Accept Caregroup Pty Ltd (Migration)

Accept Caregroup Pty Ltd (Migration) [2021] AATA 3117 (16 July 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Accept Caregroup Pty Ltd
CASE NUMBER:  1818919
HOME AFFAIRS REFERENCE(S):          BCC2017/2939830
MEMBER:Mark O'Loughlin
DATE:16 July 2021
PLACE OF DECISION:  Adelaide
DECISION:The Tribunal affirms the decision under review to refuse the nomination.

Statement made on 16 July 2021 at 11:54am

CATCHWORDS
MIGRATION – nomination – Direct Entry nomination stream – position can be filled by an Australian citizen or permanent resident who is living in the same local area as that place – advertising for the nominated position stipulated a salary that was well below award and market rates –decision under review affirmed
LEGISLATION
Migration Regulations 1994, r 5.19
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 Home Affairs on 8 June 2018 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 16 August 2017. 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 stream (r.5.19(3)) and a Direct Entry nomination stream (r.5.19(4)). 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 the Direct Entry nomination stream.
The delegate refused the application on the basis the applicant’s nomination did not satisfy the Regulations, in particular r.5.19(4)(h)(ii)(C).
The delegate found that the application did not satisfy the Regulations r.5.19(4)(h)(ii)(C) because the delegate was not satisfied that the position cannot be filled by an Australian citizen or permanent resident who is living in the same local area as that place.
Ms. Kruuse, a director of the applicant appeared before the Tribunal on 30 March 2021 to give evidence and present arguments. The Tribunal also received oral evidence from the nominee, Ms. Wai Ting (Ann) Wong.
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 affirm the decision under review to refuse the nomination.
CONSIDERATION OF CLAIMS AND EVIDENCE
The requirements for approval of the nomination under the Direct Entry nomination stream are 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 requirement at r.5.19(4)(h) has 2 parts. The applicant must satisfy either part (i) or part (ii).
The applicant did not seek to satisfy r.5.19(4)(h)(i). It did not provide evidence of any relevant training or training plan. The Tribunal finds that the applicant does not satisfy r.5.19(4)(h)(i).
The Tribunal must therefore decide whether the applicant satisfies r.5.19(4)(h)(ii).
In coming to its decision the Tribunal has relied on documents provided by the applicant including; –
a)a copy of the delegate’s decision dated 8 June 2018;
b)a copy of a document entitled “full-time (award) employment contract” signed by the applicant and the nominee on 14 August 2017;
c)a copy of a document entitled “full-time (award) employment contract” signed by the applicant and the nominee on 20 November 2017;
d)a copy of a Regional Certifying Body advice dated 23 January 2018 prepared by the South Australian Department of Home Affairs (“the RCB certificate”);
e)a copy of a document entitled “full-time (award) employment contract” signed by the applicant and the nominee on 1 December 2020;
f)a letter dated 29 January 2018 from the applicant to the Department of Immigration and Border Protection;
g)evidence of employment advertisements placed online by the applicant on 5 June 2017, 21 January 2018 and 28 February 2020
h)application for Employer Nomination for a Permanent Appointment submitted by Charles Yuen, a registered migration agent, on behalf of the applicant;
i)document entitled “1^st meeting for Accept’s Chinese community operation” dated 20 June 2017;
j)Lifelong Pathways document entitled “Case Conference Report” relating to a meeting held on 17 July 2017.
k)a copy of an email of 15 November 2017 from Ms He to the applicant tendering her resignation;
l)submissions dated 23 December 2020 and 3 May 2021 (together with annexures), both prepared by the applicant’s registered migration agent.
Applicant’s Pre-Hearing Submissions
In submissions of 23 December 2020, the applicant provided some background, setting out why the applicant needs to employ a social worker and the process it followed to locate one starting in early June 2017.
At the bottom of page 2 the submissions say that a person was employed (Ms. He, “the first social worker”) but she was not able to do the work and resigned in November 2017. The submissions say that the nominee, Ann Wong, was asked to temporarily assume the social worker duties.
The submissions are not clear about the dates on which the first social worker began to show that she was not capable of the work or when the nominee started working as a social worker.
The submissions say that further ads were placed on a job recruitment website in January 2018 and February 2020.
The submissions say that “Ms Wong was the only meritorious candidate.”
The applicant says that the nominee was granted full-time working rights on her bridging visa when she made her subclass 187 visa application[1].
[1] Page 3 paragraph 4
Before she was granted a bridging visa, the nominee had a student visa and did not have full working rights.
At page 4 of the submissions the applicant repeats that the nominee was the only suitable candidate.
The submissions note that the South Australian Department of State Development had been provided with “insufficient information” and that mistakes had been made in the process of obtaining the RCB certificate.
At page 9 the submissions return to the question of whether the nominated position can be filled by an Australian citizen or permanent resident who is living in the same location.
The submissions say that the position has been advertised across a period spanning 2017 to 2020 and the applicant has faced “insurmountable difficulty” recruiting a person locally. They refer to evidence of the domestic recruitment efforts being annexure 9 to the submissions.
That annexure comprises a copy of the advertisement of February 2020 and a document dated 3^rd of July 2020 that gives a summary of the applications received in response to the ad.
There are also summaries of the assessment of many of the applications with reasons for their rejection.
The submissions say that Ms Kruuse eliminated 47 applicants and interviewed 2. It appears from the documents that she interviewed the nominee as well.
The submissions also refer to evidence that there is a shortage of qualified and experienced social workers.
RCB Certificate
On page 16, the submissions address the comments in the RCB certificate. That certificate states that the advertisement offers a salary of between $40,000 - $44,999. The certificate says this is “well below award and market rate and this would deter Australian citizens or permanent residents applying for this position.”
The applicant acknowledges that the salary in the June 2017 advertisement was well below the award rate. It says that was due to an oversight.
The submissions say that that was rectified in the advertising done in January 2018 and in the interviews after the ad placed in February 2020. The Tribunal accepts that the January 2018 advertising offered a salary package of $66,189.68.
The submissions assert that the further advertising has “sufficiently resolved the only issue of concern raised by the Regional Certifying Body”. The Tribunal is not satisfied that this issue has been resolved. The June 2017 advertising cannot be assumed to have attracted all appropriate applicants and is likely to have deterred the best of them due to the inadequate salary offered.
The submissions also assert that, when it drew the certificate, the regional certifying body (“the RCB”) was “not duly apprised about the fundamental value of the tasks and duties performed in the nominated position.” [2]
[2] page 16 final paragraph
The submissions do not explain how, if the RCB had been advised of the value of the tasks performed in the nominated position, that would have justified advertising a below award salary.
The submissions observe that the decision-maker is not bound by advice from an RCB.
The Tribunal accepts that it is entitled to reach its own conclusion on whether the application meets r.5.19(4)(h)(ii)(C) regardless of the views of the RCB or the contents of an RCB certificate.
The Tribunal notes that the applicant has conceded that the June 2017 advertising was flawed in the way suggested by the RCB.
Testimony to the Tribunal
Ms Kruuse gave evidence that the nominee had started working for the applicant in 2016 as a casual home support worker. At that stage the nominee was on a student visa.
In that position her duties involved attending clients’ homes and helping them with cooking, showering, and the like.
Ms Kruuse told the Tribunal that the nominee worked as a home support worker until about November 2017 which was a little over a year.
She said that the first social worker started in June 2017 and resigned in November 2017, leaving a gap.
Ms Kruuse gave evidence that the nominee started working for Accept as a social worker in November 2017.
The Tribunal asked her whether the nominee took over as soon as the first social worker stopped working. Ms Kruuse said that it was not on the same day but that the change was prompted by the first social worker leaving and there being a need.
The Tribunal observed that the application for employer nomination was lodged on 16 August 2017 suggesting that the applicant had decided to employ the nominee in the position as a social worker about 3 months before the opening arose. Ms Kruuse disagreed asking “how would we know that the other person would leave?”
Ms Kruuse said that the first social worker had been a local. She said that when the she left they wanted to fill the gap as smoothly as possible.
She said that they had discovered that the nominee was a qualified social worker so they put her into the job. She said that they still went through an advertising process to see if there was a suitable local candidate.
She did not recall whether there was any discussion about the resignation of the first social worker before it took place on 15 November 2017.
The Tribunal again observed that the applicant had presumably decided to employ the nominee as a social worker by 16 August 2017 when the application for approval of the nomination was lodged.
Ms Kruuse disagreed.
After further discussion Ms Kruuse said that the fact that the first social worker would be moving on was quite clear to them before the event and that this probably explains why the application for the nomination was made before that person left.
That evidence conflicts with Ms Kruuse’s earlier evidence that they had not decided to employ the nominee before the opening arose and that they had no means of knowing that the first social worker would leave.
Ms Kruuse was asked about a letter of 29 January 2018 from Accept to the Department. The Tribunal observed that that letter says the June 2017 advertisement for the social worker’s position had been drafted by the Accept’s migration agent.
The Tribunal observed that using a migration agent to draft the employment advertisement suggests that the applicant had identified the nominee as someone they wanted to employ before they had undertaken the advertising.
Ms Kruuse said she had not written the letter of 29 January 2018 but agreed that it did show that a migration agent had been involved in drawing the employment advertisement in June 2017.
She could not explain why the applicant used a migration agent. Ms Kruuse was concerned to emphasise that it was difficult to identify an appropriate social worker.
The Tribunal suggested that the use of a migration agent to undertake the advertising might indicate that the applicant was not in fact trying to identify an appropriate Australian citizen or permanent resident to work in that position.
Ms. Kruuse insisted that full efforts had been made to identify an appropriate local candidate but that none had been identified. She said that they were confident that they had a good idea of the pool of available candidates after the advertising in June 2017 and that this was confirmed by the 2 later rounds of advertising.
The Tribunal pointed out that the advertising in June 2017 was flawed in that the pay offered was inadequate and below award. The 2 subsequent rounds of advertising both came after the application for approval of nomination had been lodged and the nominee was established in her employment as social worker for the applicant.
The Tribunal repeated that the advertising for the position was arranged by a migration agent rather than a recruitment service which suggested that the advertising was part of the nomination process rather than an effort to locate a candidate who is an Australian citizen or permanent resident.
Ms Kruuse indicated that she did not believe there was anything wrong with taking advice. She did not explain why the applicant was using a migration agent at a time when, according to her, they were not contemplating employing a visa holder.
She again emphasised that there will be difficulties finding another candidate with the nominee’s skills.
The Tribunal noted that the immediate question was not the need for the position or whether it would be difficult to fill but what effort had been made to identify an Australian citizen or permanent resident to work in it.
Ms Kruuse was unable to indicate when the first migration agent had been retained although she agreed that the letter of 29 January did strongly suggest that a migration agent was involved from the outset, the time of the first advertisement.
She insisted that the fact that they had advertised the position a number of times speaks for itself and the fact that there is a skill shortage speaks for itself.
Ms Kruuse could not tell the Tribunal when the original migration agent, Mr Yuen, had been retained.
Ms Kruuse could not tell the Tribunal why the original migration agent, Mr Yuen, had been retained.
The nominee, Ms Wong, gave evidence that she arrived in Australia in 2009 on a student visa and that she had previously been a resident of Hong Kong.
She said that she was employed by Accept Care Group as a casual support worker in about August 2016. She said that she had finished her study in early 2017, in January or March.
She said that she applied for a lot of social worker jobs but only got one interview.
She said that she had applied for a further student visa but at the same time was applying for full-time work in South Australia.
She said that when she was working as a support worker, she discussed her social work background with her manager and that a meeting was arranged with Ms Kruuse who advised that there was a vacancy for a social worker.
Ms Wong said that the interview was in 2017 but was unable to identify the time more accurately.
She said she thought that the first social worker had already left at that stage although on reconsideration said that the first social worker was still there when she started as a social worker herself.
She said that when she moved from support worker to social worker, she signed an employment agreement.
She agreed that Accept had made an application to approve the nomination for her permanent appointment on 16 August 2017.
She knew the migration agent who made that application. She described him as “a friend from church”.
She believes that she did not discuss her visa with him until after she had started working as a social worker.
She said that she signed the first employment agreement on 14 August 2017 but that had to be amended and she signed another one in November 2017.
Submissions of 3 May 2021
At the hearing the applicant was granted 2 weeks to make further submissions. Within that 2 weeks the applicant sought and was granted an extension of time and provided further submissions on 3 May 2021.
The submissions begin by emphasising that the advertising for a full-time social worker predated the lodgement of the nomination. At page 2 the applicant provided a copy of the advertisement published on 5 June 2017.
The submissions further assert that there were 39 applicants of whom 7 were shortlisted and 5 were interviewed. The applicant included an email from Accept to the first social worker dated Wednesday, 28 June 2017 showing that she had been employed “earlier in the week”, presumably on the 26 or 27 of June.
The submissions state that in mid-2017 the nominator “actively engaged in recruitment and gave no preferential treatment to Ms Wong.” The submissions further state that the fact that Ms He was employed make it “demonstrably clear the nominator did not construct the nominated position so as to pursue an immigration outcome.”[3]
[3] page 5 paragraph 1
The submissions state that Ms He “tendered her resignation in November 2017 which precipitated Ms Wong stepping into the role in the interim.”[4]
[4] page 5 paragraph 2
The submissions go on to say that the nominator “had faced serious difficulty recruiting local residents”[5]
[5] Page 5 paragraph 3
To the extent that the submissions refer to the June 2017 recruitment efforts, the Tribunal reminds itself that the advertising offered a salary that is admitted to have been well short of award and market rates and may have dissuaded applicants.
The submissions state[6] that it was “only through the ad-hoc assistance and support given by Ms Wong to Ms He, that Ms Wong was found to possess not only relevant qualifications but also a high level of skill and experience required of the Social Worker position.”
[6] Page 5 paragaraph 5
This statement is unhelpfully vague. Presumably it is not intended to suggest that the applicant did not previously know that the nominee, Ms. Wong, was a social worker. There is evidence that the applicant did know that before Ms. He had even started work.
The submissions also say “There should be no concerns that Ms Wong undertook the role of Social Worker before advertising was undertaken for the role; recruitment within the local labour market predates the provisional contract offered in August 2017.”[7]
[7] Page 5 paragraph 6
The applicant does not explain why Ms Wong could not have worked as a social worker before that contract was offered. Ultimately that provisional contract did not come into effect. Indeed there is no evidence that the nominee has ever worked for the applicant under an employment contract because each one she has signed has been conditional on her being granted a 187 visa.
The submissions refer to a letter from the Business Operations Manager, Yuna Kim which was attached to the submissions. The submissions say that Ms. Kim “attests that genuine recruitment was conducted at arm’s length.”[8]
[8] Page 5 paragraph 7
There is no evidence of any such attestation. The letter of 15 April 2021 attached to the submissions only relevantly says “In 2017 we advertised for a Social Worker position and Olivia He was one of the applicants.”
The submissions state that Ms Wong continued to work as a Home Support Worker after the agreement of 14 August 2017 was signed and did not start work in the nominated position of Social Worker until 27 November 2017.[9]
[9] Page 7 paragraph 3

The Tribunal accepts that the nominee did not start as a social worker in the nominated position until late November 2017 but it is not clear if the applicant asserts that the nominee did not work for the applicant as a social worker at all before then.
The Tribunal accepts that the nominee worked for the applicant as a Home Support Worker until 27 November 2017. The evidence does not show how much work she also did as a Social Worker before this date.
The submissions assert that the advertising that the applicant undertook did not identify any suitable candidates other than the nominee.
They further seek to support the submission that the position would be difficult to fill if not for the nominee by referring to political statements and reference to a Government web site[10].
[10] Page 8 paragraph 4 and following.
The Tribunal accepts that the position may have been difficult to fill but that does not relieve the applicant from pursuing an adequate recruitment process.
The submissions assert that the applicant has “utilised different methods” including word of mouth[11] to employ a local Social Worker. There is no evidence of this.
[11] Page 9 paragraph 3
Other Documents
The applicant had provided a document entitled “1^st meeting for Accept’s Chinese community operation” which related to a meeting of Accept employees that took place on Tuesday, 20 June 2017.

100. Amongst the attendees was the nominee, Ann. she is described as a “social worker”.
101. Another attendee was “Lise”, the General Manager. This person is evidently Ms Kruuse who gave evidence to the Tribunal.
102. This document demonstrates that the nominee had been identified as a social worker and may have been working for Accept as a social worker by 20 June 2017.
103. The applicant also provided a document being a Lifelong Pathways case conference report dated 17^th of July 2017.
104. The nominee attended that meeting as a social worker representing Accept.
105. This strongly suggests that the applicant had started working for the applicant as a social worker by 17 July 2017.
Consideration and Findings
106. Before Ms Kruuse gave evidence, the Tribunal emphasised to her the importance of being sure that she understood what she was being asked and the importance of being sure that what she told the Tribunal was true.
107. She told the Tribunal that the nominee had started working for Accept as a social worker in November 2017. The Tribunal finds that this evidence was not true.
108. She told the Tribunal that, despite having applied for the approval of the nomination on 16 August 2017, they did not decide to employ the nominee in the position as a social worker until November 2017. The Tribunal finds that this evidence was inconsistent and not true.
109. When she was pressed on this inconsistency, she became evasive and defensive.
110. She was unable to assist the Tribunal on the question of why the applicant used a migration agent rather than a recruitment service to advertise for social worker in June 2017.
111. She defended the initial advertising in June 2017 as having given them a “fair idea” of who was available despite the advertised salary being so far below award.
112. The Tribunal finds that, whether due to faulty recollection or for some other reason, Ms Kruuse’s evidence was unreliable.
113. The Tribunal does not rely on Ms Kruuse’s evidence where it is not corroborated.
114. The applicant concedes and the Tribunal finds that the first raft of advertising for the nominated position in June 2017 stipulated a salary that was well below award and market rates.
115. The Tribunal is not satisfied that the June 2017 advertising attracted applications from all local applicants.
116. The applicant submits that this default was remedied by subsequent advertising in January 2018 and February 2020.
117. The Tribunal is unable to assess the documentary evidence that the applicant says establishes the thoroughness of the assessment of responses to the advertising in January 2018 and February 2020. The reasons given for rejecting the applicants are brief and many of them are subjective.
118. The applicant urges the Tribunal to accept the evidence of Ms Kruuse to the effect that none of the applicants except the nominee were appropriate.
119. The Tribunal is not prepared to accept the evidence of Ms Kruuse about that.
120. It is clear that the applicant had resolved to try to employ the nominee in the position by 16 August 2017 (when it made the application).
121. The assessment of candidates for employment after that date may have been affected by that resolve.
122. The Tribunal is not satisfied that the position cannot be filled by an Australian citizen or an Australian permanent resident who is living in the same local area as the position.
123. The Tribunal is not satisfied that r.5.19(4)(h)(ii)(C) is met.
124. Accordingly the requirements of r.5.19(4)(h) are not met.
125. 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
126. The Tribunal affirms the decision under review to refuse the nomination.
Mark O'Loughlin
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
(aa) include a written certification by the nominator stating whether or not the nominator has engaged in conduct, in relation to the nomination, that constitutes a contravention of subsection 245AR(1) of the Act; 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)       all 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;
(AA)there is a genuine need for the nominator to employ the person identified under subparagraph (a)(ii), as a paid employee, to work in the position under the nominator’s direct control;
(AAA)the occupation is applicable to the person identified under subparagraph (a)(ii) in accordance with the specification of the occupation;
(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 the person identified under subparagraph (a)(ii), as 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 specified by the Minister in an instrument in writing for this sub-subparagraph;
(DA)the occupation is applicable to the person identified under subparagraph (a)(ii) in accordance with the specification of the occupation;
(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).

[2021] AATA 3117

16 July 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Statutory Construction

Natural Justice

Procedural Fairness