Crotty Dental (Migration)

[2019] AATA 5138

Crotty Dental (Migration) [2019] AATA 5138 (13 August 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Crotty Dental

CASE NUMBER:  1722705

DIBP REFERENCE(S):  BCC2017/1018555

MEMBER:C. Packer

DATE:13 August 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 13 August 2019 at 1:14pm

CATCHWORDS
MIGRATION – Employer Nomination – approval of nominated position – Direct Entry Nomination stream – Dentist – genuine need – employment contract – PAYG payment summaries – Regional certifying body – Tasmanian Department of State Growth – decision under review set aside

LEGISLATION
Migration Regulations 1994 (Cth), r 5.19

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 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).

2. The applicant applied for approval on 15 March 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).

3. 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

4. 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)

5. 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 15 March 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).

6. 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, the application identified the need for a Dentist [ANZSCO 252312] in the business with a remuneration package set out in the employment contract signed 27 March 2017, and under their direct control. As well, the Tasmanian Department of State Growth advised in Form 1404 on 27 June 2017 that it is ‘satisfied’ about the matters in r.5.19(4)(h)(ii)(B). Subsequently, PAYG payment summaries show the visa applicant has worked with the nominator as a dentist in a period from March to 30 June 2017, and then in the 2018 and 2019 financial years. A new employment contract has been signed on 1 April 2019, and the business owner’s statement of 2 August 2019 states the visa applicant remains employed with Crotty Dental.

7. In sum, based on the material before the Tribunal, the Tribunal is satisfied the application identified a need for the nominator to employ a paid employee to work in the position under their direct control.

8. 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)

9. 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 Dental practice in Hobart), based upon:

   ·A letter from accountants of 31 July 2019 advises Dr Crotty operates as a sole trader, and so a business specific financial report is not prepared. Rather, they prepare an Individual tax return that includes the dental surgery. 

   ·A Professional Business Income schedule 2018 shows high receipts from the business, and high wages paid.

   ·A Job profit and loss statement 2019 shows high receipts from the business, and high wages paid.

   ·GST statements from July 2017 to June 2019; ATO Activity statements and PAYG tax withheld from July 2017 to May 2019.

   ·Promotional material concerning the business that now uses the business name Crotty Dental (rather than the registered name of Hobart Dental) and staff. A list of dentists and an organisational chart.

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

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

11. 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)

12. 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.

13. A contract of employment dated 27 March 2017 with the visa applicant shows he was to be employed as a direct employee, as a General Dentist, on a remuneration package, fulltime for 38 hours per week. A job offer letter dated 2 March 2017 shows the position was to commence on 21 March 2017. PAYG payment summaries show the visa applicant has subsequently worked with the nominator in a period from March to 30 June 2017, and then in the 2018 and 2019 financial years. A new employment contract has been signed on 1 April 2019 and the terms and conditions of that employment do not expressly exclude the possibility of an extension. The business owner’s statement of 2 August 2019 states the visa applicant remains employed with Crotty Dental. In sum, based on the material before it, the Tribunal finds the visa applicant has already been employed for over two years and will 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.

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

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

15. 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.

16. The Tasmanian Department of State Growth has advised in Form 1404 on 27 June 2017 that the Tasmania Regional Certifying Body is ‘satisfied’ about the matters mentioned in paragraph (e). The applicant provided evidence of job ads they made seeking a Dentist in February 2017. The business owner’s statement of 2 August 2019 states that she had served as Chair of the Dental Board of Tasmania and in her experience and to her knowledge it has been difficult to attract mainland dentists to Tasmania.

17. The contract of employment dated 1 April 2019 with the visa applicant shows he is to be employed as a full time permanent ongoing General Dentist, 38 hours weekly, on a base salary of $90,000 inclusive of superannuation and leave loading. The visa applicant’s PAYG payment summary June 2019 shows he had been paid significantly more than the base salary. 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.

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

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

19. 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.

20. Accordingly the requirements of r.5.19(4)(f) are met.

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

21. 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.

22. 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)

23. Regulation 5.19(4)(h) contains a number of alternative requirements. In this case, the applicant seeks to satisfy 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 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.

24. A form 1404 Regional Sponsored Migration Scheme- Regional Certifying Body advice dated and stamped on 27 June 2017 shows the Tasmanian Department of State Growth assessed the job title for proposed nominee of Dentist ANZSCO 252312 in the nominating business. That Department is the correct Regional certifying body.

25. Based on the information before the Tribunal I find:

    ·(A) The position and business are located in Hobart in Tasmania that is ‘regional Australia’. 

    ·(B) The Tasmanian Department of State Growth has advised in Form 1404 on 27 June 2017 that it is ‘satisfied’ about the matters in sub-subparagraph (B). Based on the material before the Tribunal, the Tribunal is satisfied there is a genuine need to employ a paid employee to work in the position under the nominator’s direct control.

    ·(C) The Tasmanian Department of State Growth has advised in Form 1404 on 27 June 2017 that it is ‘satisfied’ about the matters in sub-subparagraph (C). The nominator provided ads for a dentist from February 2017. Based on the material before the Tribunal, the Tribunal is satisfied the position cannot be filled by an Australian citizen or permanent resident who is living in the same local area.

    ·(D) The tasks to be performed in the position as set out in the position description correspond to the tasks of a Dentist ANZSCO 252312, which is an occupation specified by the relevant instrument.

    ·(DA) Based on the material before the Tribunal, the Tribunal is satisfied there are no additional applicability requirements for that occupation.

    ·(E) An organisation chart, business documents and promotional material show the business and the nominated occupation are located in Hobart. Based on the material before the Tribunal, the Tribunal is satisfied the business operated by the nominator is located at Hobart.

    ·(F) The Tasmanian Department of State Growth has advised in Form 1404 on 27 June 2017 that it is ‘satisfied’ about the matters mentioned in paragraph (e) and sub-subparagraphs (B) and (C).

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

    Conclusion

27. 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

28. 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).