Victorian Colours Pty Ltd (Migration)

[2022] AATA 1603

Victorian Colours Pty Ltd (Migration) [2022] AATA 1603 (4 March 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Victorian Colours Pty Ltd

REPRESENTATIVE:  Mr Rick Gunn (MARN: 0530987)

CASE NUMBER:  1838122

HOME AFFAIRS REFERENCE(S):          BCC2017/1597373

MEMBER:Susan Reece Jones

DATE:4 March 2022

PLACE OF DECISION:  Melbourne

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

Statement made on 4 March 2022 at 12.06pm

CATCHWORDS
MIGRATION–nomination – Direct Entry nomination stream –genuine need to employ a paid employee to work in the position under the nominator’s direct control – no less favourable terms and condition of employment –applicant lawfully operating a business in Australia– decision under review set aside

LEGISLATION
Migration Act 1958, ss 65, 140GB, 245AR, 359, 360
Migration Regulations 1994, r 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 13 December 2018 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).

2. The applicant applied for approval on 4 May 2017. The requirements for the approval of the nomination of a position of Painting Trades Worker (ANZSCO – 332211) 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).

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

4. The delegate refused the application on the basis the applicant’s nomination did not satisfy reg 5.19 (4)(h)(ii) of the Regulations because the Department found that the applicant did not identify that there was a genuine need for the applicant to employ a paid employee to work in the position under the applicant’s direct control.

5. The Tribunal received a review application on 30 December 2018. It was signed on behalf of the applicant by the applicant’s sole director, Mr Rajeshkumar Maheshwari, and was accompanied by a copy of the delegate’s decision and an authority by which the applicant appointed a registered migration agent, Representative Sunhil Sharma, of Asia Pacific Group.    

6. On 5 August 2021, the Tribunal wrote to the applicant via the agent, pursuant to s.359(2), to invite the applicant to provide updated and current information demonstrating that the applicant met all of the criteria in r.5.19(3). The Tribunal provided examples of the kinds of information that would assist it to assess the criteria in r.5.19(3) and noted that all of the criteria had to be met in order for the Tribunal to set aside the refusal decision and substitute a decision to approve the nomination.

7. On 15 August 2021, the applicant’s newly appointed representative, Mr Rick Gunn of Carina Ford Lawyers, wrote to the Tribunal requesting an extension of additional time to respond to the Tribunal’s invitation to provide information.

8. On 16 August 2021, the Tribunal agreed to an extension until 13 September 2021.

9. On 13 September 2021, the applicant provided the following to the Tribunal:

   ·     ASIC Current & Historical Extract

   ·     Business Activity Statements 2019, 2020, 2021

   ·     Financial Statements for 2019, 2020, 2021

   ·     ATO Tax Return for 2019, 2021

   ·     Contract to Provide Services

   ·     Invoices for work 2020

   ·     Organisational Chart

   ·     Applicant Business Lease of premises

   ·     Business Plan

   ·     Job advertisements

   ·     Submission from Representative dated 13 September 2021

   ·     Referral Letter from Supplier

   ·     Painting Job Invoices 2020

   ·     RSMS Regional Certifying Body Advice – Form 1404

   ·     Job Advertisement and Invoices

   ·     Labour Market Testing Declaration

   ·     PayScale Salary Rate Report – Painting Trades Worker

   ·     Job Outlook Salary Rate Report – Painting Trades Worker

   ·     Seek Advertisement – Painting Trades Worker (1)

   ·     Seek Advertisement – Painting Trades Worker (2)

   ·     Employment Agreement dated 24 April 2017 with a salary of $42,000

   ·     Employment Agreement dated 13 August 2021 with a salary of $55,000

   ·     Evidence of Nominee working for Review Applicant during 2020

   ·     Evidence of Nominee’s residence in Shepparton 2017-2019

   ·     Evidence of Nominee’s residence in Shepparton 2019-2020

   ·     PAYG Payment Summary – Year Ending 30 June 2017

   ·     PAYG Payment Summary – Year Ending 30 June 2018

   ·     Payslip – Muhammad Mansuri – 31 August 2021

   ·     Painting Trades Worker Position Description

   ·     Superannuation Payment Summary - 01 April 2017 - 30 June 2017

   ·     Victorian Building Authority Registration – for the nominee

   ·     ANZSCO - Painting Trades Worker – 332211

   ·     Applicant’s submission outlining the genuine need for the position

10. Following a review of the above, the Tribunal requested that the applicant provide further evidence in support and on 9 February 2022, the applicant provided the following:

    ·     BAS: July-September 2021 and October-December 2021

    ·     Financial Statement 2021

    ·     Nominee’s most recent PAYG statement 2021 to January 2022 evidencing current employment with the applicant

    ·     Nominee’s most recent Notice of Assessment: 2020

11. In reaching a decision, the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the applicant on the basis of the material before it, pursuant to s.360(2)(a) of the Act.

12. 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

13. 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 reg 5.19(4), which is extracted in the attachment to this decision. For the nomination to be approved, all the requirements must be met.

    The application is compliant: reg 5.19(4)(a)

14. 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.

15. From the material on the Department file, the Tribunal is satisfied that the nomination application complied with the above requirements.

16. Accordingly, the requirement in reg 5.19(4)(a) is met.

    Nominator is actively and lawfully operating a business in Australia: reg 5.19(4)(b)

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

18. The applicant operates a business providing commercial and residential painting services. The applicant operates a commercial painting business in Shepparton, Regional Victoria and has done so since 2017. The applicant submitted that Shepparton is known as an industrial, manufacturing and commercial hub and that the applicant is strategically placed in a prime location known for major commercial and industrial works. The applicant, which is domiciled at the Greater Shepparton Business Centre, noted that the Business Centre provides “encouragement to small start-up enterprises by providing spaces at a very competitive rate to minimise start-up costs, creating an impetus for growth”.

19. The applicant provided the ATO Tax returns and Financial Statements containing the following information:

2017	2018	2019	2020	2021
Total income	32,021	180,561	205,773	151,200+	112,854
Business plan*	23,091	187,171	245,697
Wages (Contractors and employees)	13,500 6,462	48,521 59,940	72,373	$43,194 42,851	15,257 41,250
Superannuation	5,731	921	2,502	3,918
Total assets	1,821	17,088	15,363	34,058	47,628
Total liabilities	260	1,741	11,866	9,845	2,899

+Government Grants $10,000
*The applicant submitted its Business Plan with a 3-year forecast from 2017-2019.

1. The applicant advised the Tribunal that the significant drop in turnover in 2020/2021 year was due to impact of the COVID-19 restrictions and lockdowns.

2. The applicant submitted the following BAS:

Sales income $	Salaries $
Jan -March 2019	52,383	11,873
April - June 2019	51,743	40,088
July– Sept 2019	40,180	nil
Oct - December 2019	38,276	6,497
TOTAL	182,582	58,458
Jan  – March 2020	39,874	9,394
Apr - June 2020	32,950	19,390
July  – Sept 2020	27,720	10,680
Oct- December 2020	9,583	10,098
TOTAL	110,127	50,144
Jan -March 2021	12,016	9,914
April - June 2021	22,542	10,557
July - Sept 2021	29,301	13,690
Oct- December 2021	59,257	18,200
TOTAL	123,116	52,361

1. The Tribunal notes that the applicant has been severely impacted by COVID-19 lockdowns as can be seen in the financial results provided. That said, the applicant’s turnover doubled in the October - December 2021 quarter in comparison to the previous September quarter.

2. The Tribunal is satisfied based on the material before it, including the applicant’s recent submission, that the applicant is actively and lawfully operating a business in Australia.

3. Accordingly, the requirement in reg 5.19(4)(b) is met.

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

4. 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. 

5. There is no evidence to indicate that the applicant participates in labour hire activities.

6. Accordingly, the requirement in reg 5.19(4)(c) is met.

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

7. 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. 

8. The Tribunal was provided with the nominee’s Employment Agreement dated 24 April 2017 with a salary of $42,000 and more recently (dated 13 August 2021) with a salary of $55,000.  

9. The applicant’s Organisation Chart shows that the applicant employs 2 employees including 1 Australian citizen/permanent resident (being the applicant director) and 1 non-resident, being the nominee.

10. The nominee was employed by the applicant as noted below:

$	2017	2018	2020
PAYG	$6,462	41,612	40,362

1. The nominee’s most recent PAYG statement 2021 to January 2022 confirms that the nominee is currently employed by the applicant. The applicant also provided details of the nominee’s salary between 16 August 2021 and 30 January 2022 which shows that the nominee was paid $23,000 in this period. The applicant advised that the nominee’s most recent Notice of Assessment is 2020, and that the second half financial year 2020– i.e., February to June 2020, was understandably, severely impacted by COVID-19 restrictions.

2. According to the applicant submissions, for much of the 2021 financial year, the nominee had to work under his own Tax File Number as a Painter. Evidence of the nominee’s ABN was provided to the Tribunal and it shows that the nominee was registered as a Sole Trader, although the applicant has provided evidence to show the Tribunal that the nominee is now employed by the applicant.

3. The applicant noted that the applicant’s BAS statements, Financial Statements and the ATO Tax returns of the applicant of the business from 2018 to 2020 demonstrate the capacity of the business to employ the nominee for a period of two years. The applicant submitted to the Tribunal that the business has been impacted in the last two years with COVID-19 lockdowns but expects business will recover once the COVID restrictions have been lifted. To that end, the applicant submitted that for the period of September to December 2021, (as noted at paragraph 22 above), an increase in turnover for the 2021 financial year, and in particular the December 2021quarter, reflects the coming out of COVID-19 lockdowns. Further, the applicant has reported income of approximately $60,000 for the December quarter which compares favourably with the previous year. The applicant submitted that the applicant’s uplift in turnover is such now coming out of COVID-19 restrictions, and that it will be “more than adequate to support the nominated position”.  

4. On assessment of all the evidence provided, the Tribunal is satisfied that the applicant has the capacity to employ the nominee 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. 

5. Accordingly, the requirement in reg 5.19(4)(d) is met.

   No less favourable terms and conditions of employment: reg 5.19(4)(e)

6. 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.

7. The Tribunal was provided with the nominee’s Employment Agreement dated 24 April 2017 with a salary of $42,000 and more recently, the Employment Agreement dated 13 August 2021, provides the nominee with an increased salary of $55,000. 

8. The terms and conditions of the Employment Agreement are the same as those that would have been provided to an equivalent Australian employee performing equivalent work for the applicant and are consistent with the National Employment Standards. The applicant provided its Organisational Structure chart which indicates that there are no equivalent Australian citizen or permanent resident employees performing equivalent Painting Trades Worker roles in the same workplace at the same location. The applicant director does appear to also undertake painting work however, as Mr Maheshwari is the applicant’s director, his role is distinguished from that of the nominee’s as he is also the director of the company. The applicant, as noted at paragraph 57 below, has had to engage subcontractors, to the extent that the applicant has supported this application for the nominee.

9. The applicant submitted that the terms and conditions provided to the nominee are comparable to the market salary rate. The Tribunal has undertaken research to assess the salary proposed by the applicant to determine that it 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 salary surveys and other salary data, including from:

   • the Payscale website (accessed 27 January 2022) indicates that a Painter in Australia earns on average of $28.28 per hour or $55,881 per annum:
   • The Tribunal could find no other advertisements for Painters in Shepparton listed on Seek.com.au (as at 22 February 2022):           

10. On the evidence provided, the Tribunal is satisfied that the applicant will be employed in the nominated position on terms 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. Accordingly, the requirements of reg 5.19(4)(e) are met.

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

11. 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 regs 1.13A and 1.13B.

12. There is no information before the Tribunal to indicate that there is adverse information known to the Department about the applicant or an associated person.

13. Accordingly, the requirements of reg 5.19(4)(f) are met.

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

14. 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.

15. There is no information before the Tribunal to suggest that the applicant does not have a satisfactory record of compliance with workplace relations laws.

16. Accordingly, the requirements of reg 5.19(4)(g) are met.

    Tasks of the position, genuine need for the position and training requirements reg 5.19(4)(h)

17. Regulation 5.19(4)(h) contains a number of alternative requirements. These are set out in detail in the attachment to the decision but can be briefly summarised as requiring either that:

    ·the tasks to be performed in the position will be performed in Australia and correspond to those of an occupation specified by the Minister (see legislative instrument IMMI 16/045), the occupation is applicable to the proposed employee in accordance with any specifications made in that instrument, and specified training requirements are met; or

    ·the position and nominator’s business is located in regional Australia, there is a genuine need for the paid position under the nominator’s direct control which cannot be filled by a locally resident Australian citizen or permanent resident, the tasks of the position correspond to those of an occupation specified in the relevant legislative instrument, the occupation is applicable to the proposed employee in accordance with the specification of the occupation and that a regional certifying body has advised the Minister about certain matters relating to the position.

18. The business operated by the nominator is located in regional Victoria. The nominated position is located at the applicant’s offices in Shepparton (Victoria, 3630). In accordance with the relevant Instrument IMMI 16/045, Shepparton is designated to be within regional Australia and therefore, the second dot point above applies.

19. The applicant provided the RCB 1404 Form, dated 6 February 2018, authorised by Department of Economic Development, Jobs, Transport and Resources (Shepparton).

20. The applicant operates using the business name “Victorian Colours”, in Shepparton, with the nominee currently as its sole employee. The applicant submitted that it is “self-evident that a commercial painting business requires the services of skilled painting trades workers to ensure that the business operates efficiently and services are provided to their customers to a professional standard…….The longstanding existence of the position within the business, largely held by the nominee, evidences the genuine need for the applicant to employ a paid employee in the nominated position under the nominator’s direct control. The position to which the nominee is nominated has not been newly created, it is within the existing and longstanding organisational structure of the business and is vital to the current and future day-today operations of the business.”

21. The applicant noted to the Tribunal that together with the RCB Approval included an assessment of whether the applicant had ‘genuine need’ to hire the nominee in the nominated position and that the decision of the RCB has in-depth local knowledge of not only the applicant’s business, but also knowledge of the conditions in the local industry the applicant operates within. The applicant submitted that the nominated position cannot be filled by an Australian citizen or an Australian permanent resident who is living in the same local area as that place. The nominated position was advertised in accordance with the RCB application, which was approved on 6 February 2018. The applicant was unable to find a candidate who was an Australian citizen or permanent resident who met the Review Applicant’s requirements for the position. Proof of a job advertisements for painter placed in the Shepparton Adviser newspaper by the applicant was provided to the Tribunal.

1. The Tribunal notes that the tasks to be performed in the position correspond to the tasks of an occupation correspond with the tasks of the nominated occupation as defined in the occupation ‘’Painting Trades Worker’ (ANZSCO Code 332211) in which the nominee has been employed with the applicant. The applicant noted that these duties include:

   • Preparing surfaces by fixing woodwork, filling or sealing holes, cracks and

   joints, and washing them down using high pressure wash systems to remove
   dust and grease.
   areas from paint splattering
   removers and steam stripers as appropriate
   sprays

   • Selecting and preparing paints to match colours by the addition of tinters
   • Erecting scaffolding and ladders, and placing drop sheets to protect adjacent
   • Removing old paint or paper using sanders, scrapers, heat guns, liquid paint
   • Hanging wallpaper, matching patterns and trimming edges
   • Applying paints, varnishes and stains to surfaces using brushes, rollers and
   • Cleaning equipment and work areas

2. The business operated by the applicant is located at the offices of the applicant’s business in Shepparton, which is at the same location as the nominated position.

3. As noted above, the nominee worked for the applicant from April 2017 to May 2019, and then he resumed working as a full-time Painter in August 2021. The applicant submitted that the genuine need for the position is evidenced by the employment of the nominee prior to his temporary absence, and the recommencement of the employment of the nominee in the role presently.

4. The applicant advised the Tribunal that the business has had difficulty in the past finding qualified and trustworthy employees and has had no option but to use sub-contractors. The applicant further submitted that the sub-contractors are detrimental to the applicant’s business due to the high cost associated with using sub-contractors and the varying quality of work they deliver.

5. The applicant is a small business, and the Tribunal concurs with the applicant’s submission that there is nothing in either the Migration Regulations or Departmental policy that prevents small businesses from having recourse to the RSMS program as long as the applicant can meet the relevant criteria.

6. Mr Maheshwari, director of the applicant, submitted to the Tribunal that the benefit the applicant’s business will derive from employing the nominee on a full-time basis for at least two years, noting that since the application was lodged, the business has consistently employed a full-time painter within the business (as a sub-contractor). A full-time employee means that that the applicant can avoid having to rely upon sub-contractors and allows the applicant director to “have better control over the consistency of his work for clients.”

7. In accordance with the requirements set out in Regulation 5.19(4)(h), and having assessed all the evidence provided, the Tribunal is satisfied that in accordance with: 

   - r 5.19(4)(h)(ii)(A), the position and nominator’s business is located in regional Australia;

   - r 5.19(4)(h)(ii)(B), that as noted in paragraphs 52-59 above, the applicant has a genuine need for the nominee to be employed as a paid employee in the position under the nominator’s direct control;

   - r5.19(4)(h)(ii)(C), the position cannot be filled by a locally resident Australian citizen or permanent resident;

   - r5.19(4)(h)(ii)(D), the tasks of the position of Painting Trades Worker (ANZSCO 332211) correspond to those of an occupation specified in the relevant legislative instrument;

   - r5.19(4)(h)(ii)(E), the occupation is applicable to the proposed employee in accordance with the specification of the occupation as Painting Trades Worker; and

   - r5.19(4)(h)(ii)(F), that a regional certifying body (Chamber of Commerce) in Shepparton, Victoria, is located in the same State or Territory as the location of the position.

8. Accordingly, the requirements of reg 5.19(4)(h) are met.

9. Based on the findings above, the Tribunal is satisfied that the applicant meets the requirements of reg 5.19 for approval of the nomination of the position in Australia.

   DECISION

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

    Susan Reece Jones

    Member

    64.         irms th

    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).