FRANGIPANI GENTLE CARE GROUP HOMES PTY LTD (Migration)

[2020] AATA 5809

FRANGIPANI GENTLE CARE GROUP HOMES PTY LTD (Migration) [2020] AATA 5809 (20 November 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Frangipani Gentle Care Group Homes Pty Ltd

CASE NUMBER:  1804069

HOME AFFAIRS REFERENCE(S):          BCC2017/3484178

MEMBER:Wan Shum

DATE:20 November 2020

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision under review to refuse the nomination.

Statement made on 20 November 2020 at 12:43pm

CATCHWORDS
MIGRATION – Employer Nomination – approval of nominated position – Direct Entry Nomination – Registered Nurse - Aged Care – identification of need – active and lawful operation – financial capacity to maintain employment – location of position ­– training requirements – decision under review affirmed

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 Home Affairs on 25 January 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).

2. The applicant applied for approval on 23 September 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).

3. The application for approval in this case was made by Frangipani Gentle Care Group Homes Pty Ltd (the nominator) on 23 September 2017 under the Direct Entry nomination stream for the position of ‘Registered Nurse nec’. The person identified for the position was Ms Marie Isabel Nabunat. She lodged an application for a Subclass 186 visa in respect of this nomination. The position was subsequently corrected to ‘Registered Nurse – Aged Care’.

4. The delegate refused the application on the basis that the nomination did not satisfy r.5.19(4)(a)(ii) of the Regulations because insufficient evidence had been provided to demonstrate that there was a need for the position. Ms Nabunat’s visa was then refused because there was no approved nomination.

5. Both parties have sought review of these decisions.

6. Ms Olivia Darcy gave evidence on behalf of the nominator at a hearing by phone on 28 October 2020 in her capacity as the Administration/Human Resources Coordinator. The Tribunal also received oral evidence from Ms Nabunat by videoconference using Microsoft Teams.

7. For the following reasons, the Tribunal has decided to affirm the decision under review to refuse the nomination.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. 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.

9. The nominator operated a business delivering aged care and disability services, initially delivering these services to clients residing in a group home located at Castle Hill. The business was then moved to the Central Coast, where their clients lived either in a group home or a nearby villa complex. However, it became apparent during the hearing that the business does not currently deliver any services. Ms Darcy referred to it as a transition and that the plan was for the services to be again delivered in Sydney. However, she was unable to give any timeframe for this occurring, explaining that due to COVID19, the plans had been delayed. Ms Darcy informed the Tribunal at the hearing that the nominee had not been working for the nominator for some time, but they were willing to employer her again. While there is no requirement under the ENS that the identified person be working for the nominator, there appeared to a number of requirements which did not appear to be met. The Tribunal referred to explained that it had concerns as to whether the business was actively operating, whether the business would be able to employ the nominee for at least 2 years full-time and that it appeared that the training requirements of Australian citizens or permanent residents had not been met.

10. The Tribunal requested the following information to be provided by 11 November 2020:

    ·BAS for the past 12 months with evidence submitted to the ATO

    ·Bank statements for the past 12 months

    ·Current Organisation Chart with employee names and residency status

    ·Evidence that training obligations are met. Please note that if relying on 'training benchmark B', please provide evidence that training was provided to Australian citizens and/or permanent residents.

    ·Payroll for a recent 12-month period (i.e. last financial year or 12 months to 30 September 2020)

    ·Further information in relation to potential labour hire activities.

11. The Tribunal received a request from Ms Darcy to allow until 17 November 2020 to provide the information as she had been unable to consult the accountant yet. The Tribunal agreed to the request.

12. On 19 November 2020, the Tribunal received an email stating “[p]lease find attached files Bank Statement” and copies of the nominator’s bank statements for the period from 21 March 2018 to 25 February 2019. None of the other information was received and there was no accompanying explanation for the missing information or any request for further time. In these circumstances, where the Tribunal was informed at the hearing that the business is not currently providing services, it has proceeded to a decision on the information before it.

13. The bank statements reveal that the nominator was in receipt of regular NDIS payments during the period of 21 March 2018 to 25 February 2019, some of which have been highlighted, as well as payments described as “PROTECTIVEINCOME [NAME]” which is likely payments from clients who have a Court appointed guardian, the NSW Trustee and Guardian.

14. The Tribunal acknowledges that at the time the application was lodged, it appeared that the nominator was actively and lawfully operating a business in Australia. It is also aware that the review process has taken some time to reach this point. However, it is necessary for the nominator to meet the requirements of r.5.19 as at the time of the Tribunal’s decision on review. While Ms Darcy claims to be still working for the nominator on a part-time basis, she advised that the business was not currently, and had not been for at least one year, delivering any services to clients. She explained that following the resignation of the CEO, the Director had found it difficult to manage the business himself. They had ceased operations in the Central Coast from around November 2019 and the Director took some time off and returned to the office in January 2020, where he then started contacting real estate agents in February to find a suitable location in Sydney. But this has stalled after mid-March due to the COVID19 outbreak. While the Tribunal is cognisant that the COVID19 outbreak has negatively impacted some businesses, the business had ceased delivering services over a year ago, a few months prior to the outbreak. Given that the business is not currently operating, it cannot be said that the nominator is actively operating a business in Australia as required by r.5.19(4)(b).

15. Furthermore, r.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. While Ms Darcy claimed that they wished to employ the nominee, no information has been provided as to the current financial position of the business. Given that there is no evidence of any income or even any address for employment, the Tribunal is not satisfied that the nominee will be employed in the nominated position for at least 2 years full time.

16. Finally, the Tribunal notes that r.5.19(4)(h) contains a number of alternative requirements which depend on the location of the position. When making the application, the position was to be located at Castle Hill, a suburb of Sydney. However, during the hearing, Ms Darcy explained that after operating there for 8 months, the business rented properties on the Central Coast and delivered services at those properties until November 2019. Ms Darcy claimed that the Director had made a decision to return to Sydney and had been looking for suitable properties but that they were not currently operating from any location. The Tribunal has proceeded to consider whether r.5.19(4)(h)(i) has been met, as Sydney was the original location identified in the application and there is no RCB advice as required by r.5.19(4)(h)(ii)(F).

17. For a position that is not located in regional Australia, as discussed at the hearing with Ms Darcy, it is necessary for the nominator to demonstrate that the training requirements have been met. No such evidence has been provided.

18. On the limited evidence provided, the Tribunal finds that the requirements of r.5.19(4)(b), r.5.19(4)(d) and r.5.19(4)(h) are not met at the time of this decision.

19. For the above reasons the Tribunal is not satisfied that the nominator meets the requirements of r.5.19(4). The nominator 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

20. The Tribunal affirms the decision under review to refuse the nomination.

    Wan Shum
    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).