Wilson Brewing Company (Migration)

Wilson Brewing Company (Migration) [2022] AATA 3851 (3 November 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Wilson Brewing Company
REPRESENTATIVE:  Mrs Valentina Segreto (MARN: 1281543)
CASE NUMBER:  1911362
HOME AFFAIRS REFERENCE(S):          BCC2018/1253928
MEMBER:Amanda Mendes Da Costa
DATE:3 November 2022
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.
Statement made on 3 November 2022 at 12.53pm

CATCHWORDS
MIGRATION – application for approval of nomination of position – direct entry nomination stream – safety inspector – full-time employment for two years – financial documentation and oral evidence from director of nominating company and nominee – substantial income but financial losses while establishing and expanding business – additional finance through crowdfunding – nominee employed for six years already – genuine need for position and difficulty in recruiting skilled and experienced employees – decision under review set aside

LEGISLATION
Migration Regulations 1994 (Cth), r 5.19(4)(d)(ii)

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 16 April 2019 to reject the applicant’s application for approval of the nomination of a position in Australia under reg 5.19 of the Migration Regulations 1994 (Cth) (the Regulations).
The applicant applied for approval on 15 March 2018. The requirements for the approval of the nomination of a position in Australia are found in reg 5.19 of the Regulations which contains two alternative streams: a Temporary Residence Transition nomination stream (reg 5.19(3)) and a Direct Entry nomination stream (reg 5.19(4)). If the application is made in accordance with reg 5.19(2) and meets the requirements of either stream, then the application must be approved. If any of the requirements are not met, then the application must be refused: reg 5.19(5).
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 reg 5.19(4)(d)(ii) of the Regulations because the applicant had not demonstrated that the nominee will be employed on a full-time basis in the nominated position for at least two years.
Via an internet-enabled audio-visual platform, Mr Matt Wilson (a director of the applicant company) appeared before the Tribunal on 27 October 2022 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Ryan Quayle, the nominee.
The applicant was represented in relation to the review. Its representative also participated in the hearing.
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 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)
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 an identified person as a paid employee to work in the position under their direct control.
Based on the material in the Department’s file, the Tribunal is satisfied that the application was made on the approved form and accompanied by the prescribed fee. The relevant s.245AR (1) certification was provided in the application form.
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)
Regulation 5.19(4)(b) requires that the applicant is actively, lawfully, and directly operating a business in Australia.
The Tribunal is satisfied from the documentation provided (including financial statements, business activity statements, ASIC records, ABN details and business name registration details) together with the oral evidence of Mr Wilson and the nominee, that the applicant is actively and lawfully operating a business in Australia.
Accordingly, the requirement in reg 5.19(4)(b) is met.
Position is not labour hire: reg 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 notes that the applicant operates a micro-brewery business, manufacturing and selling craft beer. Based on the documentary and oral evidence before it, the Tribunal is satisfied that the applicant is not involved in labour-hire activities.
Accordingly, the requirement in reg 5.19(4)(c) does not apply.
Term of employment of the visa holder: reg 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 is satisfied from the contract of employment for the applicant (dated 7 April 2022) which was provided to the Tribunal and the oral evidence of Mr Wilson and the nominee that the nominee has been offered full-time employment for a period of at least two years in the position of Safety Inspector (ANZSCO Code 312611). The terms of the contract of employment do not expressly exclude an extension beyond two years.
The Tribunal notes that in their decision, the delegate was not satisfied that the documentation provided in support of the visa application demonstrated that the applicant had the financial ability to employ the nominee on a full-time basis for a period of two years.
The Tribunal has considered the financial documentation provided to it, including financial statements for the financial years ended 30 June 2020 and 2021 together with the Quarterly Interim Account for the period June to December 2021 and business activity statements for the period July 2019 to December 2021.
The Tribunal acknowledges that this documentation shows that the business has generated substantial income for the financial years ended 30 June 2020 and 2021, together with the quarter ended 31 December 2021. However, after the payment of expenses, it has made a loss in each of these periods. Mr Wilson explained that he had established the business “from scratch” in 2016 – building the brewery on the site of a former nursery and developing the product range from his own beer recipes. He had initially sold the products to hotels, restaurants and shops in the local Albany area whilst growing the client base. Mr Wilson further explained that whilst increasing the product range, the business had implemented a marketing strategy with the employment of sales and marketing staff. The business had also reinvested its profits into the growth of the business and its premises in Albany, including the addition of a bar, eating area and retail shop.
The Tribunal accepts Mr Wilson’s evidence that the business is currently reinvesting its profits into the continued growth of the business and that it has recently been successful in generating additional finance via crowdfunding from investors via the internet[1].
[1] The applicant has raised $797,236.80 with funding closed on 27 October 2022: >
Whilst the Tribunal holds some concerns about the financial position of, the applicant’s business, it is satisfied on balance that that it is generating considerable income, that its gross profits are increasing each financial year, that the business is reinvesting its profits into the business and has continued to maintain and even grow the number of its employees over several years.
The Tribunal has also satisfied (from the documentation provided and the oral evidence of Mr Wilson and the nominee) that the nominee has been employed on a full-time basis in the nominated occupation for approximately six years. In this respect, the Tribunal has considered the payroll summaries for the nominee for the period July 2017 to June 2021 and his recent payslips.
The Tribunal has also considered the terms and conditions of employment contained in the contract of employment for the nominee. Based on that employment agreement and the above matters, the Tribunal is satisfied that the nominee will 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.
Therefore, the requirement in reg 5.19(4)(d) is met.
No less favourable terms and conditions of employment: reg 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 considered the organisational chart provided by the applicant. After considering this information and hearing from Mr Wilson, the Tribunal accepts that the nominee is currently employed in the nominated position and the applicant does not have any employee who is an Australian citizen or permanent resident performing equivalent work in the same workplace at the same location.
During the hearing, the Tribunal discussed with Mr Wilson, the method used by the applicant in determining the terms and conditions of the nominee’s employment. Mr Wilson explained that the applicant used an independent Human Relations firm (Elite Human Relations) which advises it regarding recruitment of staff, employment law requirements and proposed terms and conditions of its employee’s employment and negotiating employment contracts on behalf of the business. This firm was also used by the applicant in determining and negotiating the nominee’s proposed terms and conditions of employment including the salary.
The Tribunal has also consulted Payscale.com, which shows that the annual salary range for a Safety Inspector (ANZSCO Code 312611) is between $53,000.00 and $90,000.00 (exclusive of superannuation) with an average salary of $68,434.00. The Tribunal is satisfied that the proposed salary for the nominee is within the salary range set out in PayScale.
Accordingly, the Tribunal is 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 reg 5.19(4)(e) are met.
No adverse information known to Immigration: reg 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 regs 1.13A and 1.13B.
There is no evidence before the Tribunal to indicate any adverse information known to the Department about the applicant or a person ‘associated’ with the applicant. Mr Wilson also gave evidence at the hearing confirming that there was no adverse information known to the Department regarding its activities as an employer.
Accordingly, the requirements of reg 5.19(4)(f) are met.
Satisfactory compliance with workplace relations laws: reg 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 indicate that the applicant has an unsatisfactory record of compliance with workplace relations laws in the location in which he operates a business and employs staff.
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)
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 in the relevant legislative instrument, the occupation is applicable to the proposed employee in accordance with any specifications made in that instrument, there is a genuine need for the nominee to be employed as a paid employee in the position, and certain specified training requirements are met; or
·the position and nominator’s business is located in regional Australia, there is a genuine need for the nominee to be employed as a paid employee in the position under the nominator’s direct control, the position cannot be filled by a locally resident Australian citizen or permanent resident, the tasks of the position correspond to those of an occupation specified in the relevant legislative instrument, the occupation is applicable to the proposed employee in accordance with the specification of the occupation, and that a regional certifying body has advised the Minister about certain matters relating to the position.
The applicant’s micro-brewery business was established in 2016 and is in Albany, Western Australia. It manufactures craft beer, using all Australian ingredients and sells its products in major retail outlets in Western Australia. The applicant produces more that 1.5 million litres of beer per annum and has won over 150 medals and awards in Australia for its core and seasonal range of beers. The company current has plans to expand its wholesale sales to Sydney in New South Wales and is exploring marketing opportunities in the United States of America, Asia, and the Middle East.
In addition to its wholesale sales of beer, the applicant operates a bar and shop at its brewery in Albany, proving food and beer to customers and selling products in its shop including alcohol and associated accessories. The applicant has also recently developed a vegan and gluten free ginger beer which it sells in its own bar and to other retailers.
Given the applicant’s business is based in Albany, which is in the southern region of Western Australia, approximately 400 kilometres from Perth, the Tribunal is satisfied that the nominated position and the applicant’s business is in regional Australia.
The Tribunal accepts that the nature of the applicant’s business involves the manufacturing and packaging of alcoholic liquids which requires a person to ensure compliance with occupational, health and safety requirements; the safe operation of machinery including boiler, pressure vessels and packaging machinery; appropriate standards of cleanliness for plant and equipment; and safe maintenance practices. Accordingly, the Tribunal is satisfied that there is a genuine need for the applicant to employ the nominee as a paid employee o work in the position of Safety Inspector in the applicant’s business, under its direct control.
The Tribunal accepts Mr Wilson’s evidence that it is difficult to recruit appropriately skilled and experienced employees in regional Western Australia, particularly in respect of occupations in the ANZSCO Code Unit Group 3126, including Safety Inspectors, Gas Examiners, Lifts and Cranes Inspectors, Mines Inspectors and Boiler and Pressure vessels Inspectors. This is primarily due to the demand for such roles in the mining industry in northern Western Australia and the high pay levels employers in that industry are prepared to pay employees.
The Tribunal further accepts that the distance between Albany and Perth means that it is difficult for the applicant to recruit suitably qualified and experienced staff who are willing to relocate to regional Western Australia and are prepared to commit to living in Albany on a permanent basis.
Accordingly, the Tribunal is satisfied that the position cannot be filled by an Australian citizen or permanent resident who is living in the same local area.
The ANZSCO dictionary describes the role of Safety Inspector as involving the inspection of machines, equipment, working conditions and public places to ensure compliance with government and industry standards and regulations, in relation to occupational health and safety.
The tasks of a Safety Inspector include:
·Examining equipment specifications and inspecting and testing machines, equipment, and clothing to ensure compliance with safety standards and serviceability.
·Inspecting factories and other work sites to ensure compliance with government and industry standards and regulations.
·Observing workers to ensure protective devices are being utilised according to regulations and that combustible and other hazardous materials are used and stored in accordance with approved procedures.
·Conducting tests in work areas to detect toxic fumes, explosive gas-air mixtures, and other work hazards.
·Ensuring fire prevention equipment and other safety supplies, such as first aid kits, stretchers, and blankets, conform to standards.
·Assisting in conducting safety meetings and campaigns and organising training in general safety principles in keeping with regulations.
·Advising organisations on ways to comply with occupational health and safety legislative requirements.
·Investigating incidents and fatalities, to determine causes and to collect evidence of non-compliance with occupational health and safety legislation.
The Tribunal is satisfied that the nominated position duties, as listed by the applicant in its position description provided and the oral evidence of Mr Wilson are consistent with those set out in the ANZSCO dictionary for the position of Safety Inspector.
The applicant provided the Tribunal with documentation and photographs showing examples of the applicant’s work, including the regular monitoring of incoming chemicals, ensuring the safe storage of chemicals and supplies; providing and updating first aid guides throughout the brewery; supervising the pressure washing of kegs and brewing equipment, risk assessments; ensuring other members of staff use appropriate safety equipment; ensuring visitors to the applicant’s premises do not come into contact with hazardous equipment and materials; and monitoring the maintenance of safety equipment. The Tribunal is satisfied that these tasks are commensurate with those described in the position description and the ANZSCO dictionary.
Accordingly, the Tribunal is satisfied that the nominated position corresponds to the tasks of an occupation specified in IMMI 18/005.
The Tribunal notes that The Department of Training and Workforce Development, Government of Western Australia which is a Regional Certifying Body situated in the same location as the applicant’s business, has provided advice dated 29 March 2018 about the matters in r.5.19(4)(h)(ii)(B) and (C). The Tribunal accepts the information contained in this certificate.
Accordingly, the Tribunal is satisfied that there is a genuine need for the applicant to employ the nominee as a paid employee to work in the position under the applicant’s direct control.
Accordingly, the requirements of reg 5.19(4)(h) are met.
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

The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.
Amanda Mendes Da Costa
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 an identified person as 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)       all 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;
(AA)there is a genuine need for the nominator to employ the person identified under subparagraph (a)(ii), as a paid employee, to work in the position under the nominator’s direct control;
(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 the person identified under subparagraph (a)(ii), as 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).

[2022] AATA 3851

3 November 2022

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice