1420714 (Migration)

[2016] AATA 3581

1420714 (Migration) [2016] AATA 3581 (21 March 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Central Desert Shire Council

CASE NUMBER:  1420714

DIBP REFERENCE(S):  BCC2014/2049372

MEMBER:Rania Skaros

DATE:21 March 2016

PLACE OF DECISION:  Sydney

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

Statement made on 21 March 2016 at 10:16am

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 1 December 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 20 August 2014. 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 because the delegate was not satisfied that 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.

5. Mr Innocent Ndhlovu, the Council’s Human Resources Manager, appeared before the Tribunal on 1 February 2016 by video link to give evidence and present arguments on behalf of the Central Desert Shire Council.

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

7. Prior to the hearing the Tribunal received a number of documents, including, an employment contract, and a position description and selection criteria for the position of Housing and Facilities Coordinator, copy of the Central Desert Shire Council Enterprise Agreement 2013-2016. Also provided was an organisational chart for the Council, letter from the Director of Works and Infrastructure, Mr Glen Marshall, detailing the difficulties the Council has had in recruiting a suitably qualified person in the region, business profile of the Council and audited financial reports.

8. After the hearing the Tribunal received favourable RCB advice dated 8 March 2016 in respect of the nominee for the job title Housing and Facilities Co-ordinator (Program or Project Administrator 511112). 

9. 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

10. The issue in this case is whether the applicant meets the requirements for approval of the nomination under the Direct Entry nomination stream set out in r.5.19(4), which is extracted in the attachment to this decision. For the nomination to be approved, all the requirements must be met.

    The application is compliant: r.5.19(4)(a)

11. 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.

12. The Tribunal is satisfied on the basis of information contained in the Department’s file that the application for approval was made on the approved form. At the hearing, the Tribunal discussed with Mr Ndhlovu the nature of the position to be filled and its importance to the Council’s operations, which is discussed further below. The Tribunal was satisfied on the evidence that the application identified a need for the nominator to employ a paid employee to work in the position under the nominator’s direct control.

13. 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)

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

15. Having considered the information before it, including the Council’s financial reports, current registration information, employment documents and Mr Ndhlovu’s oral evidence, the Tribunal is satisfied that the nominator is actively and lawfully operating a business in Australia and directly operates that business.

16. Accordingly, the requirement in r.5.19(4)(b) is met.

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

17. 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.

18. The nominator’s business is not involved in labour hire activities.

19. Accordingly, the requirement in r.5.19(4)(c) does not apply.

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

20. 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.

21. The Tribunal has had regard to the terms and conditions of employment contained in the employment contract, which indicate that the nominee will be employed in the position on a full time basis for a term of 3 years. It has also had regard to the terms of the Council’s Enterprise Agreement 2014 – 2016. It is satisfied on the evidence that the terms and conditions do not include an express exclusion of the possibility of extending the period of employment.

22. Given the above, the Tribunal is satisfied that the nominee will be employed in the position for at least two years full time and that the terms and conditions of that employment do not exclude the possibility of an extension.

23. Accordingly, the requirement in r.5.19(4)(d) is met.

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

24. 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.

25. The base salary for the position is $70,514. The Tribunal has had regard to Council’s Enterprise Agreement and the terms and conditions of employment, as set out in the employment contract, and to the position description, which indicates that the position, which is a Level 6 Step 1-3, attracts a salary of $70,514 to $75,133. As the salary for the position is consistent with the salary range applicable for the position, the Tribunal is satisfied that the terms and conditions applicable to the position, will be no less favourable than those that are/would be provided to an Australian performing equivalent work in the same workplace at the same location.

26. Accordingly the requirements of r.5.19(4)(e) are met.

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

27. 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. 

28. Mr Ndhlovu advised the Tribunal there is nothing of concern known about the Council or any person associated with the Council. There is also no evidence before the Tribunal to suggest that there is adverse information known to the Department about the nominator or a person ‘associated with’ the nominator.

29. Given the above, the Tribunal finds that the requirements of r.5.19(4)(f) is met.

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

30. 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.

31. Mr Ndhlovu advised the Tribunal that the Council has complied with all the relevant workplace laws applicable to it. The Tribunal is accordingly satisfied on the evidence that the applicant has a satisfactory record of compliance with the relevant workplace relations laws.

32. 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)

33. Regulation 5.19(4)(h) contains a number of alternative requirements. The nominator claims to meet r.5.19(4)(h)(ii) which requires:

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

34. The Tribunal is satisfied on the evidence before it that the position and the Council are located in regional Australia (Alice Springs). The Tribunal accepts, as indicated by the Council’s organisational chart, employment documentation and Mr Ndhlovu’s oral evidence, that there is a need to employ a person to work in the position under the nominator’s direct control. The Tribunal also accepts Mr Ndhlovu’s evidence that the Council has advertised the position on its website and has made considerable effort to fill this position locally but has been unable to do so.

35. The Tribunal has also had regard to the tasks to be performed in the position as set out in the position description and selection criteria documentation. The description notes that the position is responsible for co-ordinating housing and facilities across Council. As to the tasks of the position, it notes that the tasks to be performed include, managing, planning, maintaining and allocating Council managed housing facilities. The tasks also include, contract management, maintenance of the Council’s asset register, developing strategic plans for housing and facilities, developing strategies to address housing shortage, developing business cases for new facilities, seeking funding, managing the repair and maintenance program for all housing facilities and exploring opportunities for efficiencies. The Tribunal is satisfied that the tasks to be performed in the role correspond to tasks in the occupation of Program/ Project Administrator (511112), which is an ANZSCO skill level 2 occupation.

36. The Tribunal has received advice from the Northern Territory Regional Certifying Body, which is located in the same Territory as the position, on form 1404, in relation to matters in r.5.19(4)(e) and r.5.19(4)(h)(ii)(B) & (C) indicating that the nominator satisfies those requirements.

37. Given the above, the applicant meets the requirements in r.5.19(4)(h)(ii) and the Tribunal finds that r.5.19(4)(h) is therefore met.

38. 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

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

    Rania Skaros
    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).