1505546 (Migration)

1505546 (Migration) [2016] AATA 3154 (1 February 2016)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  JULIE CAMPBELL PHYSIOTHERAPISTS PTY LTD
CASE NUMBER:  1505546
DIBP REFERENCE(S):  BCC2014/2391874
MEMBER:Lesley Hunt
DATE:1 February 2016
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Statement made on 01 February 2016 at 3:24pm

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration on 2 April 2015 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).
The applicant applied for approval on 22 September 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).
In this case, the applicant has applied for approval of a nomination, seeking to satisfy the criteria in Direct Entry Nomination stream.
The delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19(4)(h)(i) of the Regulations because the delegate was not satisfied that the training benchmarks were met.
The applicant appeared before the Tribunal on 2 November 2015 to give evidence and present arguments.
The applicant was represented in relation to the review by its registered migration agent. The representative attended the Tribunal hearing.
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
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)
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.
The evidence before the Tribunal is that that the application for approval was made on the approved form and was accompanied by the prescribed fee.
The applicant business is Julie Campbell Physiotherapists Pty Ltd, trading as “Revive”. Evidence before the Tribunal indicates that the business commenced trading on 5 March 2012 and operates in the health care and social assistance industry. The nominated position is “Massage Therapist”.
At the hearing, Ms Campbell indicated that she advertised the position on Seek.com as she requires a full-time massage therapist in her growing business. She stated that she received three or four applications only and apart from the nominee, they were all newly qualified without the experience in therapeutic massage that she required. Ms Campbell clarified that she did not know the nominee before she applied for the position. She was the most experienced applicant and she wishes to employ her in the position.
In response to questions from the Tribunal Ms Campbell clarified that she is the practice owner / manager, the business is named “Revive” and is located in the Brisbane suburb of Ashgrove. Ms Campbell clarified that she works at the office every Monday through to Thursday and works from her home every Friday. Ms Campbell clarified that the nominated position reports to the Physiotherapy Manager about the substantive work and to the Senior Receptionist with regard to administrative matters. She clarified that all employees are ultimately accountable to her and under her direct control as she is the practice manager and the employer.
The Tribunal is satisfied that the applicant has a need to employ a massage therapist and that the position is under the direct control of the nominator.
Accordingly, the Tribunal is satisfied that 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)
Regulation 5.19(4)(b) requires that applicant is actively, lawfully and directly operating a business in Australia.
Evidence before the Tribunal includes various financial statements, certified copy of the Australian Business Register and ABN, an extract from the Australian Securities and Investments Commission database, and information provided by the business to the Australian Taxation Office.
The Tribunal finds that the applicant is actively and lawfully operating a business in Australia and directly operates that business.
Accordingly, the requirement in r.5.19(4)(b) is met.
Position is not labour-hire: r.5.19(4)(c)
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. There is no evidence before the Tribunal to indicate that the applicant is involved in hiring of labour to other unrelated businesses.
Accordingly, the requirement in r.5.19(4)(c) does not apply.
Term of employment of the visa holder: r.5.19(4)(d)
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.
The employment contract submitted indicates that the position is for two years and there are no restrictions on the contract being extended.
Accordingly, the requirement in r.5.19(4)(d) is met.
No less favourable terms and condition of employment: r.5.19(4)(e)
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.
Information before the Tribunal indicates that the business employs another massage therapist, Ms Katie Picket. At the hearing, the applicant clarified that another Australian citizen, Ms Jenny Tomkins, is employed as a massage therapist and Pilates instructor. The applicant confirmed that the business employs 21 employees in total and that the nominee for the position of massage therapist would be the only employee who is not an Australian citizen or permanent resident.
The Tribunal noted that the contracts of employment for the two massage therapists detailed the same terms and conditions of employment. The Tribunal noted a discrepancy in pay in the pay slips provided; however the applicant clarified that this was due to different number of hours worked in that particular pay period.
The Tribunal considers that the terms and conditions of employment applicable to the nominated position will be no less favourable than those that are 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)
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.
In this case, there is no known adverse information relevant to the applicant or a person associated with the applicant as those terms are defined in the legislation.
Accordingly the requirements of r.5.19(4)(f) are met.
Satisfactory compliance with workplace relations laws: r.5.19(4)(g)
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 to indicate that the applicant does not have a satisfactory record of compliance with workplace relations laws in the locations in which it operates a business and employs staff.
In these circumstances, the Tribunal is satisfied that 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)
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 (see legislative instrument IMMI 14/048), 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 that a regional certifying body has advised the Minister about certain matters relating to the position.
In this case, the Tribunal has to be satisfied 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 in legislative instrument IMMI 14/048, and certain specified training benchmarks will be met. The relative instrument includes the position of massage therapist and refers to the ANZSCO Dictionary definition of “massage therapist” at 411611. The Tribunal is satisfied that the tasks outlined in the employment contract for the nominated position correspond with the tasks specified in ANZSCO at 411611. ANZSCO indicates that the required skill level is AQF Associate Degree, Advanced Diploma or Diploma (ANZSCO skill level 2).
The Tribunal is satisfied that the requirements of r.5.19(4)(h)(i)(A) are satisfied.
With respect to r.5.19(4)(h)(i)(B) the Tribunal notes that the business has operated for over 12 months. The nominator therefore has to meet the requirements for the training of Australian citizens and Australian permanent residents specified in the relevant legislative instrument (IMMI 13/030).
The relevant legislative instrument specified that the training benchmarks for an established business are:
A) Recent expenditure, by the business, to the equivalent of at least 2% of the payroll of the business, in payments allocated to an industry training fund that operates in the same industry as the business.
OR
B) Recent expenditure, by the business, to the equivalent of at least 1% of the payroll of the business, in the provision of training to employees of the business.
In this case, the information before the Tribunal is that the business profit and loss statement for the year ending 30 June 2014 shows payroll expenditure of $1,016,067, therefore the nominator is required to show recent expenditure of $10,160 on the provision of training to employees of the business.
Subsequent to the hearing, the nominator provided the following information regarding expenditure on training.
At Revive we allocate two hours per week reserved for all therapists on staff to attend a training session. The speakers at these sessions are either qualified staff members or local health practitioners. Many Revive staff members are leaders in their area of physiotherapy or pilates and are paid trainers and speakers at other external events and conferences. We are able to take advantage of this expertise, as these therapists happen to be on staff at Revive.
All staff are paid for the time they spend in these sessions and they cost Revive on average $360 per session. The speaker is paid more than those participating, with outsources speakers being paid a larger amount.
We run approximately 85 sessions per year at an average of $360 per session – this costs the business a large amount.
All staff benefit from these sessions that are of an extremely high educational standard and are an integral part of our training schedule and commitment to ongoing education of all staff.
A copy of the business diary showing the training timetable for the year and case studies used in the training program and the dates they were used were submitted in support of this claim.
An itemised calendar of the staff training timetable from 15 January 2014 to 12 December 2014 was submitted subsequent to the hearing. It detailed the subject and description of each one-hour training session, the name of the facilitator and their profession / occupation, the number of staff attending, the total cost of each session and the cost breakdown. The total cost for the year was $26,168.
Copies of invoices for training provided throughout the year from external trainers were also submitted. This included CPR and First Aid course provided by St Johns Ambulance Service for all staff – total $1500; Invoice from Anita Kertland for yoga training in January totalling $200; M and K Lang – 6 classes - $420; Jennifer Youell Yoga $200; Rocktape course $420; Dry Needling course conducted by Robina Physiotherapy $675.
In addition, information provided shows the following training also occurred in the 2014 financial year: New employee orientation of 38 hours each for the year – total $1444; Training of administrative staff of 38 hours each for the year – total $3,000.
After assessing all the information provided the Tribunal is satisfied that the nominator had in the financial year ending 30 June 2014 expenditure in excess of $10,160 on the provision of training to employees of the business.
The Tribunal is satisfied that the nominator meets the training requirements specified in the relevant instrument for a business operated for over 12 months.
Accordingly the requirements of r.5.19(4)(h) are met.
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
The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.
Lesley Hunt
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).

[2016] AATA 3154

1 February 2016

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction