Gungahlin Medical & Surgical Centre Pty Ltd (Migration)

Gungahlin Medical & Surgical Centre Pty Ltd (Migration) [2020] AATA 3152 (29 July 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANT:  Gungahlin Medical & Surgical Centre Pty Ltd
VISA APPLICANTS:  Mrs Sonia Jahan
Mr Sm Masum
CASE NUMBER:  1906695
DIBP REFERENCE(S):  BCC2016/4164053 PNJ
MEMBER:Mr S Norman
DATE:29 July 2020
PLACE OF DECISION:  Sydney
DECISION:The Tribunal remits the applications for Temporary Business Entry (Class UC) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 457 visa:
·cl.457.223(4)(da) of Schedule 2 to the Regulations.

Statement made on 29 July 2020 at 10:00am
CATCHWORDS
MIGRATION – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – standard business sponsor stream – skills, qualifications and employment background to perform tasks of nominated occupation – size and scope of employer in home country – applicant’s education, employment tasks and length of relevant experience – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 65, 359(2)
Migration Regulations 1994 (Cth), Schedule 2, cl 457.223(4)(da)
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision of a delegate of the Minister for Immigration to refuse to grant the visa applicants Temporary Business Entry (Class UC) visas under s.65 of the Migration Act 1958 (the Act). The Department delegate’s decision was lodged with the Tribunal.
The visa applicants applied for the visa on 9 December 2016. At the time the visa application was lodged, Class UC contained Subclass 457. The criteria for a Subclass 457 visa are set out in Part 457 of Schedule 2 to the Migration Regulations 1994 (the Regulations). One of the criteria to be satisfied at the time of decision is cl.457.223 which requires the visa applicant to satisfy one of the alternative ‘streams’ for the visa. One of these streams is contained in cl.457.223(4) which is set out in the attachment to this decision. In the present case, specific claims have been made against cl.457.223(4) which applies to sponsorship for employment in an occupation by a standard business sponsor. No claims have been made in respect of the other alternative streams in cl.457.223.
The delegate refused to grant the visas on 28 February 2019 on the basis that cl.457.223(4)(da) was not met.
The review applicant (represented by Dr Rahman), appeared before the Tribunal on 23 June 2020 to give evidence and present arguments. The Tribunal also received oral evidence from the associated Subclass 457 visa applicant in Bangladesh (Ms Sonia JAHAN – Dr Rahman’s maternal niece). The Tribunal hearing was conducted with the assistance of an interpreter in the Bangla and English languages. The review applicant was represented in relation to the review by its registered migration agent.
Near the end of the abovementioned hearing, the review applicant was disconnected from the hearing and the Tribunal had considered whether to re-schedule another hearing. However, after then considering all the evidence (including that obtained in the first hearing), the Tribunal decided to make a decision on the information before it.
The Tribunal had exercised its discretion to hold the hearing by telephone. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of the matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone. After having discussed the evidence and submissions at hearing, the Tribunal is satisfied the applicant was given a fair opportunity to give evidence and present arguments.
For the following reasons, the Tribunal has remitted the matter for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The visa applicants applied for the Temporary Business Entry (Class UC) visas on 9 December 2016. The primary visa applicant was nominated by Gungahlin Medical & Surgical Centre Pty Ltd, the nominated occupation was Health Information Manager (ANZSCO: 224213), and the base rate of pay per annum was said to be $80,000.[1]
[1] PDF – p.16 (‘PDF’ refers to the merged Department file on the Tribunal CASEMATE database).
Requirement for an approved nomination
As noted above, the delegate refused to grant the visas on 28 February 2019 on the basis that cl.457.223(4)(da) was not met. Clause 457.223(4)(da) stated:
The applicant has the skills, qualifications and employment background that the Minister considers necessary to perform the tasks of the nominated occupation.
On 10 December 2016, the primary visa applicant (the ‘visa applicant’) provided the following evidence in support of the visa application:
·     Work reference from Lubana General Hospital (PVT) Ltd dated 29 September 2016 - where she had been employed since 1 June 2011[2] (and where it was claimed the visa applicant was employed as a Health Information Manager[3])
·     Bachelor of Arts[4] (BA) (certificate and transcript)
·     Master of Arts[5] (MA) (certificate and transcript)
·     Visa applicant’s resume[6]
·     Visa applicant’s Marriage Certificate[7]
[2] PDF – p.20.
[3] See also PDF – p.16.
[4] PDF – p.29.
[5] PDF – p.21.
[6] PDF – from p.40.
[7] PDF – p.22.
The ANZSCO description of Health and Information Manager (ANZSCO: 224213), provides (in part):
Indicative Skill Level:
In Australia and New Zealand:
Most occupations in this unit group have a level of skill commensurate with a bachelor degree or higher qualification. At least five years of relevant experience may substitute for the formal qualification. In some instances relevant experience and/or on-the-job training may be required in addition to the formal qualification (ANZSCO Skill Level 1).
…..
224213 HEALTH INFORMATION MANAGER
Alternative Title:
Medical Records Administrator
Plans, develops, implements and manages health information services, such as patient information systems, and clinical and administrative data, to meet the medical, legal, ethical and administrative requirements of health care delivery.
Skill Level: 1
Specialisations:
Casemix Coordinator
Clinical Trial Data Manager
Health Data Administrator
The Tribunal issued a s.359(2) letter dated 24 March 2020, and invited the applicant to provide updated information. By migration agent letter of 22 October 2018 (sic – lodged with the Tribunal 6 April 2020), the agent said (words to the effect):
·     the delegate’s decision related to the associated nominator, contained errors
·     The nominee’s responsibilities for the nominated position of Health Information Manager will include:
·ensuring the clinic complies with the Department of Human Services eHealth requirements for storage of patients’ electronic records
·manage security codes and software to protect patient data & records, design,
·implement and medical record and information forms
·develop & manage central record systems & database including cataloguing, clinical coding & classification
·evaluating clinic’s record-keeping & monitor performance & update as required
·optimises systems as required, implement procedures for archiving data
·preserve or archive records in files and databases for administrative, legal and patient use.
·     A document titled Health Information Workforce 2015 Summit
·     Gungahlin staff list – 20 staff
·     Financial statement year ending 30 June 2017 – profit after income tax 2017 - $178,792 / and for 2016 - $117,571
·     BAS – July to September 2017 – total sales $177,415 / total salary wages and other payments $57,655
·     ASIC company extract / Current Company extract
·     Undated document titled Health Information Manager from Jobs & Skills WA (and other information about Health Information Managers)
By submissions of 14 June 2020, and on behalf of the applicant the following was lodged:
· Architect letter dated 1 April 2020 – providing copies of approved plans
· Various other plans
That being said, in their decision the delegate said the work reference from Lubana General Hospital had been submitted to the Australian High Commission in Dhaka for verification of authenticity. On 20 March 2017, advice was received from the Australian High Commission in Dhaka that the work reference from Lubana General Hospital was not genuine. The Australian High Commission stated (in part):
The High Commission advises that the Lubana General Hospital appears to be a small private clinic with minimal health facilities relative to an international standard hospital.
The post also advises that in Bangladesh, clinics and small hospitals do not employ Health Information Managers or positions commensurate with this occupation. Additionally, there are serious concerns that the duties and responsibilities associated with the claimed employment are not listed on the reference letter, which may indicate that the information provided to the Department to demonstrate the applicant skills is not a true representation of the applicant’s employment experience.
By agent email dated 7 April 2020, it was stated:
· Lubana Hospital is not a small private clinic but a six-storey medical facility – Google reference supplied (and which had then been accessed by the Tribunal)
· Lubana hospital provides full range of medical services including cardiac bypass surgery, gynaecological, obstetrics, Gen medical services, neurology, gastroenterology, ear, nose and throat, plastic surgery, general surgery, dental, dermatology et cetera - it has operating theatres, has eight wards and 200 beds - and it has 13 Gen practitioners, 38 junior doctors, 132 nurses and administrative staff of 25 (amongst others)
The Tribunal referred to the work reference from Lubana General Hospital dated 29 September 2016, and the address for the Hospital provided there. When then looking up that address in Google Maps, the address on the work reference appeared to be the same as the address on Google Maps (and the same as that provided by the agent). Further, the Lubana General Hospital appeared to be a six-storey facility with ‘General Hospital’ and ‘Cardiac Centre’ clearly stated on the front of the building.
The Lubana General Hospital did not appear to be a small general hospital, and as a consequence, it is plausible it would have employed a Health Information Manager, or a person who engaged in a position similar to that of a Health Information Manager.
As for staffing, the Tribunal was unable to independently corroborate the evidence of staffing - though one source identified the following medical practitioners at the hospital:
· All - 43
· Cardiology – 8 / Dental – 2 / Dermatology – 2 / Endocrinology – 2 / Gynecology – 5 / Nefrology – 1 / Neurology – 4 / ENT – 2 / Pediatric – 7 / Gastro-Enterology – 0 / Surgery – 7 / Urology – 1 / Physiotherapy – 1[8]
[8] Lubana General Hospital (Pvt) Ltd, , accessed 18 June 2020.
Given the number of medical practitioners referred to, it also appeared plausible that other staff (including a Health Information Manager) would be employed to service the medical staff and the hospital management.
When discussed at hearing, the applicant was not sure when the Hospital was built. Evidence obtained by the Tribunal included that the ‘Facility Registry, Government of People's Republic of Bangladesh, Ministry of Health and Family Welfare, Lubana General Hospital’ indicated the hospital was ‘established in 2005’.[9] Other evidence indicated that the Lubana General Hospital (Pvt.) Ltd. in Uttara, Dhaka had been ‘in business since 2018’.[10]
[9] See , accessed 18 June 2020.
[10] See MOUMAACHI, , accessed 18 June 2020.
It is possible the Hospital evolved from a small private clinic (as indicated by officers from the Australian High Commission) to a more substantial hospital, but the Tribunal had not been able to independently establish when this had taken place. The Tribunal proposes to give the applicant the benefit of the doubt and accept the Lubana General Hospital was not a small private clinic, and would have the capacity to engage a Health Information Manager from 1 June 2011[11] to 29 September 2016 (as claimed in the work reference letter from Lubana General Hospital[12]).
[11] PDF – p.20.
[12] See also PDF – p.16.
Next, the delegate continued that the visa applicant’s transcripts of their BA and MA do not provide confirmation that the applicant passed courses related to “those of a Health Information Manager”. The delegate noted the transcript of the BA only stated “the [visa] applicant studied Theory” (though Course codes were provided[13]). Further, the transcript of the MA, also stated “the [visa] applicant studied Theory”.[14]
[13] PDF – p.31.
[14] PDF – p.28.
Regarding the visa applicant, and by submissions lodged with the Tribunal on 6 April 2020, the following evidence of academic attainment was lodged:
·     Bachelor of Arts certificate dated 6 July 2014 (and transcript), National University, Bangladesh
·     Master of Arts certificate dated 1 February 2016 (and transcript), National University, Bangladesh
·     Computer Training certificate (February 2016)
·     Work reference from Lubana Hospital dated 28 September 2016 - referring to the visa applicant having worked full-time as a Health Information Manager at the hospital since 1 June 2011
·     Undated resume for the visa applicant. Amongst other things, that said:
Employment Period: From 1/June/2011 to till now.
Major Responsibilities were:
Designing and maintaining medical records in the health information system
Collecting and generating patients medical records and prepare reports for doctors and clinicians
Using medical and clinical knowledge and skills of disease and surgical procedures in order to add them to the system and monitor these systems
Ensuring privacy and confidentiality of patients personal and medical information
Preparing budgets and ordering necessary medical equipment
Updating information for efficient and effective communication with patients, health professionals, specialists, and health funds
Enhancing health center’s reputation by accepting ownership for accomplishing new and different requests and exploring opportunities to add value to job accomplishments.
When discussed at the hearing, the visa applicant advised she had ‘majored’ in Literature (mainly English language writers) for her BA; and she had ‘majored’ in English Language for her MA. Accordingly, and based on the new evidence lodged, the Tribunal accepts the visa applicant completed the tertiary education she claimed. However, and after discussing same, and with one exception, the Tribunal was not satisfied this tertiary education was relevant to the position of Health Information Manager. The one exception was the Computer Training Certificate – which the Tribunal understands is not a Bachelor level qualification.
Next, the delegate then considered the applicant’s resume, but did not accept this provided any “further, significant information”. The delegate noted that it did list “Major Responsibilities” for the applicant’s claimed employment at Lubana General Hospital. These responsibilities included:
· using medical and clinical knowledge and skills of disease and surgical procedures in order to add them to the system and monitor the systems
However, the delegate noted the applicant did not study medicine or a related course. It therefore appeared to be inconsistent, in the absence of further evidence, that the applicant claims to have medical and clinical knowledge and skills of disease and surgical procedures. However, the Tribunal accepts that with relevant experience, a person employed as a Health Information Manager, may have the capacity to assist medical staff by noting (not diagnosing) issues and ‘adding them to a system/s and monitor those system/s’.
On 1 June 2017,[15] the Department provided the applicant an opportunity to comment on the advice of the Australian High Commission in Dhaka. The delegate then noted that at the time and date of their decision, the applicant had not provided a formal response to the Department. After then considering all the evidence the delegate found the evidence of the qualifications and competencies and employment background lodged by the applicant were “inconsistent with the level of qualifications and experience specified in ANZSCO as they are required to perform the nominated occupation of Health Information Manager”.
[15] PDF – from p.45.
That being said, the ANZSCO description did indicate that ‘at least five years of relevant experience may substitute for the formal qualification.’
At hearing and when discussed, the visa applicant said she commenced her BA in mid-2007 and attended that course full time until mid-2014 (at which time she was awarded the BA certificate). She said she attended classes for her BA, between 7am-1pm and then she attended an afternoon session (possibly between 3-5pm). The course work required her to be present at the University three full days per week. The visa applicant then accepted that she did not work at the Hospital on the Islamic Holy Day (Friday). Therefore, and though the visa applicant commenced to work at the hospital around 2007, the visa applicant commenced her employment as a Health Information Manager at the Lubana General Hospital for three days per week from June 2011 (after which she also completed a probation period). She explained her shifts were from 9/10am to 5pm; or from 3pm to 10pm. The Tribunal noted this was part time employment and this had not been refuted at the first hearing.
However, given the work constituted full time hours for at least three days per week, and in the absence of any policy direction that suggested this to be inappropriate, the Tribunal is satisfied that in this case, the amount of work actually being done, was commensurate with at least five years of relevant experience.
When then asked, the visa applicant explained that her work as a Health Information Manager at the Lubana General Hospital included:
·     Recording details of patients on their arrival (ordinarily undertaken by the visa applicant’s assistants who the visa applicant supervised)
·     The patient was then assessed by a Doctor and further records (including the diagnosis) were recorded
·     If the patient was to be admitted to the hospital, then records of this were made
·     Create hard copy files
The Tribunal said this appeared to indicate the visa applicant had only been engaged in data entry. When prompted by the Tribunal, the visa applicant said she would also generate reports as required by Doctors and Hospital management. After then having discussed all issues, the Tribunal accepts the applicant engaged in the work she claimed.
As noted herein, cl.457.223(da) requires the applicant to have the skills, qualifications and employment background to perform tasks in the nominated position. Based on the above evidence and findings, the Tribunal accepts the applicant has successfully completed tertiary education in Bangladesh, and importantly, that she has the the requisite skills (based on her length of service in the claimed position in Lubana General Hospital) to satisfy the relevant skills criteria in ANZSCO. Therefore, the Tribunal accepts the applicant satisfies the requirements of cl.457.223(4)(da).
Given the findings above, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 457 visa.
DECISION

The Tribunal remits the applications for Temporary Business Entry (Class UC) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 457 visa:
·cl.457.223(4)(da) of Schedule 2 to the Regulations.
Mr S Norman
Member

ATTACHMENT - CLAUSE 457.223 (EXTRACT)
457.223
…
Standard business sponsorship
…
(4)The applicant meets the requirements of this subclause if:
(a)each of the following applies:
(i)    a nomination of an occupation in relation to the applicant has been approved under section 140GB of the Act;
(ii)     the nomination was made by a person who was a standard business sponsor at the time the nomination was approved;
(iii)    the approval of the nomination has not ceased as provided for in regulation 2.75; and
(aa)the nominated occupation is specified in an instrument in writing for paragraph 2.72 (10) (a) or (aa) that is in effect; and
(ba)either:
(i)    the nominated occupation is specified by the Minister in an instrument in writing for this subparagraph; or
(ii)     each of the following applies:
(A)the applicant is employed to work in the nominated occupation;
(B)if the person who made the approved nomination met paragraph 2.59(d) or (e), or paragraph 2.68(e) or (f), in the person’s most recent approval as a standard business sponsor, the applicant is employed to work in a position in the person’s business or in a business of an associated entity of the person;
(C)if the person who made the approved nomination met paragraph 2.59(h), or paragraph 2.68(i), in the person’s most recent approval as a standard business sponsor, the applicant is employed to work in a position in the person’s business; and
(d)the Minister is satisfied that:
(i)    the applicant’s intention to perform the occupation is genuine; and
(ii)     the position associated with the nominated occupation is genuine; and
(da)the applicant has the skills, qualifications and employment background that the Minister considers necessary to perform the tasks of the nominated occupation; and
(e)if the Minister requires the applicant to demonstrate that he or she has the skills that are necessary to perform the occupation — the applicant demonstrates that he or she has those skills in the manner specified by the Minister; and
(eb)if:
(i)    the applicant is not an exempt applicant; and
(ii)     subclause (6) does not apply to the applicant;
the applicant:
(iv)    has undertaken a language test specified by the Minister in a legislative instrument for this subparagraph; and
(v)     achieved within the period specified by the Minister in the instrument, in a single attempt at the test, the score specified by the Minister in the instrument; and
(ec)if the Minister requires the applicant to demonstrate his or her English language proficiency — the applicant demonstrates his or her English language proficiency in the manner specified by the Minister; and
(f)either:
(i)    there is no adverse information known to Immigration about the person who made the approved nomination mentioned in paragraph (a) or a person associated with that person; or
(ii)     it is reasonable to disregard any adverse information known to Immigration about the person who made the approved nomination mentioned in paragraph (a) or a person associated with that person.
…
(6)This subclause applies to an applicant if:
(a)the base rate of pay for the applicant, under the terms and conditions of employment about which the Minister was last satisfied for paragraph 2.72(10)(c), is at least the level of salary worked out in the way specified by the Minister in an instrument in writing for this paragraph; and
(b)the Minister considers that granting a Subclass 457 visa to the applicant would be in the interests of Australia.
…
(11)In subclause (4):
exempt applicant means an applicant who is in a class of applicants specified by the Minister in an instrument in writing for this subclause.

[2020] AATA 3152

29 July 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Statutory Construction

Procedural Fairness

Remedies