JCCH PTY LTD ATF JCCH TRUST (Migration)

JCCH PTY LTD ATF JCCH TRUST (Migration) [2020] AATA 3967 (10 August 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  JCCH PTY LTD ATF JCCH TRUST
CASE NUMBER:  1803794
HOME AFFAIRS REFERENCE(S):          BCC2017/2339951
MEMBER:De-Anne Kelly
DATE:10 August 2020
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

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Statement made on 10 August 2020 at 9:34am
CATCHWORDS
MIGRATION – Employer Nomination – approval of nominated position – Direct Entry nomination stream – Physiotherapist – financial capacity to maintain term of employment – 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 Home Affairs on 23 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).
The applicant applied for approval on 30 June 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 r.5.19(d)(i) the Regulations because the business could not demonstrate the financial capacity to employ the nominee on a full-time basis in the position for at least two years.
The applicant appeared before the Tribunal on 26 May 2020 to give evidence and present arguments.
The applicant was represented in relation to the review by its registered migration agent, Mr Hiwa Zandi MARN: 1279378 of Brisbane Qld 4000. The representative attended the Tribunal hearing.
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 applicant JCCH Pty Ltd the Trustee for JCCH Trust commenced trading in September 2016 with ABN: 25 114 180 296 and operates physiotherapy and rehabilitation clinics under the name Absolute Physio & Rehab at Beaudesert, Jimboomba and Yarrabilba. The director is Mr Chi Hang Cheung who is a qualified physiotherapist. On the application it shows six Australian employees. The organisation chart currently shows five full time staff including the director and the nominee while the balance of the staff are contractors working on a casual basis.
On the 30 June 2017, the applicant lodged a Regional Sponsored Migration Scheme RSMS – visa subclass 187 application in the direct entry stream for the nominated position of physiotherapist on a salary of $70,000 per annum in favour of Mr Yasushi Nomura.
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 application must also identify a need for the nominator to employ a paid employee to work in the position under their direct control.
Applications must be in the approved form and must be accompanied by the prescribed fee to be valid and acknowledged by the Department of Home Affairs. An acknowledgement dated 30 June 2017 was sent by the Department to the nominator as evidence of a valid application. The Department accepted a declaration made on the online form that the nominator had responded yes in the online form to the following: ‘the applicant certifies that they have not engaged in conduct in relation to this nomination that constitutes a contravention of subsection 245AR (1) of the Migration Act 1958’.
The Tribunal is satisfied that the application was made on the approved form 1395 (Internet) for post 23 March 2013 applications, accompanied by the prescribed fee and the nominator has included a written certification stating the nominator has not engaged in conduct in relation to the nomination that contravenes s.245AR(1) of the Act.
Regulation 5.19(4)(a)(ii) requires the nominator to identify a need for the nominator to employ a paid employee to work in the position under the nominator’s control. The assessment of the need for a paid employee comprises two parts: establishing the need for an employee (i.e. there exists a vacancy for the nominated position) and ascertaining that the relationship between the nominator and nominee is that of employer and employee.
The nomination does not have to specify the nominee but needs to identify a nominee before, or at the time, the associated visa application is made. Mr Yasushi Nomura was identified in the nomination application lodged on the 30 June 2017.
In the hearing it was advised that Mr Yasushi Nomura has worked for the applicant since September 2017 and evidence was provided such as referrals from general practitioners dating back to 2018.
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)
Regulation 5.19(4)(b) requires that the applicant is actively, lawfully and directly operating a business in Australia. The applicant provided tax returns for 2018 and 2019 financial years; ASIC registration; bank statements from 2017 to April 2020 and an Integrated Client Account from 2017 to 2020 as evidence of active and lawful operation in Australia. A trust deed is provided establishing Dr Cheung as the Sole director although it is noted that the deed is unsigned however the active; lawful and direct operation of the nominators business is demonstrated.
Accordingly, the requirement in r.5.19(4)(b) is 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. There was no evidence before the Tribunal to suggest the business engages in labour hire and the applicant confirmed this at the hearing.
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 tax returns for 2018 and 2019 were provided as below. Financial statements are provided for the years 2017,2018 and 2019 and show income rising from $346,564 in 2017 to $992,348 in 2019. Profit over the same years has increased from $124,104 to $339,366 indicating a business with strong growth and sound management. The equity in the business remains unchanged at $10 however this is a service delivery business and it is not expected that the business would show large assets in terms of land; buildings or equipment. Business activity statements show the same strong growth.
The Integrated Client Account from 2017 to May 2020 show the business meets all it’s taxation obligations in a timely fashion. Bank statements were provided and are consistent with the income for the business. The applicant confirmed at the hearing that they had not been affected adversely by the COVID-19 pandemic and were still delivering health services to clients.

Tax Return 2019 2018

Income     992,348     668,469

Subcontractor     127,567

Wages     218,827     119,914

Expenses     306,588     383,471

Profit     339,366     165,084

The employment contract dated 1 July 2018 and signed by both the applicant and nominee states that the nominee will be employed for two years following grant of his permanent visa and the contract is renewable after two years. It shows a wage of $80,000 plus superannuation and is based at Duckett Street, Beaudesert Qld 4285.
The Tribunal finds that the nominator has the financial capacity to employer the nominee as a physiotherapist for at least two years and that the terms and conditions allow for renewing the employment contract and do not expressly exclude the possibility of an extension.
Accordingly, the requirement in r.5.19(4)(d) is met.
No less favourable terms and conditions 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.
Job Outlook extract for the position of physiotherapists is provided showing a weekly wage of $1,444 or $75,088 per annum which is consistent with the salary of $80,000 for the nominee. Other salary guides were provided such as Live Salary and they support a similar salary range. A selection of advertisements was also provided evidencing that the salary is no less favourable than those that would be provided to an Australian citizen or permanent resident performing equivalent work in the same workplace of Beaudesert.
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.
The Tribunal has no information before it from the Department that would constitute adverse information and a search of the ASIC website finds no adverse information about the nominator or a person associated with the nominator. This was confirmed by the applicant at the hearing.
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.
The Tribunal has conducted a search of the Fair Work Ombudsman’s website and finds no unsatisfactory record of compliance for the applicant with the laws of the Commonwealth relating to workplace relations. This was confirmed by the applicant at the hearing.
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.
The Tribunal needs to determine if the position is in regional Australia. The business is located in Beaudesert, Queensland, postcode 4285. The definition of ‘Regional Australia’ is found in IMMI 16/045. This postcode is included in the list of postcodes for designated regional areas (IMMI 16/045) therefore the position and business are located in regional Australia. The applicant can choose therefore to meet either r.5.19(4)(h)(i) or r.5.19(4)(h)(ii). The applicant has chosen to meet r.5.19(4)(h)(ii) which provides for the second dot point above.
Accordingly, r.5.19(4)(h)(ii)(A) is met.
The Tribunal needs to consider if there is a genuine need for the applicant to employ a paid employee to work in the position under the nominator’s control. The nominee has been working since September 2017 with the applicant and referral letters both to and from general practitioners attest to his active physiotherapy practice during that time to the present day.
The applicant stated that they find it difficult to find experienced and skilled physiotherapists. He spent over $2,000 between November 2019 to February 2020 advertising for physiotherapist, occupational therapist and podiatrist positions and had no responses. He finds it particularly difficult as their clinics are in rural areas and the only responses, they typically get are from overseas trained therapists who are not qualified to work in Australia. Extracts from the website for the applicant show the nominee prominently featured with his qualifications listed.
The Tribunal finds for the reasons above there is a genuine need for the nominator to employ a person, Dr Yasushi Nomura identified under r.5.19(4)(a)(ii) as a paid employee to work in the position of Physiotherapist under the nominator’s direct control.
Accordingly, r.5.19(4)(h)(ii)(B) is met.
The Tribunal needs to consider if the position cannot be filled by an Australian citizen or permanent resident who is living in the same local area.
An advertisement dated 12 June 2017 was placed on Seek.com and Jora for ‘Full time Recent Graduate Physiotherapist 0-3 years’ experience’, with the name of the applicant; full details on the positions tasks; skills and experience required. The RCB assessment sheet states that summaries of the recruitment efforts were provided and there were three applicants all overseas. This is consistent with the advice given by the director at the hearing.
The Tribunal finds that the position of Physiotherapist cannot be filled by an Australian citizen or permanent resident who is living in the same local area as Beaudesert, Qld.
Accordingly, r.5.19(4)(h)(ii)(C) is met.
The Tribunal needs to consider if the tasks of the nominated position correspond with the tasks of the position specified in the instrument as 252511 Physiotherapist. The tasks of the ANZSCO from the Australian Bureau of Statistics website, are as follows;
Tasks Include:
·administering muscle, nerve, joint and functional ability tests to identify and assess physical problems of patients
·designing treatment programs to address patients' problems
·treating patients to reduce pain, improve circulation, strengthen muscles, improve cardiothoracic, cardiovascular and respiratory functions, restore joint mobility, and improve balance and coordination
·using the therapeutic properties of exercise, heat, cold, massage, manipulation, hydrotherapy, electrotherapy, ultraviolet and infra-red light and ultrasound in the treatment of patients
·reviewing, continually monitoring, assessing and evaluating programs and treatments
consulting with other Health Professionals as required about patients' problems, needs and progress
·instructing patients and their families in procedures to be continued at home
recording treatments given and patients' responses and progress
developing and implementing screening and preventative health promotion programs
The tasks of the nominated position are in the Job Description and are provided in the application and they correspond with the tasks of a Physiotherapist.
Accordingly, r.5.19(4)(h)(ii)(D) is met.
A resume and qualifications are provided for the nominee showing a Doctor of Physiotherapy from Bond University and other medical qualifications from University of Oregon and California State University to name a few.
The Tribunal finds that the occupation is applicable to the person, Dr Yasushi Nomura identified under subparagraph (a)(ii) in accordance with the specification of the occupation ANZSCO 252511 Physiotherapist.
Accordingly r.5.19(4)(h)(ii)(DA) is met.
The business of the nominator is located at Beaudesert, Qld as evidenced by ASIC registration and supporting documentation provided and is in ‘that place’ that was specified in the employer nomination.
Accordingly, r.5.19(4)(h)(ii)(E) is met.
The Chamber of Commerce and Industry Queensland as the responsible regional certifying body on 11 August 2017 certified the application on Form 1404 as meeting r.5.19(4)(e) and r.5.19(4)(h)(ii)(B) & (C) and has therefore advised the Minister about the matters mentioned in paragraph (e) and sub-subparagraph (B) and (C).
Accordingly, r.5.19(4)(h)(ii)(F) is met.
Accordingly, the requirements of r.5.19(4)(h) are met.
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.
De-Anne Kelly
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).

[2020] AATA 3967

10 August 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Statutory Construction

Procedural Fairness

Jurisdiction

Tax Return	2019	2018
Income	992,348	668,469
Subcontractor	127,567
Wages	218,827	119,914
Expenses	306,588	383,471
Profit	339,366	165,084