AKA Services PTY LTD (Migration)

AKA Services PTY LTD (Migration) [2019] AATA 4583 (4 October 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  AKA Services PTY LTD
CASE NUMBER:  1721831
DIBP REFERENCE(S):  BCC2017/773238
MEMBER:C. Packer
DATE:4 October 2019
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.
Statement made on 04 October 2019 at 10:57am

CATCHWORDS
MIGRATION – Employer Nomination – approval of nominated position – Direct Entry Nomination – General Practitioner – genuine need – nominee’s period of employment in the business – difficulty of recruiting and retaining medical staff in rural location – decision under review set aside
LEGISLATION
Migration Regulations 1994 (Cth), 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 Immigration on 4 September 2017 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 27 February 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 (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 the Direct Entry Nomination stream. The delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19(4)(a)(ii).
The applicant was represented in relation to the review by its registered migration agent.
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 Tribunal finds the application made on 27 February 2017 and Departmental documents show the application was in the approved form, accompanied by the prescribed fee, and included 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. In this regard, a submission dated 7 August 2019 explained the current and future employment arrangements of the visa applicant:
The need for a paid “employee” to work under the nominator’s “direct control” is required under this subregulation. Generally, doctors in Australia can be employed as contractors or employees, depending on the agreement between the two parties. In this case, Dr Diener has been and still is employed as an independent contractor with the nominator, having started from August 2015 on a 457 Visa as a dependent. She and her family wished to settle down in the local community as she had long become an integral part of the medical team there. Both parties, the nominator Quinn Street Clinic and the nominee Dr Diener, were happy to agree on an employee-employer type of employment contract that will start when Dr Diener’s PR is approved. Thus, an Employment Contract subject to PR approval was signed and submitted with the nomination application (under Direct Entry stream) to the department. This reflects the following points that satisfy both parties: (1) The nominator would continue to have the right candidate to fill the rural/regional position for which it had been difficult to recruit candidates; (2) the nominator could retain the nominee in this permanent full time position by nominating her for PR; (3) under this employment contract (as employee, not independent contractor), the nominator would have direct control, which was particularly important and desirable when assigning on-call duties, rostered for weekends and public holidays, visiting nursing homes and serving as VMO in the local hospital (letters from NDHS attached) and other arrangements; (4) the nominee is happy to have the nominator’s support for PR so they could settle down permanently. This is beneficial to the clinic, the nominee and the local community.
The submission explains how the visa applicant has worked as a General Practitioner [ANZSCO 253111] in the business since August 2015 whilst holding a 457 visa. Other documents support this submission: a Letter of offer and employment contract dated 24 June 2014; her letter of acceptance dated 7 July 2015; tax invoices showing her remuneration in 2017, 2018 and 2019. The visa applicant’s long employment in the business strongly suggests there is a need for the nominator to employ a paid employee to work in the position.
Other letters discuss the difficulty of recruiting and retaining medical staff members in a rural location such as Numurkah 3636: letter dated 6 September 2017 from Numurkah District Health Service; submission of 6 September 2017. The submission also explains the recruitment efforts undertaken to employ more General Practitioners and the vital role the visa applicant has in the business and the local regional community since 2017.
The application identified the need for a General Practitioner [ANZSCO 253111] in the business with a remuneration package set out in the employment contract signed 14 February 2017, and under their direct control. The contract identifies a high remuneration package and would commence upon the visa applicant obtaining ‘permanent residency status’. In sum, the Tribunal is satisfied the application has identified a need for the nominator to employ a paid employee to work in the position under their direct control.
Accordingly, the requirements in r.5.19(4)(a) are 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. The Tribunal finds the applicant is actively, lawfully and directly operating a business in Australia (a Medical clinic in Numurkah), based upon:
·Letter dated 26 July 2019 from the Practice Principal
·The current registration of the business (ASIC extract) and business name registration
·Taxation estimate 6/2018, by consultants
·Company tax return 6/2018
·Income statement for 6/2018, that shows high wage bill and high income
·Tax invoices that show the remuneration paid to the visa applicant from 2017-2019
·GST statements from July 2017 to March 2019
Accordingly, the requirements in r.5.19(4)(b) are 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. However, the information before the Tribunal does not show the business activities include those relating to labour hire to an unrelated business. 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 application identified the need for a General Practitioner [ANZSCO 253111] in the business. The employment contract signed 14 February 2017 identifies a high remuneration package and would commence upon the visa applicant obtaining ‘permanent residency status’. In sum, based on the material before it, the Tribunal finds the visa applicant would be employed in the nominated position for at least two years full time, and the terms and conditions of that employment do not expressly exclude the possibility of an extension.
Accordingly, the requirements in r.5.19(4)(d) are 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.
The contract of employment signed 14 February 2017 shows the employment is to be full-time with the hours to be worked. The remuneration package shows a high salary plus superannuation. A letter dated 17 February 2017 from Accountants and Business Advisors explained how the salary offered was greater than that set out for a Senior Career Medical Practitioner in The Medical Practitioner’s Award 2010. The Tribunal is satisfied, based on material before it, that the terms and conditions applicable to the position will be no less favourable than those that are/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)
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. Based on information before the Tribunal there is no adverse information known to the Department about the nominator or a person ‘associated with’ the nominator.
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. Based on information before the Tribunal there is no adverse information that suggests the applicant does not have 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.
Accordingly the requirements of r.5.19(4)(g) are met.
Tasks of the position genuine need for the position and training requirements 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 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, the occupation is applicable to the proposed employee in accordance with any specifications made in that instrument, and specified training requirements are 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 specified in the relevant legislative instrument, the occupation is applicable to the proposed employee in accordance with the specification of the occupation and that a regional certifying body has advised the Minister about certain matters relating to the position. (r.5.19(4)(h)(ii))
The nominator does not seek to satisfy r.5.19(4)(h)(ii).
For the purposes of r.5.19(4)(h)(i)(A), legislative instrument IMMI 16/059 specifies the occupation of General Practitioner [ANZSCO 253111]. Based on the material before it, the Tribunal is satisfied both that the tasks of the position correspond to the tasks of that occupation, and that occupation is applicable to the visa applicant (who has been performing the tasks of a General Practitioner whilst holding a 457 visa). Accordingly, r.5.19(4)(h)(i)(A) is met.
The nominator’s business has operated for at least 12 months. For the purposes of r.5.19(4)(h)(i)(B), legislative instrument IMMI 13/030 specifies the Training Benchmarks that include:
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.
Expenditure that can count towards this benchmark includes:
 paying for a formal course of study for the business’s employees who are Australian
citizens and Australian permanent residents or for TAFE or University students, as
part of the organisational training strategy
 funding a scholarship in a formal course of study approved under the Australian
Qualifications Framework for the business’s employees who are Australian citizens
and Australian permanent residents or, for TAFE or University students, as part of
the organisational training strategy
 employment of apprentices, trainees or recent graduates on an ongoing basis in
numbers proportionate to the size of the business
 employment of a person who trains the business’s Australian employees who are
Australian citizens and Australian permanent residents as a key part of their job
 evidence of payment of external providers to deliver training for Australian
employees
 on-the-job training that is structured with a timeframe and clearly identified
increase in the skills at each stage, and demonstrating:
 the learning outcomes of the employee at each stage;
 how the progress of the employee will be monitored and assessed;
 how the program will provide additional and enhanced skills;
 the use of qualified trainers to develop the program and set
assessments; and
 the number of people participating and their skill/occupation
Federal Register of Legislative Instruments F2013L01236
Expenditure that cannot count towards this benchmark includes training that is:
 delivered on-the-job, other than on the job training which meets the requirements
outlined above under the heading ‘expenditure that can count towards this
benchmark’
 confined to only one or a few aspects of the businesses broader operations, unless
the training is in the primary business activity
 only undertaken by persons who are not Australian citizens or permanent residents
 only undertaken by persons who are principals in the business or their family
members
 only relating to a very low skill level having regard to the characteristic and size of the business.
The applicant provided their Payroll Activity summary dated 30 September 2019 for the past 12 months from 1 October 2018 to 30 September 2019. This showed wages amounting to $574,702.54 in the 12 month period.
The applicant also provided a copy of a receipt from Monash University dated 25 September 2019 that shows the applicant (Quinn Street Clinic Numurkah) paid $13,000 into the Achieving Potential Scholarship Fund- Medicine. The Monash University fund satisfies the Training Benchmark:
· funding a scholarship in a formal course of study approved under the Australian Qualifications Framework for the business’s employees who are Australian citizens and Australian permanent residents or, for TAFE or University students, as part of the organisational training strategy
As well, the sum of $13,000 is more than 2% ($11,494) of the payroll of the business over a 12 month period. In sum, the Tribunal finds there has been 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. The Tribunal finds r.5.19(4)(h)(i)(B) is satisfied. Accordingly the requirements of r.5.19(4)(h) are met.
Conclusion
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.
C. Packer
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)       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;
(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 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).

[2019] AATA 4583

4 October 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction