Reef Star Tour Service Pty Ltd (Migration) [2021] AATA 2790 (9 June 2021)

DECISION RECORD
DIVISION:	Migration & Refugee Division
APPLICANT:	Reef Star Tour Service Pty Ltd
CASE NUMBER:	1826394
HOME AFFAIRS REFERENCE(S):	BCC2018/595916 
MEMBER:	Cathrine Burnett-Wake
DATE:	9 June 2021
PLACE OF DECISION:	Melbourne
DECISION:	The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Statement made on 09 June 2021 at 12:23pm

CATCHWORDS 
MIGRATION – Employer Nomination – approval of nominated position – Direct Entry Nomination – Marketing Specialist – genuine need – tour and charter services – inbound overseas Chinese customers – shift to the Australian domestic tourist market – challenges and difficulty of recruiting in the regional area – decision under review set aside

LEGISLATION
Migration Regulations 1994 (Cth), 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 3 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).
2.  	The applicant applied for approval on 5 February 2018. 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).
3.  	In this case, the applicant has applied for approval of a nomination, seeking to satisfy the criteria in the Direct Entry nomination stream for the occupation of Marketing Specialist (ANZSCO 225113).
4.  	The delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19(4)(h)(ii)(B) of the Regulations because they found the evidence provided did not demonstrate that there is a genuine need for the nominator to employ the nominee as a paid employee to work in the position under the nominator’s direct control.
5.  	Ms Chenyan Zhang, the Operations Manager of Reef Star Tour Service Pty Ltd appeared before the Tribunal by video on 9 June 2021 to give evidence and present arguments. The Tribunal also received oral evidence from the nominee, Mr Ziyi Zhou. 
6.  	The applicant was represented in relation to the review by its registered migration agent Ms Mateja Rautner. The representative attended the Tribunal hearing. The supporting submissions prepared and presented by the representative were of an extremely high standard and were of great assistance to the Tribunal.
7.  	The Tribunal has formed a different view to that of the Department. The Tribunal has had the opportunity to obtain substantially more evidence not available to the Department at the time of making its decision. Particularly persuasive was the oral evidence taken directly from Ms Zhang regarding the structure and operation of the business. 
8.  	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
9.  	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.
Evidence of Ms Zhang at hearing
10.  	Ms Zhang told the Tribunal that the company was established in 2014. She explained that they are a Cairns-based tour company that provides tour and charter services to customers and they are one of the top 3 tour companies in Cairns. She outlined that their services include airport transfers for customers, bespoke tours with varying itineraries from 1 to several days in and around the Cairns area, such as reef tours and tours up to Cape Tribulation, operating 9 tour buses.
11.  	Ms Zhang told the Tribunal that prior to the pandemic their main market was inbound overseas Chinese customers and they would service approximately 15,000 such customers per year. She explained that they worked directly with Eastern China Airways, as well as PNO cruise ships and also acted as the sole tour operator in Cairns under contract with Grand Aus Tours, who she described as the biggest inbound overseas Chinese Tourism company operating in Australia. Ms Zhang told the Tribunal that the company was doing extremely well prior to the pandemic and had experienced rapid growth and was expanding.
12.  	Ms Zhang told the Tribunal that the pandemic has had an impact on the business. However, with the support of the nominee they have pivoted their business and have shifted to domestic travel, which was not something they had concentrated on before. Ms Zhang explained that the nominee had devised a marketing plan to concentrate on the Australian domestic tourist market. She outlined that they had also formed new relationships with the Cairns Casino and local golf clubs and had started running charter services for these third parties. She outlined that every weekend they were now using 4 buses transferring golf players between courses. Ms Zhang also said they had linked in with local tour companies that did not have buses and had developed tour and charter services for them too.  Ms Zhang explained that although the business was not operating at pre-pandemic levels, they had successfully pivoted the company and as such were able to find new opportunities and continue to operate. Ms Zhang outlined that these new opportunities had been so successful that even once the borders reopen, they will continue with them as a revenue source they did not have prior.
13.  	Ms Zhang told the Tribunal that the nominee had been working with the company for approximately 5 years. She explained that initially he started with them as an intern to undertake training as part of the degree he was completing in Australia. She outlined that they were so impressed with him, that they then employed him full time into the Marketing role and that the expansion of the business can be directly attributed to his contribution. 
14.  	Ms Zhang outlined the duties the nominee performed in his role daily. The Tribunal notes the duties described aligned with those within the ANZSCO for a Marketing Specialist and aligned with other documentation provided to the Tribunal. 
15.  	Ms Zhang told the Tribunal that the nominee was an asset to the business and because of the work he did in helping the business pivot during the pandemic they have been able to continue to operate. Ms Zhang told the Tribunal that once borders open they are confident that they will get back to pre-pandemic levels over time and it was important that the nominee was able to continue to be part of the team for the business to thrive and survive.
Evidence of Mr Zhou at hearing
16.  	The nominee, Mr Zhou, also gave evidence to the Tribunal. Mr Zhou described how he became to be employed with Reef Star Tour Service Pty Ltd as well as his day-to-day duties and the operations of the company. Mr Zhou’s evidence to the Tribunal was wholly consistent to that of Ms Zhang.
The application is compliant: r.5.19(4)(a)
17.  	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. 
18.  	The Tribunal has reviewed the application and is satisfied that:
•	The application was made on the approved form 1395 (Internet) and was accompanied by the fee prescribed in r.5.37; 
•	The application includes a written certification stating whether the nominator has engaged in conduct in relation to the nomination that contravenes s. 245AR(1); and
•	The application 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.
19.  	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)
20.  	Regulation 5.19(4)(b) requires that the applicant is actively, lawfully and directly operating a business in Australia. 
21.  	The Tribunal is satisfied based on the material before it, including the business' registration documents, activity statements, payroll activity information and other information about the business' activities that the nominator is actively and lawfully operating a business in Australia.
22.  	Accordingly, the requirement in r.5.19(4)(b) is met.
Position is not labour-hire: r.5.19(4)(c)
23.  	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.  
24.  	The nominator is not involved in labour hire activities.  
25.  	Accordingly, the requirement in r.5.19(4)(c) does not apply.
Term of employment of the visa holder: r.5.19(4)(d)
26.  	The Tribunal has had regard to the employment contract between the parties. The contract confirms the nominee will be employed on a full-time basis for at least two years, and that his employment contract does not expressly exclude the possibility of extending the period of employment.
27.  	The Tribunal has had regard to the documents provided on review, including current financial statements and BAS. The Tribunal notes the evidence provided by Ms Zhang that the business was turning a net profit and had experienced growth which was supported by the financial statements provided.
28.  	On balance, the Tribunal is satisfied on the totality of the evidence that the nominator has the financial capacity to maintain the nominee's salary as they have done since 2017.
29.  	The Tribunal is satisfied on the material before it that the nominee will be employed on a full-time basis for at least two years on terms that do not exclude the possibility of extending the period of employment.
30.  	Accordingly, the requirement in r.5.19(4)(d) is met.
No less favourable terms and conditions 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 evidence before the Tribunal indicates that the nominee's base salary is $55,000 plus superannuation. It was noted in the application form that there is no Australian performing equivalent work at the same location which was confirmed during the hearing. 
33.  	Salary surveys and other salary data, including from Payscale.com and Jobsoutlook.gov.au, indicate that the average base salary for a Marketing Specialist, depending on experience, is between $50,000 and $93,000. The Tribunal is satisfied on the basis of the award and salary data information that the nominee's base salary is within the appropriate range of that normally paid to a Marketing Specialist in regional Queensland.
34.  	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.
35.  	Accordingly, the requirements of r.5.19(4)(e) are met.
No adverse information known to Immigration: r.5.19(4)(f)
36.  	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.
37.  	There is no information before the Tribunal to indicate that there is adverse information known to the Department about the nominator or an associated person.
38.  	Accordingly, the requirements of r.5.19(4)(f) are met.
Satisfactory compliance with workplace relations laws: r.5.19(4)(g)
39.  	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.
40.  	There is no evidence before the Tribunal, that Fair Work or any other government agency has taken action against the nominee in relation to workplace relation laws. As such, the Tribunal is satisfied that the nominee has satisfactorily complied with workplace relations laws.
41.  	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)
42.  	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 (as per the relevant instrument) in 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.
43.  	Ms Zhang in written submissions and through verbal evidence at hearing clearly articulated a genuine need to employ a paid employee to work in the position of Marketing Specialist under the nominator’s direct control.  The Tribunal is satisfied of this based on the evidence before it.
44.  	Ms Zhang, at hearing, gave evidence that the position of Marketing Specialist had been advertised repeatedly and they had difficulty attracting suitable applicants. Evidence of the job being advertised is on file. Additionally, Ms Zhang described the challenges and difficulty of recruiting somebody in the regional area. The Tribunal notes a letter provided by the Cairns Chamber of Commerce, dated 16 April 2021, which also supports all of Ms Zhang’s claims regarding the challenges of finding suitable qualified individuals in the regional area, and the genuine need for the position.
45.  	The Tribunal is satisfied that there are no other relevant people (Citizens and/or permanent residents) in the particular location that can fill the position and that all reasonable attempts to find someone from the local area.
46.  	A detailed position description of the duties for the role of Marketing Specialist with Reef StarTour Services Pty Ltd has been provided. For RSMS, r.5.19(4)(h)(ii)(D) specifies that the tasks of the nominated position must correspond to the tasks of an occupation at a skill level of ANZSCO skill level 1, 2 or 3 as specified by the Minister in the relevant instrument in writing. This means that for the nomination to be approvable, the skill level specified in the nomination for the nominated position must at least be equal to the skill level specified within the ANZSCO framework for that occupation. The Tribunal has examined the relevant instrument, and Marketing Specialist is an occupation with an AZSCO skill level 1 for the purposes of r.5.19(4)(h)(ii)(D). The Tribunal is satisfied the information provided by the nominator, to the Tribunal, shows the tasks allocated to the nominated position correspond to the tasks of a Marketing Specialist as per the relevant ANZSCO code for that occupation.
47.  	The nominator provided a signed Regional Certifying Body Advice Certificate from the Cairns Chamber of Commerce. The legislative instrument in force at the time of application, lists them as the relevant certifying body. Relevantly, the Cairns Chamber of Commerce provided a comprehensive letter dated 16 April 2021 which details the continuing support of this application made by Reef Star Tour Services Pty Ltd.
48.  	The Advice Certificate from the Cairns Chamber of Commerce includes advice on the matters in relation to r.5.19(4)(e) and r.5.19(4)(h)(ii)(B) and r.5.19(4)(h)(ii)(C). The Advice Certificate addresses the following detail:
•	the terms and conditions of employment will be no less favourable than those provided to an Australian citizen/permanent resident performing equivalent work in same workplace at the same location;
•	there is a genuine need for the nominator to employ a paid employee to work in the position under the nominator's direct control; and
•	the position cannot be filled by an Australian citizen/permanent resident who is living in the same local area as that place.
49.  	Accordingly, the requirements of r.5.19(4)(h) are met.
50.  	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
51.  	The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Cathrine Burnett-Wake
Member

ATTACHMENT  -  Extracts from the Migration Regulations 1994
5.19	Approval 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)	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).