1505253 (Migration)

[2015] AATA 3180

1505253 (Migration) [2015] AATA 3180 (24 July 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Senses Foundation (Inc.)

CASE NUMBER:  1505253

DIBP REFERENCE(S):  BCC2013/1098000

MEMBER:Christopher Smolicz

DATE:24 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 24 July 2015 at 12:12pm

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 11 November 2013 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. On 19 July 2013 the applicant applied for approval of the position of Residential Care Officer (RCO) (ANZSCO 411715). The nominee for the position is Ms Sheetal Mehulbhai Patel, a citizen of India.

3. 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).

4. In this case, the applicant has applied for approval of a nomination, seeking to satisfy the criteria in Direct Entry Nomination stream.

5. 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.

6. On 27 November 2013, the applicant applied to the Tribunal (differently constituted) to review the delegate’s decision.

7. On review, the Tribunal, in decision 1317836, 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 that Senses Foundation Inc and Senses Australia were two different entities in the eyes of the law, and that the nomination application therefore failed to satisfy regs 5.19(4)(a) and 5.19(4)(b) of the Regulations.

8. The applicant appealed the first 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.

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

10. In reaching its decision the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the visa applicant on the basis of the material before it, pursuant to section 360(2)(a) of the Act.

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. 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.

12. The Tribunal is satisfied that the applicant meets the requirements of r.5.19(4) for approval of the nomination of the position of RCO. In making this decision the Tribunal has relied on financial and business documents provided by the applicant in the related nomination applications which were before the Tribunal.[1]

    Background

    [1] See AAT files Ref.1317636, 1317836, 1401390 and 1317892.

13. 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.[2]

    [2] >

    The organisation initially commenced its operations in Western Australia. As detailed above, the applicant was known as “Senses Foundation (Inc)”. The organisation underwent a name change to “Sense Austrlia Ltd” from 1 July 2013 and then to “Senses Australia” from 16 July 2013. Despite the name changes the Tribunal finds that the applicant has retained the same functions, employees, board of directors, address and has continued to operate under the same ABN.

14. The Tribunal accepts that the reason for the name change was to enable the applicant to expand its operations across Australia. The Tribunal finds that the change in registration from “Senses Foundation Inc” to “Senses Australia” has not created a different entity from that which applied to the Department on 20 June 2013 seeking approval of the nomination.

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

15. 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 their direct control.

16. The Tribunal finds 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).

17. The Tribunal is satisfied that the application identifies the need for the nominator to employ a paid employee in the position of RCO and that the position is under the nominator’s direct control. 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)

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

19. The Tribunal has had regard to the financial documents located on the Department’s file which include ASIC certificates of company registration and certificates of change of name and details of ABN registration. The Tribunal is satisfied that the applicant, now known as Senses Australia, 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)

20. 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)

21. 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.  The applicant has employed Ms Patel in the position of Residential Support Worker since November 2012 (Level 7). The Tribunal has had regard to the Sense Foundation Inc Collective Workplace Agreement 2006 and 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. Accordingly, the requirement in r.5.19(4)(d) is met.

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

22. 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. The Tribunal has had regard to the Sense 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. Accordingly the requirements of r.5.19(4)(e) are met.

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

23. 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). 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)

24. 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. There is no evidence before the Tribunal that the applicant does not have a satisfactory record of compliance with workplace relations laws in Australia. 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)

25. Regulation 5.19(4)(h) contains a number of 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 access the application 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.

26. Turning 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 RCO nominated by the applicant is referred to in ANZSCO as a skill level 2 position. According to ANZSCO the RCO “provides care and supervision for children or disabled persons in group housing or institutional care”.

27. The Tribunal has considered the tasks found in ANZSCO for this position and compared them to the job description provided by the applicant.  The Tribunal notes however, that for the purpose of the current assessment, ANZSCO is only a guide and it is not always possible to find an exact match for a nominated position within the ANZSCO dictionary definitions. If a nominated position does not fall exactly within an ANZSCO occupation description the Tribunal must make an assessment on all the available evidence.

28. The Tribunal has had regard to the statement of “Duties of a Support Worker in Sense Australia” and written submissions and is satisfied that a RCO works at a number of community living homes (Group Homes) working with clients with varying disabilities. The group housing environment is run by the Sense Foundation. The role of the RCO is self-directed and responsible for the whole-of-development and physical programs for clients. 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, liaising with community groups, participation in a range of alternatives to employment programs and various recreational pursuits.

29. Having considered the evidence and submissions, the Tribunal is satisfied that the nominated position can properly be classified as a position for a RCO, ANZSCO Skill Level 2. The Tribunal therefore finds that the nomination does satisfy r.5.19(4)(h)(ii)(D) of the Regulations. The Tribunal is satisfied the position is located in regional Australia.

30. The Tribunal finds that Skilled Migration WA 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.

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

32. 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

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

    Christopher Smolicz
    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).