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 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.
The Tribunal finds (having had regard to salary advice for the equivalent position and other supporting evidence provided by the nominator) that the terms and condition applicable to the position will be no less favourable than those that are/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.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’.
The current Department of Training and Workforce Development website informs the following:
The Regional Sponsored Migration Scheme (RSMS) (subclass 187) visa is now closed. Employers who have lodged an application for the RSMS visa (subclass 187) with the Department of Home Affairs on or before 11:59pm AEST on 15 November 2019, can still apply for nomination certification advice with WA Migration Services.
To nominate a skilled position under the direct entry stream of the Regional Sponsored Migration Scheme (RSMS) with the Department of Home Affairs, the employer and the nominated position must be assessed by a Regional Certifying Body (RCB).
The Department of Training and Workforce Development, through WA Migration Services, is the RCB for Western Australia (excluding the Goldfields–Esperance region). The Perth metropolitan area is not eligible for the RSMS visa (subclass 187).
It can be readily seen that the applicant nominator has been placed in the invidious position that, by bureaucratic fiat of the WA Department of Training and Workforce Development, it was prevented him from securing the necessary RCB approval for the Subclass 187 visa nomination - at time of application. When requested by the delegate to provide the approval (at time of final Departmental processing) it was unable to do so. This inability proved fatal for the applicant when the delegate later made his decision to refuse approval of the nomination. The applicant then sought Tribunal review.
In the meantime, applications at the RCB were re-opened for the Subclass 187 visa class. However, in the meantime the Perth Metropolitan area (were the applicant nominator is located) was no longer ‘regional Australia for the purposes of the application (see above italics). Bizarrely, when the new replacement for the Subclass 187 visa (the Subclass 494 visa and for which the nominator has now applied for approval) was instituted, the Perth metropolitan area was included and regarded as regional for the purposes of assessment. This anomaly has allowed the applicant (he informed in the hearing) to progress a recent application for a Subclass 494 visa under the Skilled Employer Sponsored Regional visa scheme. Ironically, he has successfully secured the RCB approval in relation to the Subclass 494 visa. The applicant has provided the relevant evidence to the Tribunal.
The Tribunal has sought advice on the issue at hand. The Tribunal notes apropos the question of application of the criterion that a new version of r.5.19 was introduced on 18 March 2018 by the Migration Amendment (Temporary Skill Shortage Visa and Complementary Reforms Regulations 2018 (the Amending Regulations). The Amending Regulations contained transitional provisions which are relevant. In particular, item 6705(1) provides:
Despite the amendments of regulation 5.19 made by the amending regulations, that regulation (including any instruments made under it), as in force immediately before the commencement of Schedule 1 to the amending regulations, continue to apply in relation to an application for approval of the nomination of a position made before the commencement day.
It is the view of the Tribunal that the time between lodgement and determination of an application is not intended to be lengthy. To the contrary, Subdivision AB of Division 3 of Part 2 of the Act establishes a code of procedure for dealing fairly, efficiently and quickly with visa applications, including Subclass 187, for which a nomination under r.5.19 is essential. As such, the Tribunal is satisfied that this purpose should be served by applying the Instrument in place at the time of application. For nomination applications made before 18 March 2018, item 6705(1) of the Amending Regulations preserves the operation of r.5.19, including any instruments made under it, as in force immediately before that date. The Tribunal believes that there are sound arguments for concluding that the Instruments - IMMI 16/045 and IMMI 17/059 - are the Instruments in force for nomination applications made between 1 July 2016 and 16 November 2017, and 17 November 2017 and 17 March 2018, respectively. It follows then that item 6705(1) preserves the effect of these Instruments for any undetermined nomination applications made during these time periods.
The Tribunal, therefore, finds that the Instrument which was in force at the time of the nomination application lodgement (in this case IMMI 16/045 which includes Perth) is the Instrument that applied to determining ‘regional Australia’ for the purposes of reg 5.19. The applicant, therefore, satisfies reg.5.19(4)(h)(ii)(A). Regarding the RCB approval the following correspondence was received by the applicant in response to an attempt to seek RCB approval following the re-opening of applications in 2019.
In the current matter, the nominator claims that it received a ‘negative RCB outcome’ on 19 November 2020, however, that conclusion by the RCB was based on location as explained below.
I refer to your request for (Regional Certifying Body) RCB Advice and the Administrative Appeals Tribunal (AAT) email thread.
So my understanding is, an RSMS Application was lodged with the Department of Home Affairs (Home Affairs) in June 2017.
This was when our RCB Application process was suspended, hence no original application was lodged with us at the time prior to you applying with Home Affairs.
If RCB advice needs to be sought as requested by AAT, then the application will be assessed on the criteria that is currently applicable and not the criteria that is applicable at the time you wished to lodge the application with us, as there is nothing to re-validate or re-assess against.
In response to your request for DTWD to consider this application, this (would be) an RCB advice for a 187 visa in the metropolitan area.
This will not meet the current criteria as Perth is not considered regional under the 187 visa and if you choose to proceed then your application will be declined.
Further correspondence following a request for RCB approval is as follows:
Thank you for your application for certification advice for The Trustee for Raz Family Trust with a nominated position based in Western Australia, 6514 in the Mid-West region.
All applications are assessed in line with the criteria set out by the Government of Western Australia and the Department of Home Affairs.
To be eligible for the Regional Sponsored Migration Scheme visa (subclass 187) the position must be located in a regional area.
Under the subclass 187 visa, Perth is not considered to be regional. Migration Services is unable to provide positive advice because the position is located in the Perth metropolitan area.
The Tribunal will now examine the ability of the applicant to meet the criteria in reg.5.19(4)(h)(ii)(B) to (E).
The Tribunal has examined the nominator’s claims in oral evidence and in his submissions on the matter. The Tribunal finds, from the evidence before it (including the applicant’s submission) that there is a genuine need to employ a paid employee to work in the position under the applicant nominator’s direct control.
The Tribunal is satisfied, furthermore, that the position was properly advertised. The nominator had indicated in submission that interviews with potential employees were conducted. The Tribunal is satisfied from observation of the process conducted that the position cannot be filled by an Australian citizen or permanent resident who is living in the same local area.
The Tribunal is satisfied from oral and written evidence that the tasks to be performed in the position correspond to the tasks of an occupation specified by Instrument and any additional applicability requirements for that occupation are met.
The applicant, therefore, satisfies reg.5.19(4)(h)(ii)(B) through (E).
Regarding reg. 5.19(4)(h)(ii)(F) the Tribunal makes the following finding. The plain reading of reg 5.19(4)(h)(ii)(F) requires that a body specified in an Instrument for this purpose (i.e. RCB) has advised the Minister about certain specific matters outlined directly above. There is no express requirement within the terms of the criterion itself that the advice be positive, rather the only requirement appears to be that there be an advice about the specific matters. This is a question of fact. The criterion does not provide any discretion as to whether it may be reasonable to disregard this requirement or consider it is met by way of ‘substantial compliance’ (for example, in the sense that the nominator has made every attempt to obtain it but was unable to).
Furthermore, there is no definition of ‘advice’ or ‘advised’ for this purpose and there are no requirements under the Migration Act 1958 (Cth) or the Migration Regulations 1994 (Cth) that the advice must be in a specific format. In practice, RCB advices have taken the form of a certified and stamped Form 1404, which is a form issued by the Department of Home Affairs, or an email from the RCB. This does not occur in the WA jurisdiction as the Tribunal has been informed.
In considering whether a purported RCB advice satisfies the requirement of reg. 5.19(4)(h)(ii)(F), the relevant question is whether it ‘has advised…about the matters mentioned in paragraph (e) and sub-subparagraphs (B) and (C).’ Therefore, not all communications from the relevant RCB about the nominator’s application and/or nominated position would satisfy this criterion if they do not contain the advice regarding these specific matters. However, as noted above, as there is no express requirement that the advice must be positive (i.e. that the RCB advises that the nominator meets the requirements in the specified criteria), it is possible to accept that a negative advice (i.e. that the RCB advises that the nominator does not meet the requirements in the specified criteria) is still an advice to the Minister about the specified matters.
However, in the absence of any judicial consideration on the interpretation of the specific criterion in issue (i.e. reg 5.19(4)(h)(ii)(F)) and noting that a plain reading which simply requires that there be an advice is likely to be beneficial to the nominator if the advice obtained is negative (and in circumstances where some RCBs are no longer providing the advice in respect of SC187 RSMS scheme), the Tribunal view is that it may be preferable to read the criterion in its plain ordinary meaning.
The Tribunal has sought trelevant advice provided in this case and the information contained within that advice supports this finding. It finds that, on review of the RCB correspondence, it is satisfied that reg 5.19(4)(h)(ii)(F) is met, having had regard to all material before it and after making its own independent assessment of whether the nominator satisfies the discrete criteria in regs 5.19(4)(e), (h)(ii)(B) and (C).

Accordingly, the Tribunal finds that requirements of r.5.19(4) 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.
Michael Cooke
Senior 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).
In my opinion, reg 5.19(4)(h)(ii)(F) does not compel the RCB to provide an advice because it is not framed in a way to impose an obligation on the RCB but rather, it states one of the requirements that the nominator must satisfy in order to be approved the nomination. Further, the purpose of the instrument made under reg 5.19(4)(h)(ii)(F)(I) is to simply specify the relevant bodies so that the nominator can identify the correct RCB from which to obtain the relevant advice for the purposes of satisfying reg 5.19(4)(h)(ii)(F): see for example the Explanatory Statement to IMMI 17/059 at [3] and [5] which states that it ‘operates to specify bodies (known as Regional Certifying Bodies)’ and ‘update the specified bodies, to omit bodies which are no longer RCBs and update the names of bodies which have undergone a name change’. This indicates that the instrument is administrative in nature and does not itself contain any powers to compel the listed RCBs to accept applications and advise on the specific matters.
It is also important to note that the RCBs are not part of the Department of Home Affairs and their assessment for the purposes of providing an advice to the Minister is an entirely separate process to the nomination/visa application assessment conducted by the Department. In this regard, the Government of WA website describes the RCBs as ‘a group of State and Territory government agencies, local chambers of commerce, local government councils and regional development bodies’ and the Department’s policy refers to the RCBs having ‘specialised knowledge in regard to whether the position can be filled locally by virtue of their location, local knowledge and experience.’ Therefore in my opinion, the RCBs can be viewed as authorities with expertise in matters which the Department seeks advice about, similar to that of a skills assessment authority, and whether or not an RCB accepts and assesses an application for the purposes of providing an advice to the Minister appears to be entirely a matter (of business and operational decision) for them.