TOM VEALE PLASTERING (Migration)

TOM VEALE PLASTERING (Migration) [2019] AATA 3558 (24 June 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  TOM VEALE PLASTERING
CASE NUMBER:  1618662
DIBP REFERENCE(S):  BCC2016/908243
MEMBER:Nicola Findson
DATE:24 June 2019
PLACE OF DECISION:  Perth
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Statement made on 24 June 2019 at 10:07pm
CATCHWORDS
MIGRATION – Nomination – Direct Entry Nomination stream – genuine position – business growth – genuine need – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), s 359(2)
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 Immigration on 19 October 2016 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 5 March 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 (r.5.19(3)) stream and a Direct Entry nomination (r.5.19(4)) stream. 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 operates a plastering business in Perth, Western Australia. The applicant has nominated a position of Solid Plasterer (ANZSCO 333212).
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 business has a need for a position of Solid Plasterer.
Mr Thomas Veale, representing the applicant, appeared before the Tribunal on 27 May 2019 to give evidence and present arguments. The Tribunal also received oral evidence from the nominated employee, Mr Niall Long.
The applicant was assisted in 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.
On 11 October 2018, the Tribunal wrote to the applicant, through their representative, the authorised recipient for correspondence. The letter invited the applicant to provide information to the Tribunal pursuant to s.359(2) of the Migration Act 1958 (the Act). Specifically, the Tribunal invited information to be provided demonstrating that the business currently met all relevant criteria in r.5.19(4), including but not limited to the particular criteria that the Department had found were not met. The Tribunal provided a copy of r.5.19(4) for reference.
On 26 November 2018, a request was received for an extension of time to provide further supporting information.
Following the grant of an extension of time to provide documents, in circumstances where there was a change of appointment of representative, on 27 May 2019, the Tribunal received additional and updated evidence addressing the requirements of r.5.19(4), including but not limited to:
·ASIC records confirming the applicant’s company registration
·Business activity statements (BAS) for Perth Plasterworx Pty Ltd for various quarters in 2017, 2018 and 2019 recording sales of between $98,672 and $117,806, and wage expenditure of between $14,840 and $15,942.
·Company Tax returns for the years ended June 2017 and June 2018.
·A letter of support dated 9 May 2019 from the applicant’s accountant, who has formed the opinion based on the information before him (including the historical financial status of the business and its future trading projections) that the company has the financial capacity to meet its obligations in relation to the nominee’s position.
·Evidence regarding wages paid to the nominated employee.
·Statement from Mr Veale as to why there is a need for the nominated position.
In the written submission accompanying the additional information provided to the Tribunal, the applicant’s representative, among other matters, provides some background to the operation of the business. The submission sets out that the applicant business was established as a sole proprietorship in 2003. It is claimed that the applicant has demonstrated a clear need to have a full time Solid Plasterer to assist in the business, to enable it to take on more work and become more profitable. It is submitted that it was difficult for the applicant to find a suitable person from the local labour market who held the relevant qualifications, skills and experience.
The submission indicates that the nominee has been employed by the applicant in the position of Solid Plasterer for well over 4 years now, and that he is an integral part of Mr Veale’s family owned and operated business. The submission asserts that the nominee brings high level skills and transfers these skills not only in his work, but also within his industry. The submission indicates that the applicant business is involved in training students from the North Metropolitan TAFE, therefore adding to the pool of skilled tradespeople able to work in Australia and contributing positively to the Australian community.
Since the nomination application was lodged, the submission indicates that Mr Veale has registered another company – Perth Plasterworx Pty Ltd – through which he conducts his business.
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 had regard to the information of the Department’s file as to the nomination, and is satisfied that these requirements are met. The application for approval was made on the approved form and was accompanied by the prescribed fee. The relevant s.245AR(1) certification was also provided in the application form.
The identified occupation in the application is Solid Plasterer (ANZSCO 333212), with a base salary of $53,898 plus superannuation.
The written submission sets out that the delegate’s reasoning that “the business is making profit as it is and as there is not concrete/quantifiable evidence as to why the position is needed” in making his finding that the business has not identified the need of a Solid Plasterer, is difficult to follow. The nominator is running a successful, profitable business (demonstrated by the financial documents) which he wishes to continue to expand, but because he is already successful and making a profit, it is submitted that the delegate’s decision indicates this means the nominator does not need to be employing another worker. The submission goes on to assert that the decision is even more difficult to understand when one considers that, for the nomination to succeed, the business must demonstrate that it is profitable and has the financial capacity to take on the nominee.
Regulation.5.19(4)(a)(ii) requires that the application for approval ‘identifies a need for the nominator to employ a paid employee to work in the position under the nominator’s direct control’. It is unclear whether this requirement is directed just at a statement to this effect or something of a more qualitative nature. The wording ‘identifies a need’ arguably suggests more is required to meet this criterion than simply a statement or declaration that there is such a need. ‘Identify’ is defined as ‘to recognise or establish as being a particular person or thing; attest or prove to be as claimed or asserted.’ On that view, which is consistent with that reflected in Departmental policy, a decision maker would need be satisfied there is a genuine need on the part of the nominator to employ someone in the nominated position.
The Tribunal had the benefit of being able to hear oral evidence from Mr Veale and to discuss the applicant’s ‘identified need’ to employ the nominee to work as a Solid Plasterer under the nominator’s direct control. Mr Veale explained in detail the nature of the business, its operations and its future expansion plans. The business was established in 2003, to enable Mr Veale to subcontract his services as a plasterer. He outlined that after a few years of subcontracting he went out on his own as a sole trader and started doing work on very high quality housing. At this time, he started to expand his business and had two other plasterers engaged, as full time subcontractors, with him. He said that in late 2015, he advertised for a plasterer to employ on a full time basis. He said that it was his intention to take more of a “backseat” in his business by not working in the field as much as he had been, and to concentrate on managing and growing his company. He said that two prospective plasterers came and did some trial work with him, but they did not work out, because they did not have the level of skill and experience he was looking for, and they still required training. He said Mr Long came to him after that and he outlined to the Tribunal how the nominee’s skills and experience were well placed to ensure the smooth operations of the applicant’s day-to-day business. Mr Veale said that the nominee was qualified as well as capable of dealing with clients and builders, and that in a few short weeks he trusted him enough to not have to be on every job himself. Mr Veale told the Tribunal that since he had employed the nominee, he had taken on an Australian apprentice (who has recently completed his apprenticeship), and that he hoped to employ another apprentice in the next financial year. Mr Veale claimed the nominee, having worked for him for over 4 years now, was highly respected in his workplace and was irreplaceable. He said that if his nomination was not successful, finding an Australian with the type of skill and experience he required would be difficult.
Mr Veale gave evidence of the nominated employee’s role and duties as a Solid Plasterer. Mr Long also outlined to the Tribunal his daily tasks and relevant qualifications.
As the business has now been in operation for several years, Mr Veale explained his plans for expansion and described how he planned to achieve further growth, with one key aspect being the nominee fulfilling the role of Solid Plasterer. Mr Veale explained that because the business was doing so well and getting a lot of work, in 2016 his accountant suggested that it would be worthwhile setting up a company. He said that he has in fact done this – Perth Plasterworx Pty Ltd was registered in late 2016. He said that the applicant is still very much transitioning in to a corporate entity. He gave evidence that he did not wish to compromise the nomination application, and accordingly the applicant remains a registered business, and also the entity under which the nominee is engaged and paid. Following the hearing the Tribunal received further information, by way of a letter of support from Mr Veales’ accountant, which described the arrangement governing the payment of wages to the nominee by the applicant.
The Tribunal found Mr Veale to be a reliable witness and is confident to rely on his description of the business and the position, and his intentions for the position as accurate. He was able to articulate with detail about both the need and genuine need for the nominator to employ a paid employee in the role of Solid Plasterer under the nominator’s direct control.
The Tribunal is satisfied, based on Mr Veale’s verbal evidence, along with the supporting information that the applicant has been able to identify a need for the nominator to employ a paid employee to work in the position under their 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 applicant is actively, lawfully and directly operating a business in Australia.
Having considered the material before it, including the nominator’s financial documents (including the letter of support from the applicant’s accountant) and business registration records, the Tribunal is satisfied that the nominator 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.
There is no evidence before the Tribunal to indicate that the applicant is involved in labour hire activities. The Tribunal is satisfied that the employment contract and organisational chart confirm that the nominee will work in the applicant’s direct employ.
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 applicant has provided additional information and updated financial reports to the Tribunal that indicate that the company does have the financial capacity to employ the nominee at the specified salary, and the Tribunal accepts this evidence.
It is now over two years since the delegate’s decision, and documents provided by the applicant show that the nominee has continued to be employed in the nominated position. The Tribunal has also had regard to the terms and conditions of employment as set out in the employment contract. The contract indicates that the nominee will be employed as a Solid Plasterer on a full time basis for two years, renewable by agreement with a base salary of $53,898 plus superannuation. There is nothing in the contract that expressly excludes the possibility of extending the employment period.
Having regard to the totality of the evidence before it, the Tribunal is satisfied that the applicant has the financial capacity to provide the nominee with employment in the nominated position for at least two years full time and that the terms and conditions of that employment do not exclude the possibility of an extension.
Accordingly, the requirement in r.5.19(4)(d) is met.
No less favourable terms and condition 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 has had regard to the terms and conditions of employment as set out in the employment contract. The contract provides for the nominee’s leave entitlements and indicates that the base salary will be $53,898 plus superannuation for a 37.5-hour week. The Tribunal has considered payscale.com.au information indicating that the salary for a plasterer ranges from $40,883 to $91,203. The Tribunal is satisfied that the nominee is being, and will continue to be, paid in accordance with the terms of employment.
On the basis of the information before it, the Tribunal is satisfied that the base salary of the nominee is consistent with what another Solid Plasterer in a similar location would be paid. The Tribunal is accordingly satisfied that the terms and conditions applicable to the nominated position will be 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.1.13A and 1.13B.
There is no evidence before the Tribunal to suggest that there is 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 to suggest that the applicant does not have a satisfactory record of compliance with workplace relation laws.
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 a number of alternative requirements. These are set out in detail in the attachment to the decision and those relevant to this matter are as follows:
·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.
Location of the position and the business
The first consideration under r.5.19(4)(h)(ii) is whether the position is located in regional Australia. Regulation 5.19(16) provides that ‘regional Australia’ is defined by the legislative instrument.
The Tribunal has considered the current legislative instrument (IMMI18/037), however, Schedule 3 of IMMI 18/037 states that it applies only to applications lodged on or after 8 March 2018[1]. The Tribunal notes that IMMI 18/037 repealed the previous legislative instrument (IMMI 17/059)[2].
[1] Relevantly, IMMI 18/037, Schedule 3 – Application of this Instrument states: “(1) This instrument applies in relation to the following: (a) an application for approval of a nomination in relation to the Subclass 187 (Regional Sponsored Migration Scheme) visa made on or after 18 March 2018…”
[2] See Schedule 4 of IMMI 18/037
When IMMI17/059 commenced on 17 November 2017, it did not include any saving or transitional provisions and was silent on how applications that had been made and not finally determined on the date it came into effect were to be treated. The Tribunal notes that the Department made a public statement in its Skilled Visa E-News November 2017 newsletter indicating that IMMI 17/059 only applied to nomination applications made on or after 17 November 2017.

Given that neither the current instrument nor its immediate predecessor can be relied upon, in order for the Tribunal to reach a finding in respect of whether the position is located in regional Australia, the Tribunal has considered the legislative instrument that applied at the time the applicant lodged the nomination application. That legislative instrument is IMMI 13/049.
In this case, the position is located in Bayswater, Western Australia, 6053, and at the time of application, this location/postcode was considered regional Australia, as per Schedule B of IMMI 13/049. Accordingly, the Tribunal finds that the requirements of sub-paragraph 5.19(4)(h)(ii)(A) and (E) are met.
Genuine need for the paid position, which cannot be filled by an Australian citizen or an Australian permanent resident
Subparagraph 5.19(4)(ii)(h)(B) requires the Tribunal to be satisfied that there is a genuine need for the applicant, as the nominator, to employ a paid employee to work in the position under the nominator’s direct control.
In considering this issue, the Tribunal has taken into account the information provided to the Tribunal regarding the nature of the business and the explanation as to why there is a genuine need for a paid Solid Plasterer in the business. The Tribunal accepts the evidence regarding the applicant’s efforts to find a suitably qualified and experienced plasterer to fill the nominated position, on a long-term basis. The evidence before the Tribunal indicates that the role was advertised, and other prospective employee trialled, before Mr Long was offered the position. The Tribunal also takes into account the opinion of the regional certifying body, which it notes to be the Government of Western Australia, advising the Minister among other matters that the nominated position cannot be filled by an Australian citizen or permanent resident living in the same local area as the nominated position.
The Tribunal is satisfied that the applicant has demonstrated a genuine need for a paid position under its direct control and that it cannot be filled by a local resident. Accordingly, r.5.19(4)(ii)(h)(B) and (C ) are met.
Tasks of the position
The tasks of the nominated position must correspond to those of an occupation specified in the relevant legislative instrument.
The Tribunal has had regard to evidence that has been provided detailing the tasks that will be performed and is satisfied that they correspond to the tasks of the occupation of Solid Plasterer specified in the relevant instrument. The applicable instrument specified for this purpose is IMMI 15/083. The application is for a Solid Plasterer, ANZSCO 333212.
A detailed summary of the tasks to be performed in the position are consistent with the tasks for the position in ANZSCO, which include:
·determining plasterboard layout, and installing insulation and vapour barriers
·measuring, marking and cutting plasterboard, lifting and positioning panels, and securing them to walls, ceilings and battens
·preparing corner beads and securing them in position
·fixing pre-cast cornices, panel mouldings, ceiling centres and other plaster fittings
·covering joins and nail holes with wet plaster and sealing compounds, and smoothing them using wet brushes and sand paper
·mixing and applying coats of plaster, cement and render to structures using trowels, and levelling and smoothing coats to uniform thickness
·plumbing and straightening corners, angles and wall and ceiling surfaces
·creating decorative textures in finishing coats
·applying and finishing acoustic, insulating and fireproofing materials bonded with plaster, plastic cement and similar materials
On the basis of the evidence before it, the Tribunal is satisfied that tasks associated with the position correspond sufficiently to those of the occupation of Solid Plasterer, such that it is satisfied that the tasks expected to be performed by the nominee in the applicant’s business correspond to the tasks of a Solid Plasterer at ANZSCO Skill Level 3.
The Tribunal notes in passing that in addition to a 4 year apprenticeship he completed in Ireland, the nominee holds a Certificate III in Solid Plastering from an Australian provider including at least two years of on the job training, being the requisite level of qualification according to ANZSCO. The Tribunal also observes that the nominee has experience working for the applicant as a Solid Plaster for over four years.
Accordingly, the requirements of r.5.19(4)(h)(ii)(D) of the Regulations are met.
Regional Certification
The Tribunal has considered the Form 1404 Regional Sponsored Migration Scheme – Regional Certifying Body Advice, issued on 18 February 2016 by Skilled Migration WA, Western Australian Department of Training and Workforce Development.
The Tribunal notes its earlier comments in relation to the current instrument IMMI 18/037, which only applies in respect of nomination applications made on or after 18 March 2018, and that it has therefore applied the provisions in the instrument that applied at the time the applicant lodged the nomination application, which was IMMI 13/049.
On the basis of the advice set out in the Form 1404 Regional Sponsored Migration Scheme – Regional Certifying Body Advice provided, the Tribunal is satisfied that the regional certifying body has advised the Minister about the matters set out in r.5.19(4)(e ) and r.5.19(4)(h)(ii)(B) and (C) of the Regulations. The regional certifying body states that:
·There is a need for a paid employee in the nominated position within the business activities of the nominating employer;
·The nominated position cannot be filled by an Australian citizen or an Australian permanent resident who is living in the same local area as the nominated position; and
·The terms and conditions of employment that are applicable to the nominated position will be no less favourable than the terms and conditions that are or would be provided to an Australian citizen or Australian permanent resident for performing the equivalent work in the same workplace at the same location.
Consistent with the decision of the Federal Circuit Court of Australia in Bharaj Construction Pty Ltd v MIBP [2016] FCCA 902, certification by a regional certifying body is not sufficient or determinative in relation to whether the nominator meets r.5.19(4)(e) , r.5.19(4)(h)(ii)(B) and r.5.19(4)(h)(ii)(C) of the Regulations. Accordingly, the Tribunal notes that, whilst having regard to the advice provided by the regional certifying body, it has reached its own conclusions about the matters the subject of the regional certifying body’s advice.
Having considered the Form 1404 provided, the Tribunal is satisfied that the requirements of r.5.19(4)(h)(ii)(F) are met by provision of the requisite Form 1404.
It follows that the Tribunal finds the applicant meets all the requirements of r.5.19(4)(h) of the Regulations.
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.
Nicola Findson
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).

[2019] AATA 3558

24 June 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Statutory Construction

Procedural Fairness

Jurisdiction