Trans Petroleum (Australia) Pty Ltd (Migration)

Trans Petroleum (Australia) Pty Ltd (Migration) [2020] AATA 5862 (23 November 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Trans Petroleum (Australia) Pty Ltd
CASE NUMBER:  1819086
HOME AFFAIRS REFERENCE(S):          BCC2017/988722
MEMBER:Peter Emmerton
DATE:23 November 2020
PLACE OF DECISION:  Adelaide
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Statement made on 23 November 2020 at 2:50pm
CATCHWORDS
MIGRATION – Employer Nomination – approval of nominated position – Direct Entry Nomination – Marketing Specialist – genuine need – substantial-sized and diverse retail operation – rapidly growing, large annual turnover – substantial and relatively self-contained management structure required – recruitment process – complex skill set required – relatively isolated location in Western Australia – 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 14 June 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 13 March 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)(h)(ii)(B) of the Regulations because they were not satisfied that a genuine need for the nominator to employ a paid employee to work in the position under the nominator's direct control had been established.
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.
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.
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.
The nominating entity owns and runs a substantial multi-outlet retail fuel and fast-moving consumer goods operation, in regional Western Australia, outside of Perth, WA. In addition, they own an award-winning winery with cellar door operations and a heavy emphasis upon sales into China and a housing development business.
The total number of staff employed in the retail aspects of this business, reporting directly the Retail Manager (General) position, is in excess of 18 full-time and part-time employees plus kitchen staff and mechanics creating a total staff of approximately 28.
The Marketing Specialist role reports directly to the Managing Director and provides marketing support to both the winery operations and the service station operations comprised of 3 fuel outlets, each with Fast Moving Consumer Goods, (FMCG) stores. One outlet operates 24 hours per day, 365 days per year with a dine-in and take away restaurant and a central kitchen which supplies some meals to the other 2 outlets.
The visa applicant’s substantial responsibilities, previous relevant experience, qualifications and attributes substantially align with the duties associated with a Marketing Specialist, ANZSCO 225113.
The visa applicant possesses a Bachelor of Business Management (Marketing) achieved in Australia.
The Tribunal is cognisant of the challenges associated with recruiting and retaining suitably experienced management and staff working in retail businesses with limited opportunities for advancement. The Tribunal also notes that the Managing Director has a substantial and growing enterprise under his control and is planning on future expansion which includes other business ventures. In addition, the nominator currently operates a modest housing development company.
The Tribunal received and accepted evidence from the nominator, of the salary determination, market testing and recruitment processes. This role was first advertised in January 2017 which yielded 7 applicants, (including the visa applicant) who were initially short listed. The Resumes’ were provided to the Tribunal. The Tribunal notes the associated proof of advertising in electronic media, in support of their recruitment for the position. It also accepts the statements provided by the nominator attesting to their recruitment efforts and the associated detailed statement as to why the role was challenging to fill and their need to fill the role. The Tribunal accepts that the type of role may have substantially limited the potential talent pool.
The Tribunal additionally accepts that the employment contract does not include an express exclusion of the possibility of extending the period of employment beyond the initial 2-year minimum period with the provision for extension. The current contract of employment dated 4 February 2017 stated the salary as $70,500 exclusive of the 9.5% Superannuation, which appears to be in the mid quartiles of similar role’s remuneration levels.
The Tribunal perused popular employment web sites in order to ascertain the current state of the market in this field. The Tribunal observed a substantial number of related vacancies, in a wide variety of locations and organisations currently under recruitment. The Managing Director has provided evidence in the form of current BAS documentation that the Covid 19 pandemic has had a relatively brief, impact overall but revenues have rebounded quickly, approximately to pre-pandemic levels. The Tribunal notes the current status being enjoyed by Western Australia with virtually no infections. The Tribunal is cognisant that many of the observed positions may appear to be equally or more attractive environments to some candidates than the nominated position in this relatively geographically isolated regional, WA location.
The Tribunal acknowledges that a ‘Satisfied’, RCB Certificate has been issued by the relevant certifying body in Western Australia. The date of the certificate is 3 March 2017.
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 finds that the application was lodged electronically using the elodgement 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).
The Tribunal notes from the current Organisation Chart and subsequent evidence given in writing, that the retail business is operating on a substantial staffing ratio of 18 retailing positions reporting to the Retail Manager, plus kitchen staff and mechanical repair workshop team members. The current approximate total head count is 28 as some rebuilding has taken place post Covid-19. This is in part due to the 4 modes of product retailing in the fuel distribution operations, (fuel, repairs, restaurant and take-away food, fast moving consumer goods) plus the winery cellar door sales operation and the export marketing. The complexity of tasks associated with the diverse marketing required across so many different business units would, in the experience of the Tribunal clearly identify the need for a full-time Marketing Specialist.
The Tribunal accepts the statement that the Managing Director responsible for this operation does not work in the fuel / retailing business, he has other business interests in which he is involved including the fact that he owns and operates an award-winning winery with a heavy emphasis upon export to China and a housing development business. He travels constantly nationally and internationally and would on average spend approximately 1 day per week in the business under review.
It would appear logical that regardless of the skilful utilisation of technology, the Managing Director is unable to sustainably undertake the daily duties of a Marketing Specialist unless present in that role for the substantial operating hours of and focussed upon the respective businesses requiring that skill set. It again observes the multiplicity of activities undertaken by the Managing Director and the substantial travel commitments within Australia and internationally. Evidence was presented stating that the Managing Director spends approximately 1/3 of his time in Western Australia in the businesses.
It is observed by the Tribunal that the business has had to operate for in excess of 6 months without the Managing Director’s presence in Australia as he has been forced to remain in mainland China due to Australia’s travel restrictions. This resulted from a business trip prior to the Covid-19 pandemic restrictions being implemented.
The Tribunal accepts as fact that the role currently under review has resulted from the resignation of the previous incumbent in October 2016 who was named in documentation presented.
The Tribunal observes that a considerable additional impost has been placed upon retail outlets, restaurant/food outlets and cellar door operations since the advent of the current Covid-19 pandemic and the implementation of resultant additional operating processes and procedures.
The Tribunal is satisfied that the application has identified a need for a paid employee to work in the position of Marketing Specialist, 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)
Regulation 5.19(4)(b) requires that the applicant is actively, lawfully and directly operating a business in Australia.
The Tribunal has been provided with a range of Profit and Loss Statements, including those produced for FY 2018, FY 2019 and the ATO Tax Return for FY 2019, in addition to current BAS Statements up to September 2020, all of which correlated. ASIC Registration details were also researched by the Tribunal for this business entity. The Tribunal checked the status of the listed ACN, (074 714 668), which is active. 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)
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)
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 had regard to the Employment Agreement and position description. 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.
The Tribunal notes that the business appears to have substantial and rapidly growing revenues prior to Covid19, increasing by approximately 400% between 2015 and 2019 with proportionally aligned profit. The stability of the nominating entity in an ever increasing and competitive market attests to the nominator’s ability to operate successfully. The Tribunal notes that the diverse business model is likely to further enhances sustainable business operations. 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.
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. It is aware that the workforce is mobile, that the specialist skills associated with this type of operation are highly sought after and readily transferred between competing businesses. The Tribunal is also cognisant of industry competitor’s actively targeting competing businesses and trying to poach their key staff in order to overcome staff shortages or obtain a market advantage. In addition, it is acknowledged that these roles are not always highly sought after by appropriately qualified personnel as they are modestly rewarded but also present challenging workloads, hours of operation and responsibilities.
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 been provided with the visa applicant’s employment contract. The Tribunal accepts that the nominee’s stated annual salary of $70,500 plus statutory Superannuation, (currently 9.5%), as appropriate and is reflective of their experience relevant to the nominated position. It notes that it is in-line with the current relevant Award conditions.
The Tribunal researched the salaries offered for similar positions and had regard for the salary determination evidence provided by the applicant. 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. It is also acknowledged that the other work-place conditions stated in the contract align with current legislative and regulatory 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 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)
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)
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 a 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.
The Tribunal notes that the delegate refused the application on the basis that the applicant’s nomination did not satisfy r.5.19(4)(h)(ii)(B) of the Regulations because there was insufficient evidence presented to support the claim that there was a genuine need to employ the nominee. The Tribunal has been presented with a substantially more comprehensive suite of relevant evidence in support of the nomination than had been originally afforded to the Minister’s Delegate.
The Tribunal, as a result of the evidence being presented, has subsequently formed a different view. It has had regard to the substantial size and scope of the nominating entity’s multi-faceted operations involving diverse products. It notes the very high levels of income and substantial proportional profits.
Evidence was presented to the Tribunal regarding the recruitment process in the form of a written statement and evidence of advertising and the Resumes’ of the short-listed candidates. The Tribunal accepts as fact that there were 7 applications, none of whom, other than the visa applicant, were suitably experienced or qualified to undertake the role. This was in part because of the complex skill set required which included multi-cultural and language skills.
The Tribunal was presented with the resumes’ considered during the recruitment process.
It also accepts as fact that the professional and personal networks of the Director did not produce any other suitable candidates.
The Tribunal is aware of the direct and indirect employment market distortions created by the mining industry cycles which can further complicate recruitment of skilled and semi-skilled individuals in WA and it is satisfied that the position cannot be filled by an Australian citizen or permanent resident.
The Tribunal is satisfied that the nominator’s business is located in regional Australia.
The Tribunal has had regard to the size and scope of the nominating entity’s overall business operations and the extended staffing hours associated with this operation, required due to the mandated operating hours of the 7 day per week fuel businesses and in the case of one outlet 24 hour, 7 day per week operation. The winery operation involving export and cellar door sales coupled with a housing development business adds additional complexity in relation to marketing planning and execution.
It is self-evident from the previously stated evidence that the nominator cannot operate this growing business entity without a substantial and relatively self-contained management structure in place unless they are present to manage the various operational units themselves. It again refers to the fact that the Managing Director has substantial additional business interests in which he is personally involved on a day to day basis.

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.
The Tribunal acknowledges that there are a large number and range of Marketing Specialist roles readily available in Perth, regional Western Australia and throughout Australia. The demands of the job, regional location and hours and complex responsibilities of this role may not have proven overly attractive to some candidates. The relatively isolated location in Western Australia may also provide a negative employment circumstance further limiting the potential candidate pool.
The Tribunal once again observes that a substantially more comprehensive 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 3.5 years which have elapsed since the original application was made. It also acknowledges the range of restructuring activities within the business in the last 5 years including acquisitions and sales of outlets. Such an entrepreneurial approach is not surprising to the Tribunal. The Tribunal is satisfied that the position cannot be filled by an Australian citizen or permanent resident.
The Tribunal is satisfied that the nominator’s business is located in regional Australia.
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 both the relevant descriptors supplied in ANZSCO 225113 for Marketing Specialist and the stated duties of the visa applicant. The Tribunal acknowledges that the ANZSCO descriptors are a guide, not a mandatory definitive reference. Once again, it notes that the business owner clearly occupies the role of Managing Director rather than on the floor management and does not work as a Manager in the business although it appears that he is heavily involved in the wine production aspects.
The Tribunal referred to the independently produced workplace assessment and skills mapping report on the role which was undertaken by senior consultants at Clayton Shuttleworth. In their comprehensive assessment report, they state the following.
‘…..Based on the evidence taken for this independent Workplace Skills Assessment we are convinced that the current marketing demands and the future growth plans of Trans Petroleum (Australia) Pty Ltd justify the need for a full-time dedicated Marketing Specialist. We have concluded from the evidence taken, the review of relevant documents and the international conference call with TPA CEO/Owner Mr Wong, the position of Marketing Specialist can be clearly justified in the TPA business model.…..’ ‘…..We note also that a common cause of small business failures results from either the absence of marketing and/or marketing incompetence. Without a suitably qualified and experienced Marketing Specialist it could be argued that TPA will fail to meet its growth and development plans. Such is the case with small business operations during their early years of operation, often resulting in the business failing to survive……’
‘……We have established the genuine need for the permanent full-time position of Marketing Specialist at TPA. We are satisfied that TPA has provided credible and relevant data to be reviewed for this assessment. We note that CEO/Owner Mr Wong cooperated fully and professionally to participate in the international conference call where a specific range of matters were discussed in order to gather evidence and facts for this submission. On the basis and findings of this independent review we recommend that the nomination of the position of Marketing Specialist made by TPA be approved…...’
The Tribunal is positively persuaded by this assessment. As previously stated it additionally notes, the 7 day per week opening hours of the businesses, coupled with the multiplicity of business operations clearly indicates the need for a Marketing Specialist to coordinate the various local and international marketing functions required in order for the business to thrive. This would by necessity most likely lead to a considerable degree of autonomy being associated with the role, as is reasonably expected of a Marketing Specialist in an ANZSCO level 1 designated position.
Whilst the visa applicant, would most likely report performance in all KPI areas via established systems and seek input from the Managing Director of the business at their management meetings, this coincides with the Tribunal’s expectations of a Marketing Specialist directly reporting to the Managing Director of a business.
The Tribunal acknowledges that this is a substantial-sized and diverse retail operation with a rapidly growing, large annual turnover. It is in no doubt the visa applicant requires a degree of flexibility and subsequent autonomy performing the many and varied work duties, as you might expect in such an entrepreneurial operation. The Tribunal has also concluded that a Marketing Specialist is required to gather data, oversee the diverse marketing functions on-shore and off-shore and does operate largely in-line with the ANZSCO 225113.
The position of Marketing Specialist, ANZSCO 225113, nominated by the applicant is referred to in ANZSCO as a skill level 1 position and the Tribunal is satisfied that the visa applicant is operating at that level.
The Tribunal is satisfied that the applicant meets 5.19(4)(h)(ii).
The Tribunal has had regard to Form 1404 issued by an RCB (WA Department of Training and Workforce Development), dated 3 March 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.
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.
Peter Emmerton

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).

[2020] AATA 5862

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