THE TRUSTEE FOR NGHI NGAN QUAN TRUST (Migration)
[2022] AATA 3036
•19 August 2022
THE TRUSTEE FOR NGHI NGAN QUAN TRUST (Migration) [2022] AATA 3036 (19 August 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT: THE TRUSTEE FOR NGHI NGAN QUAN TRUST
CASE NUMBER: 1902203
HOME AFFAIRS REFERENCE(S): BCC2017/1716819
MEMBER:Nicola Findson
DATE:19 August 2022
PLACE OF DECISION: Perth
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.
Statement made on 19 August 2022 at 10:09am
CATCHWORDS
MIGRATION–nomination – Direct Entry stream – Cook – application is compliant –genuine need to employ a paid employee to work in the position under the nominator’s direct control – nominated position is based in regional Australia – no adverse information – position associated with the nominated occupation is genuine –no less favourable terms and condition of employment –applicant lawfully operating a business in Australia– nominated position cannot be filled by an Australian citizen or permanent resident who is living in the same local area – decision under review set asideLEGISLATION
Migration Act 1958, ss 65, 245AR, 360
Migration Regulations 1994, rr 1.13, 5.19CASES
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 18 January 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).
The applicant applied for approval on 14 May 2017. 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, then the application must be approved. If any of the requirements are not met then the application must be refused: reg 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 applicant trades in the food and hospitality industry in South Australia. It has nominated the position of Cook, for approval.
The delegate refused the application on the basis the applicant’s nomination did not satisfy reg 5.19(4)(h)(ii)(B) of the Regulations, because the delegate was not satisfied that a genuine need for the nominator to employ a paid employee to work in the position under the nominator’s direct control had been demonstrated by the applicant.
In reaching its decision the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the applicant on the basis of material provided to it during the review process, pursuant to s.360(2)(a) of the Act.
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 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 Tribunal wrote to the applicant on 12 January 2022, inviting it to provide further information to demonstrate all the relevant requirements of r.5.19(4). The applicant responded by the (extended) due date and provided to the Tribunal additional and updated evidence in support of the application, including but not limited to:
·ASIC records confirming the applicant’s registration;
·Financial Statements for the years ended 30 June 2018, 2019, 2020 and 2021;
·Business Activity Statements (BAS) for the period Jan to Sep 2021;
·Current organisational structure chart;
·Position description for the nominated occupation;
·Payroll records of the nominee (including payslips and Payroll Summaries) for the period 2019 to 2022;
·Statutory Declaration of the nominee dated 1 June 2021;
·Advertising material in relation to the nominated position;
·Regional Certifying Body Advice; and
·A comprehensive submission of Mr Huong Ngo, Managing Director of the applicant, dated 24 February 2022.
The application is compliant: reg 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.
From the material on the Departmental file, and the material provided to the Tribunal, the Tribunal is satisfied that the nomination application complied with the above requirements.
Accordingly, the requirement in r.5.19(4)(a) is met.
Nominator is actively and lawfully operating a business in Australia: reg 5.19(4)(b)
Regulation 5.19(4)(b) requires that the applicant is actively, lawfully and directly operating a business in Australia.
Having considered the material before it, including the nominator’s financial records and business registration documents, the Tribunal is satisfied that the nominator is actively and lawfully operating a business in Australia and directly operates that business.
Accordingly, the requirement in r.5.19(4)(b) is met.
Position is not labour-hire: reg 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.
There is no evidence before the Tribunal to indicate that the applicant is involved in labour hire activities. The Tribunal is satisfied that the employment contract and organisational chart confirm that the nominee will work in the applicant’s direct employ.
Accordingly, the Tribunal finds that the position is not related to labour-hire and that the requirement in r.5.19(4)(c) is met.
Term of employment of the visa holder: reg 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.
The applicant has provided information and updated financial reports to the Tribunal that indicate the company has the financial capacity to employ the nominee at the specified salary, and the Tribunal accepts this evidence.
It is now over three years since the delegate’s decision, and information provided by the applicant shows that the nominee has continued to be employed in the nominated position. The material before the Tribunal, including a written submission prepared by the Managing Director of the applicant business, indicates that the nominee will continue to be employed as a Cook on a full-time and on-going basis, with a base salary in accordance with the Restaurant Industry Award 2010. There is nothing in the material before the Tribunal that expressly excludes the possibility of extending the employment period.
Having regard to the totality of the evidence before it, the Tribunal is satisfied that the applicant has the financial capacity to provide the nominee with employment in the nominated position (as it has done since 2017) for at least two years full time and that the terms and conditions of that employment do not 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: reg 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 had regard to the information before it which indicates that the nominee’s base salary will align with the Restaurant Industry Award 2010 – and is presently, $45,000 plus superannuation, for a 38-hour week. The Tribunal has also considered payscale.com.au information and recent advertisements, provided by the applicant, indicating that the annual base salary for a Cook in South Australia ranges from $41,000 to $57,000. On the basis of the evidence before it, the Tribunal is satisfied that the nominee is being, and will continue to be, paid in accordance with the relevant industry Award, and that the terms and conditions of his employment reflect current employment laws.
In addition, information has been provided to the Tribunal which indicates that the salary of the nominee is consistent with the nominee’s experience and the location of the occupation. This evidence indicates that there are other Australian citizens performing the equivalent work in the same workplace and location, and receiving the same base salary. In these circumstances, a direct comparison is possible and the Tribunal accepts that the salary offered is consistent with what another Cook in a similar location would be paid.
On the basis of the information before it, the Tribunal is satisfied that the base salary of the nominee is within the appropriate range of that normally paid to a Cook working in South Australia. The Tribunal is accordingly satisfied that the terms and conditions applicable to the nominated position will be 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: reg 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 regs 1.13A and 1.13B.
There is no evidence before the Tribunal to suggest that there is adverse information known to the Department about the nominator or a person associated with the nominator.
Accordingly, the requirements of r.5.19(4)(f) are met.
Satisfactory compliance with workplace relations laws: reg 5.19(4)(g)
Regulation 5.19(4)(g) requires that the applicant has a satisfactory record of There is no evidence before the Tribunal to suggest that the applicant does not have a satisfactory record of compliance with workplace relation laws.
Accordingly, the requirements of r.5.19(4)(g) are met.
Tasks of the position, genuine need for the position and training requirements reg 5.19(4)(h)
Regulation 5.19(4)(h) contains a number of alternative requirements. These are set out in detail in the attachment to the decision and those relevant to this matter are as follows:
·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.
Location of the position and the business
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 the legislative instrument.
The Tribunal has considered the current legislative instrument (IMMI18/037), 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 legislative instrument (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 in relation to the Subclass 187 (Regional Sponsored Migration Scheme) visa made on or after 18 March 2018…”
[2] See Schedule 4 of IMMI 18/037
When IMMI 17/059 commenced on 17 November 2017, it did not include any saving or transitional provisions and was silent on how applications that had been made and not finally determined on the date it came into effect were to be treated. The Tribunal notes that the Department made a public statement in its Skilled Visa E-News November 2017 newsletter indicating that IMMI 17/059 only applied to nomination applications made on or after 17 November 2017.
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 IMMI 16/045.
At the time of application, the entire State of South Australia was considered regional Australia, as per Schedule B of IMMI 16/045. Accordingly, the Tribunal finds that the requirements of sub-paragraph 5.19(4)(h)(ii)(A) and (E) are met.
Genuine need for the paid position, which cannot be filled by an Australian citizen or an Australian permanent resident
Subparagraph 5.19(4)(ii)(h)(B) requires the Tribunal to be satisfied that there is a genuine need for the applicant, as the nominator, to employ a paid employee to work in the position under the nominator’s direct control.
In considering this issue, the Tribunal has taken into account the evidence provided to the Tribunal regarding the nature and size of the business and the explanation as to why there is a genuine need for a paid Cook in the business. In particular, it takes into account the location and the services the business provides. The Tribunal accepts the evidence regarding the applicant’s efforts to find a suitably qualified and experienced staff member to fill the nominated position, on a long-term basis. The evidence before the Tribunal indicates that the nominated position, which existed before the nomination application was made, was advertised and there was one overseas applicant who was deemed unsuitable, in response to the advertising, before the nominee was offered the role.
The Tribunal also takes into account the opinion of the regional certifying body, which it notes to be the Government of South Australia, advising the Minister among other matters that the nominated position cannot be filled by an Australian citizen or permanent resident who is living in the same local area as the nominated position.
The Tribunal is satisfied that the applicant has demonstrated a genuine need for a paid position under its direct control and that it cannot be filled by a local resident. Accordingly, r.5.19(4)(ii)(h)(B) and (C) are met.
Tasks of the position
The tasks of the nominated position must correspond to those of an occupation specified in the relevant legislative instrument.
The Tribunal has had regard to evidence that has been provided detailing the tasks that will be performed and is satisfied that they correspond to the tasks of the occupation of Cook specified in the relevant instrument.
A detailed summary of the tasks to be performed in the position are consistent with the tasks for the position in ANZSCO, which include:
·examining foodstuffs to ensure quality
·regulating temperatures of ovens, grills and other cooking equipment
·preparing and cooking food
·seasoning food during cooking
·portioning food, placing it on plates, and adding gravies, sauces and garnishes
·storing food in temperature controlled facilities
·preparing food to meet special dietary requirements
·may plan menus and estimate food requirements
·may train other kitchen staff and apprentices
On the basis of the evidence before it, the Tribunal is satisfied that tasks associated with the position correspond sufficiently to those of the occupation of Cook, such that it is satisfied that the tasks expected to be performed by the nominee in the applicant’s business correspond to the tasks of a Cook at ANZSCO Skill Level 3.
The Tribunal notes in passing that the nominee holds an Advanced Diploma in Hospitality from an Australian education provider, exceeding the requisite level of qualification according to ANZSCO. The Tribunal also observes that the nominee has experience working for the applicant as a Cook for over four years.
Accordingly, the requirements of r.5.19(4)(h)(ii)(D) of the Regulations are met.
Regional Certification
The Tribunal has considered the ‘Regional Certifying Body Advice Regional - Sponsored Migration Scheme (Subclass 187)’, issued on 19 October 2017 by the South Australian Department of State Development.
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 that 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.
On the basis of the advice set out in the Regional Certifying Body Advice provided, the Tribunal is satisfied that the regional certifying body 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.
Consistent with the decision of the Federal Circuit Court of Australia in Bharaj Construction Pty Ltd v MIBP [2016] FCCA 902, certification by a regional certifying body 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 regional certifying body, it has reached its own conclusions about the matters the subject of the regional certifying body’s advice.
Having considered the regional certifying body advice provided, the Tribunal is satisfied that the requirements of r.5.19(4)(h)(ii)(F) are met by provision of the form.
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.
Nicola Findson
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).
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
Legal Concepts
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Judicial Review
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Jurisdiction
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Statutory Construction
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Procedural Fairness
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Standing
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