The Trustee for the Lay & Sons (Migration)

[2022] AATA 2187

The Trustee for the Lay & Sons (Migration) [2022] AATA 2187 (27 June 2022)

DECISION RECORD

DIVISION:  Migration & Refugee Division

APPLICANT:  The Trustee for the Lay & Sons

REPRESENTATIVE:  Mr Felix Carao (MARN: 1069354)

CASE NUMBER:  1912715

HOME AFFAIRS REFERENCE(S):           BCC2017/2241049

MEMBER:  Peter Emmerton

DATE:  27 June 2022

PLACE OF DECISION:  Adelaide

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

Statement made on 27 June 2022 at 1:06pm

CATCHWORDS

MIGRATION – approval of a nomination – Direct Entry nomination stream – position of Office Manager – genuine need for the employment – recruitment advertising – relocation and substantial growth of the business – actively and lawfully operating a business in regional Australia – updated financial information – terms and conditions of employment no less favourable – decision under review set aside         

LEGISLATION

Migration Act 1958, ss 245
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 10 May 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).

1. The applicant applied for approval on 25 June 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).

1. In this case, the applicant has applied for approval of a nomination, seeking to satisfy the criteria in the Direct Entry nomination stream.

1. The delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19(4)(a)(ii) of the Regulations because the nominator had not satisfied the delegate that there was a need to employ a paid employee to work in the position under the nominator’s direct control.

1. The applicant was represented in relation to the review.

1. 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

1. 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.

1. In determining the applicant’s claims the Tribunal must first make findings of fact on material matters in dispute. This may involve an assessment of credibility and in so doing, the Tribunal is aware of the need and importance of being sensitive to the circumstances and the difficulties applicants often face before the Tribunal in their individual circumstances.

1. The applicants rely on the evidence given before the Tribunal together with written submissions and supporting evidence provided to the Tribunal and previously to the department.

1. The nominating entity runs a very substantial import business with a substantial number of staff as indicated by the Organisation Chart. There is a focus on Asian fast moving consumer goods, and the business is located in Darwin. Northern Territory, (NT).

1. The visa applicant’s responsibilities, current years of experience, formal qualifications and unique attributes, clearly align with the duties associated with an Office Manager, at a senior level, ANZSCO 512111, as undertaken in this specialised industry.

1. The visa applicant possesses a Master of Business Administration, (MBA), Charles Darwin University, Australia.

1. The Tribunal is cognisant of the challenges associated with recruiting and retaining suitably experienced and highly qualified professional administrators working in businesses in the NT. It is also sympathetic to the need for this business to have additional specific expertise unique to its’ market segment. The Tribunal is acquainted with the highly transient nature of staff within this geography because of challenges associated with severe climatic conditions and isolation.

1. The Tribunal received and accepted written evidence from the nominator of the recruitment processes undertaken. This included details of the recruitment advertising on electronic job sites, as they were considered the most appropriate media. The nominator’s internal and external business network was utilised but was similarly unfruitful. The visa applicant was determined to be the only suitable candidate out of a small field of applicants. An analysis of candidate suitability was provided by the nominator for all the recruitment undertakings. Lack of qualifications and/or inexperience, are the stated main reasons applicants were unsuccessful.

1. The Tribunal accepts that the most recent employment contract update, dated 24 June 2021 does not include an express exclusion of the possibility of extending the period of employment beyond the initial 2-year minimum period, nor does the original 2017 contract. It is noted that the visa applicant has been employed for 5 years. The contract stated the current salary as $56,00 plus the Superannuation Guarantee, (10%).

1. The Tribunal notes a satisfied RCB Certificate issued by the relevant certifying body. The date of the certificate is 27 September 2017.

The application is compliant: r.5.19(4)(a)

1. 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.

1. The Tribunal finds that the application was lodged electronically using the e lodgement facility. The nomination was made under the RSMS Direct Entry stream (r.5.19(4)(h)(ii)) and consequently no fee is payable. The Tribunal finds the applicant meets r.5.19(2).

1. The Tribunal notes that the business is operating on a substantial staffing ratio to service a specialised market.

1. The Tribunal notes that the delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19(4)(a)(ii) of the Regulations because the delegate was not satisfied that the nominator had demonstrated a need for a paid employee to work full-time in the position, under the direct control of the nominator.

1. The Tribunal has formed a different view with the assistance of substantially more information provided to it than was made available to the delegate at the time of their decision. The considerable passage of time since the original application has further assisted the Tribunal and inform its’ decision.

1. The Tribunal has determined, upon perusal of the current Organisation Chart, that it is not surprising that the role under consideration is required. It notes that because of the ongoing

expansion and recent restructuring which came about after a fire destroyed the original warehousing facility, the visa applicant has been relocated in a separate building to much of the operation, subsequent to the original application 5 years ago. The magnitude and substantial growth of the business has been demonstrated with a range of current financial documentation.

1. The Tribunal notes substantial ongoing growth within the business. It accepts that staff availability is a limiting factor in the NT.

1. The Tribunal is satisfied that the application has identified a need for a paid employee to work in the position of Office Manager, under direct control of the applicant. The application has included the required written certification relating to conduct that contravenes s.245AR(1). 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)

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

1. The Tribunal has been provided with a range of Profit and Loss Statements for FY 2015, until and including FY 2020, all of which correlated. The Tribunal also researched ASIC Registration details. It checked the status of the listed ABN and perused the company web site. The Tribunal is satisfied that the applicant is actively, lawfully and directly, operating a business in regional Australia. Accordingly, the requirement in r.5.19(4)(b) is met.

Position is not labour-hire: r.5.19(4)(c)

1. 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 r. 5.19(4)(c) is not relevant to the current nomination.

Term of employment of the visa holder: r.5.19(4)(d)

1. 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.

1. The Tribunal notes that the business appears to have substantial and growing revenues and proportionally aligned profit. The financial evidence provided to the Tribunal clearly show that the revenues can sustain the ongoing employment of the visa applicant. The nominator’s FY 2020 Profit and Loss Statement and Asset Register clearly demonstrate that revenues and profit were not substantially negatively impacted by the Covid-19 pandemic overall. The financial viability has in fact grown on average over a number of years.

1. The Tribunal has had regard to the Employment Agreement and position description. It notes the remuneration of $56,000. It is satisfied that the nominee will be appointed for a period of at least 2 years employment from grant of visa and the terms of employment do not include an express exclusion of the possibility of extending the period of employment. Once again, the Tribunal notes that the visa applicant was originally employed in this role 5 years ago.

1. The Tribunal observes that one of the potential challenges facing the business is retaining the visa applicant and the nominator’s obvious reliance upon their services. This is particularly critical as the nominator requires some specialised skills unique to this high pressure, fast-moving consumer goods and services industry. It is well established that there

is a current substantial shortage of Office Managers throughout Australia. This is exacerbated by the nature of the employment market associated with a transient population, climatic challenges and isolation in the NT.

1. The Tribunal is aware that the workforce is highly mobile. The specialist skills associated with this type of operation are sought-after and readily transferable between competing businesses, frequently via industry networking. It is also cognisant of competitors cannibalising competing businesses and targeting their key staff to obtain a market advantage or fill outstanding vacancies. The Tribunal researched a well-known job site and found in excess of 30,000 current related vacancies nationally and a substantial number in Darwin, NT.

1. The Tribunal is satisfied that the business will be able to sustainably, employ the nominee for the required 2-year minimum period therefore r.5.19(4)(d) is met.

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

1. 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.

1. The Tribunal has been provided with the visa applicant’s employment contract. The Tribunal accepts that the nominee’s annual salary is $56,000 plus Superannuation at the rate of 10%. It also observes that this is approximately $4,000 per annum above the original salary offered, this is a result of current market trends and the incumbent’s positive performance. The Tribunal also sees this as reflective of their qualifications and importance to the business with their niche skill set.

1. The Tribunal researched the salaries offered for similar positions and had regard for the salary determination evidence provided by the applicant. The contracted remuneration appears to fall within the mid-lower quartile of similar positions currently on offer. It is satisfied that the terms and conditions of employment are equivalent to other employees with the same experience performing equivalent work in the same workplace or a similar workplace. Accordingly, the requirements of r.5.19(4)(e) are met.

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

1. 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. There is no evidence before the Tribunal that the applicant has anything but a satisfactory record of compliance with the immigration laws of Australia. Accordingly, the requirements of r.5.19(4)(f) are met.

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

1. 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 notes that there is no evidence before the Tribunal that the applicant has anything but a satisfactory record of compliance with workplace relations law in Australia. 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)

1. Regulation 5.19(4)(h) contains alternative requirements. These are set out in detail in the attachment to the decision. As stated above the nomination was made under the RSMS Direct Entry stream and the Tribunal has proceeded to assess the application against the criteria in r.5.19(4)(h)(ii) which require that:

·the position and nominator’s business are located in regional Australia;

·there is a genuine need for the paid position under the nominator’s direct control which cannot be filled by an Australian citizen or permanent resident;

·the tasks of the position correspond to those of an occupation at the ANZCO skill level 1, 2 or 3; and

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

1. The Tribunal again notes that the business has a substantial current staff including the visa applicant.

1. The Tribunal has had regard to the size and scope of the nominating entity’s expanding business operation. It is self-evident that the nominator cannot operate this business entity without a relatively self-contained, significant supervisory structure in place, of which the visa applicant is a part. The enormous volume and financial value of trade alone demonstrates the need for this role.

1. The Tribunal observes that it is highly unlikely that any business would pursue the employment of a specialist member of staff for any substantial period of time, unless they were genuinely needed. This is a highly transactional business. The Tribunal is cognisant that the nomination was submitted in June 2017.

1. The Tribunal is satisfied that there is a genuine need for the nominator to employ a paid employee to work in the position under the nominator’s direct control.

1. The Tribunal received and accepted evidence from the nominator of the recruitment processes undertaken. This included details of the recruitment advertising on electronic job sites, as they were considered the most appropriate media. The nominator’s internal and external business network was utilised but proved unfruitful. The visa applicant was determined to be the only suitable candidate out of a small field of applicants. A brief analysis of candidate suitability was provided by the nominator for the recruitment undertakings. Lack of appropriate qualifications and insufficient appropriate experience are the main reasons applicants were unsuccessful.

1. The reasons for selecting the incumbent over all the other applicants were clearly articulated in a logical manner acceptable to the Tribunal. The Tribunal is satisfied that a fair and honest recruitment process was undertaken and in spite of their efforts the role was unable to be filled by an Australian citizen or permanent resident.

1. The Tribunal has formed the view that the “Satisfied” RCB requirements and the issued Certificate dated 27 September 2017, provide some weight in favour of the applicant, however this is not within itself a definitive result which must be accepted by the Tribunal. It must make up its own mind as to the relevance of the advice proffered. In this instance it is accepted as sound advice that should be considered in support of the nominator’s claims.

1. The Tribunal is satisfied there is a genuine need for the paid position under the nominator’s direct control which cannot be filled by an Australian citizen or permanent resident.

1. The Tribunal again observes that a substantially more comprehensive and complete evidence base was provided to it, than was presented to the delegate at the time of their decision. This is in part due to the passage of 5 years post the original application being submitted.

1. The Tribunal is satisfied that the nominator’s business is located in regional Australia.

1. Regulation r.5.19(4)(h)(ii)(D), requires that the tasks to be performed in the position correspond to those at ANZSCO skill level 1, 2 or 3. The Tribunal has reviewed the relevant descriptors supplied in ANZSCO 512111 for Office Manager, Skill level 2 and the stated duties of the visa applicant and their qualifications.

1. The Tribunal acknowledges that the ANZSCO descriptors are a substantial guide, not a mandatory definitive reference.

1. This role would by necessity most likely lead to a substantial degree of autonomy and flexibility, as is reasonably expected of an Office Manager in an ANZSCO level 2 designated role. Whilst the visa applicant, would most likely be supervised, report performance in all KPI areas via established systems and seek input from the owners of the business, this coincides with the Tribunal’s expectations of an Office Manager reporting directly to the owners or Directors of a business via an Executive member of Management.

1. The Tribunal has concluded that an Office Manager is required to undertake the myriad of administrative processes central to the business and this role does operate largely in-line with the ANZSCO 512111 specification parameters.

1. The position of Office Manager, ANZSCO 512111, nominated by the applicant is designated by ANZSCO as a skill level 2 position and the Tribunal is satisfied that the visa applicant would be operating at that level.

1. The Tribunal has had regard to Form 1404 issued by an RCB (Department of Training and Workforce Development, WA), dated 27 September 2017 and is satisfied that the applicant has advised the Minister about matters relating to the terms and conditions of employment, the genuine need for the position and that the position cannot be filled locally.

1. The Tribunal is satisfied that the applicant meets 5.19(4)(h)(ii).

1. 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

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

Peter Emmerton Member

ATTACHMENT - EXTRACTS FROM THE MIGRATION REGULATIONS 1994

5.19  Approval 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).