The Trustee for Raz Family Trust (Migration) - [2021] AATA 981

The Trustee for Raz Family Trust (Migration) [2021] AATA 981 (29 January 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  The Trustee for Raz Family Trust
CASE NUMBER:  1808647
HOME AFFAIRS REFERENCE(S):          BCC2017/2313811
MEMBER:Michael Cooke
DATE:29 January 2021
PLACE OF DECISION:  Sydney
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Statement made on 29 January 2021 at 3:14pm
CATCHWORDS
MIGRATION – approval of a nomination – Direct Entry Nomination stream – advice from a Regional Certifying Body (RCB) – terms and conditions of employment – temporary suspension of RCB advices in Western Australia – Instrument that applied to determining ‘regional Australia’ – Perth region – no express requirement that the RCB advice must be positive – financial capacity to employ the nominee for at least 2 years – decision under review set aside
LEGISLATION
Migration Act 1958, s 245
Migration Amendment (Temporary Skill Shortage Visa and Complementary Reforms Regulations 2018
Migration Regulations 1994, r 5.19
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 9 March 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 June 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).
In this case, the applicant has applied for approval of a nomination, seeking to satisfy the criteria in the Direct Entry nomination stream.
The delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19(4) of the Regulations because the applicant did not have the necessary advice from a Regional Certifying Body (RCB).
The applicant nominator appeared before the Tribunal on 19 November 2020 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant nominee.
The applicant was represented in relation to the review by its registered migration agent. The representative attended the Tribunal hearing.
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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read The Trustee for Raz Family Trust (Migration) and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2021] AATA 981
Decision Date: 29 January 2021

CaseChat Overview and Summary

This matter concerned an application by The Trustee for Raz Family Trust for approval of a nomination under the Direct Entry stream. The primary dispute revolved around whether the applicant met the requirements of Regulation 5.19(4) of the Migration Regulations 1994, specifically concerning the location of the nominated position and the advice from a Regional Certifying Body (RCB). The case was heard by Michael Cooke.

The legal issues before the Tribunal were whether the applicant had satisfied all the requirements of Regulation 5.19(4) for the approval of the nomination. This included assessing compliance with provisions relating to the application form and fee, the nominator's active and lawful operation of a business, the nature of the nominated position (not being labour hire), the terms of employment for the nominee, and the provision of no less favourable terms and conditions of employment compared to Australian workers. Crucially, the Tribunal had to determine if the nominated position was located in "regional Australia" as defined by the relevant legislative instrument at the time, and whether the temporary suspension of RCB advice in Western Australia and the subsequent exclusion of the Perth metropolitan area from regional recognition impacted the application.

The Tribunal reasoned that while the legislative instrument in force at the time of the nomination application specified the whole of Western Australia as "regional Australia," the applicant could not obtain RCB advice due to a temporary suspension. Subsequently, when RCB advice was reinstated, the Perth metropolitan area was excluded from regional recognition. However, the Tribunal found that Regulation 5.19(4)(h) provided alternative pathways for meeting the requirements, and that the applicant had satisfied the conditions relating to the tasks of the position, the genuine need for it, and the training requirements, irrespective of the RCB advice issue. The Tribunal also found that the applicant met the other requirements of Regulation 5.19(4), including having no adverse information known to Immigration, demonstrating satisfactory compliance with workplace relations laws, and meeting the financial capacity to employ the nominee for at least two years.

Accordingly, the Tribunal set aside the original decision and substituted a decision approving the nomination.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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. Findings and reasons relating to whether the application for approval:·was made on the approved form 1395, or 1395 (Internet) for post 23 March 2013 applications, and was accompanied by the fee prescribed in r.5.37; ·for applications made from 14 December 2015 – includes a written certification stating whether the nominator has engaged in conduct in relation to the nomination that contravenes s. 245AR(1); and·identifies a need for the nominator to employ a paid employee to work in the position under the nominator’s direct control. The Tribunal finds from the evidence on file before it that 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 finds from the evidence before it that the applicant 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: 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. The Tribunal finds that the nominator is not involved in labour hire activities. Accordingly, the requirement in r.5.19(4)(c) does not apply.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 2 years full time, and the terms and conditions of that employment do not expressly exclude the possibility of an extension. The Tribunal finds that the applicant will 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. Accordingly, the requirement in r.5.19(4)(d) is met.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.

Ratio Decidendi

Legal Principle Established

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.1.13A and 1.13B. The Tribunal finds that there is no 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. The Tribunal finds that the applicant has a satisfactory record of compliance with workplace relations laws in the locations in which it operates a business and employs staff. Accordingly, the requirements of r.5.19(4)(g) are met.Tasks of the position and 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:·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 in Register of Instruments: Business Visas), 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. When the applicant first made an RSMS application for approval the relevant instrument at the time of the nomination application had specified the whole of WA as ‘regional Australia’. However, the nominator could not apply for RCB ‘Advice’ at time of application because all RCB ‘advice’ was temporarily suspended on 13 March 2017 - by Departmental fiat. The certifying RCB (the WA Department of Training and Workforce Development), later reopened the issuance of RCB advices in 2019. However, the Perth Metropolitan area (where the applicant was located) was excluded from recognition as part of ‘regional Australia’ for the purposes of RCB ‘Advice’.