The Trustee for Rai Family Trust (Migration)

The Trustee for Rai Family Trust (Migration) [2021] AATA 713 (11 February 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  The Trustee for Rai Family Trust
CASE NUMBER:  1801659
HOME AFFAIRS REFERENCE(S):          BCC2016/1596895
MEMBER:Andrew George
DATE:11 February 2021
PLACE OF DECISION:  Darwin
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Statement made on 11 February 2021 at 9:16pm

CATCHWORDS
MIGRATION – approval of a nomination – Direct Entry Nomination stream – occupation of Nurseryperson – financial capacity to employ the nominee for at least 2 years – actively and lawfully operating a business in Australia – updated financial information – terms and conditions of employment – Regional Certifying Body’s advice – decision under review set aside
LEGISLATION
Migration Act 1958, ss 245
Migration Regulations 1994, rr 1.13, 5.19, 5.37
CASES
El Jejieh v MHA (No 2) [2019] FCCA 840
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 8 January 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 29 April 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 applicant is a farming business producing fresh produce. The nominated person is Ms Baljinder Kaur. The proposed occupation is Nurseryperson – 362411.
The delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19(3) of the Regulations,[1] seemingly due to a of a lack of evidence.[2] Materially, the delegate also found that that the applicant’s nomination did not satisfy r.5.19(4)(d) as:
“… the application has not clearly demonstrated and has not provided transparent evidence/s, that the nominee will be employed on a full-time basis in the position for at least 2 years and paid the nominated salary of $56,000”.[3]
[1] Notice of Decision/1.
[2] ibid/6.
[3] ibid/5-6.
Following an adjournment on 24 November 2020, the hearing proceeded on 12 January 2021. This was a combined hearing with Case Numbers 1804179, 1804749, and 1808894. Mr Gurdial Singh Rai and Mr Manjot Singh Rai appeared for the applicant. The nominated person and Mrs Ramanpreet Kaur also appeared. The Tribunal was also assisted by the applicant’s accountant, Ms Margaret Crestani.
During the hearing the Tribunal dealt with a purported certificate and notification regarding disclosure of certain information under s.375A of the Act. This purported certificate was not signed and was therefore invalid.[4] In any event, the material purportedly covered by the invalid certificate was not relevant as it seemed to largely cover administrative documents on the Departmental File. Of note, the invalid certificate also purportedly covered information regarding allegations against the nominator. No such material appeared on the Departmental File on this matter.
[4] El Jejieh v MHA (No 2) [2019] FCCA 840 (Judge Street, 18 April 2019), [23]-[25].
The applicant was represented by Mr Prakash of AusMigration & Skilled Recruitment Services. Prior to the hearing, and in accordance with the practice directions, Mr Prakash filed an indexed and paginated book of all relevant documents (the ‘Hearing Book’). This included statutory declarations from Mr Gurdial Singh Rai and Mr Manjot Singh Rai.[5]
[5] Hearing Book/15-20.
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.
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 before it a copy of the application form generated on Friday 29 April 2016 at 23:30:35, Eastern Standard Time. From that form, the Tribunal is satisfied that the application was made on the approved form and was accompanied by the fee prescribed in r.5.37.
The Tribunal has before it a written certification dated 4 May 2016 certifying that the nominator has not engaged in conduct in relation to the nomination that contravenes s.245AR(1).
The Tribunal has before it a Form 1404 Regional Certifying Body advice, where Regional Development Australia (Mid-North Coast) certified on 19 April 2016 that there is a need for the nominator to employ a paid employee to work in the nominated position within the business activities of the employer. The Tribunal infers that this certification means that the position is under the nominator’s 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 before it accounting evidence from Ms Crestani.[6] Ms Crestani’s firm, FINDEX (Aust) Pty Ltd, has acted as accountants for the applicant for more than 35 years. The Tribunal notes the seven-figure net operating profit in the draft 2020 profit and loss report.[7] After examining the financial documentation before the it,[8] and the trust deed excerpts,[9] the Tribunal accepts Ms Crestani’s evidence that:
a.The applicant trust has some staff on wages, but others who family members who are beneficiaries of the trust. This includes Mr Gurdial Singh Rai and Mr Manjot Singh Rai, amongst others.
b.The applicant trust employees a contractor to supply seasonal labour and these costs are included in the profit and loss statements.
c.The applicant business is expanding, with recent property acquisitions. This is presumably in addition to the five existing farms.[10]
d.The expanded business will be able to provide the nominated person with employment as a nurseryperson for at least two years.
e.The applicant trust is in a good financial position.
[6] ibid/26-27.
[7] ibid/88.
[8] ibid/32-88.
[9] Ibid/89.
[10] ibid/21.
Based on Ms Crestani’s evidence, 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. Although it appears that the nominator is involved in labour hire activities, as indicated in paragraph [16(b)] above, the nominated position is employed under contract.[11] This position is within the applicant business and there is nothing before the Tribunal to indicate that the nominated person’s labour is for hire to unrelated businesses. Accordingly, the requirement in r.5.19(4)(c) is met.
[11] ibid/94-100, 108.
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 two years full time, and the terms and conditions of that employment do not expressly exclude the possibility of an extension.
The Tribunal accepts Mr Gurdial Singh Rai’s evidence that the nominated person has been employed by the applicant since, approximately, early 2016.[12] This is consistent with the nominated person’s employment contract dated 22 March 2016.[13]
[12] ibid/22.
[13] ibid/100.
The Tribunal is troubled by the addendum to the employment contract, dated 10 November 2020. That document states “The employment under this contract will commence after the visa approval date …”.[14] This does not seem possible given the contract had already commenced and the nominated person has long performed her employment duties under it. As such, the Tribunal does not regard the addendum as enforceable. This, however, is immaterial as the test for the Tribunal is whether an extension beyond two years is expressly excluded. Such an extension is not, merely the employment period is “… a minimum of two years as a Nurseryperson …”.[15] Accordingly, the requirement in r.5.19(4)(d) is met.
[14] ibid/108.
[15] ibid/94.
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 observes from the organisation chart that there are no Australian citizens or permanent residents performing the role of nurseryperson in the applicant’s business.[16]
[16] ibid/204.
The best evidence before the Tribunal regarding the market terms and conditions applicable to the position date from 2016.[17] The Tribunal accepts that an average salary of approximately $52,000 to $54,000 was payable at that time. Half a decade on, however, the Tribunal is reticent to accept these figures.
[17] ibid/206-218.
The Tribunal has viewed the MA000033 Nursery Award, published after the hearing on 1 February 2021. From that award, a Grade 6 nurseryperson is entitled to a weekly pay rate of $1,055.60, being $54,891.20. The Tribunal notes that the nominated person’s salary is $54,000. The Tribunal notes that there is scope for argument that the nominated person is a Grade 5 nurseryperson, which has a weekly pay rate of $969.60. Given this scope, the Tribunal is narrowly satisfied that the terms and conditions applicable to the position 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. 3A and 1.13B.
The Tribunal has dealt with the issues raised by the invalid certificate in paragraph [6] above. Further, there is no evidence before the Tribunal of 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: 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 of unsatisfactory compliance with workplace relations laws in the locations in which it operates a business and employs staff and the Tribunal is therefore satisfied of its compliance. 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 several alternative requirements. These are set out in detail in the attachment to the decision but can be briefly summarised as requiring either that:
·Regulation 5.19(4)(h)(i): 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, and specified training requirements are met; or
·Regulation 5.19(4)(h)(ii): 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.
In this matter, the applicant has sought to satisfy both r.5.19(4)(h)(i) and (ii). It is sufficient that, based on the Regional Certifying Body’s advice, the Tribunal is satisfied that:
a.The position and business are both located in ‘regional Australia’, being the Mid-North Coast of New South Wales.
b.there is a genuine need 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 permanent resident who is living in the same local area.
d.a Regional Certifying Body located in New South Wales has advised the Minister about the matters in r.5.19(4)(e) and r.5.19(4)(h)(ii)(B) & (C).
The Tribunal is also satisfied that the tasks to be performed in the position correspond to the tasks of a Nurseryperson – 362411.[18]
[18] ibid/21-22, 220-221.
Accordingly, the requirements of r.5.19(4)(h) are met.
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.
Andrew George
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 713

11 February 2021

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