The Trustee for JAMES D HARWOOD TRUST (Migration)

[2021] AATA 1501

The Trustee for JAMES D HARWOOD TRUST (Migration) [2021] AATA 1501 (17 March 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  The Trustee for JAMES D HARWOOD TRUST

CASE NUMBER:  1806185

HOME AFFAIRS REFERENCE(S):          BCC2017/2728279

MEMBER:Sheridan Lee

DATE:17 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 17 March 2021 at 4:18 pm

CATCHWORDS
MIGRATION – nomination – Direct Entry nomination stream – genuine need for the nominator to employ a paid employee –  position located in regional Australia – actively and lawfully operating a business in Australia –no less favourable terms and conditions of employment –lawfully operating business – no adverse information known to Immigration – decision under review set aside

LEGISLATION
Migration Act 1958, s 245AR
Migration Regulations 1994, rr 1.13, 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 20 February 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).

2. The applicant applied for approval to nominate the occupation of Records Manager on 1 August 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 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).

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 that the applicant’s nomination did not satisfy r.5.19(4)(h)(ii)(B) of the Regulations because they were not satisfied that there was a genuine need for the position.

5. Mr James Harwood, Director of Trendvil Pty Ltd, the trustee for James D Harwood Trust, appeared before the Tribunal via video on 22 October 2020 to give evidence and present arguments on behalf of the applicant.

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

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. Having reviewed the information on the Department’s file, the Tribunal is satisfied that the application for approval was made on the prescribed form 1395 and that the fee prescribed in r.5.37 was paid. Written certification stating the nominator had not engaged in conduct that contravenes s.245AR(1) was provided.

11. For the purposes of subparagraph 5.19(4)(a)(ii), the Tribunal finds that the application for nomination form outlines that the position to be filled is Records Manager (ANZSCO 224214).

12. The Tribunal finds that the application is sufficient to meet the requirements of subparagraph 5.19(4)(a)(ii). The tasks that the business needs the position to undertake are discussed in more detail below. In relation to the 'direct control' element of subparagraph 5.19(4)(a)(ii), the Tribunal notes that along with other documentation, the applicant submitted an organisational chart and a contract of employment.

13. 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)

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

15. At the Tribunal hearing, Mr Harwood gave evidence that Harwood Homes is a construction company that undertakes primarily residential, but some commercial work. The business currently has four direct employees and engages around 100 through contracts. An internet search shows that James Harwood Homes has an active website and social media.

16. The Tribunal has before it a current extract from the Australian Business Register for ‘the Trustee for James D Harwood Trust’, with ABN 56 451 713 608. The business name is listed as ‘James Harwood Homes’.

17. An extract from the Australian Securities and Investments Commission (ASIC) reports that Trendvil Pty Ltd has been registered as an Australian Proprietary Company since 14 June 1988. Trendvil Pty Ltd is listed as the holder of business name ‘James Harwood Homes’ with ABN 56 451 713 608.

18. The applicant has also supplied the Tribunal with a number of Business Activity Statements (BAS) lodged with the Australian Taxation Office covering the 2019-2020 financial year and the first two quarters of the 2020-2021 financial year.

19. Based on the evidence before it, the Tribunal finds that the applicant is actively, lawfully and directly operating a business in Australia, as required by r.5.19(4)(b).

    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. There is no evidence to indicate that the nominator is engaged in labour hire to an 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)

21. 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.

22. The applicant supplied the Tribunal with a contract of employment, signed by Mr Harwood on 18 July 2017. The contract provides for a salary of $63,000 commencing on the date of approval of the nominee’s Subclass 187 visa and stipulates that it runs for a period of 2 years without precluding extension.  At the Tribunal hearing, Mr Harwood confirmed that the position is still available.

23. The draft financial report for Trendvil Pty Ltd as the Trustee for the James D Harwood Trust for the year ended 30 June 2020 outlined that the company had a turnover of $5,337,609, down from $7,051,739 in the 2018-2018 financial year. The financial report further outlined that the company incurred $222,925 in wages expenses and reported a net profit of $568,533 (up from $439,301 the previous year).

24. On 3 February 2021, the Tribunal invited the applicant to provide further information. In particular, the applicant was invited to provide information to support the draft financial documents which were provided on 30 October 2020. In response, the applicant supplied BAS for the 2019-2020 financial year. Except for November 2020, all of the BAS had been lodged with the ATO. The BAS contained the following information.

BAS Period	Total Salary, wages and other payments ($AUD)	Total Sales ($AUD)
July 2019	22, 348.00	651, 605.00
August 2019	16,580.00	568, 469.00
September 2019	15,314.00	492, 043.00
October 2019	19,240.00	396,162.00
November – not included as it was a draft BAS for a separate entity	-	-
December 2019	12,217.00	357,653.00
Jan 2020	13764.00	287,670.00
Feb 2020	35,280.00	388,087.00
March 2020	16,668.00	729,238.00
April 2020	25,339.00	278,735.00
May 2020	18,312.00	617,852.00
June 2020	18,437.00	613,928.00
TOTAL	213,499.00	5,381,442.00

1. The Tribunal considers that the BAS support the information contained in the draft company financials and is further satisfied that the nominator has the capacity to employ the nominee for an at least two years full time.

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

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

3. 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.

4. The organisational chart provided by the applicant shows that there are no other Records Managers employed by the company. At the Tribunal hearing, Mr Harwood gave evidence that some of the tasks of the proposed position are performed by himself and his wife, however he hoped that the new employee would undertake tasks that had previously remained undone.

5. As outlined above, the applicant has offered an annual salary of $63,000 for the position.

6. Given the nature of the position, the Tribunal considers that the Clerks - Private Sector Award 2020 would provide for the minimum terms and conditions of employment. A Records Manager of a senior level would fall within the classification of a Level 5 under the Award. The current minimum annual rate of pay for a Clerk Level 5 is $52,670.

7. Other indicative data ranges greatly for the position of Records Manager. Indeed.com reports the average salary for a Records Manager in Australia as $80,222 in Australia. PayScale reports it as $61,496 in Melbourne, Victoria. The Australian Government JobOutlook website reports that Archivists, Curators and Records Managers earn $94,224 on average.

8. The Tribunal has given weight to the fact that the terms and conditions of employment applicable to the nominated position are above the minimum set out in the Award and fall within the range reported by other sources. In addition, the Tribunal notes that the company is relatively small, and the position would not be responsible for managing a department or staff.

9. The contract of employment confirms that the nominee will receive the required superannuation guarantee payments and leave in accordance with the minimum statutory requirements.

10. On the evidence before it, the Tribunal is satisfied that the terms and conditions of employment for the nominated position will be no less favourable than those that are provided, or would be provided, to an Australian citizen or permanent resident performing equivalent work at the same workplace at the same location.

11. Therefore, the Tribunal finds that the requirements of r.5.19(4)(e) are met.

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

12. 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. 

13. The documents available to the Tribunal contain no relevant adverse information and the Tribunal infers that is because the Department has no adverse information about the company. Accordingly, the requirements of r.5.19(4)(f) are met.

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

14. 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.

15. The Tribunal has no information indicating that the applicant has had compliance issues with workplace laws. Furthermore, the terms and conditions of employment outlined in the contract of employment offered to the nominee do not raise any concerns. The Tribunal finds that 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)

16. Regulation 5.19(4)(h) contains a number of alternative requirements. These are set out in detail in the attachment to the decision. The relevant provisions in this matter can be briefly summarised as requiring that:

    ·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 and the occupation is applicable to the proposed employee in accordance with the specification of the occupation,

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

17. The position and business will be located in Mildura, which is specified as a regional location in Immigration Instrument 16/045.

18. At the Tribunal hearing, Mr Harwood outlined that along with his directorial duties he works in the business with his wife. His primary tasks are estimating, sales and advertising, while his wife does the accounts. The company contracts out what it can, but he would like to have the right people in place internally. Mr Harwood explained that contracting out tasks such as accounting is currently the company’s biggest expense.

19. Mr Harwood gave evidence that the Records Manager is going to manage each aspect of every home, such as drawings and quantities, and then create a database for future quotations. Mr Harwood hoped it would bring some efficiency to what the company does.

20. Records Manager is an occupation specified in IMMI17/058. The Australian and New Zealand Standard Classification of Occupations (ANZSCO) outlines that a Records Manager “designs, implements and administers record systems and related information services, to support efficient access, movement, updating, storage, retention and disposal of files and other organisational records.” The Tribunal accepts that a company of the size and nature of Harwood Homes would require an employee to undertake the tasks of the position.

21. The applicant provided the Department with a copy of an advertisement placed by Harwood Homes for a Records Manager in the Sunrasia Daily and a receipt issued on 28 June 2017. The applicant gave evidence that it received two applications for the position, one from the nominee. The second applicant was deemed unsuitable as she was still studying and not available to work fulltime. The Tribunal accepts that the position could not be filled by a locally resident Australian citizen or permanent resident.

22. The applicant supplied the Tribunal with a Certification Certificate from the Swan Hill Rural City Council for the position of Records Manager, dated 28 August 2017.

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

24. 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

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

    Sheridan Lee
    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).