Yarrowee Creek Pastoral Co Pty Ltd (Migration)

Yarrowee Creek Pastoral Co Pty Ltd (Migration) [2020] AATA 339 (10 February 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Yarrowee Creek Pastoral Co Pty Ltd
CASE NUMBER:  1828784
DIBP REFERENCE(S):  BCC2017/436136
MEMBER:Antonio Dronjic
DATE:10 February 2020
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.
Statement made on 10 February 2020 at 10:11am
CATCHWORDS
MIGRATION – Nomination – Direct Entry nomination stream – genuine position – offer of employment provided – salary no less favourable – genuine need for role – position cannot be filled by local – sufficient financial capacity – nomination approved upon review – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 245AR(1), 360
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 September 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 2 February 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)(C) of the Regulations. The delegate was not satisfied on the evidence presented to the Department that 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.
The applicant applied to the Tribunal on 2 October 2018 for review of the delegate’s decision and with the application submitted a copy of the primary decision. The applicant was represented in relation to the review by its registered migration agent.
On 26 November 2019, the Tribunal (differently constituted) wrote to the applicant advising that it considered material before it and was unable to make a favourable decision on this material alone and invited the authorised person to appear before the Tribunal on behalf of the nominating business at a hearing on 23 January 2020. This hearing was cancelled and the matter reconstituted to the current Tribunal on 22 January 2020.
On 16 January 2020, the applicant’s representative submitted:
·Submissions stating inter alia that:
The applicant operates the Mercure Ballarat Lodge and Convention Centre under the international Accor Hotels banner. The Mercure is a large multi-national hotel chain with over 700 hotels in more than 60 countries. The substantial part of this business involves the provision of food and accommodation to paying customers. For this reason, the applicant operates a large commercial kitchen and hotel with around 76 employees in various occupations such as Chef, Cook, Hotel Manager and other supporting positions.
·ASIC Company Summary;
·ASIC current office holder summary;
·A copy of the Trust Deed;
·A copy of the Business Name Certificate;
·A copy of the ABN Certificate;
·A copy of the Yarrowee Creek Pastoral Explanatory Memorandum;
·A copy of the Profit and Loss Statements for the 2019 financial year;
·A copy of the Payroll activity summary for the 2019 financial year;
·Business Activity Statements (BAS) for the period July 2018 to June 2019;
·A copy of the Sale Agreement;
·A copy of the WorkCover Certificate of Currency;
·A copy of the organisational chart listing the employees and their positions in the business;
·Images of Mercure Ballarat Hotel and Convention Centre;
·A copy of the Billy’s Bistro & Bar Menu;
·A copy of the Mercure Hotels Christmas Menu 2019;
·A copy of the Mercure Hotels Wedding Brochure 2019;
·A copy of the form 1404 - Regional Certifying Body advice;
·A copy of the Ballarat Courier advertisement and invoice from November 2016;
·A copy of the Ballarat Courier advertisement and invoice from September to October 2019;
·A copy of the CareerOne advertisement and invoice from December 2016;
·A copy of the CareerOne advertisement and invoice from September 2019;
·A copy of the Adzuna advertisement and invoice from September 2019;
·A copy of the Ballarat Courier advertisement and invoice from October to November 2018;
·A copy of the job advertisement for Chef from January 2020;
·A copy of the approval of Nomination Notification dated 26 October 2018 for Pankaj Bajaj;
·A copy of Pankaj Bajaj’s payslips from 21 October 2019 to 3 November 2019; and
·Evidence of market salary rates for Cook including extracts from Payscale, Job Outlook and Seek job advertisements.
Under s.360(2)(a) of the Act the Tribunal considered that it should decide the review in the applicant’s favour on the basis of the material before it.
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.
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.
From the material on the Department’s and the Tribunal’s files, the Tribunal is satisfied that the nomination application was made on the approved form. The application relates to a visa in a Direct Entry stream seeking to meet the requirements in the Regional Sponsored Migration Scheme and consequently no fee is payable (r.5.37(3)(b)). The applicant provided the relevant s.245AR(1) certification.
The Tribunal is further satisfied that the nomination application identified a need for the applicant to employ a paid employee (Ms Baljit Kaur) to work in the nominated position of Cook (ANZSCO code 351411) in the business, under its direct control.
The requirements of r.5.19(2) and consequentially r.5.19(4)(a)(i) are therefore satisfied.
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 is satisfied from the detailed documents provided to it, including the applicant’s recent financial statements, Business Activity Statements (BAS) and its current ASIC and ABN registration, that it is actively, lawfully and directly operating a business in Australia.
Accordingly, the Tribunal finds that 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 suggest that the applicant is involved in labour-hire activities.
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 two years full time, and the terms and conditions of that employment do not expressly exclude the possibility of an extension.
The applicant provided the Department with a copy of an offer of employment between the applicant and the nominee dated 27 November 2016, which states, among other things, that the employment was offered for a period of no less than two years from the date of commencement with duties and responsibilities as listed in an attachment to the employment offer. The annual salary was set to be $54,000 excluding superannuation. In addition, the applicant submitted to the Tribunal a copy of a letter dated 30 June 2019 as evidence of the nominee’s salary increase to $56,069.
It is now more than 15 months since the delegate’s decision, and documents provided by the applicant show that the nominee has continued to be employed in the nominated position and paid the agreed salary by the applicant.
The Financial Statements of the applicant over recent years in evidence before the Tribunal include the following information:

Year ended

30 June 2019

Gross Profit on trading

$6,744,078

Total wages

$782,940

Sales

$7,101,828

The BAS from July 2018 to June 2019 provided to the Tribunal show that the business is continuing to enjoy significant sales.
Having had regard to the totality of the evidence and the matters discussed above, the Tribunal is satisfied that the applicant possesses sufficient financial capacity to provide two years’ full-time employment to the nominee in accordance with the proposed terms and conditions of employment and that the nominee will be employed on a full-time basis in the position for at least two years. Regulation 5.19(4)(d)(i) is therefore satisfied.
The Tribunal is further satisfied, based on the offer of employment referred to, that the terms and conditions of the nominee’s employment do not include an express exclusion of the possibility of extending the period of employment further (with, notably, the nominee’s employment still now continuing with the applicant over 15 months after the nomination application). Regulation 5.19(4)(d)(ii) is therefore satisfied.
Given the above findings that subparagraphs (i) and (ii) are met, the requirements in r.5.19(4)(d) overall are therefore met.
No less favourable terms and conditions of employment: r.5.19(4)(e)
Regulation 5.19(4)(e) requires that the terms and conditions of employment applicable to the nominated position will be no less favourable than those that are, or would be, provided to an Australian citizen or permanent resident performing equivalent work in the same workplace at the same location.
Based on the salary review letter dated 30 June 2019, the Tribunal is satisfied that the nominee’s annual salary is $56,069. It was submitted that the Hospitality Industry (General) Award 2010 forms the basis of the nominee’s annual salary and that the nominee is in fact paid at a higher rate than the award.
Information from suggests an average salary for the position of Cook to be $53,098. Similarly, Job Outlook indicates an average weekly salary of $1,068. The Tribunal accepts that Seek job advertisements demonstrate a comparable salary as that offered to the nominee.
Based on the evidence before it, the Tribunal is satisfied that the salary provided to the nominee is 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 requirement in r.5.19(4)(e) is 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 indicate that there is any adverse information of the type described in the relevant definitions known to the Department about the applicant or an ‘associated person’.
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.
On 31 January 2020, the Fair Work Ombudsman (FWO) informed the Tribunal (Tribunal folio 222) that the FWO conducted searches for the past five years as to:
·Whether there is an ongoing investigation;
·Any moneys recovered;
·Whether a letter of caution/infringement notice was issued; and
·Whether an Enforcement tool was implemented.
The FWO advised the Tribunal that no documents were located within the scope of the Tribunal’s request. There is nothing before the Tribunal to indicate that the applicant does not have a satisfactory record of compliance with laws relating to workplace relations.
Accordingly, the requirement in r.5.19(4)(g) is 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 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, 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.
The Tribunal is satisfied that the position and the nominator’s business are located in regional Australia, as the postcode of Ballarat in Victoria, Australia (3350) was specified as regional Australia in the relevant written instrument. The applicant must therefore meet the requirements of the second dot point above. As the position and the applicant are located in regional Australia, the Tribunal is satisfied that r.5.19(4)(h)(ii)(A) and (E) are met.
The Tribunal is further satisfied that the applicant has a genuine need for the paid position, and that it is under the nominator’s direct control. The Tribunal accepts that Ms Kaur, the nominee, was recruited in November 2016 and has been employed by the applicant as a cook for more than three years.
Overall, having regard to the available evidence, the Tribunal is satisfied that the applicant business has a genuine need for the nominated role, and is therefore satisfied that r.5.19(4)(h)(ii)(B) is met.
The Tribunal finds that Grampians Regional Certifying Body (an approved Regional Certifying Body specified in the relevant instrument) certified on 16 May 2017 that there was a need for a paid employee in the nominated position within the business activities of the nominating employer, that it could not be filled by an Australian living in the same local area, and that its terms and conditions of employment were no less favourable than those that are or would be provided to an Australian employee. It is therefore satisfied that r.5.19(4)(h)(ii)(F) is met.
Based on the certification above, and the documentary evidence provided by the applicant in relation to its recruitment exercise that led to the hiring of the nominee, the Tribunal accepts that the position cannot be filled by a locally resident Australian citizen or permanent resident. It is therefore satisfied that r.5.19(4)(h)(ii)(C) is met.
Based on the evidence before it, and in particular the detailed job description, the Tribunal is satisfied that the majority of the tasks of the nominated position correspond with those of the ANZSCO occupation of a cook. This occupation is specified by the Minister in the relevant instrument in writing for this sub-subparagraph.
The Tribunal is therefore satisfied that r.5.19(4)(h)(ii)(D) is met.
Based on the findings above, the Tribunal is satisfied that the applicant meets the requirements of r.5.19 for approval of the nomination of the position in Australia.
DECISION
The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.
Antonio Dronjic
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 339

10 February 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Natural Justice

Year ended 30 June 2019
Gross Profit on trading	$6,744,078
Total wages	$782,940
Sales	$7,101,828