ZED (WA) Pty Ltd (Migration)

[2022] AATA 2692

ZED (WA) Pty Ltd (Migration) [2022] AATA 2692 (1 June 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  ZED (WA) Pty Ltd

CASE NUMBER:  1909978

HOME AFFAIRS REFERENCE(S):          BCC2018/877832

MEMBER:Peter Emmerton

DATE:1 June 2022

PLACE OF DECISION:  Adelaide

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

Statement made on 01 June 2022 at 3:23pm

CATCHWORDS
MIGRATION–nomination – Direct Entry nomination stream – applicant had made sufficient or adequate attempts to recruit suitably qualified and experienced Australian citizens or Australian permanent residents to the position who live in the same local area – applicant has a satisfactory record of compliance with workplace relations laws –genuine need to employ a paid employee to work in the position– no adverse information – position associated with the nominated occupation is genuine – decision under review set aside

LEGISLATION

Migration Act 1958, ss 65, 140GB, 245AR
Migration Regulations 1994, rr 1.13, 2.57, 2.72, 2.73, 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 1 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).

2. The applicant applied for approval on 23 February 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).

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 r.5.19(4)(h)(ii)(C) of the Regulations. This is because they were not satisfied that the nominator had adequately demonstrated that they had made sufficient or adequate attempts to recruit suitably qualified and experienced Australian citizens or Australian permanent residents to the position who live in the same local area.

5. The applicant was not represented in relation to the review by a registered migration agent.

6. 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

7. 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.

8. 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.

9. 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.

10. The Tribunal found the applicant to be open and honest with their written and documentary evidence and avoided obfuscation in their provision.

11. The nominating entity which claims to operate a small, specialised construction business focussed on installing high-quality shop fitting and providing plastering services to the residential and commercial construction industry in both metro and regional suburbs in Western Australia. They state that they need a person to supervise and lead the sub-contractors/ apprentices.

12. The Tribunal perused popular employment web sites to ascertain the current state of the market in this field. The Tribunal observed a very large number of related vacancies, in a wide variety of locations and organisations currently under recruitment, (approximately 20,000 roles with 8% located in Western Australia). The Tribunal is not without understanding of the specialist knowledge required in this high demand industry in the current buoyant economic environment. 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 a relatively rural and regional location, 90m km from, Perth WA.

13. The Tribunal notes that a ‘Satisfied’, RCB Certificate was issued by the relevant certifying body. The date of the certificate is 7 June 2018.

    The application is compliant: r.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. 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).

16. The Tribunal accepts that this is not a role that would suit many individuals due to the location and the large number of roles currently available throughout Australia and Western Australia.

17. The Tribunal also acknowledges the distorting effect of the mining industry in Western Australia. They draw upon the same candidate pool, but with few limitations to remuneration. This is particularly difficult to counter in a small, specialised organisation.

18. The Tribunal is satisfied that the application has identified a need for a paid employee to work in the position of Building Associate, 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)

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

20. The Tribunal has been provided with a range of Business Tax Returns, (FY 2020 and FY 2021) and current BAS documentation. All of which correlated. ASIC Registration details have been researched by the Tribunal for this business entity. The Tribunal checked the status of the listed ABN. The nominator commenced operation on 8 December 2015 and is due for review by ASIC on 8 December 2022. 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)

21. 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)

22. 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.

23. The Tribunal notes that the business appears to have modest stable revenues.

24. The Tribunal observes that one of the potential challenges facing the business is retaining the visa applicant who acknowledges that he is also the owner of the nominating entity in the role, whilst trying to employ additional staff to both maintain and grow the business. The recruitment and retention challenges associated with similar roles in the current marketplace are substantial.

25. The Tribunal perused a well-known employment web site. It is currently advertising more than 20,000 relevant associated roles nationally with approximately 8% of those positions available in Western Australia. Many of them may have more attractive work environments and more easily accessible locations in major cities.

26. The Tribunal is aware that the workforce is highly mobile, the specialist skills associated with this type of operation are highly sought after and readily transferred between competing businesses. It is also cognisant of competitors cannibalising competing businesses and targeting their key staff to obtain a market advantage or fill outstanding vacancies. This is a very small and specialised industry. It has an active informal professional network. Many if not all of the main firms and employees are known to each other. It is also the same talent pool frequently called upon by the mining industry which provides lucrative FIFO opportunities.

27. Current media and business reports associated with the analysis of consumer confidence and employment data, coupled with present time job vacancies and recruitment challenges demonstrate a deficit of suitably qualified potential employees in many sectors. This industry appears to be one such sector. The problem is exacerbated in regional areas or smaller States, particularly if an organisation is reliant upon temporary or permanent immigration as part of their labour source which was dramatically decreased during the lockdowns and border closures in Western Australia in response to the Covid-19 pandemic. 

28. Business, Media, and Government reports are being circulated which indicate this is starting to be a drag upon business development. The Tribunal has referenced the National Skills Commission Report which supports this conclusion, dated 21 July 2021.[1]

    [1] National Skills Commission Vacancy Report, June 2021, Release date: 21 July 2021

29. The Tribunal reflects positively upon the fact that the nominee has been employed in the nominating entity for a substantial number of years, (7), well in excess of the industry average.

30. The Tribunal is satisfied that the business is viable and will be able to sustainably, employ the nominee for the required 2-year minimum period therefore r.5.19(4)(h)(i) is met.

    No less favourable terms and condition of employment: r.5.19(4)(e)

31. 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. 

32. The Tribunal has been provided with the visa applicant’s employment contracts. The most recent being dated 6 December 2017. The Tribunal accepts that the nominee’s current stated minimum annual salary of AUD $64,500 plus Superannuation at the rate of the current Superannuation Guarantee, (10%).

33. The Tribunal researched the salaries offered for similar positions and had regard for the salary determination evidence provided by the applicant. The remuneration appears to fall within the lower to mid quartiles of similar positions on offer. 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. Accordingly, the requirements of r.5.19(4)(e) are met.

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

34. 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)

35. 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)

36. 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.

37. The Tribunal has had regard to the size and scope of the nominating entity’s modestly expanding business operations. This expansion is demonstrated by current taxation documentation

38. The Tribunal is satisfied that there is a genuine need for the nominator to employ a paid employee to work full-time in the position under the nominator’s direct control.

39. The Tribunal notes that 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. This is because they were not satisfied that the nominator had adequately demonstrated that they had made sufficient attempts to recruit suitably qualified and experienced Australian citizens or Australian permanent residents to the position who live in the same local area.

40. The Tribunal has formed a different view resulting from the written evidence submitted.

41. Evidence was presented to the Tribunal regarding the recruitment process and the subsequent lack of suitably qualified and experienced applicants other than the nominee.

42. The Tribunal accepts the delegate’s view that the initial job advertisement run on Gumtree, had not run at the appropriate relative time to reasonably assess or demonstrate that there were no suitable applicants available other than the visa applicant. Advertising the position after the employment contract is signed is clearly not meeting the requirements of 5.19(4)(h)(ii)(C). It is also accepted by the Tribunal that no evidence was provided as to whom applied. It was therefore not unreasonable for the delegate to question whether or not a bias in favour of the nominee was occurring although no evidence of actual bias was produced.

43. The Tribunal has been provided with the Statutory Declaration dated 3 May 2018 in which it is claimed that the nominator, Zed (WA), had made a genuine attempt to fill the position with an Australian citizen or permanent resident and had been unsuccessful. The Tribunal places some weight on this document.

44. The Tribunal was provided with additional evidence demonstrating that the role had been advertised on Gumtree, commencing on 21 February 2016. This advertisement yielded 7 applicants; all were named on the copies of their replies which were provided to the Tribunal. A second advertisement was run on 7 March 2016, 6 applicants responded and again named copies of their initial responses were provided to the Tribunal. The Tribunal places moderate weight on this evidence.

45. The Tribunal was furnished with the advertisement performance data for the advertisement placed on Gumtree which was dated 21 February 2018. It clearly showed that there had been 20 views of the advertisement and no replies. The Tribunal places moderate weight on this evidence.

46. The Tribunal accepts that the nominator had previously tried to fill the role. It also accepts that the personal and professional networks were utilised as an earlier attempt to recruit for the visa applicant’s position. The Tribunal accepts that 13 applications were ultimately received for the role, none of whom were deemed suitable.

47. The Tribunal notes that the employment market has tightened considerably from the time of application to the time of this decision. It is accepted by recruitment experts that we are currently in a candidate driven employment cycle. The Tribunal also notes that Western Australia has the lowest level of unemployment of any state and the recruitment market is consistently distorted by the mining sector. The Australian Bureau of Statistics Labour Force for March showed WA's unemployment rate fell to 3.4 per cent, from 4.1 per cent in February, the lowest of all the States and well below the national unemployment rate at 4 per cent.

48. The Tribunal also acknowledges that the remote and rural location of the nominating entity is highly likely to be a negative factor for attracting suitable employees.

49. The Tribunal has formed the view that the “Satisfied” RCB requirements and the issued Certificate provide some weight in favour of the applicant, however this is not within itself a definitive result which must be accepted by the Tribunal. It must make up its’ own mind as to the relevance of the advice proffered. In this instance it is accepted as sound advice that should be considered in support of the nominator’s claims. The Tribunal notes that the nominating entity is owned by the visa applicant but accepts that this does not disqualify the nominator or the visa applicant.

50. The Tribunal observes that substantially more corroborative evidence was provided to it, than was presented to the delegate at the time of their decision. The Tribunal as stated previously, acknowledges the current employment market distortions created by the Covid-19 pandemic coupled with the Talent pool drain to the Eastern States and likewise the WA mining industry. 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.

51. 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 notes that the delegate did not reject the application upon the basis of this regulation. Nor did they raise it as a concern in their decision.

52. The Tribunal has reviewed both the relevant descriptors supplied in ANZSCO 312112 for Building Associate and the detailed duty statement attached for the visa applicant. It appears clear that the Duty Statement and the ANZSCO descriptors substantially align.

53. The position of Building Associate, ANZSCO 312112, nominated by the applicant is referred to in ANZSCO as a skill level 2 position and the Tribunal is satisfied that the visa applicant is operating at that level.

54. The Tribunal has had regard to the satisfied Form 1404 issued by an RCB (WA Department of Training and Workforce Development), dated 7 June 2018 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.

55. The Tribunal is satisfied that the applicant meets 5.19(4)(h)(ii).

1. 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

2. 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 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).