The Trustee for DM Harvesting Trust (Migration)

[2022] AATA 4327

The Trustee for DM Harvesting Trust (Migration) [2022] AATA 4327 (19 October 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  The Trustee for DM Harvesting Trust

REPRESENTATIVE:  Mr Kenneth YAU (MARN: 1569582)

CASE NUMBER:  1912525

HOME AFFAIRS REFERENCE(S):          BCC2018/912454

MEMBER:Angela Julian-Armitage

DATE:19 October 2022

PLACE OF DECISION:  Brisbane

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

Statement made on 19 October 2022 at 4:44pm

CATCHWORDS
MIGRATION – nomination – Direct Entry nomination stream –  position located in regional Australia – actively and lawfully operating a business in Australia – genuine position – genuine need for the nominator to employ a paid employee – nominated tasks corresponds to the tasks of an occupation specified by the Minister –no adverse information known to Immigration – decision under review set aside

LEGISLATION
Migration Act 1958, s 245
Migration Regulations 1994, r 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 Home Affairs on 1 May 2019 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 (Cth) (the Regulations).

2. The applicant applied for approval on 26 February 2018. 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, the application must be approved. If any of the requirements are not met, the application must be refused: reg 5.19(5).

3. In the present 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 reg 5.19(4)(h)(ii)(D) of the Regulations because it was not demonstrated that the tasks to be performed in the position correspond to the tasks of a customer service manager or to the tasks of any occupation specified by the Minister in the relevant instrument.

5. The applicant appeared before the Tribunal on 8 August 2022 to give evidence and present arguments. The hearing was a joint hearing with the application for review of a decision to refuse the visa application of the nominee. At the hearing of the review, the Tribunal received oral evidence from Mr Damian Marsham, the owner of the nominating entity, Mr Agypal Singh, the visa applicant and Mr Narinder Singh, the nominating entity’s facility manager.  

6. The applicant was represented in relation to the review and its representative attended the Tribunal hearing.

7. 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

8. 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)

9. 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.

10. It is clear from the material provided to this Tribunal by the relevant Department that the application was made on the approved as prescribed by reg 5.37 and was accompanied by the requisite fee.

11. Furthermore, the application contained the s245AR(1) certification that the nominator has not engaged in conducts prescribed by that section.

12. In addition, the application identifies a need for the nominator to employ an identified person as a paid employee to work in the position under the nominator’s direct control.

13. 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)

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

15. The Tribunal was furnished with evidence that the nominator actively and lawfully operates is operating the business directly in Australia.

16. Accordingly, the requirement in reg 5.19(4)(b) is met.

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

17. 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 written and oral evidence was that the nominator is not involved in labour hire activities. 

18. Accordingly, the requirement in reg 5.19(4)(c) does not apply.

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

19. 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. 

20. The employment contract provided for a 4-year period of employment and did not expressly exclude an extension beyond that period. In fact, the oral evidence was that a fresh contract had been entered into on 4 August 2022 which was provided to the Tribunal by the parties’ representative. The latest contract explicitly refers to the terms and conditions of the visa applicant’s employment to be in accordance with the Fair Work Act 2009. Further, there is no express end date, hence no express exclusion beyond 2 years of employment

21. For those reasons the requirement in reg 5.19(4)(d) is met.

    No less favourable terms and conditions of employment: reg 5.19(4)(e)

22. 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.

23. The visa applicant is employed by the nominator pursuant to a contract of employment entered into on 24 February 2018 for a 4-year period with a new contract entered into by the parties on 4 August 2022. Both contracts include comprehensive job descriptions which are reflective of the ANZSCO 149212 tasks for a Customer Service Manager. The terms and conditions of most recent contract explicitly states that the terms and conditions of employment are to be in accordance with the Fair Work Act 2009 and as such are reflective of those that would be offered to an Australian citizen or permanent resident performing the tasks of the position nominated at the same location.

24. Therefore, the requirements of reg 5.19(4)(e) are met.

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

25. 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 regs 1.13A and 1.13B.

26. The Tribunal has not been provided with any indication that there is adverse information known to the Department about the nominator or a person “associated with” the nominator.

27. Accordingly the requirements of reg 5.19(4)(f) are met.

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

28. 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.

29. There is no evidence to show that the nominator has been anything other but fully compliant with workplace relations laws in all locations where it operates and employs staff.

30. Hence, 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)

31. 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; 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.

32. In the nominator case, the position is located in regional Australia. The Tribunal has been provided with oral and written evidence to show that the nominator has a genuine need for it to employ the person identified pursuant to reg 5.19(4)(a)(ii) as a paid employee to work in the position under the nominator’s direct control. The nominating entity operates a business that assist a wide range of primary producers/small crop farms to pick and package a large variety of fruits and vegetable throughout the year such produce dependant on the season. It employs some 150 people who work in crews of 8-12 people each who undertake these tasks spread across Southeast Queensland.

33. The nominator’s managing director testified that the business is constantly suffering from labour market shortages and that it has a number of running advertisements in a variety of locations such as gumtree and other internet locations. Despite the frequency of the advertising, the business experiences a great deal of difficulty attracting long term staff not only with respect to picker but also at management levels such as the visa applicant subject to this nomination.

34. The visa applicant’s role was described both by the business’ representative and the visa applicant himself as requiring him to service the needs of the nominator’s clients. He is required to attend a number of farms daily in order to ensure that the operations of the business are being carried out to the satisfaction of the clients including, but not limited to a substantial number of tasks for the occupation reflected in ANZSCO149212 and as specified in the relevant instrument.

35. As mentioned above, the nominator gave evidence that the business has made arduous attempts in the past to attract an Australian citizen or permanent resident who is living in the same local area without success in the past and that the business is extremely pleased with the employee it was able to attract as he has out-performed all expectations and assisted the business’ growth especially in its Covid recovery period.

36. It is noteworthy to mention that the visa applicant’s tasks do not include anything to do with management of the nominator’s employees in any respects. If there are employee issues raised by one of the clients, the visa applicant merely refers the issue to the Managing Director, Mr Damian Marsham, who deals with those staffing issues.

37. In addition, the Tribunal notes that a Regional Certifying Body has provided advice to the Minister in relation to reg 5.19(4)(e) and reg 5.19(4)(h)(ii)(B) & (C).

38. Therefore, the requirements of reg 5.19(4)(h) are met.

39. For the reasons and 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

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

    Angela Julian-Armitage
    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 an identified person, as 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).