THE TRUSTEE FOR THE NGUYEN SA FAMILY TRUST (Migration)

THE TRUSTEE FOR THE NGUYEN SA FAMILY TRUST (Migration) [2021] AATA 3929 (5 August 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  THE TRUSTEE FOR THE NGUYEN SA FAMILY TRUST
CASE NUMBER:  1822509
HOME AFFAIRS REFERENCE(S):          BCC2017/1349852
MEMBER:Mark O'Loughlin
DATE:5 August 2021
PLACE OF DECISION:  Adelaide
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Statement made on 05 August 2021 at 9:30am

CATCHWORDS
MIGRATION – Employer Nomination – approval of nominated position – Direct Entry Nomination – Nurseryperson – genuine need – growing of seedlings and vegetables in greenhouses – decision under review set aside
LEGISLATION
Migration Regulations 1994 (Cth), 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 25 July 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 11 April 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)(a)(ii) of the Regulations. The delegate analysed the evidence and found that the evidence provided does not identify a need to employ a paid employee to work in the position under the applicant’s direct control.
It appears that in fact the delegate has found that the application does not meet r.5.19 (4)(h)(ii)(B) which concerns evidence of the actual need rather than the mere identification of the need in the application.
The Tribunal will deal with this on the basis that the dispositive issue was a failure of the application to meet r.5.19 (4)(h)(ii)(B).
The applicant’s director, secretary and sole shareholder, Mr. Giang Nguyen appeared before the Tribunal on 10 June 2021 to give evidence and present arguments. The hearing was combined with the hearing of an application by the nominee, Mr Daljit Singh, from whom the Tribunal also heard evidence.
The applicant was represented in relation to the review by its registered migration agent.
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.
Mr Nguyen gave evidence that the company had been operating since 2009 and that he attended nearly every day.
He said that the bulk of the staff are family members who receive a distribution from the trust, part-time staff and contractors.
He said that over the years the business, which grows vegetables in greenhouses, has developed into a relatively high tech hydroponic operation.
He said that the reliance on technology helps them to maintain a relatively low wages Bill.
He said that the nominee, Mr Singh, started working for the business part-time in about 2015.
At that stage he was helping to raise seedlings, transplant seedlings, manage irrigation, and maintain irrigation.
He said that it became clear that they would need to have healthy plants all year round to be able to take advantage of fluctuations in price.
Mr Nguyen said that they advertised the position in March 2017 but conceded that they already thought that the nominee was probably the best candidate.
He said, and the Tribunal accepts, that although there were several applicants most of them were experienced in landscaping or native vegetation which was not appropriate to the business.
He said of the 3 people interviewed, the nominee was the only appropriate applicant.
He said that the nominee does a range of duties including checking the drifters, taking readings from the monitoring equipment, monitoring diseases, monitoring plant hygiene, and supervising seed trials.
He said that essentially the nominee works in the greenhouse whereas he works in the office and the packing shed.
Mr Nguyen told the Tribunal that the business runs and other farm, Nguyen Hydro, which belongs to his father in which they lease. He said that the greenhouses on that property had been used to grow flowers so they have had to make some changes.
Mr Nguyen said that although the employment agreement of 3 April 2017 does not take effect until the applicant gets his visa, he and the nominee generally treat its terms as applying to the nominee’s employment.
Mr Nguyen said that he is happy with the nominee’s performance there is certainly no reason that they would not retain him for a further 2 years.
Mr Nguyen told the Tribunal that the business had not had any problems with fair work Australia and not been the subject of any legal issues.
The nominee told the Tribunal that he originally studied community welfare when he arrived in Australia in 2009 and that he changed to horticulture.
He said he had always been interested in farming and took the opportunity to pursue that while he was here.
He said that in 2015 he was introduced to Mr Nguyen and started working there part-time to get experience in horticulture.
Generally Mr Singh agreed with what Mr Nguyen had told the Tribunal.
In particular he agreed on oath that the quantity of vegetables being grown had increased since he had been working in the business which he attributed to his own efforts.
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 regard to the application and is satisfied that it is compliant.
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.
There is no evidence that the applicant’s business activities are not lawful.
The Tribunal has regard to the financial documents provided to it into the evidence of Mr Nguyen and is satisfied that the applicant is actively and directly operating a business and that the business is being operated 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.
There is no evidence that the nominator’s business activities include labour hire.
Accordingly, the requirement in r.5.19(4)(c) is met.
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 has regard to the employment agreement of the applicant has provided to it and is satisfied that the requirements of this subregulation are met.
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 that there are no Australian citizens or permanent residents performing equivalent work in the same workplace.
The Tribunal is satisfied that the terms of the nominee’s employment in the position will be in accordance with relevant awards and statutory requirements.
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.
There is no evidence before the Tribunal of any relevant ‘adverse information’.
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 that the applicant does not have a satisfactory relevant record.
Accordingly the requirements of r.5.19(4)(g) are met.
Tasks of the position, the genuine need for the position and training requirements r.5.19(4)(h)
Regulation 5.19(4)(h) is in 2 parts, part (i) and part (ii) which are alternatives.
Each contains a number of requirements. If either part is to be satisfied all the requirements of that part must be met.
The applicant does not claim to meet part one, and the Tribunal finds that it does not. Therefore, in order for this application to be successful it must meet the requirements set out in r.5.19 (4)(h)(ii).
These are set out in detail in the attachment to the decision but can be briefly summarised as requiring that:
·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.
The Tribunal is satisfied that the position in business are located in “regional Australia” for the purpose of the subregulation.
The delegate refused the application on the basis that the delegate was not satisfied that there is a genuine need to employ the nominee to work in the position.
The Tribunal accepts the evidence of the applicant including Mr Nguyen’s testimony and the submissions made on the applicant’s behalf.
Tribunal accepts that the structure of the business requires a nursery person to supervise the growing of seedlings and vegetables in its substantial green housing.
The Tribunal accepts the evidence of Mr Nguyen that his efforts to fill the position with an Australian citizen or permanent resident were not successful.
The Tribunal is satisfied that the tasks in the job comply relevantly with the position of a nursery person which appears in the ANZSCO dictionary at 362411.
The Tribunal has been provided with a certificate from a relevant Regional Certifying Body dated 12^th of May 2017 that is satisfied that it complies with the requirements of the subregulation.
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.
Mark O'Loughlin
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 3929

5 August 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Statutory Construction

Procedural Fairness

Jurisdiction