Team Tree Lopper Pty Ltd (Migration)

[2019] AATA 1573

Team Tree Lopper Pty Ltd (Migration) [2019] AATA 1573 (31 January 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Team Tree Lopper Pty Ltd

CASE NUMBER:  1621305

DIBP REFERENCE(S):  BCC2016/1695722

MEMBER:Amanda Mendes Da Costa

DATE:31 January 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 31 January 2019 at 10:19am

CATCHWORDS
MIGRATION – nomination – Direct Entry Nomination stream – Personal Assistant – tree and garden maintenance – evidence of financial capacity provided – genuine need for position – Australian citizen or permanent resident cannot fill position – decision under review set aside
 
LEGISLATION
Migration Act 1958 (Cth), s 245
Migration Regulations 1994(Cth), rr 1.13, 5.19, cl 457.223
Fair Work Act 2009 (Cth)

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 2 December 2016 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 10 May 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 (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 the applicant had failed to demonstrate that it had the financial ability to provide the nominee with full time employment in the position for at least two years.

5. Mr Marco Morgado, a director of the company appeared before the Tribunal on 19 December 2018 to give evidence and present arguments on behalf of the company. The hearing was held as a combined hearing with the related Subclass 187 visa refusal of Ms Marta Margarida Da Costa Rodrigues,(the nominee) who gave evidence as a witness.  

6. 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

7. 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.

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

8. 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.

9. Based on the evidence in the Department’s file and specifically the application form, the Tribunal makes the following findings:

   ·The application was made on on the internet using the approved form and accompanied by the fee prescribed in r.5.37;

   ·The application includes a written certification stating whether the applicant has engaged in conduct in relation to the nomination that contravenes s2.45AR(1);

   ·The applicant identified a person, named Ms Marta Margarida da Costa Rodrigues (the nominee) who holds a Subclass 457 visa which was granted on the basis of meeting the requirements of cl.457.223(4); and

   ·The application identifies the occupation of Personal Assistant ANZSCO 521111, which is the same occupation occupied by Ms Da Costa Rodrigues.

10. 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)

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

12. The applicant has been operating a business in tree and garden maintenance since 2014.  It offers soft landscaping, grounds keeping to domestic, commercial, and government clients.  It also provides tree removal, stump grinding, wood chipping and hedging services.   The Tribunal has been provided with an extract from the Australian Securities and Investments Commission database for the applicant, which shows that it was registered on 28 November 2014 and currently registered an Australia proprietary Company, limited by shares.

13. The applicant’s business was established in Perth, Western Australia and until April 2018, the majority of its work was undertaken in Perth and its surrounds.

14. Mr Morgado told the Tribunal that in April 2018 one of the applicant’s clients in Perth who also had a business in Broome offered him tree and garden maintenance work in Broome.  Mr Morgado said that after completing this job he was offered other work in Broome and had decided to relocate there to pursue further business opportunities there in tree and garden maintenance.  Since relocating the applicant’s business to Broome, it had been successful in obtaining contracts for garden maintenance and landscaping throughout the Kimberley region of Western Australia and the company was now permanently based in Broome.

15. Mr Morgado explained that the total income of the business had increased significantly since the move to Broome as there greater business opportunities for it in the Kimberley’s particularly since the applicant had secured contracts from a number of government institutions such as hospitals and government offices.  He foresaw the company’s business continuing to increase in future years and told the Tribunal that it was likely that the number of full-time employees of the applicant would increase.

16. In addition to providing the Tribunal with annual accounts for the company for years 2016 to 2018, the applicant has provided the Tribunal with a Profit and Loss Statement for the year ending 30 June 2018 with the following comparison of the applicant’s total income for the past four years: 2015 is $42,634; 2016 is$116,723; 2017 is $192,990; and 2018 is $326,702.

17. The applicant has also provided the Tribunal with banks statements and business Activity statements for the company, which indicate that it is continuing to trade successfully and is making regular payments to the Australian Taxation Office.

18. Based on the evidence before it, the Tribunal is satisfied that the applicant is actively and lawfully operating a business in Australia and directly operates that business.

19. Accordingly, the requirement in r.5.19(4)(b) is met.

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

20. 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.  On the evidence before it including the oral evidence of Mr Morgado, the Tribunal accepts that the applicant’s business activities do not include those related to labour hire.

21. Accordingly, the requirement in r.5.19(4)(c) does not apply.

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

22. Regulation 5.19(4)(d) requires the nominee to be employed in the nominated position for at least 2 years full time, and the terms and conditions of that employment do not expressly exclude the possibility of an extension. The Tribunal accepts that the nominee has been employed by the applicant on a full time basis in the position of Personal Assistant since May 2016 and prior to that was employed in the same position on a part time basis commencing January 2016.  The Tribunal has been provided with copies of the nominee’s taxation returns for the years ending 30 June 2015, 30 June 2016 and 30 June 2017.  These returns show that Ms Da Costa Rodrigues was employed in the position of personal assistant during those periods with a gross income of $46,110.  The Tribunal also notes that annual accounts for the company in those years show figures for wages of $27,201 for 2014-2015; $39,512 for 2015-2016; $82,429 for 2016-2017 and $113,560 for 2017-2018. These figures are consistent with the evidence of Mr Morgado that the company has been growing its business since 2014 and that apart from the nominee it currently employees 2 full time employees.

23. The applicant has provided the Tribunal with a copy of the employment agreement between the applicant and the nominee showing a commencement date for the nominee’s employment of 9 May 2016.  This agreement does not include a provision excluding the possibility of extending the period of employment Although the applicant has provided no updated agreement; the Tribunal is satisfied based on the evidence before it, that it is the intention of the applicant to continue to employ Ms Da Costa Rodrigues for at least two years in the future.

24. Accordingly, the requirement in r.5.19(4)(d) is met.

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

25. 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.

26. The Tribunal has consulted the Clerks private Sector Award 2010 which list the minimum yearly wage for an employee undertaking clerical work in the private sector ranging from $39,764 to $51,818.

27. The Tribunal has also consulted the Payscale database for the position of personal Assistant, which list the yearly salary range for this position from $39,012 to $73,918.

28. The Tribunal further notes that the applicant provided the Department with information from open Universities Australia which shows that the salary range for a Personal Assistant in Australia is from $46,000 to $90,000 per year.

29. Having regard to the available information and referring to the Award and the Payscale and Seek sites, the Tribunal is satisfied that the nominee’s salary falls within the wage range for 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.

30. Based on the evidence before it, the Tribunal is satisfied that if the applicant’s employees included an Australian citizen or permanent resident with an equivalent qualification to the nominee and performing work in the same workplace and at the same location as the nominee, the terms and conditions which would be provided by the applicant to this employee would be determined by reference to the applicable industrial award and information contained on sites such as Payscale and Seek.  Accordingly, the Tribunal finds that the nominee will be provided with no less favourable terms and conditions than those that would be provided to an employee who is an Australian citizen or permanent resident.   

31. Accordingly the requirements of r.5.19(4)(e) are met.

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

32. 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.

33. There is no evidence before the Tribunal of any adverse information known to the Department about the applicant or any person associated with the applicant. 

34. Accordingly the requirements of r.5.19(4)(f) are met.

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

35. 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.

36. There is no evidence before the Tribunal that indicates the applicant does not have a satisfactory record of compliance with workplace relations law in the locations in which it operates its businesses and employs staff.

37. 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)

38. 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 16/060), the occupation is applicable to the proposed employee in accordance with any specifications made in that instrument, and specified training requirements are met; or

    ·the position and nominator’s business is 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 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.

39. The Tribunal notes that the tasks of a personal Assistant in ANZSCO 521111 include the following:

    ·liaising with other staff on matters relating to the organisation’s operations;

    ·researching and preparing reports, briefing notes, memoranda, correspondence and other routine documents;

    ·maintaining confidential files and documents;

    ·attending meetings and acting as secretary as required; maintaining appointment diaries and making travel arrangements;

    ·processing incoming and outgoing mail, filing correspondence and maintaining records;

    ·screening telephone calls and answering inquiries; and

    ·taking and transcribing dictation of letters and other documents.

40. The Tribunal is satisfied that Ms Da Costa Rodrigues role is commensurate with the tasks set out for a Personal Assistant in ANZSCO 521111 and that the applicant’s business requires the services of a Personal Assistant particularly as the applicant employs no other staff perfroming administratve tasks.  The Tribunal is further satisfied that the applicant directly controls the nominee’s work.

41. Accordingly, the Tribunal is satisfied that the tasks to be performed by the nominee correspond to the tasks of the occupation of Personal Assistant specified in the relevant instrument being IMMI 17/058.

42. The Tribunal accepts the evidence of Mr Morgato that it difficult to find and retain suitably qualified staff in regional Western Australia and that, as he is regularly travellinh within the Kimberley region to work, Ms Da Costa Rodrigues is required to work unsupervised and without assistance when he is away.  He told the Tribunal that the applicant requires a staff member such as the nominee who is able to assume responsibility for dealing with clients and solving administrative problems without supervisions, whilst he is away.  The Tribunal is satisfied that in relation to the applicant’s particular circumstances, an Australian citizen or permanent resident who is living in the same area cannot fill the position.

43. The Tribunal finds that the position and business is located in ‘regional Australia’ being located in a part of Western Australia, which is not in metropolitan area of Perth: IMMI 13/049.

44. The Tribunal is satisfied that the tasks to be performed by the Nominee in the position of Personal Assistant correspond to the tasks of an occupation specified by IMMI 17/058.

45. The Tribunal notes that the applicant provided the Department with written advice dated 14 June 2016 from Skilled Migration, Department of Training and Workforce Development, Western Australia, has advised the Minister about the matters in r.5.19(4)(e) and r.5.19(4)(h)(ii)(B) and (C). The Tribunal is satisfied that Skilled Migration is a Regional Certifying Body prescribed in IMMI 13/049 and located in the same State as the nominated position.

46. Accordingly the requirements of r.5.19(4)(h) are met.

47. 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

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

    Amanda Mendes Da Costa
    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).