1407865 (Migration)

[2015] AATA 3179

1407865 (Migration) [2015] AATA 3179 (29 July 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Senses Foundation (Inc.)

CASE NUMBER:  1407865

DIBP REFERENCE(S):  BCC2013/1802819

MEMBER:Steve Georgiadis

DATE:29 July 2015

PLACE OF DECISION:  Adelaide

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

Statement made on 29 July 2015 at 11:10am

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 Immigration on 10 April 2014 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 6 November 2013. 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 (r.5.19(3)) stream and a Direct Entry nomination (r.5.19(4)) stream. 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 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)(D) of the Regulations as the delegate was not satisfied that the tasks to be performed in the position correspond to the tasks of an occupation at skill level of ANZSCO 411712 skill level 1, 2 or 3. The delegate considered that the majority of tasks most closely align with those of a ‘Supervisor’ and that the delegate could not identify an occupation in ANZSCO which correlates with the tasks of the nominated occupation. The delegate’ view was that the tasks of a Residential Care Officer indicate that the occupation delivers the services rather than supervising the delivery of those services.

5. Mr David Canham, on behalf of the applicant, appeared before the Tribunal by videoconference on 16 February 2015 to give evidence and present arguments. The Tribunal also received oral evidence from Mrs Mona Vyas, as nominee worker for the position in the nominator’s business in the related MRT case-file number 1415590. The related matters were heard together.

6. The applicant was represented in relation to the review by its registered migration agent.

7. For the following reasons, the Tribunal has decided to set aside the decision under review in these proceedings and substitute a decision approving the nomination.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. 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.

   Need for the nominator to employ a paid employee in the position under its direct control: r.5.19(4)(a); and the nominator is actively and lawfully operating a business in Australia, and directly operates the business: r.5.19(4)(b).

9. Senses Foundation (Inc.) is a not for profit organisation which has been providing services to people with disabilities for about 120 years. Senses Australia provides services to over 650 children, adults and older adults with a range of disabilities. Services are also provided to families, and other health professionals and service providers, and to teachers. According to the applicant’s web-site Sense Australia has over 250 employees with over 90% of these people working directly with clients.

10. The oral evidence before the Tribunal is that the applicant had undergone a recent change from an incorporated body, Senses Foundation (Inc.) to a registered company, Senses Australia Ltd, to enable it to operate beyond the State of Western Australia. A search of the Australian Government ABN Lookup register confirms this oral evidence.  The entity, Senses Foundation (Inc.) ABN 93169195127, existed as an incorporated association from 2001 up to 23 August 2013.  From 3 December 2012 it registered as a Public Benevolent Institution (charity) to benefit people with disabilities. A new Australian Public Company limited by guarantee, Senses Australia (Limited), was registered from 1 July 2013 with ACN 162912156. This is the entity that is now seeking to fill the nominated position.  Mr Canham told the Tribunal that the applicant has received permission from ASIC to be known as ‘Senses Australia’.

11. The issue of the legal entity of the nominator in this application was raised as an issue at the hearings in respect of the requirements under r.5.19(4) and the parties were invited to comment on this issue. This included whether the nominator directly operates the business for work in the nominated position and whether the paid employee is to work in the position under the nominator’s direct control.

12. The applicant’s submissions of 3 February 2015 refers to the Associations Incorporations Act 1987 (AIA) and the Corporations Act 2001 (Cth) (CA). The latter Act provides at s.601BM as follows:

    s.601BM          Effect of registration under this Part

    (1)  Registration under this Part does not:

    (a)  create a new legal entity; or

    (b)  affect the body's existing property, rights or obligations (except as against the members of the body in their capacity as members); or

    (c)  render defective any legal proceedings by or against the body or its members. ….

13. At the hearing of 16 February 2015, Mr Canham confirmed in his oral evidence that the Constitution for Senses Australia (Limited) lodged under the Corporations Act 2001 shows that the applicant is a company limited by guarantee.  Mr Canham emphasised that “for all intents and purposes” the entity Senses Australia (Limited) was the same as the nominator listed in the application as all that had taken place was essentially a name change. On this point, he explained that everything that legally existed is still legally valid after the change and that the ongoing employment relationship remained on foot.  He confirmed that there had been no change to employment contracts and that the applicant’s employees had not been required to sign new employment contracts. 

14. On review, the Tribunal in its decision in a related matter regarding the same employer in case-file 1317892, found that prior to the time of decision, the Australian Securities and Investments Commission (ASIC) certified the registration of ‘Senses Australia Limited’ under the Corporations Act 2001 (Cth) as a public company limited by guarantee. The Tribunal found in that matter that Senses Foundation Inc. and Senses Australia were two different entities, and that the nomination application therefore failed to satisfy r.5.19(4)(a) and r.5.19(4)(b) of the Regulations.

15. There was an appeal to that Tribunal decision. The Minister accepted that Senses Foundation (Inc.) was permitted to apply for registration as a company limited by guarantee and, in accordance with s 601BM(1)(a) of the Corporations Act, this registration did not create a new legal entity. Pursuant to s 10I(2)(a) of the Associations Incorporation Act 1987 (WA), the process of registration under the Corporations Act did not affect the legal identity of the association. Lucev J of the Federal Circuit Court quashed the decision and remitted it by consent for redetermination by the Tribunal on the basis the first Tribunal had made an error of law in finding that “Senses Foundation (Inc.)” and “Senses Australia Limited” were different legal entities.

16. Having considered the above case and the applicant’s submissions and evidence, the Tribunal accepts that under s.601BM of the Corporations Act 2001 the legal entity of the nominator in this application has not changed as a result of the name change from Senses Foundation Inc. to Senses Australia (Limited) as registered from 1 July 2013 [ACN 162912156].

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 must identify a need for the nominator to employ a paid employee to work in the position under its direct control.

18. From the application documents on file, the Tribunal accepts that the application was lodged electronically using the e-lodgement 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) .

19. The applicant must satisfy the requirement to identify a need for the nominator to employ a paid employee to work in the position under the nominator’s direct control (r.5.19(4)(a)). Regulation 5.19(4)(b) requires also that the applicant is actively and lawfully operating a business in Australia, and that the nominator directly operates the business.

20. The Tribunal has had regard to the financial documents located on the Department’s file that include ASIC certificates of company registration and certificates of change of name and details of ABN registration.

21. The applicant’s submission and evidence is that Senses Australia (Limited) ACN 162912156, needs to employ a paid employee to work in the nominated position of Residential Care Officer (ANZSCO 4117-15). The Tribunal notes the employment letter of 28 February 2013 sent to the nominee, Mrs Vyas.  Employment contracts with Senses Foundation (Inc.) set out that workers will be employed under terms and conditions of the Senses Foundation (Inc.) Collective Workplace Agreement 2006.  

22. The Tribunal accepts Mr Canham’s oral evidence that the applicant Senses Foundation (Inc.) was restricted to operations in Western Australia where it was incorporated, and that the change subsequently allowed Senses Australia (Limited) to operate in other Australian States and Territories, including in South Australia and the Northern Territory, where a need for the business’s services had been identified.  The Tribunal finds that, notwithstanding the ABN identified, the nominator recorded on the application form, Senses Foundation (Inc.) ABN 93169195127 has offered the paid work to the nominee, and is the same legal entity to Senses Australia (Limited) ACN 162912156, who claims the need for the paid employee. The Tribunal accepts Mr Canham’s submissions that “for all intents and purposes” the entity is the same as that of the applicant in these proceedings.

23. The Tribunal is satisfied that the application identifies the need for the nominator to employ a paid employee in the position of Residential Care Officer (ANZSCO 411715) and that the position is under the nominator’s direct control.

24. Accordingly, the requirement in r.5.19(4)(a) is met.

25. The Tribunal also finds from the above that the nominator is actively and lawfully operating a business in Australia; and directly operates the business (r.5.19(4)((b)).

26. Accordingly, the requirements of r.5.19(4)(a) and r.5.19(4)(b) are met.

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

27. The Tribunal finds that the applicant is not involved in the provision of labour hire and consequently r.5.19(4)(c) is not relevant to the current nomination.

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

28. 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 extension of the employment. 

29. The Tribunal has had regard to the aforementioned Senses Foundation (Inc.) Collective Workplace Agreement 2006 and the employment letter of 28 February 2013 to the visa applicant. The Tribunal is satisfied that the nominee will be appointed for a period of a minimum of two years employment from grant of visa and the terms of employment do not include an express exclusion of 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 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 had regard to the visa applicant’s letter of employment agreement and the Senses Foundation (Inc.) Collective Workplace Agreement 2006. The Tribunal is satisfied that the terms and conditions of employment are not 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.

33. 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 adverse information known to Immigration about the nominator or a person ‘associated with’ the nominator. For these purposes, ‘adverse information’ and ‘associated with’ have the meaning given in r.2.57 (2) and (3): r.5.19(7).

35. There is no evidence before the Tribunal that the applicant has any adverse information known to Immigration and in light of this, the Tribunal accepts that there is a satisfactory record of compliance with the immigration laws of Australia.

36. Accordingly, the requirements of r.5.19(4)(f) are met.

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

37. 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.

38. There is no evidence before the Tribunal that the applicant does not have a satisfactory record of compliance with workplace relations laws in Australia and this was confirmed in the applicant’s oral evidence provided at hearing, which the Tribunal accepts.

39. Accordingly, the requirements of r.5.19(4)(g) are met.

    Tasks of the position, genuine need for the position and training benchmarks r.5.19(4)(h)

40. Regulation 5.19(4)(h) contains a number of alternative requirements. These are set out in detail in the attachment to the decision below.

41. As raised above, the nomination was made under the RSMS Direct Entry stream and the Tribunal has proceeded to access the application relevantly, against the criteria in r.5.19(4)(h)(ii) which requires that:

    ·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 local resident, 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

    ·that a regional certifying body (RCB) has advised the Minister about certain matters relating to the position.

42. Turning firstly, to the requirement prescribed in r.5.19(4)(h)((ii)(D), this requires that the tasks to be performed in the position correspond to those at ANZSCO skill level 1, 2 or 3. The position of Residential Care Officer nominated by the applicant is referred to in ANZSCO as a skill level 2 position. According to ANZSCO the role of Residential Care Officer relevantly, is one that “provides care and supervision for children or disabled persons in group housing or institutional care”.

43. The Tribunal has considered the tasks found in ANZSCO for this position and compared these tasks to the position description provided by the applicant.  The Tribunal notes that the  ANZSCO classification is a guide and that there is variation from this depending on the particular task requirements of the position with the applicant.  The Tribunal has proceeded on the basis that where a nominated position does not fall exactly within an ANZSCO occupation description, the Tribunal must make an assessment on all the available evidence.

44. The Tribunal has had regard to the statement of “Duties of a Support Worker in Senses Australia” and the written and oral submissions made and is satisfied that a Residential Care Officer works at a number of community living homes (Group Homes) working with clients with varying disabilities. In this matter, the Group housing environment is operated by the entity Senses Australia (Limited) is the same as the nominator listed in the application. The Tribunal accepts that the role of the Residential Care Officer is self-directed and responsible for the development and physical programs for its clients. The Tribunal accepts that the work can involve management of client funds, supervision of new staff, regular reporting, review of client activities, ensuring meals comply with dietary requirements, the arrangement of learning and skills development processes, access to community services and activities, and liaising with community groups, participation in a range of alternatives to employment programs and various recreational pursuits.

45. Having considered the evidence before it and the submissions, the Tribunal is satisfied that the nominated position can properly be classified as a position for a Residential Care Officer, ANZSCO Skill Level 2. The Tribunal therefore finds that the nomination satisfies r.5.19(4)(h)(ii)(D) of the Regulations.

46. The Tribunal is satisfied the position is located in regional Australia, in the state of Western Australia.

47. The Tribunal finds that the RCB, Skilled Migration WA, has certified and advised the Minister about the matters in r.5.19(4)(e) and r.5.19(4)(h)(ii)(B) & (C) relating to the terms and conditions of employment, the genuine need for the position and that the position cannot be filled locally by an Australian citizen or Australian permanent resident.

48. Accordingly, the requirements of r.5.19(4)(h) are met.

49. 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

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

    Steve Georgiadis
    Member

    
    

    ATTACHMENT  -  EXTRACTS FROM THE MIGRATION REGULATIONS 1994

    5.19Approval of nominated positions (employee nomination)

    …

    (2)The application must:

    (a)be made in accordance with approved form 1395…; 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;

    (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 at a skill level of ANZSCO skill level 1, 2 or 3;

    (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).