1409474 (Migration)

[2015] AATA 3623

1409474 (Migration) [2015] AATA 3623 (11 November 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Corporation of the Franciscan Sisters of the Heart of Jesus (QLD)

CASE NUMBER:  1409474

DIBP REFERENCE(S):  BCC2013/2142004

MEMBER:Denise Connolly

DATE:11 November 2015

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision under review to refuse the nomination.

Statement made on 11 November 2015 at 2:36pm

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 7 May 2014 to refuse an 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 19 December 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 and nominated the position Residential Care Officer (ANZSCO 411715).

4. The delegate refused the application on the basis that the applicant’s nomination did not satisfy r.5.19(4)(h)(i)(A) of the Regulations because the delegate was not satisfied that the tasks to be performed in the nominated position correspond to the tasks of an occupation specified in an instrument in writing.

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

6. On 17 August 2015 the Tribunal sent to the applicant an invitation to give evidence and present arguments at a hearing to be held on 7 September 2015. The Tribunal advised that it was unable to make a favourable decision on the information before it. On 28 August 2015 the applicant’s representative wrote to the Tribunal to advise that the applicant had declined the hearing invitation. The Tribunal is satisfied the applicant is aware that in declining the hearing invitation the matter may be decided without any further action to allow or enable the applicant to provide further evidence. Accordingly the Tribunal has decided to proceed to make its decision without taking further steps to obtain the information.

7. For the following reasons, the Tribunal has decided to affirm the decision under review to refuse 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.

   Tasks and skill level of the position: r.5.19(4)(h)(ii)

9. 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:

   ·the tasks to be performed in the position will be performed in Australia and correspond to those of an occupation specified by the Minister and certain specified training benchmarks will be 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 at the ANZSCO skill level 1, 2 or 3; and a regional certifying body has advised the Minister about certain matters relating to the position.

10. The applicant in this matter is located in Mackay, Queensland, postcode 4740, in regional Australia. In the application, the applicant did not claim to satisfy, nor did it provide any information in relation to meeting the requirements pertaining to training benchmarks. Accordingly, the Tribunal is not satisfied that the applicant meets r.5.19(4)(h)(i). The Tribunal has therefore assessed whether it meets the requirements of r.5.19(4)(h)(ii).

11. The applicant operates a facility in regional Australia providing residential care for the aged and disabled. The position nominated in the application is Residential Care Officer. The certification provided from the Regional Certifying Body refers to the same position title. The Letter of Appointment indicates that the nominee is to be employed as a Residential Care Officer ‘with some of the duties of a Nursing Support Worker’. The applicant provided a position description, which includes several general duties about the provision of quality care, respect for residents, effective communication and compliance with policies and procedures. There are more specific  duties including:

    ·using equipment appropriately and displaying flexibility when providing care

    ·assisting residents with eating, drinking, transfers and hygiene

    ·performing correct bed making and hand washing procedures

    ·attending to the personal hygiene and nutritional needs of the residents, and ensuring they are comfortable

    ·ability to perform monthly observations eg blood pressure, weight

    ·maintaining a high standard of hygiene to prevent infections

    ·assisting other staff as requested.

12. The description indicates that the position requires a Residential Aged Care Certificate III.

13. The advertisement provided by the applicant indicates that the position requires a diploma level qualification in health and preferably a Certificate III in Aged Care.

14. The delegate expressed a concern that the position description does not describe the occupation Residential Care Officer (ANZSCO 411715). He formed the view that the position is more closely aligned to the occupation Aged and Disabled Carer. The delegate referred to the ANZSCO position description for that occupation and noted it is a skill level 4 occupation while the nominated occupation is a skill level 2 occupation.

15. As set out in the delegate’s decision record, provided to the Tribunal by the applicant, a skill level 2 occupation requires an AQF Assoc Degree, Advanced Diploma or Diploma. The position description provided by the applicant indicates the position requires a Residential Aged Care Certificate III. The Tribunal notes from ANZSCO that the occupation Aged and Disabled Carer is at skill level 4, requiring only an AQF Certificate II or Certificate III.

16. When making the review application the representative provided written submissions and other related information. She explained that the applicant operates an aged care facility with 140 residents, 4 of whom are classified as disabled persons. The nomination application nominated Jide Ladiocan to work in the position. The Department sought further information about the job description and qualifications required for the position. The applicant advised the qualification required is a Bachelor or Diploma in a health related field such as nursing and the essential skills are:

    ·possessing the values and principles in line with the Home and providing support to people with a disability;

    ·be people focused and enjoy working autonomously and as part of an energetic team;

    ·develop solutions and implement support strategies to make a positive change to the lives of disabled persons;

    ·be confident in written and verbal communication skills.

17. The representative noted that the delegate found the position more closely aligns with an Aged and Disabled Carer, and that while the position of Residential Care Officer is a skill level 2 position requiring an AQF Assoc Degree, Advanced Diploma or Diploma, the position description provided by the applicant indicates the position requires a Residential Aged Care Certificate III. She noted the delegate found the majority of the tasks in the position description are not commensurate with those of a Residential Care Officer. The delegate noted that the position is supervised by a registered nurse, and ANZSCO indicates that registered nurses supervise enrolled nurses or other health care workers. She also noted the delegate referred to the organisational chart which indicates the position sits above a group of personal care and nursing assistants, and found that the supervision of lower level staff may suggest the position is that of a Residential Care Officer but the position description does not indicate that this is the case.

18. The representative submitted that some of the duties of the position may be inappropriate or contrary to the Aged Care Act 1997 which is the relevant Act in relation to the care of disabled persons. The delegate noted the tasks of a Residential Care Officer include providing support, information and advice to clients relating to emotional, financial, recreational, health and housing. The representative submits the position provides support, information and advice on emotional, recreational and health matters however it is not necessary to provide advice on housing and not appropriate to advise on financial matters, as this would be contrary to the relevant Act. She submits that the position’s duties are consistent with 100% of the applicable tasks in ANZSCO. She acknowledges some of the ANZSCO tasks are not applicable. She submits that the advertisement stated that a diploma qualification in health is required and that it is preferable that all staff undertake a Certificate III in Aged Care because the facility is subject to the Aged Care Act. She acknowledges that some of the tasks and responsibilities in the job description relate to a carer position but argues this is appropriate because it is a residential aged care facility where all staff are subject to the Aged Care Act. That the position reports to the Nurse Manager/ Administration Nurse Manager and ultimately the Director of Nursing is appropriate in an aged care facility.

19. The representative provided a copy of the ANZSCO definition for the Unit Group 4117 Welfare Support Workers which includes the occupation Residential Care Officer and states in part as follows:

    UNIT GROUP 4117 WELFARE SUPPORT WORKERS
    
    WELFARE SUPPORT WORKERS provide support, information and advice to clients on emotional, financial, recreational, health, housing and other social welfare matters, and evaluate and coordinate the services of welfare and community service agencies.

    Indicative Skill Level:
    Most occupations in this unit group have a level of skill commensurate with the qualifications and experience outlined below.
    In Australia:

    AQF Associate Degree, Advanced Diploma or Diploma (ANZSCO Skill Level 2)

    
    At least three years of relevant experience may substitute for the formal qualifications listed above. In some instances relevant experience and/or on-the-job training may be required in addition to the formal qualification.

    Tasks Include:

    oassessing clients' needs and planning, developing and implementing educational, training and support programs

    ointerviewing clients and assessing the nature and extent of difficulties

    omonitoring and reporting on the progress of clients

    oreferring clients to agencies that can provide additional help

    oassessing community need and resources for health, welfare, housing, employment, training and other facilities and services

    oliaising with community groups, welfare agencies, government bodies and private businesses about community issues and promoting awareness of community resources and services

    osupporting families and providing education and care for children and disabled persons in adult service units, group housing and government institutions

    osupervising offenders on probation and parole

    oassisting young people to solve social, emotional and financial problems

    opreparing submissions for funding and resources, and reports to government bodies and other agencies

    Occupations:

    411711 Community Worker
    411712 Disabilities Services Officer
    411713 Family Support Worker
    411714 Parole or Probation Officer
    411715 Residential Care Officer
    411716 Youth Worker

    
    411715 RESIDENTIAL CARE OFFICER

    
    Provides care and supervision for children or disabled persons in group housing or institutional care.

    Skill Level: 2

20. The applicant provided evidence that 3 of the residents are under 65 years and have disabilities. It is submitted the facility needs 3 Residential Care Officers. A new Position Description was provided includes duties such as carrying out tasks and functions in accordance with policy, providing an environment free of abuse, neglect or exploitation, developing programs and activities, participating in the development of personalised plans, advising management on clients’ changing needs, implementing clients’ plans and following daily task schedules, including attending to aspects of personal hygiene. There are various other duties associated with systems and processes, relationships, team participation, WHS, experience and knowledge, values and behaviour. The document states a diploma is required.

21. The applicant also provided the relevant letter of appointment, which describes the position as a Residential Care Officer with some of the duties of a Nursing Support Worker.

22. After declining the hearing invitation the applicant provided a letter stating the nominee has been working in the facility since October 2012. She is a dedicated, loyal and hardworking employee, held in high esteem by all.

    Assessment of the evidence

23. Regulation 5.19(4)(h)(ii) requires that the tasks to be performed in the position correspond to the tasks of an occupation at ANZSCO skill level 1, 2 or 3. In this case the applicant has submitted to the Tribunal that the tasks to be performed are the majority of the applicable tasks as described in Unit Group 4117 in ANZSCO.

24. The Tribunal has considered all of the material provided in relation to the duties of the position. It notes that the material provided describes the position in various ways but as including duties of a Nursing Support Worker. It notes in material provided to the Department the position description included duties such as using equipment appropriately,  assisting residents with eating, drinking, transfers and hygiene, performing correct bed making and hand washing procedures, attending to the personal hygiene and nutritional needs of the residents, and ensuring they are comfortable.  These practical nursing support worker duties appear not to have been included in the material provided after the delegate made his decision. There is no apparent explanation for why these duties are no longer included in the position description provided most recently. The Tribunal wished to discuss with the applicant at the hearing its concern that these duties are not reflective of those described in Unit Group 4117 in ANZSCO, or at a skill level 1,2 or 3. However the applicant chose not to take the opportunity to give oral evidence at a hearing.

25. The Tribunal notes that the representative has submitted written material suggesting the position undertakes a number of the tasks described in ANZSCO. However the Tribunal is not persuaded that the descriptions of the position’s tasks are commensurate with the duties set out in ANZSCO. For example in relation to the ANZSCO task assessing clients' needs and planning, developing and implementing educational, training and support programs, the representative has submitted the position will know and respect the resident’s special needs and routines. Have a working knowledge of “Outcome Standards” as well as a willingness to implement and maintain such standards. Provide quality care…as per “Outcome Standards” Show tolerance, patience and empathy with disabled people. The Tribunal is not satisfied these duties are equivalent in terms of their level of complexity and the skill required. Similarly the Tribunal is not satisfied, as the representative suggests, that the position’s duty Ability to contribute to committees for planning resident care & understanding procedures & activities to residents is equivalent to the ANZSCO duty interviewing clients and assessing the nature and extend of difficulties.

26. The Tribunal also notes, on the basis of the representative’s submissions, that in fact there are a number of the ANZSCO duties that are not applicable to the position.

27. The Tribunal has taken into account the advice by the Regional Certifying Body that it is satisfied there is a genuine need for the position. However, having considered the ANZSCO description of the tasks, the Tribunal is of the view the duties of a Residential Care Officer do not include practical support to residents such as assisting with eating, drinking, transfers and hygiene, performing correct bed making and hand washing procedures, attending to the personal hygiene and nutritional needs of the residents, and ensuring they are comfortable. The Tribunal takes into account the applicant’s evidence that the position will undertake other duties such as providing care and supervision to the standards expected and consistent with the facility’s policies, knowledge about clients’ needs, contributing to a team of health workers, recording information, and providing support, tolerance and empathy. However the Tribunal is of the view a Residential Care Officer’s duties are of a more complex nature, at a higher skill level. Having regard to the ANZSCO description it finds the occupation undertakes assessments, interviews clients, monitors and reports on their progress, refers clients to other agencies, assesses community need and resources, liaises with other agencies, supports families and provides education and care for clients and assists clients to solve social, emotional and financial problems. On the material before it, the Tribunal is not satisfied the position undertakes the majority of the tasks described in the relevant ANZSCO description. The Tribunal acknowledges that the applicant has asserted the position requires a diploma qualification. It wished to discuss with the applicant the duties of the position to ascertain whether the tasks to be performed in the position correspond to another occupation at a skill level of ANZSCO 1, 2 or 3. However the applicant chose not to attend the hearing. Accordingly the Tribunal is not able to determine the occupation to which the position’s tasks correspond.

28. Having considered all of the material provided the Tribunal is not satisfied there is sufficient evidence to demonstrate that the tasks of the position correspond to those of an occupation at the ANZSCO skill level 1, 2 or 3 as required by r.5.19(4)(h)(ii)(D).

29. As r.5.19(4)(h)(ii)(D) is not met, the applicant does not meet r.5.19(4)(h)(ii) and so r.5.19(4)(h) is not met.

30. For the above reasons the Tribunal is not satisfied that the applicant meets the requirements of r.5.19(4). The applicant has not sought to satisfy the criteria in Temporary Residence Transition Nomination stream, and as such has not met the requirements in r.5.19(3). Accordingly, the nomination of the position cannot be approved. Therefore, the Tribunal must affirm the decision under review.

    DECISION

31. The Tribunal affirms the decision under review to refuse the nomination.

    Denise Connolly
    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

    (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).