
·an employment offer for the nominee dated 14 June 2016;
·an organisational chart for the applicant’s business;
·a extract from ANZSCO for Office Managers (512111);
·copies of advertisements placed for recruitment for the position of Office Manager;
·a copy of the Regional Certifying Body approval from the Queensland Chamber of Commerce and Industry dated 14 November 2016;
·a letter from Steven Mills to the Department in support of the application, dated 16 June 2016;
·a letter from Steven Mills to the Tribunal in support of the application, dated 1 February 2021;
·a letter of support from Ken O’Dowd MP to the Tribunal, dated 4 February 2021; and
·a letter of support from George Christensen MP, dated 4 February 2021.
On 8 February 2021, the Tribunal received a recent payslip for the nominee, for the week 1 to 7 February 2021.
Having considered all of the documentation submitted by the applicant, pursuant to s.360(2)(a) of the Act, the Tribunal has determined that it is able to decide the review in the applicant’s favour on the basis of the material now before it.
The application is compliant: r.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 a paid employee to work in the position under their direct control.
The Tribunal has reviewed the documentation in the Department’s file, and is satisfied that the applicant’s nomination application was made on the approved internet form, and the relevant s.245AR(1) certification was also provided in the application form. Consistent with r.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. The applicant has identified a need for an Office Manager at its hotel business located in Emerald, Queensland, under its direct control.
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)
Regulation 5.19(4)(b) requires that the applicant is actively, lawfully and directly operating a business in Australia.
The Tribunal has reviewed the ASIC current and historical company extract and business name extract provided by the applicant in relation to its business, as well as the trust deed for the Mills Family Trust. The Tribunal has also reviewed the income tax returns for the Mills Family Trust for the financial years ending on 30 June 2019 and 30 June 2020, the detailed financial statement for the applicant’s business for the financial year ending on 30 June 2020, the letter from Steven Mills to the Tribunal, and job advertisements to recruit for the position of Office Manager for its hotel business in Emerald, Queensland.
Based on the documents provided by the applicant to the Tribunal, the Tribunal is satisfied that the applicant is actively, lawfully and directly operating a business in Australia. Accordingly, the requirement in r.5.19(4)(b) is met.
Position is not labour-hire: r.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 applicant has provided the Tribunal with a letter from its director, Steven Mills, stating that the applicant needs to employ an administration manager at its Emerald location to support the operation of the applicant’s businesses. The Tribunal has considered the employment contract between the applicant and the nominee dated 1 February 2021 (the employment contract). The employment contract states that the nominee will be employed by the applicant to work in the position of Administration & Bookkeeping Manager at 73 Clermont Street, Emerald, Queensland, 4720.
Based on the evidence before it, the Tribunal is satisfied that the nominated position of Restaurant Manager is a permanent full-time position within the applicant’s business and that it does not involve the nominee being on-hired to any unrelated business. Accordingly, the requirement in r.5.19(4)(c) does not apply.
Term of employment of the visa holder: r.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.
In assessing this criterion, the Tribunal has considered the documents provided to the Tribunal, such as the employment contract, position description, organisational chart, payslip for the nominee, income tax returns for the Mills Family Trust, and the detailed financial statement for the applicant’s business, as well as the letter to the Tribunal from Steven Mills.
The employment contract states that the position is a full time position, and “as such it is a given that the position will be available for at least Four (4) years after the granting of your visa (Sub Class 187). Therefore, the Tribunal finds that the terms and conditions of employment do not expressly exclude the possibility of an extension. The employment contract states that the nominee will be required to work 38 ordinary hours per week. The employment contract states that the nominee’s salary will be $63,260, and that superannuation is paid at a rate of 9.5% per annum.
The Tribunal has considered the organisational chart for the applicant’s business as well as the detailed financial statement provided. The Tribunal notes that the nominee’s salary has been accounted for in the wage expenditure for the applicant’s business in the previous 2 financial years. The Tribunal notes that the applicant’s business has a multi-million dollar turnover and yields a modest net profit each year. Further, the Tribunal notes that the applicant has significant assets available to it.
Having considered all the evidence before it, the Tribunal is satisfied that the nominee will be employed in the position of Administration & Bookkeeping Manager on a full-time, permanent and ongoing basis for at least 2 years on terms that do not expressly exclude the possibility of an extension. Accordingly, the requirement in r.5.19(4)(d) is met.
No less favourable terms and conditions of employment: r.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 Tribunal has considered the terms set out in the contract of employment and the position description, and notes that the nominee’s salary is set at $63,260 per annum plus superannuation. The contract of employment states that superannuation will be paid at a rate of 9.5% of the nominee’s salary. The Tribunal notes that the leave and termination provisions are compliant with the applicant’s obligations under the relevant workplace relations legislation.
The Tribunal has considered the information available on PayScale regarding average salaries for an office manager in Australia. The average salary is stated as $61,174 per annum. The Tribunal has considered the nominee’s salary of $62,260 plus superannuation and finds that it is consistent with the salary range expressed on PayScale.
Having considered all of the evidence before it, the Tribunal finds that the applicant will provide the nominee with terms and conditions of employment that are no less favourable than those that 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: r.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 rr.1.13A and 1.13B.
There is no evidence before the Tribunal to suggest that there is any adverse information known about the applicant or any of its directors.
Accordingly the requirements of r.5.19(4)(f) are met.
Satisfactory compliance with workplace relations laws: r.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 r.5.19(4)(g) are met.
Tasks of the position genuine need for the position and training requirements r.5.19(4)(h)
Regulation 5.19(4)(h) contains a number of alternative requirements. As noted above, the applicant’s application was made under the RSMS Direct Entry stream. Accordingly, the Tribunal has assessed the application against the criteria in r.5.19(4)(h)(ii) of the Regulations, as at the time of lodgement of the nomination application, which required that:
·the position and nominator’s business is located in regional Australia;
·there is a genuine need for the nominator to employ a paid employee to work in the position under the nominator’s direct control;
·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;
·the tasks to be performed in the position correspond to the tasks of an occupation specified by the Minister in an instrument in writing; and
·a regional certifying body has advised the Minister about certain matters relating to the position.
Position and nominator’s business is located in regional Australia: r.5.19(4)(h)(ii)(A) and (E)
The first consideration under r.5.19(4)(h)(ii) is whether the position is located in regional Australia. Regulation 5.19(16) provides that “regional Australia” is defined by legislative instrument. The Tribunal has considered the current legislative instrument, Migration (IMMI 18/037: Regional Certifying Bodies and Regional Postcodes) Instrument 2018 (IMMI 18/037), that specifies the postcodes classed as “regional Australia” in accordance with r.5.19(16). However, Schedule 3 of IMMI 18/037 states that it applies only to applications lodged on or after 18 March 2018.[1] The Tribunal notes that IMMI 18/037 repealed the previous instrument, Migration (IMMI 17/059: Regional Certifying Bodies and Regional Postcodes) Instrument 2017 (IMMI 17/059).[2]
[1] Relevantly, IMMI 18/037, Schedule 3 – Application of this Instrument states: “(1) This instrument applies in relation to the following: (a) an application for approval of a nomination relation to the Subclass 187 (Regional Sponsored Migration Scheme) visa made on or after 18 March 2018…”
[2] See IMMI 18/037, Schedule 4.
Given that neither the current instrument nor its immediate predecessor can be relied upon, in order for the Tribunal to reach a finding in respect of whether the position is located in regional Australia, the Tribunal has considered the legislative instrument that applied at the time the applicant lodged the nomination application. That legislative instrument is Regional Certifying Bodies and Regional Postcodes 2016/045 (IMMI 16/045). Schedule B of IMMI 16/045 states that postcodes 4522 to 4899 part of “regional Australia”.
Based on the evidence before it, the Tribunal is satisfied that the applicant’s business is located 73 Clermont Street, Emerald, Queensland, 4720, and that the nominee is currently working in the nominated position at the applicant’s business in this location.
The Tribunal is therefore satisfied that the position and the business operated by the applicant are both located in regional Australia and the requirements in r.5.19(4)(h)(ii)(A) and (E) are met.
Genuine need for the nominator to employ a paid employee to work in the position under the nominator’s direct control: r.5.19(4)(h)(ii)(B)
The Tribunal has considered the organisational chart and the letter to the Tribunal from Steven Mills. The organisational chart for the applicant’s business sets out the Office Manager role with all roles within the business reporting to the nominee through a detailed chain of command. The Tribunal notes that the applicant’s business has recorded net profits each year, and that it has a significant annual turnover. The Tribunal also notes Mr Mills’s statements that “the importance of the position cannot be overstated”, and that the nominated position is key to ensuring the proper administration of the applicant’s businesses. The Tribunal notes that the applicant operates a hotel business on Thursday Island in the Torres Strait in addition to the hotel at Emerald where the nominated position is based.
Based on all the evidence before it, the Tribunal is satisfied that the applicant has demonstrated a genuine need for it to employ a paid employee to work in the position of Office Manager under its direct control.
Position cannot be filled by an Australian citizen or an Australian permanent resident who is living in the same local area as that place: r.5.19(4)(h)(ii)(C)
The applicant has provided evidence of its job advertisement for the position of “Office Manager” placed on its own job board at its premises and on the website Gumtree on 28 June 2016, as well as the letter provided by Steven Mills to the Department dated 16 June 2016 located on the Departmental file. In his letter, Mr Mills noted that the applicant had previously sponsored a worker to fill this role, but they had left after 4 years, on short notice, severely disrupting the applicant’s business. Mr Mills also wrote that “we have tried to satisfy our needs by advertising locally...without success. The reasons for rejection differ from ‘lack of opportunity for professional development’ to ‘way too far out in the bush for me. In short and, as a result of our perceived ‘remoteness’ we have been unable to find any suitable candidates prepared to relocate to Emerald Qld.”
Based on the evidence provided, the Tribunal is satisfied that the position cannot be filled by an Australian citizen or an Australian permanent resident living in the same local area as the applicant’s business in Emerald, Queensland.
Tasks to be performed in the position correspond to the tasks of an occupation specified by the Minister in an instrument in writing: r.5.19(4)(h)(ii)(D)
The applicable instrument specified for this purpose is IMMI 15/083. Clause 9 of the Instrument specified that as well as the occupation being listed in Schedule A of the Instrument, it must also be listed in ANZSCO and have an ANZSCO skill level of one, two or three.
The application is for an Office Manager, ANZSCO code 512111, which has a skill level of 2, and is listed in Schedule A of the Instrument. The tasks and skill level for the ANZSCO descriptor for Office Manager, ANZSCO code 512111 are set out below:
Tasks:
·     contributing to the planning and review of office services, and setting priorities and office service standards;
·     allocating human resources, space and equipment;
·     assigning work to and monitoring work performance of staff;
·     managing records and accounts of the office;
·     liaising with professionals to coordinate office business and to facilitate resolution of problems;
·     ensuring office equipment and supplies are maintained;
·     ensuring compliance with occupational health and safety regulations;
·     ensuring work complies with relevant government legislation, policies and procedures;
·     coordinating personnel activities such as hiring, promotions, performance management, payroll, training and supervision; and
·     organises and controls the functions and resources of an office such as administrative systems and office personnel.
Skill Level:
·     ANZSCO Skill Level 2. Most occupations in this unit group have a level of skill commensurate with the qualifications and experience outlined below.
·     In Australia: AQF Associate Degree, Advanced Diploma or Diploma (ANZSCO Skill Level 2).
·     At least three years of relevant experience may substitute for the formal qualifications listed above. In some instances, relevant experience and/or on-the-job training may be required in addition to the formal qualification.

The applicant provided the Tribunal with a copy of its position description for an Office Manager. The key duties and responsibilities for the Office Manager set out in the position description are:
·     Budget development and implementation;
·     Basic accounting;
·     Management of records, forms and accounts of the office;
·     Management of Information Technology and telecommunications, and office resources;
·     Management of purchasing orders;
·     Ensuring compliance with occupational health and safety regulations;
·     Ensuring work complies with relevant government legislation, policies and procedures;
·     Management of human resources, including performance management, payroll, training and supervision; and
·     Responsibility for day to day running of the office.
The Tribunal has considered whether the duties, responsibilities and skills set out in the job description correspond to the tasks of an Office Manager as set out in ANZSCO 512111. While the wording in the job description does not mirror the wording in ANZSCO 512111, the Tribunal is satisfied that, based on the evidence before it, the tasks expected to be performed by the nominee in the applicant’s business correspond to the tasks of an occupation at ANZSCO Skill Level 2.
Accordingly, the requirements of r.5.19(4)(h)(ii)(D) of the Regulations are met.
Regional certifying body advice about certain matters relating to the position: r.5.19(4)(h)(ii)(F)
The Tribunal has considered the Form 1404 Regional Sponsored Migration Scheme – Regional Certifying Body Advice dated 14 November 2016 provided by the applicant, and notes that it was completed by a representative of the Chamber of Commerce and Industry Queensland. The Tribunal notes its earlier comments in relation to the current instrument IMMI 18/037, which only applies in respect of nomination applications made on or after 18 March 2018, and notes it has therefore applied the provisions in the instrument that applied at the time the applicant lodged the nomination application, which was IMMI 16/045. The Chamber of Commerce and Industry Queensland is listed as a Regional Certifying Body (RCB) in Schedule A of IMMI 16/045.[3]
[3] For completeness, the Tribunal notes that Chamber of Commerce and Industry Queensland continues to be listed as an approved RCB in Queensland under Schedule 1 of IMMI 18/037. However, IMMI 18/037 only applies to nomination applications lodged on or after 18 March 2018. Chamber of Commerce and Industry Queensland was also listed as an approved RCB in Queensland under Schedule 1 of IMMI 17/059.
On the basis of the Form 1404 Regional Sponsored Migration Scheme – Regional Certifying Body Advice dated 14 November 2016 provided, the Tribunal is satisfied that the RCB has advised the Minister about the matters set out in r.5.19(4)(e) and r.5.19(4)(h)(ii)(B) and (C) of the Regulations. The RCB stated that:
·     there is a need for a paid employee in the nominated position within the business activities of the nominating employer;
·     the nominated position cannot be filled by an Australian citizen or an Australian permanent resident who is living in the same local area as the nominated position; and
·     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.
Consistent with the decision of the Federal Circuit Court of Australia in Bharaj Construction Pty Ltd v MIBP [2016] FCCA 902, certification by a RCB is not sufficient or determinative in relation to whether the nominator meets r.5.19(4)(e), r.5.19(4)(h)(ii)(B) and r.5.19(4)(h)(ii)(C) of the Regulations. Accordingly, the Tribunal notes that, whilst having regard to the advice provided by the RCB, it has reached its own conclusions about the matters the subject of the RCB’s advice.
Having considered the Form 1404 provided, the Tribunal is satisfied that the requirements of r.5.19(4)(h)(ii)(F) are met by provision of the requisite Form 1404.
Summary
It follows that the Tribunal finds the applicant meets all the requirements of r.5.19(4)(h) of the Regulations.
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.
Mary Sheargold
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)       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).

[2021] AATA 945

1 March 2021

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Immigration

Administrative Law

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Judicial Review

Statutory Construction

Procedural Fairness

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